Estoppel/Section 1717: Contract Only Allowing For Recovery Of Costs, Not Specifying Attorney’s Fees, Did Not Give Rise To Fee Recovery

 

However, Prevailing Party Did Get Routine, Non-Fee Costs Based on Waiver/Inadequate Record on Appeal.

     In Yamtob v. Alon, Case No. B247453 (2d Dist., Div. 5 Dec. 31, 2013) (unpublished), plaintiff lost a dispute to defendant/cross-complainant, who certainly obtained a net recovery judgment against plaintiff arising out of a diamond transaction. (Fitting over the Holidays, isn’t it?) The trial court also awarded defendant both routine costs and attorney’s fees in the final judgment, prompting an appeal by plaintiff.

     Plaintiff did well to appeal the fee award.

    The routine costs award to defendant was sustained, because plaintiff never objected to the award and the absence of a reporter’s transcript at the costs hearing made it impossible to show that any error was committed.

     The fee issue was different. Although many times the absence of a reporter’s transcript of a fee hearing can be fatal, not so, according to the appellate court, where the contract was unambiguous on fee entitlement. Here, the operative contract only talked about a payback of “all the costs incurred.” The appellate court concluded there is a key difference between fees and costs, such that attorney’s fees are generally not included as civil action “costs.” (Benson v. Kwikset Corp., 152 Cal.App.45h 1254, 1279 (2007).)

     That left defendant with arguing plaintiff was “judicially estopped” because plaintiff claimed fees under the same contract in his complaint, interrogatory answers, and trial opening argument, citing International Billing Services, Inc. v. Emigh, 84 Cal.App.4^th 1175 (2000) as support. The problem here is that Emigh has even been disavowed by other decisions out of the Third District from which it stemmed. (M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One, 111 Cal.App.4^th 456, 467 (2007); Bear Creek Planning Committee v. Ferwerda, 193 Cal.App.4^th 1178, 1187-1188 (2011); Brittalia Ventures v. Stuke Nursery Co., Inc., 153 Cal.App.4^th 17, 28-31 (2007).)

     So, the costs award survived but the fee award went POOF!, including the appellate directive that each side bear their respective costs on appeal.