attorney fee clause in California

2026The attorney fee clause at issue here is substantially similar to other attorney fee clauses that have been found broad enough to encompass both tort and contract claims. 12 In Santisas, the Supreme Court interpreted the following clause to cover tort claims: legal action “ ‘arising out of the execution of this agreement.’ ” (Santisas, supra, 17 Cal.4th at p. 607 .) “[W]here the language of the agreement broadly applies to ‘ “any dispute” ’ under it, the attorney fee clause encompasses any conflict concerning the effect of the agreement, including a tort claim.” (Miske v. Coxeter (2012) 204 Ca

2020(Santisas v. Goodin, supra, 17 Cal.4th at p. 610 .) Under section 1717, we must treat the attorney fee clause as providing for an award of fees to the prevailing party in the contract action.

2019It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract." ( Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338 , 1342, 5 Cal.Rptr.2d 154 .) It "is well settled that '... an action for fraud seeking damages sounds in tort, and is not "on a contract" for purposes of an attorney fee award, even though the underlying transaction in *651 which the fraud occurred involved a contract containing an attorney fee clause.' " ( Loube v. Loube (1998) 64

2019It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract." ( Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338 , 1342, 5 Cal.Rptr.2d 154 .) It "is well settled that '... an action for fraud seeking damages sounds in tort, and is not "on a contract" for purposes of an attorney fee award, even though the underlying transaction in *651 which the fraud occurred involved a contract containing an attorney fee clause.' " ( Loube v. Loube (1998) 64

2018It is true, as a general matter, that the terms of an attorney fee provision may be so narrow that they only apply to the signatories of the contract (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 896 [fee provision allowing fees in “‘any litigation between the parties hereto’”]), but the attorney fee clause here is not so narrow.

2018It is true, as a general matter, that the terms of an attorney fee provision may be so narrow that they only apply to the signatories of the contract (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 896 [fee provision allowing fees in “‘any litigation between the parties hereto’”]), but the attorney fee clause here is not so narrow.

2015(See Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1340 [ 5 Cal.Rptr.2d 154 ]; Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 425 [ 43 Cal.Rptr.2d 595 ]; Palmer v. Shawback (1993) 17 Cal.App.4th 296, 299 [ 21 Cal.Rptr.2d 575 ]; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160-161 [ 16 Cal.Rptr.2d 486 ].) Because the attorney fee clause in the lease expressly permitted recovery to either party in the event of a tort action, Gonzales cannot be denied recovery of attorney fees solely because she was successful in the tort portions of her lawsuit.” (Id. at p. 480, italic

2015(See Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1340 [ 5 Cal.Rptr.2d 154 ]; Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 425 [ 43 Cal.Rptr.2d 595 ]; Palmer v. Shawback (1993) 17 Cal.App.4th 296, 299 [ 21 Cal.Rptr.2d 575 ]; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160-161 [ 16 Cal.Rptr.2d 486 ].) Because the attorney fee clause in the lease expressly permitted recovery to either party in the event of a tort action, Gonzales cannot be denied recovery of attorney fees solely because she was successful in the tort portions of her lawsuit.” (Id. at p. 480, italic

2021Sherwood does not discuss the scope of the attorney fee clause in the contract with Vogele (see Mountain Air Enterprises, LLC. v. Sundowner Towers, LLC, supra, 3 Cal.5th at p. 751 ), nor does he cite authorities pertaining to the allocation or apportionment of attorney fees between tort and contract claims, which was the basis for the trial court’s 75 percent 34 reduction (see footnote 4, ante).

2020(Compare Gil, supra, 121 Cal.App.4th at pp. 742–745 & Exxess Electronixx, supra, 64 Cal.App.4th at p. 712 with Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263 , 274–276 (Windsor Pacific), disapproved of by Mountain Air, supra, 3 Cal.5th 744 .) Disagreeing with the narrower definition of action advanced by Gil and Exxess Electronixx, Windsor Pacific held “that an attorney fee clause providing for a fee award to the prevailing party in ‘any action or proceeding to enforce or interpret’ a contract applies not only where the plaintiff’s allegations in the complaint seek to enfo

2015(See Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1340 [ 5 Cal.Rptr.2d 154 ]; Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 425 [ 43 Cal.Rptr.2d 595 ]; Palmer v. Shawback (1993) 17 Cal.App.4th 296, 299 [ 21 Cal.Rptr.2d 575 ]; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160-161 [ 16 Cal.Rptr.2d 486 ].) Because the attorney fee clause in the lease expressly permitted recovery to either party in the event of a tort action, Gonzales cannot be denied recovery of attorney fees solely because she was successful in the tort portions of her lawsuit.” (Id. at p. 480, italic

