(Super. Ct. No. SC 036168) (Ventura County). Thomas Hutchins, Judge.
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
A party who prevails on appeal is not necessarily the prevailing party in an action.
Defendant prevailed in the underlying lawsuit when plaintiff dismissed with prejudice. Defendant moved for attorney fees pursuant to a fee provision in the contract between the parties. The trial court denied the motion and defendant appealed. We affirmed.
Plaintiff now seeks attorney fees because he prevailed on defendant's appeal of the denial of its motion for fees. We agree with the trial court that plaintiff is not entitled to fees. Defendant is the prevailing party in the lawsuit considered as a whole.
FACTS AND PROCEDURAL HISTORY
Craig Wood is the personal representative of the Estate of Merle A. Peterson and trustee of the Peterson Family Trust. Wood filed a complaint alleging that Patrick McComb and Eddie Jamison participated in a scheme to deprive the elderly Peterson of her property by inducing her to obtain a loan secured by her residence. Peterson obtained a loan for $250,000, the proceeds of which were distributed to McComb. Santa Monica Escrow Company (Santa Monica) acted as escrow for the loan.
The complaint alleged three causes of action against Santa Monica: financial abuse of an elder adult, breach of fiduciary duty, and negligence. The second amended complaint added a cause of action for breach of contract. Almost two years after Wood filed the original complaint, he voluntarily dismissed the complaint against Santa Monica with prejudice.
Following dismissal, Santa Monica moved for an award of attorney fees in the amount of $24,773.75. The motion was based on a provision in the escrow instructions for an award of fees to the prevailing party in "any action or proceeding" between any of the parties to the escrow and the escrow holder. Santa Monica claimed it was not required to apportion fees between those causes of action for which fees may be awarded and those for which fees may not be awarded because all causes of action arose from the same transaction. The trial court denied the request in its entirety.
We affirmed in Wood v. Santa Monica Escrow Company (2007) 151 Cal.App.4th 1186. We held that Welfare and Institutions Code section 15657.5, subdivision (a) provides for an award of fees in elder abuse cases only to a prevailing plaintiff. There is no reciprocal fee provision for a prevailing defendant. Because all causes of action alleged against Santa Monica arose from the same transaction, an award of fees to Santa Monica under the escrow provision and Civil Code section 1717 would frustrate legislative policy.*fn1
Wood then made the instant motion for an award of attorney fees against Santa Monica. The motion was based on the attorney fee provision in the escrow instructions. The trial court denied the motion, finding that overall Santa Monica was the prevailing party in the action.
Wood contends the trial court erred in denying his motion for attorney fees expended on the appeal in Wood v. Santa Monica Escrow Company, supra, 151 Cal.App.4th 1186. Wood's theory is that the escrow instructions provide for an award of attorney fees to the prevailing party in any "action or proceeding" between the parties to the escrow. He claims that the appeal was a proceeding in which he was unequivocally the prevailing party. Santa Monica argues the trial and appeal are a single proceeding. Thus Santa Monica claims that because it obtained a dismissal of the action, the trial court has discretion to find it the overall prevailing party, in spite of Wood's success on the prior appeal of the award of attorney fees.
Both parties rely on Presley of Southern California v. Whelan (1983) 146 Cal.App.3d 959 (Presley), and Mustachio v. Great Western Bank ...