1

Filed 7/29/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SHAO YAN CHEN et al.,

Plaintiffs and 

Respondents,

v.

VALSTOCK VENTURES, 

LLC, et al.

Defendants and 

Appellants.

 A161885

(San Francisco City & 

County Super. Ct. No. 

CGC-18-566208)

The trial court awarded a group of plaintiffs approximately 

$1.1 million in attorney’s fees under Civil Code section 1717 after 

granting their motion for summary adjudication of the sole cause 

of action on the contract in this case, before trial or disposition of 

the remaining non-contract causes of action.1 The defendants 

appeal, arguing the award of attorney’s fees was premature 

because the litigation as a whole had not yet ended. We agree 

and will therefore reverse.

BACKGROUND

Because the issue in this appeal is purely procedural, we 

need not describe in detail the factual background. In brief, Shao 

Yan Chen, Han Lin Liu, Zhi Hua Mo, Yuk Yee Cheng, Hui Zhen 

1 Undesignated statutory references are to the Civil Code.
2

Hu, Ruizhao Wu, and Qi Di Wu (collectively, tenants) had a 

dispute with Valstock Ventures, LLC and 371 Broadway Street, 

LLC (together, Valstock) over which of two documents was the 

operative lease governing the tenants’ tenancies in two of 

Valstock’s apartment buildings. The tenants filed suit against 

Valstock seeking a declaratory judgment on this question, 

alleging a civil conspiracy, and stating claims for violations of the 

Fair Employment and Housing Act (Gov. Code, §§ 12900–12996)

(FEHA), Unfair Competition Law (Bus. & Prof. Code, § 17203)

(UCL), and section 37.10B of the San Francisco Rent Ordinance.2

After approximately a year of litigation, Valstock filed a 

motion for summary judgment and the tenants filed a motion for 

summary adjudication of their declaratory judgment cause of 

action and Valstock’s related affirmative defenses. In September 

2020, the trial court denied Valstock’s motion and granted the 

tenants’ motion. The tenants’ allegation of civil conspiracy and 

their other causes of action remained pending. 

The tenants then moved under section 1717 for an award of

roughly $2.1 million in attorney’s fees, arguing that the trial 

court’s summary adjudication ruling meant they were the 

prevailing parties on the sole cause of action on the contract. 

Valstock responded by filing an ex parte application asking the 

court to continue the filing deadlines and hearing date on the fees 

motion until after a settlement conference and certain pre-trial 

2 Several other plaintiffs joined the tenants in this 

complaint and named several additional defendants. We 

disregard these other parties because they were not part of the 

litigation on the attorney’s fees award at issue in this appeal.
3

deadlines had passed. The record does not contain a transcript of 

the ex parte hearing or reflect any orders issued after the 

hearing. Other documents in the record indicate, however, that 

the trial court suggested at the hearing that plaintiffs voluntarily 

continue the hearing date on their fees motion until after trial or 

entry of judgment. The trial court also ordered the parties to 

meet and confer regarding Valstock’s request for a continuance. 

The parties were unable to come to an agreement, and the 

next day Valstock filed a second ex parte application, this time to 

continue the hearing date until after entry of a final judgment in 

the action. The second ex parte application argued the trial court 

should continue the hearing date until after entry of final 

judgment under the court’s authority to manage its proceedings, 

in order to promote judicial economy. Valstock also asserted that 

a fee award was premature because the court had not entered 

final judgment and the remaining causes of action were in trial. 

Again, there is no direct record of the court’s actions at the ex 

parte hearing, but we infer that the trial court denied Valstock’s 

application, since briefing proceeded on the attorney’s fees 

motion. 

The trial court ultimately awarded the tenants 

approximately $1.1 million in fees.3 A few weeks later, the 

3 Although the trial court granted the tenants’ motion for 

fees, it restated its earlier comment, presumably from one of the 

ex parte hearings, that it was “a little anomalous that an 

attorneys’ fees motion as to one cause of action has been filed 

while the case is nominally in trial and before the conclusion of 

the case.” 
4

tenants moved to enforce the fee award. Valstock then appealed 

the fee award. The trial court denied the tenants’ motion to 

enforce the fee award, concluding that Valstock’s appeal 

automatically stayed enforcement of the fee order. Valstock later 

filed an amended notice of appeal. 

DISCUSSION

I. Forfeiture

The tenants argue that we should not entertain Valstock’s 

challenge to the timing of the fee award because Valstock failed 

to raise it below. “ ‘ “As a general rule, theories not raised in the 

trial court cannot be asserted for the first time on appeal; 

appealing parties must adhere to the theory (or theories) on 

which their cases were tried. This rule is based on fairness—it 

would be unfair, both to the trial court and the opposing litigants, 

to permit a change of theory on appeal.” ’ ” (Hewlett-Packard Co. 

v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548.) 

Valstock’s ex parte application to continue the hearing on 

the tenants’ fee motion until after final judgment raised two 

arguments, albeit cursorily. First, Valstock asserted it was 

“premature” to hear the fees motion because the trial court had 

not yet entered final judgment and the remaining causes of 

action were in trial. Second, it argued the trial court had 

authority to continue the hearing to promote judicial economy. 

The first argument is essentially the same as Valstock’s 

argument on appeal. Valstock did not cite any of the same 

authority that it presents here—indeed, it cited no authority at 

all to support its prematurity argument—but that is not 
5

significant. “We are aware of no prohibition against citation of 

new authority in support of an issue that was in fact raised 

below.” (Giraldo v. Department of Corrections & Rehabilitation

(2008) 168 Cal.App.4th 231, 251.) Valstock might have saved 

itself considerable time, effort, and expense had it spent more

time developing its prematurity argument in the trial court, but 

it raised the issue sufficiently to preserve it for appeal.

Even if Valstock had not raised the issue below, we would 

still reject the tenants’ forfeiture argument. As the tenants 

acknowledge, appellate courts “have discretion to consider a new 

theory on appeal when it is purely a matter of applying the law to 

undisputed facts.” (Brown v. Boren (1999) 74 Cal.App.4th 1303, 

1316.) That is the situation here, where the only relevant facts 

are undisputed: the trial court entered summary adjudication of 

the single cause of action in the case that is “on the contract” and 

then awarded attorney’s fees under section 1717 to the tenants as 

the parties who prevailed on the contract. The tenants argue we 

should not exercise our discretion to address the issue, but the 

only justification they offer is that they believe Valstock’s 

arguments are meritless and an invitation to error. Whatever 

the merits of this rationale for applying the forfeiture doctrine, it 

has no bearing here because, as we explain, post, we agree with 

Valstock on the merits of this case.

II. Mootness

The tenants suggest that because Valstock’s appeal of the 

fee award is based entirely on prematurity and the absence of a 

final disposition of the litigation, Valstock’s argument will be 
6

moot if the trial court enters a final judgment while this appeal is 

pending. This argument is hypothetical, because there is not a

final judgment. Valstock’s request for judicial notice contains the 

most recent evidence on the state of proceedings in the trial 

court, and it indicates only that as of September 2021, trial of the 

tenants’ remaining causes of action was set to begin in January 

2022 and conclude in February 2022.4 During the July 12, 2022,

oral argument, the parties indicated that they have an August 

2022 trial date. There is thus no final judgment in this matter.5

We will therefore proceed to the merits of the parties’ 

dispute. 

