Wertheim, LLC v. Currency Corporation ( 2021 )


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  • Filed 11/12/21 (unmodified opn. attached)
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION ONE
    WERTHEIM, LLC,                                   B304655
    Plaintiff and Respondent,                (Los Angeles County
    Super. Ct. No. BC328263)
    v.
    CURRENCY CORPORATION,
    Defendant and Appellant.
    ___________________________________
    WERTHEIM, LLC,                                   B310650
    Plaintiff and Appellant,                 ORDER MODIFYING OPINION
    AND DENYING REHEARING
    v.
    [NO CHANGE IN JUDGMENT]
    CURRENCY CORPORATION,
    Defendant and Respondent.
    THE COURT:
    It is ordered that the opinion filed herein on October 14,
    2021, be modified as follows:
    At the end of page 12 extending to page 13, the last
    sentence is modified to read: “However, Wertheim also modified
    that form by interlineation, specifying that the acknowledgement
    applied only to a postjudgment interest payment made by
    Currency.”
    On page 16, the last sentence of the first paragraph is
    modified to read: “Equity does not support an award of
    Wertheim’s appellate attorney’s fees.”
    On page 16, the first sentence of the third paragraph is
    modified to read: “After the case was submitted, we requested
    supplemental briefing on whether in evaluating Wertheim’s
    attorney fee requests we may consider equitable principles, given
    the disproportion of the fees requested and the original $190,718
    judgment.”
    These modifications effect no change in the judgment.
    Appellants’ petitions for rehearing are denied.
    ____________________________________________________________
    CHANEY, J.       BENDIX, ACTING P. J.         CRANDALL, J.*
    *
    Judge of the San Luis Obispo County Superior Court,
    assigned by the Chief Justice pursuant to article VI, section 6 of
    the California Constitution.
    2
    Filed 10/14/21 (unmodified version)
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION ONE
    WERTHEIM, LLC,                                B304655
    Plaintiff and Respondent,              (Los Angeles County
    Super. Ct. No. BC328263)
    v.
    CURRENCY CORPORATION,
    Defendant and Appellant.
    ___________________________________
    WERTHEIM, LLC,                                B310650
    Plaintiff and Appellant,
    v.
    CURRENCY CORPORATION,
    Defendant and Respondent.
    APPEALS from orders of the Superior Court of Los Angeles
    County. Edward B. Moreton, Jr., Judge, and Stuart M. Rice,
    Judge. Affirmed in part and reversed in part.
    Shaw Koepke & Satter, Jens B. Koepke for Defendant and
    Appellant and for Defendant and Respondent.
    The Law Offices of F. Jay Rahimi, F. Jay Rahimi; Matthew
    D. Kanin; Alvarado Smith, W. Michael Hensley for Plaintiff and
    Respondent and for Plaintiff and Appellant.
    ___________________________________
    We have before us in these consolidated appeals three
    attorneys’ fees motions by a judgment creditor seeking over
    $800,000 for its efforts to enforce a 2009 judgment entered after a
    jury awarded it approximately $39,000. Even standing alone,
    these fee claims are striking in relation to the amount of the
    underlying judgment, but they also must be considered in light of
    the more than 40 appeals occasioned by the parties’ competing
    businesses in the Second District’s docket over the last dozen
    1
    years.
    In the current litigation, the trial court awarded Wertheim
    LLC’s attorney fees incurred in successfully appealing an order
    made during judgment enforcement proceedings years ago.
    Currency Corporation appeals that award, arguing the fees were
    unreasonable and unnecessary. Because Wertheim’s litigation
    strategy has been unnecessary and objectively unreasonable, we
    reverse the order awarding its post-appeal attorneys’ fees.
    The trial court also denied two subsequent motions by
    Wertheim, the first of which involved postjudgment enforcement
    fees not encompassed within its earlier motion, and the second of
    1
    We take judicial notice of our docket. (Evid. Code, § 452,
    subd. (d).)
