Second District, Division 1 Adheres to Literal Terms of Contract.
Under the category “Mediation,” we have examined numerous cases involving CAR form real estate purchase contracts that interpret mediation condition precedents in literal fashion. The next case is no exception.
In Yaghobyan v. Tran, Case No. B212365 (2d Dist., Div. 1 Mar. 29, 2010) (unpublished), defendants won a mold infestation real estate case, where a CAR form contract contained an attorney’s fees clause. The defense did not win attorney’s fees, because the trial court ruled that defendants refused plaintiff’s request that they mediate their dispute.
Decision, affirmed on appeal.
The defense primarily argued that the court erred in denying their fee request because only the party initiating the action is required to attempt mediation as a condition precedent to obtaining attorney’s fees. Wrong . . . wrong . . . . wrong. “This argument ignores the plain language of the contract which requires either party to mediate if requested to do so by the other party or forfeit its entitlement to attorney fees.” (Slip Opn., p. 8.) This unpublished decision tracks the overwhelming authority in this area.
Gama, Domicio DA, AMB. E. & P. From Brazil; Naon, Romulo S., E.E. and M.P. from the Argentine A.B.C. [Argentina, Brazil, Chile] Mediators. 1914. Library of Congress. Harris & Ewing Collection.