$35,000 Fee Award Vacated By Second District, Division 5.
Where the contents of a contractual fees clause is clear in nature (with no factual disputes), this sets up an issue of law that an appellate court can review de novo. (Winet v. Price, 4 Cal.App.4th 1159, 1165-1166 (1992).) That is exactly what happened in the next case that we survey.
The parties in Carr v. Torrance Memorial Medical Center, Case No. B225255 (2d Dist., Div. 5 May 25, 2011) (unpublished) had reached a written settlement after plaintiff lost a summary adjudication motion in a wage and hour case. The settlement did allow plaintiff to reserve his right to appeal the adverse summary adjudication, but stipulated that he released and dismissed all claims. There also was a fees clause in the settlement, covering any “dispute . . . over the enforcement of [the] Agreement.” Plaintiff did appeal, but that was dismissed when the appellate court earlier determined that the dismissal and release of that claim rendered the reservation of the right to appeal ineffective in nature. [PRACTICE POINTER–Be careful how you structure a settlement that preserves appellate issues for review; releases and dismissals obviously can undermine the intent of the parties.]
The trial court awarded the defense $35,000 in attorney’s fees under the settlement fees clause.
Reversed. The reason? The parties had agreed that plaintiff could appeal the summary adjudication motion. Plaintiff’s appeal did not concern enforcement of the settlement at all; in fact, one could argue that plaintiff only was seeking to enforce the one preserved claim remaining. The fees clause did not encompass what was done in this case.