    2
    which sought attorneys’ fees in connection with enforcement of an
    appeal bond.
    The trial court concluded that the postjudgment
    enforcement fee motion was untimely, and that both motions
    sought fees that were unnecessarily incurred. We conclude that
    the motion for post-judgment enforcement fees was timely, but
    also hold that most of the fees sought in these two subsequent
    motions were not necessarily or reasonably incurred and, hence,
    unrecoverable. Accordingly, while affirming the trial court’s
    denial of fees as to the appeal bond fee motion, we reverse, in
    part, its denial of fees as to postjudgment enforcement fees.
    BACKGROUND
    These appeals involve Wertheim’s three motions for
    attorney fees incurred in this lawsuit and a separate but related
    suit.
    A.     Original Action and 2009 Judgment
    1.    Lawsuit
    The parties are engaged in dozens of disputes concerning
    the assignment of royalty rights from third parties. In 2009, a
    jury found Currency liable to Wertheim for breach of contract and
    awarded it $38,554.48. (The “original action.”) The trial court
    entered judgment, including interest and costs, as amended, in
    the amount of $190,718.48. Both parties appealed, and in May
    2012 we affirmed the judgment and issued a remittitur in July
    2012. (Wertheim v. Currency Corp. (May 22, 2012, B218547)
    [nonpub. opn.] (Wertheim I).)
    2.    First Postjudgment Motion
    On March 10, 2016, during its enforcement efforts,
    Wertheim moved for postjudgment attorney fees incurred to date.
    (The postjudgment motion.) Such a motion must be filed before
    3
    the subject judgment has been satisfied. (Gray1 CPB, LLC v.
    SCC Acquisitions, Inc. (2015) 
    233 Cal.App.4th 882
    , 891 (Gray1).)
    The trial court denied the motion as untimely because the
    availability of an as-yet unpaid appeal bond satisfied the
    judgment, and any motion for attorney fees made after that bond
    became available was untimely.
    Wertheim appealed and we reversed, concluding that for
    timing purposes, a judgment is satisfied not when an appeal bond
    becomes available but when payment is actually tendered.
    (Wertheim LLC v. Currency Corp. (2019) 
    35 Cal.App.5th 1124
    2
    (Wertheim IV).) We directed the trial court to consider the
    postjudgment motion “on the merits.” We further directed that
    Wertheim recover its costs on appeal, which Currency paid.
    3.   Post-Appeal Motion
    On remand from Wertheim IV, Wertheim moved under
    Civil Code section 1717 for attorney fees incurred solely in
    prosecuting the Wertheim IV appeal. (The post-appeal motion.)
    It supported the motion with the declarations and time records of
    three attorneys who worked on the appeal.
    Currency opposed the motion, contending that because
    Wertheim IV was an appeal from an order made during
    postjudgment collection efforts, not from the judgment itself
    (which had been appealed in Wertheim I), any award of attorney
    fees incurred in prosecuting that appeal was governed by Code of
    Civil Procedure section 685.040, not Civil Code section 1717.
    Code of Civil Procedure section 685.040 has a requirement which
    Civil Code section 1717 does not: only fees that were necessarily
    incurred are recoverable. Currency argued Wertheim was unable
    2
    We will introduce Wertheim II and Wertheim III below.
    4
    to satisfy the requirement of Code of Civil Procedure section
    685.040 that such fees be necessary. Currency also sought a
    continuance to conduct discovery in to the reasonableness of fees
    sought.
    The trial court denied the continuance, found that Civil
    Code section 1717 governed (which requires no showing of
    necessity), and found Wertheim’s attorney fees were for the most
    part reasonable. It therefore granted Wertheim’s motion and
    awarded it $241,399.01.
    Currency appeals that order.
    B.     Bond Action
    1.    Lawsuit
    Currency secured the 2009 judgment in the original action
    by an appeal bond. Liability on a bond may be enforced
    expeditiously on noticed motion filed within a year after any
    appeal is finally determined, or more laboriously by a separate
    3
    lawsuit. (Code Civ. Proc., § 996.440.) After we affirmed the
    2009 judgment (Wertheim I), we issued a remittitur in July 2012.
