Prevailing Party Attorney’s Fees<br />CA RULES<br />
Referenced California Codes <br />Cal.Educ.Code §56507<br />Cal.Fam.Code §3452<br />Cal.Food&Agric.Code §226<br />Cal.Labo...
California education codeeducation code, title 2, division 4, part 30, chapter 5, §56507 Due process hearing; notice of in...
Cal.Educ.Code §56507<br />If either party to a due process hearing intends to be represented by an attorney in the state h...
California family codefamily code, division 8, part 3, chapter 3, §3452 Prevailing party; award of necessary and reasonabl...
Cal.Fam.Code §3452<br />The court shall award the prevailing party, including a state, necessary and reasonable expenses i...
Food and agricultural codefood and agricultural code, division 1, part 1, chapter 2, article 2, §226 Litigation expenses; ...
Cal.Food&Agric.Code §226<br />Notwithstanding Section 11044 of the Government Code, the sum of one hundred thousand dollar...
§218.5 and §1194<br />California labor codelabor code, division 2, part 1, chapter 1, article 1, §218.5 Actions for nonpay...
Cal.LaborCode §218.5<br />In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pen...
Cal.LaborCode§1194<br />Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the lega...
Public contract codepublic contract code, division 2, part 1, chapter 7, §7107, retention proceeds; withholding; disbursem...
Cal.Pub.Con.Code §7107<br />This section is applicable with respect to all contracts entered into on or after January 1, 1...
Public resources codedivision 20, chapter 4, article 2.5, §30327 Commission decision; influence; unreported ex parte commu...
Cal.Pub.Res.Code §30327<br />No commission member or alternate shall make, participate in making, or any other way attempt...
Discussion<br />Cal.Educ.Code §56507 – May award reasonable attorney’s fees<br />Cal.Fam.Code §3452 – The court shall awar...
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Prevailing party

Published on: Mar 4, 2016
Published in: Education      
Source: www.slideshare.net


Transcripts - Prevailing party

  • 1. Prevailing Party Attorney’s Fees<br />CA RULES<br />
  • 2. Referenced California Codes <br />Cal.Educ.Code §56507<br />Cal.Fam.Code §3452<br />Cal.Food&Agric.Code §226<br />Cal.LaborCode §218.5<br />Cal.LaborCode §1194<br />Cal.Pub.Con.Code §7107<br />Cal.Pub.Res.Code §30327<br /> On the following slides I put the actual language of the sections on the left and a quick summary of the sections in my own words on the right. <br />
  • 3. California education codeeducation code, title 2, division 4, part 30, chapter 5, §56507 Due process hearing; notice of intent to be represented by attorney; award of attorney's fees; contents of decision.<br />§56507<br />
  • 4. Cal.Educ.Code §56507<br />If either party to a due process hearing intends to be represented by an attorney in the state hearing, notice of that intent shall be given to the other party at least 10 days prior to the hearing. The failure to provide that notice shall constitute good cause for a continuance.<br />(1) An award of reasonable attorney's fees to the prevailing parent, guardian, or pupil, as the case may be, may only be made either with the agreement of the parties following the conclusion of the administrative hearing process or by a court of competent jurisdiction pursuant to Section 1415(i)(3) of Title 20 of the United States Code. (2) In accordance with Section 1415(i)(3) of Title 20 of the United States Code, the court, in its discretion, may award reasonable attorney's fees as part of the costs to a prevailing party who is a state educational agency or local educational agency in the following circumstances: (A) Against the attorney of a parent who files a due process hearing request or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation. (B) Against the attorney of a parent, or against the parent, if the parent's due process hearing request or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. <br />Public agencies shall not use federal funds distributed under Part B of the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.), or other federal special education funds, for the agency's own legal counsel or other advocacy costs, that may include, but are not limited to, a private attorney or employee of an attorney, legal paraprofessional, or other paid advocate, related to a due process hearing or the appeal of a hearing decision to the courts. Funds shall not be used to reimburse parents who prevail and are awarded attorney's fees, pursuant to subdivision (b), as part of the judgment. Nothing in this subdivision shall preclude public agencies from using these funds for attorney services related to the establishment of policy and programs, or responsibilities, under Part B of the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) and the program administration of these programs. This subdivision does not apply to attorneys and others hired under contract to conduct administrative hearings pursuant to subdivision (a) of Section 56505.<br />The hearing decision shall indicate the extent to which each party has prevailed on each issue heard and decided, including issues involving other public agencies named as parties to the hearing.<br />gives 10 days to inform the opposing party of intent to use attorney in state due process hearing. <br />(1) may award attorneys fees to prevailing guardian/pupil through parties agreement or through court discretion in accordance with USC 1415(i)(3). (b)(2) may award attorney’s fees to prevailing state or local educational agency through court discretion in accordance with USC 1415(i)(3) given: (A) opposing attorney filing a frivolous / unfounded cause or continuing litigating such cause. (B) attorney or parents motive for hearing or cause is to hassle in some way. <br />prohibits public agencies from using federal educational funds for legal costs of due process hearing or appeal and for prevailing party attorney’s fees. Does not prohibit using the funds for attorney services for policy/program creation and administration <br />the decision should specify who prevailed in what. <br />
