Smith v. Calbert Ca1/1

DISCUSSION

The attorney fee provision in the rental agreement provides in pertinent part: “In any action or legal proceeding to enforce any part of this Agreement, the prevailing party . . . shall recover reasonable attorneys fees and court costs.” Section 1717 regulates contractual shifting of attorneys fees. Subdivision (b)(2) states: “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.” The courts have construed this provision to mean that where there has been a voluntary dismissal, there can be no award of contractual fees in connection with a contract claim. However, the prohibition extends only to contract claims, and not to tort claims. Thus, if an attorney fees provision is broadly worded, and allows for an award of fees for both contract and tort claims, then there can be a “prevailing party” on the tort claims, despite a voluntary dismissal. (Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1071 (Drybread).) Frequently, the standard of review on appeal from an attorney fee award is abuse of discretion. That is not the case, however, where, as…