Fourth District, Division 1 Also Finds Waiver Where Apportionment Argument Not Made in Trial Court.
A short unpublished decision, K2 Construction, Inc. v. Anjani Investments, Inc., Case No. D053717 (4th Dist., Div. 1 June 15, 2009), stresses a couple of important principles that may be encountered when appealing a fee award. (Plaintiff won a $370,409 damages award and was later awarded $54,679 in fees under a contractual fees clause.) Here are the points reinforced in K2 Construction:
- An earlier appellate disposition that refuses to award costs to a future prevailing party, unless specified otherwise, does not prevent the eventual winner from moving to recover attorney’s fees (Cal. Rules of Court, rule 8.278(d)(2); Butler-Rupp v. Lourdeaux, 154 Cal.App.4th 918, 922-928 (2007)); and
- Defendant’s failure to ask the trial court to apportion out fees on unsuccessful claims was waived by not raising it in the fee opposition during the course of lower court proceedings (Baychester Shopping Center, Inc. v. San Francisco Residential Rent Stabilization & Arbitration Bd., 165 Cal.App.4th 1000, 1007-1008 (2008)).
Needless to say, the fee award was affirmed on appeal.