Never Mind

People v. Native Wholesale Supply Co., No. C084031 (D3 Jul. 12, 2019)

UCL case brought by the AG against a Company run by an Indian tribe for selling a boatload of illegal cigarettes. Bunch of Indian commerce issues that are beyond my ken. But briefly, two procedural issues to note.

First, the Company appeals a bunch of discovery rulings. But when a party does so, having never taken a writ, it needs to show prejudice to get a reversal on appeal. The Company really didn’t try to make such a showing, so it loses.

Second, the AG got an award of attorneys’ fees. Almost $4 million worth. The Court affirms, finding that the AG is entitled to recover a market rate of $500 per hour for its fees under a lodestar, even though the DOJ’s internal accounting uses a much lower rate. Makes sense. Lodestar looks to the market.

But one thing I can’t figure out is why the AG was entitled to a fee award in the first place. The court notes that the judgment awarded costs to the AG and that fees, when authorized by stature or contract, are an element of costs under Code of Civil Procedure § 1033.5(a)(10)(B). Which is all true. 

But I’m at a loss to identify a statute that permits a public prosecutor to obtain a fee award in a UCL case. See generally People ex rel. City of Santa Monica v. Gabriel, 186 Cal. App. 4th 882, 891 (2010) (“The UCL does not authorize an award of attorney fees.”). Private UCL plaintiffs can seek fees under the private attorney general doctrine, codified in § 1021.5, or the common fund doctrine when there’s a pool of recovery, but neither of those means are available to a public prosecutor suing a private party.

In any event, I just noticed that neither of these issues is part of the published opinion. So never mind…