California Code Section
Posted: Mon Nov 07, 2011 3:59 pm
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.
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