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The prevailing party in a lawsuit can recover their attorney’s fees from their opponent if there is a statute or contract providing this recovery. However, courts are allowed to reduce the amount of fees awarded if it appears that the attorney over-litigated the case.

It’s not unusual to receive a motion for award of attorney’s fees where, on close examination of the supporting declaration and exhibits showing attorney billing time entries, the fees appear unusual. Often, courts will simply reduce by 10% whatever amount is sought in the motion. Now, a court of appeal has held that if the attorney’s time entries show over-litigation of the file, the fee award can be reduced accordingly.

In Karton v. Ari Design & Constr., Inc., 61 Cal. App. 5th 734, 738 (2021), as modified on denial of reh’g (Mar. 29, 2021), review denied (June 23, 2021), the court stated:

Trial judges deciding motions for attorney fees properly may consider whether the attorney seeking the fee has become personally embroiled and has, therefore, over-litigated the case. Similarly, judges permissibly may consider whether an attorney’s incivility in litigation has affected the litigation costs.

In Karton, plaintiff was an attorney with a dispute against his general contractor. Attorney Karton wanted a refund worth $22K more than the amount defendant contractor offered to pay, so Karton sued and won a $133K judgment. Karton then sought a $271K fee award. The trial court awarded $90K because plaintiff Karton, who represented himself[1] with limited help from another attorney, behaved uncivilly in his briefs, like personally attacking opposing counsel. The court did not appreciate Karton getting agitated about the case, which the court said was because it was a personal dispute.

The order reviewed law about the lodestar method of fee calculation. The lodestar is the product of a reasonable hourly rate and a reasonable number of hours. The court has broad discretion to adjust an award downward or to deny it completely if it determines a request was excessive.

In Karton on a different issue, the court held it was error for the trial judge to find that plaintiffs had no basis to collect the reduced $90,000 award from an insurance company that had posted a surety bond for defendant general contractor. The liability of the surety is commensurate with the liability of its principal. In this case, by statute, defendant was required to pay the attorney fees as an element of court costs. So the surety was liable for the fee award along with the defendant.

[1] There is no recovery for the time a pro per plaintiff like Karton himself had spent on the case. (See Trope v. Katz (1995) 11 Cal.4th 274, 292 (attorney litigants may not recover attorney fees as compensation for effort they spend litigating matters on their own behalf.)

By: Kathleen J. Smith, Esq.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.