Second District, Division 6 Follows Presley and Mustachio in so Deciding.
The beginning quote in this case nicely summarizes the lesson from the next case: “A party who prevails on appeal is not necessarily the prevailing party in an action.”
Wood v. Santa Monica Escrow Co., Case No. B205939 (2d Dist., Div. 6 Aug. 13, 2009) (certified for publication) involved a defendant escrow company that prevailed in an underlying lawsuit when the plaintiff dismissed his elder abuse and contract suit with prejudice. Defendant moved for attorney’s fees of $24,773.75 based upon a fee clause in the escrow instructions, a request denied by the trial court and affirmed by Division 6 in a prior opinion. (In that previous published decision found at 151 Cal.App.4th 1186 (2007), the appellate court found that the elder abuse statute only allows fee recovery for a prevailing plaintiff rather than a defendant, with an award of fees to escrow company under Civil Code section 1717 frustrating the elder abuse legislative policy.) Plaintiff then tried to reverse fortunes by moving to recover his attorney’s fees on appeal for beating back defendant escrow’s earlier fee request. The trial court denied the fee motion, and the Second District, Division 6 affirmed.
Writing on behalf of a 3-0 panel, Presiding Justice Gilbert relied on Presley of Southern California v. Whelan, 146 Cal.App.3d 959, 961 (1983) and Mustachio v. Great Western Bank, 48 Cal.App.4th 1145, 1149-1150 (1996) to determine that Civil Code section 1717 fees are only awarded to the overall winner in the litigation—in this case, defendant escrow that was dismissed with prejudice. The appeal of the denial of the attorney’s fees did not decide who won the overall lawsuit. The appellate panel also distinguished appellate routine costs, which were recoverable by plaintiff for winning the prior appeal, from appellate attorney’s fees, which entails a completely different contextual analysis of what litigant prevailed in the overall context of the litigation.