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California Code Section
Nancy:
I filed a motion for attorneys fees last year which may help you. It
addressed what constitutes a prevailing party. You can use the following
language:
Prevailing party is defined as follows:
C.C.P. Section 1032 defines prevailing party for purposes of an award of
litigation costs. It reads: "(a) As used in this section, unless the
context clearly requires otherwise: [] ... [] 4) `Prevailing party
includes the party with a net monetary recovery, a defendant in whose favor
a dismissal is entered, a defendant where neither plaintiff nor defendant
obtains any relief, and a defendant as against those plaintiffs who do not
recover any relief against that defendant. [Emphasis added].
In addition, with respect to non-contract claims, the costs and
attorneys fees are governed by California Code of Civil Procedure Sections
1021 and 1033.5. Sweat v. Hollister (1995) 37 Cal.App.4th 603, 610.
"Using section 1021 as a foundation, a line of cases has held that the type
of contractual attorney fee provision at issue here is broad enough to
authorize a request for attorney fees in a tort-based misrepresentation
action arising out of the contract." Childers v. Edwards, (1996) 48
Cal.App.4th 1544, 1549.) That line of cases culminated with the California
Supreme Court's decision in Santisas, supra, 17 Cal.4th 599.
As the Supreme Court stated in Santisas, under some circumstances,
attorney fees may be recovered under the Code of Civil Procedure, even when
they are precluded under Civil Code section 1717. (Santisas v. Goodin (1998)
17 Cal.4th 599, at pp. 617-618, 619.) In Santisas, the Supreme Court thus
rejected the argument that "attorney fees incurred to litigate tort or other
noncontract claims, which are outside the scope of section 1717, may never
be recovered as costs under a contractual attorney fee provision." (Id. at
p. 618.) Thus, even where a litigant does not qualify as a "party prevailing
on the contract" under Civil Code Section 1717 for example, when there has
been a voluntary dismissal, as was the case in Santisas that circumstance
"does not affect the right to recover as costs the attorney fees incurred in
defense of the tort claims. Because section 1717 does not apply to those
claims, it does not bar recovery of attorney fees that were incurred in
litigation of those claims and that are otherwise recoverable as a matter of
contract law. Santisas, at p. 619. But as the court explained, "section
1021 does not independently authorize recovery of attorney fees. Rather,
consistent with subdivision (a)(10) of section 1033.5, section 1021
recognizes that attorney fees incurred in prosecuting or defending an action
may be recovered as costs only when they are otherwise authorized by statute
or by the parties' agreement." (Id. at p. 607, fn. 4, italics added.)
As explained in the relevant case law, the trial court has no discretion to
deny prevailing party status to a litigant who falls within one of the four
statutory categories in the first prong of the provision. "As rewritten
[in 1986], section 1032 now declares that costs are available as `a matter
of right' when the prevailing party is within one of the four categories
designated by statute. ( 1032, subds. (a)(4), (b).)" (Michell v. Olick
(1996) 49 Cal.App.4th 1194, 1197. In accord is Building Maintenance
Service Co. v. AIL Systems, Inc. (1997) 55 Cal.App.4th 1014, 1025; see also,
7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, 90, p. 620; cf., Sears
v. Baccaglio (1998) 60 Cal.App.4th 1136, 1156 [describing the statutory
categories as "guidelines"].)
The same is also true with respect to the fourth definitional
category of prevailing party, which specifies "a defendant as against those
plaintiffs who do not recover any relief against that defendant." ( 1032,
subd. (a)(4). See, e.g., Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128
[because "MPG was a defendant against whom Nelson obtained no relief, MPG
was the prevailing party"].) Generally speaking, under any of these three
sets of circumstances, the defendant categorically qualifies as the
prevailing party. Wakefield v. Bohlin (2006) 145 Cal.App.4th 963.
Good luck.
The post was migrated from Yahoo.
Sounds to me like 1717 is still the operative law. Courts have
interpreted "prevailing party" broadly to give effect to equitable
principles.