2015(See Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1340 [ 5 Cal.Rptr.2d 154 ]; Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 425 [ 43 Cal.Rptr.2d 595 ]; Palmer v. Shawback (1993) 17 Cal.App.4th 296, 299 [ 21 Cal.Rptr.2d 575 ]; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160-161 [ 16 Cal.Rptr.2d 486 ].) Because the attorney fee clause in the lease expressly permitted recovery to either party in the event of a tort action, Gonzales cannot be denied recovery of attorney fees solely because she was successful in the tort portions of her lawsuit.” (Id. at p. 480, italic

2019It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract." ( Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338 , 1342, 5 Cal.Rptr.2d 154 .) It "is well settled that '... an action for fraud seeking damages sounds in tort, and is not "on a contract" for purposes of an attorney fee award, even though the underlying transaction in *651 which the fraud occurred involved a contract containing an attorney fee clause.' " ( Loube v. Loube (1998) 64

2019It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract." ( Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338 , 1342, 5 Cal.Rptr.2d 154 .) It "is well settled that '... an action for fraud seeking damages sounds in tort, and is not "on a contract" for purposes of an attorney fee award, even though the underlying transaction in *651 which the fraud occurred involved a contract containing an attorney fee clause.' " ( Loube v. Loube (1998) 64

2020(Compare Gil, supra, 121 Cal.App.4th at pp. 742–745 & Exxess Electronixx, supra, 64 Cal.App.4th at p. 712 with Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263 , 274–276 (Windsor Pacific), disapproved of by Mountain Air, supra, 3 Cal.5th 744 .) Disagreeing with the narrower definition of action advanced by Gil and Exxess Electronixx, Windsor Pacific held “that an attorney fee clause providing for a fee award to the prevailing party in ‘any action or proceeding to enforce or interpret’ a contract applies not only where the plaintiff’s allegations in the complaint seek to enfo

2015(Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 [ 17 Cal.Rptr.3d 420 ]; see Santisas v. Goodin (1998) 17 Cal.4th 599, 608 [ 71 Cal.Rptr.2d 830 , 951 P.2d 399 ].) “ ‘The Supreme Court has synthesized the applicable contract interpretation principles in the attorney fee clause context thusly; “ ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. [Citation.] Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citation.] The “clear and explicit” meaning of thes

2026Any conflict concerning the effect of the agreements gives rise to a right to an attorney fees award by the prevailing party.” (Thompson, supra, 112 Cal.App.4th at p. 337 .) Here, similar to the broad clauses in Maynard and Thompson, the attorney fee clause applies to “any dispute or proceeding arising hereunder.” This provision is broad enough to encompass the dispute between Velaro and LG regarding the proper forum for litigation, as the trial court correctly found.

2013Any conflict concerning the effect of the agreements gives rise to a right to an attorney fees award by the prevailing party.” (Thompson v. Miller (2003) 112 Cal.App.4th 327, 337 [ 4 Cal.Rptr.3d 905 ], citation omitted.) “[W]here the language of the agreement broadly applies to ‘ “any dispute” ’ under it, the attorney fee clause encompasses any conflict concerning the effect of the agreement, including a tort claim.” (Miske v. Coxeter, supra, 204 Cal.App.4th at p. 1259 .) Civil Code section 1717, subdivision (b) contains a definition of a prevailing party for the purpose of applying that secti

2014This remains largely a question of interpreting the written contract. [Citation.]” (Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 680 .) In determining whether the alleged third party beneficiary plaintiff would have been able to recover attorney fees had that party prevailed, this appellate division focuses on the language of the contract, specifically including the attorney fee clause, to determine whether the parties intended to extend to the purported third party beneficiary the specific right to recover attorney fees. “ ‘A third party should not be

2014Permitting a third party to enforce a covenant made solely to benefit others would lead to the anomaly of granting him a bonus after his receiving all intended benefit.’ [Citation.]” (Sessions Payroll Management, Inc. v. Noble Construction Co., supra, 84 Cal.App.4th at p. 680 .) The attorney fee clause in the 711 Colorado deed restriction states as follows: “In the event of any controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement or breach thereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, atto

2009(Shadoan v. World Savings & Loan Assn. (1990) 219 Cal.App.3d 97, 107 [ 268 Cal.Rptr. 207 ] (Shadoan); see also IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal.App.3d 451, 464 [ 185 Cal.Rptr. 341 ].) Such fees are properly awarded under section 1717 “to the extent that the action in fact is an action to enforce—or avoid enforcement of—the specific contract.” (Shadoan, supra, 219 Cal.App.3d at p. 108 .) An action for declaratory relief can be an action “on a contract.” (See City and County of San Francisco v. Union Pacific R.R.

