Original Judgment Creditor Had Satisfied Mediation Requirement In The Parties’ Fees Provision, And Defendants Failed To Raise Their Challenges To Specific Billing Entries Before The Trial Court Despite A Continuance To Allow Them To Do So.
Plaintiff buyer entered into a Purchase Agreement with defendant sellers for the purchase of sellers’ home. The Purchase Agreement contained an attorney fees provision allowing the prevailing party to obtain fees if that party had mediated before filing a lawsuit. When sellers tried to back out of the sale, buyer sued – obtaining a judgment that included attorney fees.
Seven years later, buyer assigned his interest in the judgment to his son who filed a new lawsuit against sellers to enforce the judgment. Sellers unsuccessfully sought bankruptcy protection, and another judgment was entered against them two years later – ordering them to convey the home and to pay interest on the original judgment. Sellers then unsuccessfully appealed the new judgment and the order granting interest. Afterward, the parties returned to the trial court where son was awarded attorney fees based on the fee provision in the Purchase Agreement – $524,149.50 for fees incurred in non-bankruptcy proceedings, and $85,030.50 for fees incurred in sellers’ attempted bankruptcy.
Sellers appealed in Ko v. Liang, Case No. B300550 (2d Dist., Div. 8 March 26, 2021) (unpublished) – raising two challenges to the fees awards. First, sellers argued son was not entitled to fees because he had failed to mediate before filing the lawsuit. Second, sellers claimed son had not met his burden of proof as to the amount of fees incurred in the bankruptcy proceedings.
The 2/8 DCA affirmed. The panel found the mediation requirement had been met because fees were awarded in the original judgment and sellers raised no issue regarding entitlement at that time. As to the burden of proof regarding the reasonableness of fees incurred in the bankruptcy proceeding, the panel concluded that burden had shifted to sellers once the trial court had awarded the fees. The trial court had continued the hearing on son’s request for fees to allow sellers to brief specific bases for reducing the fees, but they failed to do so, and sellers’ appellate briefing including asserted examples of inappropriate billing entries was “too little too late.” Sellers failed to meet their burden of proof on appeal.
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