Indemnity, Equity: Trial Judge Properly Denied Substantial Fees To Prevailing Party Where Contractual Clause Was Indemnity Clause And New Fee Entitlement Arguments Were Presented In Supplemental Briefing Beyond What Was Granted By Lower Court

Supplemental Evidence Was Properly Not Considered In The Trial Judge’s Discretion.

            If the lower court grants you supplemental briefing, make sure you do so in line within the scope of the supplemental briefing allowed by the trial judge. MetLife Securities, Inc. v. Brandt, Case No. B282949 (2d Dist., Div. 3 Dec. 18, 2018) (unpublished) demonstrates that a motion will be denied where supplemental briefing exceeds what was authorized.

            In this particular situation, cross-complainants did prevail, filing a motion to recover attorney’s fees based on a contractual clause which was an indemnity rather than a fees clause and offering no support as to the reasonableness of the lodestar request/counsel’s hourly rates. The lower court’s tentative was to deny on this basis, but it did allow them supplemental briefing to support the amount of the fee request. Cross-complainants fired their counsel and replaced with new counsel which filed large supplemental papers containing new fee entitlement bases and proof to support a $2.3 million fee request. The lower court denied fees altogether, finding the supplemental papers were outside of what it authorized.

            The appellate court affirmed. The supplemental papers effectively abandoned reliance on the indemnity provision as a fee predicate, and the lower court did not abuse its discretion in refusing to consider supplemental entitlement arguments not raised earlier and which exceeded the scope of what was discretionarily allowed to be filed in the first place.