Mike and Marc's “Top Ten List” Of 2008 Attorney’s Fees Decisions

 

Who Says David Letterman Has The Only Good “Top Ten List”?

Part 1 of 2: Five of the Top Ten Decisions

     We may not have the panache of David Lettermen, but we do offer our “Top Ten List” of 2008 attorney’s fees decisions although we have no guest star to count them off! Here we go—and we thank all of you readers for following us and wish you a Happy 2009 as well. (The numbering is not intended to reflect order of importance, and we have only canvassed published decisions because they can be cited.)

     Part II with the next five, and an honorable mention, will follow soon.

10. Profit Concepts Mgt., Inc. v. Griffith, 162 Cal.App.4^th 950 (2008): Civil Code Section 1717 Fee Award Allowed For Successfully Bringing a Motion to Quash Service.

     An award of attorney’s fees was allowed under Civil Code section 1717 to a defendant who successfully moved to quash service for lack of personal jurisdiction; the resulting order to quash had finality for purposesof resolving the case brought in California.

     [Discussed in our May 11, 2008 inaugural post—Fourth District, Division 3; author: Justice Fybel]

9. Glencoe v. Neue Sentimental Film AG, 168 Cal.App.4^th 874 (2008): Litigant Fearing Loss on Potentially Dispositive Ruling Can Avoid Civil Code Section 1717 Fee Exposure By Dismissing Action With Prejudice Prior to Actual Ruling.

     A litigant facing contractual fee exposure under Civil Code section 1717 can dismiss action with prejudice, avoiding section 1717 fee exposure in the process, if the dismissal is made prior to a potentially dispositive motion ruling where the proceeding has not “ripened to the point of inevitability.”

     [Discussed in our November 26, 2008 post—Second District, Division 4; author: Presiding Justice Epstein]

8. Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC, 162 Cal.App.4^th 858 (2008): Judicial Estoppel Under Civil Code Section 1717 Not Justified Solely Because Opponent Prayed For Fee Recovery in Operative Pleadings.

     Civil Code section 1717 fees are only awardable where the opposing party actually is entitled to recover fees under a contractual fees clause; judicial estoppel cannot be based merely on the loser’s prayer for fee recovery in operative pleadings, following Leach v. Home Savings & Loan Assn.,185 Cal.App.3d 1295, 1307 (1986).

     [Discussed in our May 18, 2008 post—Sixth District; author: Presiding Justice Rushing]

7. Melbostad v. Fisher, 165 Cal.App.4^th 987 (2008): Anti-SLAPP Fee Order Entered After Entire Dismissal Is Immediately Appealable.

     Subsequent fee order in anti-SLAPP case is immediately appealable where there is an earlier judgment dismissing the entire action.

     [Discussed in our July 25, 2008 post—First District, Division 4; author: Justice Sepulveda]

6. Lange v. Schilling, 163 Cal.App.4^th 1412 (2008): Plaintiff Must Attempt to Mediate In Order to be Qualified to Recover Fees Under a CAR-Form Residential Purchase Agreement.

     Failure to attempt mediation before filing suit will disqualify a subsequent prevailing plaintiff’s fee petition based on a contractual fees/mediation clause in a California Association of Realtors’ form residential purchase agreement, tracking the reasoning of Frei v. Davey, 124 Cal.App.4^th 1506 (2004).

     [Discussed in our May 30, 2008 post—Third District; author: Justice Hull]

Part II—an upcoming post—will have the rest of our 2008 “Top Ten” and an honorable mention.