Sancarrow Assocs. v. Hermanson CA4/3

INTRODUCTION

After a complaint against them for unlawful detainer was dismissed, appellants Barry Hermanson and Sally Hermanson moved in the trial court for their attorney fees. The court denied the motion on the ground that Civil Code section 1717 applied to the fee motion and the code section prohibited the award of fees after a voluntary dismissal. For their part, the Hermansons argued that because of the way the attorney fee provision was worded, Civil Code section 1717 did not apply to their motion; the correct statute was Code of Civil Procedure section 1032. We affirm, on two grounds. First, the attorney fee provision under which the Hermansons sought their fees did not apply to them. Second, Civil Code section 1717 governs all contract-based attorney fee motions, and the statute explicitly precludes attorney fee awards after a plaintiff has voluntarily dismissed a lawsuit. This code section applies regardless of the wording of any specific attorney fee provision.

FACTS

Respondent Sancarrow Associates owns a piece of commercial real estate in Santa Ana. In 1973, Sancarrow leased the property to Carrows Hickory Chip Restaurants, Inc. (Carrows). Carrows in turn subleased…