Appellate Court Reverses Fees Denial Order, Siding With Justice Armstrong’s Interpretation of “Action” in Gil.
We now have a split of intermediate appellate thinking on whether “action” encompasses just the complaint or also a “defense” in an answer. Exxess Electronizz v. Heger Realty Corp., 64 Cal.App.4th 698 (1998) and Gil v. Mansano, 121 Cal.App.4th 739 (2004) (over a dissent by Justice Armstrong in Gil) narrowly found that a “defense” was not within the scope of an “action” for purposes of awarding fees to a prevailing party under Civil Code section 1717.
Now, the Second District, Division Three has sided with Justice Armstrong’s dissenting reasoning in Windsor Pacific LLC v. Samwood Co., Inc., Case No. B233514 (2d Dist., Div. 3 Jan. 30, 2013) (published) (3-0, authored by Justice Croskey).
In Windsor Pacific, a defendant unsuccessfully sued in a prescriptive easement dispute had raised in the answer that an express easement agreement gave defendant permissive authority to grant an easement for a period of time, vitiating the adverse element of a prescriptive easement claim. However, the lower court refused to award fees to prevailing defendant even though the easement agreement provided for a fee award to such a party “[i]n any action or proceeding to enforce or interpret the provisions of [the] Agreement [Regarding Easements].”
The reversal hinged on the appellate panel’s view that “action” and “defense” are encompassed within an entire action or proceeding, preferring Justice Armstrong’s dissent and disagreeing with the narrower interpretation expressed in the Exxess/Gil decisions.
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