Prevailing Party: Litigant Successfully Opposing Attorney’s Fees Request Involving Pet Cemetery Dispute Properly Was Not Entitled To Fees As Prevailing Party

No Authority Provided To Show A Litigant Prevailed On Opposing A Fee Motion Where That Litigant Did Not Prevail On The Merits.

            Allen v. MacIntosh, Case No. E073408 (4^th Dist., Div. 2 Jan. 13, 2021) (unpublished) involved a trespass dispute on land which had a portion dedicated for use as a pet cemetery.  In the end on the merits, a litigant lost but was able to beat back an amended motion for attorney’s fees because it was not based on a CCRs enforcement action and because there was no declaration from counsel to support the fees sought.  Then, creatively, that litigant sought to recover fees as the prevailing party in the action.  Get outta here, said the appellate court in a much more eloquent way.  Although the Davis-Stirling Act (Civ. Code, § 5975) does have a fee shifting provision, appellant lost in the underlying litigation and produced no authority for the proposition that opposing a motion relating to another party’s attorney’s fees request qualifies the litigant as a prevailing party.