Fee Clause Interpretation: Easement Language Only Referencing “Costs And Expenses Of Defense” Arising From The Easement Properly Found Not To Encompass Attorney’s Fees

Failure To Reference Attorney’s Fees Was Fatal To Fee Recovery.

            Draftsmanship, draftsmanship, draftsmanship is the theme of the case we next post on, Smith v. Guillosson, Case No. B322717 (2d Dist., Div. 2 Jan. 30, 2024) (unpublished). 

            Plaintiff/cross-defendant prevailed on a patio and a walkway easement dispute where there were clauses indicating that the losing party adjacent neighbor “agrees to pay for any and all liability or damages including costs and expenses of defense” arising from use of the easements.  Prevailing party moved for attorney’s fees, with the lower court tentatively awarding $462,714 in fees (yes, you read that right) but then ultimately denying fees altogether because the easement language did not encompass attorney’s fees in a first-party situation.

            The 2/2 DCA affirmed.  Attorney’s fees and other expenses of litigation, whether termed as costs, disbursements, outlays, or something else, are mutually exclusive, such that costs do not include attorney’s fees.  The easement language did not expressly address attorney’s fees, with no contractual implication proper.  Fee denial affirmed.