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Filed 7/8/16 Guerra v. Bailey-Holden 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

CRYSTAL GUERRA,

Plaintiff and Respondent,

v.

ELAINE BAILEY-HOLDEN,

Defendant and Appellant.

E064548

(Super.Ct.No. CIVRS1500156)

O P I N I O N

APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown, 

Judge. Affirmed.

Anthony A. Sears * Attorney at Law and Anthony A. Sears for Defendant and 

Appellant.

Brennan Law Firm and Michael Brennan for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant, Elaine Bailey-Holden, appeals the postjudgment order 

denying her motion to recover $7,218.75 in attorney fees she incurred in defending a civil 
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harassment proceeding brought by plaintiff and respondent, Crystal Guerra. (Code Civ. 

Proc., § 527.6.)

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 Guerra dismissed the civil harassment proceeding shortly after BaileyHolden moved out of Guerra’s home. Bailey-Holden then moved to recover her attorney 

fees from Guerra based on a “prevailing party” attorney fee provision in the residential 

rental agreement (lease) between herself and Guerra, Code of Civil Procedure section 

1032 and Civil Code section 1717. 

On appeal, Bailey-Holden claims she was entitled to recover her attorney fees “as 

a matter of right” because the civil harassment proceeding was dismissed in her favor. 

(Code Civ. Proc., § 1032, subds. (a)(4), (b).) Based on the dismissal, she argues she was 

the prevailing party for purposes of the attorney fee provision of the lease, Code of Civil 

Procedure section 1032 and Civil Code section 1717. We disagree and conclude that 

Bailey’s attorney fee motion was properly denied. 

As we explain, the court had discretion to determine whether Bailey-Holden was 

the prevailing party under the attorney fee provision of the lease, which the court 

concluded and we agree was broad enough to cover “tort-type” claims, including the civil 

harassment proceeding. The court also had discretion to award attorney fees to BaileyHolden under section 527.6, subdivision (s), which vests the court with discretion to 

award attorney fees and costs to “the prevailing party” in a civil harassment proceeding. 

 

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 All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated. 
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Code of Civil Procedure section 1032 does not apply, because Code of Civil 

Procedure section 527.6, subdivision (s) is an express exception to Code of Civil 

Procedure section 1032. Civil Code section 1717 also does not apply, because it applies 

only in contract-based actions, and the civil harassment proceeding was not an action on 

the lease or any other contract. Finally, the court did not abuse its discretion in 

determining that Bailey-Holden was not the prevailing party, either for purposes of the 

attorney fee provision of the lease or Code of Civil Procedure section 527.6. We 

therefore affirm the order denying Bailey-Holden’s attorney fee motion.

II. FACTS AND PROCEDURAL BACKGROUND

A. The Civil Harassment Proceeding

On March 7, 2015, Guerra and Bailey-Holden entered into the lease, whereby 

Guerra rented a room in her Rancho Cucamonga home to Bailey-Holden on a month-to 

month basis for $600 per month. The lease, at paragraph 23, contains an attorney fee 

clause: “If any legal action or proceedings be brought by either party of this Agreement, 

the prevailing party shall be reimbursed for all reasonable attorney’s fees and costs in 

addition to other damages awarded.” 

On April 1, 2015, Guerra filed the present civil harassment proceeding seeking 

temporary and permanent restraining orders against Bailey-Holden. (§ 527.6.) In her 

application, Guerra, age 26, claimed that Bailey-Holden, age 62, harassed her (Guerra) by 

“storm[ing] after me, demanding ‘her dog’ which I adopted from her approx[imately] 7 

months ago. She tried coming into the room [Guerra’s bedroom]. I blocked her w/my 
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arm & shut the door as quickly as possible, scraping my own knee. She was cussing and 

irate. I locked the bedroom door w/Buttercup (my dog) in there with me. I heard her in 

the kitchen fiddling with cutlery.” The incident occurred on March 29, 2015.

According to the register of actions, on April 1, 2015, the court issued ex parte

temporary restraining orders against Bailey-Holden based on Guerra’s testimony, and set 

an April 17 hearing to determine whether permanent restraining orders should issue. On 

April 3, Bailey-Holden was served with the temporary restraining orders and notice of the 

April 17 hearing. On April 17, Bailey-Holden, represented by counsel, filed a response

seeking $5,000 in attorney fees and claiming she believed Guerra was “trying to evict” 

her “without having to file an unlawful detainer,” because Guerra had already given her a 

45-day notice to quit. 

