Second District, Division 4 Nixes Appellant’s Reliance on Parsed Language from Butler-Rupp. In Sherwyn v. Nathaniel, Case No. B215666 (2d Dist., Div. 4 Sept. 1, 2010) (unpublished), defendant defensed plaintiff attorney in a jury trial involving attorney’s effort to collect unpaid fees that were claimed to be owed for a prior divorce representation […]
Fourth District, Division 3 Does Not Buy “Reverse Bootstrap” Theory Under Section 1717. (Excerpted from photo in Wikipedia article on “Bootstrapping”) One cannot ignore the reciprocity principle underlying Civil Code section 1717, which makes a unilateral contractual fee-shifting clause mutual in nature—and does so in a variety of circumstances. For example, there are
The next case is more important for construction practitioners dealing with Coleman-related compensation issues where the good faith negotiations between the parties do not result in any agreement on price. However, it also shows you that our Mission Statement is still very prophetic—attorney’s fees awards may be the tail that truly wags (and awards
Reciprocity Principle Underlying Section 1717 Required Reversal of Fee Denial. Here is a decision emphasizing that Civil Code section 1717 reciprocity principles will prevail, even where a successful litigant shows that the contract (in this case, CC&Rs) was inapplicable. The fees clause had to be construed as mutual in nature. The lower court did
First District, Division 5, Except for a $49 Adjustment, Tells Everyone to Go Home But For a Minor $1,000 Appellate Sanctions. Salvio Street, LLC v. Lee, Case Nos. A122408/A123080 (1st Dist., Div. 5 July 29, 2010) (unpublished) is an interesting case, not just for the legal issues, but because it demonstrates how pragmatic appellate
Fourth District, Division 3 Emphatically Makes the Point. Roden v. Amerisourcebergen Corp., Case No. G041990 (4th Dist., Div. 3 July 8, 2010) (certified for publication) involved a plaintiff who was disappointed in being denied an award of attorney’s fees under a supplemental executive retirement plan (with ERISA implications) after prevailing on some aspects of
Third District Reverses Denial of Fee to Prevailing Party. Ghandour v. Tahoe Sands Time Share Owners Association, Case No. C056395 (3d Dist. July 1, 2010) (unpublished) involved a trial court’s grant of a permanent injunction to plaintiff as against a defendant time share owners association, with the injunction prohibiting association from blocking her
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,
Second District, Division 2 Nixes Primary Trope Challenge On Appeal. Here is an interesting one to add to the Trope jurisprudence, although it is unpublished in nature. The end result is that a general manager of a represented client likely is analogous to an in-house counsel lacking the personal interest to disqualify the manager’s
First District, Division 2 Panel Has Very Divergent Perspectives on Breadth of Fee Clause. Here is a very interesting unpublished decision about the interpretation of a CAR form fee clause in a brokerage contract. The main dispute centered upon the interpretation of the scope of this provision: “In any action, proceeding or arbitration
