Defendants’ Section 1717 Motion For Fees And Costs Was Based On An Attorney Fees Provision Contained In An Agreement Summarizing The Parties’ Oral Agreements That Was Never Signed, And Plaintiffs Included Only A Generic Prayer For Fees In Their Complaint Without A Source For The Request.
In Magco Drilling v. Neville, Case No. A157194 (1st Dist., Div. 3 November 13, 2020) (unpublished), prevailing defendants sought $274,672.50 in Code Civ. Proc., § 1717 attorney fees, plus $31,150.71 in costs, based on the fees provision contained in the unsigned Summary Agreement attached to plaintiffs’ complaint. The trial court denied – finding plaintiffs’ contract claim did not allege agreement upon the fees provision, and that plaintiffs had not included a prayer for contractual attorney fees.
The 1/3 DCA affirmed. The panel found the gravamen of plaintiffs’ contract causes of action was to obtain a remedy for breach of the oral agreements made between the parties on a handshake deal, not to enforce the unsigned Summary Agreement – which plaintiffs had their attorney prepare for the purpose of memorializing the parties’ oral agreements. Additionally, it was unclear whether all or merely some of the Summary Agreement terms were part of the parties’ final oral agreements, and plaintiffs’ complaint included no suggestion that the alleged oral agreements contemplated a provision for attorney fees or costs. Finally, it did not follow that plaintiffs were seeking to enforce the Summary Agreement by simply including in their complaint a generic prayer for attorney fees without citing a source for the request. (Bear Creek Planning Committee v. Ferwerda (2011) 193 Cal.App.4th 1178, 1188 [“For a losing plaintiff to be required to pay attorney fees, the plaintiff’s ‘bare allegation that [h]e is entitled to receive attorney’s fees [is] not . . . sufficient’; he also had to have established the attorney fees clauses ‘actually entitled’ him to recover fees.”].)