4 Valstock has requested judicial notice of four former 

versions of section 1717 and four minute orders the trial court 

entered regarding trial on the other causes of action in the 

tenants’ complaint. We deny the request for notice of former 

versions of section 1717. We will consider the evolution of section 

1717 without the need for judicial notice; citation to such 

materials is sufficient. (Quelimane Co. v. Stewart Title Guaranty 

Co. (1998) 19 Cal.4th 26, 45, fn, 9.) We grant the request for 

notice of the trial court’s minute orders solely for the purpose of 

evaluating the potential mootness of this case. (In re M.F. (2022) 

74 Cal.App.5th 86, 111.)

5 In any event, even if the trial court had entered final 

judgment, we would not be persuaded to declare this appeal 

moot. “An appellate court retains discretion to decide a moot 

issue if the case presents an issue of ‘ “substantial and continuing 

public interest” ’ and is capable of repetition yet evades review.” 

(Citizens Oversight, Inc. v. Vu (2019) 35 Cal.App.5th 612, 615.) 

This appears to be a case of first impression, and the correct 

procedure for obtaining a fee award after a summary

adjudication order is a matter of continuing public interest. If 

entry of a final judgment can moot an appeal from a fee award 

following a pre-trial ruling, this issue is also likely to recur and 

evade appellate review in future cases. 
7

III. Interim fee awards

A. Standard of review

Valstock contends that section 1717 did not allow the trial 

court to make an interim award of attorney’s fees based on the 

summary adjudication order. This is a legal question that turns 

on the interpretation of a statute, so we interpret it de novo. 

(Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 

206 Cal.App.4th 515, 523 (Frog Creek) [“ ‘ “On appeal this court 

reviews a determination of the legal basis for an award of 

attorney fees de novo as a question of law” ’ ”].)6

“In interpreting a statute, our primary goal is to determine 

and give effect to the underlying purpose of the law. [Citation.] 

‘Our first step is to scrutinize the actual words of the statute, 

giving them a plain and commonsense meaning.’ [Citation.] ‘ “If 

the words of the statute are clear, the court should not add to or 

alter them to accomplish a purpose that does not appear on the 

6 The tenants urge us to apply an abuse of discretion 

standard of review to the trial court’s determination that they 

prevailed on the contract under section 1717. (DisputeSuite.com, 

LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 974, 979

(DisputeSuite).) Because the issue here is a simple question of 

statutory interpretation, not whether the tenants met their 

litigation objectives, the abuse of discretion standard does not 

apply. However, the standard of review in this case is 

immaterial; even if we were to apply the abuse of discretion 

standard, we would reach the same result given our 

interpretation of the statute. (Pina v. County of Los

Angeles (2019) 38 Cal.App.5th 531, 545 [“ ‘ “Action that 

transgresses the confines of the applicable principles of law is 

outside the scope of discretion and we call such action an ‘abuse’ 

of discretion” ’ ”].)
8

face of the statute or from its legislative history.” ’ [Citation.] In 

other words, we are not free to ‘give words an effect different from 

the plain and direct import of the terms used.’ [Citation.] 

However, ‘ “the ‘plain meaning’ rule does not prohibit a court 

from determining whether the literal meaning of a statute 

comports with its purpose or whether such a construction of one 

provision is consistent with other provisions of the statute.” ’ 

[Citation.] To determine the most reasonable interpretation of a 

statute, we look to its legislative history and background.” 

(Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)

B. Analysis

Finality of summary adjudication ruling

The parties’ disagreement over whether the trial court was 

authorized to make an attorney’s fees award is in part a dispute 

about the effect of the summary adjudication order on which the 

trial court based the fee award. Without argument or authority, 

Valstock asserts that the fee award was an interim fee award 

because the FEHA, UCL, and San Francisco Rent Ordinance 

causes of action and conspiracy allegation remained pending and 

the trial court had not entered final judgment when it made the 

award, implying that the summary adjudication order was not 

final. It later notes that the summary adjudication order was not 

appealable. The tenants, meanwhile, treat the summary 

adjudication order as if it were itself a final judgment, describing 

the trial court as entering declaratory judgment and repeatedly 

asserting that a declaratory judgment has the force of a final 

judgment. 
9

We agree with Valstock. It is established law that “[a]n 

order granting partial summary judgment—or summary 

adjudication—is not an appealable order.” (Tucker Ellis LLP v. 

Superior Court (Nelson) (2017) 12 Cal.App.5th 1233, 1240.) 

Because the summary adjudication order was not appealable, it

was an interim ruling, not a final resolution. (Robbins v. Los 

Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 317 

[“Normally, the rule for distinguishing between an interim and a 

final order is whether such order is appealable”].) The tenants 

try to obfuscate this point by citing Code of Civil Procedure 

section 1060’s statement that a declaratory judgment “shall have 

the force of a final judgment,” which has been in the statute since 

the Legislature first enacted it in 1921. (See Stats. 1921, ch. 463, 

§ 1, p. 690.) They also note that trial court can only grant 

summary adjudication if it “completely disposes” of a cause of 

action. (Code Civ. Proc., § 437c, subd. (f)(1).) But they stop short 

of contending that the summary adjudication order was itself

appealable or a final judgment, and it was neither. The 

statements in Code of Civil Procedure section 1060 giving a 

declaratory judgment the force of a final judgment and in section 

437c allowing summary adjudication of only a complete cause of 

action do not change the non-final status of the summary 

adjudication order. The tenants cite nothing to suggest either 

provision suspends operation of the “one final judgment” rule, 

which “prohibits review of intermediate rulings by appeal until 

final resolution of the case.” (Griset v. Fair Political Practices 

Com. (2001) 25 Cal.4th 688, 697.) It would be rather peculiar if 
10

Code of Civil Procedure section 1060 made the summary 

adjudication order immediately final, since that would mean 

summary adjudication of a request for a declaration of the 

parties’ rights under a contract would be immediately final, 

where another type of summary adjudication of contractual 

rights, such as an award to one party for breach of the same 

contract, would not.

The summary adjudication order was also not final because 

a “ ‘trial court retains the inherent authority to change its 

decision at any time prior to the entry of judgment.’ ” (Le 

Francois v. Goel (2005) 35 Cal.4th 1094, 1100 (Goel), quoting 

Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148, 1156; 

see also Goel, at p. 1107 [agreeing with Darling, Hall]; see also 

Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 

237 [rejecting contention that trial court had no authority to 

vacate prior order compelling arbitration, explaining, “Even 

without a change of law, a trial court may exercise its inherent 

jurisdiction to reconsider an interim ruling”].) This authority 

exists to allow trial courts to correct their own errors. (Goel, at 

p. 1107.) Similarly, Code of Civil Procedure section 1008 allows a 

court to reconsider and change an order “at any time” if there has 

been a change in law. (Code Civ. Proc., § 1008, subd. (c).) This 

provision has been used to vacate an order granting summary 

adjudication seven years after it was originally entered. 

