“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
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 Apr 18, 2012) (unpublished), plaintiff’s action for the various claims described in our heading above was dismissed for failure to prosecute.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
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.
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.
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Sparks Property Investments, LLC v. Mission Career College, LLC, Case No. E051124 (4th Dist., Div. 2 Mar. 23, 2012) (unpublished), actually demonstrates a fundamental tenet of appellate practice that must be observed in order to even get a challenge to
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 (2d Dist., Div. 7 Mar. 22, 2012) (unpublished) was an appeal from a messy corporate governance/derivative arbitration in which no one clearly prevailed.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
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
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
Appellate Court Reversed Trial Court Fee Denial, Finding Unity of Interest Rule Only Applied to Costs, Not Fee Awards. Hill v. Affirmed Housing Group, Case No. H035541 (6th Dist. Mar. 12, 2012) (unpublished) is a situation where trustees of a trust sued an LLC and its managing member on the theory that LLC’s
Although Controlling the Litigation, Nonsignatory Had No Rights Assigned Under The Fees-Clause Bearing Settlement Agreement. Estate of Bennett, Case Nos. G043050 et al. (4th Dist., Div. 3 Mar. 8, 2011) (unpublished), although a probate action, actually is a Civil Code section 1717 fees clause case, with the fee award affirmed by a 3-0
