Second District, Division 7 Sustained “No Prevailing Party” Determination Under Civil Code Section 1717.
One of our leading cases is Hsu v. Abbara, 9 Cal.4th 863 (1995). It is must reading for all litigators, and might save your client a substantial amount of fees if you can talk the clients into believing that Civil Code section 1717 fees are discretionary when there is no clear prevailing party. Unless there is a clear winner (monetarily or based on pragmatic grounds), you face long odds to obtain a reversal of a “no prevailing party” determination case in which there are mixed results (even if the results still might tilt in favor of one side). The next case is a nice illustration of that principle. Remember, judges are human beings that try to decide things fairly. They are loathe to hit one side or the other where the results are mixed.
In Choudhury v. Lancaster Realty Holdings, Case No. B209443 (2d Dist., Div. 7 Oct. 20, 2009) (unpublished), landlord and tenant got into a dispute boiling down to what amount of a security deposit could be retained by landlord. Long story short, landlord got a substantial portion of the deposit, but tenant was entitled to return of some portion of the deposit as improper holdover rent. Both parties sought attorney’s fees, but were rebuffed when the trial court ruled that neither party prevailed in the security deposit declaratory relief action.
Result? Affirmed. Under Hsu, other than a clear win–a mixed result–means no prevailing party. Under the circumstances, the trial court’s decision, under which one party won something and the other party won something, was reasonable and hardly constituted an abuse of discretion.