Lerner

A provision in an agreement allows for the recovery of attorney fees to the prevailing party in any action or proceeding arising out of the agreement. Here we hold that such a provision permits attorney fees to the prevailing party in a tort cause of action under Code of Civil Procedure section 1021.

George and Jane Ward (the Wards) appeal from the trial court’s denial of their motion for attorney fees after the court entered judgment against respondents, Norman and Ina Lerner (the Lerners). We reverse.

Facts

The Lerners sued the Wards and others for falsely representing that the real property they agreed to purchase from the Wards could be subdivided. The complaint initially included causes of action for breach of contract and for reformation as well as for fraud, breach of fiduciary dúty and negligence.

Before trial commenced, the Lerners dismissed the breach of contract and reformation causes against all defendants. The Lerners proceeded against the Wards only on the fraud cause of action.

After the jury returned a verdict in favor of the Wards, they unsuccessfully moved for attorney fees. The trial court denied the motion because our Supreme Court has held that…