CACI 1530 Apportionment of Attorney Fees and Costs Between Proper and Improper Claims
California Civil Jury Instructions CACI
1530 Apportionment of Attorney Fees and Costs Between Proper and Improper Claims
[Name of plaintiff] claims damages for attorney fees and costs reasonably and necessarily incurred in defending the underlying lawsuit.
If you find that [name of plaintiff] is entitled to recover damages from [name of defendant], [name of plaintiff] is only entitled to attorney fees and costs reasonably and necessarily incurred in defending those claims that were brought without reasonable grounds. Those claims are [specify]. [Name of plaintiff] is not entitled to recover attorney fees and costs incurred in defending against the following claims: [specify].
[Name of defendant] must prove the amount of attorney fees and costs that should be apportioned to those claims for which recovery is not allowed.
Directions for Use
Give this instruction if the court has found as a matter of law that some, but not all, of the claims in the underlying action were brought without probable cause. The elements of probable cause and favorable termination are to be decided by the court as a matter of law. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254 Cal.Rptr. 336, 765 P.2d 498] [probable cause]; Sierra Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726] [favorable termination]; see also the Directions for Use to CACI No. 1501, Wrongful Use of Civil Proceedings.)
If there are disputed facts that the jury must resolve before the court can make a finding on probable cause, this instruction should not be presented to the jury until after it has determined the facts on which the court’s finding will be based.
Sources and Authority
•“Having established the liability of … defendants … , the [plaintiffs] were entitled to recover as part of their compensatory damage award the costs of defending the [underlying] action including their reasonable attorney fees.” (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 90 [101 Cal.Rptr.3d 303].)
•“As in the case of the assertion of a maliciously prosecuted complaint with one for which there was probable cause, the burden of proving such an apportionment must rest with the party whose malicious conduct created the problem. To place the burden on the injured party rather than upon the wrongdoer would, in effect, clothe the transgressor with immunity when, because of the interrelationship of the defense and cross-action, the injured party could not apportion his damages.”(Bertero v. National General Corp. (1974) 13 Cal.3d 43, 60 [118 Cal.Rptr. 184, 529 P.2d 608], internal citation omitted.)
•“Defendants also charge that under the Bertero rule the apportionment of damages between the theories of liability that are and are not supported by probable cause is difficult and ‘highly speculative.’ There is no showing, however, that juries cannot perform that task fairly and consistently if they are properly instructed—they draw more subtle distinctions every day. Moreover, any difficulty in this regard is chargeable to the tortfeasor … .” (Crowley v. Katleman (1994) 8 Cal.4th 666, 690 [34 Cal.Rptr.2d 386, 881 P.2d 1083].)
•“It was the defendants’ burden, however, not the [plaintiffs]’, to prove such an allocation, just as it generally is the burden of the defendant in a malicious prosecution action to prove certain attorney fees incurred in the underlying action are not recoverable because they are attributable to claims that had been properly pursued.” (Jackson, supra, 179 Cal.App.4th at p. 96.)