A question that many people involved in civil cases ask is whether they can get the other party to pay their attorney’s fees. As you might guess, many people who ask this question are defendants who have been sued for reasons that are frivolous, meritless, or some combination of the two. After all, the cost of hiring a lawyer is substantial. Why should a defendant who has done nothing wrong have to pay for an attorney when the plaintiff is the one truly at fault?
In today’s post, I’m going to go over how California law answers this question.
The short answer or rule of thumb to remember is that attorney’s fees and costs are generally recoverable in three scenarios: (1) when authorized by a contract signed by the parties, (2) when the law in questions itself authorizes attorney’s fees and costs to be awarded, or (3) if the judicial officer in your case awards attorney’s fees and costs for whatever reason. As you’ve perhaps seen or experienced, judges have significant discretion about how to handle the cases before them.
If you’re looking for California authority on this, look at Section 1021 of the Code of Civil Procedure, which states:
“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”
Section 1021 also draws a distinction between fees paid to an attorney for their time and costs — for instance, court filing fees — that are incurred during the case. The Code of Civil Procedure sections that follow Section 1021 go into more detail about how costs are recoverable.
To add even more complication to this, statutes that authorize attorney’s fees are discretionary in some instances, but mandatory in others. In the former case, the statute authorizes a judge to award attorneys fees, but does not require it. In the latter case, the judge must award attorney’s fees.
As an example of a discretionary statute, consider Section 1021.5 of the Code of Civil Procedure, which states (emphasis added):
“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…”
The words “may award” would indicate that it’s discretionary.
As an example of a mandatory statute, consider Section 425.16 of the Code of Civil Procedure that goes over California’s Anti-SLAPP motions. I’ll go over these in a later post, but the basic idea is that the California Legislature and the California courts realize that many lawsuits are frivolous. One way in which such lawsuits can be quickly disposed of is with an Anti-SLAPP motion. Certain criteria have to, obviously, be met.
If you are sued in such a frivolous manner and you file an Anti-SLAPP motion and win, the case is dismissed and you’re generally entitled to attorney’s fees and costs also, per Section 425.16(c) of the Code of Civil Procedure. That section states:
“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”
Note the difference here that Section 425.16(c) uses “shall be entitled” while Section 1021.5 says “a court may award”.
The last code section I’ll mention pertains to attorney’s fees and costs awarded under a contract provision. A typical scenario for this might be, for instance, a lawsuit involving the breach of a contract plaintiff and defendant signed. The term “contract” can be interpreted broadly also to include things like a lease between a landlord and a tenant. When there is a written contract between the parties, the big question to ask is whether the contract includes a clause that states something to the effect of “in the event litigation occurs regarding the contents of this contract, the prevailing party shall be entitled to reasonable attorney’s fees and costs”.
The relevant California law here is Section 1717(a) of the Civil Code, which provides (emphasis added):
“In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.“
The term “prevailing party” can also be the subject of disagreement. Under Section 1717(b)(1), “the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract”. Section 1717.5(a) similarly says that the “prevailing party on the contract shall be the party who recovered a greater relief in the action on the contract. The court may determine that there is no party prevailing on the contract for purposes of this section.” In addition, if a case is dismissed voluntarily or dismissed as part of a settlement, then Section 1717(b)(2) states that “there shall be no prevailing party”
As always, this post was only intended to be a quick survey of the subject matter described. If you do have a situation involving attorney’s fees and costs — either seeking them or wanting to avoid paying them to the other party — please do your own research into the details and applicable law. The law is all about specifics and details and there’s no way for me to know what the specifics of your particular situation are. If you are going to do research, hopefully the links I have provided here give you a good starting point.
Good luck.
Andy Chen
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