Skinner v. Ken's Foods, Inc.

Filed 8/21/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ERIKKA SKINNER et al., 2d Civil No. B299907
(Super. Ct. No. 18CV01618)
Plaintiffs and Respondents, (Santa Barbara County)
v.
KEN’S FOODS, INC.,
Defendant and Appellant.
Code of Civil Procedure1 section 1021.5 permits a
trial court to award attorney fees to a “successful party . . . in any
action [that] has resulted in the enforcement of an important
right affecting the public interest.” This includes an action in
which there has been no “‘judicially recognized change in the
legal relationship between the parties.’” (Tipton-Whittingham v.
City of Los Angeles (2004) 34 Cal. 4th 604, 608 (Tipton-
Whittingham).) So long as the plaintiff’s lawsuit was a catalyst
motivating the defendant to change its behavior, an attorney fee
award may be permitted.
1 Unlabeled statutory references are to the Code of Civil
Procedure.
Ken’s Foods, Inc., appeals from the trial court’s order
granting a motion for attorney fees. Ken’s contends: (1) the court
mischaracterized Erikka Skinner and Ann Kenney (collectively,
Respondents) as “successful parties” entitled to a catalyst fee
award, and (2) the fee award is inconsistent with public policy.
We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2017, Ken’s sold over 200 different salad dressings,
including two varieties of Greek dressing, 10 varieties of Italian
dressing, and six varieties of vinaigrette. One each of the Greek,
Italian, and vinaigrette varieties contained olive oil as an
ingredient. To distinguish these dressings from the others, Ken’s
highlighted the ingredient on the front label of the bottle: the
Greek dressing was made with “imported olive oil,” the Italian
with “extra virgin olive oil,” and the vinaigrette with “olive oil”
and “extra virgin olive oil.”2 The Greek dressing contained 28
percent vegetable oil and seven percent olive oil; the Italian
contained 23 percent vegetable oil and three percent extra virgin
olive oil; and the vinaigrette contained 24 percent canola oil, 17
percent olive oil, and 11 percent extra virgin olive oil.
Skinner purchased a bottle of Ken’s vinaigrette in
2017. She noted that the label on the neck of the bottle said,
“Made with Extra Virgin Olive Oil.” She understood this to mean
that the dressing was made primarily or exclusively with extra
virgin olive oil. She bought the dressing because she likes the
taste and health benefits of olive oil.
Kenney bought bottles of Ken’s Greek and Italian
dressings in 2017. She noted that the front labels on the bottles
2 Subsequent references to Greek, Italian, and vinaigrette
dressings are to those containing olive oil.
2
of these dressings mentioned olive oil and no other oil. She
understood this to mean that the dressings contained only, or at
least mostly, olive oil. She purchased the dressings in reliance on
the front labels’ references.
In June 2017, Respondents served a prelawsuit
notice and demand on Ken’s, claiming that its salad dressing
labels were deceptive. Respondents demanded that Ken’s
“[r]emove all false and misleading claims from the labels and
packaging of the [dressings]” and “[r]emove all references in the
advertising to any and all false and misleading claims.” They
also demanded that Ken’s establish a fund to refund its ill-gotten
gains and pay $250,000 in attorney fees, $2,000 to each
Respondent, and costs.3 Ken’s rejected these demands.
The following month, the parties submitted the
matter to a retired judge for neutral case evaluation. In October,
the judge concluded that Respondents could likely show that
Ken’s conduct was deceptive, as required for a successful claim
under the Consumers Legal Remedies Act (CLRA; see Civ. Code,
§ 1750 et seq.). He also concluded that Respondents would likely
be able to establish liability pursuant to the False Advertising
Law (FAL; see Bus. & Prof. Code, § 17500 et seq.) and Unfair
Competition Law (UCL; see Bus. & Prof. Code, § 17200 et seq.)
because Ken’s “cherry-picked olive oil as an ingredient to display
on the front label,” which was “likely to deceive” consumers. The
FAL and UCL claims could likely be certified as class actions, but
class certification of the CLRA claim would prove difficult since
3 Respondents had incurred about $40,000 in attorney fees
when they sent their demand letter. Their proposed settlement
did not include a recovery for the putative class as a whole.
3
damage assessments pursuant to that theory required
individualized inquiries.
After receiving the case evaluation, Respondents
proposed submitting the case to the evaluator for mediation.
