Defendant’s Limited Appellate Court Win Before Did Not Mean He Prevailed—There Can Only Be One!
Defendant lost an arbitration to plaintiffs who were declared prevailing parties under a contract by the arbitrator. Plaintiffs moved for recovery of contractual attorney’s fees under Civil Code section 1717, a request granted by the trial court but then reversed on defendant’s appeal based on an insufficient fee submission. Defendant then moved for attorney’s fees based on the appellate win, a request denied by the trial court after finding he was not the prevailing party.
The 1/1 DCA affirmed the fee denial in Achterkirchen v. Montiel, Case No. A153560 (1st Dist., Div. 1 Mar. 24, 2020) (unpublished).
The problem with defendant’s approach was that he did not prevail overall under the contract, as Civil Code section 1717 requires. The arbitrator found that plaintiffs prevailed, with defendant simply winning a skirmish on a collateral fee order along the way. Because there can only be one prevailing party on the contract (Carriere v. Greene, 39 Cal.App.5th 270, 276-277 (2019) [discussed in our August 28, 2019 post]), defendant was not the one who prevailed. He argued that the contractual fees clause cut the other way, but the Court of Appeal panel found that “proceeding” encompassed the entire controversy, not just one appeal in isolation.