$101,380 Fee Award Affirmed in Case Where $220,978.34 Monetary Judgment Was Entered Earlier.
Defendant borrowers lost a judicial foreclosure proceeding, an equitable claim that was bifurcated and heard first by the trial court, to the tune of $220,978.34, plus attorney’s fees and costs based on fee clauses in the operative loan documents. Later, the lower court awarded prevailing plaintiff $101,380 out of a requested $102,490 in fees.
Above: A foreclosure tale in Iowa in the early 1930s when "the bottom fell out of everything." Military police were on hand to keep farmers from preventing the auction. 1930-1940. Library of Congress.
On appeal in Randle v. Defilippis, Case No. A131538 (1st Dist., Div. 2 May 14, 2012) (unpublished), defendants argued that the fee clause required plaintiff to make a pre-suit demand before suing for claims inclusive of fee recovery. The appellate court rejected this argument on two grounds. First, the filing of the judicial foreclosure complaint was a sufficient demand under the circumstances. And, just as important, equitable circumstances govern interpretation of fees clauses, with the record showing that defendants ran up litigation costs based on numerous thin/meritless oppositions or motion work such that any demand would have been an idle act by plaintiff.
BLOG UNDERVIEW–The second ground also comes into play in the Civil Code section 1717 context, with the Second District, Division 6 in Peak-Las Positas Partners v. Bollag, 172 Cal.App.4th 101 (2009) [reviewed in our March 16, 2009 post] determining that aggressive/tenacious litigation is a proper factor to be weighed in this context.
