§6.10 Costs and Attorney Fees

The prevailing party is entitled to costs and attorney fees allowed by statute or by the rental agreement. [See CCP §§1032(b), 1021, 1174.2, 1033.5(a)(10); CRC 3.1700; Selma Auto Mall II v Appellate Dep’t (1996) 44 CA4th 1672, 1684; Fairchild v Park (2001) 90 CA4th 919, 923–924.] However, an award of attorney fees may be made only on a notice motion or on entry of a default judgment. [See CCP §1033.5(c)(5); CRC 3.1702(a)–(b); P.R. Burke Corp. v Victor Valley Wastewater Reclamation Auth. (2002) 98 CA4th 1047, 1052; Russell v Trans Pac. Group (1993) 19 CA4th 1717, 1725.] A plaintiff who recovers possession may also recover eviction expenses by filing a supplemental cost memorandum. [CCP §1034.5; CRC 3.2000.]

Requests for attorney fees are considered as in any other case. Factors to consider include the hourly rates in the legal community, the time expended and the work performed, the attorney’s level of experience, the complexity of the issues, the efficiency of the work, and the result obtained. The standard is legal services that are “reasonably necessary” to obtain the judgment verdict rendered.

If a landlord, however, voluntarily dismisses an unlawful detainer action based on an alleged breach of contract during an unexpired term (e.g., nonpayment of rent, improper use of the premises), there is no prevailing party under CC §1717(b)(2), and an award of attorney fees is improper. [Mitchell Land & Improvement Co. v Ristorante Ferrantelli, Inc. (2007) 158 CA4th 479, 485–490.] On the other hand, if an unlawful detainer action is brought to oust a holdover tenant after expiration of the lease, the action is based on tortious conduct (e.g., trespass), and it is an action sounding in tort. For such a noncontract claim, section 1717 does not bar recovery of attorney fees if the action is voluntarily dismissed. [Drybread v Chipain Chiropractic Corp. (2007) 151 CA4th 1063, 1071–1075.]

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REFERENCE >> For a more comprehensive treatment of this complex area, see California Judges Benchbook: Civil Proceedings—Trial §§16.31–16.33, 16.61, 16.74 et seq (Cal CJER 1997).