Fee Clause Interpretation: Attorney Raising Release As An Affirmative Defense To Client Contract/Tort Complaint Not Entitled To Prevailing Party Fees Under Terms Of Fees Clause

Mountain Air Supported Denial Of Fees To Former Attorney.

            In Thomas v. Lin, Case Nos. B291508/B292496 (2d Dist., Div. 2 Oct. 13, 2020) (unpublished), clients brought contract/tort actions arising from defendant attorney’s professional misconduct.  Clients entered into a written settlement release agreement, with one containing a fees clause encompassing “an action brought to enforce or defend the terms, conditions, and provisions of this agreement.”  Attorney obtained summary judgment based on raising the release agreement as an affirmative defense, and he then moved to recover $71,440 in attorney’s fees clients.  The lower court denied the fees motion, prompting an appeal by clients.  The 2/2 DCA affirmed.  Under Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, 3 Cal.5^th 744, 753 (2017), the fees contractual language did not extend to assertion of an affirmative defense because it is not tantamount to an action.  The appellate panel said that the result might well have been different had attorney brought a cross-complaint for declaratory relief to sustain the validity of the release.