Dismissal of Recission Count Preclude Fee Recovery.
The message from the next case is be careful of what claims you dismiss during the progress of a case on behalf of a client plaintiff. If you have a narrowly worded fees clause, dismissal of a contractually based claim (such as rescission) may end any fee entitlement even though there was success on noncovered tort claims.
Plaintiff in Taheri v. Khadari, Case No. B222132 et al. (2d Dist., Div. 7 Jan. 17, 2012) (unpublished) must have been feeling pretty good after obtaining a jury verdict on certain tort claims for over $8 million. However, plaintiff had dismissed a rescission claim during the litigation. That was fatal in his later request for attorney’s fees, with the lower court denying the request in toto. So, he did not feel very good for not garnering fees, provoking an appeal.
The appellate court affirmed the fee request denial, finding that the Purchase Agreement fees clause was narrowly worded and would not allow recovery of fees for successful tort claims. The earlier dismissal of the rescission claim was “over and out” as far as fee entitlement under Civil Code section 1717. (Gil v. Mansano, 121 Cal.App.4th 739, 744 (2004).)