Second District, Division Two Affirms $269,492.50 Fee Award Against Former Attorney Under Retainer Fee Clause.
A recurring theme of our website is that litigation frequently funnels (or devolves, depending on your perspective) down to which litigant wins attorney’s fees under a fee-shifting mechanism. The next case, yet again, is a classic example of how that principle translates into “real time.”
In Cardet v. Burlison, Case No. B198625 (2d Dist., Div. 2 Dec. 17, 2008) (unpublished), Former Client sued Former Attorneys for malpractice in failing to identify the proper parties and take the proper legal action to foreclose a mechanic’s lien in a homeowners’ association context. Former Client won an apportioned negligence verdict against Former Attorneys in the amount of $556,197 as well as a contractual breach and/or fiduciary duty verdict against Former Attorneys in the amount of $194,668.
After plaintiff elected to take the negligence award, the negligence verdict was entered as judgment for $500,577.30, after reducing for plaintiff’s comparative negligence. Former Client then sought a recovery of attorney’s fees in the amount of $269,492.50, and the trial court awarded her the “full monty” as against Former Attorneys.
Former Attorneys appealed the fee determination, but lost.
In affirming, the Court of Appeal determined that the wording of the attorney-client retainer agreement was broad, encompassing a “legal action … required to enforce this Agreement or to collect any fees or costs earned or advanced pursuant thereto.”
Civil Code section 1717 did allow recovery to plaintiff, because she prevailed under the retainer agreement. Independently, the retainer fee clause was broad enough to include tort claims. (Cf. Lerner v. Ward, 13 Cal.App.4th 155, 160 (1993).) Summing up, the appellate court said: “Her success on all fronts entitles her to attorney fees.” (Slip Opn., at p. 22.)
BLOG OBSERVATION—The attorney’s fees award was substantial, at least one-half of the elected compensatory damages. Unless plaintiff had been awarded them, she might have suffered greatly.
“FULL MONTY” DERIVATION—“Full monty”: complete; the whole thing. Although not entirely free from doubt, the likely derivation of the phrase is from the tailoring business of Sir Montague Burton (Moshe Osinsky), who opened up his first shop in 1904 in Chesterfield, Derbyshire and who soon ran one of the premier tailoring businesses around. A “full monty” referred to a complete three-piece suit—one with a waistcoat, etc. for a wedding. It has been related that Sir Montague'’s staff at one of his stores recalled customers asking for the “full monty” by name.