Many Cross-Over Fees And Costs Issues Considered By Appellate Court In This One.
In Davidson v. Southwick, Case No. E066978 (4th Dist., Div. 2 Mar. 26, 2018) (unpublished), plaintiff client successfully won a malpractice action based on various torts but lost a contract claim against certain attorney parties, winning a compensatory jury verdict of $48,382.93. On appeal, that judgment was reversed down to $4,804 on causation grounds. The trial judge denied client any fees and costs, while awarding fees to the attorney parties under the retainer agreement and Civil Code section 1717.
Plaintiff’s appeal of these rulings resulted in an appellate determination that she should have been awarded costs.
With respect to the fee awards, the operative retainer agreement fee provision was narrow in scope, applying only to “an action or proceeding to enforce any provision of this [Retainer] Agreement.” Because of this narrow breadth, client’s wins on tort claims were not “on the contract” under section 1717 (justifying a denial of fees), contrasted with attorneys’ winning on the contract claim so as to be entitled to fees (although the trial judge only awarded $10,000 out of a requested $77,800, apportioning fees such that the award only related to contractual work).
However, plaintiff did win on the argument she was erroneously denied routine costs. She was the prevailing party as far as a “net judgment,” and had filed a memorandum of costs (which, even if premature, was a procedural irregularity causing no prejudice to the other side). Plaintiff was not entitled to expert witness fees in connection with her fee motion, because expert fees of this nature are not recognized as allowable costs.