Whether A Prevailing Party Even Exists Should Be Determined By The Lower Court, But The Fee Motion Was Timely.
In Raheb v. Williamson, Case No. B343023 (2d Dist., Div. 6 May 4, 2026) (unpublished), petitioner sought to obtain a temporary restraining order against defendant, a condominium community fellow resident. This request was denied pending a hearing on petitioner’s request for a permanent protective order. Defendant filed a response and requested attorney’s fees/costs. Petitioner did not appear on the hearing, with the lower court denying a request to dismiss the petition but took the matter off calendar and set no further hearings in August 2023. Ten months later, defendant filed a motion to dismiss the case and recovery $14,072.50 in fees. The lower court determined that the August 2023 order resolved the matter such that it was an appealable order, such that the fee motion was denied as untimely.
The 2/6 DCA reversed and remanded. The appellate court agreed the fee motion was untimely if the August 2023 was final and appealable. The problem was that it was not. An order taking the petition off calendar was not appealable, because it is not synonymous with a dismissal. So, the fee motion was timely, but a caveat was in order. The matter was reversed and remanded to determine if there a prevailing party at all. The appellate court believed the record before it showed no prevailing party to be the case, but the panel believed that the lower court should determine if that was so in the first instance.