(International Ins. Co. v. Superior Court (1998) 62 Cal.App.4th 

784, 786.) Because a summary adjudication order on a cause of 

action for declaratory judgment is subject to reconsideration, 
11

either statutorily or based on the court’s inherent authority, it 

cannot qualify as a final order.

Code of Civil Procedure section 437c, subdivision (n)(1) 

states, “If a motion for summary adjudication is granted, at the 

trial of the action, the cause or causes of action within the action, 

affirmative defense or defenses, claim for damages, or issue or 

issues of duty as to the motion that has been granted shall be 

deemed to be established and the action shall proceed as to the 

cause or causes of action, affirmative defense or defenses, claim 

for damages, or issue or issues of duty remaining.” This provision 

does not make the summary adjudication order here a final 

resolution because trial in this matter had not started when the 

tenants requested attorney’s fees. Moreover, Code of Civil 

Procedure section 437c, subdivision (n)(1) does not contain an 

exception to a court’s statutory and inherent authority to modify 

a summary adjudication order. Any facts summarily adjudicated 

are deemed established unless and until the court modifies its 

order.

The parties’ briefing originally did not address the impact 

of Goel, supra, 35 Cal.4th 1094, so we requested supplemental 

briefing on the application of that case and any related authority. 

In response, the tenants argue that the summary adjudication 

order is final under Goel because, they assert, the trial court has 

never reconsidered the order. But whether or not the trial court 

has reconsidered its summary adjudication order (which is not a 

matter in the record in this appeal), it retains authority to do so, 

which is sufficient to prevent the order from being final. 
12

The tenants also argue that a trial court’s authority to 

reconsider an order cannot mean it is not final because rulings 

are subject to later reversal, correction, or modification until all 

final appeals are exhausted. The only authority the tenants cite 

for this statement is Code of Civil Procedure section 1049, which 

states, “An action is deemed to be pending from the time of its 

commencement until its final determination upon appeal, or until 

the time for appeal has passed, unless the judgment is sooner 

satisfied.” This statute does not give trial courts inherent 

authority to modify their rulings after a final judgment or other 

final disposition of a case, and in any event, we are not dealing 

with a scenario in which jurisdiction has passed from the trial 

court to the appellate court. Since the question here is whether a 

summary adjudication ruling is final as to the trial court, the 

prospect of modification of an order on appeal is not relevant.7 

7 Pointing to what they suggest is the overbreadth of 

Valstock’s position here, the tenants argue that deeming the 

summary adjudication order non-final under Goel would mean a 

summary judgment order would also be non-final and not permit 

an award of fees under section 1717 under our reasoning. But 

that proves too much. The tenants are correct that a summary 

judgment order is non-final, but this does not bar an award of 

fees under section 1717. A fees motion may not follow a 

summary judgment order alone, but it can follow the entry of 

judgment based on a summary judgment order. (Cf. Saben, 

Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030 

[“a summary judgment is appealable, but an order granting 

summary judgment is not”]; Phillips v. Phillips (1953) 41 Cal.2d 

869, 874 [issuance of memorandum containing findings of fact 

and conclusions of law after trial was not the entry of judgment; 

“at any time before entry of judgment” a trial court may amend or
13

Fee awards after interim resolution of contract

claims

a. Statutory text

Our conclusion that the summary adjudication order was 

not a final resolution of the contract cause of action in the 

tenants’ complaint does not resolve the issue before us, because 

the question remains whether section 1717 permits fee awards 

based on interim resolutions of contract claims like the summary 

adjudication order in the tenants’ favor. We conclude it does not.

The text of section 1717 does not explicitly address the 

question of when a trial court may make a fee award. However, 

the statutory language generally supports Valstock’s contention 

that fees should be awarded only at the complete end of 

litigation, including on non-contract claims. Section 1717 

contains several different provisions that are relevant here, and 

we will consider them in turn.

Section 1717, subdivision (a) states, in pertinent part, “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 costs.” (Italics added.) The 

same subdivision later declares, “Reasonable attorney’s fees shall 

change its findings of fact and conclusions of law and “enter a 

judgment different from that first announced”].)
14

be fixed by the court, and shall be an element of the costs of suit.” 

(Italics added.) 

The inclusion of section 1717 fees as an element of costs is 

significant because costs are awarded at the end of an action. 

Section 1032 of the Code of Civil Procedure defines the prevailing 

party entitled to costs in terms of the total outcome of the 

litigation. (Code Civ. Proc., § 1032, subd. (a)(4) [prevailing party 

“includes the party with a net monetary recovery, a defendant in 

whose favor a dismissal is entered, a defendant where neither 

plaintiff nor defendant obtains any relief, and a defendant as 

against those plaintiffs who do not recover any relief against that 

defendant”].) While section 1717 contains its own definition of a 

prevailing party, which we discuss post, the association between 

section 1717 attorney’s fees and costs is a preliminary indication 

that the Legislature envisioned attorney’s fees being awarded 

only at the end of an entire action. 

Section 1717, subdivision (b)(1) provides in part, “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.” (Italics added.) The use of the past tense in the 

definition of a prevailing party for the purposes of section 1717 as 

the party who “recovered” indicates that the determination would 

be made after a final resolution of the litigation, not merely an 

interim resolution of only some of the causes of action in the case. 
15

(Cf. P R Burke Corp. v. Victor Valley Wastewater Reclamation 

Authority (2002) 98 Cal.App.4th 1047, 1052 [attorney’s fees 

motions are almost always filed after entry of judgment in part 

because “before the entry of judgment, there is technically no 

prevailing party”].)

Two cases support our interpretation of section 1717’s 

references to costs and recovery. First, Bank of Idaho v. Pine 

Avenue Associates (1982) 137 Cal.App.3d 5, 7, 15–16 (Bank of 

Idaho) considered whether a former version of section 1717 that 

defined the prevailing party as the party “entitled to recover costs 

of suit” authorized an interim award of attorney’s fees to the 

plaintiff for succeeding on appeal in reversing a judgment 

following an order sustaining the defendant’s demurrer without 

leave to amend. (Id. at p. 16.) The court concluded it did not, 

because the connection between fees and costs indicated “that 

there be some reckoning of the net success of the respective 

parties” that could not “be ascertained until the final termination 

of the suit.” (Ibid.) The definition of prevailing party in section 

1717 has changed since Bank of Idaho, and the interim request 

for fees here is different than a request for fees after an appeal 

that remands the case for further proceedings. But section 1717 

maintains the connection between a fee award and the costs of 

suit, which gives Bank of Idaho’s analysis continuing relevance. 

