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Court of Appeal:
Parties’ Cap on Fees Inapplicable in Wrongful Eviction Case
Stratton Says Statutory Provision Mandating ‘Reasonable’ Attorney-Fee Award Prevails Over Contractual Clause
By a MetNews Staff Writer
The prevailing party in a wrongful eviction case is statutorily entitled to an award of “reasonable” attorney fees notwithstanding a $1,000 contractual cap on fees and costs, Div. Eight of the Court of Appeal for this district has declared.
Its holding comes in an unpublished opinion filed Thursday. It reverses an order by Los Angeles Superior Court Judge Valerie Salkin awarding $1,000 to plaintiff Wen Shen pursuant to the lease provision—though the judge observed that she had discretion under Code of Civil Procedure §1033(a) to award no fees inasmuch as the $20,020 damage-award was below the $25,0000 jurisdictional minimum for a general-jurisdiction case.
The lease between Shen and lessor Gary Prato provided:
“In any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, collectively not to exceed $1,000.”
Salkin ruled: “Because the claim arises out of the agreement, Plaintiffs are bound by the express terms of the contract, and thus limited to recovery of $1,000 in costs and attorney fees collectively.”
Stratton’s Opinion
Salkin erred in carrying out the parties’ expressed intent, Presiding Justice Maria E. Stratton wrote, in light of Code of Civil Procedure §1942.5(i), which says:
“In any action brought for damages for retaliatory eviction, the court shall award reasonable attorney’s fees to the prevailing party if either party requests attorney’s fees upon the initiation of the action.”
The presiding justice said:
“The trial court did acknowledge that Shen was seeking attorney fees under section 1942.5 but found that under Code of Civil Procedure section 1021, ‘where attorneys’ fees are authorized by statute but capped by private contract, the trial court is to award attorneys’ fees pursuant to the contract.’ This is a fundamental misreading of Code of Civil Procedure section 1021.”
That section provides: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.”
Stratton said that §1021 “does not elevate a contractual exception to the American rule”—under which each side is responsible for its own attorney fees—“over a statutory exception to the American rule.”
Waiver Is Impermissible
She pointed out that §1942.5 says:
“Any waiver by a lessee of the lessee’s rights under this section is void as contrary to public policy.”
Prato contended in a footnote in his brief that an attorney-fee award is a remedy, not a right, asserting:
“The distinction between statutory rights and statutory remedies is well-established and long recognized.”
He pointed to the First District Court of Appeal’s quotation in its 1961 decision in Curbelo v. Matson Navigation Company of this 1918 pronouncement by the U.S. Supreme Court:
“The distinction between rights and remedies is fundamental. A right is a well founded or acknowledge claim; a remedy is the means employed to enforce a right or redress an injury.”
Stratton responded:
“Retaliatory eviction is a statutory right with statutory remedies. Permitting tenants to waive (or limit) the remedies would leave no meaningful way for them to enforce the right. For attorney fees, the remedy is mandatory: the prevailing party ‘shall’ be awarded ‘reasonable’ attorney fees….Thus, at least when a statutory right is enforced by a mandatory statutory remedy, a prohibition against waiving the statutory right necessarily includes a prohibition against waiving the mandatory statutory remedy.”
No Discretion
Stratton said that Salkin did not have discretion under §1033(a) to make no award of fees.
That section provides that “[c]osts or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case…where the prevailing party recovers a judgment that could have been rendered in a limited civil case.”
The jurist explained:
“We note that Code of Civil Procedure section 1033’s provisions on attorney fees are discretionary while section 1942.5’s provision on such fees is mandatory. This difference is not insignificant.”
She embraced the 2006 holding by Div. One of the Fourth District Court of Appeal in Graciano v. Robinson Ford Sales, Inc. that where “a statutory fee provision mandates fees to a prevailing party…, the court has no discretion to decline to render an award of reasonable attorney fees.”
A remand to the trial court was ordered for a determination of what would be a reasonable attorney-fee award.
The case is Shen v. Prato, B328235.
Attorneys on appeal were Raymond Zakari of the Glendora firm of Liddle & Liddle for Shen and downtown Los Angeles attorney Michael A. Bowse for Prato.
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