Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC407405 Rita Miller, Judge. Affirmed in part and reversed in part.
Freedman & Taitelman, Michael A. Taitelman and Brian E. Turnauer for Defendant and Appellant.
Greenberg Glusker Fields Claman & Machtinger, Lee A. Dresie and Megan F. Rivetti for Plaintiff and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
Defendant Regency Outdoor Advertising, Inc. (Regency) seeks reversal of the trial court’s order denying its motion for costs and attorney fees in an unlawful detainer action brought by Plaintiff M&M Media Group, Inc. (M&M). M&M voluntarily dismissed its unlawful detainer complaint without prejudice, and Regency contends that this dismissal rendered Regency the “prevailing party” in the action entitled to recover its costs and attorney fees pursuant to Code of Civil Procedure section 1032.
We find that the trial court lacked discretion to deny Regency’s request for reimbursement of court costs, and reverse the court’s order insofar as it denies the motion for costs. However, we affirm the court’s order denying Regency’s motion for attorney fees, holding that the trial court properly exercised its discretion in determining that Regency was not the prevailing party for purpose of the attorney fees request.
FACTUAL AND PROCEDURAL BACKGROUND
M&M owns a building on Sunset Boulevard in West Hollywood, California, that houses the famed “Whiskey A Go Go” bar. On September 25, 2000, M&M agreed to rent to Regency the building rooftop, where Regency would erect and maintain a billboard advertising structure. The parties’ agreement (Rental Agreement) provided that Regency would own the advertising structure that it constructed as well as the signs, supporting structures, and other improvements made by Regency, and, at the expiration of the agreement, Regency would have the right to remove these structures and improvements. The agreement was to remain in force until at least December 31, 2008, and would be continued for a successive term unless M&M or Regency served written notice at least 60 days prior to December 31, 2008. M&M contends that on October 29, 2008, M&M sent a termination notice to Regency. Although Regency contended the notice was ineffective, it began making plans to remove the billboard structure and related improvements.
After a dispute arose with respect to Regency’s removal of the advertising structure and related improvements, M&M filed an unlawful detainer action “demand[ing] possession... because of expiration of a fixed-term lease” (the First Action). The complaint listed the property at issue as the “signage at 8901 Sunset Boulevard.” Relying on the principle that an action for unlawful detainer is unsuitable when ownership of the property as to which possession is sought is disputed, Regency filed a motion to quash the summons and complaint. Regency asserted that M&M’s unlawful detainer action was inappropriate because both M&M and Regency claimed ownership of the signage on the roof.
In response, M&M filed a first amended complaint identifying M&M as the “owner of the signage licensing rights” and listing the property as to which possession was sought as the “[p]ortion of the signage structure not owned by Regency Outdoor Advertising on the rooftop of 8901 Sunset Blvd.” Regency again moved to quash, contending that Regency claimed ownership of the entire billboard structure, and thus ownership of the property sought to be possessed by M&M was still disputed. In its opposition, M&M argued that it did not dispute Regency’s ownership of the billboard structure, and that it sought only to evict Regency from the rooftop and to compel Regency to remove its sign from the rooftop. However, its opposition papers revealed a dispute over the ownership of steel structural supports that attached the billboard structure to the building.
After the trial court heard Regency’s motion to quash and indicated that its tentative decision was to dismiss the unlawful detainer complaint with leave to amend, M&M filed a request for dismissal of its complaint. Unaware that M&M had filed a request for dismissal, that same day the trial court issued a ruling granting Regency’s motion to quash and dismissing the First Action without prejudice.
Several days later, M&M’s owners filed a new unlawful detainer action, with a different case number, that identified the property at issue as the “rooftop at 8901 Sunset Blvd.” (the Second Action). Regency moved to quash the new complaint in the Second Action, contending that M&M included the steel support beams in its definition of “rooftop, ” and thus there remained a dispute as to the ownership of the property at issue. Shortly afterwards, M&M filed a first amended complaint in the Second Action, dropping the unlawful detainer cause of action and adding claims for breach of lease, trespass, and intentional interference with business advantage.
After M&M filed the complaint in the Second Action, Regency requested an award of $390 in costs and $31,227.50 in attorney fees incurred in defending the First Action. Regency moved for reimbursement under Code of Civil Procedure sections 1032 and 1033.5, contending that it was the prevailing party because it “successfully defended the action of [M&M] by way of its motion to quash, which resulted in M&M’s voluntary dismissal of its amended complaint, and no recovery to M&M.”
