Cases: Section 1717 – Page 40 – Cal Attorneys Fees

Prevailing Party/Section 1717/Section 998: Unlicensed Alarm Company Subject To Fee Exposure After Losing To Customer Under Contract With Fee Clause

May 5, 2012

Also, Customer Sent 998 Offer Not Beaten by Alarm Company. Justice Fybel, on behalf of a 3-0 panel of our local Santa Ana appellate court in Emergency Technologies, Inc. v. Garcia, Case No. G045685 (4th Dist., Div. 3 May 4, 2012) (unpublished), affirmed a $41,162 fee award to a customer arising out of […]

Allocation/Section 1717: Even Though Two Distinct Contracts Existed (With Only One Subject To A Fees Clause), All Fees Were Recoverable Because Work Related To Defensing The Nonrecoverable Oral Contract Claim Was Essential To Resolving The Recoverable Wri

Cases: Allocation, Cases: Section 1717

May 2, 2012

No Allocation Required, Resulting in Affirmance of $318,469.82 Fee Award Where Jury Awarded Winner $71,443 In Compensatory Damages. Rens Masonry, Inc. v. Luca Properties, Inc., Case No. D057698 (4th Dist., Div. 1 May 1, 2012) (unpublished) is an interesting decision which affirmed a $318,469.32 fee award to the winning plaintiff contractor after the

Arbitration/Prevailing Party/Section 1717: Prevailing Party On Sole Contract Claim Entitled To Fees

Cases: Arbitration, Cases: Prevailing Party, Cases: Section 1717

April 20, 2012

“Each Side Bear Own Costs” Appellate Directive Did Not Bar Later Fee Request. Tenzera, Inc. v. Osterman, Case No. B228189 (2d Dist., Div. 3 Apr. 19, 2012) (partially published; fee discussion not published) presented a situation where, after remand from a prior appellate opinion in the same case, a trial court denied attorney’s

Section 1717/Reasonableness Of Fees: Promissory Note With Fees Clause Was “Action On The Contract” In Trust Deed Cancellation, Quiet Title, Declaratory Relief, Injunctive, Fraud And Slander Of Title Action

Cases: Reasonableness of Fees, Cases: Section 1717

April 20, 2012

Dismissal for Failure to Prosecute Did Make Defendant the Prevailing Party. In Halamandaris v. Sephos, Case No. C065819 (3d Dist. Apr 18, 2012) (unpublished), plaintiff’s action for the various claims described in our heading above was dismissed for failure to prosecute. The backdrop for all claims was a promissory note with a fees

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

Cases: Section 1717

April 11, 2012

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.

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

April 11, 2012

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.

Section 1717: $79,723 Contractual Fee Award To Plaintiff Landlord Affirmed

Cases: Section 1717

March 25, 2012

Lack of Authority to Support Reversal Argument Waived the Challenge. The next case, Sparks Property Investments, LLC v. Mission Career College, LLC, Case No. E051124 (4th Dist., Div. 2 Mar. 23, 2012) (unpublished), actually demonstrates a fundamental tenet of appellate practice that must be observed in order to even get a challenge to

Arbitration/Section 1717: Trope Rule Bites Assignee Attorneys

Cases: Arbitration, Cases: Section 1717

March 24, 2012

Messy Arbitration Case With Assignment of Rights Means Trouble. Liner Grode et al. v. Rotondo, Case No. B22106 et al. (2d Dist., Div. 7 Mar. 22, 2012) (unpublished) was an appeal from a messy corporate governance/derivative arbitration in which no one clearly prevailed. However, the arbitrator–because equity can be used–did award fees to

Section 1717: No Bank Exposure For Alter Ego Fee Recovery Where Judgment On Debt Obtained Years Earlier Such That Documents With Fee Clauses Were No More

Cases: Section 1717

March 17, 2012

Procedural Posture of Prior and Later Proceedings Was Determinative. One of the leading attorney’s fees cases in California under Civil Code section 1717 is Reynolds Metals Co. v. Alperson, 25 Cal.3d 124, 129 (1979), where the California Supreme Court found that two individual shareholders claimed to be the alter egos of a bankrupt

Section 1717/Section 998: “Pocketbook” Considerations Should Not Factor Into Civil Code Section 1717 Contractual Fee Award

Cases: Section 1717, Cases: Section 998

March 16, 2012

Failure to Award 998 Offer Costs Reversed, Including Refusal to Compensate For Excluded Expert Testimony Whose Admissibility Was Uncertain, But Maybe Necessary. Above: Pocketbook considerations. 1942. Arthur S. Siegel, photographer. Library of Congress. Here is an interesting one that we predict will engender some interesting discussion on at least the main published Civil