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Many cases address the issue of attorney fees in the context where the claims are
“so intertwined as to make it impracticable, if not impossible, to separate the attorneys’
time, exemplified by Maxim Crane Works, L.P. v. Tilbury Constructors (2012)
208 Cal.App.4th 286 (Maxim). Maxim arose when a construction worker sued Maxim, a
crane company, for personal injuries arising from a worksite incident. Maxim filed a
cross-complaint against the injured worker’s employer, Tilbury, seeking indemnity. The
cross-complaint failed, as the trial court enforced an unfavorable choice-of-law provision
in the contract written by Maxim, and found the indemnity agreement inapplicable to the
employee’s claim. The trial court thereafter awarded Tilbury its full attorney fees,
accepting “Tilbury’s contention that defense against Maxim’s indemnity cross-complaint
was ‘inextricably intertwined’ with Tilbury’s defense against Gorski’s tort suit.” (Id. at p.
297.) The Court of Appeal affirmed.
After beginning with the observation its scope of review was “narrow,” Maxim
concluded with this:
“The California Supreme Court has stated that, ‘Attorney’s fees need not be
apportioned when incurred for representation on an issue common to both a cause of
action in which fees are proper and one in which they are not allowed.’ (Reynolds Metals
Co. v. Alperson (1979) 25 Cal.3d 124, 129–130; see Abdallah v. United Savings Bank
(1996) 43 Cal.App.4th 1101, 1111.)
“Further, ‘Apportionment is not required when the claims for relief are so
intertwined that it would be impracticable, if not impossible, to separate the attorney’s
time into compensable and noncompensable units.’ (Bell v. Vista Unified School Dist.
(2000) 82 Cal.App.4th 672, 687; see Drouin v. Fleetwood Enterprises (1985)
163 Cal.App.3d 486, 493 [‘Attorneys fees need not be apportioned between distinct
causes of action where plaintiff’s various claims involve a common core of facts or are
based on related legal theories.’].)” (Maxim, supra, 208 Cal.App.4th at p. 298.)
Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, cited by Prometheus for
the proposition that the “trial court abused [its] discretion by failing to apportion fees,” is
distinguishable. Heppler recognized the trial court’s discretion, and that a “ ‘recognized