    This gave Wertheim until July 2013 to file a motion to enforce
    liability on the bond. However, Wertheim waited until December
    2013 to do so, which the trial court found was untimely.
    Wertheim thereafter initiated a new lawsuit against the bond
    company to recover on the bond. (The bond action.)
    The bond company interpleaded the bond funds and was
    awarded attorney fees, which our colleagues in Division Five
    affirmed. (Wertheim, LLC v. The Bar Plan Mutual Ins. Co. (Dec.
    1, 2016, B268539) [nonpub. opn.] (Wertheim II).)
    3
    Undesignated statutory references will be to the Code of
    Civil Procedure.
    5
    After trial in the bond action, Currency moved for an order
    allocating the entire amount of the bond company’s attorney fees
    to Wertheim, which the trial court granted, finding allocation of
    the fees solely to Wertheim was warranted in part because
    Wertheim had made an untimely claim on the appeal bond.
    Division Five affirmed this order as well, holding,
    “[Wertheim’s] delay in seeking to recover on the Appeal Bond is
    alone sufficient for us to conclude the trial court’s allocation
    decision was not an abuse of discretion. The lawsuit in this case
    resulted solely from [Wertheim’s] failure to timely file a motion in
    the Underlying Proceeding within a year of the remittitur
    issuing. Had [Wertheim] done so, the fees incurred by Insurer
    would not have been incurred (or would have been negligible) and
    the attorney work necessary in any such enforcement action
    would have been almost assuredly far less expensive.”
    (Wertheim, LLC v. Currency Corp. (Aug. 25, 2017, B270926)
    [nonpub. opn.] (Wertheim III).)
    The parties and trial court thereafter negotiated a
    judgment disbursing $131,000 of the interpleaded funds to
    Wertheim “in satisfaction of” the underlying, 2009 judgment,
    “inclusive of principal and interest.” That disbursement did not
    include “post-judgment interest from Currency as to amounts due
    under [a] March 11, 2016 Order.” To cover this interest,
    Currency paid Wertheim $14,300 in March 2019.
    After this payment, Wertheim on April 18, 2019, filed an
    acknowledgment of full satisfaction of the judgment in the bond
    action.
    C.     Back in the Original Action
    As stated above, on March 10, 2016, during its enforcement
    efforts, Wertheim moved for postjudgment attorney fees incurred
    6
    to date. Its efforts continued beyond that date, however, and it
    incurred further attorney fees.
    On February 13, 2020, Wertheim filed an acknowledgment
    of satisfaction of the judgment in this action, checking the box on
    Judicial Council form EJ-100 reflecting that the judgment was
    satisfied in full. However, Wertheim also modified the form by
    interlineation, specifying that “[t]his acknowledgment applies
    ONLY to that certain Memorandum of Costs On Appeal (Appeal
    BC277633) filed September 24, 2020 (Attachment 5a) as to Rule
    8.278 costs only, and not any other judgment issued or pending in
    the above-referenced action or any other action.” In other words,
    Wertheim acknowledged only that Currency had paid the appeal
    costs, amounting to $3,481.21, incurred in Wertheim IV.
    1.    Renewed Postjudgment Motion
    Given that we reversed the trial court’s denial of
    Wertheim’s March 10, 2016 motion for postjudgment attorney
    fees and directed the trial court to consider it on the merits,
    Wertheim renewed the motion, seeking $211,112.65 for fees
    incurred in prosecuting the bond action.
    2.    Second Postjudgment Motion
    On October 30, 2019, Wertheim filed a motion seeking
    $388,122.52 in postjudgment attorney fees incurred after March
    10, 2016 in connection with the original action and the bond
    action, $91,000 of which were incurred more than two years
    before the motion was filed.
