2/6 DCA Has A Good Discussion Of How Defense Should Proactively Prevent Fees From Being Awarded As Part Of A Routine Contract Breach Case Where Fees Should Be Considered As Post-Judgment Costs By The Trial Judge.
Norholm v. Cirovic, Case No. B308563 (2d Dist., Div. 6 Apr. 22, 2021) (unpublished) is an interesting case where a lower court granted a new trial because the jury awarded attorney’s fees as damages in a breach of contract action, but the appellate court reversed because of what the defense did not do as far as trial testimony and requesting a necessary instruction.
Here, the jury apparently awarded $20,000 in fees as part of a contractual breach award to plaintiff, after the defense failed to object to testimony about incurred fees and did not request CACI No. 3964 [a jury instruction which reads “You must not consider, or include as part of any award, attorney fees or expenses that the parties incurred in bringing or defending this lawsuit.”]. However, the trial judge granted a new trial based on two juror declarations indicating that fees were awarded as part of the contract verdict.
The 2/6 DCA reversed. Although one of the juror declarations was inadmissible under Evidence Code section 1150(a), the other juror declaration showing fees were added involved objective, overt actions which was admissible. (Krouse v. Graham, 19 Cal.3d 59, 80-81 (1977).) The problem was that the inclusion of fees was an error essentially invited by the defense in failing to object to the fee testimony and not requesting the CACI No. 3964 instruction. Given those circumstances, the jury was within its power to award attorney’s fees to make plaintiff whole from a benefit-of-the-bargain damages perspective. New trial grant reversed.
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