Bank’s Failure to Contest Fee Entitlement Meant Only Amount of Fees At Issue—With Reasonableness And Apportionment Issues Left to Trial Court Discretion.
California Bank & Trust v. Del Ponti, Case No. E053187 (4th Dist., Div. 2 Dec. 9, 2014) (partially published; fee discussion unpublished) is a construction lender liability case with fairly draconian facts of where a lender tried to upstage a general contractor paying subcontractors to keep a failing project lien free and also tried to hold guarantors liable out of the same facts even though exoneration was written all over the facts.
Draco and Ursa Minor.
Ultimately, general contractor and guarantors prevailed on all or most claims against bank, with contractor winning $276,430 in fees and guarantors winning $85,515 in fees. Bank then appealed the merits and fee determinations against it.
The merit and fee determinations were affirmed on appeal.
Bank contested fee entitlement, but this challenge was waived by failure to raise it (with the appellate court providing several bases to show why entitlement could have been claimed). This narrowed the appeal to the dreaded amount of fees awarded, a deferential abuse of discretion review issue. The main argument was that the lower court should have apportionment contract versus noncontractual work efforts, but the trial judge found everything so interwoven (even on some dropped claims) such that no allocation was necessary. The reasonableness of the fee awards was also found to be supported by the record below.
