Prevailing Party: Plaintiff Obtaining Reversal Of Case Dismissal Not Entitled To Attorney’s Fees Until Remaining Claims Await Trial For Purposes Of Determining “Victor”

Fee Request Was Premature; Appellate Court Refused To Find Equitable Fee Entitlement Basis.

     Plaintiffs obtained reversal of a case dismissal when the appellate court determined some claims survived, being awarded costs on appeal. However, as we have seen from prior post, costs on appeal does not mean fees are necessarily awarded for the appeal win.

     Plaintiffs thought so, moving to recoup fees of $232,110 based upon the theory they were prevailing parties under a contractual fees clause, the private attorney general statute, and general “equity of the court” discretion in Lafferty v. Wells Fargo Bank, Case No. C074843 (3d Dist. Mar. 26, 2015) (unpublished).

     Both the trial and appellate courts said “no,” not at this time. Until the remaining claims were resolved, the prevailing party could not be determined—whether under Civil Code section 1717 or Code of Civil Procedure section 1021.5. The appellate court also refused to award plaintiffs fees as a matter of the “equitable power of the court,” agreeing with the reasoning to the same effect in McGuigan v. City of San Diego, 183 Cal.App.4^th 610, 638-639 (2010).