Trial Court Found Prevailing Party Based On Costs Recovery Standard, One That Diverges From the Apt One for Fee Award.
The next decision illustrates an important distinction often times glossed over or mistakenly ignored with respect to a determination of the prevailing party. The distinction is this: there is a difference between prevailing party for costs versus attorney’s fees awards.
Lowdon v. Vaughn, Case No. F059470 (5th Dist. Feb. 9, 2011) (unpublished) reversed and remanded a $60,675.10 fee award despite the fact defendant prevailed for costs purposes. However, in making that determination, the trial court stated that its prevailing party determination even for fee purposes was made “pursuant to Code of Civil Procedure section 1032(a)(4)” (the costs statute saying that a simple net monetary recovery did the trick).
This was error, decided the Fifth District.
A party prevailing under section 1032(a)(4) is not necessarily the prevailing party under Civil Code section 1717. (Chinn v. KMR Property Management, 166 Cal.App.4th 175, 190 (2008).) Instead, the section 1717 requires a weighing of factors to determine which party pragmatically won and, if no one was a clear winner, then discretion lies with the lower court to determine if there was and which one was a prevailing party. (Silver Creek, LLC v. BlackRock Realty Advisors, Inc., 173 Cal.App.4th 1533, 1538 (2009).) Here, the wrong rule of law was used, requiring reversal. (Id. at 1539.)
However, in remanding for a relook on the fees issue, the appellate court also provided guidance on factors to examine, suggesting somewhat strongly that it had a perception that defendant did not prevail for purposes of a fee award.