C.A. Tosses Attorney Fee Award Against Best-Selling Author

Friday, September 10, 2010

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C.A. Tosses Attorney Fee Award Against Best-Selling Author

By a MetNews Staff Writer

This district’s Court of Appeal has thrown out two attorney fee awards totaling over $160,000 against best-selling author Clive Cussler in a dispute over the movie adaptation of his novel “Sahara.”

Div. Three held Wednesday in an unpublished opinion that its March decision overturning a $5 million award against the novelist in a contract dispute with the film’s producers necessitated summary reversal of the related fee awards.

In 2004, Cussler sued Crusader Entertainment, now known as Bristol Bay Productions, claiming the company violated an agreement to let him approve the film’s screenplay. Crusader countersued, arguing Cussler hurt the movie’s prospects and breached his contract by making public comments disparaging the screenplay.

The film—which starred Matthew McConaughey, Steve Zahn and Penélope Cruz—reportedly lost about $80 million after expenses, making it one of the biggest box office flops of 2005.

After a 14-week trial in 2007, a jury rejected most of both parties’ causes of action but found that Cussler breached the implied covenant of good faith and fair dealing. Los Angeles Superior Court Judge John P. Shook ordered entry of judgment for $5 million in damages on that claim.

The appellate court subsequently reversed in part, ruling that Crusader’s breach of the implied covenant claim was barred as a matter of law. In a decision by Justice Patti S. Kitching, the panel concluded that Cussler’s alleged conduct was expressly permitted under the terms of his contract with Crusader.

Joined by Justices Richard D. Aldrich and H. Walter Croskey, Kitching ordered the matter remanded to determine who was the prevailing party and thus entitled to costs and attorney fees.

While the appeal was pending, however, Shook issued an order awarding Crusader $13,949,131 in attorney fees and a second order awarding Crusader $150,000 in attorney fees for its post-judgment enforcement efforts. Cussler appealed both orders, and a panel consisting of the same three justices consolidated the appeals.

Writing again, Kitching concluded that “[t]his is one of those rare situations where summary reversal is appropriate.” Although she acknowledged that the court could resolve the appeals by dismissing them as moot, Kitching opined that reversal would be a better course of action in order to “provide the trial court with guidance which is as specific as possible, thereby reducing the likelihood that the parties will engage in unnecessary litigation.”

Kitching explained that the two fee orders were void in light of the panel’s March decision directing the trial court to determine the prevailing party. “As we directed in Cussler I, the trial court must determine if there was a prevailing party in this action and, if so, who that party was,” she said. “The trial court’s decision regarding those issues will affect its decisions regarding the amount, if any, of attorney fees that should be awarded to Crusader or Cussler and the amount, if any, of restitution Crusader should pay to Cussler.”

Bertram Fields, Elisabeth A. Moriarty, Caroline Heindel Burgos and Ricardo P. Cestero of Greenberg Glusker Fields Claman & Machtinger represented Cussler while Marvin S. Putnam and Jessica L. Stebbins of O’Melveny & Myers represented Crusader.

The case is Cussler v. Crusader Entertainment, LLC, B215815.