No Fee Entitlement Under CCP § 1032(b) Or CC § 1717, And Trial Court Did Not Abuse Its Discretion In Determining Defendant Did Not Prevail Under Rental Lease Clause Or Civil Harassment Discretionary Fee-Shifting Statute.
Plaintiff landlord and defendant tenant obviously got at odds with each other, prompting landlord to initiate both an unlawful detainer action and civil harassment proceeding. After defendant moved out of plaintiff’s house, plaintiff dismissed the civil harassment proceeding. Defendant then moved for recovery of $7,218.75 in attorney’s fees on four bases, claiming to be the prevailing party: (1) as of right under CCP § 1032(b); (2) Civil Code section 1717; (3) a broad rental agreement fees clause; and (4) the discretionary fee-shifting statute in the civil harassment proceeding scheme (CCP § 527.6(s)). The trial court denied fees, a result upheld by the appellate court in Guerra v. Bailey-Holden, Case No. E064548 (4th Dist., Div. 2 July 8, 2016) (unpublished).
Defendant was not entitled to fees as a matter of right under CCP § 1032(b) based on the prefatory language “except as provided otherwise by statute,” since the civil harassment statutory fee-shifting provision made fee recovery discretionary rather than mandatory in nature.
Civil Code section 1717 did not apply because this was not an action “on the contract,” because a civil harassment proceeding is in the nature of a tort proceeding.
Although the rental fees clause was broad enough to cover tort claims, the trial judge did not err in adopting a pragmatic approach to a “prevailing party” determination, with plaintiff getting what she wanted—defendant’s departure from the house.
Finally, no abuse of discretion occurred from denying fees based on the civil harassment proceeding given that defendant moved out of the house such that the proceeding was pretty much moot.