Section 1717: Where Losing Party Took The Position In His Complaint And Summary Judgment Opposition That There Was A Contract, He Was Properly Hit With $178,378.50 In Contractual Attorney’s Fees

However, A Litigant Which Was Not A Party To The Contract, Had A $97,278.50 Fee Award Reversed.

            If you are a litigant and take the position that there was a contract in a complaint and in opposing a summary judgment motion, you better stick with that position.  Courts will not look kindly to shifting to the perspective there was no contract in order to avoid contractual attorney’s fees under Civil Code section 1717 at a subsequent juncture of the litigation.

            That is what happened in Nguyen v. Cataldo, Case Nos. B302412/B303186 (2d Dist., Div. 1 Nov. 24, 2020) (unpublished).

            There, a plaintiff seeking to enforce a right of first refusal claimed there was a contract with such right, but he lost based on a summary judgment motion brought by the prevailing defendant.  Plaintiff had taken the position in his complaint and in his summary judgment opposition there was a contract.  The lower court awarded contractual fees in the amount of $178,378.50 to defendant and against plaintiff, as well as granted fees against a non-party to the contract in the amount of $97,278.25 (with the non-party fee award reversed on appeal).  In opposing the fee motion, plaintiff shifted gears and claimed there was no contract.

            No way, said the appellate court.  A litigant cannot back away from “there was a contract” position in order to simply avoid fees after taking a radically divergent position on the merits.  Beyond that, even in the section 1717 context, courts have allowed a contractual fee award even in cases where the alleged contract was void ab initio.  (California-American Water Co. v. Marina Coast Water Dist., 18 Cal.App.5^th 571, 579 (2017).)