There's nothing published from the California appellate courts or the Ninth Circuit today, so I thought I'd mention this opinion from yesterday, if only briefly.
It's really just a vehicle through which Justice Wiley can make a point. A point that's surely valid, but one that Justice Wiley is particularly keen to make. So does. At some length.
The appeal comes out exactly how every objective observer in the universe would expect. David Karton hires a contractor to do some extensive construction work on his home -- over $150,000 worth. After about five months of daily work, the parties start fighting. Karton's paid 'em about $100,000 at that point, and everyone admits that the contractor hadn't yet done $100,000 worth of work at the point at which it was fired. The contractor figures that Karton's owed around $13,000, but Karton thinks he's owed more like $35,000. AS the Court of Appeal notes: "No witness impugned the quality of [the contractor's] work." It's just a fight about how much was work was finished at the time the contract was terminated.
So Karton sues.
At trial, Karton ends up being right, so the contractor's got to pay back the $35,000 owed. But Karton also proves at trial that the contractor wasn't properly licensed. And we're super harsh on that. As Justice Wiley notes: "Section 7031, subdivision (b), of the Business and Professions Code, [] entitles those using an unlicensed contractor to all compensation they paid the unlicensed contractor, even if they knew the contractor was unlicensed. This statute requires an unlicensed contractor to return all compensation it received, without reductions or offsets for the value of materials or services it provided. This statute can create a windfall for those hiring an unlicensed contractor that has done quality work. Courts may not resort to equitable considerations when applying this statute, however, for the law aims to create a harsh penalty to induce contractors to maintain proper licensure."
So Karton does indeed receive his windfall; he gets the entire amount he paid the contractor back (roughly $100,000), plus he gets another bonus -- an additional "$10,000 penalty under Code of Civil Procedure section 1029.8. [S]ection 1029.8 provides for treble damages and attorney fees against “[a]ny unlicensed person” whose work injures another person. This statute caps the permissible treble damages award at $10,000. (Id., subds. (a) & (c).) This treble damage provision, albeit capped, is an additional noncompensatory damage provision that created a further windfall for the Kartons."
So Karton gets a little over $100,000, plus he gets to retain all the quality work the contractor did. He also gets to ask for his attorney's fees, which (of course) he does. He demands over a quarter million dollars of fees. But the trial court says, essentially: "No way. This was a simple case. You massively overlitigated the thing. I'm giving you 200 hours at $450/hour, for a total of $90,000." (Actual quotes from the trial judge: "The court observed the Kartons had gone 'so far beyond what was necessary on this matter.' The court concluded, 'I cannot say that anything like $270,000 requested in this case is reasonable.' The $270,000 fee request was 'excessive by a lot.'” )
So Karton files an appeal, claiming that the trial court was required to give him more money.
That appeal comes out exactly how you'd expect. It's an abuse of discretion standard, and there's absolutely no such abuse here. Justice Wiley lists a plethora of reasons why the trial court rightly could (and did) discount the fee award to $90,000. All of which are totally right. So Karton loses. (Though he wins on an ancillary point about the contractor's surety also being liable for the reduced fee award.)
It's an otherwise routine case about a party who massively overlitigated the case below and so gets a reduced fee award. Nothing really special or otherwise remarkable about it. They're a dime a dozen.
But one of the reasons that trial court gave for reducing the award was its observation that the over-litigation was, in part, a byproduct of Mr. Karton's personal and excessive involvement in the case. Because, you see, Mr. Karton is an attorney in Beverly Hills. And he decided to litigate against his former contractor . . . aggressively. As Justice Wiley explains in his opinion:
"The trial court commented on the Kartons’ lack of civility in their briefing. “The briefing filed by [the Kartons’] counsel was replete with attacks on defense counsel such as that defense counsel filed ‘knowingly false claims of witness tampering,’ ‘her comments were frivolous,’ something was ‘typical of the improper tactics employed by defendants and their counsel’. [¶] It was really offensive to me, the attacks made in this case.” (Plus, during oral argument, "The court asked Karton, “Can you not interrupt me. I would appreciate your letting me finish my sentence.” Never a good sign.)
That's an issue that Justice Wiley wants to talk about. And does so at length. Remarking -- again, rightly -- the a lack of civility, and resulting overlitigation, can indeed be the basis for reducing a fee award.
Now, to me, the thing that justifies the reduction is the overlitigation, not the incivility. But, sure, the two often go hand in hand, so it's worth making that point.
The lesson being: Don't be a jerk. Or at least an obvious jerk. Or at least an obvious jerk in a case in which you've already received a huge windfall. Because pigs get fat, whereas hogs get slaughtered -- and uncivil hogs even more so.
