Reversal and Remand Was the Result in this One.
Acting Presiding Justice O’Leary in Fuller v. Monogram Real Estate, Case No. G044808 (4th Dist., Div. 3 Dec. 19, 2011) (unpublished), on behalf of a 3-0 panel of our local appellate court, got to explore three issues of interest in the attorney’s fees area in reversing the denial of attorney’s fees under a fees clause to a defendant prevailing on a summary judgment motion.
The first ground for reversal was the lower court’s determination that the fee request was untimely because it was not sought in the costs memorandum. In a contested matter, a fee request must be brought through a separate motion under current rules (Cal.Rules of Court, rule 3.1702(b)(1)), a change from different rules in effect before 1994 (where the fees should have been claimed in the costs memo).
The second ground for reversal was the lower court’s conclusion that the fees clause did not apply because there was no contract. Not to worry, section 1717 allows for recovery even when the prevailing party demonstrates the contract is inapplicable, invalid, unenforceable, or nonexistent, assuming the opposite party could recover fees--which was the case here. Beyond that, the restriction of the fees clause to certain rental monies (a percentage of the unpaid rent) did not matter as far as recovery, because section 1717 was expanded to cover claims applying to the entire contract. (Harbor View Hills Community Assn. v. Torley, 5 Cal.App.4th 343, 348-349 (1992).)
Finally, that brought the appellate court to the question of reasonableness--after all, losing party said he was charged fees of $28,250, while winning defendant asserted it was billed $163,000 for legal services. Because it was unclear whether the lower court actually exercised its discretion in ruling on reasonableness (given the other grounds for decision), its denial order had to be reversed and remanded. However, that is not quite the end of this matter. Defendant did submit redacted billing statements, with the appellate court dismissing that these statements could only be reviewed in camera without giving plaintiff an opportunity to review and contest such documentation.
Two options were outlined by the appellate court: waive the privilege/produce the billing statements for everyone to review or present a much more detailed declaration of counsel summarizing the required information. (Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224, 254-255 (2001).)
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