Filed 4/12/21 Wash v. Wash CA5

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

FIFTH APPELLATE DISTRICT

MARIA WASH,

Plaintiff, Cross-defendant and 

Respondent,

v.

JOHN WASH,

Defendant, Cross-complainant and 

Appellant.

F077486

(Super. Ct. No. 09CECG00933)

ORDER MODIFYING OPINION AND 

DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on March 11, 2021, be modified as 

follows: 

1. On page 5, the last sentence of the second to last paragraph beginning 

“Under John’s interpretation” is deleted and replaced with the following sentence: 

This contention is flawed on multiple grounds. 

2. On page 7, insert the following paragraphs after the first paragraph 

beginning “We conclude the term” and immediately before the heading 

“II. PREVAILING PARTY”: 

Third, the suit has proceeded to judgment for purposes of the 

statutory phrase “whether or not the suit proceeds to final judgment.” 

(§ 1717, subd. (b)(1).) The judgment was entered by the trial court in 

February 2015 and was the subject of the appeal in case No. F071135. As a 

result, the determination of the prevailing party must be in accordance with 
2

section 1717, subdivision (b)(1) and the terms of the parties’ contract. We 

note the February 2015 judgment and the attorney fees provision in the last 

paragraph of the settlement agreement were the basis for the original 

determination that Maria was the prevailing party entitled to $2,460 in 

attorney fees. The same judgment and same contractual provision are the 

basis for the award of fees Maria incurred on appeal to defend that 

judgment from reversal.

To summarize how section 1717, subdivision (b) applies to the trial 

court’s prevailing party determination, paragraph (1) controls because the 

suit proceeded to a final judgment (even though a final judgment is not 

essential to the application of paragraph (1)). In comparison, paragraph (2) 

of the subdivision has no application because there was no dismissal, either 

voluntary or pursuant to a settlement. Therefore, we next consider whether 

the trial court erred in making its prevailing party determination—that is, in 

applying section 1717, subdivision (b)(1) to the facts of this case. 

There is no change in the judgment. 

Appellant’s petition for rehearing filed on March 26, 2021, is hereby denied.

FRANSON, Acting P.J.

WE CONCUR:

MEEHAN, J.

DeSANTOS, J.
Filed 3/11/21 Wash v. Wash CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE 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

FIFTH APPELLATE DISTRICT

MARIA WASH,

Plaintiff, Cross-defendant and 

Respondent,

v.

JOHN WASH,

Defendant, Cross-complainant and 

Appellant.

F077486

(Super. Ct. No. 09CECG00933)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Mark W. 

Snauffer, Judge. 

John Wash, in pro. per., for Defendant, Cross-complainant and Appellant.

Daniel L. Harralson Law Office and Daniel L. Harralson for Plaintiff, Crossdefendant and Respondent.

-ooOoo-

* Before Franson, Acting P.J., Meehan, J. and DeSantos, J.
2

In an earlier appeal, this court affirmed a judgment enforcing the terms of a 

settlement agreement. (Maria Wash v. John Wash (Sep. 12, 2017, F071135) [nonpub. 

opn.].) The settlement agreement included an attorney fees provision and, after remittitur 

in case No. F071135, respondent Maria Wash filed a motion for attorney fees incurred in 

the appeal. The trial court determined Maria was the prevailing party for purposes of 

Civil Code section 1717, subdivision (b)(1)1 and awarded her attorney fees in the amount 

of $9,321.

Defendant John Wash filed this appeal, contending the trial court erred in 

determining Maria was the prevailing party. He argues this court should remand and 

direct the trial court to declare him to be the prevailing party or declare that no party 

prevailed in the appeal. As described below, we conclude the trial court committed no 

legal error and did not otherwise abuse its discretion in determining Maria was the 

prevailing party.

We therefore affirm the order awarding attorney fees to Maria. 

FACTS AND PROCEEDINGS

Much of the factual and procedural history of this litigation and the settlement was 

set forth in our opinion in case No. F071135. Most of that history need not be repeated in 

this unpublished decision.

The parties’ four-page settlement agreement was entered on August 24, 2010. A 

dispute arose about how to apply the settlement agreement’s terms. In January 2015, 

Maria sought a court order enforcing the settlement. John’s opposition asserted 

numerous grounds for denying the request, including that the agreement was 

unenforceable, was impossible to perform, was missing material terms, and was 

uncertain.

