Civil Litigation Basics with Attorney Steve (How to recover attorney fees in your case)
In litigation, it’s dog eat dog. You file a lawsuit, or you are sued, and each party is claiming a right to attorney fees. This is typical fare in the litigation process. But whether or not you actually collect an attorney fee award will depend on many different factors. Chief among those are whether there is a contract, or statute, that permits the recovery of an attorney fee award. This blog seeks to provide some general insight into this interesting, and all-important topic.
The American Rule
The general rule is that parties engaged in litigation will bear their own costs and attorney fees. This is known as the “American Rule.” Trope v. Katz, 11 Cal. 4th 274, 278-79, 902 P.2d 259, 262 (1995) was a case that illustrated this legal concept:
Statutes that offer Attorney Fee Awards
There are many different types of STATUTES that have attorney fees awards built in (usually meaning if you file a lawsuit and prevail on these causes of action you can seek to recover attorney fees. Some statutes call for the Court to exercise its legal discretion (i.e. the Court “may award” reasonable attorney fees) while others are MANDATORY (i.e. the Court “shall award” attorney fees to the prevailing party). Here are some statutes that provide the possibility of attorney fees awards:
1. Federal Truth in Lending Act (“TILA”)
2. Fair Debt Collection Practices Act (“FDCPA”)
3. California Homeowner’s Bill of Rights (“CHBOR”)
4. California Financial Elder Abuse (Welfare & Institutions Code)
5. Federal Copyright Statute (ex. Willful Infringement lawsuits)
These are just a few sample statutes. There are literally hundreds of other statutes that may provide a basis for attorney fee awards if you win your civil lawsuit. Contact us using the form below to discuss other potential grounds for recovery of attorney fees.
Many Agreements (“Contracts”) will provide that the “prevailing party shall be awarded its reasonable attorney fees and costs.”
Even where the facts of your case do not raise grounds to seek statutory recovery of attorney fees, a good lawyer will always look for a CONTRACT that provides for the award of attorney fees and costs. For example, you may have signed a retainer agreement, vendor agreement, or independent contractor agreement that has an ARBITRATION PROVISION. The provision may call for the award of attorney fees and costs to the prevailing party. These will normally be honored (unless there is a defense such as fraudulent inducement to enter into the contract).
Whenever you are involved in litigation, you need to closely examine all contracts that you have signed to see what you agreed to.
California Code of Civil Procedure Section 1021.5
This code section states as follows:
“CCP 1021.5. Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if:
(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons,
(b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate,
(c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code.
Attorneys’ fees awarded to a public entity pursuant to this section shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano v. Priest, 20 Cal. 3d 25, 49.”
But what does this code section mean in real life? Here is some California case law to review. Some Courts look to specified actions (such as a corporate derivate lawsuit). See Mandel v. Hodges, 54 Cal. App. 3d 596, 620-21, 127 Cal. Rptr. 244, 260 (Ct. App. 1976) which held:
Other cases do not require a corporate derivative action:
In Coal. for L. Cnty. Planning etc. Interest v. Bd. of Supervisors, 76 Cal. App. 3d 241, 248-49, 142 Cal. Rptr. 766, 771 (Ct. App. 1977) the California Court of Appeals held:
We help you fight to recover attorney fees in your case
The best bet is to have your case examined in detail before you file a lawsuit (in state or federal court), and to see if you have a possibility to recover attorney fees in your case either under a state or federal statute, contract or under Cal. Code of Civil Procedure Section 1021.5.
Civil litigation Attorneys – Contact Us
Whether you have an insurance case, real estate (ex. CHBOR litigation), business litigation, or intellectual property (copyright, trademark, right of publicity lawsuit), we can evaluate your rights and see if you might be in a position to recover attorneys fees in your case. This determination can make a huge impact in the outcome of your case. You can reach one of our civil litigation attorneys by calling (877) 276-5084 or by leaving your phone number and case details by filling out the litigation contact form below.
Latest posts by Vondran Legal - Business, Real Estate, Insurance, Technology & Civil Litigation Counsel (see all)
- U.S. Supreme Court Says Cheerleader Uniforms Copyrightable - March 22, 2017
- Can you copyright a signature yoga pose or choreographed dance move? - February 24, 2017
- Did your company receive an email about an “Autodesk Software Review” - February 20, 2017
- Malibu Media Lawsuit Updates – Defendant wins! - February 14, 2017
- “Back off buddy” – Intentional interference with prospective economic relations under California law explained - February 1, 2017