Cases: Indemnity

Construction, Costs, Ethics, Indemnity, Fee Clause Interpretation, Section 1717: $4.176M Contractual Fee Award To General Contractor And Against Owner Affirmed On Appeal, But Expert Witness Costs Award To General Contractor Reversed As A Matter Of Law

Cases: Construction, Cases: Costs, Cases: Ethics, Cases: Fee Clause Interpretation, Cases: Indemnity, Cases: Section 1717

Case Explores Fee Clause Interpretation, An Award Of Fees To An Unlicensed Associate Supervised By A California Attorney, And An Award Of Expert Witness Costs Which Were Not Pled Or Proven As Damages.                The Whiting-Turner Contracting Co. v. 250 Fourth Development LP, Case No. A169470 (1st Dist., Div. 5 June 13, 2025) (unpublished) is […]

Indemnity: Plaintiff Winning Its Contract Action Properly Denied Fee Recovery Because The Purported Fee Clause Was Actually A Third-Party Indemnity Clause Not Allowing For Such Recovery In A Direct Action Between The Contracting Parties

Cases: Indemnity

1/1 DCA Found Alki Opinion To Be Persuasive.                Clauses providing for indemnification against third party claims are frequently determined not to give rise to attorney’s fees recovery in an action involving the two contracting parties.  In determining if an indemnity versus a true fees clause is involved, courts not only look at the contractual

Indemnity: Because California State Precedent Does Not Allow For Recovery Of First-Party Attorney’s Fees Under A Standard Third-Party Indemnity Clause, Ninth Circuit’s Earlier Dewitt Decision Was Incorrectly Decided

Cases: Indemnity

Concurring Justice Explains That A More Flexible Standard Of Intra-Circuit Stare Decisis Is Applicable To State Law Questions.                In AGK Sierra De Monteserrat, L.P. v. Comerica Bank, No. 23-15290 (9th Cir. July 19, 2024) (published), the Ninth Circuit reversed a district judge’s grant of attorney’s fees as damages under an indemnity provision despite California

Allocation, Indemnity, Reasonableness Of Fees: Defendant/Cross-Complainant Winning $48,511.50 On Certain Intentional Tort Claims And Defeating A Complaint In An Occupancy License Indemnity Dispute Properly Awarded $225,894 In Contractual Attorney Fees

Cases: Allocation, Cases: Indemnity, Cases: Reasonableness of Fees

Opposing Party Did Not Adequately Provide A Litigation History Roadmap, Never Suggested A Reduced Award Amount, And Never Attacked Specific Billing Entries; No Allocation Necessary Because Work Was Inextricably Intertwined.                Cubework.com, Inc. v. Solo Trading, Case No. B330959 (2d Dist., Div. 1 June 6, 2024) (unpublished) has some nice tips for what opposing parties

Family Law, Fee Clause Interpretation, Indemnity: Some Parts Affirmed, Some Parts Reversed And Remanded In Appeal Involving Community Or Separate Property Liability For Indemnification Obligations

Cases: Family Law, Cases: Fee Clause Interpretation, Cases: Indemnity

Also, Fee/Costs Award Under Indemnity Agreement Only Recoverable Against Ex-Husband, A Signatory To The Agreement, But No Fee Exposure Under The Third-Party Indemnity Provision; Needs-Based Fees Paid To Both Spouses Are Separate Debts Of Husband For His Need-Based Fees And Community Debts For Fees To Both Spouses.             Acting Presiding Justice Moore, in In re

Indemnity: Language Under Indemnity Clause Was Broad Enough To Allow Recovery Of Fees For Non-Third Party Claim Issues Such As Contractual Breach

Cases: Indemnity

Ninth Circuit Remanded Fee Denial, But Expressed No Opinion On What Amount, Maybe Apportionable, Was Righteous—That Was For The District Judge.             In Epic Games, Inc. v. Apple, Inc., Case Nos. 21-16506 et al. (9th Cir. Apr. 24, 2023) (published), Apple was successful on a contract claim against Epic Games, but the district court denied

Deeds Of Trust, Fee Clause Interpretation, Indemnity: After Paying Off Loan Demand, Non-Prevailing Borrower On Economic Duress/Implied Covenant Claims Correctly Assessed With Contractual Fees Of $2,856,956.82 And Costs Of $38,184.54

Cases: Deeds of Trust, Cases: Fee Clause Interpretation, Cases: Indemnity

Contractual Clauses, Including One In A Deed Of Trust, Were Fee Provisions.             Modern litigation can be expensive.  It can even be more expensive where there is a fee-shifting basis in contractual documents.  Borrower learned that hard lesson in The Palace at Washington Square, LLC v. Mechanics Bank, Case Nos. A164195/A164799 (1st Dist., Div. 3

Fee Clause Interpretation, Indemnity: Landlord Prevailing In Breach Of Contract Action Watches $496,757.31 Fee Award Disappear On Appeal

Cases: Fee Clause Interpretation, Cases: Indemnity

The Parties’ Leases Did Not Include Attorney Fees Provisions, And The Trial Court Erred In Finding That The Leases’ Third Party Indemnity Provisions Permitted Recovery Fees In A Direct Breach Of Contract Action             In Blackburn v. County of San Diego, Case No. D076904 (4th Dist., Div. 1 February 24, 2022) (unpublished), the trial court

Indemnity: Apple’s Request For Substantial Attorney’s Fees On Contractual Counterclaims In Epic Lawsuit Denied Because Indemnification Clause Not Broad Enough To Encompass Non-Third Party Claims

Cases: Indemnity

Drafting Issues Abound Here—Make It Explicit!             We thank our AlvaradoSmith colleague Monisha Coelho for bringing the recent ruling in Epic Games, Inc. v. Apple Inc., Case No. 4:20-cv-05640-YGR (N.D. Cal. Sept. 10, 2021) (Doc. 812) to our attention.  It highlights how indemnification clauses must be drafted with extremely clear language to make true attorney’s

Construction, Fee Clause Interpretation, Indemnity, Insurance: Subcontractors Not Liable For Gen. Developer Defense Fees Not Relating To Their Work, And Equitable Subrogation Action Fees For Developer Not Recoverable Under Ambiguous Clause

Cases: Construction, Cases: Fee Clause Interpretation, Cases: Indemnity, Cases: Insurance

At The End, Joint/Several Liability Theory On The First Issue Was Rejected, And Ambiguity Construed Against Developer Drafter On The Second Issue.             This next post might interest construction and insurance practitioners, although it involves the interesting intersection of contractual and insurance equitable subrogation issues—with complexities teeming!             In Berg v. Pulte Home Corp., Case

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