Business attorney California

Defendant insurer elected to repair an insured van, despite the alleged refusal to authorize repairs by plaintiffs, the insured owners. The Superior Court of Ventura County, California, entered summary adjudication in favor the insurer on the owners' claims for breach of contract and breach of the covenant of good faith and fair dealing, and the owners dismissed with prejudice a claim for conversion. Both parties appealed.

After their van was damaged, one of the owners signed a written authorization to tear down the front end to determine the extent of damage and, at the same time, signed an authorization to repair. After an itemized estimate was available, she orally agreed to the repair. The owners later asserted that the authorization was only for tear down and that the vehicle was a total loss, and they refused to pick up the repaired van. The insurer paid the shop for the completed repair and recovered from the insurer of the driver who hit the van. The Business attorney California of appeal held that there was a triable issue of fact as to whether the owners authorized the repair because an itemized estimate was not available when the written authorization was signed, as required by Bus. & Prof. Code, § 9884.9. However, the insurer did not have to pay the cost of repairs to the owners. Finally, there was a triable issue as to the insurer's good faith in prosecuting its subrogation claim. Assuming the owners did not consent to the repairs, the repair shop was not due any compensation. Thus the payment to the repair shop was voluntary, and the insurer was not entitled to subrogation.

The court reversed and remanded for trial on the issue of bad faith.

Plaintiff social service claimant appealed an order from the Superior Court of San Diego County (California), which ruled that the claimant, after prevailing in a mandate proceeding brought to challenge a denial of in-home supportive services, could recover under Welf. & Inst. Code, § 10962, attorney fees incurred for work related to the mandate petition but not fees incurred for work during the underlying administrative proceedings.

The parties entered into a stipulated judgment granting the claimant's petition, issuing a writ of mandate, and agreeing that the claimant would recover reasonable attorney fees and costs. The court held that the claimant had no statutory entitlement to fees incurred in connection with the administrative fair hearing held pursuant to Welf. & Inst. Code, §§ 10953, 10953.5, 10955. Absent contractual or statutory authorization, the parties had to pay their own attorney fees as provided in Code Civ. Proc., § 1021. Although the claimant's counsel argued that the fees incurred at the administrative level were necessary and useful to prevailing in the judicial action because the claimant was required to exhaust the administrative remedy, the court distinguished cases that had applied a necessary and useful standard to the private attorney general statute, Code Civ. Proc., § 1021.5, which involved different public policies. Section 10962 provided for attorney fees to a prevailing claimant in the superior court writ proceeding, but it contained no indication that the Legislature intended the state to bear the burden of paying for attorney representation in the administrative proceeding.

The court affirmed the order.

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