Appellant’s Construction Would Thwart Settlement Efforts.
Appellant in Wash v. Wash, Case No. F077486 (5th Dist. Mar. 11, 2021) (unpublished) earlier appealed an order enforcing a settlement agreement with a contractual fees clause, an appeal that he lost. Respondent requested appellate fees of $18,216.98, with the trial judge awarding $9,321 against appellant. Although the fee award was affirmed on appeal by the Fifth District, appellant made an argument that section 1717 preclude fees where an action was achieved through a “dismissal pursuant to a settlement of the case.” Aside from the fact that no dismissal of this sort was of record in the superior court, the appellate court balked at such an interpretation where parties agreed that the lower court would retain jurisdiction under CCP § 664.6 to supervise the settlement and award fees to enforce the settlement. It found that an action cannot be characterized as “dismissed pursuant to a settlement of the case” where the parties are back in court arguing over the settlement. Here is the analysis with respect to rejecting this argument: “[Appellant’s] contrary statutory interpretation creates a legal barrier that thwarts the intention of parties who include any attorney fees provision in their settlement agreement with the expectation that the party who prevails in a proceeding to enforce the agreement will not be out of pocket for the attorney fees incurred in the enforcement proceeding. Such a barrier would undermine settlements, rather than promoting them as a method of finally resolving civil disputes.”
BLOG HELLO—The winning attorney for Respondent was Daniel L. Harralson, who practices in Fresno. Dan helped in the appellate clerk’s office at the Fifth District while he was in law school and while co-contributor Mike was a clerk to George Zenovich at the time. Congratulations, Dan!
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