DISCUSSION

The sole issue presented by this appeal is the trial court’s denial of an award of attorney’s fees. The court determined that, although the question of attorney’s fees was not before the jury, the jury’s determination on punitive damages bound the court, and that it had no discretion to award attorney’s fees. Because we conclude that the jury’s finding on the different issue did not bind the court, we will remand for the court to reconsider the motion.

Standard of Review “‘On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.’” (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175, quoting Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) Thus, we exercise independent review on the narrow question of whether S.O. Tech is entitled to seek fees under Civil Code section 3426.4.

California Uniform Trade Secrets Act S.O. Tech’s claims for misappropriation were brought under the California Uniform Trade Secrets Act (CUTSA), Civil Code sections 3426 to 3426.11.1 Section 3426.4, at issue here, provides: “If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious

1 All further references, unless otherwise noted, are to the Civil Code.

3 misappropriation exists, the court may award reasonable attorney’s fees to the prevailing party.” To justify a fee award under this statute, the trial court must find that the party to whom fees are awarded is the prevailing party and that a willful and malicious misappropriation occurred. (Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal.App.4th 34, 54-55, fn. 23 (Vacco).) CUTSA, adopted from the Uniform Trade Secrets Act, does not define the burden of proof to be applied on a motion for attorneys’ fees under section 3426.4. As a result, we look to the Evidence Code, which mandates the application of a preponderance of the evidence standard: “Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” (Evid. Code, § 115; Conservatorship of Wendland (2001) 26 Cal.4th 519, 546. [“The default standard of proof in civil cases is the preponderance of the evidence”].) While there was a jury finding in this case, that finding, without objection by the parties, required only that the jury determine whether there was clear and convincing evidence sufficient to award punitive damages. Early in the proceedings, respondents sought a ruling from the court applying that standard of proof to the question of punitive damages. In that request, respondents neither suggested, nor asked the court to rule, that the same burden of proof should be applied to the court’s exercise of its discretion in determining whether to award attorney’s fees. In the discussion of the jury instructions themselves, the record does not demonstrate that any party asserted that the jury’s finding on punitive damages would be binding on the issue of attorney’s fees. The record does indicate that the parties and the court conducted an off the record discussion of jury instructions. After that discussion, the court issued a minute order memorializing its rulings. Two portions of that order are relevant. First, the court ruled that the verdict form for punitive damages would be phrased in terms of the clear and convincing evidence standard. Second, the court determined that in giving CACI No. 1441, the punitive damages instruction, the same clear and convincing language would be included.

4 Respondents have identified no legal basis to argue that the jury’s finding would be binding on the determination on attorney’s fees, a determination to be made by the court. Respondents have also cited no case in which the clear and convincing standard was applied to the award of attorney’s fees under CUTSA.2 The trial court, in denying the request for attorney’s fees, relied on Vacco. In that case, the jury awarded punitive damages for misappropriation. In considering the propriety of the award of attorney’s fees, and in response to the defendants’ arguments that there was no statutory basis for the award, the Court of Appeal stated: “In order to justify fees under Civil Code section 3426.4, the court must find that a ‘willful and malicious misappropriation’ occurred. That requirement is satisfied, in our view, by the jury’s determination, upon clear and convincing evidence, that defendants’ acts of misappropriation were done with malice. This finding was necessary to the award of punitive damages which was made by the jury. However, it is also sufficient to justify the statutory portion of the fee award.” (Vacco, supra, 5 Cal.App.4th at p. 54, fn. omitted; see also Khavarian Enterprises, Inc. v. Commline, Inc. (2013) 216 Cal.App.4th 310, 326-327 [trial court properly decides attorney’s fee issue].) Defendants in Vacco also argued that the issue of attorney’s fees was a jury issue. The court rejected that argument, explaining that Code of Civil Procedure section 1033.5 places that issue in the hands of the court, not the jury. (Vacco, supra, 5 Cal.App.4th at p. 55.) What was not before the court in Vacco, however, is the issue for which respondents and the trial court cited that case: whether the trial court is bound in its determination of attorney’s fees by the jury’s finding on punitive damages. The trial court here concluded that: “The implication under Vacco is that if the jury finds that the plaintiff does not demonstrate willful and malicious appropriation, fees are not justified under CUTSA.” The court further concluded that it was bound by the jury’s

2 Respondents, in briefing the issue before this Court, still provide no authority for their position other than Vacco, relied on by the trial court.

5 determination, relying on Hoopes v. Dolan (2008) 168 Cal.App.4th 146.3 The court erred. The Vacco court did not have before it the issue of what the standard of proof was because, in the face of a determination that there was clear and convincing evidence of malice, it was clear that there was a showing of the necessary facts by a preponderance of the evidence. While the court determined that the jury’s finding was sufficient for the court to award attorney’s fees under the statute, nothing in the facts before the court or the language of the statute indicates it was necessary. To the contrary, Evidence Code section 115 demonstrates it was not. Here, the standards of proof were different, the jury’s findings concerning malice and oppression for purposes of punitive damages were not binding on the trial court’s determination of S.O. Tech’s motion for attorney fees.4

3 In Hoopes, while the court did hold that the trial court could not disregard the jury’s verdict in deciding issues based on the same evidence and same operative facts, it also held, as relevant here, that when the issues to be decided are both within the province of the court, and concern factual and legal issues undecided by the jury, the court has a duty to make the determination. (Hoopes v. Dolan, supra, 168 Cal.App.4th at pp. 150, 162-163.) Here, the jury did not decide whether the plaintiff had demonstrated willful and malicious misappropriation by a preponderance of the evidence, but only that there was not clear and convincing evidence of such misappropriation.

4 Because we remand for the trial court to consider whether there is a basis for the requested attorney’s fees, we need not reach the other issues raised by respondents.

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DISPOSITION

The order is reversed and the matter is remanded for the trial court to determine whether the record demonstrates a basis for the award of attorney’s fees, and, if so, the amount properly awarded. Appellant is to recover its costs on appeal.

ZELON, J.

We concur:

WOODS, Acting P. J.

SEGAL, J.

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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