Datacom, Inc. v. Charter Communications Holding Co.

MEMORANDUM **

Datacom, Inc. and Richard W. Moore (“appellants”) appeal the district court’s summary judgment order in favor of Charter Communications Holding Co., LLC and Charter Communications, Inc. (“Charter”) as well as the award of attorney’s fees to Charter in this diversity action alleging breach of contract, fraud, and negligent misrepresentation. We affirm the attorney’s fee award as to Datacom. We reverse the attorney’s fee award as to Moore, and hold that we do not have jurisdiction over the summary judgment order.

The California courts have held that actions for negligent misrepresentation and fraud are not actions on a contract within the meaning of California Civil Code § 1717 that would entitle the prevailing party to an award of attorney’s fees. See Stout v. Turney, 22 Cal.3d 718, 730 , 150 Cal.Rptr. 637 , 586 P.2d 1228 (1978); McKenzie v. Kaiser-Aetna, 55 Cal.App.3d 84, 89 , 127 Cal.Rptr. 275 (1976). However, when a complaint is based on a contract cause of action and a non-contract cause of action, a court is not required to engage in the impracticable and sometimes impossible task of “separat[ing] the multitude of conjoined activities into compensable or…