Here's another snippet from the motion I previously quoted:
A [p]revailing party includes the party . . . in whose favor a dismissal
is entered. Cal. Civ. Proc. Code. 1032(a)(4). Although Section
1717(b)(1) of the California Civil Code states that test for prevailing
party differently (i.e., the party prevailing on the contract shall be
the party who recovered greater relief in the action on the contract), the
determination is the same when a case is dismissed in favor of the party
seeking attorneys fees. *Sears v. Baccaglio*, 60 Cal. App. 4th 1136, 1156
(1998) (An analysis under section 1717's equitable purview would almost
certainly include consideration of the factors enumerated by section 1032;
and the trial court's rejection of a strong showing of any particular
factor, such as [a dismissal], would risk abuse of discretion under section
1717 just as it would under "the other than as specified" portion of
section 1032.); *Elms v. Builders Disbursements, Inc.*, 232 Cal. App. 3d
671, 675 (1991) (party in whose favor the court entered a dismissal was
prevailing party under both section 1032 and section 1717).
In my motion, the relief I got was dismissal of the case and I won on the
motion, too. If you need more examples, shepardize *Sears v. Baccaglio*and
*Elms v. Builders Disbursements, *or 1717 or 1032, *etc.*
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO
AND SANTA BARBARA.
Note: The information contained in this e-mail message is confidential
information intended only for the use of the individual or entity named. If
the reader of this message is not the intended recipient or an agent
responsible for delivering it to the intended recipient, you are hereby
notified that any dissemination, distribution or copy of this communication
is strictly prohibited. If you have received this communication in error,
please immediately notify us by telephone or e-mail and delete the original
e-mail at (213) 389-4362 or (888) 619-8222.
IRS Circular 230 Disclosure: In order to comply with requirements imposed
by the Internal Revenue Service, we inform you that any U.S. tax advice
contained in this communication (including any attachments) is not intended
to be used, and cannot be used, for the purpose of (i) avoiding penalties
under the Internal Revenue Code or (ii) promoting, marketing, or
recommending to another party any transaction or matter addressed herein.
Sounds to me like 1717 is still the operative law.Courts have interpreted "prevailing party" broadly to give effect to equitable principles.Here's another snippet from the motion I previously quoted:
The post was migrated from Yahoo.
No judgment. Creditor appealed confirmation. Privately, atty for creditor stated that all fees for appeal would be passed on to debtor one way or another under covenant number 9 of the note (so they had nothing to lose). They lost their appeal. They tried to attach their appeal fees to the mortgage. We caught them. They took them off. We want fees for defending the appeal. Can we get them under 1717? It does not appear as though we can based on the definition of "prevailing party."
Thank you,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
www.blclaw.com
The post was migrated from Yahoo.
If the underlying cause of action sounds in contract, 1717 should still be
the relevant substantive statute and you'd only have to find the
equivalents for the procedural statutes under the FRCP and local rules -
such as FRCP 54(d) - but note that there is a 14 day deadline (from entry
of judgment)!!!!!; and, the 54- series of the local rules.
On Mon, Nov 7, 2011 at 2:27 PM, Nancy Clark wrote:
> **
>
>
> Is there a federal equivalent?****
>
> ** **
>
> Thank you,****
>
> Nancy B. Clark****
>
> [image: Description: untitled]****
>
> 100 N. Barranca Ave, Suite 250****
>
> West Covina, CA 91791****
>
> Tele: (626) 332-8600****
>
> Fax: (626) 332-8644****
>
> www.blclaw.com ****
>
> ** **
>
> ** **
>
> ** **
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *Giovanni Orantes
> *Sent:* Monday, November 07, 2011 12:55 PM
>
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] California Code Section****
>
> ** **
>
> ****
>
> Below is a snippet for a State Court fees' motion I drafted a few years
> ago:****
>
> ****
>
> Under California law, [e]xcept as otherwise provided by statute, a
> prevailing party is entitled as a matter of right to recover costs in any
> action or proceeding. Cal. Civ. Proc. Code. 1032(c). Attorneys> fees are recoverable as costs when, as here, they are authorized by
> contract. Cal. Civ. Proc. Code. 1033.5(a)(10), (c)(5); Cal. Rules of
> Court, Rule 870(e). Furthermore, the legislature has explicitly stated
> that:****
>
> in any action on a contract, where the contract specifically provides
> that attorneys fees and costs, which are incurred to enforce that
> contract, shall be awarded either to one of the parties or to the
> prevailing party, then the party who is determined to be the party
> prevailing on the contract, *whether he or she is the party specified in
> the contract or not*, shall be entitled to reasonable attorneys fees in
> addition to other costs.****
>
> ****
>
> Reasonable attorneys fees shall be fixed by the court, and *shall be an
> element of the costs of suit*.****
>
> ****
>
> Cal. Civ. Code. 1717(a) (bold added). ****
>
> --
> Giovanni Orantes, Esq.
