Prevailing Party: Trial Court Properly Exercised Its Discretion In Finding Dismissed Civil Harassment Defendant Was Not Prevailing Party And Not Entitled To Attorney Fees

Trial Court Made Its Prevailing Party Determination Based On The Circumstances Surrounding The Case.

            Plaintiff in Steele v. Holcomb, Case No. G057931 (4^th Dist., Div. 3 July 27, 2020) (unpublished), who served on the board of directors for a residential homeowners association, filed a petition for a civil harassment restraining order against a resident for violent and harassing conduct she alleged he displayed concerning maintenance issues at his residence.  Days before the initial trial court hearing, plaintiff dismissed her petition without prejudice.  Self-represented defendant moved to recover $23,167 in fees he paid to an attorney to advise him on how to proceed in defending himself in the matter – relying on inapplicable section 685.040 of the Enforcement of Judgments Law and Civ. Code section 1717 (which allows a prevailing party to recover fees on a contract where it contains a fees provision).  When the trial court denied his fees request, defendant filed a motion for reconsideration arguing entitlement under other inapplicable code sections, and his belief that he was the prevailing party based on plaintiff’s dismissal of the action.  The trial court declared defendant failed to meet the statutory criteria for reconsideration, but explained that its finding of prevailing party status was discretionary, and that it did not find him to be the prevailing party based on the circumstances of the case – adding “sometimes there’s other reasons for dismissing the case.”  Even if the trial court found defendant to be the prevailing party, it explained, it would not grant attorney fees or costs based upon the acrimonious nature and type of dispute.

            On appeal, defendant argued that the trial court was required to find him the prevailing party as a matter of law pursuant to the Code Civ. Proc. § 1032(a)(4) prevailing party definition, and award fees under § 527.6(s) – which allows for the award of costs/fees to prevailing party in civil harassment action.  Not so, said the 4/3 DCA.  First, the prevailing party definition in § 1032(a)(4) is particular to that cost statute and does not necessarily apply to attorney fee statutes.  Second, defendant’s § 527.6(s) argument was forfeited as he had failed to request fees with the trial court under § 527.6(s).  Defendant could not request fees from the trial court under inapplicable code sections, then use the trial court’s failure to apply a code section it was never asked to apply as basis for appeal.