Metropolitan News-Enterprise


Thursday, October 21, 2021


Page 1


Court of Appeal:

There’s No ‘Prevailing Party’ Absent Judgment


By a MetNews Staff Writer


A landlord that sued to regain possession of its premises from a tenant, and obtained possession when the tenant vacated the premises while an appeal from a judgment in its favor was pending, was not entitled to attorney fees based on a fee-shifting provision in the lease because, absent a final judgment, there was no “prevailing party,” Div. One of the Fourth District Court of Appeal has held.

The lessor, PhxCap II, LLC, had brought an unlawful detainer action against its tenant AG Mobile Restaurant Concepts, LLC. A jury in 2017 found in favor of the tenant; PhxCap II appealed; AG Mobile moved out before the appeal was decided, in response to a new U.D. action, and made back-rent payments; the Court of Appeal on Aug. 28, 2019, reversed and remanded; on remand, PhxCap II sought its attorney fees under a lease provision specifying that such an award would be made to the “prevailing party” in any legal dispute.

Irion’s Opinion

San Diego Superior Court Judge Timothy B. Taylor awarded $221,849 to the lessor. Reversal came in an unpublished opinion by Justice Joan K. Irion, filed Tuesday.

She wrote:

“The trial court erred. There was no final judgment either at the time Landlord filed its motion or at the time the court awarded attorney fees as costs. Thus, Landlord did not present, and Tenant was prejudiced by not being able to oppose, evidence or argument regarding entry of a final judgment or, for purposes of the award of attorney fees as costs, the determination of a prevailing party based on such a judgment.”

Neither statute nor caselaw, she declared, “allows for the trial court to determine the prevailing party before the filing of a final judgment.”

Litigation Objective

PhxCap II argued that it was clearly the prevailing party because, by virtue of AG Mobile’ desertion of the premises, it “substantially obtained the relief it sought—possession.”

Unimpressed by the argument, Irion said the lessor “presented no evidence” that pinpointed the circumstances “of either Tenant’s abandonment of the Premises, or Landlord’s possession of the Premises.” She noted that a dispute persisted as to the adequacy of the past-due rent payments.

“Given this record, in its motion, Landlord did not present a prima facie case for entitlement to an award of attorney fees,” Irion said.

The case is PhxCap II v. AG Mobile Restaurant Concepts, D078074.


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