Tenant’s Probability Theory Did Not Do Well At Either Trial Or Appellate Levels.
Ida B. Wells Housing Project. Meeting of the tenants. Chicago, Illinois. April 1942. Jack Delano, photographer. Library of Congress.
In Doll v. Ghaffari, Case No. B272384 (2d Dist., Div. 4 Oct. 25, 2017) (unpublished), tenant did prevail against landlord on certain subletting disputes (two unlawful detainer actions and a subsequent tenant civil action), with tenant gaining some substantial compensatory damages after some appeals. Although clearly a prevailing party, tenant moved for attorney’s fees of $308,649 under the contractual claims which survived all of the prior trial/appellate court proceedings. The trial judge awarded nothing.
Tenant did no better on appeal. The main flaw was tenant’s failure to produce a contract with a fees clause. Instead, tenant relied on subsidiary “custom and practice” proof asserting that it was standard practice for residential areas in the venue to contain fees clauses, further bolstered by probability theory that 90% of the leases overall in the lease venue contained these clauses. Neither the trial nor appellate court bought this somewhat mathematically-oriented argument. Given that there was no evidence of the “data base” of leases involved, the probability argument was viewed as sheer speculation. Tenant argued that landlord’s check of a box for fees in an unsuccessful eviction action estopped landlord from denying fees were recovered, but this did not work because (1) landlord did not prevail so as to invoke judicial estoppel, and (2) the trial court credited that landlord had mistakenly checked a box claiming fees when there was no entitlement to them.
BLOG FAVORITE PART OF DECISION—Tenant’s attorney “argued there are four rules in every residential lease: ‘You can’t have a dog; you can’t have a cat; you are not getting your deposit back; and if you get in a fight with your landlord, you’re paying its attorney fees.’ The [lower] court replied that for ‘every one of those statements, I’ve seen the opposite.’”