Karton v. Ari Design (2021) 61 Cal.App.5th 734 holds that a trial court can consider a prevailing party’s incivility in ruling on a motion for attorney’s fees. (Id. at p. 738.) In that matter, Karton, an attorney, and his wife had a dispute with a remodeling contractor over whether the contractor owed them $35,096, as the couple contended, or $13,000, as the contractor claimed. The Kartons sued and won a judgment for $133,792.11 and, pursuant to statute, sought attorney’s fees of $271,530. After tentatively awarding $90,000 in fees based upon 200 hours at an approved hourly rate of $450, the trial court continued the hearing to allow the Kartons to supply evidence justifying their request, after observing that the motion lacked a breakdown of hours spent by the Kartons’ counsel beyond a “bare-bones declaration” that merely asserted a total of 603.4 hours. The court limited the supplemental briefing to 10 pages. Karton, now acting as his own attorney, filed 11 pages of text, over 400 pages of supplemental briefing and added $16,110 to the fee’s request. The briefing “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’.” (Id. at pp. 741-742.)

At the continued hearing, the trial court noted that it had given the Kartons an opportunity to provide evidence for a request that could have previously been denied, did not expect to see a request for increased fees and did not expect to see improper attacks on counsel, which it found to be personally offensive. The court denied the additional fees and awarded the original $90,000, finding that the questions in the case were relatively simple; the Kartons had overlitigated the matter; some of the overlitigation was because of Mr. Karton’s personal embroilment in the dispute; the fees sought exceeded the result achieved and the Kartons’ briefing included incivility.

The Kartons appealed, arguing, in part, that $90,000 was not enough. The appellate court affirmed the $90,000 order, concluding that the trial court had not abused its discretion in limiting the fees and found that the issues were “pedestrian” and required fewer hours; a dispute over $23,000 did not justify a disproportionate litigation offensive; Mr. Karton’s personal involvement in the litigation had undermined his objectivity and, in weighing the costs and benefits, a fee much larger than the judgment was not reasonable. (Id. at pp. 746-747.) The appellate court also found that the trial court had correctly noted Mr. Karton’s incivility, “a traditional touchstone for deciding whether to adjust a lodestar.” It explained, “Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.” ¶ “Incivility can rankle relations and thereby increase the friction, extent, and cost of litigation. … All sides lose, as does the justice system, which must supervise the hostilities.” ¶ “By contrast, civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions. It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.” (Id. at pp. 747-748.)

MDM’s observation: Karton’s lessons are both simple and direct: comply with court orders; do not become personally involved in a case and be civil to opposing counsel and the court.

Copyright Michael D. Marcus, May 202

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