Denied Winner’s Fee Request Remanded For Apportionment.
Zintel Holdings, LLC v. McLean, Case No. B236139 (2d Dist., Div. 7 Sept. 18, 2012) (published) was an interesting lease slugfest where landlord lost its complaint against long-term tenants (son and mother) and mother lost her retaliatory harassment cross-complaint seeking independent damages on cross-motions for summary judgment, with everyone not contesting the merits. Mother and son were awarded routine costs of $2,500, but were denied a request for attorney’s fees in the range of $64,789.90 to $79,585 by the lower court. Mother and son appealed the appeal denials. Mother was found to not be an unqualified winner, and son was tainted by the “unity of interest” principle, which vests a trial court with discretion to deny or apportion costs in multi-defendant situations where defendants have united interests and/or joined in making defenses under repealed former Code of Civil Procedure section 1032 (but which has still been applied by some appellate courts when determining fee entitlements).
The Second District, Division 7 affirmed the denial as to mother, but son got the better of its with a reversal and remand.
Mother was no clear winner--she lost the cross-complaint asking for independent affirmative relief, while winning on landlord’s complaint. A draw, but no complete win.
Son was in a different box. Although questioning whether the “unity of interest” principle was still valid (suggesting in dicta it probably was not), the appellate court decided it did not have to decide the issue. Rather, because son did not cross-complain and won completely on the contractual issues, he was entitled to fees under section 1717. However, the reviewing court did agree that some apportionment of defense fees was a good idea, remanding to allow the lower court to exercise its discretion--with the failure to do so being error. So, son gets another chance to fix fees on remand.