Venue Victor Is No Prevailing Party

DisputeSuite.com v. Scoreinc.com, No. S226652 (Cal. Apr. 4, 2017)

The Supreme Court granted review of this case, which I wrote about back in 2015. The issue is whether a defendant can get an award of contractual attorneys’ fees under Civil Code § 1717 as a prevailing party, when what it prevailed upon was a motion to dismiss for forum non-conveniens. The Court of Appeal said the trial court didn’t abuse its discretion for saying no. Generally, it is reasonable to find that such an award would be premature because the merits of the case would be litigated elsewhere.

The Supreme Court basically agrees. Under its prior precedent, a defendant that wins a complete victory is entitled to a § 1717 award as a matter of law. See Hsu v. Abbara, 9 Cal. 4th 863 (1995). But winning an FNC motion isn’t a complete victory, just a interim decision about where a case should be brought. While it might be possible that an FNC dismissal could completely kill off a claim, that wasn’t the case here. So the Court of Appeal was correct to hold that there was no abuse of discretion in denying a § 1717 award.

Court of Appeal affirmed.

You Do Not Prevail by Moving to Florida

Disputesuite.com v. Scoreinc.com, No. B248694 (D2d2 Apr. 14, 2015)

Defendant in this case successfully got the case dismissed on forum non conveniens grounds based on a contractual provision calling for Florida venue. The contract also contained an attorney fee provision, and the defendant moved for about $85,000 in fees, which the trial court denied and the court of appeal affirms. An attorney fee provision is supposed to look to the prevailing party at the end of the litigation. Litigation that ends in California because it needs to get filed in Florida isn’t actually over. So while defendant prevailed in its forum-non motion, it hasn’t prevailed in the case and a fee award would thus be premature.

Affirmed.

Update: Review Granted August 19, 2015.