99 Cal. App. Supp. 3d 12 | Cal. App. Dep’t Super. Ct. | 1979
Opinion
Plaintiffs sued for breach of a contract whereby defendant agreed to sell them certain real property. The parties agree that a contract was entered into and that it provided “In the event that either party shall be required to institute legal action to enforce the terms of
While one seeking to recover damages pursuant to a contract must ordinarily plead and prove the contract, his own performance, the breach and damages resulting therefrom, in at least one case an exception has been created in respect of a contractual provision to pay attorneys’ fees, such as is here involved. In reasoning based upon Civil Code section 1717, the Court of Appeal in Beneficial Standard Properties, Inc. v. Scharps (1977) 67 Cal.App.3d 227, 231-232 [136 Cal.Rptr. 549] determined that the prevailing party in litigation respecting a contract providing for mutual rights to attorneys’ fees has “an option” either to plead and prove such fees as damages under the contract or to claim them as costs.
Plaintiffs, having submitted their right to attorneys’ fees to the court as damages under the contract, exercised their option and the alternative of claiming additional fees as costs was no longer available to them.
The order denying defendant’s motion to tax costs is reversed with directions to grant said motion by striking from the plaintiffs’ cost memorandum item 20: “Attorneys’ fees as costs pursuant to Civil Code § 1717 $4222.65.”
Appellant to recover her costs on appeal.
Cole, P. J., and Saeta, J., concurred.
But see Mabee v. Nurseryland Garden Centers, Inc. (1979) 88 Cal.App.3d 420, 427 [152 Cal.Rptr. 31], pointing out that the effect of Civil Code section 1717 is to convert a unilateral contractual right to attorneys’ fees to a bilateral one and that said section does not “convert every contractual entitlement of a prevailing party to attorney fees into a statutory right recoverable only as a part of costs.”
We discuss plaintiffs’ right to further attorney fees under Beneficial Standard Properties, Inc. v. Scharps, supra, as under that case plaintiffs’ rights appear strongest although still unavailing. We are of the view, however, that the correct rule relating to attorney fees under a “prevailing party” or mutual clause is stated not in Beneficial Standard, but in Mabee v. Nurseryland, supra, and T.E.D. Bearing Co. v. Walter E. Heller & Co. (1974) 38 Cal.App.3d 59 [112 Cal.Rptr. 910]. The latter two cases hold, contrary to Beneficial Standard, that Civil Code section 1717 applies only to unilateral fee clauses.
If plaintiffs were disappointed in the amount of attorneys’ fees awarded as damages, their remedy was a motion for a new trial on the issue of damages.