Cal. Litig. 2022, Volume 35, Number 1

Business Litigation: Best Practices for Litigating a Civil Code Section 1717 Motion for Attorney Fees

By Hon. Elizabeth R. Feffer (Ret.) & Richard M. Pearl, Esq.

This article is geared towards the business litigator engaged in a lawsuit involving a contractual fee-shifting clause. In California, the general rule is that parties in litigation pay their own attorney fees. (Code Civ. Proc., § 1021; Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488.) Under section 1021, however, a court may nevertheless award attorney fees if "a statute or contract allow[s] such recovery." (Jones v. People ex rel. Dept. of Transportation (1978) 22 Cal.3d 144, 154.)

Attorney fees awardable under a contract are governed by Civil Code section 1717 (section 1717), which is the focus of this article. While claims for attorney fees brought under section 1717 bear some similarities to claims based on other fee-shifting statutes or on equitable grounds, fee motions under section 1717 raise several unique issues for the business litigator, which are explored in this article. With an eye toward these unique features, this article recommends best practices for bringing and opposing motions for attorney fees under section 1717.

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