Opinion
No. H037662.
12-22-2016
BRIAN DRISCOLL et al., Plaintiffs and Appellants, v. GRANITEROCK COMPANY, Defendant and Appellant.
[Modification of opinion (6 Cal.App.5th 426; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT. — IT IS ORDERED that the opinion filed herein on December 5, 2015, be modified as follows:
1. On page 3, at the end of footnote 3 [6 Cal.App.5th 430, advance report, fn. 3, line 11], after the last line of the paragraph ending with the words "propriety of BAD's current request, we nevertheless grant BAD's request for judicial notice," insert the following language as part of the same paragraph of the footnote:
The newly lodged First Amended Complaint confirms BAD was a named defendant in only one cause of action. Although BAD was later named in a paragraph alleging BAD's conduct warranted an award of punitive damages to plaintiff, which paragraph was appended to a different cause of action (in which BAD was not a named defendant) and later incorporated by reference in yet another cause of action (in which BAD was again not a named defendant), this paragraph did not state additional causes of action against BAD. In California, it is settled there is no separate cause of action for punitive damages. (McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1164 .) Instead, a claim for punitive damages is merely an additional remedy that is dependent on a viable cause of action for an underlying tort. (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801-802 ; Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1137 .)
2. On page 15, line 5 [6 Cal.App.5th 437, advance report, 1st full par., lines 13-15], delete the entire last sentence of the paragraph, beginning with the words "Moreover, noted the trial court," and replace the sentence with the following:
Moreover, noted the trial court, the anti-SLAPP motion by BAD's attorneys was directed at a complaint in which BAD was a named defendant in only a single cause of action, and did not involve either novel or complex issues.
3. On page 18, line 5, footnote 16 [6 Cal.App.5th 439, advance report, fn. 16, lines 9-10], in the paragraph's second sentence beginning "None of the cases relied on by BAD for this proposition," delete the parenthetical citation to the Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266 case, so the second sentence reads in full as follows:
None of the cases relied on by BAD for this proposition reversed a fee award based on a failure to determine separate rates for each attorney involved, and other cases have either implicitly approved use of a blended rate (Cates v. Chiang (2013) 213 Cal.App.4th 791, 819-820 ) or have refused to reverse an award premised on use of a blended rate, particularly where, as here, there was evidence that would permit a conclusion a more highly paid senior partner should participate only in higher-level tasks and should delegate more mundane tasks to associates at much lower billable rates.
4. On page 19, at the end of footnote 17 [6 Cal.App.5th 440, advance report, fn. 17, last line], after the parenthetical explanation of the Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344 case at the end of the paragraph, ending with the words "appellate court must infer all findings on these points in favor of prevailing parties," insert the following language as a second paragraph of the footnote:
BAD cites, for the first time in its original rehearing petition, two cases which purport to require a more detailed statement of decision when a fee award is substantially reduced: Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44 and Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88 . However, we may disregard new authority cited for the first time in a petition for rehearing. (Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1036, fn. 6 .) Moreover, even were we to consider those cases, neither case requires reversal here. In Gorman, the court reviewed and reversed an unexplained (and apparently inexplicable) reduction in the fee award, which is distinct from the court's award here. Indeed, the Gorman court observed that, when confronted by a lengthy fee request, "[a] reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections." (Gorman, supra, at p. 101.) Kerkeles is likewise inapposite, because it involved an award of fees under 42 United States Code section 1988, which arguably requires more detailed explanation for a reduced fee award. (Kerkeles, supra, at pp. 101-104, citing federal cases and observing "[w]e thus conclude that the reasoning expressed in the court's order does not meet the federal criterion of a clear and specific explanation sufficient for meaningful appellate review" (italics added).)
There is no change in the judgment.
The petition for rehearing is denied.