Second District, Division 8 Follows Lead of Other Court on Dismissals That Ended Action.
In Laing v. Guam Economic Development and Commerce Authority, Case No. B206680 (2d Dist., Div. 8 Mar. 30, 2010) (unpublished), plaintiffs suffered dismissal of an action they brought against certain Guam entities for failing to comply with the claim-filing requirements of Guam's Government Claims Act. The trial court also awarded prevailing defendants $57,209 in attorney's fees (out of a requested $114,418.25) based on a contract fees clause.
Plaintiffs appealed both the merits and fee judgment, losing all of its challenges on appeal.
In affirming the fee award, the Court of Appeal found that the dismissal for lack of subject matter jurisdiction was akin to other dismissals that justified section 1717 fee recovery:
(1) waiver of a right to arbitrate (Christensen v. Dewor Developments, 33 Cal.3d 778, 780 (1983)); (2) dismissals due to lack of personal jurisdiction (Profit Concepts Management Inc. v. Griffith, 162 Cal.App.4th 950, 955-956 (2008) [authored by Justice Fybel of our local Fourth District, Division 3]); (3) dismissals following a plaintiff's violation of the compulsory cross-complaint rule (Carroll v. Import Motors, Inc., 33 Cal.App.4th 1429, 1437 (1995)); (4) dismissals based on the absence of an alter ego relationship (Pueblo Radiology Medical Group v. Gerlach, 163 Cal.App.4th 826, 828-829 (2008)); (5) dismissals following plaintiff's failure to bring a case to trial within 5 years (Elms v. Builders Disbursements, Inc., 232 Cal.App.3d 671, 674 (1991)); and (6) dismissals for plaintiff's failure to serve a summons within three years (Winnick Corp. v. Safeco Ins. Co., 187 Cal.App.3d 1502, 1506-1508 (1986)).
There was no abuse of discretion in the amount of the fee award, given that the trial court did cut the request in half.
This decision was authored by Los Angeles County Superior Court Judge Mohr, sitting by assignment on the Court of Appeal.
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