Dismissal Of Action Ordered Vacated So Defendant May Seek Attorney Fees.

A plaintiff may dismiss an action without prejudice prior to trial and there is no prevailing party for purposes of awarding attorney fees under Civil Code section 1717. But in the present case, while there was indeed a contract which provided for an award of attorney fees to the prevailing party, the complaint also alleged the action was “ancillary to” an arbitration. The superior court action was stayed pending arbitration. After an interim arbitration award in favor of defendants, plaintiff dismissed the superior court action. Thereafter, defendant moved in superior court to set aside the dismissal of action for purposes of recovering prevailing party attorney fees in the superior court action. Reasoning the arbitration was a separate proceeding and the dismissal of action in the superior court was prior to the commencement of trial, the trial judgment declined to set aside the dismissal. The appellate court reversed because the arbitration and the lawsuit were based on the same causes of action and differed only in the remedies sought. (Mesa Shopping Center-East, LLC v. Hill (Cal. App. Fourth Dist., Div. 3; December 23, 2014) 232 Cal.App.4th 890, [181 Cal.Rptr.3d 791].)