Moulin Electric Corp. v. Roach

Opinion

COBEY, J.

Defendants, Noyes H. Roach and Noyes Roach Company, appeal from a minute order denying them their postjudgment attorney’s fees. The appeal lies (Code Civ. Proc., § 904.1, subd. (b)) but is without merit for the reasons that follow.

On February 6, 1980, defendants filed a notice of motion for post-judgment attorney’s fees in the amount of $7,403 for professional

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services rendered to them from March 25, 1978, the approximate date of a prior award of such fees in the amount of $11,364.50. The trial court denied this motion, when subsequently made, as untimely.

The denied fees were sought pursuant to an express provision for reasonable attorney’s fees in the contract allegedly between the parties, sued on by plaintiff, Moulin Electric Corporation,

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and pursuant as well to Civil Code section 1717 which authorizes such fees to the prevailing party (the one in whose favor final judgment is rendered) in any action on a contract where the contract specifically provides that attorney’s fees which are incurred to enforce its provisions shall be awarded.

Actually, the only basis for an award of reasonable attorney’s fees to defendants in this case is the just-mentioned Civil Code section 1717 allowing such fees in any action on a contract. This is because in the prior appeal in this case this court affirmed the summary judgment for defendants on the express ground that no valid written subcontract between the parties ever came into existence. Nevertheless, by reason of section 1717 exclusively, defendants became entitled to their reasonable attorney’s fees herein, on appeal and possibly otherwise

(Care Constr., Inc.

v.

Century Convalescent Centers, Inc.

(1976) 54 Cal.App.3d 701, 705-707 [126 Cal.Rptr. 761]), provided their application for such fees was timely.

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