Litigation Expenses Cannot Be Claimed As Fees Under Section 1021.6.
Zollars v. Kahan, Case No. A130332 (1st Dist., Div. 4 June 21, 2012) (unpublished) involved an owner who successfully sued a foreclosure sale trustee for failure to serve foreclosure documents on junior lienholders. Owner did recover attorney’s fees from foreclosure trustee under Code of Civil Procedure section 1021.6, an indemnity statute allowing recovery of fees under certain circumstances (mainly seen in construction defect disputes but also applicable to other indemnity situations). Owner was awarded $150,000 in fees, but appealed because he did not receive another $40,000 in requested fees not allowed and some additional litigation expenses.
His appeal was unsuccessful.
He first argued that the trial court erred in requiring him to bring his section 1021.6 fees request through the vehicle of a post-trial motion proceeding, but this was rejected because the governing language of the statute so required. (In a footnote, the appellate court indicated contrary prior law was superseded by enactment of the statute itself.)
Owner then contended that he should have been awarded $14,626.28 in costs in addition to attorney’s fees. Wrong, also, because section 1021.6 makes no mention of costs and litigation expenses cannot be shoehorned into a fee rubric.
Finally, the challenges to the amount of the award did not surmount the formidable abuse of discretion standard. In this one, the fee award was affirmed.