Second, Bell v. Farmers Ins. Exchange (2001) 

87 Cal.App.4th 805, 808–809 (Bell) considered whether Labor 

Code section 1194 authorized an interim award of attorney’s fees 

following a summary adjudication ruling in favor of the plaintiffs 
16

on one of the defendant’s affirmative defenses in a class action 

suit for unpaid overtime. Labor Code section 1194, subdivision 

(a) provided that “any employee receiving less than the legal 

minimum wage or the legal overtime compensation applicable to 

the employee is entitled to recover in a civil action the unpaid 

balance of the full amount of this minimum wage or overtime 

compensation, including interest thereon, reasonable attorney’s 

fees, and costs of suit.” Bell construed the use of “recover” in this 

provision as referring to recovery by judgment. (Bell, at p. 831.) 

It also deduced that attorney’s fees were part of the judgment 

because interest and costs of suit, which were the other items in 

the phrase “ ‘including interest thereon, reasonable attorney’s 

fees, and costs of suit,’ ” were part of a judgment. (Ibid.) Bell

reasoned that it would be inconsistent for the statute to refer to 

one pre-judgment item with three other items awarded in a final 

judgment. (Ibid.) The same considerations apply to section 1717, 

which explicitly makes fees an element of costs and allows an 

award of attorney’s fees to the party that “recovered” greater 

relief in the action on the contract. Indeed, Bell itself cited 

section 1717 as an example of a statute that did not permit 

interim fee awards, based on the language making fees an 

element of costs, Bank of Idaho, and another case applying the 

same principle. (Bell, at p. 833.)

The tenants rely on a different aspect of subdivision (b)(1), 

the instruction that a trial court shall determine the party 

prevailing on the contract “whether or not the suit proceeds to 

final judgment.” (§ 1717, subd. (b)(1).) They argue this means 
17

that fee awards can and must be made before final disposition of 

a case, so long as the contract claims have been resolved. On its 

face, this phrase does appear to support the tenants’ position. 

However, the language seems somewhat peculiar if the 

Legislature intended it to authorize an interim award of 

attorney’s fees, since it mentions the resolution of the entire suit, 

rather than the resolution of the contract causes of action. If the 

tenants’ position were correct, a more natural way to phrase such 

a provision would be to say that a court must determine the 

prevailing party on the contract “upon resolution of the causes of 

action on the contract,” or “when the causes of action on the 

contract have been resolved.” Additionally, the tenants’ 

interpretation of the phrase “whether or not the suit proceeds to 

final judgment” runs contrary to the other language referring to 

costs and referring to the prevailing party as having “recovered” 

in the action on the contract, making the statute ambiguous. 

(§ 1717, subds. (a), (b)(1).) To decide which interpretation of the 

statute is most reasonable, we therefore consider the legislative 

history of this aspect of the statute.

Our Supreme Court has already described the evolution of 

section 1717. (Hsu v. Abbara (1995) 9 Cal.4th 863, 872–874 

(Hsu).) Until 1981, section 1717 defined a prevailing party as 

“the party in whose favor final judgment is rendered” and did not 

address the mechanism by which contractual attorney’s fees 

should be awarded. (Hsu, at p. 872; Stats. 1968, ch. 266, § 1, 

p. 578.) In 1981, the Legislature changed the definition of 

prevailing party to “the party who is entitled to recover costs of 
18

suit.” (Hsu, at p. 873; Stats. 1981, ch. 888, § 1, p. 3399.) At the 

same time, it added two other provisions. First, it added the

provision in what is now section 1717, subdivision (b)(2) stating 

that when “an action has been voluntarily dismissed or dismissed 

pursuant to a settlement of the case, there shall be no prevailing 

party.” (Hsu, at p. 873.) This was apparently intended to codify 

the holding of a prior Supreme Court case. (Ibid.) Second, the 

Legislature added the provision on which the tenants rely, which 

states that a trial court “shall determine who is the prevailing 

party, whether or not the suit proceeds to final judgment.” (Ibid.) 

Hsu explained, “By this provision, the Legislature appears to 

have intended to abrogate the holding in Samuels v. Sabih (1976) 

62 Cal.App.3d 335, 340, which had held that a defendant could 

not recover attorney fees under section 1717 if the action was 

dismissed for failure to prosecute.” (Ibid.; see also Bank of Idaho, 

supra, 137 Cal.App.3d at pp. 15–16 [similarly interpreting the 

Legislature’s intent behind the amendment].) 

The tenants repeatedly quote Hsu and its description of the 

evolution of section 1717, but they ignore Hsu’s explanation of 

the purpose for the phrase on which they rely. Hsu’s explanation 

does not support the tenants’ position that the phrase was 

intended to allow for interim awards before the final conclusion of 

litigation. Instead, the history shows that the phrase was a 

reaction to a court’s construction of the prior statutory language 

defining a prevailing party as one who obtains a “final judgment.” 

(Samuels v. Sabih, supra, 62 Cal.App.3d at p. 340.) Read against 

this backdrop, the phrase shows the Legislature intended merely 
19

to allow for fee awards when litigation concludes in something 

other than a final judgment, such as a dismissal. The 

amendment still presupposes that the litigation will be over 

before a trial court can make a fee award. (Bank of Idaho, supra, 

137 Cal.App.3d at p. 15 [the amendment “does not imply that the 

suit need not be finally disposed of”]; Presley of Southern 

California v. Whelan (1983) 146 Cal.App.3d 959, 961 (Presley) 

[agreeing with Bank of Idaho that “this amendment merely 

allows a fee award where the final outcome of a lawsuit does not 

take the form of a final judgment but nevertheless one party wins 

and one loses; it does not allow an award where the suit is still 

ongoing”].) The simultaneous change at the time to defining 

prevailing party as “the party who is entitled to recover costs of 

suit” confirms this, since it maintained the tie between attorney’s 

fees and an award of costs at the end of litigation, a tie that 

remains in other places in the current version of the statute. 

In light of Hsu’s explanation of the purpose of this 

provision, we conclude that the phrase “whether or not the suit 

proceeds to final judgment” does not mean section 1717 allows for 

interim awards of attorney’s fees, but rather supports the 

contrary interpretation that the Legislature intended attorney’s 

fees under section 1717 to be awarded only at the conclusion of 

all litigation in a case, either in a final judgment or some other 

final disposition.

In addition to relying on the phrase “whether or not the 

suit proceeds to final judgment,” the tenants emphasize that 

section 1717, subdivision (a) allows the party “who is determined 
20

to be the party prevailing on the contract” to collect fees and 

subdivision (b)(1) defines the party prevailing on the contract as 

“the party who recovered a greater relief in the action on the 

contract.” (§ 1717, subd. (b)(1).) They again turn to Hsu, which 

explained that in 1987 the “Legislature replaced the term

‘prevailing party’ with the term ‘party prevailing on the contract,’ 

evidently to emphasize that the determination of prevailing party 

for purposes of contractual attorney fees was to be made without 

reference to the success or failure of noncontract claims.” (Hsu, 

supra, 9 Cal.4th at pp. 873–874.) They also quote Hsu’s 

statement that the “prevailing party determination is to be made 

only upon final resolution of the contract claims.” (Id. at p. 876.) 