Ken’s declined. Respondents then invited Ken’s to engage a
different mediator. Ken’s requested two weeks to consider this,
and asked Respondents to refrain from filing their lawsuit in the
interim. Respondents agreed. On November 15, Ken’s told
Respondents that it was “not prepared to make any offer of
settlement” and would “vigorously defend [itself] against any and
all claims.”
That same day, Ken’s executives drafted a Microsoft
PowerPoint presentation entitled “Label Update Scope,” which
discussed several issues with its salad dressing labels. One slide
read: “‘Made with’ claim litigation[:] Highlighting an ingredient
on the main panel when it is not the predominant ingredient in
comparison to other similar classifications of ingredients used in
that product (Oils, Cheese, Sweeteners).” (Original italics.)
Another noted that imported olive oil was not the predominant oil
in Ken’s Greek dressing. Another said that extra virgin olive oil
was not the “first oil” in the Italian dressing. Another noted that
canola oil was the predominant oil in the vinaigrette.
Respondents’ then-anticipated lawsuit was referenced several
times throughout the presentation, as were similar lawsuits that
had been brought against other salad dressing manufacturers.
Ken’s executives met in December to discuss possible
label changes. They decided to remove the “Made with Extra
Virgin Olive Oil” claim from the vinaigrette and remove mention
of “Imported Olive Oil” from the Greek dressing. These changes
went into effect in January and March 2018, respectively.
4
Respondents were unaware of these decisions when
they filed a class action complaint against Ken’s in April 2018,
alleging violations of the CLRA, FAL, and UCL. For the CLRA
claim, Respondents asserted that Ken’s “false and misleading
labeling and advertising should be enjoined due to its false,
misleading, and/or deceptive nature.” For the FAL claim, they
sought an order “enjoining [Ken’s] from continuing to engage,
use, or employ their practice of falsely advertising that the
[dressings] are olive oil dressings.” For the UCL claim, they
sought an order “enjoining [Ken’s] from continuing to engage,
use, or employ their practice of advertising the sale and use of the
[dressings] in the manner alleged herein.” They also sought class
certification, punitive damages, and attorney fees.
Ken’s demurred to the complaint. The trial court
overruled the demurrer, finding it “entirely reasonable” that a
front label stating that a dressing was made with olive oil—
without mentioning any other oil—could lead a reasonable
consumer to believe that olive oil makes up a significant portion
of the oil in the dressing. The court rejected Ken’s argument that
the consumer should be “‘expected to look beyond a misleading
representation on the front of the [bottle] to discover the truth
from the ingredient list in small print on the [back].’” (Quoting
Williams v. Gerber Prods. Co. (9th Cir. 2008) 552 F.3d 934, 939-
940 (Williams).)
In August, Respondents received responses to their
discovery requests and learned that Ken’s had removed the
reference to extra virgin olive oil from the vinaigrette label and
the reference to imported olive oil from the Greek dressing label.
Upon learning of these changes, Respondents offered to discuss
settlement with Ken’s. Ken’s rejected the offer. Respondents
5
proposed settlement discussions again in November, but Ken’s
again refused.
At a December deposition, a Ken’s vice president said
that the company began to discuss relabeling its dressings a year
earlier. He admitted that Respondents’ lawsuit was a factor in
the decision: “Certainly was a discussion point. It wasn’t the
only factor . . . [b]ut it was part of the conversation.” He also
admitted that Respondents’ lawsuit led, in part, to the
PowerPoint presentation, and that the suit was referenced in the
presentation. He maintained, however, that Ken’s decided to
relabel its salad dressings because of the “time and energy” that
litigation requires and a “concern about frivolous lawsuits.”
At another December deposition, a Ken’s employee
said that the company was in the process of removing references
to olive oil from its salad dressing labels, including the “made
with extra virgin olive oil” claim from its Italian dressing. He
confirmed that Ken’s began to discuss the label changes in late
2017. He said that the company “was aware of the nature of
claims being made against other manufacturers,” and that it
wanted to “avoid[] potential litigation.” Respondents’ lawsuit
helped prompt the company to implement the label changes.
After the depositions, Respondents sought to
determine whether the label changes to the three dressings
would be permanent. At a February 2019 hearing, Ken’s told the
trial court that they would be. Five days later, Respondents
emailed Ken’s, noting that their “primary litigation objective . . .
[was Ken’s] cessation of the ‘made with olive oil’ claims from the
labels of the three [dressings] at issue.” In light of the
representation that the label changes were permanent,
Respondents’ claims for injunctive relief appeared to be moot.
