However, Routine Costs Denial Was Reversed.
The next case we survey teaches two lessons: (1) pay attention to mediation condition precedent clauses very closely, and (2) routine costs may be available to a prevailing party even if fee entitlement is foreclosed.
In Horton v. Hamel, Case No. A128024 (1st Dist., Div. 2 Apr. 19, 2011) (unpublished), a party appealed from an attorney’s fees and costs denial. The essential background is that the parties entered into a non-CAR Tenants in Common Agreement requiring mediation and binding arbitration in order to obtain entitlement to fee recovery. The trial and appellate courts found that appealing party did not satisfy this condition, which is fatal to recovery in many instances. However, different matter as to routine costs. The prevailing party on costs can indeed be entitled to recovery although a fee claimant is foreclosed. That was the case here, so remanded to determine costs entitlement to the appealing party.