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Clifford v. American Drug Stores8/22/2005
late practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Sav-On has not met its burden to provide an adequate record to support its claim that the trial court awarded fees already recovered and paid in federal court.
Sav-On's final contention is that the trial court abused its discretion in awarding fees attributable to Clifford's prosecution of Doose, relying in part on Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 813, which disallowed the cost of serving summons on a dismissed defendant, since one defendant cannot be held responsible for costs incurred by a plaintiff in proceeding solely against another defendant.
Not finding any California authorities on point, Sav-On selects language from several federal cases that, as paraphrased or excerpted by Sav-On, appear to support the broad proposition that attorney fees incurred in prosecuting a settling defendant may not be assessed against a non-settling defendant. (E.g., Rode v. Dellarciprete (3d Cir. 1990) 892 F.2d 1177 (Rode); Baughman v. Wilson Freight Forwarding Co. (3d Cir. 1978) 583 F.2d 1208 (Baughman); Decker v. United States Dept. of Labor (E.D.Wis. 1983) 564 F.Supp. 1273 (Decker); Ark. Community Organizations v. Ark. State Bd. (E.D.Ark. 1979) 468 F.Supp. 1254.)
A closer reading reveals that these authorities did not go so far. The Rode court explained: "A defendant should not `be required to compensate a plaintiff for attorney hours devoted to the case against [settling or dismissed] defendants . . . .' [Citation.] However, attorney hours `fairly devoted' to one defendant that also support the claims against other defendants are compensable. [Citation.] Thus, hours chargeable to the claims against defendants who are found not liable are chargeable to defendants against whom plaintiff prevailed if `plaintiff can establish that such hours also were fairly devoted to the prosecution of the claim against' the defendants over whom plaintiff prevailed. [Citations.]" (Rode, supra, 892 F.2d at p. 1185, italics added.)
Similarly, Baughman held that only those hours exclusively devoted to the prosecution of one defendant may not be charged against another defendant. (Baughman, supra, 583 F.2d at p. 1215.) The court recognized, however, "`that legal services fairly devoted to [one defendant] are compensable [where] those very same legal services also supported the prosecution of the' case against the other four defendants. [Citation.]" (Ibid., italics added.) The federal trial court decisions cited by Sav-On followed the same rule in setting attorney fees. (See e.g., Decker, supra, 564 F.Supp. at p. 1282; Ark. Community Organizations v. Ark. State Bd., supra, 468 F.Supp. at p. 1258.)
Thus, to establish an abuse of discretion under these authorities, Sav-On must show that the trial court allowed attorney fee
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