The April 17 hearing was continued to April 24. On April 24, Guerra and BaileyHolden were both sworn and examined, but the hearing was continued to May 15 so 

Guerra could hire counsel. On May 15, both parties appeared and were represented by 

counsel, and the hearing was continued to August 7. On July 23, 2015, a request for 

dismissal of the case was “returned” because it was not filed in the proper court. On 

August 7, the court dismissed the case at Guerra’s request on the ground that BaileyHolden no longer lived in Guerra’s home. 

B. The Attorney Fee Motion

On August 10, 2015, Bailey-Holden moved to recover $7,218.75 in attorney fees

incurred in defending the civil harassment proceeding based on the attorney fee provision 
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of the lease. The motion stated it was based on Civil Code section 1717 and Code of 

Civil Procedure sections 1032, 1033.5, and 1034. Because the civil harassment 

proceeding was dismissed in her favor (Code Civ. Proc., § 1032, subd. (a)(4)), BaileyHolden claimed she was the “prevailing party” in the civil harassment proceeding under 

the attorney fee provision of the lease, within the meaning of Civil Code section 1717, 

subdivision (a), and for purposes of Code of Civil Procedure section 1032, subdivision 

(b). Bailey-Holden’s attorney, Anthony A. Sears, submitted a declaration and billing 

statement supporting the $7,218.75 in attorney fees sought. 

In opposition, Guerra claimed the May 15, 2015, hearing was continued to allow a 

“pending unlawful detainer action to play out,” and she dismissed the civil harassment 

proceeding because, by August 7, Bailey-Holden had moved out of her home. Guerra 

conceded that Civil Code section 1717 did not apply to the attorney fee motion, because 

Bailey-Holden was not seeking to recover attorney fees in “an action on a contract,” that 

is, for any breach of the lease. (Santisas v. Goodin (1998) 17 Cal.4th 599, 617

(Santisas).) Rather, she was seeking to recover her attorney fees incurred in the civil 

harassment proceeding, which sounded in tort, not contract. Thus, Guerra conceded that 

the bar of Civil Code section 1717, subdivision (b)(2), which provides “there shall be no 

prevailing party” in an action which has been voluntarily dismissed, did not apply and did 

not preclude Bailey-Holden from being the prevailing party in the civil harassment 

proceeding. 
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Guerra pointed out that Code of Civil Procedure section 527.6, former subdivision 

(r), now subdivision (s), provided that: “The prevailing party in any action brought under 

this section may be awarded court costs and attorney’s fees, if any.” 2 (Italics added.) 

Guerra argued Bailey-Holden was purposefully not relying on Code of Civil Procedure 

section 527.6, former subdivision (r) because the “prevailing party” determination under 

that statute “lies in the trial court’s sound discretion,” whereas the prevailing party 

determination under Civil Code section 1717 is “rather formulaic.” Guerra argued that 

Bailey-Holden was relying on Civil Code section 1717, even though it did not apply to 

the civil harassment proceeding, to avoid the court having discretion to make the 

prevailing party determination. Guerra also argued that the $7,218.75 amount sought was 

excessive.

In a declaration supporting Guerra’s opposition, counsel for Guerra, Michael A. 

Brennan, explained that, on May 15, 2015, he asked counsel for Bailey-Holden to discuss 

a resolution of “the restraining order and a . . . subsequently filed unlawful detainer

action.” Counsel for Bailey-Holden told him “there would be no settlement without a 

‘payment of money’” to Bailey-Holden. When asked the basis of the demand for money, 

counsel for Bailey-Holden “simply responded ‘because that is what it will take.’” 

Attorney Brennan claimed there was no need to pursue the restraining orders after 

 

2

 Effective January 1, 2016, former subdivisions (p) through (x) of section 527.6 

were redesignated subdivisions (q) to (y). (Stats. 2015, ch. 411, § 1.5.)
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Bailey-Holden moved out of Guerra’s home because Bailey-Holden had since not 

attempted to contact Guerra “in any manner whatsoever.” 

C. The Trial Court’s Ruling on the Attorney Fee Motion

At the hearing on the attorney fee motion, the trial court noted the civil harassment 

proceeding was a “tort-type case” and was not part of Guerra’s unlawful detainer 

proceeding. The court ruled that Civil Code section 1717 did not apply because it only 

applies to “any action on a contract.” (Civ. Code, § 1717, subd. (a).) The court 

acknowledged that subdivision (b)(2) of Civil Code section 1717, which states, “there 

shall be no prevailing party” for purposes of Civil Code section 1717 “[w]here an action 

has been voluntarily dismissed,” did not preclude Bailey-Holden from being the 

prevailing party in the civil harassment proceeding for purposes of the attorney fee 

provision of the lease. 

