No One Got A Clear Win, So Go Your Own Way, Says Appellate Court in Much More Eloquent Fashion.
Under Civil Code section 1717, ya gotta prevail–and that is a pragmatic determination, which means ya gotta be a clear winner (not just a contender). In the next case, both plaintiff and cross-complainant did not win on their contract claims, although one got close (but did not get damages) and another won on a closely related negligence claim. The result: no clear winner, no fee recovery on the crucial contract-based claims that trigger 1717 fee entitlement.
Krolop v. National Econ Corp., Case No. G045140 (4th Dist., Div. 3 Feb. 9, 2012) (unpublished) is a mixed bag case that neither litigant likely was real elated with as far as things go. After an 11-day jury trial (yep, that amount of time), plaintiff lost contractual and other claims to defendant, and defendant–on a cross-complaint–did not recover damages on a contractual cross-claim but was awarded damages on a negligence cross-claim (actually, about 9% of the amount sought on the negligence cause). The trial court denied fee recovery to either side, finding that no one prevailed on the contractual claims for 1717 recovery purposes.
Result on appeal? Affirmed, in a 3-0 decision penned by Acting Presiding Justice Rylaarsdam.
There was no complete victory on the contract claims, with defendant/cross-complainant coming close, but not getting the jury to find she proved damages–a necessary element of any contract claim. The contractual fee clauses were not broad enough to encompass tort claims, so the win on the negligence claim did not qualify for fee recovery. Beyond that, even from a pragmatic level, defendant/cross-complainant only won about 9% of her claimed damages–hardly the overwhelming victory needed to obtain fee recovery on even a “pragmatic” basis.