Anthony v. Snyder
Filed 3/30/06 Anthony v. Snyder CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| GARNER ANTHONY, Plaintiff and Appellant, v. JOHN SNYDER, as Director of Public Works, etc., et al., Defendants and Respondents. | D045340 (Super. Ct. No. GIN018979) ORDER DENYING REHEARING AND MODIFYING OPINION |
| BARRATT AMERICAN, INC., Real Party in Interest and Respondent. |
THE COURT:
The petition for rehearing is denied. Justices McDonald and McIntyre concur in the denial; Justice Benke would grant. The opinion, filed February 28, 2006, is modified as follows:
At Justice Benke's dissent, after the last sentence of the fifth paragraph beginning with "In light of the trial court's treatment" (slip opn., p. 3) and ending with "from the record and our prior opinion in Anthony I." (slip opn. p. 4), add footnote 1 reference. Footnote 1 reads: "As the County points out in its petition for rehearing, a long line of cases establish the principle that where, as here, a plaintiff has forced defendants to wage a defense to his contract claim, defendants are entitled to attorney fees if the contract contains an attorney fees clause, regardless of the merit of plaintiff's contract claim. (See Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128-129; Hsu v. Abbara (1995) 9 Cal.4th 863, 870; Santisas v. Goodin (1998) 17 Cal.4th 599, 615; Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 902; Walsh v. New West Federal Savings & Loan Assn. (1991) 234 Cal.App.3d 1539, 1547; Rainier National Bank v. Bodily (1991) 232 Cal.App.3d 83, 86; On v. Cow Hollow Properties (1990) 222 Cal.App.3d 1568, 1574; Alhambra Redevelopment Agency v. Transamerica Financial Services (1989) 212 Cal.App.3d 1370, 1380; North Associates v. Bell (1986) 184 Cal.App.3d 860, 865; Diamond v. John Martin Co. (9th Cir. 1985) 753 F.2d 1465, 1467.) As the County's petition for rehearing also suggests, it is not clear whether the majority is departing from this principle or sees in this case an exception to the general rule. In either case the parties deserve a fuller explanation of the majority's rationale."
There is no change in the judgment.
McDONALD, Acting P. J.
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