Lower Court Abused Discretion in How Fees Were Apportioned.
Although apportionment of requested fees between compensable and non-compensable claims is a discretionary call that is hard to overturn on appeal, don’t give up. The manner in which the trial court does apportion can still lead to a reversal, as Hafen v. Nielsen, Case No. G044204 (4th Dist., Div. 3 Nov. 28, 2011) (unpublished) demonstrates.
In this 3-0 decision authored by Justice Aronson, defendant appealed a fee award of $1,050 out of a $179,900 request in successfully defending against plaintiffs’ action to enforce two unrecorded view easements–with there being a fees clause in one of the agreements but not the other. The lower court apportioned fee recovery to the fee clause-bearing agreement. Defendant was not happy with the low apportionment.
The appellate court reversed. Apportionment was a correct call to segregate fees incurred on work under the fee clause-bearing agreement from work on non-compensable claims (including those related to the agreement without the fees clause). However, the lower court abused its discretion in how it apportioned fees. There indeed were some common issues under both agreements that were not properly credited. Because plaintiffs sought a declaration to enforce the fee-bearing agreement, the action was “on the contract” under Civil Code section 1717 rather than just being equitable in nature. Reversed for a new apportionment determination.
Blawg co-contributor Marc Alexander represented Mr. Meacher and Mr. Carlson in an earlier phase of this litigation among several neighbors.