Appealability, Equity, Fee Clause Interpretation: Four California Intermediate Appellate Courts Address Diverse Attorney’s Fees Issues

Galindo v. Polakoff, Case No. D071555 (4^th Dist., Div. 1 Nov. 29, 2017) (Unpublished)—Equity/Offsets.

            In this one, the Court of Appeal affirmed an offset determination by the trial judge where it did grant fees to one party prevailing but even after an offset conclusion was reached.  Must reading for practitioners facing offset issues under Code of Civil Procedure section 431.70, showing that a merits offset may still not determine who ultimately prevailed—“There is nothing in section 431.70 that supports [appellant’s] interpretation to equate a subsequent prevailing party attorney fees award with the relief on the underlying dispute, through allowing a setoff amount claimed pursuant to cross-demands.”  (Slip Op., at p. 25.)

R.W.L. Enterprises v. Oldcastle, Inc., Case No. D070189 (4^th Dist., Div. 1 Nov. 29, 2017) —Equity/Contractual Integration.

            This second case really came down to whether a subsequent credit application, entered into about nine years later (with a potential attorney’s fees clause), should be interpreted as integrated (or, in essence, incorporated by reference) into an earlier contract.  The trial judge bought into the integration argument, awarding $180,120 to a party successfully defending a breach of contract claim.  This result got reversed as a matter of law.  There was too much of a temporal gap to allow for an integration analysis, whether under Civil Code section 1717 or the UCC.  There is a great discussion for practitioners on the “battle of the forms” issue and the extent to which Boyd v. Oscar Fisher Co., 210 Cal.App.3d 368 (1989) should apply under the circumstances (or is still good law on certain aspects of its reasoning).

Throckmorton v. Soria, Case No. A144748 (1^st Dist., Div. 2 Nov. 29, 2017) (Unpublished)—Appealability.

            The third decision is a case where—alas!—the appellant failed to appeal from a separately appealable fee order and failed to provide motion papers/fee hearing reporter’s transcript.  The appeal was doomed for two independent reasons—failure to appeal a separate appealable order and failure to provide an adequate record.

2437 Piedmont Avenue, LLC v. Schwartz, Case No. A150274 (1^st Dist., Div. 2 Nov. 29, 2017) (Unpublished)—Fee Clause Interpretation.

            This last one is where an owner/landlord sued for fraud, but dismissed its action, with tenant then moving for attorney’s fees under a lease fees clause.  The trial court denied the fee request, which was sustained on review.  The problem was that the tort claims were not brought to “enforce” the lease such that the narrow fees clause language did not provide a basis for fee entitlement.