The trial court found the motion for attorney fees and costs on the First Action to be premature, because, after voluntarily dismissing the unlawful detainer action, M&M had filed the Second Action with different causes of action arising out of the same circumstances. The court found that to construe Civil Code of Civil Procedure section 1032 to make Regency the prevailing party “would elevate form over substance to create an absurd result.” The court thus denied Regency’s motion “without prejudice to being filed after a prevailing party is determined” in the Second Action.
While the Second Action continued to be litigated, this timely appeal of the attorney fees issue in the First Action followed.
DISCUSSION
Standard of Review
Generally, a trial court’s determination as to whether a litigant is a prevailing party is reviewed for abuse of discretion. However, to the extent the issue involves the interpretation of a statute, it is a question of law reviewed de novo. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 (Goodman).)
Regency Is Entitled To Recover Its Costs
Regency contends that, as the party in whose favor dismissal was entered, the trial court had no discretion to deny Regency’s motion for reimbursement for $390 in court costs. We agree with Regency.
Section 1032 provides, in relevant part, that a defendant is a “prevailing party” when dismissal is entered in favor of the defendant, or when the plaintiff recovers no relief from the defendant. (Code Civ. Proc., § 1032, subd. (a)(4).) In situations other than those specifically addressed by section 1032, the trial court has discretion to determine whether there is a prevailing party and to allow costs or not. (Code Civ. Proc., § 1032 subd. (a)(4); see Goodman, supra, 47 Cal.4th at p. 1333.) Section 1032 further provides that “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b); see Goodman, supra, 47 Cal.4th at p. 1333.) In the event of a plaintiff’s voluntary dismissal, whether it be with or without prejudice, the defendant is entitled to recover his or her costs. (Santisas v. Goodin (1998) 17 Cal.4th 599, 621 (Santisas); Cano v. Glover (2006) 143 Cal.App.4th 326, 331.)
Under section 1032, the voluntary dismissal of M&M’s suit in Regency’s favor entitled Regency to recover its court costs. Therefore, the trial court should have awarded Regency the $390 it requested for reimbursement of costs.
The Trial Court Did Not Err in Denying Regency’s Motion for Attorney Fees
Regency also contends that the trial court should have awarded it $31,227.50 in attorney fees because it was the prevailing party in the First Action. We disagree with Regency as to this assertion.
Attorney fees may be recovered by a prevailing party only when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10); see Silver v. Boatwright Home Inspection, Inc. (2002) 97 Cal.App.4th 443, 450 (Silver).) In this case, it is undisputed that the Rental Agreement included an attorney fees provision providing that “[i]n the event of any litigation to determine the rights of either party under this lease or to construe the Agreement, or the obligations of either party in regard thereto, the prevailing party shall be entitled to such reasonable attorney’s fees and all court costs as shall be awarded by a court of competent jurisdiction.” Neither in the court below nor on appeal does M&M suggest that its unlawful detainer action is not litigation “to determine the rights of either party under this lease or to construe the Agreement, or the obligations of either party in regard thereto.” (Cf. Silver, supra, 97 Cal.App.4th at p. 449 [particular language of attorney fee provision may not cover non-contract causes of action]; Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1072 (Drybread).) Accordingly, we assume without deciding that the provision is broad enough to encompass the unlawful detainer action brought by M&M.
M&M also does not attempt to argue on appeal that Civil Code section 1717 bars the recovery of attorney fees in this case. (See Code Civ. Proc., § 1717, subd. (b)(2).) Section 1717, which applies to actions on a contract, prohibits an award of attorney fees where an action has been voluntarily dismissed. (Ibid.) While an unlawful detainer action is sometimes considered an action on a contract (see, e.g., Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc. (2007) 158 Cal.App.4th 479, 488), M&M’s unlawful detainer action sounds in tort because it seeks relief for Regency’s tortious holding over after expiration of the lease. (See Drybread, supra, 151 Cal.App.4th at p. 1076.) Accordingly, section 1717 is inapplicable in this case.
