Construction Lender Gets Fees For Successfully Defending Bonded Stop Notice Claim.
In North County Acoustics, Inc. v. Bank of America, N.A., Case No. D057720 (4th Dist., Div. 1 Oct. 27, 2011) (unpublished), subcontractor was hit with an adverse attorney’s fees award of $42,455.05 after losing a stop notice contest with a construction lender after lender obtained summary adjudication on the ground that the stop notice was not adequately bonded. Civil Code section 3174 does allow attorney’s fees to a prevailing party in a bonded stop notice action. The appellate court affirmed the fee award, which was made after a 20% reduction in the request for fees by the trial court, because lender did win on the stop notice claim and lender’s settlement of a related mechanic’s lien claim did not impact the fee award.
“Of Counsel” Attorney Independently Obligated to Winning Probate Attorney Entitled to Fee Recovery
Dzwonkowski v. Spinella, Case No. G044336 (4th Dist., Div. 3 Oct. 27, 2011) (unpublished) was a situation where a client in a probate matter was sued for nonpayment of probate attorney’s fees by an “of counsel” attorney who had an independent office near probate attorney’s practice. Probate attorney won after a fee arbitration where he was represented by “of counsel,” with the trial court also awarding post-arbitration fees of $16,344.41. Disgruntled client appealed, raising the Trope bar. However, because the probate attorney had an independent contractual obligation to pay “of counsel” for his work no matter what, the post-arbitration fees were fully collectible. “Of counsel” was independent of probate attorney who had a separate contractual obligation to “of counsel” to pay for his work, so that the holding in Farmers Ins. Exch. v. Law Offices of Conrado Sayas, 250 F.3d 1234 (9th Cir. 2001) was more appropriate in allowing fees based upon such a separate relationship (as opposed to Trope). Justice Fybel of our local appellate court penned the 3-0 panel decision in Spinella.