. . . . If Not, You May Lose Where A Sole Missing Documentary Page Is The Basis For A Fee Recovery.
This next case is a real ouch! Not just a puncture wound, but a real wowie.
In short, the plaintiff loaned money under a promissory note and obtained a $1 million compensatory award against the borrower defendant. The note apparently had a fees clause, although a contemporaneous pledge agreement also had a fees provision. Plaintiff moved to recoup $337,692.50 in attorney’s fees for the win under the note, but the trial judge denied the request. The reason? The note submitted to the lower court did not have a fees clause in it, because the second page was missing from the submission before the superior court.
The appellate court affirmed the fee denial in Segal v. Shovlin, Case No. E062581 (4th Dist., Div. 2 Apr. 12, 2016) (unpublished). The submission of the note did not include a page with the fees clause, and plaintiff only prevailed on the note, not the pledge agreement which had a narrow fees clause which only applied if a litigant prevailed under the pledge agreement (which did not happen). The Segal court found that the lower court did not have to consider the full version of the note introduced at trial (which presumably had the fees clause) when it came time to entertain the later fee motion. Although plaintiff’s attorney did move for reconsideration under CCP section 1008 (a request denied by the trial court), the reviewing court determined that there was a lack of reasonable diligence and the lower court was not required to treat the motion as one for excusable neglect under CCP section 473. Fee denial affirmed; and, again, we say, ouch!
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