Broad Fee Clause and Compulsory Cross-Complaint Issue Sealed the Deal.
You knew that this next case would be interesting when the appellate court said the following: “The records make it abundantly clear, however, that the litigation became extremely contentious, and even the parties’ lawyers became infected with the rancor and ceased to act reasonably or with professional civility.” Whew! And the appellate court even urged the parties to reach a global resolution notwithstanding how it ruled.
The case is Rosen v. Cook, Case No. A123548 (1st Dist., Div. 1 Jan. 11, 2011) (unpublished). As germane to this blog, wife defeated a contractual claim, which had a broad fees clause in a trust deed, based on the failure to bring the claim as a compulsory cross-complaint. The appellate court found that Civil Code section 1717 mutuality principles were invoked, with it being material that wife prevailed on a technicality for fee recovery purposes.
The Court of Appeal, although it could fix fees, found the better practice was to remand to the trial court for determination. (Center for Biological Diversity v. County of San Bernardino, 185 Cal.App.4th 866, 901 (2010).) However, one got the distinct impression that it still wanted the parties to see if they could settle this 6-year-long litigation epic.