The Other Agreement Might Have Provided Fee Entitlement, But Tenants Did Not Rely On That Agreement On Appeal, Choosing Unoperative Agreement Instead.
The lesson to be learned from Rodriguez v. The Condon Group LLC, Case No. G049245 (4th Dist., Div. 3 Feb. 27, 2015) (unpublished), a 3-0 decision authored by Presiding Justice O’Leary, is that a litigant requesting attorney’s fees needs to be careful in making arguments as to which agreements provide fee entitlement where multiple agreements abound. In this one, appealing tenants picked the wrong agreement.
Tenants prevailed on their causes of action for negligence and premises liability, while former landlord beat a warranty of habitability claim. Then, tenants moved to recoup fees under an unsigned monthly rental agreement which came after an actually signed month-to-month lease between the parties. Tenants banked on the subsequent agreement because the earlier lease limited fee recovery to $500.00. The trial court denied fees on the basis that the monthly agreement indemnity clause did not cover tort claims.
The appellate court affirmed. It found that the unsigned agreement was unenforceable because there was no mutual assent to it. With respect to the month-to-month lease which was assented to by both sides, there was no basis to read the two rental agreements together and Tenants did not seek fees based on the fees clause in the signed month-to-month lease. Wrong agreement chosen, so proper denial of fees by the lower court below.