Trial Court Had Discretion In Making Prevailing Party Determination, And Did Not Abuse It.
Unless you get an outright victory under Civil Code section 1717, the trial judge has discretion to determine if a party prevailed for purposes of fee recovery. The trial judge determined that, although plaintiff did get affirmative recovery, the plaintiff did not prevail when all the circumstances were considered in Fry v. Skinner, Case No. B271491 (2d Dist., Div. 5 Dec. 11, 2017) (unpublished).
In this one, plaintiff sought recovery of $46,500 under the terms of the settlement agreement, but ultimately only obtained an award of $10,000. Plaintiff’s request for recovery of fees under section 1717 was denied, and affirmed on appeal. The reason was that the trial judge has discretion to determine the prevailing party where no one hit a “grand slam,” hardly the case in this situation given lower court determinations that plaintiff’s recovery was minimal and defendant prevailed every bit as much as the plaintiff.