Schlocker v. Schlocker
| Decision Date | 20 October 1976 |
| Citation | 133 Cal.Rptr. 485,62 Cal.App.3d 921 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Samuel SCHLOCKER et al., Plaintiffs and Appellants, v. Theodore M. SCHLOCKER et al., Defendants and Respondents. Civ. 47893. |
Botney, Robbins & Kay and Allen E. Botney, Encino, for plaintiffs and appellants.
Fierstein & Sturman, Harvey Fierstein and Mark I. Rosenberg, Los Angeles, for defendants and respondents.
Plaintiffs filed a complaint, 1 in seven causes of action, claiming fraud, breach of contract, rescission and declaratory relief. Of the seven causes of action, only two (the First and Fourth) purported to state a cause of action against defendant Marilyn Schlocker. Those causes of action sought recovery from her for fraud in inducing plaintiffs to enter into a contract. Marilyn's motion for a summary judgment was granted and the court included, purportedly under the authority of section 1717 of the Civil Code, an award of attorney fees to her. Plaintiffs have appealed; 2 we modify the judgment insofar as it awards attorney fees and affirm it as so modified.
Section 1717 of the Civil Code reads as follows:
'In any action on a contract, where such contract specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements.
'As used in this section 'prevailing party' means the party in whose favor final judgment is rendered.'
That section gives no authority for the award herein involved. Insofar as Marilyn is concerned, the suit was not, as the statute requires, On the contract but in tort for fraud in derogation of the contract. Marilyn's reliance on Babcock v. Omansky (1973) 31 Cal.App.3d 625, 107 Cal.Rptr. 512, is misplaced. In that case, the defendant's wife (who was awarded fees) was sued on allegations that, although not a signatory of the contract, she was liable thereon because of a joint venture between her and her defenda...
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Reyes v. Beneficial State Bank
...A cause of action for fraudulent inducement is not "on the contract" for purposes of section 1717. ( Schlocker v. Schlocker (1976) 62 Cal.App.3d 921, 922–923, 133 Cal.Rptr. 485, italics omitted.) "A tort action for fraud arising out of a contract is not, however, an action ‘on a contract’ w......
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Las Palmas Associates v. Las Palmas Center Associates
...Fee Must Be Reversed A party is barred from collecting contractual attorney's fees in an action for fraud. (Schlocker v. Schlocker (1976) 62 Cal.App.3d 921, 133 Cal.Rptr. 485; see also Stout v. Turney, supra, 22 Cal.3d 718, 730, 150 Cal.Rptr. 637, 586 P.2d 1228.) In their respondent's brief......
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Walters v. Marler
...the contract," but in tort for fraud in derogation of the contract. (Id., at p. 89, 127 Cal.Rptr. 275; see also Schlocker v. Schlocker (1976) 62 Cal.App.3d 921, 133 Cal.Rptr. 485; Shannon v. Northern Counties Title Ins. Co. (1969) 270 Cal.App.2d 686, 690, 76 Cal.Rptr. 7.) Walters' reliance ......
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Eliopulos v. City of Palmdale, B198084 (Cal. App. 3/25/2008)
...1717 only as they relate to the contract action. (McKenzie v. Kaiser-Aetna (1976) 55 Cal.App.3d 84, 88-90; see Schlocker v. Schlocker [(1976)] 62 Cal.App.3d 921, 923.) Describing the attorney's fees provision, [Civil Code] section 1717 specifically refers to fees `incurred to enforce the pr......