Home > Uncategorized > Yassin v. Solis Confirms Attorney’s Fees are Available under Civil Code 3260 but only for Unpaid Retention.

Yassin v. Solis Confirms Attorney’s Fees are Available under Civil Code 3260 but only for Unpaid Retention.

In Diaa Yassin v. Vinicio Solis, Case No. B215201, the California Court of Appeals Second Appellate District dealt with a lawsuit filed by a contractor Yassin against Solis as homeowners, for claims and cross-claims of breach of contract.  Plaintiff’s action against the homeowners was for money he claimed was owed to him for construction work on defendants’ home, and defendants’ cross-complaint was for breach of contract in connection with the work performed.  The trial court’s judgment awarded $50,000 to the defendants and nothing for the plaintiff, but also awarded attorney’s fees to the defendant homeowners even though there was no contractual attorney’s fee clause.  The Court acknowledged that a party did not have to plead that it is seeking attorney fees in order to recover those fees, so that was the bar to recovery here.  In this case, the request for attorney’s fees was ultimately made under Civil Code Section 3260, which holds that for the wrongful withhold of a retention payment, that in addition to the statutory penalties, the prevailing party was entitled to their attorney’s fees.  Here the last contractual payment claimed to be due to plaintiff was not a retention payment, it was simply a final payment.  There agreement did not have retention terms, which generally are 10% of each progress payment.  Therefore, a final payment is not a retention payment under section 3260, and defendants even though they were the prevailing party, were not entitled to attorney fees under Section 3260(g).

Nothing herein should be construed as legal advice or creating any attorney-client relationship. Please consult with an attorney for specific legal advice. Thank you.

All Rights Reserved © 2010 by Michael L. Mau, Esq.

The Mau Law Firm

Blog: http://maulaw.spaces.live.com

Website: www.MauLaw.com

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