Author name: Marc Alexander

Section 1717: Defendants Winning Appeal Where Settlement Agreement Had Fees Clause Were Entitled To Recovery During Motion Enforcement Proceedings

Cases: Section 1717

  Given that Plaintiff Should Have Dismissed But Didn’t, Motion Was Equivalent of a Section 1717 “Separate Action” Under the Circumstances.      Remember the law school principles of performance excused by the other’s side breach and frustration of purpose? Well, those types of principles drove the result in the next case.      In Miller v. […]

Family Law: Failure to Award Needs-Based Award Was Not Erroneous

Cases: Family Law

  Determining Who Actually “Prevailed” Can Be Considered In Needs-Based Calculus.      Wife was disappointed when a family law judge refused to award “needs-based” attorney’s fees under Family Code sections 2032 and 4320, apparently based in large part on the perspective that she did not “prevail” during the litigation.      Our local Santa Ana appellate

Section 1717: Borrower Prevailing On Demurrer Sustained Without Leave Is Prevailing Party Despite Lender’s After-the-Fact With Prejudice Dismissal In The Wake Of A Fee Motion

Cases: Prevailing Party, Cases: Section 1717

  Case Proceeded to a Determinative Stage, So Fees Were Recoverable In Order to Prevent Procedural Gamesmanship.      The problem here was that the demurrer without leave ruling was a “determinative adjudication” that could not be undone by a dismissal, whether with or without prejudice. (Goldtree v. Spreckels, 135 Cal. 666, 672-673 (1902); Wells v.

Off Topic–Legal Humor

Off Topics

Off-Topic . . . . A Little Bit of Humor on Jury Voir Dire Okay, we digress a bit, but we share this gem from the recent American Bar Association Journal, a classic for any litigator. Posted by ARog: "A judge in our court likes to tell about voir dire in a criminal trial where

In The News . . . . Nevada Supreme Court Sustain District Judge’s Halving Fee/Costs Award To Two Attorneys Successfully Settling On Behalf Of Brain-Dead Young Girl.

In The News

       We thank an April 5, 2012 article in the Las Vegas Sun for reporting that the Nevada Supreme Court recently affirmed a district judge’s cutting in half a fees/costs request in favor of two attorneys–from the $130,000 request to an actual award of $63,466–who obtained a $238,000 settlement for a brain-dead young girl

Appealability/Family Law: Original Fee Awards Repeated In Later Omnibus Order Had To Be Appealed Earlier

Cases: Appealability, Cases: Family Law

  Wife’s Appeal from Three Awards Dismissed for Lack of Appellate Jurisdiction.      Wife obviously was unhappy with three different fee awards entered against her at various times in Marriage of Powell and Powell, Case No. A129916 (Apr. 5, 2012) (unpublished): one that she pay $120,000 to husband for losing a prior appeal and based

Family Law Two-Fer: Can’t Offset Section 271 Sanctions Against Child Support And Judgment Roll Appeal Shows No Abuse Of Discretion In 271 Award

Cases: Family Law

  Marriage of Rice and Eaton, No. C066860 (3d Dist. Apr. 4, 2012) (partially published; 271 discussion unpublished).      Although the published part is an interesting discussion of the impact of Department of Child Support Services contempt proceedings on wife’s OSC to obtain enforcement of delinquent child support payments, the unpublished part relating to fees

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