Second District, Division 6 Also Holds Fees Do Not Have To Be Apportioned.
Broad contractual language allowing for fee recovery “in any lawsuit or other legal proceeding to which this Agreement gives” can even grant entitlement to fee recovery with respect to tort claims. (Xuereb v. Marcus & Millichap, Inc., 3 Cal.App.4th 1338, 1342-1343 (1992); Allstate Ins. Co. v. Loo, 46 Cal.App.4th 1794, 1796-1797 (1996).) This type of breadth in a mortuary cremation services agreement led to fee entitlement in the next case.
Mortuary defendants prevailed in a mixed contract/tort/statutory case that involved a fees clause in a cremation authorization instrument stating “I . . . agree to protect and indemnify [crematory] or its assigns, against any claims of damages which may result on account of this authorization or my . . . failure to properly identify or pick up said cremated remains, including legal fees and costs and expenses of litigation.” The trial court denied awarding defendants fees under Civil Code section 1717.
Applying a de novo standard of review, the Second District, Division 6, in a 3-0 decision by Justice Perren, reversed on this issue in Warden v. Dudley Hoffman Mortuary, Case No. B206840 (2d Dist., Div. 6 Apr. 19, 2010) (unpublished).
The language of authorization was broad enough to encompass both contract and tort claims, with the work done on the noncontract claims so intertwined that it would be impracticable or impossible to separate attorney’s time into compensable and noncompensable units. (Abdallah v. United Savings Bank, 43 Cal.App.4th 1101, 1111 (1996); Erickson v. R.E.M. Concepts, Inc., 126 Cal.App.4th 1073, 1085-11086 (2005).)
Result: reversed and remanded to the trial court to render a proper fees award.
Corpse beginning to burn on pyre, India, 1906. Library of Congress.