Second District, Division 2 Finds Settlement Stipulation Allowed for 1717 Fee Recovery.
In Duenas v. Fraccionamiento Villas Del Mar, S.A., Case No. B219112 (2d Dist., Div. 2 Sept. 30, 2010) (unpublished), parties to a Baja California condominium dispute settled, reached a stipulation that all issues but a note payment issue in favor of plaintiff—including the recovery of costs and attorney’s fees—were reserved for determination by the court. Plaintiff moved to recover fees, with the trial court awarding her $14,767.50 as the prevailing party. Defendant appealed, arguing that the dismissal pursuant to a settlement meant there was no prevailing party under Civil Code section 1717(b)(2).
Wrong, 1717(b)(2) is not applicable said the appellate panel. The parties expressly stipulated that the matter remained pending before the trial court so that the court could make a prevailing party determination. Pragmatically speaking, the bargain between the parties was to be enforced, and plaintiff did prevail in the matter. (Kachlon v. Markowitz, 168 Cal.App.4th 316, 349 (2008).) Fee award affirmed.