    3.    Rulings
    The trial court denied both motions.
    a.     Necessity
    To the extent either motion sought fees incurred in the
    bond action, the court found that Wertheim failed to show the
    7
    fees “resulted from anything other than its dilatory conduct and
    should not have been necessary in securing enforcement of the
    underlying judgment.” “[T]he necessity of the Bond Action was
    created by Wertheim itself,” the court found, “since it failed to
    seek enforcement on the bond within a year of remittitur.”
    b.    Timeliness
    To the extent Wertheim sought postjudgment fees incurred
    in the original action, the court found the motion, filed six
    months after Wertheim acknowledged full satisfaction of the
    2009 judgment, was untimely.
    4
    Wertheim appeals these rulings.
    We consolidated Currency’s and Wertheim’s appeals.
    DISCUSSION
    We review both statutory interpretation and entitlement to
    attorney fees de novo. (Conservatorship of Ribal (2019) 
    31 Cal.App.5th 519
    , 524.) In reviewing an order awarding or
    denying attorney fees, we first “determine whether substantial
    evidence supports the factual basis on which the trial court
    acted” (Obregon v. Superior Court (1998) 
    67 Cal.App.4th 424
    ,
    430), and then determine whether the order constituted an abuse
    of discretion. (Jaffe v. Pacelli (2008) 
    165 Cal.App.4th 927
    , 934.)
    A.     Wertheim’s Appeal of the Orders Denying Its
    Renewed and Second PostJudgment Motions
    Wertheim renewed its March 10, 2016 postjudgment
    motion for attorney fees, seeking $211,112.65 for fees incurred in
    prosecuting the bond action, and on October 30, 2019, filed a
    4
    Wertheim also requested the $126,000 in bond company
    fees that the trial court in the bond action had allocated to
    Wertheim. The trial court here denied that request, which
    Wertheim abandons on appeal.
    8
    second motion for postjudgment attorney fees, seeking
    $388,122.52 for fees incurred between July 2016 and October
    2019 in connection with both the original action and the bond
    action. The trial court denied both motions on the grounds that
    fees incurred on the bond action were not necessary, and the
    second motion was untimely.
    “Under the ‘American rule,’ followed in California, ‘each
    party to a lawsuit ordinarily must pay his or her own attorney
    fees. [Citations.]’ [Citation.] An exception to this rule exists
    where the parties have agreed to ‘the measure and mode of
    compensation of attorneys. [Citation.] For example, a contract
    may contain a provision providing for attorney fees in enforcing
    the contract. Where a contract contains such a provision, the
    court must fix reasonable attorney fees as an element of the costs
    of the lawsuit.” (Gray1, supra, 233 Cal.App.4th at pp. 889-890.)
    Here, the contract at issue in the original action provided
    that the prevailing party would receive attorney fees incurred in
    enforcing the contract.
    Pursuant to the Enforcement of Judgments Law, section
    680.010 et seq., postjudgment fees or costs, including attorney
    fees incurred in enforcing a judgment, may be added to a
    judgment when authorized pursuant to contract or statute, to the
    extent they are “reasonable and necessary.” (§ 685.040.)
    A motion for such costs “shall be made before the judgment
    is satisfied in full, but not later than two years after the costs
    have been incurred.” (§ 685.080, subd. (a).)
    1.     Necessity
    Wertheim argues that the trial court abused its discretion
    when it found that no attorney fees incurred in the bond action
    were necessary because that action was itself unnecessary. We
    9
    disagree. Wertheim could have avoided a new lawsuit entirely by
    filing a timely motion pursuant to section 996.440.
    “The liability on a bond may be enforced by civil action.”
    (§ 996.430, subd. (a).) Alternatively, “[i]f a bond is given in an
    action or proceeding, the liability on the bond may be enforced on
    motion made in the court without the necessity of an independent
    action.” (§ 996.440, subd. (a).)
    If an appeal is taken in the underlying action, a motion to
    enforce liability on an appeal bond must be made within one year
    of final determination of the appeal. (§ 996.440, subd. (b).)