2009(Shadoan v. World Savings & Loan Assn. (1990) 219 Cal.App.3d 97, 107 [ 268 Cal.Rptr. 207 ] (Shadoan); see also IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal.App.3d 451, 464 [ 185 Cal.Rptr. 341 ].) Such fees are properly awarded under section 1717 “to the extent that the action in fact is an action to enforce—or avoid enforcement of—the specific contract.” (Shadoan, supra, 219 Cal.App.3d at p. 108 .) An action for declaratory relief can be an action “on a contract.” (See City and County of San Francisco v. Union Pacific R.R.

2024The rescission of the Settlement Agreement, which contained a prevailing-party attorney fee provision, does not bar Morongo from recovering its reasonable attorney fees.1 “[A]n action for fraud seeking damages sounds in tort, and is not ‘on a contract’ for purposes of an attorney fee award, even though the underlying transaction in which the fraud occurred involved a contract containing an attorney fee clause. [Citation.] However, where the plaintiff's claim instead seeks rescission based on fraud, the courts have concluded such claim does sound in contract and permits the award of fees.” (Sup

2012(See Kachlon , at p. 348.) An action for fraud, however, “ ‘sounds in tort, and is not “on a contract” for purposes of an attorney fee award, even though the underlying transaction in which the fraud occurred involved a contract containing an attorney fee clause.’ ” (Loube v. Loube (1998) 64 Cal.App.4th 421, 430 [ 74 Cal.Rptr.2d 906 ].) In determining whether there is a prevailing party on the contract, “the trial court is to compare the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, t

2023This satisfies the first element as “involving” a contractual agreement.3 “Candidly, it is difficult to think of an action that is more likely to be characterized as an ‘action on a contract’ than one in which the party bringing the action explicitly seeks to have the subject contract declared void and invalid in its entirety.” (Eden Township Healthcare Dist. v. Eden Medical Center (2013) 220 Cal.App.4th 418, 427 [holding an action for declaratory and injunctive relief which sought to invalidate an agreement is an action “on a contract” under section 1717].) It is uncontested that the second e

2022The Court Did Not Err in Granting in Part Adir’s Postjudgment Motion for Attorney Fees The side agreements that Adir challenged in the administrative hearing, and which the Commissioner ruled were not enforceable, contained an attorney fee clause that provided, “Within five (5) days of our demand, you shall reimburse us for any and all costs and expenses, including, but not limited to, attorneys’ fees incurred by us in connection with the collection or enforcement of any of your Obligations to us.” “Obligation” is defined in the side agreements as “any indebtedness or liability of any kind owe

2024The rescission of the Settlement Agreement, which contained a prevailing-party attorney fee provision, does not bar Morongo from recovering its reasonable attorney fees.1 “[A]n action for fraud seeking damages sounds in tort, and is not ‘on a contract’ for purposes of an attorney fee award, even though the underlying transaction in which the fraud occurred involved a contract containing an attorney fee clause. [Citation.] However, where the plaintiff's claim instead seeks rescission based on fraud, the courts have concluded such claim does sound in contract and permits the award of fees.” (Sup

2019It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract." ( Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338 , 1342, 5 Cal.Rptr.2d 154 .) It "is well settled that '... an action for fraud seeking damages sounds in tort, and is not "on a contract" for purposes of an attorney fee award, even though the underlying transaction in *651 which the fraud occurred involved a contract containing an attorney fee clause.' " ( Loube v. Loube (1998) 64

2019It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract." ( Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338 , 1342, 5 Cal.Rptr.2d 154 .) It "is well settled that '... an action for fraud seeking damages sounds in tort, and is not "on a contract" for purposes of an attorney fee award, even though the underlying transaction in *651 which the fraud occurred involved a contract containing an attorney fee clause.' " ( Loube v. Loube (1998) 64

2019It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract." ( Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338 , 1342, 5 Cal.Rptr.2d 154 .) It "is well settled that '... an action for fraud seeking damages sounds in tort, and is not "on a contract" for purposes of an attorney fee award, even though the underlying transaction in *651 which the fraud occurred involved a contract containing an attorney fee clause.' " ( Loube v. Loube (1998) 64

