California Civil Jury Instructions (CACI) (2017)

1530. Apportionment of Attorney Fees and Costs Between Proper and Improper Claims

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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
New June 2013
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
• “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.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 471 et seq.
Wegner, et al., California Practice Guide: Civil Trials& Evidence, Ch. 17-D, Costs,
¶ 17:91 et seq. (The Rutter Group)
Wegner, et al., California Practice Guide: Civil Trials & Evidence, Ch. 17-E,
Attorney Fees As Costs, ¶ 17:150 et seq. (The Rutter Group)
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.08 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.18 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.45 (Matthew Bender)
1531–1599. Reserved for Future Use