Indemnity: $129,760.50 In Attorney’s Fees For Pursuing Enforcement Of Judgment In Third Appeal Properly Awarded To Litigant Under CCP § 1038

 

Technical Arguments in Fourth Appeal Rejected by Reviewing Court.

     Jeld-Wen, Inc. v. Southcoast Sheet Metal (Jeld-Wen IV), Case No. D062591 (4^th Dist., Div. 1 Feb. 11, 2014) (unpublished) is the fourth appeal in this slugfest where Jeld-Wen, hit with a $1.7 million judgment by Pardee for installing leaky windows, sought indemnity from other defendants, to no real eventual positive results. CCP § 1038 allows a court to award attorney’s fees to a defendant winning an indemnity claim upon a summary judgment if it determines that the proceeding was not brought in good faith and with reasonable cause. In a third appeal (Jeld-Wen III), the reviewing court had rejected a lot of challenges brought by Jeld-Wen to a prior $210,000 fee/costs award under section 1038, especially determining Jeld-Wen had a lack of reasonable cause to pursue the action against Southcoast after September 7, 2006.

     The lower court, after the third appeal, awarded Southcoast another $129,760.50 in section 1038 fees, which prompted the fourth appeal.

     Jeld-Wen lost its further challenges. First, the appellate court dismissed the idea that an additional summary judgment grant was required; after all, Southcoast had already reaped this victory such that further appellate defending fees were in order to uphold the prior summary judgment grant. Second, Jeld-Wen argued that only a frivolous appeal could give rise to further section 1038 costs, but existing case law dashed this contention. (Bosetti v. U.S. Life Ins. Co. v. City of N.Y., 175 Cal.App.4^th 1208, 1226 (2009).) Third, the fees claims were reasonable—work on seeking Civil Code section 1717 fees was intertwined with the section 1038 fee requests and, despite the existence of any case exactly on point, there was no reason that fees/expenses pursued in enforcing the judgment should be disqualified from being considered as “defense costs” under 1038.

     For purists, since Jeld-Wen I did not involve fee issues, here are our posts to the prior Jeld-Wen appellate decisions: Jeld-Wen II – February 20, 2009, and Jeld-Wen III – November 20, 2011.

 

Buckets to catch leaks.  Jack Delano, photographer.  1940.  Library of Congress.