LAW OFFICES OF NEJADPOUR AND ASSOCIATES v. GONZALEZ No. B226082.

LAW OFFICES OF NEJADPOUR AND ASSOCIATES, Plaintiff and Appellant, v. JUDITH GONZALEZ, Defendant and Respondent.

Court of Appeals of California, Second District, Division Five.
Filed June 13, 2011.
Law Offices of R. Joseph Kerendian and Associates, R. Joseph Kerendian, Bari Nejadpour for Plaintiff and Appellant.
Law Offices of Bruce R. Fink, Bruce R. Fink for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

Plaintiff Law Offices of Nejadpour and Associates appeals the trial court's order awarding defendant Judith Gonzalez her attorney fees on a prior appeal. Because Ms. Gonzalez was not the prevailing party at trial in the lawsuit considered as a whole, she may not recover attorney fees under Code of Civil Procedure section 1033 and Civil Code section 1717. Consequently, we reverse the order.

FACTS

Law Offices of Nejadpour and Associates (Lawyer) sued Judith Gonzalez, its former client (Client), for unpaid attorney fees. The trial court entered judgment for Lawyer and against Client in the amount of $23,029.60, and designated Lawyer the prevailing party in the litigation. Lawyer filed a motion for attorney fees pursuant to Civil Code section 1717 and the "Legal Services Agreement" executed by the parties. The trial court denied Lawyer's motion, ruling that it was not entitled to a fee award because its attorney of record, Evelyn Abasi, was Lawyer's employee, with whom it did not have an attorney-client relationship. Lawyer appealed that ruling, arguing that Ms. Abasi's fees were "incurred" within the meaning of Civil Code section 1717. Relying on Trope v. Katz (1995) 11 Cal.4th 274, this court affirmed the trial court's order denying Lawyer an award of attorney fees.

Because Client prevailed on appeal, she was, as a matter of course, awarded costs of appeal. Client then brought a motion in the trial court, pursuant to Code of Civil Procedure section 1033 and Civil Code section 1717, for attorney fees as a component of costs on appeal. The trial court granted the motion, which ruling Lawyer appeals.

"On appeal this court reviews a determination of the legal basis for an award of attorney fees de novo as a question of law." (Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677.)

DISCUSSION

Relying on Wood v. Santa Monica Escrow Co. (2009) 176 Cal.App.4th 802 (Wood), Lawyer maintains that the trial court erred in treating the prior appeal in this matter as a separate proceeding with a separate prevailing party. The facts of Wood are closely analogous to those present here: There the plaintiff dismissed with prejudice his lawsuit against defendant; thus the defendant was undeniably the prevailing party. The defendant sought an attorney fee award, which the trial court denied. The Court of Appeal affirmed that ruling. The plaintiff then sought attorney fees on appeal because he prevailed in that proceeding. The appellate court ruled that the plaintiff was not entitled to fees because the "[d]efendant is the prevailing party in the lawsuit considered as a whole." (Id. at p. 804.)

As the Wood court explained, the trial and appeal of a matter are part of a single proceeding, and the "party prevailing on appeal is not necessarily the prevailing party for the purposes of awarding contractual attorney fees." (Id. at p. 806.) The Wood court held that where the appeal "[did] not decide who wins the lawsuit" (id. at p. 807), the fact that the plaintiff prevailed on appeal did not entitle him to attorney fees. The court concluded that "section 1717 does not support an award to the prevailing party on appeal, but only to the prevailing party in the lawsuit. [Citation.]" (Id. at p. 808.)

Lawyer, like the defendant in Wood, is indisputably the prevailing party in this litigation: Not only did Lawyer obtain a money judgment against Client, but the judge who presided at trial declared Lawyer to be the prevailing party. Because "section 1717 does not support an award to the prevailing party on appeal, but only to the prevailing party in the lawsuit" (Wood, supra, at p. 808), Client's fee award must be reversed.

DISPOSITION

The order is reversed. Appellant to recover costs of appeal.

We concur:

MOSK, J.

KRIEGLER, J.


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