True, Mediation Conditions Precedent To Collecting Attorney’s Fees Are Strictly Interpreted – But Not Here, Where Commonsense Dictated Otherwise.
Check out the September 13, 2016 post in California Attorney’s Fees, the blawg my colleague Mike Hensley and I contribute to, about Lamar Central Outdoor, LLC v. Hwang, Case No. B266070 (2d Dist., Div. 5 Sept. 9, 2016) (unpublished). The unique procedural posture of this case leads to an unusual result: notwithstanding a contractual requirement to mediate before initiating an action, the Court recognizes that requiring mediation as a precondition would run counter to the purpose of promoting judicial efficiency, based on the unusual procedural posture of this case.
In Lamar Central Outdoor, LLC, the requirement that a party mediate first before commencing legal action, if that party prevails and is to ever collect legal fees, existed in the contract between co-defendants. So when the plaintiff sued the co-defendants, and co-defendant Milan cross-complained against defendant Hwang, the Court recognized that the counter-claim was a permissive counterclaim, and that delaying the permissive counter-claim between the two co-defendants, while the co-defendants mediated, would only have undermined, rather than promoted, judicial efficiency. In this unusual case, the Court did not strictly require the cross-complainant to mediate before cross-complaining as a condition precedent to obtaining attorney’s fees from its co-defendant.