6
They stated their willingness to either settle the case or file a
motion for catalyst fees.
When Ken’s rejected the offer to discuss settlement,
Respondents moved for a catalyst fee award. The trial court
denied Respondents’ motion without prejudice because the case
had not yet resolved. Respondents then moved to dismiss their
lawsuit. The court granted their motion, retaining jurisdiction to
rule on a renewed motion for catalyst fees.
The trial court granted Respondents’ renewed motion
in July, applying the three-part test in Tipton-Whittingham.
First, Respondents’ lawsuit was a substantial factor motivating
Ken’s to change its labels. Second, their claims had merit since
the front labels emphasized olive oil as an ingredient but the
dressings contained only a “miniscule amount” of it. Finally,
Respondents made reasonable settlement efforts. They were thus
entitled to $387,593 in attorney fees and $15,771 in costs.
DISCUSSION
Catalyst fee award
Ken’s contends the trial court erred when it
concluded that Respondents were “successful parties.” We
disagree.
Section 1021.5 permits a trial court to award
attorney fees to a “successful party . . . in any action [that] has
resulted in the enforcement of an important right affecting the
public interest.” Our Supreme Court has “taken a broad,
pragmatic view of what constitutes a ‘successful party’” for
purposes of section 1021.5. (Graham v. DaimlerChrysler
Corp. (2004) 34 Cal. 4th 553, 565 (Graham).) It has approved fee
awards in cases that “‘d[id] not result in a favorable final
judgment’” (ibid.) and in cases where there was no “‘judicially
7
recognized change in the legal relationship between the parties’”
(Tipton-Whittingham, supra, 34 Cal.4th at p. 608), so long as “the
defendant change[d] [their] behavior substantially because of,
and in the manner sought by, the [plaintiff]” (Graham, at p. 560).
“The critical fact [was] the impact of the action, not the manner of
its resolution.” (Folsom v. Butte County Assn. of Governments
(1982) 32 Cal. 3d 668, 685.)
In the absence of a judicial resolution, a plaintiff may
be considered a “successful party” for purposes of section 1021.5
if: (1) their lawsuit was a “catalyst motivating the defendant[] to
provide the primary relief sought”; (2) their lawsuit “had merit
and achieved its catalytic effect by threat of victory, not by dint of
nuisance and threat of expense”; and (3) they “reasonably
attempted to settle the litigation prior to filing the lawsuit.”
(Tipton-Whittingham, supra, 34 Cal.4th at p. 608.) We review
the trial court’s conclusion that Respondents met these criteria
for abuse of discretion. (Graham, supra, 34 Cal.4th at p. 578; see
La Mirada Avenue Neighborhood Assn. of Hollywood v. City of
Los Angeles (2018) 22 Cal. App. 5th 1149, 1157.) We will reverse
only if there is “‘no reasonable basis’” for the court’s conclusion.
(Westside Community for Independent Living, Inc. v. Obledo
(1983) 33 Cal. 3d 348, 355 (Westside Community).)
1. Motivating catalyst
For purposes of section 1021.5, a plaintiff’s lawsuit is
a “catalyst” if it induces the defendant to voluntarily provide the
relief sought. (Graham, supra, 34 Cal.4th at pp. 566-567.) A
lawsuit induces such relief if it is “a ‘material factor’” in
motivating the defendant, or if it “‘contribute[s] in a significant
way’ to the result achieved.” (Westside Community, supra, 33
Cal.3d at p. 353.) But it is “not require[d] that [the] litigation be
8
the only cause of [the] defendant’s acquiescence.” (Hogar Dulce
Hogar v. Community Development Com. of City of Escondido
(2007) 157 Cal. App. 4th 1358, 1365, original italics (Hogar
Dulce).) Rather, the plaintiff’s lawsuit need only be a
“substantial factor” in motivating the defendant. (Ibid.)
Here, Respondents served Ken’s with their
prelawsuit notice and demand to remove claims about olive oil
from the labels on its salad dressings in June 2017. In October, a
neutral case evaluator concluded that Respondents’ CLRA, FAL,
and UCL claims likely had merit, and that the FAL and UCL
claims would likely be certified as a class action. The following
month, Ken’s drafted a PowerPoint presentation that described
Respondents’ claims. It also proposed label changes. The
company thereafter revised its dressing labels, finalizing changes
to the Greek dressing in January 2018, the vinaigrette in March,
and the Italian dressing a few months later. This sequence of
events provides a reasonable basis for the trial court’s conclusion
that Respondents’ lawsuit was a catalyst motivating Ken’s to
change the labels on its salad dressings. (See, e.g., Hogar Dulce,
supra, 157 Cal.App.4th at pp. 1367-1368 [changes following
demand give rise to inference that plaintiff’s lawsuit was catalyst
motivating change].)
