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Filed 5/11/23 Ghukassian v. Wolfberg CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

HOVIK GHUKASSIAN et al.,

Plaintiffs and Respondents,

v.

BRENT WOLFBERG et al.,

Defendants and Appellants.

E078304

(Super. Ct. No. CVPS2103176)

OPINION

APPEAL from the Superior Court of Riverside County. Ronald L. Johnson and 

Randolph Rogers, Judges. Affirmed.

Inland Counties Legal Services, Iris I. Vasquez, Maria E. Castillo, Sang Banh,

Darrell K. Moore and Anthony D. Lewis, for Defendants and Appellants.

Knauss Law Group and Joanne M. Knauss, for Plaintiffs and Respondents.

I.

INTRODUCTION

In July 2021, respondents Hovik and Mariet Ghukassian sued their tenants,

appellants Brent Wolfberg and Barry E. Taff, for allegedly not paying almost $30,000 in 

rent and other costs during the COVID-19 pandemic. Appellants demurred on the ground 
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that the lawsuit was prematurely filed under renter protection laws enacted during the 

pandemic, which did not allow the lawsuit to be filed until November 2021. In October 

2021, the trial court agreed, sustained appellants’ demurrer, and dismissed the case

without prejudice to refiling the complaint a few weeks later. Appellants then sought 

attorney’s fees and costs under their rental agreement’s fee-shifting provision on the 

ground that they were the prevailing party in the action. The trial court denied their 

request. Because the trial court correctly found that appellants were not prevailing parties

and thus not entitled to attorney’s fees, we affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND1

The Ghukassians sued appellants for breach of contract in July 2021. The 

Ghukassians alleged that appellants leased a property from them for $2,700 per month in 

October 2019, but stopped paying rent in October 2020. In February 2021, the 

Ghukassians filed a successful unlawful detainer action against appellants, which resulted 

in the possession of the rental property being restored to them.

The Ghukassians then filed this action for breach of contract in July 2021. The 

Ghukassians alleged appellants violated the terms of their lease by failing to pay 

$29,522.84 in rent, utility bills, and attorney’s fees associated with the unlawful detainer 

1 We assume the truth of the allegations in the Ghukassians’ operative complaint. 

(See Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.)
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action. The Ghukassians thus sought, among other relief, $29,522.84 in damages from 

appellants for unpaid rent between October 2020 and June 2021.

Appellants demurred to the complaint, arguing that Code of Civil Procedure 

section 871.10, subdivision (c)

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prevented the Ghukassians from suing for rent not paid 

during the COVID-19 pandemic until November 1, 2021. On October 8, 2021, the trial 

court agreed and found that the Ghukassians’ complaint was “premature.” The trial court 

therefore sustained appellants’ demurrer and dismissed the case “without prejudice to refiling on or after November 1, 2021.”

About a month later, appellants moved for attorney’s fees under Code of Civil 

Procedure section 1717 (section 1717) and their rental agreement, which states that “[i]n 

any action or proceeding arising out of this Agreement, the prevailing party . . . shall be 

entitled to reasonable attorney fee and costs . . . .” The trial court denied the motion 

because appellants “did not incur attorney’s fees or costs to enforce the contract nor did 

[they] prevail on the contract.” Appellants timely appealed.

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This provision provides in full: “An action to recover COVID-19 rental debt, as 

defined in [Code of Civil Procedure] Section 1179.02, that is subject to this section shall 

not be commenced before November 1, 2021.” Code of Civil Procedure section 1179.02 

in turn defines “COVID-19 rental debt” as “unpaid rent or any other unpaid financial 

obligation of a tenant under the tenancy that came due” between March 1, 2020 and 

September 30, 2021.
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III.

DISCUSSION

Appellants contend the trial court erred because they are entitled to attorney’s fees 

as the prevailing party. We disagree. Because we conclude the trial court properly found 

appellants were not the prevailing party and thus properly denied appellants’ attorney fee 

request on that basis, we need not address the court’s alternative finding that appellants 

did not incur any recoverable attorney’s fees.

We first note appellants argue the trial court’s ruling is subject to our “independent 

review” while the Ghukassians take no position on the appropriate standard of review. 

“Generally, a trial court’s determination that a litigant is a prevailing party, along with its 

award of fees and costs, is reviewed for abuse of discretion.” (Goodman v. Lozano

(2010) 47 Cal.4th 1327, 1332.) But when the determination of which party is the 

prevailing party is an issue of law based on undisputed facts, our review is de novo. 

(Khan v. Shim (2016) 7 Cal.App.5th 49, 55; Burkhalter Kessler Clement & George LLP 

v. Hamilton (2018) 19 Cal.App.5th 38, 43-44.) We need not resolve the issue because the 

trial court properly found appellants were not the prevailing party under section 1717

under any standard of review.