    We affirmed the 2009 judgment in Wertheim I and issued a
    remittitur in July 2012. This gave Wertheim until July 2013 to
    file a motion to enforce liability on the bond. It failed to do so
    until December 2013, rendering its motion untimely and thereby
    precipitating the bond action against the bond company.
    The trial court had an ample basis upon which to conclude
    that Wertheim’s attorney fees on the bond action were
    unnecessary. Wertheim’s strategy of filing a separate lawsuit,
    rather than a timely collection motion, fueled litigation in which
    tangential concerns have come to the fore, resulting in fees highly
    disproportionate to the result achieved. (See Karton v. Ari
    Design & Construction, Inc. (2021) 
    61 Cal.App.5th 734
    , 746
    [overlitigation appropriately considered in awarding attorney
    5
    fees].) Under these circumstances, the trial court did not abuse
    its discretion in finding such litigation to be unnecessary.
    5
    We pause here to note both parties share significant
    blame for inflating fees. Currency, for example, made multiple
    specious arguments on this appeal, and it failed promptly to pay
    the small underlying judgment, which could have easily avoided
    most of the fees now being sought.
    10
    Wertheim relies on four cases for the proposition that the
    determination of whether section 685.040 entitles a judgment
    creditor to attorney fees does not depend upon the forum in which
    the expenses were incurred: Jaffe v. Pacelli, supra, 
    165 Cal.App.4th 927
    ; Chinese Yellow Pages Co. v. Chinese Overseas
    Marketing Service Corp. (2008) 
    170 Cal.App.4th 868
    ; Cardinale v.
    Miller (2014) 
    222 Cal.App.4th 1020
    ; and Globalist Internet
    Technologies, Inc. v. Reda (2008) 
    167 Cal.App.4th 1267
    .
    We agree with these cases, but in each, resort to the
    alternative forum was necessitated by the judgment debtor’s
    conduct. Here, the bond action was required largely because
    Wertheim failed to file a timely motion under section 685.040. As
    Wertheim acknowledges in its opening brief, the court “is not
    obligated to grant all of the fees sought by the creditor for all of
    its activities. It may, in its discretion, reduce the fee award for
    excessive time spent on ill-considered pursuits.” The trial court
    was within its discretion to find the bond action to be an ill-
    considered pursuit.
    Wertheim argues that categorically denying all of a
    creditor’s fees as unnecessary because it chose one procedural
    option over another amounts to bestowal of a disfavored status on
    one of two equally available procedures. Not so. While both
    procedures are equally available, they are not always equally
    necessary.
    Wertheim argues that in Wertheim IV we impliedly found
    its conduct in the bond action was necessary, to the effect it is
    now law of the case. However, in Wertheim IV, we held only that
    Wertheim’s motion for postjudgment fees incurred in that action
    was not untimely, implying nothing about the necessity of the
    bond action.
    11
    Wertheim argues that in Wertheim IV our direction to the
    trial court to consider Wertheim’s motion “on the merits” left the
    court without jurisdiction to deny fees altogether. We disagree.
    A consideration of the merits of a motion admits the possibility
    that the motion has none.
    Wertheim argues we would bestow a windfall on Currency
    were we to conclude that its herculean efforts in the bond action
    were unnecessary simply because the action itself was
    unnecessary. We are not insensitive to this concern, and our
    opinion today in no way endorses Currency’s conduct in this
    litigation, which, as Wertheim correctly points out, has been
    largely unmeritorious. But the trial courts in this never-ending
    dispute have always been in a much better position than we to
    evaluate the relative equities, and two trial courts have found
    Wertheim’s litigation tactics to be unnecessary.
    We conclude that the trial court’s finding here was
    supported by substantial evidence and was neither arbitrary,
    capricious, or patently absurd, and resulted in no miscarriage of
    justice.
    2.    Timeliness
    As previously noted, on October 30, 2019, Wertheim filed
    its second motion for postjudgment attorney fees, seeking
    $388,122.52 in fees incurred after March 10, 2016, in connection
    with both the original action and the bond action, $91,000 of
    which were incurred more than two years before the motion was
    filed.