1 Unlabeled statutory references are to the Civil Code.
3

The trial court granted Maria’s motion to enforce the settlement agreement after 

determining it was valid and enforceable. The court referred to its authority under Code 

of Civil Procedure section 664.6, found the written agreement had been signed by the 

parties and their attorneys, determined the agreement contained all of the material terms 

of the parties’ agreement, and concluded the agreement was valid and enforceable.

In February 2015, the trial court entered a judgment to implement its order 

granting the motion to enforce the settlement. The judgment stated Maria shall have 

judgment against John “pursuant to the terms set out in the written settlement agreement 

dated August 24, 2010, a copy of which is Attached hereto as Exhibit ‘A’ and 

incorporated herein by reference.” The judgment awarded Maria attorney fees of $2,460. 

John appealed.

In case No. F071135, this court affirmed the trial court’s judgment without 

modification. In accordance with California Rules of Court, rule 8.278(a)(2), we 

determined Maria had prevailed on appeal and was entitled to recover her costs on 

appeal. In December 2017, remittitur was issued, and the cause was returned to the trial 

court.

In January 2018, Maria filed a memorandum of costs, claiming costs on appeal 

totaling $189.98. Maria also filed a motion to determine the prevailing party on contract 

and to fix the amount of attorney fees awardable as a cost item, along with a declaration 

from her attorney. The motion relied on the last paragraph of the settlement agreement, 

which states: “If either party is required to commence any proceeding or legal action or 

enforce or interpret any term, covenant or condition of this Settlement Agreement, the 

prevailing party [in] such proceeding or action shall be entitled to recover from the other 

party its reasonable attorney’s fees and legal expenses.” Maria argued she was the 

prevailing party on the appeal and, therefore entitled to recover her fees under the terms 

of the agreement. Applying the lodestar method for determining the amount of fees, she 
4

requested $18,216.98 for attorney fees incurred in the appeal plus an additional $2,100 

for preparation and argument of her fees motion.

In February 2018, John filed his opposition papers. John noted the appellate 

opinion affirmed the trial court’s judgment without modification and contended “the 

appellate court determined that contrary to the language of the judgment and by the 

incorporation of the settlement as attached to the judgment, both parties have a postjudgment right to request an order to enforce the terms against the other if one party fails 

to perform [citation]. This opinion interpretation and finding is substantially in favor of 

John Wash.” In addition, John raised an issue of statutory construction, arguing 

section 1717, subdivision (b)(2) prohibited the trial court from determining prevailing 

party status. As to the amount awarded, John argued Maria’s counsel had grossly 

overstated the hours incurred.

Maria filed reply papers that included another declaration from her attorney. 

Two days before the hearing, John filed objections to Maria’s reply. Among other things, 

John contended the trial court was required to immediately issue an order directing the 

clerk of the trial court to delete Maria’s attorney as the attorney of record for his deceased 

brother, the Wash and Wash general partnership, and Maria.

The trial court issued a tentative ruling and John requested argument. On 

March 7, 2018, the trial court held a hearing on the motion for attorney fees. John 

appeared in court and represented himself. Maria was represented at the hearing by her 

attorney. After hearing argument, the court took the matter under advisement. Later that 

day, the court issued its order. The court determined Maria was the prevailing party, 

granted her motion, and fixed the amount of attorney fees at $9,321, which included the 

fees incurred in bringing the motion.
5

In April 2018, John filed a timely appeal. In December 2019, John filed his 

appellant’s opening brief. In July 2020, Maria filed a respondent’s brief. John filed his 

appellant’s reply brief on October 26, 2020.

DISCUSSION

I. INTERPRETATION OF SECTION 1717

We begin by considering John’s contention that, because the case was settled, 

section 1717, subdivision (b)(2) precluded the trial court from making a prevailing party 

determination. This contention presents a question of statutory interpretation, which is a 

question of law subject to independent (i.e., de novo) review on appeal. Subdivision (b) 

of section 1717 provides in part:

“(1) The court, upon notice and motion by a party, shall determine who is 

the party prevailing on the contract for purposes of this section, whether or 

not the suit proceeds to final judgment. Except as provided in 

paragraph (2), the party prevailing on the contract shall be the party who 

recovered a greater relief in the action on the contract. The court may also 

determine that there is no party prevailing on the contract for purposes of 

this section.

“(2) Where an action has been voluntarily dismissed or dismissed pursuant 

to a settlement of the case, there shall be no prevailing party for purposes of 

this section.”

