Sixth District Rejects Notion that CCP § 1021 Prevails Over Civil Code § 1717.
This next case is interesting given that we have posted on some California unpublished decisions suggesting that fee entitlement is not at issue in Civil Code section 1717, with the provision only governing fairness and treatment of unilateral fee clauses.
In Barez v. Ni, Case No. H040654 (6th Dist. Feb. 27, 2015) (unpublished), both sides in a lease dispute—in earlier litigation and an earlier appeal—were found not to be prevailing parties based on a jury denial of relief under a complaint and a cross-complaint. However, the defense/cross-complainant parties argued they prevailed on the earlier appeal based exclusively on language in a fee clause agreement which they argued allowed them to recover fees for only a part of the action, the appeal, versus fees for being the prevailing party in the entire action.
Neither the trial nor appellate court accepted this argument. The appellate court found that Civil Code section 1717 was preemptive over CCP § 1021, finding that section 1717 does not support an award to a prevailing party on appeal—only to a prevailing party in the entire lawsuit, with defense/cross-complainant parties not qualifying as such.