“[S]ection 1717, subdivision (b)(1), a prevailing party is defined as ‘the party who 

recovered a greater relief in the action on the contract.’” (City of West Hollywood v. 

Kihagi (2017) 16 Cal.App.5th 739, 753 (Kihagi).) To be a prevailing party, the party 

generally must prevail on the merits of the dispute, even though a purely procedural 
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victory can make a party the prevailing party under section 1717. (See DisputeSuite, LLC 

v. Scoreinc.com (2017) 2 Cal.5th 968, 969.) But the statute still requires a dispositive 

victory, not just an interim one where further proceedings on the merits are contemplated. 

(Kihagi, supra, at p. 753.)

To support their argument that they were the prevailing party, appellants rely 

entirely on Hsu v. Abarra (1995) 9 Cal.4th 863, but that case does not apply here. There, 

the defendant prevailed on the plaintiffs’ breach of contract action by proving there was 

no contract between the parties. (Id. at p. 865.) This “simple, unqualified decision” on 

the merits in the defendant’s favor “on the only contract claim in the action” rendered the 

defendant “unquestionably the sole victor” on the merits and thus the prevailing party 

under section 1717. (Id. at pp. 865-866.)

That is not the case here. Appellants did not prevail on the merits of the 

Ghukassians’ contract claim or procure a dispositive procedural victory that ended the 

case for good. They instead obtained only an interim dismissal of the Ghukassians’ 

contract claim without prejudice to the refiling of the claim. The dismissal may have

delayed the final resolution of the claim, but that is not enough to be a prevailing party 

under section 1717. (See Kihagi, supra, 16 Cal.App.5th at p. 754 [“[A] defendant might 

prevail within the meaning of . . . section 1717 by winning a purely procedural dismissal. 

If refiling would be legally barred . . . or would be otherwise impossible or impracticable, 

the defendant might be deemed the prevailing party without obtaining a resolution on the 

merits.”].)
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Estate of Drummond (2007) 149 Cal.App.4th 46, is illustrative here. In that case, 

appellants hired an attorney to assist them in a probate matter. (Id. at p. 48.) After the 

case settled, the appellants objected to the fee that the attorney charged, and claimed he 

had “duped them into hiring him on a contingency basis.” (Ibid.) The attorney, on the 

other hand, argued the appellants owed him more money, and petitioned the probate court 

for an order adjudicating their fee dispute. (Id. at p. 49.) Before he filed that motion, the 

clients filed a separate civil action against him for various claims, including fraud and 

breach of faith. (Ibid.) The probate court eventually dismissed the attorney’s petition 

because it had to be filed as a compulsory cross-complaint against the appellants in their 

civil action. (Ibid.; see Code Civ. Proc., § 426.30, subd. (a).) The probate court then 

denied the appellants’ motion for attorney’s fees. (Estate of Drummond, supra, at p. 49.)

The Court of Appeal held the appellants were not prevailing parties and thus were 

not entitled to attorney’s fees. (Estate of Drummond, supra, 149 Cal.App.4th at p. 49.) 

The court reasoned that the appellants had “obtained only an interim victory” based only 

on the attorney’s “pursu[ing] his claims in the wrong forum.” (Id. at p. 51.) Litigation on 

the attorney’s fee petition “ended solely because it should have been brought” elsewhere, 

and “[n]othing prohibited [him] from taking up his claims” in another forum. (Id. at p. 

53.) The probate court’s dismissal of his fee petition thus “did not defeat his contract 

claims,” but “merely deflected or forestalled them.” (Ibid.) As a result, the appellants

had not prevailed on the merits of the parties’ fee dispute. (Ibid.)
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In dismissing the Ghukassians’ sole contract claim without prejudice only because 

it was “premature,” the trial court expressly stated that the Ghukassians could refile it 

about three weeks later. As in Estate of Drummond, the dismissal was not dispositive 

and did not resolve the merits of the Ghukassians’ contract claim, “but instead merely 

deflected or forestalled” it. (Kihagi, supra, 16 Cal.App.5th at p. 754.) Because the victor 

on the merits of the Ghukassians’ contract action “is yet to be determined,” the trial court 

properly found that appellants are not the prevailing party under section 1717. (Presley 

of Southern California v. Whelan (1983) 146 Cal.App.3d 959, 961.) For that reason 

alone, the trial court properly denied their motion for attorney’s fees.

IV.

DISPOSITION

The trial court’s order denying appellants’ motion for attorney’s fees is affirmed. 

The Ghukassians may recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.