No Indemnity Clause Truly Involved, With 1717 Reciprocity Principles Governing the Construction of the Fees Clause. Here is another one to add to our category “Indemnity,” which deals with the issue of whether a true indemnity clause gives rise to fee exposure (not!) or whether a true fees clause does (you bet!). […]
Court of Appeal Also Determines Corporations Code section 317 Mandatory Indemnification Provisions Do Not Apply to LLCs. Justice Ikola, in a 3-0 decision of our local Fourth District, Division 3, made two important determinations on its behalf in Nicholas Laboratories, LLC v. Chen, Case No. G044105 (4th Dist., Div. 3 Oct. 12, 2011)
Failure to Apportion Between Defense and Cross-Complaint Prosecution Work Was the Flaw in the Fee Award. Depending on the fee-entitlement statute, apportionment may be a mandatory exercise. Although it usually is discretionary and may not be needed where work was intertwined, these principles do not necessarily apply to all fee situations. Sheridan v. Fladeboe
Fourth District, Division 3 Reverses Fee Award, Because Only An Indemnity Agreement Was Involved. Under our category “Indemnity,” we have discussed several cases which explore the difference between an enforceable attorney’s fees clause giving rise to fee recovery and an indemnification clause which does not. Here is one from our local appellate court to
You Be the Judge . . . . But We Will Give You The Answer! In our category “Indemnity,” we have explored many cases where appellate courts have scrutinized clauses where a winning party has claimed it is a true attorney’s fees clause, although cloaked in indemnity language, whereas the opposing side claims it
Third District Agrees With Lower Court that Breach of Fiduciary Duty/Implied Indemnity Claims Do Not Cover Fees. Here is an interesting one that is a follow-up of sorts to Lange v. Schilling, 163 Cal.App.4th 1412 (2008), in which winning buyer in real estate fraud/negligence case was disqualified from obtaining attorney’s fees because he
Fifth District agrees the Case is “screwed up.” The story arc of this opinion begins at a low point, and plummets. “What the heck?I?,” begins the Court of Appeal opinion. “At one point, the trial court commented, ‘This is one of the most screwed up cases I’ve ever seen.’ We heartily agree.” Essex Insurance
Contentiousness of Opponent Was One Factor Justifying the Hefty Award. Defendant in a contract dispute with plaintiff won $60,500 in damages, beating a Code of Civil Procedure section 998 pretrial offer of $62,001 (after preoffer costs were added in) made by plaintiff. Then, due to a contractual fees clause in the operative agreement,
$5.5 Million Fee Award Affirmed on Appeal. In our June 7, 2009 post, we talked about a judgment that E*Trade had obtained against Deutsche Bank AG for around $17.5 million in damages. At that time, a hefty request was anticipated to be filed by E*Trade in an effort to recoup its attorney’s fees for
Sixth District Found Opposing Party Forfeited Challenge to Billing Record Objections When It Failed to Attack Omissions Through Discovery Motion. In the next case, the Sixth District—in UDC-Universal Development, L.P. v. CH2M Hill, Case No. H033862 (6th Dist. Jan. 22, 2010) (unpublished)—affirmed a $402,596.40 fee award under a contractual provision when sustaining a trial
