205 Cal. App. 4th 954
Cal. Ct. App.2012Background
- Toro, a general contractor, hired Pavement as a subcontractor on a City of Oxnard roadway project.
- Ali sued Toro; Toro cross-claimed against Pavement for defense and indemnity under section 11 of the subcontract.
- Pavement cross-claimed for implied contractual indemnity and equitable indemnity; Ali added Pavement as a defendant.
- Pavement prevailed on summary judgment against Ali’s complaint and Toro’s cross-claim, and was deemed the prevailing party; Pavement dismissed its own cross-claim.
- Pavement sought attorney’s fees under section 13; the trial court denied, finding section 13 inapplicable to third‑party indemnity disputes.
- On appeal, the court reversed, holding section 13 authorizes fees in “any dispute resolution” relating to the Subcontract, including indemnity disputes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does section 13 authorize fees for indemnity disputes under the Subcontract? | Pavement: section 13 covers any dispute resolution arising under/relating to the Subcontract. | Toro: section 13 is limited to arbitration or disputes related to payment/work performance, not third‑party indemnity. | Yes; section 13 covers broader dispute resolution, including indemnity disputes. |
| Is section 11's indemnity provision controlling the fee award? | Pavement: section 13 operates independently of section 11 and authorizes fees. | Toro: section 11 governs third‑party claims and fee recovery is not addressed by section 13 for such claims. | No; section 11 does not preclude fee recovery under section 13. |
| Does Pavement’s dismissal of its cross-complaint affect fee entitlement? | Pavement: fee entitlement arises from section 13, not from maintaining the cross-claim. | Toro: dismissal could bar fee recovery. | Dismissal does not defeat fee recovery under section 13. |
Key Cases Cited
- Baldwin Builders v. Coast Plastering Corp., 125 Cal.App.4th 1339 (2005) (standalone indemnity-fee provision can authorize fees despite general indemnity clause)
- M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One, 111 Cal.App.4th 456 (2003) (fees may be awarded where prevailing on residual indemnity claims via specific provisions)
- Electronic Equipment Express, Inc. v. Donald H. Seiler & Co., 122 Cal.App.3d 834 (1981) (trustworthiness of subcontract authenticity can be established for fee issues)
- Sessions Payroll Management, Inc. v. Noble Construction Co., 84 Cal.App.4th 671 (2000) (de novo review of legal basis for attorney’s fees)