$101,380 Fee Award Affirmed in Case Where $220,978.34 Monetary Judgment Was Entered Earlier.
Defendant borrowers lost a judicial foreclosure proceeding, an equitable claim that was bifurcated and heard first by the trial court, to the tune of $220,978.34, plus attorney’s fees and costs based on fee clauses in the operative loan documents. Later, the lower court awarded prevailing plaintiff $101,380 out of a requested $102,490 in fees.
Above: A foreclosure tale in Iowa in the early 1930s when "the bottom fell out of everything." Military police were on hand to keep farmers from preventing the auction. 1930-1940. Library of Congress.
On appeal in Randle v. Defilippis, Case No. A131538 (1st Dist., Div. 2 May 14, 2012) (unpublished), defendants argued that the fee clause required plaintiff to make a pre-suit demand before suing for claims inclusive of fee recovery. The appellate court rejected this argument on two grounds. First, the filing of the judicial foreclosure complaint was a sufficient demand under the circumstances. And, just as important, equitable circumstances govern interpretation of fees clauses, with the record showing that defendants ran up litigation costs based on numerous thin/meritless oppositions or motion work such that any demand would have been an idle act by plaintiff.
BLOG UNDERVIEW--The second ground also comes into play in the Civil Code section 1717 context, with the Second District, Division 6 in Peak-Las Positas Partners v. Bollag, 172 Cal.App.4th 101 (2009) [reviewed in our March 16, 2009 post] determining that aggressive/tenacious litigation is a proper factor to be weighed in this context.