Code of Civil Procedure §§ 1032(b) and 1033.5(a)(10) collectively provide that the prevailing party in a civil action may recover, as a matter of right, attorney’s fees when authorized by contract or statute. The “prevailing party” is the party with a net monetary recovery or for whom judgment is entered. CCP §1032(a)(4). The method and manner of calculating what fees are recoverable is generally left to the agreement of the parties. CCP §1021. Parties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract. Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1341. Where an agreement for fees exists, but the method is not defined, courts will weight various factors to reach a “reasonable” amount to award as fees. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.

Plaintiff has failed to carry his burden of proof on the motion for several reasons:

First, plaintiff cites to Civil Code §1717 as the statutory basis for his award, but Civil Code §1717 does not itself provide for the recovery of fees. Instead, that section merely converts a unilateral contractual agreement for fees into a bilateral (reciprocal) agreement. Thus, plaintiff must still demonstrate the existence of a contractual agreement to shift attorney fees. The motion is silent as to that particular agreement.
Second, §1717(b)(2) expressly provides that “where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” On 05/04/12, plaintiff’s bankruptcy trustee settled this case with defendants for a nominal amount. The settlement was approved by the bankruptcy court, and plaintiff’s appeal therefrom dismissed. The fact that Sui has taken an appeal to the 9th Circuit does not change things since trial courts have no authority to override a bankruptcy court decision confirming the settlement agreement.

Third, the settlement agreement itself provides (at para 7) that “all parties hereto shall bear their own attorney fees, expenses, and costs incurred in connection with the disputes between the parties hereto and in preparation of this agreement.” In other words, assuming the settlement agreement withstands 9th Circuit review, the parties effectively waived any right to recover fees from the other for purposes of the underlying action (but did preserve for themselves a right to recover fees in any litigation subsequent to the settlement).

Fourth, plaintiff has not shown that he incurred any attorney fees. At all relevant times, plaintiff was apparently self-represented (as he is now), and a self-represented individual may not recover contractual attorney fees under Civil Code §1717. See Trope v. Katz (1995) 11 Cal.4th 274, 280.

Fifth, a notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court–including attorney’s fees on an appeal before the rendition of judgment in the trial court–must be served and filed within the time for filing a notice of appeal (CRC 3.1702(b)(1)), which in this instance would be 60 days from notice of entry of judgment or service of a file-stamped copy of the judgment. CRC 3.1702(b)(1), 8.104(a)(1)(A) and (B). The same window applies to voluntary dismissals. See Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 426-429. Here, the action was dismissed on 08/17/12, with notice of entry of said order having been served on plaintiff by mail on 08/23/12. Service may be by any method permitted by the Code of Civil Procedure. CRC 8.104(a)(3). Thus, plaintiff had through October to bring the present motion, but waited to file until 03/03/14. Neither the appeal in this action, nor the pending 9th Circuit appeal, toll the 60-day time limit. See Lewow v. Surfside III Condominium Owners’ Association (2012) 203 Cal.App.4th 128, 133-134; Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1638-1639.

Sixth, plaintiff’s explanation for how he is the prevailing party leaves much to be desired. According to plaintiff, he “prevailed” because this case was settled for a dismissal with roughly $1,250 paid by defendants in exchange therefore. Plaintiff has consistently rejected the validity of said settlement agreement, but more importantly when compared to the damages claimed herein, that type of settlement hardly speaks of success. This lawsuit contained six causes of action, half of which would qualify as being “on a contract” under Civil Code §1717. For those, no damages were actually alleged; instead, the breadth of the action seemed to be about declaration of rights. Civil Code §1717 permits a trial court to declare it a draw – that neither side prevailed on the contract. See Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 239-241. Here, there was no prevailing party.

Seventh, the determination of prevailing party is premature in a sense since the merits have never been tested. In Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, the Court observed that “because there is no reckoning of the net success of the parties, there is no prevailing party under the parties’ agreements nor pursuant to Civil Code section 1717 … the merits of that dispute remained before the court.” Id. at 532, 546. Similarly, in Roberts v. Packard, Packard & Johnson (2013) 217 Cal.App.4th 822, the Court observed that “the prevailing party determination cannot be made until the parties’ requests for relief – here, plaintiffs’ causes of action – have been resolved.” Id. at 831. Plaintiff here contends that he prevailed but in fact the appellate division only set aside the dismissal for failure to post a vexatious litigant bond. It was a mere interlocutory victory having nothing to do with the merits of the claim (a claim which was long ago settled and dismissed).

Motion denied.

Defendants’ request for the imposition of sanctions against plaintiff is vague, there being no specific statutory grounds set forth for the request. Merely being unmeritorious is not enough. Request denied.