Given that Plaintiff Should Have Dismissed But Didn’t, Motion Was Equivalent of a Section 1717 “Separate Action” Under the Circumstances.
Remember the law school principles of performance excused by the other’s side breach and frustration of purpose? Well, those types of principles drove the result in the next case.
In Miller v. Bush, Case No. C065203 (3d Dist. Apr. 10, 2012) (unpublished), defendants were awarded $9,918.75 in post-appeal attorney’s fees after defendants prevailed in an earlier appeal by sustaining a defeat of plaintiff’s motion to enforce a settlement with a fees clause under CCP § 664.6 (a procedure that allows a party to enforce a settlement through a law and motion procedure in an existing action). Plaintiff’s main challenge in this second fee was that the prior motion loss did not occur in a separate “action,” a predicate to fee recovery under Civil Code section 1717.
Nope, not under the circumstances of “this contorted and lengthy litigation.” Plaintiff was obligated to dismiss the prior action under the settlement agreement, but didn’t, instead trying to unsuccessfully enforce the settlement through a law and motion procedure in the action that should have been dismissed. Based on this interesting procedural twist, the appellate court found that the “motion” functioned as the equivalent of an “action” under the circumstances, meaning the fee award was proper.