Pretty Much a Discretionary Apportionment Process, Concludes DCA In This One.
Anyone following our blog (blawg--someone needs to explain the difference to me, although co-contributor Marc is the likely culprit or victim who will do so) will know that apportionment/allocation of fees in fee entitlement areas is a discretionary function where some claims were won and lost, unless they were deemed interrelated. (Mike, see note below).
This next case we review confirms that very much.
In Borrelli v. Scott, Case No. D062904 (4th Dist., Div. 1 Oct. 8, 2013) (unpublished), one of landlord’s alleged “alter egos” (defendant) won a defense verdict in a lease dispute but was found liable for property damages under a tort claim. “Alter ego” defendant moved for posttrial attorney’s fees based on a fees clause in the lease. The lower court granted defendant $11,650.99 for his defense of the contract action, but did an apportionment that went this way: of the $58,255 total spent in defending the case, only two-thirds was allocated because his dismissed wife consumed one-third of expenses and, from this, another 30% needed to be apportioned (out of the 2/3ds share) because defendant had not shown that the alter ego claims were common to the contract and trespass claims.
“Alter ego” defendant appealed; “alter ego” defendant lost under the discretionary apportionment standard applicable on appeal.
Because the alter ego issue was not common to both the contract and trespass claims, apportionment was in order and the actual division awarded was no abuse of discretion. Although we could say more, that was the end result in this case.
Note: “Blog” is short for “weblog” – a website to which one posts notes, comments, and reflections, with liberal use of “hyperlinks.” A “blawg” is a legal blog.
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