Finding That Neither Side Prevailed For Routine Costs Did Not Decide Section 1717 Prevailing Party Issue.
In AAWestwood, LLC v. Liberal Arts 677 Benevolent Foundation, Case No. B275717 (2d Dist., Div. 5 May 23, 2018) (unpublished), defendant won non-monetary relief under its cross-complaint while plaintiff lost some claims but won a net $3,809.52 in damages under a forcible detainer theory, all involving an easement over six parking spaces that had been the subject of a long-term lease between the parties. With respect to routine costs under CCP § 1032, however, the trial judge exercised discretion to find neither party prevailed so that each should bear its own costs. Defendant then moved for attorney’s fees based on a lease contractual fees clause to the tune of $250,826.79. (There was a timeliness filing issue, but the trial court decided that in favor of defendant.) The trial court then ruled that its prior ruling on the costs “prevailing party” issue also determined that defendant was not the “prevailing party” for fees under Civil Code section 1717.
The 1717 fee determination was reversed and remanded. The reason is that the “prevailing party” determinations under Civil Code section 1717 and Code of Civil Procedure section 1032 are distinct such that a routine costs “prevailing party” does not resolve the section 1717 “prevailing party” issue. (Sears v. Baccaglio, 60 Cal.App.4th 1136, 1143 (1998) [section 1032 focuses on who receives the net monetary award versus section 1717 zeroing in on who recovers “a greater relief in the action on the contract”]; see also PNEC Corp. v. Meyer, 190 Cal.App.4th 66, 70 n. 2 (2010), disapproved on another point in DisputeSuite.com, LLC v. Scoreinc.com, 2 Cal.5th 968, 979 (2017).) Because the trial judge failed to determine if defendant prevailed on the contract, the matter was remanded for the lower court to do in the first instance under section 1717.