  • 5. California family codefamily code, division 8, part 3, chapter 3, §3452 Prevailing party; award of necessary and reasonable expenses.<br />§3452<br />
  • 6. Cal.Fam.Code §3452<br />The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.<br />The court may not assess fees, costs, or expenses against a state unless authorized by law other than this part.<br />(a) awards various proceeding related costs including attorney’s fees to the prevailing party (may be the state) unless the losing party shows the award would be inappropriate. <br />(b) may not impose related costs against the state unless allowed to by different law. <br />
  • 7. Food and agricultural codefood and agricultural code, division 1, part 1, chapter 2, article 2, §226 Litigation expenses; additional funds; funding when legal action carried from one year to next; court costs and attorney fees.<br />§226<br />
  • 8. Cal.Food&Agric.Code §226<br />Notwithstanding Section 11044 of the Government Code, the sum of one hundred thousand dollars ($100,000) is hereby continuously appropriated from the Department of Food and Agriculture Fund in each fiscal year to the department for litigation expenses incurred by the Bureau of Market Enforcement.<br />At any time in a given fiscal year that the one hundred thousand dollars ($100,000) appropriated for litigation costs in subdivision (a) is completely expended, the Department of Food and Agriculture Fund and the General Fund shall share additional litigation costs on a basis of 20 percent paid by the Department of Food and Agriculture Fund and 80 percent paid by the General Fund. These additional funds are to be used only when the bureau or the department is a defendant, or becomes a cross-defendant, in an action relating to market enforcement.<br />If a legal action is carried from one fiscal year to the next, the costs incurred in the following year shall not be charged against the one hundred thousand dollars ($100,000) annually allocated pursuant to subdivision (a) to the bureau, but instead shall continue to be funded in the following years with 80 percent being paid by the General Fund and 20 percent being paid by the Department of Food and Agriculture Fund.<br />In civil actions in which the bureau is a party, the prevailing party may be awarded court costs and attorneys fees.<br />annual (fiscal yr.) allotment of 100k from Department of Food and Agriculture Fund for Bureau of Market Enforcement litigation expenses. <br />in the instance of the Bureau or Department in (a) being a defendant or cross-defendant in a market enforcement action and the 100k is exhausted the Department Fund pays 20% and the General Fund pays 80% of litigation costs. <br />the arrangement in (b) continues if the action continues into the next fiscal yr. <br />“In civil actions in which the bureau is a party, the prevailing party may be awarded court costs and attorneys fees.”<br />
  • 9. §218.5 and §1194<br />California labor codelabor code, division 2, part 1, chapter 1, article 1, §218.5 Actions for nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions; award of attorney's fees to prevailing party; application of section.LABOR CODE, DIVISION 2, PART 4, CHAPTER 1, §1194 Action to recover minimum wage, overtime compensation, interest, attorney's fees, and costs by employee. <br />
  • 10. Cal.LaborCode §218.5<br />In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action. This section shall not apply to an action brought by the Labor Commissioner. This section shall not apply to a surety issuing a bond pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code or to an action to enforce a mechanics lien brought under Chapter 4 (commencing with Section 8400) of Title 2 of Part 6 of Division 2 of the Civil Code. This section does not apply to any action for which attorney's fees are recoverable under Section 1194.<br />If a party to an employment (unpaid wage, benefits, funds contribution) action requests attorney’s fees at the onset and prevails the court shall award the fees.<br />Doesn’t apply to Labor Commissioner initiated action, Surety issuing a bond in observance of BPC, action to enforce a mechanics lien under the Civil Code, or actions under §1194 that allow recovery of attorney’s fees. <br />
  • 11. Cal.LaborCode§1194<br />Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit. <br />The amendments made to this section by Chapter 825 of the Statutes of 1991 shall apply only to civil actions commenced on or after January 1, 1992.<br />In a civil action for minimum wage or overtime compensation, the wronged employee is entitled to recover those monies, interest, legal costs and attorney’s fees. <br />Reference Chapter 825 of Statutes of 1991 for civil actions started on or after 1/1/92.<br />
  • 12. Public contract codepublic contract code, division 2, part 1, chapter 7, §7107, retention proceeds; withholding; disbursement.<br />§7107<br />
  • 13. Cal.Pub.Con.Code §7107<br />This section is applicable with respect to all contracts entered into on or after January 1, 1993, relating to the construction of any public work of improvement.<br />The retention proceeds withheld from any payment by the public entity from the original contractor, or by the original contractor from any subcontractor, shall be subject to this section.<br />(Within 60 days after the date of completion of the work of improvement, the retention withheld by the public entity shall be released. In the event of a dispute between the public entity and the original contractor, the public entity may withhold from the final payment an amount not to exceed 150 percent of the disputed amount. For purposes of this subdivision, "completion" means any of the following:(1) The occupation, beneficial use, and enjoyment of a work of improvement, excluding any operation only for testing, startup, or commissioning, by the public agency, or its agent, accompanied by cessation of labor on the work of improvement.(2) The acceptance by the public agency, or its agent, of the work of improvement.