However, Award Againt Nonsignatory Reversed.
We have done numerous posts over the last 3 plus years on attorney’s fees under Civil Code section 1717. If two lessons have emerged, it is to pay attention to the breadth of the attorney’s fees clause and your status in the litigation (signatory, third party beneficiary, assignee, etc.) with respect to whether you will recoup your fees.
These lessons are reinforced in the unpublished decision of Concord Shopping Center Assn. v. Contra Costa County Harvest Church, Inc., Case Nos. A128116/A129626 (1st Dist., Div. 2 Sept. 26, 2011) (unpublished).
The basic facts were that two warring sides in an easement dispute in an evolving construction project (with retail stores no less) pummeled each other in court. However, one side definitely got the upper hand, based on a 1984 agreement with an attorney’s fees clause. The prevailing parties did obtain lots of fees, in variant amounts, against the losing parties, including a nonsignatory party. Losers appealed the fee awards.
The primary signatories under the 1984 agreement lost, because the non-fee claims were intertwined with the fee claims such that apportionment was not necessary.
However, nonsignatory won, using a case that we commend to all litigants in this area–Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC, 162 Cal.App.4th 858, 897 (2008). Blickman Turkus is a great case in the nonsignatory area, leading to the appellate court reversing the award against the nonsignatory reason. Reason? The applicable fees clause only applied to “parties” seeking to enforce an agreement, which did not reach the nonsignatory. Reversed as to nonsignatory, but affirmed as to the rest.