2020(Compare Gil, supra, 121 Cal.App.4th at pp. 742–745 & Exxess Electronixx, supra, 64 Cal.App.4th at p. 712 with Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263 , 274–276 (Windsor Pacific), disapproved of by Mountain Air, supra, 3 Cal.5th 744 .) Disagreeing with the narrower definition of action advanced by Gil and Exxess Electronixx, Windsor Pacific held “that an attorney fee clause providing for a fee award to the prevailing party in ‘any action or proceeding to enforce or interpret’ a contract applies not only where the plaintiff’s allegations in the complaint seek to enfo

2018(Cf. Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 711 [tort causes of action were premised upon broker’s duty to disclose, which arose “without regard to the terms of the lease and before the lease existed”].) In addition, the alleged breaches of the duties Hong Sang owed to Peng occurred before the inception of the tenancy to which the attorney fee clause applies.

2022Where an attorney fee clause provides for an award of fees incurred in enforcing a contract, “[i]t is settled that it is irrelevant if the fees were incurred offensively or defensively.” (Shadoan v. World Savings & Loan Assn. (1990) 219 Cal.App.3d 97, 107 ; Code Civ.

2021Rather, ‘California courts “liberally construe ‘on a contract’ to extend to any action ‘[a]s long as an action “involves” a contract and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit . . . .’ ” ’ ”].) Where an attorney fee clause provides for an award of fees incurred in enforcing a contract, “[i]t is settled that it is irrelevant if the fees were incurred offensively or defensively.” (Shadoan v. World Savings & Loan 5 Assn. (1990) 219 Cal.App.3d 97, 107 ; cf. id. at p. 108 [concluding that “fees should be awarded to the

2019It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract." ( Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338 , 1342, 5 Cal.Rptr.2d 154 .) It "is well settled that '... an action for fraud seeking damages sounds in tort, and is not "on a contract" for purposes of an attorney fee award, even though the underlying transaction in *651 which the fraud occurred involved a contract containing an attorney fee clause.' " ( Loube v. Loube (1998) 64

2019It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract." ( Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338 , 1342, 5 Cal.Rptr.2d 154 .) It "is well settled that '... an action for fraud seeking damages sounds in tort, and is not "on a contract" for purposes of an attorney fee award, even though the underlying transaction in *651 which the fraud occurred involved a contract containing an attorney fee clause.' " ( Loube v. Loube (1998) 64

2021(Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128 ; see also Burkhalter Kessler Clement & George LLP v. Hamilton (2018) 19 Cal.App.5th 38, 40-41, 46 [when sublessor sued sublessee for breach of contract, and also named sublessee’s managing partner on an alter ego theory, the successful managing partner was entitled to attorney fees because the sublessor would have been entitled to fees against her if it had prevailed on its alter ego theory].) The note includes an attorney fee clause.

1995Code, § 1102 et seq.) The attorney fee clause in the agreement to purchase the property here provided that in "any action ... arising out of this agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs." This clause was "broad enough to encompass both contract actions and actions in tort...." ( Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal. App.4th 1338, 1343 [ 5 Cal. Rptr.2d 154 ]; Lerner v. Ward (1993) 13 Cal. App.4th 155, 160 [ 16 Cal. Rptr.2d 486 ].) The Adams are not prevailing parties on their contract cause of action and therefore are not entitled to

2015Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429 .) The Supreme Court has synthesized the applicable principles—there, in the context of “prevailing party”—this way: “ ‘ “Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation.

2014Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429 .) 6 The California Supreme Court has synthesized the applicable principles—there, in the context of “prevailing party”—this way: “ ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation.

2014(See Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 992-993 [“ ‘the broad language of the attorney fee clause . . . permitted recovery of attorney fees for breach of contract or any other claim asserted in connection with the lease’ ”]; Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270, 1277 [clause allowing recovery of attorney fees for any claim asserted in connection with the lease encompassed both contract and tort causes of action].) Defendants asserted their novation defense because of a dispute “in connection with” the option agreement, and in particular the integration clause—specif

2014(See Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 992-993 [‘ “the broad language of the attorney fee clause [which was ‘any dispute’] . . . permitted recovery of attorney fees for breach of contract or any other claim asserted in connection with the lease” ’]; Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270, 1277 [clause allowing recovery of attorney fees for any claim asserted in connection with the lease encompassed both contract and tort causes of action].)” (Maj. opn. ante, at pp. 19-20.) Judge Chernus disagreed.