The tenants argue these provisions mean that fees can be 

awarded as soon as the trial court rules on the contract claims in 

a case, even when other issues remain to be decided. 

The legislative history does not support the tenants’ 

position. (Gananian v. Wagstaffe (2011) 199 Cal.App.4th 1532, 

1542, fn. 9 [“We may take judicial notice of legislative history 

materials on our own motion”].) Our review of the legislative 

history confirms the evolution of the statute described in Frog 

Creek, supra, 206 Cal.App.4th at pages 526–530. As noted, ante, 

after 1981 section 1717 defined the prevailing party as the party 

entitled to recover costs. The Legislature first changed the 

definition to “the party who recovered a greater relief in the 

action on the contract” in 1986, inadvertently reverted to the 

prior definition in a later amendment that year, and restored the 

new definition in 1987. (Id. at pp. 527–529.) When the 
21

Legislature originally changed the definition in 1986, it did so in 

order to conform to a simultaneous amendment to Code of Civil 

Procedure section 1032 that defined the prevailing party for the 

purposes of costs as “ ‘the party with a net monetary recovery, a 

defendant in whose favor a dismissal is entered, a defendant 

where neither plaintiff nor defendant obtains any relief, and a 

defendant as against those plaintiffs who do not recover any 

relief against that defendant.’ ” (Frog Creek, at p. 528.) Thus, 

section 1717’s new definition of prevailing party as the party who 

recovered a “greater relief in the action on the contract” was 

intended to parallel the “net monetary recovery language” added 

to Code of Civil Procedure section 1032. (Frog Creek, at p. 529.)

Nowhere in the legislative history of section 1717 in 1986 

or 1987 is there any indication that the Legislature intended to 

allow for interim awards of attorney’s fees upon the resolution of 

the contract claims in a case even if further litigation remains on 

non-contract claims. Instead, the Legislature’s attempt to create 

consistency between section 1717 and the procedures for a 

prevailing party to collect costs reinforces our conclusion that 

attorney’s fees are intended to be part of costs and therefore 

awarded, like all costs, at the conclusion of the litigation of an 

action.

Hsu and its interpretation of section 1717 are not to the 

contrary. Hsu held that a trial court must determine which party 

prevailed on the contract by looking only at the outcome of the 

contract claims, without taking into account any equitable 

considerations unrelated to litigation success on the contract 
22

claims. (Hsu, supra, 9 Cal.4th at pp. 876–877.) This holding 

indicates nothing about when a trial court must make this 

determination. Likewise, Hsu’s statement that a prevailing party 

determination “is to be made only upon final resolution of the 

contract claims” does not say what qualifies as a final resolution. 

(Id. at p. 876.) It is also significant that Hsu cited Bank of Idaho

as support for this statement, which as we have seen supports 

our conclusion that section 1717 only allows an award of 

attorney’s fees at the end of litigation. (Ibid.)

The tenants also cite DisputeSuite.com, LLC v. 

Scoreinc.com, supra, 2 Cal.5th 968, but that case does not 

address the question we face. DisputeSuite applied Hsu’s “final 

resolution” principle and held that the dismissal of an action 

based on forum non conveniens, with the expectation that the 

plaintiff would refile the case in another state, did not dispose of 

the parties’ contractual dispute so the trial court could not make 

the necessary evaluation of the parties’ relative success on the 

contract claims to permit a fees award. (Id. at pp. 972, 974.) We 

have already concluded that the trial court’s summary 

adjudication order does not constitute a final resolution of the 

contract claims, so Hsu’s and DisputeSuite’s statements are not 

helpful to the tenants.8

8 Valstock argues, based on Bank of Idaho, supra, 

137 Cal.App.3d at page 16, that section 1717, subdivision (b)(2)’s 

statement that there will be no prevailing party if an action “has 

been voluntarily dismissed or dismissed pursuant to a settlement 

of the case” further indicates that the statute does not allow 

interim fee awards. (See also Presley, supra, 146 Cal.App.3d at 

pp. 961–962 [agreeing with Bank of Idaho on this point].) It is 
23

Although the tenants do not cite it, Burkhalter Kessler 

Clement & George LLP v. Hamilton (2018) 19 Cal.App.5th 38

arguably supports their position. That case relied on section 

1717’s “whether or not the suit proceeds to final judgment” 

language when it held that an award of attorney’s fees under 

section 1717 prior to entry of final judgment was not premature. 

(Burkhalter, at pp. 46–47 [rejecting argument that the prevailing 

defendant should have waited to move for attorney fees until 

after the entry of judgment because “that is not required under 

section 1717”].) However, the procedural history of that case is 

different. The prevailing defendant had successfully demurred to 

the plaintiff’s first amended complaint, and the plaintiff then 

amended the complaint and did not name that defendant as a 

party. (Id. at p. 42.) The trial court then granted the prevailing 

defendant’s motion for dismissal with prejudice based on the 

plaintiff’s failure to name her as a party in the second amended 

complaint. (Ibid.) Because the prevailing party was already 

dismissed from the case by the second amended complaint and 

the court engaged in no analysis of section 1717’s language or 

history, this case is distinguishable and unpersuasive.

The last aspect of section 1717 that is relevant to our 

analysis is subdivision (c). That subdivision directly addresses a 

scenario in which an action involves both contract and noncontract causes of action, stating, “In an action which seeks relief 

unnecessary for us to consider this argument because we 

conclude other aspects of the statute make it sufficiently clear 

that it does not permit interim fee awards.
24

in addition to that based on a contract, if the party prevailing on 

the contract has damages awarded against it on causes of action 

not on the contract, the amounts awarded to the party prevailing 

on the contract under this section shall be deducted from any 

damages awarded in favor of the party who did not prevail on the 

contract. If the amount awarded under this section exceeds the 

amount of damages awarded the party not prevailing on the 

contract, the net amount shall be awarded the party prevailing 

on the contract and judgment may be entered in favor of the 

party prevailing on the contract for that net amount.” (§ 1717, 

subd. (c).) 

This provision establishes the procedure for reconciling a 

party’s award of attorney’s fees on the contract portion of an 

action with the outcome of the rest of the action. The existence of 

the process for such reconciliation indicates that contractual fee 

awards should be made only after the end of all litigation in a 

case, including litigation of non-contract claims. The statute 

creates no exceptions for cases in which contract claims are 

disposed of earlier than the non-contract claims, such as through 

a demurrer or summary adjudication. In such cases, if the party 

could have moved for attorney’s fees immediately upon an 

interim resolution of the contract claims, there would be no 

reason to deduct an attorney’s fees award in favor of the party 

prevailing on the contract from damages awarded against that 

party on non-contract claims or to reduce a fee award by the 

amount of an offsetting damages determination. The party 

prevailing on the contract at the pre-trial stage would, like the 
25

tenants did here, immediately move to collect their fees, leaving 

nothing to offset. This would contravene the Legislature’s 

evident intent that a prevailing party receive only the net 

monetary amount to which it is entitled, rather than requiring 

the parties to transfer back and forth different amounts awarded 

under different theories.

b. The tenants’ authorities

The tenants cite several authorities that they contend 

support their position that section 1717 permits interim fee 

awards, but their reliance on these cases is misplaced.