    The trial court denied the motion as untimely under section
    685.080 because it came six months after Wertheim filed Judicial
    Council form EJ-100, on which it checked a box representing that
    the 2009 judgment was satisfied in full. However, Wertheim also
    12
    modified that form by interlineation, specifying that the
    acknowledgement applied only to Currency’s payment of appeal
    costs incurred in Wertheim IV.
    “Payment” for purposes of satisfaction of a money judgment
    means either (1) the tender of cash or (2) the tender and
    acceptance of a certified check or similar instrument. (See
    Conservatorship of McQueen (2014) 
    59 Cal.4th 602
    , 615; Gray1,
    supra, 233 Cal.App.4th at pp. 892-893.)
    No evidence suggests that Currency ever tendered full
    satisfaction of the 2009 judgment, or that Wertheim accepted the
    tender or acknowledged satisfaction. On the contrary, that
    Wertheim’s March 10, 2016 motion for postjudgment attorney
    fees was never resolved (until today) suggests that Wertheim
    deemed the judgment unsatisfied. Therefore, its second motion
    was not rendered untimely by section 685.080 (insofar as it
    sought fees incurred within two years of filing the motion). The
    court therefore erred in denying the motion on timeliness
    grounds.
    Currency argues that once the bond proceeds were
    disbursed and Currency paid the remaining $14,300 owed in
    postjudgment interest, there were no other costs or fees to add to
    the 2009 judgment. It is incorrect. Additional fees were
    potentially awardable pursuant to Wertheim’s March 10, 2016
    motion for them, which was revived by Wertheim IV, as well as
    any motion it might bring for fees incurred after that date.
    Currency relies upon Gray1, supra, for the proposition that
    once a judgment is fully satisfied, it includes only attorney fees
    actually awarded by a court, not those claimed but as yet
    unawarded. We do not disagree, but here, the 2009 judgment has
    not been fully satisfied. Although the judgment in the bond
    13
    action stated it was “in satisfaction of” the 2009 judgment,
    “inclusive of principal and interest,” it did not purport to be in
    full satisfaction of the 2009 judgment. And Currency adduces no
    evidence suggesting that any tender it made was conditioned on
    its being considered as full satisfaction of 2009 judgment.
    3.      Equitable Tolling is Unavailable
    Wertheim acknowledges that approximately $91,000 of the
    fees it seeks in the second postjudgment motion were incurred
    more than two years before the motion was filed, rendering that
    request untimely pursuant to the two-year provision of section
    685.080, but argues that time limit must be equitably tolled
    because the pendency of Wertheim IV prevented it from filing the
    second motion. We disagree.
    “Equitable tolling is a judicially created doctrine that
    permits the tolling of a statute of limitations. [Citation.]
    Equitable tolling is invoked ‘ “ ‘[w]hen an injured person has
    several legal remedies and, reasonably and in good faith, pursues
    one’ ” ’ ” to the exclusion of others. (Gray1, supra, 233
    Cal.App.4th at p. 897.) Even were we to assume for purposes of
    argument that equitable tolling applies to motions as well as
    actions, it would not apply here because nothing about Wertheim
    IV, which concerned fees incurred up to March 10, 2016,
    precluded a motion for postjudgment fees incurred after that
    date. Even though the trial court denied Wertheim’s motion for
    pre-March 2016 fees, it was incumbent upon Wertheim to move
    for post-March 2016 fees within two years to preserve its claim to
    them.
    14
    B.     Currency’s Appeal of the Order Granting Wertheim’s
    Post-Appeal Motion
    After our remittitur in Wertheim IV, Wertheim moved
    under Civil Code section 1717 for attorney fees incurred in that
    appeal, which as discussed above concerned only Wertheim’s
    March 10, 2016 motion for postjudgment attorney fees incurred
    only in the bond action. The trial court granted the motion, but
    made no finding that the fees were necessarily incurred, because
    Civil Code section 1717 required none.
