 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Davila v. Nickell10/26/2005
fee award must be reversed if the judgment is reversed. We agree. (See Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.) Although we are reversing the judgment only as to the Davila children, the entire attorney fee award must be reversed because the sole basis for the attorney fee award was the parties' contingency agreements and the award was a collective amount to all plaintiffs. On this record, we cannot say with any reasonable certainty that the court would have awarded the same amount without the Davila children prevailing in their action.
On remand, the court should first conduct a retrial on the Davila children's standing to bring a wrongful death cause of action. The court should then reconsider the amount of the attorney fee award depending on the outcome of the retrial.
B. Attorney Fees and Sanctions to Rodriguez
As a prevailing defendant, Rodriguez moved for attorney fees and sanctions against his co-defendants (the judgment defendants). The court awarded Rodriguez $80,157 in attorney fees under section 3709 and Civil Code section 1717. The Louies challenge the statutory grounds for this award.
Rodriguez does not attempt to justify the fees under section 3709. We agree this statute is inapplicable. Section 3709 permits fees only to a prevailing employee of an employer who did not secure workers' compensation insurance. Rodriguez is not a prevailing employee.
We also conclude the award cannot be supported under Civil Code section 1717. Civil Code section 1717 governs contractual attorney fee provisions, and makes reciprocal any attorney fee provision regardless of the wording of the contractual provision. (See Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128.) Attorney fees under Civil Code section 1717 are generally awarded only when the "lawsuit is between signatories to the contract." (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 379-380.) But a nonsignatory prevailing party may recover attorney fees if he or she later becomes a party to the contract through assignment or otherwise. (See Erikson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1087.) Further, "a party is entitled to attorney fees under section 1717 'even when the party prevails on grounds the contract is inapplicable, invalid, unenforceable or nonexistent, if the other party would have been entitled to attorney's fees had it prevailed.'" (Hsu v. Abbara (1995) 9 Cal.4th 863, 870; Santisas v. Goodin (1998) 17 Cal.4th 599, 611.)
As he did below, Rodriguez argues he was entitled to Civil Code section 1717 attorney fees because (1) the other defendants (Rumjahn and Nickell) testified at trial that he became a party to a contract entitled "Construction Fund Control Agreement" (Control Agreement) through their assignment to Rodriguez of the Sun Villa construction contract; and (2) the construction contract and/or the Control Agreement contains an attorney fees provision.
The second part of this argument is not supported by the factual record. Neither the construction contract nor the Control Agreement contains an attorney fees provision. In seeking attorney fees in the trial court, Rodriguez argued that the Control Agreement incorporated a promissory note that contained an attorney fees provision. However, on our review of the Control Agreement, there are no provisions in the agreement that incorporate this note. At most, the agreement refers to the note and deed of trust, but there is no provision stating that an assignment of the Control Agreement transfers the rights and obligations of the note. The other defendants presented no evidence, nor asserted any arguments, that Rodriguez became a party to the pro
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 California Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|