The court also concluded that the attorney fee provision of the lease was not 

limited to the recovery of attorney fees in actions on the lease, but was broad enough to 

encompass “tort-type” actions like the civil harassment proceeding. The lease did not 

define the term prevailing party, however, nor did it address whether either party would 

be entitled to recover its attorney fees in an action that is voluntarily dismissed. 

Accordingly, the court explained that the “pragmatic” approach articulated in Santisas,

supra, 17 Cal.4th at page 622 governed the court’s prevailing party determination in the 

civil harassment proceeding.
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Santisas explained that where (1) attorney fees are sought based on a contractual 

fee provision, (2) the proceeding has been dismissed, and (3) the fee provision neither 

defines “prevailing party” nor expressly authorizes or bars recovery of fees in the event 

the tort proceeding is dismissed, the “court may base its attorney fees decision on a 

pragmatic definition of the extent to which each party has realized its litigation 

objectives, whether by judgment, settlement, or otherwise. [Citation.]” (Santisas, supra,

17 Cal.4th at p. 622, italics added.) 

The court then ruled that, “pragmatically speaking,” Guerra “realized [her]

litigation objectives, inasmuch as [Bailey-Holden] voluntarily went ahead and vacated 

the premises and the case was dismissed . . . .” The court thus indicated it was not 

persuaded that Bailey-Holden was the “prevailing party” in the civil harassment 

proceeding, and was accordingly not entitled to recover her attorney fees under the 

attorney fee provision of the lease. The court also pointed out that the dismissal of the 

civil harassment proceeding was a ministerial act and did not represent a judicial 

determination that “one party is right, one party is wrong.” 

III. DISCUSSION

Bailey-Holden claims she is entitled “as a matter of law” to recover her attorney 

fees incurred in defending the civil harassment proceeding under Code of Civil Procedure 

sections 1032 and 1033.5, because she is the prevailing party attorney in the proceeding 

for purposes of the attorney fee provision of the lease. She also claims she is the 

prevailing party “within the meaning of Civil Code section 1717, subdivision (a), because 
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of the application of Code of Civil Procedure section 1032, subdivision (a)(4).” We 

reject these claims. 

A. Bailey Is Not Entitled to Her Attorney Fees as a Matter of Right Under Section 1032

Section 1032, subdivision (b), provides: “Except as otherwise provided by statute, 

a prevailing party is entitled as a matter of right to recover costs in any action or 

proceeding.” For purposes of section 1032, “prevailing party” includes “a defendant in 

whose favor a dismissal is entered” “unless the context clearly requires otherwise.” 

(§ 1032, subd. (a)(4).) Section 1033.5 lists items allowable as costs under section 1032. 

Items recoverable as costs under section 1032 include attorney fees when the fees are 

authorized by contract, statute, or law. (§ 1033.5, subd. (a)(10)(A)-(C).) 

Bailey-Holden maintains that she is the prevailing party in the civil harassment 

proceeding as a matter of law, because the proceeding was dismissed in her favor

(§ 1032, subd. (a)(4)) and her prevailing party status for purposes of section 1032 entitles 

her to recover her attorney fees as costs based on the attorney fee provision of the lease

“as a matter of right.” (§§ 1032, subd. (b), 1033.5, subd. (a)(10)(A).) We disagree.

“‘The determination of the legal basis for an award of attorney fees is a question 

of law which we review de novo.’” (Drybread v. Chipain Chiropractic Corp. (2007) 151 

Cal.App.4th 1063, 1069.) As we explain, section 1032 and, by extension, section 1033.5 

do not apply in civil harassment proceedings. 

First, several points of clarification are in order: If section 1032 applied to civil 

harassment proceedings, then Bailey-Holden would be the prevailing party for purposes 
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of section 1032 because the proceeding was dismissed in her favor. (§ 1032, subds. 