    Currency contends that section 685.040, which governs
    postjudgment fees, not Civil Code section 1717, which governs
    fees incurred on appeal, controls a motion for attorney fees
    incurred in enforcing a judgment, even those incurred to appeal a
    postjudgment enforcement order. As discussed above, such a
    motion must establish the costs were “reasonable and necessary”
    (§ 685.040), whereas a motion for costs awardable pursuant to
    Civil Code section 1717 need establish only that the costs were
    “reasonable” (Civ. Code, § 1717, subd. (a)).
    Currency argues that by failing to consider whether
    Wertheim’s appellate costs were necessary, the trial court applied
    the wrong standard. Applying the proper standard, it argues,
    Wertheim’s appellate costs were unnecessary as a matter of law
    because Wertheim IV itself was unnecessary given that the bond
    action upon which it was predicated was itself unnecessary.
    We need not decide whether section 685.040 or Civil Code
    section 1717 applies because Wertheim’s litigation strategy has
    not only been unnecessary under the former, as discussed above,
    but also objectively unreasonable under the latter.
    Wertheim had the option of filing either a collection motion
    or a separate lawsuit. It chose the lawsuit which, as we have
    15
    said, unnecessarily exploded its legal fees. An “award of
    contractual attorney fees is governed by equitable principles.”
    (International Industries, Inc. v. Olen (1978) 
    21 Cal.3d 218
    , 224;
    see also Santisas v. Goodin (1998) 
    17 Cal.4th 599
    , 616 prior
    version of Civil Code section 1717.) Equity does not support an
    award of Wertheim’s appellate attorney’s fees, and the trial court
    did not abuse its discretion in denying such an award of appellate
    fees in Wertheim IV.
    We also remind the parties that fee awards are
    fundamentally governed by equitable principles. The trial and
    appellate courts in Los Angeles have been involved in dozens of
    litigations sorting out the rights and obligations of these business
    rivals in their long running and sometimes personal competition
    to obtain royalties from third parties.
    After the case was submitted, we requested supplemental
    briefing on whether in evaluating Wertheim’s attorney fee
    requests we may consider equitable principles, given the
    disproportion of the fees requested and the original judgment. In
    response, Wertheim answered that the result achieved may not
    be “used to evaluate proportionality,” and the lodestar may not be
    “adjusted to achieve proportionality.” Our question was not
    about evaluating or achieving proportionality but considering
    equitable principles. On this question one of Wertheim’s
    citations was helpful: “[T]he amount of money involved in the
    litigation is an important factor in determining an award of
    attorneys’ fees.” (Niederer v. Ferreira (1987) 
    189 Cal.App.3d 1485
    , 1507.) Equity countenances against awarding attorney fees
    to parties who litigate unnecessarily or in expensive battles
    eclipsing the dispute that initially brought them into court.
    16
    DISPOSITION
    The order granting Wertheim’s motion for appellate fees in
    Wertheim IV is reversed with directions to enter a new order
    denying that motion. The order denying Wertheim’s first
    postjudgment motion is affirmed. The order denying Wertheim’s
    second postjudgment motion is affirmed as to that portion of the
    fees found to be unnecessary by the trial court and as to that
    portion incurred more than two years before the motion was filed,
    but otherwise reversed.
    The matter is remanded to the trial court to calculate what
    portion of the fees Wertheim seeks in its second postjudgment
    motion may be attributed to the original action only, were sought
    within two years of having been incurred, and were reasonably
    incurred. Both sides are to bear their own costs on appeal.
    CERTIFIED FOR PUBLICATION
    CHANEY, J.
    We concur:
    BENDIX, Acting P. J.
    *
    CRANDALL, J.
    *
    Judge of the San Luis Obispo County Superior Court,
    assigned by the Chief Justice pursuant to article VI, section 6 of
    the California Constitution.
    17
    18
    

Document Info

Docket Number: B304655M

Filed Date: 11/12/2021

Precedential Status: Precedential

Modified Date: 11/12/2021