Fee Request For $928,791.25 Never Happened As An Award.
One must be careful on how one is positioned as far as status in attorney’s fees disputes, because nonsignatories must push the right “buttons” or they risk losing fees, which happened to the defendant/appellant in Seaport Village Ltd. v. Terramar Retail Centers, Case No. D066026 (4th Dist., Div. 1 Dec. 28, 2015) (unpublished).
Plaintiff sued defendant/appellant on various tort theories, arguing defendant was a partner or affiliate of two other defendants, with plaintiff voluntarily dismissing the suit against defendant. However, that dismissed defendant seized upon a fees clause in an LLC operating agreement between plaintiff and parties other than defendant, seeking to recover fees as a nonsignatory. Defendant sought $928,791.25, only be shut out at both the trial and appellate court levels—even after a de novo review by the 4/1 DCA.
Obviously, under Santisas (one of our Leading Cases), contractual recovery was barred. That left whether defendant could convince the courts that the tort claims were covered by a fees clause to which it was not a signatory, using Code of Civil Procedure section 1033.5 “attorney compensation is left to the agreement of the parties” provision. Too tall a task given the holding in Topanga and Victory Partners v. Toghia, 103 Cal.App.4th 775, 783-784, 786-787 (2002), which held that a prevailing party must be a signatory to the contract in order to recoup fees under section 1033.5. Because Civil Code section 1717 does not cover tort claims, this theory was also unavailing. Reynolds Metals (another of our Leading Cases) does not apply to non-section 1717 motions, and the fee claimant did not plead an alter ego claim. Dismissed defendant’s status, as plead and litigated, sealed the denial of fees in this case.