PNEC Corp. v. Meyer (2010) 190 Cal.App.4th 66, 70–71, 

disapproved of in part by DisputeSuite, supra, 2 Cal.5th at 

page 979,9 and Winick Corp. v. Safeco Insurance Co. (1986) 

187 Cal.App.3d 1502, 1507 (Winick), both stated that litigation 

need not end in a final judgment for a prevailing party to obtain 

fees under section 1717. However, these statements concerned 

arguments that a final decision on the merits was necessary for a 

party to obtain a fee award, as opposed to a final termination of 

the litigation for procedural reasons or some other basis. Neither 

case discussed whether an award of fees is proper before 

completion of the litigation as a whole. In both cases, the 

litigation had ended before the trial court awarded fees, via a 

dismissal based on forum non conveniens in PNEC Corp. and 

9 The tenants’ citation to this case fails to note that 

DisputeSuite disapproved it in part. We assume this failure was 

inadvertent, not an attempt to mislead the court about the extent 

to which PNEC Corp. v. Meyer is still good law. Counsel for the 

tenants would be well advised in the future to properly cite cases’ 

subsequent history.
26

dismissal for failure to complete service in three years in Winick. 

(PNEC Corp., at pp. 70–71; Winick, at pp. 1506–1508.) 

Similarly, the tenants cite a Witkin treatise as agreeing 

that section 1717 contains no requirement of a final judgment. 

(7 Witkin, Cal. Proc. (6th ed. 2022) Judgment § 204.)10 The 

treatise does so state, but the statement merely reflects the 

statute’s shift away from defining prevailing party by reference to 

a final judgment. (Ibid.) Tellingly, the tenants also ignore the 

next sentence in the treatise, which remarks, “However, final 

disposition is required.”11 (Ibid.)

c. Other statutes and policy considerations

To the extent that the proper interpretation of section 1717 

remains in any doubt, a few final points cement our conclusion 

that section 1717 does not permit interim fee awards.

First, the Judicial Council’s rule governing motions for 

attorney’s fees under section 1717 is consistent with our 

10 The tenants cited the edition of the treatise in effect 

when they filed their brief. (7 Witkin Cal. Proc. (5th ed. 2020) 

Judgment, § 195.) We cite to the most recent edition, which is 

materially identical to the edition the tenants cited. 

11 The treatise relies on Presley for this conclusion, which 

applied a previous version of section 1717 but nonetheless 

supports our interpretation of the current statutory text, as 

discussed, ante. (7 Witkin, Cal. Proc. (6th ed. 2022) Judgment 

§ 205.) The treatise also discusses several decisions that have 

reached different outcomes when considering whether interim 

fees are available after rulings on petitions to compel arbitration, 

some of which the tenants also cite. (E.g., Turner v. Schultz

(2009) 175 Cal.App.4th 974, 976; Acosta v. Kerrigan (2007) 

150 Cal.App.4th 1124, 1125.) We do not discuss these decisions 

because the rulings in those cases did not involve the merits of a 

dispute, so they are distinguishable.
27

interpretation of section 1717 as permitting fee awards only at 

the end of an action.12 Rule 3.1702(b)(1) of the California Rules of 

Court13 states that a “motion to claim attorney’s fees for services 

up to and including the rendition of judgment in the trial court—

including attorney’s fees on an appeal before the rendition of 

judgment in the trial court—must be served and filed within the 

time for filing a notice of appeal.” Tying the deadline for an 

attorney’s fees motion to the deadline for filing an appeal, as rule 

3.1702 does, indicates that a trial court will only award fees at 

the end of an action, when the opposing party can also file an 

appeal. Additionally, this deadline runs only from a judgment, so 

the entry of a non-appealable order, such as a summary judgment 

or summary adjudication order, does not trigger it. (Saben, 

Earlix & Associates v. Fillet, supra, 134 Cal.App.4th at pp. 1029–

1030.) However, we recognize that rule 3.1702 is not conclusive. 

It is only a rule and not a statute, so it could not contradict 

section 1717. (Cal. Court Reporters Assn. v. Judicial Council of 

12 While some attorney’s fees claims can be raised in a 

memorandum of costs, claims for fees under section 1717 can only 

be raised via motion or upon entry of a default judgment, unless 

the parties stipulate otherwise. (Code Civ. Proc., § 1033.5, 

subds. (c)(5)(A) [“Attorney’s fees allowable as costs pursuant to 

subparagraph (A) . . . of paragraph (10) of subdivision (a) shall be 

fixed either upon a noticed motion or upon entry of a default 

judgment, unless otherwise provided by stipulation of the 

parties”], (c)(5)(B) [“Attorney’s fees awarded pursuant to Section 

1717 of the Civil Code are allowable costs under Section 1032 as 

authorized by subparagraph (A) of paragraph (10) of subdivision 

(a)”].)

13 All subsequent references to rules are to the California 

Rules of Court.
28

Cal. (1995) 39 Cal.App.4th 15, 18 [“rules of court are only valid to 

the extent that they comply with the constitutional charge to be 

‘not inconsistent with statute’ ”].) It is also possible that the rule 

merely sets an outer deadline and permits attorney’s fees motions 

at any point earlier in a case. But this reading of the rule is less 

plausible because it would give parties such a wide range of time 

in which to claim fees and give the prevailing party a choice of 

when to request a fees award, which could create an opportunity 

for gamesmanship and mischief.14

14 Valstock cites 580 Folsom Associates v. Prometheus 

Development Co. (1990) 223 Cal.App.3d 1, 30, for its statement, 

“Only when a final judgment has been entered in this matter, 

whether after further appellate review or not, will there be a 

prevailing party.” Valstock appears to imply that this means the 

trial court here could not award attorney’s fees for the 

declaratory judgment cause of action until after the conclusion of 

all appeals from a final judgment. 580 Folsom is not apposite or 

persuasive here. That decision affirmed a trial court’s denial of a 

plaintiff’s post-judgment motion for attorney’s fees incurred in 

proceedings on a defendant’s writ petition challenging a 

summary adjudication order, which petition the Court of Appeal 

had previously summarily denied. (Id. at pp. 8–9, 29–30.) The 

court’s reasoning turned on the fact that the summary denial of 

the writ petition was not a final adjudication or determination of 

a cause, so the plaintiff did not prevail on it. (Id. at p. 30.) The 

court did not consider whether the plaintiff’s victory in the trial 

court upon final judgment entitled it to fees for the interim writ 

proceedings. We do not construe 580 Folsom as holding that fee 

awards under section 1717 for proceedings in the trial court will 

always be premature until all appellate proceedings are complete. 

(Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368 [“Although a 

prevailing party at trial may not be the prevailing party after an 

appeal, it has been held that a motion for attorney fees is not 

premature despite the filing of a notice of appeal”], superseded by 
29

Second, interim attorney’s fees awards are anomalous in 

civil litigation.15 Another court recently made the same point, 

rejecting a claim to interim fees under a different statute because 

there was no indication the Legislature intended “to depart from 

well-established principles that fees and costs are ordinarily not 

granted for interim success, and that the prevailing party is 

determined, and fees and costs awarded, at the conclusion of the 

litigation.” (Artus v. Gramercy Towers Condominium Assn.

(2018) 19 Cal.App.5th 923, 927 [rejecting claim for fees for 

interim success under the Davis-Stirling Common Interest 

Development Act (§§ 4000 et seq.) where party lost at trial].) Our 

research has disclosed that some decisions have held that certain 

California statutes allow for interim fee awards, but they are few 

and distinguishable.16 

statute on other grounds as stated in Lee v. Wells Fargo Bank

(2001) 88 Cal.App.4th 1187, 1197.)

15 We do not consider here interim fee awards in the 

distinct contexts of probate and family law, which are governed 

by different statutes and considerations. (See, e.g., People ex rel. 

Harris & Becerra v. Shine (2017) 16 Cal.App.5th 524, 533–534 

[discussing principle of interim fee awards in litigation 

concerning a trust estate]; Alan S. v. Superior Court (2009) 

172 Cal.App.4th 238, 242 [Family Code authorizes pendente lite 

attorney’s fee awards in various types of proceedings to give 

parties equal opportunity to present their arguments].)

16 The tenants cite Animal Lovers Volunteer Ass’n, Inc. v. 

Carlucci (9th Cir. 1989) 867 F.2d 1224, 1225, abrogated on other 

grounds by Sorenson v. Mink (9th Cir. 2001) 239 F.3d 1140, 1149,

but apart from referring to a prevailing party, the federal statute 

at issue in that case does not resemble section 1717. (See also 

Bell, supra, 87 Cal.App.4th at pp. 832–833 [“The federal decisions 

authorizing interim attorney fee awards are predicated in large 
30

The tenants point out that courts have recognized that 

Code of Civil Procedure section 1021.5 allows for interim awards 

of private attorney general attorney’s fees. (E.g., Urbaniak v. 

Newton (1993) 19 Cal.App.4th 1837, 1844; Bell, supra, 

87 Cal.App.4th at p. 833 [“Apart from the sphere of private 

attorney general actions under Code of Civil Procedure section 

1021.5, the award of interim attorney fees in California remains 

a wholly untested and novel concept that is ordinarily barred by 

explicit statutory language”].) But Code of Civil Procedure 

section 1021.5 permits fee awards for enforcing important rights 

and conferring benefits on the public before the conclusion of a 

case, and those objectives can be achieved at interim stages of 

litigation. (Bell, at p. 833.) This contrasts with section 1717’s 

limitation of fees to the party “who recovered a greater relief in 

the action on the contract.” (§ 1717, subd. (b)(1), italics added; 

Bell, at p. 833.) Additionally, interim fees are available under 

Code of Civil Procedure section 1021.5 only when a benefit is 

“ ‘secure.’ ” (Urbaniak, at p. 1844.) While some decisions have 

upheld awards of fees after appeals that upheld a portion of a 

party’s victory while requiring further proceedings on other 

claims, we are aware of no decision affirming an award of fees 

under Code of Civil Procedure section 1021.5 after an interim 

ruling that has not already been upheld or directed by a higher 

court. (E.g., Bouvia v. County of Los Angeles (1987) 

195 Cal.App.3d 1075, 1080, 1086 [plaintiff was entitled to fees 

measure on circumstances and legislative history not present” in 

cases under California law].)
31

under Code Civ. Proc., § 1021.5 for obtaining writ from appellate 

court directing trial court to issue an injunction, despite claims 

for damages that remained pending]; Sundance v. Municipal 

Court (1987) 192 Cal.App.3d 268, 271 [plaintiffs were entitled to 

fees under Code Civ. Proc., § 1021.5 for obtaining order affirmed 

by Supreme Court, even though further litigation was 

contemplated].) 

The tenants also argue that interim fee awards are 

permissible under section 3426.4 and statutes providing for 

discovery sanctions based on fee-shifting provisions. Section 

3426.4 allows a court to award attorney’s fees to a prevailing 

party in a misappropriation of trade secrets case if “a claim of 

misappropriation is made in bad faith, a motion to terminate an 

injunction is made or resisted in bad faith, or willful and 

malicious misappropriation exists.” The statute does not 

explicitly allow for interim fee awards, and the tenants cite no 

authority holding that it does. Even if it did permit interim fee 

awards, such as perhaps for prevailing in preliminary injunction 

proceedings, it does not condition such an award on recovery, like 

section 1717, so it has little bearing here. The discovery statutes 

do explicitly require interim monetary sanctions upon rulings on 

discovery motions. (E.g., Code Civ. Proc., § 2030.290, subd. (c) 

[“The court shall impose a monetary sanction . . . against any 

party, person, or attorney who unsuccessfully makes or opposes a 

motion to compel a response to interrogatories, unless it finds 

that the one subject to the sanction acted with substantial 

justification or that other circumstances make the imposition of 
32

the sanction unjust”].) But the language of these statutes does 

not resemble section 1717, either.

Monterossa v. Superior Court (2015) 237 Cal.App.4th 747,

754 held that a subdivision in section 2924.12, a provision in the 

Homeowner’s Bill of Rights (Civil Code, §§ 2920.5, 2923.4–2923.7, 

2924, 2924.9–2924.12, 2924.15, 2924.17–2924.20) that provides 

certain foreclosure protections, authorizes fee awards when a 

plaintiff obtains only a preliminary injunction and not a 

permanent injunction. Section 2924.12 authorizes fees for a 

plaintiff who obtains injunctive relief or an award of damages, 

and as Monterossa noted, under that “unique statutory scheme,

in many cases the best a plaintiff can hope to achieve is a 

preliminary injunction.” (Monterossa, at p. 754.) The same is not 

true in civil litigation concerning contracts.

Close v. Sotheby’s, Inc. (2018) 909 F.3d 1204, 1207, 1213, 

which the tenants cite, affirmed an interim award of fees under 

subdivision (a)(3) of section 986, the Resale Royalties Act. Close

engaged in no analysis of the statute at issue and the only 

California state court cases it cited were Winick and Urbaniak v. 

Newton, both of which are inapposite. (Id. at p. 1213.) Close also 

has not been cited by any California state court.

As a last example, a defendant who succeeds in striking 

only part of a complaint under the anti-SLAPP statute, as well as 

a plaintiff who succeeds in defeating a frivolous anti-SLAPP 

motion, can immediately collect attorney’s fees. (Code Civ. Proc., 

§ 425.16, subd. (c); Bel Air Internet, LLC v. Morales (2018) 

20 Cal.App.5th 924, 946.) But the statute creating the anti-
33

SLAPP motion procedure includes the provision authorizing such 

fees; there is no similar provision in the summary judgment 

statute authorizing an immediate award of contractual attorney’s 

fees. The express provision authorizing interim fee awards in 

section 425.16, subdivision (c) serves to underscore that such 

awards are the exception in civil litigation, not the rule. 

