Second District, Division 4 So Rules in Unpublished Decision.
Apportionment of attorney’s fees, as between covered and uncovered claims, is a discretionary call, as the next decision demonstrates.
Hur v. Lee, Case No. B210502 c/w BC361921 (2d Dist., Div. 4 Sept. 9, 2009) (unpublished) involved a sushi restaurant seller and his brokers, who suffered an adverse bench trial verdict for fraud in the sale of the restaurant to plaintiff buyers. The court awarded separate compensatory awards of $505,000 and $170.545.88 as well as $100,000 in punitive damages against seller and his brokers. The trial court also awarded attorney’s fees to plaintiffs, as against seller, in the amount of $206,025 based on a fees clause in the sales agreement between seller and buyers. Seller and brokers appealed.
Although reversing everything but the $505,000 compensatory award with respect to the bench trial verdict, the Court of Appeal did affirm the fees award against seller.
Seller mainly argued that fees should have been apportioned, because the trial court awarded $206,025 out of $211,130 in requested fees.
Not so, said the appellate panel. Seller had filed a cross-complaint against buyers that was defeated after trial. Buyers’ contract and tort claims as they related to seller were “inextricably intertwined,” as was the case with respect to buyers’ tort claims against brokers (with buyers having to show that the brokers, as seller’s agents, made misrepresentations inducing the restaurant purchase). Beyond that, seller did not identify any specific work that should be apportioned. No abuse of discretion was found in failing to apportion fees, based on the record before the appellate court.