Allocation, Fee Clause Interpretation, Section 998: Defendant Prevailing Under Fees Clause Entitled To Unapportioned Fee Recovery, Another Plaintiff Not Entitled To Fees Given Failure To Show Fees Clause Was Part Of Contract, And Defendant Properly Denied

 

Olio Of Fees/Costs Issues Confronted By 4/1 DCA In Unpublished Decision.

About olio:

Is there that o're his French ragout
Or olio that wad staw a sow,
Or fricassee wad mak her spew
Wi' perfect scunner,
Looks down wi' sneering, scornfu' view
On sic a dinner?

     -- Robert Burns

     Cosco Fire Protection, Inc. v. Siry Investments, Case No. D062427 (4^th Dist., Div. 1 Feb. 20, 2015) (unpublished) was a 40-page unpublished decision dealing with fees or costs requests by three separate parties. The Fourth District, Division 1 affirmed the trial court’s determinations across the board.

     One defendant obtained a victory against plaintiffs for a contractual/negligence suit, recovering $51,324.64 in damages out of a dispute over structural engineering services provided to a certain real estate project. Prevailing defendant moved for $347,820 in fees under a fees clause relating to “interpretation or enforcement” of provisions in the agreement between the parties. The trial judge granted all of the requested fees, a determination affirmed on appeal. Even though the fees clause was narrower than “arising out of” language, the lower court could conclude the contract and tort claims were intertwined such that no apportionment was necessary for all of the work. Plaintiffs tried to argue there was no evidentiary foundation for the requested fees, because the lead trial attorney died of cancer such that his fee submissions were not authenticated as business records by his partner who picked up the case after he died. The appellate court found that the dead partner had made detailed time entries, and the picking-up partner could authenticate his billing practices based on their 12 year partnership so as to show reliability for purposes of the hearsay exception.

     Another plaintiff was bummed that the trial court denied fees to plaintiff, as a prevailing party, based on the conclusion no contract, containing a fees clause, was established. The appellate court affirmed because there was a conflict whether General, Terms and Conditions containing the fees clause was ever “incorporated” into the eventual conflict, with the proof needing to be clear and unequivocal—which it was not. (Williams Constr. Co. v. Standard-Pacific Corp., 254 Cal.App.2d 442, 454 (1967).)

     Lastly, a disgruntled defendant wanting certain costs under a rejected CCP § 998 offer was rebuffed because the joint offer to plaintiff was not apportioned. Given there was no unity of interest between the two plaintiffs, the offer was too uncertain as a matter of law.