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Marion v. 396 Investment Co.5/17/2005
for the argument that one could not possibly reasonably incur $757,757 in attorney fees and costs when one did not even intend to seek damages in the inverse condemnation matter, we have two comments. First, there is no indication that Vista Royale never intended to pursue the damages claim; it simply settled out before ever needing to put on evidence of damages. Second, the magnitude of the fees and costs has to be considered in light of the magnitude of the case in its entirety. Anaheim has said nothing to convince us that it was unreasonable to incur $757,757 in fees and costs in the pre-trial stages of litigation of a case of this enormity.
The award of fees and costs is affirmed.
(12) 396's Award
The court awarded $1,326,278 in attorney fees to 396. Anaheim claims that 396 should not have received any attorney fees at all.
As Anaheim points out, 396 based its request for attorney fees on Code of Civil Procedure section 1021.6. Section 1021.6 provides: "Upon motion, a court after reviewing the evidence in the principal case may award attorney's fees to a person who prevails on a claim for implied indemnity if the court finds (a) that the indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee's interest by . . . defending an action by a third person and (b) if that indemnitor was properly notified of the demand to . . . provide the defense and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a non-suit, or a directed verdict."
In its request for fees, 396 said that each of the requirements of Code of Civil Procedure section 1021.6 had been met. It asserted: (1) Anaheim's activities with respect to its reservoir caused a slope failure that gave rise to the underlying litigation, and 396 was forced to defend itself in that litigation; (2) 396 filed a claim with Anaheim as soon as it learned of the involvement of the reservoir in the slope failure, so Anaheim was properly notified of the need to provide a defense, but Anaheim did not do so; and (3) Anaheim was held 100 percent liable for the slope failure, which means that 396 was without fault. The court impliedly agreed with this analysis.
Anaheim, of course, says the analysis doesn't fly. It offers several reasons why. We need not address each of them. Suffice it to say, the requirements of Code of Civil Procedure section 1021.6, subdivision (b) are not met. The cited evidence indicates that 396 did not tender the defense of the litigation to Anaheim.
396 insists that it did. As indicated previously, 396 filed both an initial claim and an amended claim with Anaheim. 396 maintains that these filings satisfy the requirement to tender the defense of the litigation to the proposed indemnitor. In both the initial claim and the amended claim, 396 described the general nature of the litigation. In addition, in the initial claim, 396 stated: "Claimant seeks indemnity, contribution, and apportionment to the extent that plaintiffs prevail in their respective actions." 396 used nearly identical language in the amended claim, wherein it also stated: "396 Company seeks indemnity from Anaheim." There is no indication in either the initial claim or the amended claim that 396 was requesting that Anaheim defend it in the actions. Moreover, the request for indemnification "to the extent that plaintiffs prevail" implied that 396 expected only to be compensated once the litigation was fully resol
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