Third District So Holds in Recent Unpublished Decision.
Under our category “Allocation,” we have reviewed cases arising under Civil Code section 1717 in which courts do and do not require apportionment of work between contract/noncontract claims for purposes of awarding fees. The basic test is that apportionment is not required where claims are “so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not . . . .” (Akins v. Enterprise Rent-A-Car Co., 79 Cal.App.4th 1127, 1133 (2000).) This last principle came into play in the next case.
Bank demanded that a replacement contractor perform under a completion guaranty, which would have made contractor liable for all mechanic’s liens and costs of completing the project. Contractor won, and was awarded $250,000 out of his requested $300,063.18 fees under a contractual fees clause in the completion guaranty. Bank then appealed, arguing that the clause was much narrower and did not allow for this recovery.
Wrong, said the Third District in Feather River State Bank v. Dudash, Case Nos. C048826 & C049809 (3rd Dist. Feb. 17, 2009) (unpublished). What is good for the goose is good for the gander. (O.K., o.k., bad pun based on the name of the Bank.) Based on Bank’s initial demand, all of the legal claims were at play such that apportionment did not need to be made “[g]iven this Gordian knot of conflicting liabilities and interests.” The trial court acted appropriately in not allocating fees, with the $250,000 fees award affirmed on appeal.
Library of Congress c1900