(a)(4), (b); Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, 738 [the 

language of § 1032 is clear and explicit: “‘[A] defendant in whose favor a dismissal is 

entered’” is “‘a prevailing party’” and is “‘entitled as a matter of right to recover 

costs’”].) As the prevailing party for purposes of section 1032, Bailey-Holden would be 

entitled to recover her reasonable attorney fees as costs “as a matter of right” under 

section 1032, because the fees were authorized by the attorney fee provision of the lease

and, as such, were recoverable as costs under section 1032 by virtue of section 1033.5, 

subdivision (a)(10)(A). The parties do not dispute, the trial court concluded, and we 

agree that the attorney fee provision of the lease was not limited to actions on the lease 

contract but was broad enough to encompass “tort-type” proceedings like the civil 

harassment proceeding. (Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1339, 

1342-1344.) The civil harassment proceeding sounded in tort, not contract. (See Grant 

v. Clampitt (1997) 56 Cal.App.4th 586, 591 [§ 527.6 “was passed to supplement the 

existing common law torts of invasion of privacy and intentional infliction of emotional 

distress by providing quick relief to harassment victims threatened with great or 

irreparable injury.”].) 

Nonetheless, Bailey-Holden is not entitled to her attorney fees as a matter of right 

under Code of Civil Procedure section 1032, because that section does not apply to 

attorney fees and costs awards in civil harassment proceedings. By its terms, Code of 

Civil Procedure section 1032 applies “in any action or proceeding” “[e]xcept as otherwise 
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expressly provided by statute.” (Code Civ. Proc., § 1032, subd. (b).) Accordingly, Code 

of Civil Procedure section 1032 does not apply when another statute governs the award of 

costs or attorney fees in question and makes the award discretionary. (See, e.g., Williams 

v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105 [Gov. Code, § 12965, 

subd. (b), is an express exception to Code Civ. Proc., § 1032, subd. (b), because it vests 

the trial court with discretion to award costs and attorney fees to the prevailing party in an 

action under the California Fair Employment and Housing Act]; see also MacQuiddy v. 

Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1047 [“A prevailing party under 

[Code of Civil Procedure] section 1032 is not necessarily a prevailing party under a 

separate attorney fee statute.”].) 

Section 527.6, subdivision (s), is an express exception to section 1032, subdivision 

(b), because it vests the trial court with discretion to award attorney fees and costs to the 

prevailing party in a civil harassment proceeding. It states: “The prevailing party in any 

action brought under this section may be awarded court costs and attorney fees, if any.” 

(§ 527.6, subd. (s), italics added.) Because it uses the permissive word “may,” section 

527.6, subdivision (s), makes attorney fee and cost awards a discretionary decision by the 

trial court. (Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 802 [interpreting § 527.6, 

former subd. (i), a precursor to § 527.6, subd. (s)].) As Krug held, “the decision whether 

to award attorney fees to a prevailing party” in a civil harassment proceeding governed 
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by section 527.6 “is a matter committed to the discretion of the trial court.” (Krug v. 

Maschmeier, supra, at p. 802.)

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B. Civil Code Section 1717 Does Not Apply to Bailey-Holden’s Attorney Fee Claim

Bailey-Holden argues she is the prevailing party “within the meaning of Civil 

Code section 1717, subdivision (a),” by virtue of the application of Code of Civil 

Procedure section 1032, subdivision (a)(4), that is, because the civil harassment 

proceeding was dismissed in her favor. Again, we disagree. 

Civil Code section 1717, subdivision (a), states: “In any action on a contract, 

where the contract specifically provides that attorney’s fees and costs, which are incurred 

to enforce that contract, shall be awarded either to one of the parties or to the prevailing 

party, then the party who is determined to be the party prevailing on the contract, whether 

he or she is the party specified in the contract or not, shall be entitled to reasonable 

attorney’s fees in addition to other court costs. [¶] . . . [¶] Reasonable attorney’s fees 

shall be fixed by the court, and shall be an element of the costs of suit.” (Italics added.)

Civil Code section 1717, subdivision (b), provides: “(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 

 

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 This discretionary attorney fee and cost provision of section 527.6, subdivision 

(s) has been part of section 527.6 since the statute was first enacted in 1978. (Krug v. 

Maschmeier, supra, 172 Cal.App.4th at p. 800, fn. 5.) 
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there is no party prevailing on the contract for purposes of this section. [¶] (2) Where an 

action has been voluntarily dismissed . . . there shall be no prevailing party for purposes 

of this section.” 

Bailey-Holden’s reliance on subdivision (a) of Civil Code section 1717 is 

perplexing in light of subdivision (b). If Civil Code section 1717 applied, it would apply 

in its entirety. Bailey-Holden could not be the prevailing party in the civil harassment 

proceeding “for purposes of this section,” that is, for purposes of Civil Code section 

1717, subdivision (a), because the civil harassment proceeding was voluntarily dismissed. 

