Purposed Fees Clause Was A True Indemnity Clause, Not A Fees Clause.
We have posted on a lot of cases in this area, but can add an Indian tribal case in the form of Federated Indians of Graton Rancheria v. Kenwood Investments No. 2, LLC, Case No. A147281 (1st Dist., Div. 1 Mar. 7, 2017) (unpublished).
Although the tribal sovereign immunity waiver merits argument was affirmed, the tribe did win a significant reversal of a $1,232,277.55 fee award based on a fees clause in a written contract.
The reversal occurred because the purported "fees clause" was only a third-party indemnity clause, relying primarily upon Alki Partners, LP v. DB Fund Services, LLC, 4 Cal.App.5th 575, 602 (2016) [discussed in our October 24, 2016 post]. The appellate court would not adopt an interpretation of the contractual provision which "has the potential to convert all indemnity clauses into attorney fee provisions." (Slip Op., at p. 14.)