$17,936.40 In Fees/$1,108.10 In Costs Was The Total “Score” By The Victor.
The next case, Fidelity National Title Co. v. 1575 Adrian Road Associates, LLC, Case No. A140350 (1st Dist., Div. 5 Jan. 15, 2015) (unpublished), is an illustration of how Civil Code section 1717 mutuality principles will allow a nonsignatory to recover contractual fees as a prevailing party where the other side would have been entitled to fees had it prevailed against nonsignatory—otherwise known as reciprocity or symmetry.
Briefly told, escrow holder Fidelity, although not a signatory to a Real Estate Purchase Agreement with a fees clause, was sued as if it was by the property sellers in a dispute over return of a deposit in a transaction cancellation situation. Seller lost, and Fidelity prevailed. It then moved for and received $17,936.10 in fees under section 1717 and an additional $1,108.10 in costs, prompting an appeal by the seller.
Fidelity kept its fees/costs award. The Purchase Agreement clause was broad, applying to a “prevailing party” and containing no language—like some situations—precluding fee recovery to nonsignatories (as in Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC, 162 Cal.App.4th 858, 896-902 (2008)). In fact, the appellate court determined that section 1717 mutuality principles militated in favor of the award to Fidelity, heavily relying on the post-Reynolds reasoning of two cases from the Fourth District, Division 3, namely, Brown Bark III, L.P. v. Haver, 219 Cal.App.4th 809, 821-827 (2013) [Aronson, J.] and CB Richard Ellis, Inc. v. Terra Nostra Consultants, 230 Cal.App.4th 405, 410-411, 415-417 (2014) [Ikola, J.].