(Civ. Code, § 1717, subd. (b).) Bailey-Holden’s prevailing party status under Code of 

Civil Procedure section 1032, subdivision (a)(4), for purposes of Code of Civil Procedure 

section 1032, would not assist her claim, if Code of Civil Procedure section 1032 applied. 

In any event, Civil Code section 1717 does not apply to Bailey-Holden’s attorney 

fee motion because the statute only apples in “action[s] . . . based on the contract.” 

(Santisas, supra, 17 Cal.4th at p. 617.) As explained, the civil harassment proceeding 

sounded in tort, and was not an action based on the lease or any other contract. 

C. The Trial Court Did Not Abuse Its Discretion in Determining That Bailey-Holden 

Was Not the Prevailing Party in the Civil Harassment Proceeding, Either for Purposes of 

the Attorney Fee Provision of the Lease or Section 527.6, Subdivision (s) 

As indicated, the court employed the “pragmatic” approach articulated in Santisas,

supra, 17 Cal.4th at page 622 in determining that Bailey-Holden was not the prevailing 

party in the civil harassment proceeding and was therefore not entitled to recover her 
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attorney fees under the prevailing party attorney fee provision of the lease. This was the 

proper legal standard to employ, both in determining whether Bailey-Holden was the 

prevailing party under the attorney fee provision of the lease, and under section 527.6, 

subdivision (s), formerly subdivision (r), the discretionary prevailing party attorney fee 

provision that applies in civil harassment proceedings. 

Santisas articulated a standard that courts may employ when, as here, a contractual 

prevailing party attorney fee provision does not define “prevailing party,” and the 

contract does not preclude a recovery of attorney fees when the action has been 

voluntarily dismissed: “If, as here, the contract allows the prevailing party to recover 

attorney fees but does not define ‘prevailing party’ or expressly either authorize or bar 

recovery of attorney fees in the event an action is dismissed, a court may base its attorney 

fees decision on a pragmatic definition of the extent to which each party has realized its 

litigation objectives, whether by judgment, settlement, or otherwise.” (Santisas, supra,

17 Cal.4th at p. 622.) In keeping with this pragmatic approach, the Santisas court 

commented: “[I]t seems inaccurate to characterize the defendant as the ‘prevailing party’

if the plaintiff dismissed the action only after obtaining, by means of settlement or 

otherwise, all or most of the requested relief . . . .” (Id. at p. 621.) 

This pragmatic approach to determining who, if anyone, is the prevailing party in 

an action or proceeding also applies when, as here, a fee-shifting statute, like section 

527.6, subdivision (s), applies, but does not define “prevailing party.” “[W]here . . . a 

fee-shifting statute is concerned, a number of Courts of Appeal have taken the approach 
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that attorney fees recovery is governed by the fee-shifting statute itself, rather than a rigid 

adherence to Code of Civil Procedure section 1032. Under this analysis, if the particular 

fee-shifting statute does not define prevailing party, then the trial court should simply 

take a pragmatic approach to determine which party has prevailed. That is, the trial court 

would determine which party succeeded on a practical level, by considering the extent to 

which each party realized its litigation objectives. [Citations.]” (Wohlgemuth v. 

Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1264.) 

We review a trial court’s prevailing party rulings for an abuse of discretion. 

(MacQuiddy v. Mercedes-Benz USA, LLC, supra, 233 Cal.App.4th at p. 1047.) To the 

extent Bailey-Holden may argue that the trial court abused its discretion in determining 

she was not the prevailing party in the civil harassment proceeding, we find no abuse of 

discretion. Guerra dismissed the proceeding shortly after Bailey-Holden moved out of 

her home. The record also shows Guerra was simultaneously pursuing an unlawful 

detainer action. As the court observed, Guerra achieved her litigation objectives in the 

civil harassment proceeding—getting Bailey-Holden to stop harassing her—before the 

voluntary dismissal was filed. Under these circumstances, the court reasonably 

concluded that Bailey-Holden was not the prevailing party, either for purposes of the 

attorney fee provision of the lease or for purposes of the discretionary attorney feeshifting statute, section 527.6, subdivision (s). 
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IV. DISPOSITION

The September 4, 2015, order denying Bailey-Holden’s motion for attorney fees is 

affirmed. The parties shall bear their costs on appeal. (Cal. Rules of Court, rule 8.278.) 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

HOLLENHORST

Acting P. J.

MILLER

J.