Legal Question in Civil Litigation in California

The terms are probably binding. There is a provision in California Civil Code section 1717 that addresses this very issue. This section provides that in any contract for attorney fees and costs in a contract cannot be unilateral. That is if the day care can request attorney fees the parent can also request attorney fees. The collection of such fees would require either a court order, after completion of a case, for the payment of the fees, which would be set by the court. It appears that the major purpose of this provision would be to encourage parents to pay the day care costs on time and avoid a lawsuit for breach of contract.

Typically, an attorney fees provision is to provide reimbursement of legal fees/costs to the prevailing party. It would be unfair, for instance, if the daycare was grossly negligent resulting in injury to a child and then the parents were required to pay the daycare's legal fees for defending against a just legal action instead of settling. With prevailing party clauses, there are ways that they more or less inclusive depending on the language used. There are also other provisions that can be included to help reduce litigation risk. By way of example, you can include a clause that requires mediation prior to litigation or else ability to recover attorney fees is waived. Each of these provisions has pros/cons. Additionally, there are nuances to the legal language. If you really want to explore the best ways to contractually reduce litigation risk, consult with an attorney. The proposed provision is problematic.

I read this a little different than the others. This provision in my opinion is intended to apply in situations where due to no fault of their own, the day care provider incurs attorney fees as a 3rd party. For example, in child-custody disputes, family law matters etc. That being said, this provision is vague enough as to call in to question all attorney fees, including the typical "prevailing party" use that Ms. Cowin and Mr. Johnson addressed.

Best,

Bryan

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