However, even assuming that the attorney fees provision covers M&M’s unlawful detainer action, “the prevailing party for the award of costs under section 1032 is not necessarily the prevailing party for the award of attorney fees” based on a contractual provision. (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 190 (Chinn).) Whereas a party in whose favor a dismissal is entered is automatically entitled to recover its costs, our Supreme Court has held that “attorney fees should not be awarded automatically to parties in whose favor a voluntary dismissal has been entered.” (Santisas, supra, 17 Cal.4th at p. 621.) Rather, in the event of such a voluntary dismissal, “a court may determine whether there is a prevailing party, and if so which party meets that definition, by examining the terms of the contract at issue, including any contractual definition of the term ‘prevailing party’ and any contractual provision governing payment of attorney fees in the event of dismissal. If... the contract allows the prevailing party to recover attorney fees but does not define ‘prevailing party’ or expressly either authorize or bar recovery of attorney fees in the event an action is dismissed, a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise.” (Id. at p. 622; see Chinn, supra, 166 Cal.App.4th at p. 192; Silver, supra, 97 Cal.App.4th at p. 452.) The trial court is thus tasked with exercising its discretion and applying “a common-sense interpretation that requires an assessment of the extent to which each party achieved its litigation objectives.” (Chinn, supra, 166 Cal.App.4th at p. 192; see Silver, supra, 97 Cal.App.4th at p. 452.)
Here, the Rental Agreement contains no definition of the term “prevailing party.” In the absence of such a definition, Regency acknowledges, the trial court was required to use its discretion and employ a pragmatic approach to determine the extent to which Regency had realized its litigation objectives and thus could be deemed the prevailing party.
The trial court determined that M&M’s voluntary dismissal of the action without prejudice “does not alter the fact that a dispute remains between the same parties, concerning the same property, and the same relationship created under the same contract. Plaintiff may still prevail on its current claim [the Second Action]. The situation is analogous to one where a plaintiff asserts two causes of action, loses on one, and may win on the other. It remains to be seen if that plaintiff is the prevailing party. To construe the statute to make the defendant the prevailing party under this scenario would elevate form over substance to create an absurd result.”
Regency argues that the trial court abused its discretion by failing to find that Regency had achieved success in the First Action because it forced M&M to abandon its supposed claim to the billboards. However, Regency’s characterization of the unlawful detainer action as solely a “controversy over ownership of the Billboards” is not supported by the record, which reveals a broader dispute as to possession of the rooftop, and the trial court did not err in refusing to credit this characterization.
Regency also asserts that the trial court should not have focused on the fact that M&M had brought a re-tooled Second Action against Regency based on the same circumstances immediately following M&M’s voluntary dismissal of the First Action. Regency has not pointed to any authority demonstrating that the trial court committed error in relying on the existence of an on-going, unresolved dispute in finding that Regency had not yet prevailed in the litigation, and we do not believe that the trial court’s analysis exceeded the bounds of reason such that we are required to overturn its decision. (Silver, supra, 97 Cal.App.4th at p. 449.) Contrary to Regency’s contention, the trial court properly applied a common sense approach (Santisas, supra, 17 Cal.4th at p. 622) and “‘respect[ed] substance rather than form’” (Silver, supra, 97 Cal.App.4th at p. 451, fn. 6, quoting Hsu v. Abbara (1995) 9 Cal.4th 863, 877) in refusing to declare Regency the prevailing party given the continuing dispute between the parties.
Regency also now asserts that it should be deemed the prevailing party because the trial court granted its motion to quash and dismissed M&M’s First Action before M&M’s notice of voluntary dismissal was entered. Regency has forfeited this argument on appeal because it failed to raise it in moving for attorney fees in the trial court, and, in fact, argued the contrary position that it was entitled to attorney fees because “M&M voluntarily dismissed its amended complaint for unlawful detainer prior to the formal ruling on Regency’s motion to quash.” (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1429.) Indeed, the trial court adopted Regency’s original position in its ruling on the attorney fees motion, noting that M&M had dismissed the matter before the trial court issued its ruling on the motion to quash. It would be unfair to permit Regency to switch courses now.
In sum, we uphold the court’s decision that Regency was not the prevailing party for purposes of recovering attorney fees.
DISPOSITION
The portion of the judgment denying Regency’s motion for costs in the amount of $390 is reversed. In all other respects, the judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: MANELLA, J., SUZUKAWA, J.