Contentiousness of Opponent Was One Factor Justifying the Hefty Award.
Defendant in a contract dispute with plaintiff won $60,500 in damages, beating a Code of Civil Procedure section 998 pretrial offer of $62,001 (after preoffer costs were added in) made by plaintiff. Then, due to a contractual fees clause in the operative agreement, the trial court awarded defendant $281,058 in attorney’s fees, inclusive of a 15% reduction of a large piece of the requested fees for inefficient work, block billing, and non-contract work that could be apportioned out. The trial court also observed, in making the award, that plaintiff never conceded any liability issues or took steps to streamline the litigation, which negated the argument that awarded fees were disproportionate to the amount of the damages award.
Above: Cockfight. Shigemasa Kitao (1739 – 1820).
In McKinzie v. Roemer, Case No. A124787 (1st Dist., Div. 2 July 1, 2010) (unpublished), the appellate panel affirmed the fee award upon plaintiff’s appeal of same.
Initially, plaintiff argued that the fees clause was contained in an indemnification provision such that defendant was not entitled to fee recovery. Wrong, said the appellate panel. Plaintiff might have been correct had the fees clause been contained in a true third-party indemnification provision, but the operative provision was between the contracting parties. (Baldwin Builders v. Coast Plastering Corp., 125 Cal.App.4th 1339, 1344-1346 (2005); Continental Heller Corp. v. Amtech Mechanical Services, Inc., 53 Cal.App.4th 500, 508-509 (1997).) Put another way, this was a real first-party fees clause, not an indemnification clause relating to fees incurred in a third-party dispute.
Plaintiff then challenged the reasonableness of the amount of the fees awarded. The problem here is that he ignored the 15% reduction made by the trial court, such that the award was no abuse of discretion. Not to be ignored, also, was the fact that plaintiff tenaciously litigated the case at every turn, resulting in the large expenditure of fees of plaintiff in response. (City of Riverside v. Rivera, 477 U.S. 561, 580 n. 11 (1986) [a party cannot tenaciously litigate and then be heard to complain about the time necessarily spent by the opponent in response].)