Contra Costa County Superior Court

Procedural Posture

Appellant general contractor challenged an order of the Contra Costa County Superior Court (California), denying his motion for attorney fees after respondent dismissed his negligence and breach of contract action against appellant on the day of trial. Appellant argued that the trial court committed reversible error by relying on Cal. Civ. Code § 1717 in refusing to award attorney fees.

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Overview

Respondent filed a construction defect suit against appellant general contractor. The complaint contained causes of action for breach of contract and negligence pertaining to the installation of air conditioning units. On the day of trial, respondent dismissed his complaint with prejudice. Thereafter, appellant sought an award of attorney fees pursuant to a provision in their written contract expressly allowing such fees. Appellant challenged the trial court's denial of his motion for attorney fees, arguing that the trial court committed reversible error by relying on Cal. Civ. Code § 1717 (§ 1717) in refusing to award attorney fees. The appeals court reversed and remanded for an award of reasonable attorney fees under Cal. Civ. Proc. Code § 1021 (§ 1021) pursuant to the parties' contract. The court ruled that § 1717 was not controlling because by relying on the contract provision, appellant invoked § 1021 which allowed the parties to allocate attorney fees by agreement. Moreover, the court ruled that while a party invoking § 1717's procedure could not recover attorney fees as costs following a pretrial dismissal by the plaintiff, such costs were recoverable under § 1021.

Outcome

The appeals court reversed the trial court order denying appellant's motion for attorney fees and remanded for entry of an award of reasonable attorney fees. The court ruled that despite the pretrial dismissal, the rules of civil procedure entitled appellant to award of attorney fees as costs based on his contractual agreement with respondent.