Plaintiff Won Below, But Denied Fees Based on Trope, With Affirmance on Fee Recovery Not Making Defendant the Prevailing Party.
The next case is an elegant, short unpublished decision that demonstrates Civil Code section 1717 “prevailing party” status must be based upon consideration of the whole lawsuit, not just an appellate win on a non-merits fee recovery issue.
Law Offices of Nejadpour & Associates v. Gonzalez, Case No. B226082 (2d Dist., Div. 5 June 13, 2011) (unpublished) involved an attorney who successfully sued an ex-client and recovered a $23,029.60 judgment. However, attorney was denied the request for attorney’s fees based upon the Trope restriction–attorney used an employee with whom the firm did not have an attorney-client relationship, a determination precluding a fee award and one affirmed in a prior appellate decision. Ex-client did obtain appellate costs, but also moved to recoup fees–a request that was granted by the lower court.
The fee award was reversed, in a 3-0 panel decision authored by Acting Presiding Justice Armstrong, because the matter was a legal issue reviewed on a de novo basis.
Wood v. Santa Monica Escrow Co., 176 Cal.App.4th 802, 804, 808 (2009) was dispositive in this particular cause. Much like Gonzalez, Wood held that a party prevailing on appeal is not necessarily the prevailing party for purposes of a 1717 award. The winning of the appeal on the fee recovery issue did not negate that attorney did win and obtain a money judgment against client in the lower court proceedings. Although ex-client prevailed on appeal, attorney prevailed in the whole lawsuit, such that a fee award to ex-client was not sustainable.