Burnaby v. Standard Fire Insurance Co‪.‬

Order MODIFYING OPINION AND DENYING PETITION FOR REHEARING On page 12 of the slip opinion, at the end of the second sentence of the paragraph beginning on that page, add a new footnote 13 (and renumber the existing footnote 13 and those following to accommodate this modification): 13. The three cases relied on by Burnaby are not inconsistent with this statement. In Stoll v. Shuff (1994) 22 Cal. App. 4th 22, 24-25, the plaintiff pursued three causes of action (breach of contract, a common count, and bad faith denial of the existence of a contract) but only a small portion of the opinion is certified for publication. Thus, although it is true that Division Two of the Fourth District granted the plaintiff's ""motion for attorney fees"" and remanded to the trial court for ""a determination of the amount of attorney fees incurred by [the plaintiff] on appeal in defending the existence and enforceability of the . . . agreement,"" we do not know the legal basis for that award or whether its propriety was contested by the defendant. ( Id. at p. 32.) In Moe v. Transamerica Title Ins. Co. (1971) 21 Cal. App. 3d 289, 306-307, 98 Cal. Rptr. 547, the court's denial of a request for attorneys' fees on appeal cites cases involving contractual provisions for the recovery of fees (e.g., Wilson v. Wilson (1960) 54 Cal. 2d 264, 272, 5 Cal. Rptr. 317, 352 P.2d 725). Presumably, therefore, the note or deed of trust at issue in Moe included a provision for the recovery of attorneys' fees. In Lang v. Klinger (1973) 34 Cal. App. 3d 987, 993, 110 Cal. Rptr. 532, attorney's fees were not recovered below as damages (or at all). In reversing (and citing Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal. 2d at p. 620), Division Four of the First District directed the trial court to award ""reasonable attorney's fees and expenses"" incurred in the superior court and on appeal. ( Lang v. Klinger, supra, 34 Cal. App. 3d at p. 993.) No explanation is given and it does not appear the issue was contested.