Also, Fee Clause With “Incurred” Language Means That Fees Did Need To Be Incurred.
The result in Korff v. Goodrich, Case No. A160917 (1st Dist., Div. 2 Oct. 27, 2021) (unpublished) shows the wisdom in the saying “pigs get fat, hogs get slaughtered,” coined by Rubbery Figures, a satirical rubber puppet series screened in Australia in the 1890s.
What happened in this dispute between caregiver and deceased husband’s daughter, which led to a will contest and an eventual settlement agreement with a fees clause, is that caregiver took position inconsistent from the settlement and eventually lost three appeals after adverse decisions were made at the trial court stage. The appellate court earlier determined that the appeals were frivolous, awarding fees as sanctions to the main prevailing party’s attorney in the sum of $49,875 (but totaling $91,084 as to other attorneys involved)—with the main attorney indicating to the appellate court that this amount represented 142.5 hours at $350/hour. Then, before the lower court, the main attorney sought another $103,000 in compensation for additional hours at a $675 hourly rate.
The lower and appellate courts did not buy it, with the reviewing court affirming the lower court’s denial of the requested additional compensation. After all, main attorney’s “additional ask” contradicted representations made to the appellate court such that he was judicially estopped from claiming otherwise. Also, the fee submissions raised the specter that there was duplicative work by three attorneys (“too many cooks in the kitchen”). Finally, attorneys asking for additional fees did not show that their client actually “incurred” fees, although such a requirement in a fee agreement is something which must be satisfied. (San Diego Partnership v. San Dieguito River Valley Regional etc. Authority, 61 Cal.App.4th 910, 915, 919 (1998).
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