If your familiar with my Guide to Contractor Disputes, then you already know that among the most important things to remember when hiring a general contractor is ensuring that your home improvement contract contains an attorneys’ fees provision. Contrary to what most people think, a prevailing party (i.e., the party that “wins” the lawsuit) is not automatically entitled to repayment of their attorneys’ fees and costs.

Unlike the legal systems in several other Western countries, which have mandatory “loser pays” provisions, that is not the case in a lot of states—most especially, in California. Here, a prevailing party is only entitled to attorneys’ fees if a statute or contract provides for that remedy.

Fortunately, many do (but some don’t).


The short answer, therefore, to this often-asked questions is this: Yes, but only if your contract has a provision that awards attorneys’ fees to the prevailing party.

So, if you’re asking this question because you are already embroiled in a dispute with your contractor, or are about to be, then find an experienced attorney to review your contract with you to see if it mentions anything about a party being entitled to their attorneys’ fees and costs following any “action” or “lawsuit.” And don’t worry if your contract ends up having language that only seems to grant that right to the contractor. Such language is, by statute, going to be treated as a mutual right regardless of the wording.

And keep this in mind too. Regardless of whether or not your contract has an attorneys’ fees provision (which really only matters if a case goes to trial, thus leading one of the parties to be the “prevailing party”), because the vast majority of cases settle before ever getting to trial, a lot of homeowners, including those with contracts that don’t contain the desired language, can still get the contractor to repay their attorneys’ fees as part of the settlement process. So, even in cases where no such provision exists, there is always hope. It really depends upon the nature of your dispute, as well as the talent of your attorneys.

But, if you’re asking this question before you’ve entered into a contract with a contractor, then insist upon such a provision if it’s not already in what you’re given. If the contractor refuses, then walk away and find another contractor. Legitimate contractors are willing to stand by their work, and therefore won’t care about including such a provision.

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The horror stories that you’ve almost certainly heard about shoddy workmanship and crooked contractors are not entirely without a basis in fact. To say the least, disputes between homeowners and their contractors can cause all sorts of problems, and an unresolved contractor dispute can not only be a nightmare to work through, but it can even temporarily torpedo your property’s value. Ideally, the contractor you hire will perform according to a written agreement with you describing the scope of work to be performed on your property. However, it is not uncommon for contractor/homeowner relationships to go south. When such disputes arise, it is imperative that you act immediately to protect your rights.

Failure to Perform

Poor Workmanship

Faulty Materials

Property Damage

Unpermitted Work

Building Code Violations

Fraud

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ABOUT US


Kushner Carlson is proud to offer our clients a dynamic and effective legal team with top academic and professional credentials. Our attorneys have extensive experience in contractor disputes involving residential and commercial properties throughout California. In addition to having a hard-earned reputation for being strategically aggressive during the pendency of our litigation cases, our lawyers are also well known for their superior writing and innovative, client-centered approach. In short, the trial attorneys at Kushner Carlson excel because they are among the best at what they do. It really is that simple.

OUR TEAM


DOMINIC M. CARUCCI

Partner

Paul Deese

Partner

Audrey Smith

Partner

Divya Bhavsar

Associate

James Calkins

Associate

Sara Etemadi

Associate

William Bergeron

Associate

Ryan Davies

Associate

Shelby Daws

Associate

James Decker

Associate

Ramy Galal

Associate

Kyle Kasparek

Associate

Shane Micheil

Associate

Kirk Pearson

Associate

Griffin Schindler

Associate

Phong Tran

Associate

Justin Walley

Associate

Chris Xouleis

Associate

Alexandria Zuccolotto

Associate

OUR FOUNDERS


Michael Kushner was born and raised in Long Beach, California. He obtained his undergraduate degree from UC Berkeley, where he was inducted into Phi Beta Kappa during his third year and graduated with Highest Distinction the following year. Mr. Kushner then attended law school at UCLA. After moving to Orange County, Mr. Kushner honed his skills at two prestigious law firms before striking out on his own. From there, Mr. Kushner quickly earned a reputation as a formidable and skilled trial and transactional lawyer in the areas of business and real estate law, as well as an entertaining and informative lecturer on various trending topics.

Raised in Florida, where he began surfing competitively at a young age, Luke Carlson moved to California to obtain his education at Chapman University, where he graduated with honors. Prior to Mr. Carlson’s graduation from law school in 2009, he began working at Mr. Kushner’s law firm, where Mr. Carlson demonstrated not only a remarkable degree of business acumen, but also vast knowledge and expertise in the action sports industry. Mr. Kushner and Mr. Carlson complemented each other’s skills so well, that they decided to team up to form Kushner Carlson.

Since then, Kushner Carlson has grown at an impressive pace, transforming itself from a boutique law firm to a mid-sized powerhouse staffed with the industry’s sharpest legal minds. Today, the Kushner Carlson brand is synonymous with strategically aggressive representation and pioneering innovative legal technology.

And we’re just getting started.

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Aliso Viejo, CA 92656

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KUSHNER CARLSON

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