Ken’s counters that it implemented its label changes
not because of Respondents’ lawsuit but because it wanted to
avoid the experience of its competitors. But Ken’s executives
admitted that Respondents’ lawsuit was a factor motivating it to
implement the label changes. The trial court credited those
admissions, and we cannot substitute a contrary view for that of
the court below. (Coalition for a Sustainable Future in Yucaipa
v. City of Yucaipa (2015) 238 Cal. App. 4th 513, 522.)
9
Nor would we. “‘“[D]efendants, on the whole, are
usually rather reluctant to concede that the [threat of] litigation
prompted them to mend their ways.”’ [Citations.]” (MacDonald
v. Ford Motor Company (N.D.Cal. 2015) 142 F. Supp. 3d 884, 891.)
Here, Ken’s began to discuss changes to its salad dressing labels
only after it received Respondents’ demand letter and after the
case evaluator determined that they would likely succeed on their
claims. The company’s claim that it was going to remove
references to olive oil from its labels irrespective of those acts
“relies too heavily on the power of coincidence” to be believed.
(Id. at p. 892.)
Ken’s also claims Respondents primarily sought
economic relief, which they did not receive. But Respondents’
demand letter requested that the company “[r]emove all false and
misleading claims from the labels.” For each of the claims in
their complaint, they sought an order enjoining the misleading
labeling and advertising practices. And after the February 2019
hearing where Ken’s said that its label changes would be
permanent, Respondents said that their “primary litigation
objective”—the “cessation of the ‘made with olive oil’ claims from
the labels of the three [dressings] at issue”—appeared to be moot.
There was thus a reasonable basis for the trial court to conclude
that injunctive relief was the primary relief sought.
Ken’s claim that this case is similar to NEI
Contracting & Engineering, Inc. v. Hanson Aggregates,
Inc. (S.D.Cal., May 31, 2017, No. 12-CV-01685-BAS(JLB)) 2017
WL 2363163 is not persuasive. In that case, the trial court was
unpersuaded that a change in the defendant’s behavior was the
plaintiff’s primary goal since it sought more than $1 billion in
classwide damages and continued to prosecute the case for
10
several months after it learned of the defendant’s changed
conduct. (Id. at pp. *5-*6.) Here, in contrast, Respondents did
not include a precise amount of actual damages in their prayer
for relief. And less than a week after Ken’s admitted that the
changes to its dressing labels would be permanent, Respondents
sought to end the case. The trial court thus did not abuse its
discretion when it found that Respondents’ lawsuit was a catalyst
motivating Ken’s to permanently change its salad dressing labels.
2. The merits of Respondents’ lawsuit
For purposes of section 1021.5, a lawsuit has merit if
it is “not ‘frivolous, unreasonable, or groundless.’” (Graham,
supra, 34 Cal.5th at p. 575.) Determining that a lawsuit is
meritorious does not require the trial court to make a “final
decision on the merits.” (Ibid.) Rather, it simply requires the
court to “determin[e] . . . ‘“that the questions of law or fact are
grave and difficult.”’ [Citations.]” (Id. at pp. 575-576.) Here,
that determination turns on whether the labels were likely to
deceive a “reasonable consumer.” (Kasky v. Nike, Inc. (2002) 27
Cal. 4th 939, 950-951 (Kasky) [“reasonable consumer” standard
applies to FAL and UCL claims]; Aron v. U-Haul Co. of
California (2006) 143 Cal. App. 4th 796, 806 (Aron) [standard
applies to CLRA claims].)
“A ‘reasonable consumer’ is ‘[an] ordinary consumer
acting reasonably under the circumstances’ [citation].” (Colgan v.
Leatherman Tool Group, Inc. (2006) 135 Cal. App. 4th 663, 682
(Colgan).) Such a consumer “need not be ‘exceptionally acute and
sophisticated,’” nor must they “necessarily be wary or suspicious
of advertising claims.” (Lavie v. Procter & Gamble Co. (2003) 105
Cal. App. 4th 496, 509-510.) Rather, to meet the “reasonable
consumer” standard, “a plaintiff need only show that members of
11
the public are likely to be deceived” by the defendant’s
advertising. (Colgan, at p. 682.) Members of the public are likely
to be deceived by advertising that is false and by advertising
that, “‘although true, is either actually misleading or . . . has a
capacity, likelihood, or tendency to deceive or confuse the public.’
