Sternwest Corp. v. Ash

Opinion

KINGSLEY, J.

This present appeal is the latest piece of litigation in a longstanding lawsuit wherein, in 1980, plaintiff originally sued defendant Eugene Cvetkov who was found liable to the plaintiff for work in connection with certain gold owned by the plaintiff. In that action the present appellant, Ash, and others were joined as defendants on the theory that they were partners of the principal defendant and equally liable with him. After long and complicated litigation, Ash was found not liable to the plaintiff and was dismissed from the action and was found entitled to attorney’s fees under section 1717 of the Civil Code.

After a hearing, the trial court decided that the normal attorney’s fees in Los Angeles County were $120 per hour and awarded appellant a recovery under section 1717 based on the hours found to have been devoted by his counsel in his defense in this action, but denied defendant’s request that such recovery for hours expended-referred to in the record as the "lodestar"

[76]

recovery—should be enhanced because of the “novelty and difficulty of the case” and because of the long delay in calculating and paying the amount of recovery by Ash because of the work of his attorneys. We conclude that the trial court erred in both respects and, therefore, reverse its order with directions.

I

The trial court denied enhancement of “lodestar fees” because it concluded that such enhancement could be awarded only in cases involving a so-called private attorneys general where the attorney’s services were devoted to maintaining a public interest. In so concluding, the trial court was wrong since the trial court has discretion to grant the kind of enhancement here sought.

(Vella

v.

Hudgins

(1984) 151 Cal.App.3d 515 [198 Cal.Rptr. 725].) It is true, as respondent argued, that the trial court has a wide discretion in making an award under Civil Code section 1717. But here it is clear that the denial of enhancement was not a matter of discretion, but of the trial court’s erroneous view of its power. The case is, therefore, remanded to the trial court with directions to enhance the lodestar award by such factor (two, three, four or otherwise) that the court, in its discretion shall deem proper.