Under John’s interpretation of subdivision (b)(2) of section 1717, Maria is 

statutorily barred from recovering attorney fees because the parties entered into a 

settlement of claims on August 24, 2010. This contention is flawed on at least 

two grounds.

First, it ignores the wording of the statute. The text specifically refers to an action 

that has been “voluntarily dismissed” or, alternatively, “dismissed pursuant to a 

settlement of the case.” (§ 1717, subd. (b)(2).) John has not provided any citation to the 

record showing either type of dismissal was entered in this case. (See Share v. Casiano 

Bel-Air Homeowners Ass’n. (1989) 215 Cal.App.3d 515, 524 [§ 1717, subd. (b)(2) was 
6

inapplicable and, thus, did not bar an award of attorney fees where settlement resulted in 

a stipulated order, not a dismissal].) Furthermore, our independent examination of the 

register of actions included in the clerk’s transcript did not locate a dismissal. Dismissal 

is mentioned in an entry for a February 3, 2012 minute order, which states: “Case is 

continued due to pending issues with funding for the escrow. Once issues are resolved 

dismissal is to be filed and case can come off calendar.” We located no subsequent entry 

showing the escrow issues had been resolved or the case had been dismissed. Based on 

these facts, it appears John interprets the statutory language to mean the parties’ 

formation of a settlement agreement equates to the action being “voluntarily dismissed or 

dismissed pursuant to a settlement of the case.” We reject that interpretation as contrary 

to the plain meaning of the term “dismissed.” 

Second, even if the action had been dismissed and the trial court relinquished 

subject matter and personal jurisdiction over the parties, the trial court’s jurisdiction was 

revived when Maria filed her motion to enforce the settlement agreement. The trial 

court’s jurisdiction was described in the last paragraph of our opinion in case 

No. F071135, which stated: 

“The enforcement of particular provisions of a settlement agreement 

is addressed in the last sentence of [Code of Civil Procedure] section 664.6, 

which provides: ‘If requested by the parties, the court may retain 

jurisdiction over the parties to enforce the settlement until performance in 

full of the terms of the settlement.’ Here, we disagree with John’s assertion 

that the parties made no such request. The settlement agreement itself, 

which was incorporated into the judgment, contained a provision describing 

the enforcement of the settlement agreement and the award of attorney fees 

to the party who prevails in any proceeding to enforce any term. Although 

the judgment and attached settlement agreement do not use the phrase 

‘retain jurisdiction,’ we interpret the judgment and its attachment to mean 

the parties have requested the court to retain jurisdiction over them for 

purposes of enforcing the settlement agreement until its terms have been 

performed in full. It follows that, if a party refuses to perform an obligation 

under the settlement agreement after the judgment has become final, then 

the other party may come before the superior court and obtain an order 
7

enforcing that obligation. Consequently, we conclude John’s arguments 

about purported deficiencies in the judgment do not identify reversible 

error. The trial court has the authority to enforce the terms of the 

agreement in subsequent proceedings.”

We conclude the term “dismissed,” which appears twice in section 1717, 

subdivision (b)(2), refers to an action that is currently dismissed and has no judicial 

proceedings occurring in it. Stated from the opposite perspective, an action is no longer 

“dismissed” when proceedings before the court have recommenced, such as a proceeding 

to enforce a settlement agreement. In other words, an action cannot be characterized as 

“dismissed pursuant to a settlement of the case” when the parties are back in court 

arguing over the meaning or application of their settlement. John’s contrary statutory 

interpretation creates a legal barrier that thwarts the intention of parties who include an 

attorney fees provision in their settlement agreement with the expectation that the party 

who prevails in a proceeding to enforce the agreement will not be out of pocket for the 

attorney fees incurred in the enforcement proceeding. Such a barrier would undermine 

settlements, rather than promoting them as a method of finally resolving civil disputes. 

II. PREVAILING PARTY

Prevailing party status is determined by which party “recovered a greater relief in 

the action on the contract.” (§ 1717, subd. (b)(1).) For purposes of this appeal, we will 

assume without deciding that the analysis of the relief obtained should be limited to the 

appeal itself. This assumption is favorable to John as it adopts the interpretation of the 

agreement and statute he has asserted.

In deciding who, if anyone, is the prevailing party, courts must “compare the relief 

awarded on the contract claim or claims with the parties’ demands on those same claims 

and their litigation objectives as disclosed by the pleadings, trial briefs, opening 

statements, and similar sources.” (Hsu v Abbara (1995) 9 Cal.4th 863, 876.) In other 
8

words, courts make a comparison of the extent to which each party succeeded or failed in 

its contentions. (Ibid.) 

