de la Cuesta v. Benham, 193 Cal. App. 4th 1287 (2011)

Citation: de la Cuesta v. Benham, 193 Cal. App. 4th 1287 (2011)
Parent Document: de la Cuesta v. Benham, 193 Cal. App. 4th 1287 (2011)
Jurisdiction: California (state)
Effective Date: 2011-03-29
Original Source: https://www.courtlistener.com/opinion/5810133/de-la-cuesta-v-benham/ ↗

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Much of the Hsu opinion represents the effort of the high court to reconcile what we might call the “discretion clause” of section 1717 with the “entitlement clause” of section 1717. (See Hsu, supra, 9 Cal.4th at pp. 871-876.) Both clauses are set forth in subdivision (b)(1) of the statute. Structurally, the entitlement clause comes first, with the statute first declaring that (a) the trial court must determine who is the “prevailing party,” and then (b) defining the “prevailing party” as the party who recovered a greater relief in the action on the contract. (“The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, *1293whether 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” (§ 1717, subd. (b)(1), italics added.)) But then comes the discretion clause, which gives a court permission to determine no party prevailed on the contract. (“The court may also determine that there is no party prevailing on the contract for purposes of this section.” (Ibid.))

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