Fee Clause Interpretation/Section 1717/Nonsignatories: Individual Non-Signatory Plaintiff Hit With Fee Exposure Based On Breadth Of Fee Clause

 

 

$370,850 Fee Award Affirmed On Appeal.

 

     In Bribiesca v. Pacific Perfusion, Inc., Case No. D063256 (4^th Dist., Div. 1 Sept. 17, 2014) (unpublished), a losing individual plaintiff appealed a contractual fees award of $370,850 in favor of the defense. Plaintiff’s appeal did not succeed in reducing the award.

     The first argument was a due process contention that individual plaintiff did not have any warning fees might be assessed against plaintiff. No, because the original judgment did give proper notice.

     Individual plaintiff decried the fee award because plaintiff was not a signatory to the operative contract. However, the breadth of the fees clause would have allowed plaintiff non-signatory to recover fees, because it was worded this way: “If any litigation is commenced between Partners or their personal representatives concerning any provision of this Agreement or the rights and duties of any person in relation thereto …”, then the prevailing party gets fees. The “personal representatives” language was broad enough to justify fee exposure against the appealing individual defendant, so the award was affirmed on appeal under Civil Code section 1717 non-signatory/third-party beneficiary cases.

Comments

[calattorneysfees]

Dear Reader: Good catch ! We've changed the title of the post.

[Real American]

Title should be nonsignatory Plaintiff, rather than defendant.