Given the wealth of statutes permitting attorney’s fee 

awards, the absence of any other provisions besides these few 

allowing for interim fee awards is significant. (See Wegner et al., 

Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 

2008) ¶ 17:545 [“Literally hundreds of California statutes 

authorize court awards of attorney fees in specific types of 

actions”].) 

Finally, our interpretation of section 1717 is preferable as a 

matter of trial and appellate procedure. Valstock points out that 

the unappealability of the summary adjudication ruling, 

combined with the appealability of the fee award, means Valstock 

must accept in this fee appeal that the tenants prevailed on the 

contract claims. Only later, in an appeal after the end of the 

litigation in the trial court, can Valstock challenge the merits of 

the summary adjudication ruling. Valstock argues this sequence 

will preclude it from being able to challenge the merits of the 

summary adjudication in a way that effectively allows for 

reversal of the fee award. 

Although Valstock does not cite it, Bell supports their 

concern. It pointed out, “The award of interim attorney fees 

would present peculiar problems in a statute that conditions the 
34

right to recover attorney fees on the plaintiff’s recovery, and we 

find nothing in the language of Labor Code section 1194 

providing guidance as to when, and under what conditions, an 

interim fee may be granted. The most plausible explanation is 

that the Legislature contemplated only an award following final 

judgment, governed by familiar statutory procedures and rules of 

court.” (Bell, supra, 87 Cal.App.4th at p. 831.) Bell also noted 

“the awkward dilemmas that would be presented by an interim 

award,” which the trial court had sought to avoid by retaining 

jurisdiction to adjust or refund the fees award, depending on the 

outcome of later proceedings. (Ibid.) Bell was reluctant to 

believe the Legislature intended to authorize an award of fees 

subject to unrestricted adjustment or refund later in the 

litigation, since “[s]uch a process would run counter to the 

principle that, when differing interpretations are possible, ‘ “[i]t 

is the duty of the courts within the framework of the statutes 

passed by the Legislature, to interpret the statutes so as to make 

them workable and reasonable.” ’ ” (Id. at pp. 831–832.)

While it would technically be possible for us to reverse an 

interim fee award under section 1717 if we were to reverse later 

the summary adjudication order on which it is based, Bell

indicates that Valstock’s concerns about the sequencing are valid. 

If the tenants have enforced an interim fee award before 

judgment, as they have already tried to do here, Valstock will 

need to claw back the fees from the tenants if it succeeds in a 

later appeal from a final judgment or if some subsequent 

development in the litigation affects the amount of fees owed. 
35

Such a clawback could prove difficult to collect, unless the 

prevailing party sets the funds aside until all appeals are final, 

which would call into question the point of the award in the first 

place.

The appealability of a fee award, like the one the trial court 

entered here against Valstock, mitigates some of these concerns 

but does not eliminate them. Valstock was able to stay 

enforcement of the award by appealing it and triggering the 

automatic appellate stay. (Code Civ. Proc., § 916, subd. (a).) But

if we upheld the trial court’s award, that ruling would likely 

become final long before an appeal from a final judgment in the 

action could be resolved, so the appeal of the fee award would not 

avoid the problem entirely. Of course, this aspect of the appellate 

stay, too, calls into question the purpose of an interim fee award. 

The appealability of the award, combined with the length of time 

it takes for a Court of Appeal to dispose of an appeal, means an 

interim fee award is often unlikely to provide much help to a 

party facing a mismatch in litigation resources. Moreover, if a 

party can avoid having to pay an interim fee award only by 

appealing it, we can expect to see parties file appeals with 

questionable merit purely to avoid (or at least delay) having to 

pay fees in the middle of a case. The Courts of Appeal will also 

have to rule on appeals from fee awards that could later become 

moot if the underlying orders are reversed. While perhaps not 

the most important concern, the potential for waste of appellate 

judicial resources, when other litigants are waiting for their own 
36

appeals to be resolved, counsels against allowing interim fee 

awards.

The tenants suggest Valstock could have avoided such 

issues by seeking writ review of the summary adjudication order. 

This is true, but they cite nothing to suggest Valstock was 

required to seek writ review, and it was not. (Angelica Textile 

Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 504 [“there is 

no requirement in our summary judgment statute that parties 

that wish to challenge orders granting summary adjudication do 

so by way of a writ petition”].) They also argue that Valstock 

could have suggested to the trial court that it should sua sponte 

reconsider the summary adjudication, under the authority 

recognized in Goel, supra, 35 Cal.4th 1094. Again, however, they 

cite nothing that obligated Valstock to pursue this course.

Bell avoided these problems by reviewing the “decisional 

underpinning” of the fees award—meaning the summary 

adjudication order—under Code of Civil Procedure section 906. 

(Bell, supra, 87 Cal.App.4th at pp. 809, 829.) That statute allows 

an appellate court to review “any intermediate ruling, 

proceeding, order or decision which involves the merits or 

necessarily affects the judgment or order appealed from.” (Code 

Civ. Proc., § 906.) While we agree with much of Bell’s analysis

regarding interim fee awards, we part company with it on its 

application of this statute.17 It is established law that a 

summary adjudication ruling is not appealable, while a fee award 

“is appealable as a final determination on a collateral matter, 

17 No subsequent case has followed Bell on this point.
37

severable from the general subject of the litigation.” (Smith v. 

Krueger (1983) 150 Cal.App.3d 752, 756; Tucker Ellis LLP v. 

Superior Court (Nelson), supra, 12 Cal.App.5th at p. 1240.) If a 

reviewing court can be forced to review a summary adjudication

ruling in an appeal from a subsequent fee award, it would call 

into question whether the fee award is truly collateral. It would 

circumvent the one final judgment rule that precludes immediate 

appeals of summary adjudication rulings. It would also give a 

party who prevails on a summary adjudication motion ruling the 

power to expedite or delay appellate review of the ruling by 

choosing whether or not to file a motion for an interim attorney’s 

fees award that could then be appealed. Holding that section 

1717 does not permit interim fee awards, as we do, avoids these 

concerns.

DISPOSITION

The trial court’s order is reversed, without prejudice to 

consideration of a subsequent motion for attorney’s fees at the 

appropriate time. The parties shall bear their own costs on 

appeal.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

STREETER, J.

Chen et al. v. Valstock Ventures, LLC, et al. (A161885)
Trial Court:San Francisco City & County Superior Court

Trial Judge: Hon. Ethan P. Schulman

Counsel: California Appellate Law Group LLP, Johanna 

Schiavoni, Jennifer Teaford; Kronenberg Law PC, 

William S. Kronenberg, V. Sathienmars for 

Defendants and Appellants.

Ropes & Gray LLP, Douglas H. Hallward-Driemeier, 

Rocky C. Tsai; Winifred V. Kao for Plaintiffs and 

Respondents.