Burkhalter Kessler Clement & George LLP v. Hamilton, No. G054337 (D4d3 Jan. 8, 2018)
P sues D for breach of contract. P also sues AE on the same contract, on the theory that AE is D’s alter ego. The P/D contract has an attorney’s fee clause. P wins as to D on breach, but fails to prove that AE is D’s alter ego.
Q: Who recovers fees?
A: P gets them against D, but AE gets them against P.
One of the upshots of Civil Code § 1717 is that if you try to enforce a contract with a fee provision in it against a nonparty (like an alleged alter ego) that party gets fees under the contract if it wins. That’s the case even if plaintiff wins on liability against the principal defendant, but fails to prove the nonparty is bound. Nothing in § 1717 prevents there from being two different prevailing parties on a claim by claim basis.
Reversed.
Showing posts with label hamilton. Show all posts
Showing posts with label hamilton. Show all posts
Friday, March 9, 2018
Tuesday, March 7, 2017
Everybody Deserves a Little Delay
Hamilton v. Orange Cnty. Sheriff’s Dept., No. G051773 (D4d2 Feb. 14, 2017)
Defendant in this case filed a summary judgment motion that would have been timely consistent with the original trial date. But the first hearing it could get was four days after trial was set to start. The court subsequently granted an ex parte to move the trial date back so that the SJ hearing date would be more than thirty days before trial.
Plaintiff noticed up the depositions of the SJ declarants plus a PMQ about six weeks before the SJ opposition was due. Defendant objected and then failed to get back to Plaintiff about dates for the depos for over a month. Just before the SJ opp was due, in lieu of setting the depos immediately, Defendant agreed to stipulate to put off the trial and the SJ hearing for another two months to allow time for the depos to go forward. With approval on the stipulation pending, Plaintiff didn’t file an SJ opposition on the due date. The court then denied the stipulation because of a lack of diligence, and proceeded to grant the unopposed MSJ and enter judgment for Defendant. The court subsequently denied a Code of Civil Procedure § 437(b) motion to set the judgment aside.
When a party is faced with an MSJ and still needs evidence to oppose it, the standard relief is to file a declaration under § 437c(h), laying out what discovery is needed and why more time to get it is merited. But that doesn’t preclude the party from taking the alternate route of seeking a continuance of the hearing, which like any continuance, can be granted on good cause in the sound discretion of the trial court.
Even if § 437c(h) wasn’t met here, the stipulation showed good cause to continue the hearing. Defendant had shined plaintiff on about setting dates for the depos, which had been timely noticed in time to meet the original schedule. Indeed, Defendant had essentially conceded that its scheduling cooperation was less than exemplary when it agreed to the stipulated continuance. So particularly given that the trial court had already continued the case to accommodate Defendant’s inability to get a timely summary judgment hearing, it was unfair and an abuse of discretion for the trial court to deny the stipulated continuance to give Plaintiff time to take the depos needed to oppose.
Reversed.
Defendant in this case filed a summary judgment motion that would have been timely consistent with the original trial date. But the first hearing it could get was four days after trial was set to start. The court subsequently granted an ex parte to move the trial date back so that the SJ hearing date would be more than thirty days before trial.
Plaintiff noticed up the depositions of the SJ declarants plus a PMQ about six weeks before the SJ opposition was due. Defendant objected and then failed to get back to Plaintiff about dates for the depos for over a month. Just before the SJ opp was due, in lieu of setting the depos immediately, Defendant agreed to stipulate to put off the trial and the SJ hearing for another two months to allow time for the depos to go forward. With approval on the stipulation pending, Plaintiff didn’t file an SJ opposition on the due date. The court then denied the stipulation because of a lack of diligence, and proceeded to grant the unopposed MSJ and enter judgment for Defendant. The court subsequently denied a Code of Civil Procedure § 437(b) motion to set the judgment aside.
When a party is faced with an MSJ and still needs evidence to oppose it, the standard relief is to file a declaration under § 437c(h), laying out what discovery is needed and why more time to get it is merited. But that doesn’t preclude the party from taking the alternate route of seeking a continuance of the hearing, which like any continuance, can be granted on good cause in the sound discretion of the trial court.
Even if § 437c(h) wasn’t met here, the stipulation showed good cause to continue the hearing. Defendant had shined plaintiff on about setting dates for the depos, which had been timely noticed in time to meet the original schedule. Indeed, Defendant had essentially conceded that its scheduling cooperation was less than exemplary when it agreed to the stipulated continuance. So particularly given that the trial court had already continued the case to accommodate Defendant’s inability to get a timely summary judgment hearing, it was unfair and an abuse of discretion for the trial court to deny the stipulated continuance to give Plaintiff time to take the depos needed to oppose.
Reversed.
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