[Citation.]” (Kasky, supra, 27 Cal.4th at p. 951.)
The trial court correctly concluded that whether
members of the public were likely to be deceived by Ken’s labels
presents “grave and difficult” questions of law or fact. The Greek,
Italian, and vinaigrette dressings all referenced olive oil on their
front labels. Respondents claimed they relied on these references
when purchasing the dressings, and were upset when they
discovered that each dressing contained significantly more
vegetable or canola oil than olive oil. That is a sufficient basis for
the court below to conclude that Respondents’ lawsuit had merit.
(See, e.g., Colgan, supra, 135 Cal.App.4th at p. 682 [lawsuit
meritorious where plaintiffs testified that they were misled by
the defendant’s “Made in U.S.A.” claim about foreign-made
products].)
Ken’s argues that its labels were literally true. But
“‘[a] perfectly true statement couched in such a manner that it is
likely to mislead or deceive the consumer . . . is actionable.’
[Citation.]” (Aron, supra, 143 Cal.App.4th at p. 807.)
“[R]easonable consumers should [not] be expected to look beyond
misleading representations on the front of [a bottle] to discover
the truth from the ingredient list in small print on the [back].”
(Williams, supra, 552 F.3d at p. 939.) As our colleagues in the
Fourth Appellate District have stated, “You cannot take away in
the back fine print what you gave on the front in large
conspicuous print. The ingredient list must confirm the
12
expectations raised on the front, not contradict them.” (Brady v.
Bayer Corp. (2018) 26 Cal. App. 5th 1156, 1172 (Brady), original
italics.)
In claiming that Respondents should have carefully
examined the back labels’ lists of ingredients, Ken’s requires too
much. Reasonable consumers are not required to be “versed in
the art of inspecting and judging a product . . . [or] the process of
its preparation or manufacture.” (Colgan, supra, 135
Cal.App.4th at p. 682.) Yet Ken’s would require just that, forcing
them to glean from an ingredient list in small print on the back of
a bottle the limitations to the representations made in large print
on the front. The law imposes no such requirement. (Brady,
supra, 26 Cal.App.5th at p. 1172; Williams, supra, 552 F.3d at p.
939.)
Alternatively, Ken’s relies on the neutral case
evaluator’s conclusion that the CLRA claim could likely not be
certified as a class action, rendering that claim unmeritorious.
But whether a claim can be certified as a class action says
nothing about the merits of that claim. (Brinker Restaurant
Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1023.) Moreover,
while “the CLRA requires a showing of actual injury as to each
class member” (Steroid Hormone Product Cases (2010) 181
Cal. App. 4th 145, 155), that injury may be presumed if the
misrepresentation is material (id. at pp. 156-157). Materiality is
an objective inquiry, and is thus well suited to class treatment.
(Id. at p. 157.)
Finally, Ken’s argues that even if Respondents’
claims objectively had merit, it changed its salad dressing labels
in response to the “dint of nuisance and threat of [litigation]
expense” generally, not in response to Respondents’ lawsuit.
13
(Tipton-Whittingham, supra, 34 Cal.4th at p. 608.) This
argument is best resolved by the trial court, which rejected it.
The argument also misconstrues the relevant inquiry. To
determine whether a lawsuit has merit, a “court is to inquire not
into a defendant’s subjective belief about the suit but rather to
gauge, objectively speaking, whether the lawsuit had merit.”
(Graham, supra, 34 Cal.4th at p. 575, italics added.) It did.
3. Respondents’ settlement attempts
Before receiving a catalyst fee award, a plaintiff must
show that they “reasonably attempt[ed] to settle the matter short
of litigation.” (Graham, supra, 34 Cal.4th at p. 577.) “Lengthy
prelitigation negotiations are not required.” (Ibid.) “[B]ut a
plaintiff must at least notify the defendant of [their] grievances
and proposed remedies[,] and give the defendant the opportunity
to meet [their] demands within a reasonable time.” (Ibid.)
Respondents far exceeded the Graham standards.
