Mossman v. Naranjo, Case No. D059054 (4th Dist., Div. 1 Sept. 18, 2012) (Unpublished)--CAR Form Real Estate Contract Covers Fees Won For Real Property Nondisclosure Claims.
Plaintiffs/buyers won fraud-based claims for property nondisclosures from defendants/sellers, but defendants won the contract based claim. The lower court denied fees to both parties, finding no prevailing side under the CAR form real estate purchase agreement. Defendants appealed, arguing they won on the one contract claim. Fee denial affirmed, because the broad “arising out of” language in the fees clause also covered plaintiffs’ tort-based wins, so defendants really achieved none of their goals and plaintiffs most of them, although the court could still find no one won--however, defendants certainly did not achieve their litigation objectives.
Tucker v. Parfet, Case No. A133499 (1st Dist., Div. 2 Sept. 18, 2012) (Unpublished)--Husband’s Losing Child Custody Moves Entitled Wife To Fees And Husband Socked With Frivolous Appeal Sanctions.
In this long-running battle over child custody/visitation/child support issues (which are compensable under Family Code sections 7605 and 7640), husband did not appeal fee entitlement or amount of fees award to wife under a certain fee order. His main argument on appeal was that the trial court failed to review the relevant evidence under In re Marriage of Tharp, 188 Cal.App.4th 1295 (2010). The appellate court found otherwise, observing along the way that husband could not carry the day by assuming the lower court erred and the record showed evidence was reviewed by the judge below. Then, the appellate court found husband’s appeal was frivolous, awarding another $15,000 in fees to wife as a sanction and awarding husband to pay $6,000 to the court clerk for the reviewing court’s working up of the appeal.
Maki v. Yanny, Case No. B231712 (2d Dist., Div. 7 Sept. 18, 2012) (Unpublished)--$54,208.28 In SLAPP Fees Sustained On Appeal.
Attorney brought client interference claims in a cross-complaint found to be protected under the Civil Code section 47 litigation privilege, resulting in a “SLAPP.” The winners were also awarded attorney’s fees of $54,208.289 as against losing attorney. Not only were the merits of the SLAPP okay, but the trial court could properly discredit attorney’s claim that she offered to dismiss the cross-claims within two days of filing such that SLAPP fees were unwarranted. The opposite side argued this was unreasonable because it was only a dismissal without prejudice and subject to a tolling agreement, so there was no true end. The trial court could reject attorney’s mitigating argument, resulting in an affirmance of the SLAPP award against the losing side. No abuse of discretion shown.
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