Consumer Statutes: Denial Of Fee Award To Prevailing Defendant Under Consumer Deceptive Practice Fee-Shifting Statute Reversed And Remanded Because Prosecution Of An Action By Consumer In Bad Faith Encompasses Both Filing and Pursuit Of The Action

Lower Court Improperly Denied Request In Finding Statute Only Applied To Filing Of An Action.

           In Holloway v. Alliance Environmental Group, Case No. E066365 (4^th Dist., Div. Dec. 20, 2018) (unpublished), plaintiff was defensed after a 7-week jury trial which she brought against a testing company and abatement company in a residential asbestos abatement gone awry. She apparently was impeached on several occasions during the trial. Testing company moved for attorney’s fees under Civil Code section 1780, a deceptive act fee-shifting provision which is mandatory for a prevailing plaintiff and allows recovery for a prevailing defendant where the prosecution of the action was not done in good faith. The lower court denied testing company’s request, determining that “prosecution” only applied to the filing of the action.

            The 4/2 DCA reversed. It found that the lower court’s construction of “prosecution” was too narrow, determining that it covered both filing and pursuit of the action. It relied on a definition found in Black’s Law Dictionary and reasoning from the First District in Corbett v. Hayward Dodge, Inc., 119 Cal.App.4^th 915, 926, 929 (2004) in reversing. It refused to enter testing company’s request for fees of $243,468, remanding for a consideration of bad faith and then reasonable amount of any award.