Successor Can't Play Fast and Loose with Civil Code § 1717

Apex LLC v. Korusfood.com, No. G047737 (D4d3 Jan. 8, 2014)

This is an appeal of an order awarding attorneys’ fees incurred on appeal after the case was reversed and remanded. The court first finds that a post-reversal/remand fee award is immediately appealable under the collateral order doctrine. In doing so, it sidesteps a split in authority over the very similar question of whether a post-reversal order on a motion to tax appellate costs is immediately appealable under Code of Civil Procedure § 904.1(a)(2), as an order made after an appealable judgment. Compare Barnes v. Litton Sys., Inc., 28 Cal. App. 4th 681 (1994) (no, because after a reversal and remand, there is no judgment in place to be “made after”) with Krikorian Premiere Theatres, LLC v. Westminster Cent., LLC, 193 Cal. App. 4th 1075, 1077 (2011) (yes, because in a post-reversal cost award the relevant “judgment” that the order is “made after” is that of the court of appeal reversing the case). On the merits, the court affirms the award and rejects the appellant’s argument that fees could not be awarded against it under Civil Code § 1717 because it did not sign the contract that contained the attorneys’ fee provision. The record made clear that the appellant effectively stood in the shoes of the contracting party. Indeed, before the case was reversed on appeal, the appellant had been awarded its own fees under the same contract. Chutzpah!

Affirmed.