Big Practice Tip—Make Sure Contractual Predicate Is Provided For Motion In An Evidentiary Sense.
Century Quality Management, Inc. v. JMS Air Conditioning and Appliance Service, Inc., Case No. B255326 (2d Dist., Div. 7 Jan. 21, 2015) (unpublished) is a very good decision offering an important practice tip for a fee claimant—make sure that you provide an admissible evidentiary basis for showing the contract on which fee entitlement is based.
In this one, a project manager sued a subcontractor on a variety of theories, including breach of warranty, with the subcontractor eventually prevailing. Subcontractor moved for $13,507.50 in fees under Civil Code section 1717, a motion which was denied.
The appellate court affirmed. Although finding that the breach of warranty claim was certainly “on the contract” for fee recovery purposes, subcontractor never submitted admissible proof of the contract with the fees clauses such that the failure of proof was fatal.
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