McKenzie v. Kaiser-Aetna

In McKenzie v. Kaiser-Aetna (1976) 55 Cal.App.3d 84, a jury returned a general verdict awarding the plaintiff a net monetary recovery against the defendant and cross-complainant Kaiser-Aetna, but the verdict did not specify which of the plaintiff's various theories of recovery it was based on: breach of contract, breach of negligent misrepresentation, or breach of implied warranty. (Id. at pp. 86-88.) The trial court denied McKenzie's request for attorney fees because he did not meet his burden of showing the verdict was based on his breach of contract claim. (Id. at pp. 87-88.) In affirming the judgment, the McKenzie court reasoned: "The net verdict and judgment were in McKenzie's favor, but there is no way to ascertain, in the absence of special jury findings, on which of the theories of recovery (breach of contract, negligent misrepresentation, or breach of implied warranty) the jury mainly based its award to McKenzie. Those theories do not all call for identical determinations of fact . . . . The three theories of recovery were thus not merely the same cause of action under different guises. It is thus necessary to determine whether all those causes of action were 'actions on the contract,' as that phrase is used in Civil Code section1717." (McKenzie v. Kaiser-Aetna, supra, 55 Cal.App.3d at pp. 88-89, italics added.) In sum, because the entire verdict could have been based on McKenzie's negligence, claim, McKenzie could not recover his attorney fees under Civil Code section 1717. (McKenzie v. Kaiser-Aetna, supra, at p. 89.) As the trial court observed in its statement of decision, McKenzie does not support the Bank's argument that various theories of recovery must be "the same cause of action under different guises" in order to be inextricably intertwined. Rather, in using the quoted phrase, the court was only pointing out that McKenzie did not meet his burden of showing he prevailed on his breach of contract claim. Indeed, McKenzie did not address whether the plaintiff's breach of contract claims were "inextricably intertwined" with his nonfee claims. (McKenzie v. Kaiser-Aetna, supra, 55 Cal.App.3d at pp. 88-89.)