> Orantes Law Firm, P.C.
> 3435 Wilshire Blvd. Suite 1980
> Los Angeles, CA 90010
> Tel: (213) 389-4362
> Fax: (877) 789-5776
> e-mail: go@gobklaw.com
> website: www.gobklaw.com****
>
> ****
>
>
>
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO
AND SANTA BARBARA.
Note: The information contained in this e-mail message is confidential
information intended only for the use of the individual or entity named. If
the reader of this message is not the intended recipient or an agent
responsible for delivering it to the intended recipient, you are hereby
notified that any dissemination, distribution or copy of this communication
is strictly prohibited. If you have received this communication in error,
please immediately notify us by telephone or e-mail and delete the original
e-mail at (213) 389-4362 or (888) 619-8222.
IRS Circular 230 Disclosure: In order to comply with requirements imposed
by the Internal Revenue Service, we inform you that any U.S. tax advice
contained in this communication (including any attachments) is not intended
to be used, and cannot be used, for the purpose of (i) avoiding penalties
under the Internal Revenue Code or (ii) promoting, marketing, or
recommending to another party any transaction or matter addressed herein.
If the underlying cause of action sounds in contract, 1717 should still be the relevant substantive statute and you'd only have to find the equivalents for the procedural statutes under the FRCP and local rules - such as FRCP 54(d) - but note that there is a14 day deadline (from entry of judgment)!!!!!; and, the 54- series of the local rules.
On Mon, Nov 7, 2011 at 2:27 PM, Nancy Clark <nclark@blclaw.com> wrote:
Is there a federal equivalent?
Thank you,Nancy B. Clark
100 N. Barranca Ave, Suite 250West Covina, CA 91791
Tele: (626) 332-8600(626) 332-8644
www.blclaw.com
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Giovanni Orantes
Sent: Monday, November 07, 2011 12:55 PMTo: cdcbaa@yahoogroups.comSubject: Re: [cdcbaa] California Code Section
The post was migrated from Yahoo.
Is there a federal equivalent?
Thank you,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
www.blclaw.com
The post was migrated from Yahoo.
Thank you Giovanni,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
www.blclaw.com
The post was migrated from Yahoo.
Below is a snippet for a State Court fees' motion I drafted a few years ago:
Under California law, [e]xcept as otherwise provided by statute, a
prevailing party is entitled as a matter of right to recover costs in any
action or proceeding. Cal. Civ. Proc. Code. 1032(c). Attorneys fees
are recoverable as costs when, as here, they are authorized by contract. Cal.
Civ. Proc. Code. 1033.5(a)(10), (c)(5); Cal. Rules of Court, Rule 870(e).
Furthermore, the legislature has explicitly stated that:
at
attorneys fees and costs, which are incurred to enforce that contract,
shall be awarded either to one of the parties or to the prevailing party,
then the party who is determined to be the party prevailing on the
contract, *whether he or she is the party specified in the contract or not*,
shall be entitled to reasonable attorneys fees in addition to other costs.
Reasonable attorneys fees shall be fixed by the court, and *shall be an
element of the costs of suit*.
Cal. Civ. Code. 1717(a) (bold added).
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
Below is a snippet for a State Court fees' motion I drafted a few years ago:
The post was migrated from Yahoo.
Does anyone happen to have the California Codes section that states that one can recover attorney fees if they are victorious against a creditor (and claiming attorney fees due to the contract attorney fee provision).
Scenario: creditor sues debtor to defend its "rights under the note." The note includes a provision that states that borrower will pay lenders' attorney fees for claims to defend the note. Lender loses. Borrower is awarded attorneys fee under the same provision.
Thank you,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
www.blclaw.com
The post was migrated from Yahoo.