“Touching Upon” Language Found Especially Persuasive.
Case law under Civil Code section 1717 allows for recovery of fees on a contract claim, and is augment by cases applying Code of Civil Procedure section 1021 if the contractual fees clauses are broad enough to encompass tort claims. Bank, a prevailing cross-defendant below on certain tort claims, did have sufficiently broad fees clauses in loan documents and guaranties to justify a substantial award against losing cross-complainants.
The trial court in SCC Acquisitions, Inc. v. Central Pacific Bank, Case No. G045718 (4th Dist., Div. 3 Oct. 30, 2012) (unpublished) was faced with a prevailing bank that had very broad fees clauses in its loan documents and guaranties, including language covering any matters related to the loan documents or the loan and “touching” upon the guaranties. Based on these very broad contractual provisions, the trial court awarded bank, in full, its requested fees of $779,570.97 for prevailing below.
The fee order was affirmed in a 3-0 decision by our local appellate court, authored by Justice Moore.
The fee language was very expansive, covering tort claims arising out of the loan agreement–with special emphasis given to the “touching upon” verbiage. That was certainly enough to affirm the conclusion that the fee award was correct. (Xuereb v. Marcus & Millichap, Inc., 3 Cal.App.4th 1338, 1342-1344 (1992); Lerner v. Ward, 13 Cal.App.4th 155, 159-160 (1993).)