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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Lorene Cleary v. Jeff Thompson, et al.

Case No: 19CV05349
Hearing Date: Mon Jan 06, 2020 9:30

Nature of Proceedings: Motion Strike Costs Sought by Defendant and to Declare Plaintiff the Prevailing Party

CASE:                            Lorene Cleary v. Jeff Thompson and Valerie Barlow, Case No. 19CV05349 (Judge Sterne)


HEARING DATE:                January 6, 2020


MATTER:                              Motion to Strike Costs



John J. Thyne, III for Plaintiff Lorene Cleary

David M. Grokenberger for Defendants Jeff Thompson and Valerie Barlow


TENTATIVE RULING:        Plaintiff’s motion to strike costs is denied. Defendants are awarded costs in the sum of $473.80.





This is an unlawful detainer action. On July 25, 2017, defendants Jeff Thompson and Valerie Barlow entered into a written rental agreement for a studio apartment owned by plaintiff Lorene Cleary, located at 126 Loureyro Road, Studio L, Santa Barbara, California 93108. The term of the rental agreement was month-to-month, with the rent of $1,800.00 due on the third day of each month. Defendants failed to pay the required rent for July and August 2019 and on September 19, 2019, plaintiff caused a three-day notice to pay rent or quit to be served on defendants. Defendants failed to comply with the requirements of the notice and on October 7, 2019, plaintiff filed her complaint in unlawful detainer. Defendants answered the complaint on October 21, 2019, asserting multiple affirmative defenses, including that the premises were illegal and not approved as a residential rental unit.


Prior to the trial setting conference in the case, defendants vacated the premises and tendered possession back to plaintiff. On November 6, 2019, plaintiff filed a request for dismissal of the action without prejudice. Following entry of the dismissal, defendants filed a memorandum of costs in the amount of $473.80. Plaintiff now moves for an order striking these costs and for an order declaring her to be the prevailing party in the action. Defendants oppose the motion.




Unless otherwise 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). “Prevailing party” includes “a defendant in whose favor a dismissal is entered[.]” Code Civ. Proc. §1032, subd. (a)(4). Because plaintiff voluntarily dismissed her complaint, defendants assert that they are the prevailing parties within the meaning of Section 1032 and entitled as a matter of right to recover their costs. Santisas v. Goodin (1998) 17 Cal.4th 599, 606; see also, Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1012, fn. 4 (“‘Dismissal’ within the meaning of section 1032 includes voluntary dismissal.”). Plaintiff, on the other hand, argues that she is the prevailing party because she achieved her litigation goals when defendants vacated the premises. The primary purpose of an unlawful detainer action is the recovery of possession of real property. Union Oil Company v. Chandler (1970) 4 Cal.App.3d 716, 721.


The facts are not in dispute. On July 25, 2017, plaintiff and defendants entered into a rental agreement for the property. (Thyne Dec., ¶1; Comp., Ex. 1.) After plaintiff filed her unlawful detainer complaint, defendants vacated the premises. (Thyne Dec., ¶3.) On November 6, 2019, plaintiff voluntarily dismissed the action. (Thyne Dec., ¶5; Request for Dismissal, filed 11-6-19.) Thus, there was no adjudication of the merits of the action – not plaintiff’s claim of right to possession nor any of defendants’ affirmative defenses. The dismissal, however, makes defendants the “prevailing party” under Section 1032, subdivision (a)(4), for purposes of awarding costs. In their costs memorandum, defendants seek their first appearance fees ($225.00 each) and electronic filing fees ($23.80), for total costs of $473.80. (Memorandum of Costs, filed 11-21-19.) Plaintiff could have avoided paying these costs by dismissing the action in exchange for a waiver of costs, but she did not do that.


While defendants are the “prevailing party” for purposes of awarding costs, neither plaintiff nor defendants prevailed in the action for purposes of awarding attorney’s fees under Civil Code Section 1717, notwithstanding that the contract between the parties provides, at paragraph 18:


“In any legal action or proceeding brought by either party to enforce any part of this agreement, the prevailing party shall recover in addition to all other relief, reasonable attorney’s fees and costs.”


(Comp., Ex. 1, ¶18.)


Civil Code Section 1717, subdivision (b)(2), specifically prohibits an award of attorney’s fees when an action “on a contract” has been voluntarily dismissed. An unlawful detainer action based upon an alleged breach of the rental agreement for nonpayment of rent or improper use of the premises is an action “on a contract” within the meaning of Section 1717. Mitchell Land & Improvement Company v. Ristorante Ferrantelli, Inc. (2007) 158 Cal.App.4th 479, 488.    


Based on the foregoing, plaintiff’s motion to strike defendants’ cost memorandum will be denied. Defendants are the prevailing party and entitled to costs based on the unilateral dismissal of the action. However, neither plaintiff nor defendants prevailed in the action for purposes of an award of attorney’s fees.

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