CEB has my article, “Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees”

Tim Kowal October 30, 2024

CEB Dailynews has published my article, “Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees.” The article is about what happens when you prevail on a contract, but the contract is only raised as an affirmative defense—and not as a claim. The Supreme Court previously said no: an affirmative defense is not a Civil Code section 1717 “action.” But clarifying that rule, Am. Bldg. Innovation v. Balfour Beatty Constr. (D4d3 Sep. 3, 2024) No. G062471 [pub. opn.] holds that prevailing on a contract-based affirmative defense can give rise to contractual attorneys’ fees, resulting in an award of $1.55 million.

The difference is that the affirmative defense was based on the same contract as in the plaintiff’s complaint. So the “claim on a contract” element was met here.

But an affirmative defense on a contract is still not the same thing as a “claim on a contract.” So if you are asserting an affirmative defense based on a contract and want to establish a right to fees, consider also filing a cross-claim for declaratory relief on the contract. That way if you win, the winning theory is part of a “claim on a contract,” triggering a right to fees.

The original article is here.

Kowal_Prevailing on a Contract Affirmative Defense Download

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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CEB has my article, “Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees”

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"A judge is a law student who grades his own papers." — H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King