Emigh

In a prior unpublished decision we upheld a judgment in favor of six defendants of liability based on a claimed breach of trade secrecy. (International Billing Services, Inc. v. North American Capital (Aug. 25, 1999, C027450).) Three defendants, Emigh, Porter and Qutub (the Engineers) were formerly employed by plaintiff, International Billing Services, Inc. (IBS) and had signed confidentiality agreements in connection with their employment. In postjudgment proceedings, the trial court awarded the Engineers attorney fees. IBS appeals, contesting the award on several grounds. We shall affirm.

In the published portion of this opinion, we conclude, contrary to some cases, that a party’s claim of entitlement to attorney fees based on a breach of contract containing a fees provision judicially estops that party from *1179 contending the provision does not authorize an award of attorney fees. We also conclude the Engineers are entitled to fees from IBS even though the Engineers’ fees were actually paid by a third party during the litigation.

Factual and Procedural Background

IBS processes confidential information provided by customers, for use in preparing billing statements.…

I concur in the result, but dissent from part I.C of the opinion.

Plaintiff International Billing Services, Inc. (IBS) sought attorney fees under a contractual provision, which, we have concluded, authorizes their award in lawsuits by IBS to prevent the wrongful disclosure of information by defendants (the Engineers). As the majority opinion properly concludes, while the contractual provision as written is one sided and restricts the award of fees to IBS as the prevailing plaintiff, the reciprocity provisions of Civil Code section 1717 operate in such a circumstance to permit the award of fees to the prevailing defendants—the Engineers—as well.

However, the majority opinion does not stop with this pronouncement. While claiming respect for the views of the legal commentator Bernard Witkin, it proceeds to commit a sin eschewed by him: “Have opinion, need case.” (See Witkin, Manual on Appellate Court Opinions (1977) Special Problems of Appellate Review, § 85, p. 155.) This case thus becomes the occasion to opine on an issue that, in light of our conclusion that the contract herein authorizes the award of fees to the prevailing party, is not dispositive.

I confess to the same…

Certified for Partial Publication. [*]

In a prior unpublished decision we upheld a judgment in favor of six defendants of liability based on a claimed breach of trade secrecy. ( International Billing Services, Inc. v. North American Capital (Aug. 25, 1999, C027450).) Three defendants, Emigh, Porter and Qutub (the Engineers) were formerly employed by plaintiff, International Billing Services, Inc. (IBS) and had signed confidentiality agreements in connection with their employment. In postjudgment proceedings, the trial court awarded the Engineers attorney fees. IBS appeals, contesting the award on several grounds. We shall affirm.

In the published portion of this opinion, we conclude, contrary to some cases, that a party's claim of entitlement to attorney fees based on a breach of contract containing a fees provision judicially estops that party from contending the provision does not authorize an award of attorney fees. We also conclude the Engineers are entitled to fees from IBS even though the Engineers' fees were actually paid by a third party during the litigation.

IBS processes confidential information provided by customers, for use in preparing billing…