Attorneys’ Fees for Computer Misuse? What about for Defendants?

Author: Michael Dorsi

Attorneys who have dealt with computer misuse statutes know that while the federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, provides federal jurisdiction, California’s Comprehensive Computer Data Access and Fraud Act (“CDAFA”), Cal. Penal Code § 502, has a broader scope and more plaintiff-friendly remedies. Those remedies include attorneys’ fees. But what happens if a plaintiff sues under the CDAFA, and loses. Can the defendant win fees?

There is a frustrating split of authority on this question.

The split is between Swearingen v. Haas Automation, Inc., No. 09CV473 BTM(BLM), 2010 WL 1495204, at *3 (S.D. Cal. Apr. 14, 2010), and US Source LLC v. Chelliah, No. G049481, 2014 WL 6977597, at *6 (Cal. Ct. App. Dec. 10, 2014). Swearingen says fees are for plaintiffs only; US Source says defendants* can win fees as well.

Normally this would be easy to work out. US Source is more recent and decided by the California Court of Appeal on a question of state law. Swearingen is a federal district court decision, so it is not binding on anyone (beyond its own case). Going forward, US Source ought to control.Except US Source is “not certified for publication,” otherwise known as unpublished. Although unpublished cases are available on Westlaw and Lexis, “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” Cal. R. Ct. 8.1115(a). Similarly, the federal Northern District of California Local Rule 3-4(e) prohibits citation to rules designated as not for citation or a similar designation by the court issuing the decision. California’s other federal districts tend to follow similar practices, for good reason. See, e.g., Antablian v. State Bd. of Equalization 140 B.R. 534, 536–537 (Bankr. C.D.Cal. 1992) (“to determine how a California state court would rule,” a federal court should not rely on a decision the California court cannot consider.).

No such rule applies to federal district court decisions. Although such decisions are not binding, they are readily available to attorneys and frequently cited.

California unpublished cases rules have caused a great deal of discussion and complaining. This may be the best example of the problem: A three-judge panel of a state court decided a pure question of law in favor of defendants. That court explicitly stated that the federal district judge that addressed the issue four years earlier was wrong. But any judge who sees a brief — prepared in accord with the rules of court — will see only that a federal case resolved the matter in favor of plaintiffs. The best a defendant’s attorney can do is make the argument that the Court of Appeal found convincing in US Source, and hope that your judge decides that it is a good argument.


*The “defendants” in US Source are the initiating plaintiffs in a contract dispute seeking fees in their capacity as cross-defendants against a CDAFA claims. Their status as plaintiffs in the caption is irrelevant; what matters is their plaintiff/defendant status on a particular claim.

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