Second District, Division 4 Nixes Appellant’s Reliance on Parsed Language from Butler-Rupp.
In Sherwyn v. Nathaniel, Case No. B215666 (2d Dist., Div. 4 Sept. 1, 2010) (unpublished), defendant defensed plaintiff attorney in a jury trial involving attorney’s effort to collect unpaid fees that were claimed to be owed for a prior divorce representation of defendant. The trial court then awarded defendant $31,250 in attorney’s fees based on Civil Code section 1717 (due to the presence of a fee clause in the retainer agreement between the parties). Plaintiff appealed the fee award, principally arguing that it was premature.
Not so, said the Court of Appeal. Butler-Rupp v. Lourdeaux, 154 Cal.App.4th 918 (2007), the case relied on by plaintiff, did not state that the trial court does not have the discretion to award attorney’s fees following the entry of final judgment on the litigation before it—it just cannot do so during an interim stage of the case. A jury had returned a defense verdict, so there was a prevailing party and the trial judge did not err in so finding notwithstanding that plaintiff intended to file a notice of appeal.