Fee Recovery Barred By Judicial Estoppel—Plaintiff Classified Claims In Tort, Not Contract, Such That No Fee Recovery Allowable Under Either California Or Texas Laws.
This next case does demonstrate the complexity that our state appellate courts have to wade through, even in unpublished opinions, to adjudicate appeals from fee awards where conflicting state laws may be at issue. Brighton Collectibles, Inc. v. AIF Corp., Case No. B289327 (2d Dist., Div.8 Mar. 18, 2020) (unpublished) is just such a case.
In this one, plaintiff asserted claims for breach of the warranty of infringement in copyright matters against defendant, winning a $1.267 million verdict which was reduced substantially through an apportionment of fault to multiplier suppliers making prior settlements. In the end, plaintiff only garnered a positive damages recovery of a little under $100,000, 7.89% of the total recovery.
Plaintiff moved for attorney’s fees (the amount was not specified in the opinion), but the trial judge denied them in entirety. This prompted plaintiff to appeal both the merits and fee denial. Both were unsuccessful.
The fee denial was affirmed on judicial estoppel principles. Although there was a conflict of law issue (did California or Texas law govern), it did not matter in the end. Plaintiff had taken the position that the claims were in tort, not contract, winning a denial of a summary judgment motion on that basis. Given that tort claims did not give rise to fee recovery under either California or Texas law, that cemented the correctness of the fee denial by the lower court.
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