They notified Ken’s of their grievances and proposed remedies in
a June 2017 letter. Ken’s refused their demands and did not
make a counteroffer. Respondents then agreed to submit the
case to a neutral case evaluator. After he completed the
evaluation, Respondents offered to let the evaluator mediate the
case. Ken’s refused without making a counteroffer. Respondents
then proposed to submit the case to a different mediator, which
Ken’s again refused, telling them that it was “not prepared to
make any offer of settlement” and would “vigorously defend
[itself] against any and all claims.” (Italics added.) Based on
their demand letter, case evaluation, and two mediation offers—
all of which Ken’s rejected—the trial court could easily conclude
that Respondents reasonably attempted to settle this matter
short of litigation.
14
Ken’s claims that Respondents’ initial demand of
$250,000 in attorney fees—which came at a time when they had
only incurred about $40,000 in fees—shows that their proposed
settlement was little more than “an attempted shakedown.” But
that demand was not based only on fees the attorneys had
incurred to date; it also included estimates of Respondents’
potential recovery had they won at trial and the costs Ken’s
would incur in defending against the lawsuit. Moreover, Ken’s
focus on the initial demand ignores that Respondents made three
subsequent efforts at settling the case, all of which were rejected
without a counteroffer.
The cases on which Ken’s relies do not show that
Respondents’ settlement attempts were unreasonable. In Carian
v. Department of Fish & Wildlife (2015) 235 Cal. App. 4th 806,
817-819, catalyst fees were denied because the plaintiff failed to
notify the relevant defendant of his demands prior to litigation.
Here, in contrast, there is no question that Respondents notified
the relevant defendant. In Abouab v. City and County of San
Francisco (2006) 141 Cal. App. 4th 643, 669, the plaintiffs did not
make any pre-suit settlement demand. They also rejected two
settlement offers from the defendant. (Id. at p. 673.) Here, in
contrast, Respondents made the requisite pre-litigation demand.
And it was Ken’s, not Respondents, that rejected the settlement
offers. Respondents reasonably attempted to settle their case
prior to litigation.
Public policy
Ken’s contends that even if the trial court correctly
determined that Respondents met the criteria for a catalyst fee
award, we should overturn that determination because such an
award is inconsistent with public policy. We are not persuaded.
15
“Before a trial court may award fees, section 1021.5
requires that an action result in the enforcement of an important
right and confer a substantial benefit on the public.” (Maria P. v.
Riles (1987) 43 Cal. 3d 1281, 1289.) Respondents’ lawsuit
“concerned the enforcement of California’s consumer protection
laws—an important right affecting the public interest.” (Colgan,
supra, 135 Cal.App.4th at p. 703.) It “also resulted in a
significant benefit for a substantial number of people by causing
[Ken’s] to change its [misleading] labeling and advertising
practices.” (Ibid.) A catalyst fee award was therefore consistent
with public policy.
We reject Ken’s assertion that the fee award here will
encourage frivolous litigation and deprive meritorious defendants
of opportunities to vindicate their rights. This assertion rests on
the false assumption that Respondents continued to litigate their
case without justification for months after learning that Ken’s
had changed its labels. But a full picture of the litigation
timeline shows that it was Ken’s, and not Respondents, that drew
out the case.
In August 2018, Respondents learned for the first
time that Ken’s would be removing references to olive oil from its
Greek and vinaigrette dressing labels. Over the next three
months, they twice offered to settle the case, but Ken’s refused.
Given those refusals, Respondents continued to pursue discovery,
learning at a December deposition that Ken’s would also be
removing reference to olive oil from the label on the Italian
dressing. At a hearing three months later, they learned that the
label changes would be permanent. Five days after that,
Respondents again offered to settle the case—an offer that Ken’s
again refused. They were thus forced to move for catalyst fees in
16
a last-ditch effort to “‘“discontinue litigation after [learning that
they had] receiv[ed] through [Ken’s] acquiescence the remedy
[they] initially sought.”’ [Citation.]” (Graham, supra, 34 Cal.4th
at p. 573.) Awarding fees under these circumstances is entirely
consistent with the public policy of this state.
DISPOSITION
The trial court’s July 11, 2019, order granting
Respondents’ motion for attorney fees is affirmed. Respondents
shall recover their costs on appeal.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
17
Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________
Sheppard, Mullin, Richter & Hampton, Andre J.
Cronthall and Angela Reid, for Defendant and Appellant.
Robins Kaplan, Glenn A. Danas, Syliva R. Ewald;
Clarkson Law Firm, Ryan J. Clarkson, Shireen M. Clarkson and
Bahar Sodaify, for Plaintiffs and Respondents.