Newport Beach
Newport Beach
Los Angeles
Las Vegas
San Diego
Oakland
Phoenix
Reno
Riverside
Denver
Johannesburg
(949)221-1000 (949)221-1001 20320 S.W. Birch Street Second Floor, Newport Beach CA 92660
(818)712-9800 (818)712-9900 21215 Burbank Blvd. Suite 500, Woodland Hills CA 91367
(702)258-6665 (702)258-6662 1160 N Town Center Dr Suite 250, Las Vegas NV 89144
(619)236-0048 (619)236-0047 501 West Broadway Suite 1700, San Diego CA 92101
(510)540-4881 (510)540-4889 300 Frank H Ogawa Plaza Suite 355, Oakland CA 94612
(602)274-1204 (602)274-1205 8950 South 52nd St Suite 201, Tempe AZ 85284
(775)440-2389 (949)221-1001 50 West Liberty Suite 1030, Reno NV 89501
(951)276-9020 (951)276-9022 5225 Canyon Crest Dr. Suite 71-363, Riverside CA 92507
(303)256-6327 (303)256-6205 4600 S. Syracuse 9th Floor, Denver CO 80237
+27 11 577 5600 +27 86 522 9175 No. 2 Burnside Island - Umilo House, 410 Jan Smuts Avenue, Craighall Park, Johannesburg 2196

Recovering Attorney’s Fees in California – Maybe? | Michael D’Andrea

Recovering Attorney’s Fees in California

One of the most often-asked questions we get at Bremer Whyte is whether clients can recover attorney’s fees expended in a civil suit.  Shifting the risk to the other party for incurred attorney’s fees is a powerful tool in preventing unnecessary and unwarranted litigation; and thus it’s an important consideration when defending or bringing litigation in California.

In short, the answer is maybe.  And that “maybe” is due to a peculiar deviation in the law our country developed about 200 years ago.

Specifically, nearly every country in the world other than the United States allows the successful party in a civil suit to recover his or her attorney’s fees.  This is typically referred to as the “English Rule” as it developed out of the English common law hundreds of years ago.  The United States, including California, follows the “American Rule” wherein the winning litigant can recover fees only when specifically authorized by statute or a contractual agreement.  This peculiar American deviation from the old English rule can be traced all the way back to a case called Arcambel v. Wiseman which was decided in 1796.  

California is no different than much of the jurisdictions in the U.S. Specifically, attorneys’ fees are not recoverable as an item of damages in California with respect to a civil lawsuit unless authorized by (1) a statute or (2) a contract.  (CCP §1033.5).  Thus, in a traditional civil case without either of those two triggers, no recovery of attorney’s fees will occur.  

However, the number of statutes that allow for the recovery of attorney’s fees is extremely broad and an attorney must be aware of the potential for recovery of fees in all cases. For example, just a sample of potential claims that authorize the recovery of attorneys’ fees via statute include Trespass (CCP §1021.9), Misappropriation of Likeness (CCP § 3344), Insurer Bad Faith (Brandt v. Superior Court (1985) 37 Cal. 3d 813), Racial Discrimination by an Employer (Cal. Govt. Code, 12965(b)), Violations of the Consumer Legal Remedies Act (Civil Code § 1780), and Malicious Prosecution (CCP § 11021).  

The above is just a small fraction of claims in which attorney’s fees are recoverable by the claimant.  Thus, it is imperative for an attorney to recognize and analyze the claims being made in order truly assess the risk exposure posed by an adverse attorney’s fees award.  

Aside from statute, California recognizes that a party seeking damages due to a breach of contract can seek attorney’s fees if the contract contains a clause allowing it to do so (Civil Code § 1717).  The prevailing party in the suit typically is awarded its fees under these circumstances.  It’s important to note that the Court will only award “reasonable” fees and has discretion to limit the fees.

Based on the above, spotting these potential attorney’s fees issues early on in the process is critical in order to fully inform a claimant or defendant of the possibility of a fee award and the risks involved with the specific claims. The recovery of fees can have a powerful and meaningful effect on risk analysis, exposure analysis, and the costs-benefits of bringing litigation or defending against civil suits in California.