In our opinion in case No. F071135, we stated John had raised four issues 

challenging the trial court’s decision to enforce the settlement agreement pursuant to 

Code of Civil Procedure section 664.6.

Issue One: “The first issue listed by John is whether the settlement agreement ‘is 

void, incomplete and/or unenforceable absent the required “mutual release” of all known 

claims and ... a waiver of Civ. Code §1542 of unknown claims.’ ” John lost this issue.

Issue Two: “Second, John contends the settlement terms are vague, ambiguous 

and there was no meeting of the minds on all material terms.” John lost this issue. We 

concluded “the trial court did not err in determining the settlement agreement was 

enforceable as to the partition of the 100 acres and the agreement was sufficiently certain 

as to the boundaries of the parcel each side was to receive.” We also stated: “John’s 

assertions about his subjective understanding, even if treated as credible, do not provide 

relevant evidence contradicting this interpretation and application of the provisions 

describing the parcel John was to receive.” On a procedural issue, we concluded “John 

has not shown he complied with [California Rules of Court,] rule [3.1306(b)] and, 

therefore, has not shown the trial court abused its discretionary authority regarding the 

presentation of oral testimony at a motion hearing.”

Issue Three: “Third, John asks ‘whether the mediator acting as binding arbitrator 

can determine any statement’s language for a mutual release of all claims known and 

unknown prepared by the former attorneys (Browns and Logoluso) in part, because the 

parties did not have knowledge of the language of Civ. Code §1542 provisions and their 

rights under the statute prior to signing in 2010.’ ” This issue is related to the first and 

John lost it too.
9

Issue Four: “Fourth, John contends the trial court lacked authority under [Code of 

Civil Procedure] section 664.6 to issue a judgment that failed to state all the terms of the 

settlement yet to be performed and the party who was to perform each such term.” John 

lost this issue. We rejected John’s view of the authority granted by Code of Civil 

Procedure section 664.6 and concluded “John’s arguments about purported deficiencies 

in the judgment do not identify reversible error.”

Next, we consider the arguments raised in the respondent’s brief Maria filed in the 

prior appeal. That brief contended “1) there is substantial evidence which supports the 

trial court’s findings for granting the motion to enforce settlement and awarding 

attorney’s fees; and 2) the Court correctly applied the statute when it issued its order 

granting the motion to enforce settlement.”2 The respondent’s brief requested that we 

affirm the trial court’s decision, which we did.

The foregoing comparison of what each party attempted to achieve in the appeal 

demonstrates John’s lack of success in that appeal and Maria obtaining exactly what she 

requested—namely, an affirmance. Consequently, the foregoing provides abundant 

support for the determination that Maria was the prevailing party for purposes of the 

attorney fees provision and section 1717, subdivision (b)(1).

Lastly, we address John’s contention that his appeal resulted in an opinion that 

protected his rights under the settlement agreement and Code of Civil Procedure 

section 664.6. Specifically, John asserts Maria and her attorney prepared a one-sided 

judgment against his objection and “intended to deny and/or defraud [him] from having 

any benefit of the agreement, and to force terms on him without the due process intended 

by the parties in the CCP §664.6 whatever terms plaintiff Maria wanted to comply with, 

how, and when.” John contends the “judgment provided that only plaintiff (respondent) 

2 On our own motion, we take judicial notice of the appellate record in the prior 

appeal in case No. F071135. (Evid. Code, §§ 452, subd. (d), 459.)
10

in contradiction of the omitted term for post-judgment enforcement by either party 

pursuant to CCP §664.6.” (Sic.)

We recognize our prior opinion stated that (1) the trial court retained jurisdiction 

over the parties for purposes of enforcing the settlement agreement until its terms have 

been fully performed and (2) either party could come before the trial court and obtain an 

order enforcing an obligation in the settlement agreement if the other party refused to 

perform that obligation. In our view, that statement was far from profound and changed 

nothing. It simply described the procedure for handling future disputes should they arise. 

Accordingly, our opinion and the statements it contained did not change (1) the terms of 

the settlement, (2) the terms of the judgment enforcing that settlement, or (3) the rules of 

law for enforcing a judgment. In short, it provided John with nothing that he did not 

already have. Therefore, we reject John’s view that he prevailed in the appeal. 

DISPOSITION

The order awarding attorney fees is affirmed. Respondent shall recover her costs 

on appeal.