Magnitude Of Loss Of Fees Based On Failure To Mediate Eclipses Substantive Win
Eclipse Chewing Tobacco. c1871. Library of Congress.
Our blog has a sidebar category “Mediation: Condition Precedent” that conveniently summarizes the problem that arose for the plaintiff/respondent/tenant in the next case. The accompanying tobacco label for a solar eclipse provides a graphic for the outcome.
In this landlord/tenant dispute, tenant prevailed, with the trial court awarding the tenant $12,140.84 in actual damages, and $25,485 for landlord’s bad faith retention of a security deposit. The tenant moved for attorney’s fees pursuant to a clause in the lease. Of the $107,217 in fees sought by the tenant, the court awarded $73,125 in attorney fees. The calculus, however, changed substantially after the landlord appealed. De Carlo v. Kosser, Case No. B237278 (2nd Dist. Div. 5 January 7, 2013) (Armstrong, Acting P.J., author) (unpublished).
On appeal, the judgment was affirmed, except that it was reversed as to attorney fees. The reason? Here, the opinion hedges. If the tenant’s suit was a suit on a lease, then the tenant failed to request mediation, a condition precedent to the recovery of fees under the lease. And if it was not a suit on a lease? Then it was a suit on a settlement agreement that did not provide for an award of fees. Ouch either way.
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