The trial court awarded attorney fees to defendant Gail L. Meyer after she succeeded in moving to dismiss the action against her "on the ground of inconvenient forum." (Code Civ. Proc., § 418.10, subd. (a)(2).) Plaintiff PNEC Corporation (PNEC) appeals the postdismissal attorney fee award, claiming (1) a party is never entitled to contractual attorney fees under Civil Code section 1717 for successfully obtaining dismissal of an action on the ground of forum non conveniens; and (2) even if an attorney fee award is generally authorized in these circumstances, the amount awarded in this case ($21,677.25) was unreasonable because it included fees incurred working on aspects of the case other than forum non conveniens. We affirm the court's order.
In November 2008, PNEC filed a complaint against Meyer and other defendants (one corporation and two other individuals). PNEC alleged it provided defendants with "certain refined petroleum products" for which defendants failed to pay. The complaint included causes of action for breach of contract, open book account, account stated, goods sold and delivered, and breach of guaranty. Only the fifth cause of action, breach of guaranty, was alleged against Meyer and the other individual defendants.
The complaint attached a copy of a written guaranty of payment allegedly signed by Meyer. In relevant part, the document states: "The Customer and the undersigned agree that if the account is referred for collection to an attorney, the undersigned will pay reasonable attorney's fees and costs of collection."
Meyer's counsel made a special appearance to move to either (1) quash service of process on Meyer for lack of personal jurisdiction (Code Civ. Proc., § 418.10, subd. (a)(1)); or (2) stay or dismiss the action due to inconvenient forum (Code Civ. Proc., § 418.10, subd. (a)(2)). According to her declaration, Meyer resides in Tacoma, Washington, and has never lived, worked, or been involved in any legal proceeding in California. Meyer also attested she sold her ownership stake in the corporate defendant years earlier to the other individual defendants. The court granted the motion to dismiss on forum non conveniens grounds. The court entered judgment of dismissal without prejudice in March 2009. PNEC did not appeal the judgment of dismissal.
PNEC's primary contention is that a dismissal on forum non conveniens grounds (Code Civ. Proc., § 418.10, subd. (a)(2)) does not provide an adequate basis for deeming a defendant to be a "party prevailing on the contract" pursuant to Civil Code section 1717, subdivision (a). "We review a determination of the legal basis for an award of attorney fees de novo as a question of law." (Pueblo Radiology Medical Group, Inc. v. Gerlach (2008) 163 Cal.App.4th 826, 828 [77 Cal.Rptr.3d 880].)
It does not appear that the precise question before us has been addressed in published California authority. However, in Profit Concepts Managements Inc. v. Griffith, supra, 162 Cal.App.4th at page 952 (Profit Concepts), this court held that a defendant who successfully moved to quash service for lack of personal jurisdiction (Code Civ. Proc., § 418.10, subd. (a)(1)) was the "party prevailing on the contract under Civil Code section 1717" and was "therefore entitled to recover his reasonable attorney fees as costs." (Profit Concepts, at p. 952.)
Reading the language of Civil Code section 1717, and comparing such language to a prior version of Civil Code section 1717 applied in previous cases, Profit Concepts concluded that a defendant obtaining a dismissal of a contract claim for lack of personal jurisdiction is a prevailing party. (Profit Concepts, supra, 162 Cal.App.4th at p. 955.) Profit Concepts contrasted this result with a case in which a plaintiff voluntarily dismisses its case; Civil Code section 1717, subdivision (b)(2), plainly "provides there is no prevailing party for purposes of that section when the case is voluntarily dismissed, or dismissed pursuant to settlement." (Profit Concepts, supra, 162 Cal.App.4th at p. 955.)
Profit Concepts rejected the notion that a final judgment was required to obtain attorney fees under Civil Code section 1717; nothing in the current
At oral argument, PNEC made much of the fact that the trial court dismissed the case "without prejudice." But this aspect of the court's order merely recognized the case had not yet been decided on the merits and PNEC therefore would be able to file the case in the appropriate venue in Washington. (See Code Civ. Proc., § 581, subd. (h) ["The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10."]; Profit Concepts, supra, 162 Cal.App.4th at p. 956 [despite dismissal, subsequent case pending in Okla. to determine merits].)
The primary California case relied on by PNEC is distinguishable. (Estate of Drummond (2007) 149 Cal.App.4th 46, 53-54 [56 Cal.Rptr.3d 691] [affirming trial court's denial of attorney fees in case dismissed because "litigation on the contract in the probate department ended solely because it should have been brought in another department of the same court"; also noting "interim nature of appellants' success provided a sound basis for a discretionary finding that neither party prevailed on the contract"].) To the extent language in Estate of Drummond undermines the rationale of Profit Concepts, we reject the applicability of such language to the case before us. (See Estate of Drummond, supra, 149 Cal.App.4th at p. 53 ["The dismissal of his petition in the probate matter did not defeat his contract claims; it merely deflected or forestalled them. By achieving that result, appellants no more `prevailed' than does a fleeing army that outruns a pursuing one. Living to fight another day may be a kind of success, and surely it is better than defeat. But as long as the war goes on, neither side can be said to have prevailed."].) Despite its colorful allusion to war, in Estate of Drummond it clearly
PNEC notes that several federal cases point toward a contrary result. (See Dattner v. Conagra Foods, Inc. (2d Cir. 2006) 458 F.3d 98, 102-104 [interpreting definition of "prevailing party" in Fed. Rules Civ.Proc., rule 54(d), 28 U.S.C., using federal cases; concludes dismissal on ground of forum non conveniens does not result in "prevailing party" entitled to costs]; see also Advance Financial Resources, Inc. v. Cottage Health System, Inc. (D.Or., Sept. 1, 2009, No. CV08-1084-KI) 2009 U.S.Dist. Lexis 79647 [no attorney fees after dismissal for lack of personal jurisdiction]; N.R. v. San Ramon Valley Unified School Dist. (N.D.Cal., July 6, 2006, No. C05-0441 SI) 2006 U.S.Dist. Lexis 47287 [no attorney fees after dismissal for lack of subject matter jurisdiction and failure to exhaust administrative remedies]; Idea Place Corp. v. Fried (N.D.Cal. 2005) 390 F.Supp.2d 903, 904-906 [no attorney fees after dismissal for lack of subject matter jurisdiction; "[i]n the Ninth Circuit ... a defendant is not considered a `prevailing party' when dismissal is mandated by a lack of subject matter jurisdiction"].)
These federal cases rest on the observation that a jurisdictional or inconvenient forum dismissal is not a final, on-the-merits resolution of a contract claim. But to rely on the rationale of these federal authorities in this case would be to disavow Profit Concepts—indeed, one of the cases applying Civil Code section 1717 explicitly criticized Profit Concepts. (Advance Financial Resources, Inc. v. Cottage Health System, Inc., supra, 2009 U.S.Dist. Lexis 79647 at p. *12 ["I find Profit Concepts unpersuasive and decline to follow it."].) We find Profit Concepts persuasive and opt to follow it.
We also reject PNEC's secondary argument (made without citation to any authority) that the court's award of attorney fees ($21,677.25) was unreasonable because the award was not limited to work performed solely on the forum non conveniens issue. An award of attorney fees is reviewed for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [95 Cal.Rptr.2d 198, 997 P.2d 511].) The court based its award to Meyer on attorney fees incurred prior to the dismissal of the action. We see no indication in the record that the court abused its discretion.
The trial court's order awarding attorney fees to Meyer is affirmed. Meyer shall recover her costs and attorney fees incurred on appeal.
Moore, Acting P. J., and Aronson, J., concurred.