Second District, Division 6 So Holds In Suit Against Mortgage Lender. The Second District, Division 6, in Smith v. Home Loan Funding, Inc., Case No. B219372 (2d Dist., Div. 6 Feb. 24, 2011) (certified for publication), has held that a breach of the implied covenant of good faith and fair dealing claim is contract-based, […]
Article Highlights Possible Division on Contractual Claim Partial Dismissals Under Section 1717. Robert Freitas and Siddhartha Venkatesan, in a February 16, 2011 article entitled “Recovering Attorneys Fees” in The Recorder (e-newsletter available through Law.com), have written a nice, short article on recovering attorney’s fees under Civil Code section. Among under topics, they discuss fee
Mutuality Principles and Invalidity of 998 Offer Buttressed Correctness of Trial Court’s Fee Awards. Sargon Enterprises, Inc. v University of Southern California, Case Nos. B202789/B205034 (2d Dist., Div. 1 Feb. 9, 2011) (unpublished) was a hard fought case where plaintiff sued USC for breach of contract. Although lost profits evidence was found to have
Defendant’s Fee Award Reversed Because Plaintiff’s Pleadings Based on Statutory Corporations Code Duty, Not a Contract With a Fees Clause. Tabibian v. Waldman, Case No. B220760 (2d Dist., Div. 7 Feb. 9, 2011) (unpublished) is a case where plaintiff sued for breach of fiduciary duty/loyalty under Corporations Code section 309 even though there was
No Proportionality Required Under Section 1717; Defense Expenditure Of More Proved Reasonableness. In Big Ring Holdings, LLC v. Van Ness Mgt., LLC, Case No. A126692 (1st Dist., Div. 2 Jan. 26, 2011) (unpublished), plaintiff tenant was awarded $271,682 in damages for a leaking ceiling in a dispute over a yet-to-be-opened laundromat where there was
Broad Fee Clause and Compulsory Cross-Complaint Issue Sealed the Deal. You knew that this next case would be interesting when the appellate court said the following: “The records make it abundantly clear, however, that the litigation became extremely contentious, and even the parties’ lawyers became infected with the rancor and ceased to act
Fee Award Does Not Have to be Proportional to Damages Award for Civil Code Section 1717 “Prevailing Party” Purposes. Here is one which, yet again, reiterates that trial courts have tremendous discretion in determining the “prevailing party” under Civil Code section 1717 as well as the amount of damages to be awarded–which do not
Sixth District Rejected 1717 Mutuality Challenge, But Did Remand For Determination of Reasonable Fee After Proof Failure. Here is a very interesting one at the top of a new year in the retainer agreement/Civil Code section 1717/reasonableness of fees areas. Palmer v. Taylor, Case No. H033644 (6th Dist. Jan. 4, 2011) (unpublished) was
$20,147.50 Fee Award and $3,581.87 Costs Award Go POOF! We have many times explored the restriction in Trope v. Katz, 11 Cal.4th 274, 292 (1995) [one of our Leading Cases], where in propria persona attorneys cannot recover Civil Code section 1717 fees expended in litigating matters on their own behalf. The hallmark of situations
Entire Contract Must Be Considered in Fashioning Fee Award. Acting Presiding Justice O’Leary, from our local Fourth District, Division 3, has penned a 3-0 decision that reminds us of the statutory breadth of Civil Code section 1717, the fee shifting provision applicable to contractual fee clauses. The case is Ghods v. Citicorp Vendor Finance,
