Frei v. Davey Controlled.
Judge Ikola, in a 3-0 opinion in Aaron v. Faraj, Case No. G046457 (4th Dist., Div. 3 Sept. 6, 2012) (unpublished), dealt with a defendant wife’s claims that she was improperly assessed with attorney’s fees because (1) plaintiff did not satisfy the mediation condition precedent to fee recovery contained in the CAR form real property agreement, and (2) fees incurred by plaintiff to lift the stay and demur to a cross-complaint with respect to her husband should not fall on her shoulders. Both contentions were rejected on appeal in favor of a plaintiff purchaser who did obtain a specific performance decree and eventually was awarded fees of $53,116.54.
The sequence of events showed that plaintiff offered to mediate through a letter, only to be met with responses indicating mediation was inappropriate because husband was going to be filing chapter 7 bankruptcy (and later attempting to coyly argue in letter exchanges this was not an outright refusal). After the complaint was filed and she lost at trial, wife argued that the mediation condition precedent had not been satisfied, disqualifying plaintiff from fee recovery. The appellate court found this argument to lack merit based on Frei v. Davey, 124 Cal.App.4th 1506, 1516-1517 (2004); after all, the refusal to mediate, even ambiguously, was enough to satisfy the condition. (Frei was authored by Justice Fybel of the same court, who was also on the panel hearing this case.)
As far as the challenge to the demurrer and lift stay fees relating to husband, the demurrer fees were reasonable and equitable circumstances did allow the lift-stay fees to be assessed based on case law establishing that fees in prior actions are allowable if the circumstances are right to do so. (Stokus v. Marsh, 217 Cal.App.3d 647, 665 (1990).) By the way, husband’s appeal was dismissed because he was not impacted enough, apparently based on his discharge in the chapter 7 case.