Trial Court Denying Fee Recovery Against Dismissing Tort Litigants Affirmed.
In Old CFI, Inc. v. Case Financial, Inc., Case No. B251404 (2d Dist., Div. 3 Aug. 28, 2014) (unpublished), plaintiff dismissed tort claims on the eve of trial, with defendants being dismissed requesting an award of contractual attorney’s fees as the prevailing party.
Neither the lower nor appellate courts believed defendants were entitled to fee recovery.
The reason was that the torts subject to dismissal were separate from the germane Services Agreement, involving alleged tortious conduct by one named Schwartz rather than the other dismissed defendants who then requested fees—with both courts determining Schwartz’s acts could not be imputed to the other defendants as a fee entitlement anchor or were truly independent of the contract. That meant the torts did not “relate to” the contract, justifying denial of fee recovery to the requesting defendants.