Prevailing Party: Defendants Winning Five-Year Mandatory Dismissal Were Prevailing Parties For Attorney’s Fee Recovery Request Based Upon Lease Fees Clause

Lower Court Erroneously Allowed Plaintiff To Voluntarily Dismiss Without Prejudice.

            In Cole v. Hammond, Case No. B292331 (2d Dist., Div. 4 July 24, 2019) (partially published), a trial court denied a defense motion to dismiss the case with prejudice because it had not been tried within five years and granted plaintiff’s motion to voluntarily dismiss without prejudice.  The Second District, Division 4, on appeal, reversed those determinations, concluding that it was legally inevitable that the case had to be dismissed based on the five-year statute (CCP § 583.360, which can be very cruel at times).  Once this occurred, defendants on remand could choose to move for attorney’s fees as the prevailing party given the existence of a fees clause in the parties’ rental agreement.