Opinion
C049803
5-3-2007
DONNA ECKWORTZEL FREY, Plaintiff and Appellant, v. DENNIS FOXX, Defendant and Appellant.
NOT TO BE PUBLISHED
MODIFICATION OF OPINION
THE COURT:
The opinion of this court filed April 9, 2007, in the above entitled case is modified as follows:
l. On page 14, delete the first full paragraph starting on line 9, and insert the following paragraph:
"In any event, the "determination of the prevailing party lies in the trial courts sound discretion," which discretion should be reversed only where it has been prejudicially abused. (Elster v. Friedman (1989) 211 Cal.App.3d 1439, 1443.) A plaintiff is the prevailing party when she gets most of what she wanted by filing the action, and she may not be denied attorney fees if a resolution was reached by settlement. (Id. at pp. 1443-1444 [analogizing to section 1021.5].) In this case Frey obtained a temporary restraining order against Foxx, and the trial court would have granted her a permanent injunction, had Foxx not voluntarily moved out of her neighborhood. Moreover, the trial court specifically found that Foxx had assaulted Frey. Under these circumstances, the trial court did not abuse its considerable discretion in finding Frey was the prevailing party."
This modification does not effect a change in the judgment.
BY THE COURT:
SCOTLAND, P. J.
BLEASE, J.
HULL, J.