Litigant Failed To Show Fee Entitlement.
Assuming that a fee motion is timely filed, the next big obstacle for a fee claimant is demonstrating – drum roll time! – fee entitlement. That obstacle was not cleared by appellant in Schneider v. Deam, Case No. A150027 (1st Dist., Div. 2 May 29, 2018) (unpublished).
There, appellant filed a limited action to recover $1,613 in unpaid fees, with the two retainer agreements having narrow fees clauses which stated: “In the event of legal proceedings as to any account, the prevailing party is entitled to attorneys’ fees.” Defendant ex-client filed an unlimited jurisdiction cross--complaint sounding in tort/contract and praying for damages in excess of $815,000. After the dismissal of the cross-complaint, plaintiff moved to recover $42,265.85 in legal fees under Civil Code section 1717 and the contractual fee agreement. The trial court said “no.”
The appellate court agreed with the trial judge’s “no” assessment.
There was an initial jurisdictional jumble to address. Plaintiff’s complaint had not been disposed of, but that “snag” did not matter because any judgment in the limited civil action would go through the superior court appellate division instead. The cross-complaint judgment was indeed final and appealable.
On the merits, plaintiff failed to demonstrate how the narrow fees clause applied to the cross-complaint tort and contractual cross-claims. Simply skipping ahead to the Civil Code section 1717 “prevailing party” analysis did not remedy the failure to show a fees clause with a fee entitlement basis in the first instance.