Dismissal for Failure to Prosecute Did Make Defendant the Prevailing Party.
In Halamandaris v. Sephos, Case No. C065819 (3d Dist. Apr 18, 2012) (unpublished), plaintiff’s action for the various claims described in our heading above was dismissed for failure to prosecute. The backdrop for all claims was a promissory note with a fees clause. The trial court awarded the defense attorney’s fees of $75,000, even though the cost bill was filed before entry of judgment.
The appellate court did not go with plaintiff as far as fee award challenges on appeal.
California courts liberally construe “on a contract” language under Civil Code section 1717, with all claims incorporating reference to the promissory note. Also, plaintiff expressly asked for cancellation of the note. These allegations supplied the necessary nexus to conclude the action was one “on a contract.” (California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc., 96 Cal.App.4th 598, 605 (2002).)
Even though the costs memorandum was filed before entry of judgment, such premature filing does not divest the lower court of jurisdiction to award fees where a judgment was subsequently entered--although the consideration is a discretionary one. (Parker v. City of Los Angeles, 44 Cal.App.3d 556, 565-566 (1974).)
Finally, the amount of fees awarded was no abuse of discretion. The request was for $93,185.41, with the lower court reducing the award down from the request by nearly $20,000. Deference was accorded to this decision on appeal.