(3) After the commencement of a work of improvement, a cessation of labor on the work of improvement for a continuous period of 100 days or more, due to factors beyond the control of the contractor.(4) After the commencement of a work of improvement, a cessation of labor on the work of improvement for a continuous period of 30 days or more, if the public agency files for record a notice of cessation or a notice of completion.<br />Subject to subdivision (e), within seven days from the time that all or any portion of the retention proceeds are received by the original contractor, the original contractor shall pay each of its subcontractors from whom retention has been withheld, each subcontractor's share of the retention received. However, if a retention payment received by the original contractor is specifically designated for a particular subcontractor, payment of the retention shall be made to the designated subcontractor, if the payment is consistent with the terms of the subcontract.<br />The original contractor may withhold from a subcontractor its portion of the retention proceeds if a bona fide dispute exists between the subcontractor and the original contractor. The amount withheld from the retention payment shall not exceed 150 percent of the estimated value of the disputed amount.<br />In the event that retention payments are not made within the time periods required by this section, the public entity or original contractor withholding the unpaid amounts shall be subject to a charge of 2 percent per month on the improperly withheld amount, in lieu of any interest otherwise due. Additionally, in any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to attorney's fees and costs.<br />If a state agency retains an amount greater than 125 percent of the estimated value of the work yet to be completed pursuant to Section 10261, the state agency shall distribute undisputed retention proceeds in accordance with subdivision (c). However, notwithstanding subdivision (c), if a state agency retains an amount equal to or less than 125 percent of the estimated value of the work yet to be completed, the state agency shall have 90 days in which tor eleaseundisputed retentions.<br />Any attempted waiver of the provisions of this section shall be void as against the public policy of this state.<br />applicable to contracts after 1/1/93 relating to public work improvement construction. <br />this section pertains to retention proceeds withheld by the public entity from original contractor or by original contractor from sub-contractor. <br />within 60 days of the work being completed [as defined in (c)(1)(2)(3)(4)] the public entity shall release the retention if there is a dispute the entity can withhold up to 150% of the disputed amount from the final payment due the original contractor. <br />subject to (e), within 7 days of receiving all or part of the retention the original contractor shall pay the subcontractor(s) their designated portion of the withheld retention in accordance with the subcontract(s).<br />if there is a legit dispute between the original contractor and a subcontractor, the original contractor may withhold up to 150% the estimated value of the dispute amount<br />if the public entity or original contractor don’t comply with the deadlines they will be subject to a monthly charge of 2% the withheld amount and in an action to collect the withheld funds the prevailing party is entitled to attorney’s fees and costs.<br />for work still in progress if a state agency retains < 125% estimated value (pursuant to section 10261) it shall release undisputed retention proceeds in observance of (c), if >or = 125% it shall release undisputed retention within 90 days.<br />“Any attempted waiver of the provisions of this section shall be void as against the public policy of this state.” <br />
  • 14. Public resources codedivision 20, chapter 4, article 2.5, §30327 Commission decision; influence; unreported ex parte communication; civil fine; attorneys' fees and costs.<br />§30327<br />
  • 15. Cal.Pub.Res.Code §30327<br />No commission member or alternate shall make, participate in making, or any other way attempt to use his or her official position to influence a commission decision about which the member or alternate has knowingly had an ex parte communication that has not been reported pursuant to Section 30324.<br />In addition to any other applicable penalty, including a civil fine imposed pursuant to Section 30824, a commission member who knowingly violates this section shall be subject to a civil fine, not to exceed seven thousand five hundred dollars ($7,500). Notwithstanding any law to the contrary, the court may award attorneys' fees and costs to the prevailing party.<br />a commission member or alternate may not use their position to influence a commission decision they have had ex parte communication not reported pursuant to §30324.<br />a commission member in violation of this section is subject to a civil fine up to $7,500 in addition to other applicable penalties and absent any law to the contrary the prevailing party may be awarded attorney’s fees and costs. <br />
  • 16. Discussion<br />Cal.Educ.Code §56507 – May award reasonable attorney’s fees<br />Cal.Fam.Code §3452 – The court shall award [necessary and reasonable expenses…including…] reasonable attorney’s fees<br />Cal.Food&Agric.Code §226 may be awarded court costs and attorney’s fees<br />Cal.LaborCode §218.5 shall award reasonable attorney’s fees and costs<br />Cal.LaborCode §1194 entitled to recover…reasonable attorney’s fees and costs of suit<br />Cal.Pub.Con.Code §7107 shall be entitled to attorney’s fees and costs<br />Cal.Pub.Res.Code §30327 may award attorney’s fees and costs<br /> The codes in this presentation are just some California codes that each have a section that pertains to prevailing parties attorney’s fees. Each one should be understood in it’s own context and I am only briefly referencing them for the purpose of this discussion board post. The wording varies and in some it seems an award is optional and in others it seems to be obligatory. For example the court “shall” or “may” (optional) and the party is “entitled to” (obligatory). <br />