In the second appeal in this long-running dispute between a commercial tenant and his landlord, Horvitz & Levy LLP obtained a ruling affirming the trial court’s refusal to award attorney fees to the tenant.
After a prior appeal in this same case, the plaintiff sought to recover prejudg
ement and appellate attorney fees under Civil Code section 1717 (attorney fees provided by contract). But the contract under which plaintiff claimed fees, a residential lease she signed with our client’s predecessor in 1980, was lost, and plaintiff did not remember whether it contained a fee clause. Plaintiff offered an expert declaration by a real estate broker to the effect that residential leases at the time and place where plaintiff leased her apartment customarily included fee clauses. The trial court was not persuaded and denied the fee motions. The trial court also rejected plaintiff’s argument that our client was judicially estopped to deny plaintiff’s entitlement to fees because our client (unsuccessfully) claimed fees earlier in the litigation. The Court of Appeal (Second District, Division Four) affirmed the trial court’s rulings in all respects.