Ericksen Arbuthnot Appellate Practice Group Prevails in Two Appeals

April 17, 2019

Ericksen Arbuthnot’s Appellate Practice Group has prevailed in two recent appeals, preserving one order denying over $1 million dollars in attorney fees and granting an Anti-SLAPP motion with sanctions.

In Linton v. County of Contra Costa (2019) 31 Cal.App.5th 628 (certified for partial publication) (Linton), the plaintiff asserted discrimination claims against defendants under the Disabled Persons Act (Civ. Code, § 54 et seq.; UDP) and the Unruh Civil Rights Act.  (Civ. Code, § 51 et seq.; Unruh Act.)  The plaintiff made a CCP section 998 offer to the defendants on a Judicial Council Form offering $250,001 and checking a box which stated: “Plus costs under Code of Civil Procedure Section 1032 and attorney’s fees allowed by law as determined by the court.”  (Linton, supra, at p. 631.)  The defendants accepted the offer and the plaintiff filed a motion seeking $1,087,650 in fees and costs, which the trial court denied.

On appeal, the First Appellate District affirmed the trial court’s order, explaining that “costs do not always equate to attorney fees.”  (Linton, supra, at p. 633.)  Rather, costs are governed by Code of Civil Procedure Section 1032, which states: “Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”  (Linton, supra, at p. 633, citing § 1032, Court’s emphasis.)  As the Linton Court further emphasized, the costs which a prevailing party may recover include attorney fees only “when recovery of such fees is authorized by contract, statute, or law.”  (Linton, supra, at p. 633, citing Code Civ. Proc., § 1033.5, subd. (a)(10), Court’s emphasis.)  The Linton Court found that the plaintiff did not show her entitlement to attorney fees via contract, statute, or law.  (Linton, supra, at pp. 633-635.)  First, under the Unruh Act, Civil Code Section 52 authorizes an award of attorney fees only to those who are “denied the rights provided in Section 51, 51.5, or 51.6.”  (Linton, supra, at pp. 634, citing Doran v. North State Grocery, Inc. (2006) 137 Cal.App.4th 484, 490 (Doran).)  Thus, “the plain language makes clear that only those who deny rights guaranteed by Section 51, 51.5, or 51.6 are liable for attorney fees.”  (Linton, supra, at p. 633, citing Doran, supra, at p. 489.)  Accordingly, the plaintiff could not recover her attorney fees under Civil Code Section 52 because her section 998 offer did not constitute a finding that the defendants had violated the Unruh Act.

Next, as the Linton Court noted, the DPA fee provision provides, much like the Unruh Act: “Any person or persons, firm or corporation who denies or interferes with admittance to or enjoyment of the public facilities as specified in Sections 54 and 54.1, or otherwise interferes with the rights of an individual with a disability under Section 54, 54.1 and 54.2 is liable for … attorney’s fees as may be determined by the court in addition thereto, suffered by any person denied any of the rights provided in Sections 54, 54.1, and 54.2.”  (Linton, supra, at p. 634, citing Civ. Code, § 54.3, subd. (a), emphasis added.)  Thus, as the Linton Court reasoned, “the DPA also requires a finding of liability before the statute allows for an attorney fee recovery.”  (Linton, supra, at p. 634.)  As a consequence, the Linton Court found that the plaintiff also did not establish her entitlement to attorney fees under the DPA.

Nor did the plaintiff establish her entitlement to attorney fees by contract.  (See Code Civ. Proc., § 1033.5, subd. (a)(10).)  On this issue, the plaintiff argued that the phrase “attorney’s fees as allowed by law” in her Section 998 offer was ambiguous because she believed that her status as a prevailing party was equal to a finding of liability against the defendants.  As the Linton Court explained, however, “[a] mistaken understanding of the law does not support reformation of the agreement.”  (Linton, supra, at p. 637, citing Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 672 [“the clear purpose of section 998 … is to encourage the settlement of lawsuits prior to trial [citation]. If courts could set aside compromise agreements on the grounds of mistake, section 998 judgments would spawn separate, time consuming litigation.”].)  Thus, the plaintiff did not establish that she was entitled to attorney fees by way of contract.

Plaintiff’s reliance on Judicial Council Form CIV-090 was also unavailing.  As the Linton Court emphasized. “… the form includes no option that would have effectuated [plaintiff]’s purported goal of offering a $250,001 judgment plus reasonable attorney fees, irrespective of a judicial determination of liability before that party may recover attorney fees.”   (Linton, supra, at p. 638, Court’s emphasis.)  Thus, the Linton Court warned, parties should “proceed with caution” when using Judicial Council Form CIV-090 to make a section 998 offer.  (Id.)   In this case, the plaintiff did not proceed with caution, so her attorney fee motion was properly denied.

Gregory A. Mase, Esq., Co-Chair of Ericksen Arbuthnot’s Appellate Practice Group, and Andrew J. Kozlow, Esq., Co-Chair of the Firm’s Employment Practice Group, handled the Linton case in the trial court and on appeal.


In the second case—Levi v. Morrison & Foerster, LLP, 2018 Cal. App. Unpub. LEXIS 7421 (Levi)—the plaintiff alleged that over 65 attorneys, judges, elected officials, investigators, individuals and corporations engaged in unethical practices, fraud, and political corruption in matters involving the California State Bar and the California Bar Foundation, which later changed its name to CaliforniaChange Lawyers.  The trial court granted the Anti-SLAPP motion filed by several current and former directors of the California Bar Foundation (the CBF defendants), who were represented by Ericksen Arbuthnot.  In addition, the trial court dismissed the complaint with prejudice as to two other defendants represented by Ericksen Arbuthnot, a major California company and one of its employees, although they had yet to appear in the case (the non-appearing defendants).  On appeal, the Third Appellate District affirmed the trial court’s order granting the CBF defendants’ Anti-SLAPP motion as to all causes of action and awarded them costs.  Moreover, the Court of Appeal denied the plaintiff’s motion to strike the non-appearing defendants’ respondents’ brief, finding that it was frivolous for the plaintiff to move to strike the brief when he appealed from the judgment in their favor and challenged the judgment on the merits in his opening brief.  (Levi, supra, at pp. 15-16.)  The Levi Court thus affirmed the judgments for all of Ericksen Arbuthnot’s clients and sanctioned the plaintiff in the amount of $2,700.

Gregory A. Mase, Esq., Co-Chair of Ericksen Arbuthnot’s Appellate Practice Group, Charles S. Painter, Esq., Co-Chair of the Firm’s Product’s Liability Practice Group, and Graham M. Cridland, Esq., handled the Levi case in the trial court and on appeal.