Filed 5/14/13
                           CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                     DIVISION FOUR




KHAVARIAN ENTERPRISES, INC.,                         B243467

        Plaintiff and Appellant,                     (Los Angeles County
                                                     Super. Ct. No. BC444337)
        v.

COMMLINE, INC., et al.,

        Defendants and Respondents.




        APPEAL from orders of the Superior Court of Los Angeles County, Susan
Bryant-Deason, Judge. Reversed and remanded.
        Henry J. Josefsberg for Plaintiff and Appellant.
        Diversity Law Group, Larry W. Lee, and Craig S. Hubble for Defendants and
Respondents.
                                    INTRODUCTION


       Plaintiff Khavarian Enterprises, Inc., doing business as Vision Communications
Co. (Vision), appeals from orders denying its motion for attorney fees and costs and
granting the motion to strike its cost memorandum in favor of defendants Commline,
Inc., Jeffrey Fukusawa, James Timjun, and Theresa Camden (Commline or the
Commline defendants). Vision contends the trial court erred in finding that it could not
properly decide either motion because the matter was resolved by settlement agreement
prior to trial. Because we conclude that parties to a settlement agreement can validly
specify that one party is potentially a prevailing party and reserve for later determination
by the trial court whether that party did prevail, as well as other factual matters involved
in making an award of statutory attorney fees, we reverse the trial court‟s orders and
remand the matter to the trial court to consider the motions.


                  FACTUAL AND PROCEDURAL BACKGROUND


       In August 2010, Vision filed an action for trade secret misappropriation, seeking
damages, restitution, and injunctive relief. Respondents filed a timely answer.
Defendant Fukusawa filed a cross-complaint against Vision alleging failure to pay
commissions. Vision answered.
       In April 2012, the parties engaged in mediation and resolved the matter, entering
into a confidential settlement agreement. The settlement allowed Vision to move,
pursuant to Civil Code section 3426.4 (section 3426.4), for attorney fees and to file a
memorandum of costs pursuant to Code of Civil Procedure section 1033.5 (section
1033.5).
       Specifically, the agreement stated that Commline would pay Vision a specified
dollar amount. “This Settlement Sum is exclusive of attorneys‟ fees and costs. . . . [¶]
[Vision] shall apply to the Court by way of a motion for such attorney‟s fees and costs
incurred in the Action pursuant to Cal. Civ. Code § 3426.4, and for costs incurred in the



                                              2
Action pursuant to Memorandum of Costs under Cal. Civ. Proc. Code § 1033.5, and
Defendants reserve their right to oppose and tax same. No duplicate recovery will be
allowed.” Fukusawa agreed to return to Commline a commission check and business
cards. The settlement agreement noted that “the Parties understand and agree that
nothing in this Settlement Agreement is intended, or should be construed as an admission
of any liability, misconduct, or wrongdoing by any Party herein.” The parties further
agreed that the Los Angeles Superior Court would retain jurisdiction pursuant to Code of
Civil Procedure section 664.6 to enforce the settlement agreement. Finally, the parties
agreed to mutual dismissal of the case in its entirety and to mutual releases.
       The parties then filed a joint notice of complete settlement, stating that “the parties
to this action . . . have settled all causes of action in this lawsuit, reserving only the issue
of Plaintiff‟s costs and attorney‟s fees, which shall be submitted to the Court.” The
parties dismissed the action in its entirety, noting “Plaintiff to separately seek recovery of
fees and costs, subject to opposition.”
       Vision filed a memorandum of costs pursuant to section 1033.5 and a motion for
attorney fees pursuant to section 3426.4. Commline filed opposition to the motion for
attorney fees and costs and moved to strike the memorandum of costs.


The Hearing on the Attorney Fees Motion
       The motion for attorney fees and costs was heard by the court on July 11, 2012.
Counsel for Vision began by describing the attorney fees motion as being “fairly
complicated.” The court responded, “For me it‟s really — it‟s probably a much simpler
plan than you would like for me to think that it is. For me it‟s really an issue as to
whether or not we should be having the motion. Based upon my reading of the law, it
appears to the court that this matter was resolved in a settlement. And so, therefore, for
me to make a determination that defendants engaged in any willful and malicious
misappropriation would be well nigh impossible because this was all worked out. This
would actually mean that I would have to go back through the entire case, which is what
it appears that you would have me do. And I have read the majority of what you have


                                                3
submitted. I have not read everything because a lot of this I already read before about
submissions that have been before. I am just not sure how we get there.” As counsel for
Vision described the showing required by section 3426.4, the court again commented,
“This is a settlement. You settled, you made your peace. I didn‟t understand the motion
to begin with. And after having read everything, I still don‟t understand why we‟re here.
I‟m giving you a really clear record because if you decide to take this [up on] appeal,
which I‟m sure you will, I want the Court of Appeal to know — although they don‟t even
read the hearings, they only read the moving papers — I don‟t — I mean, that‟s common
knowledge, that they are interested in not what I say but they are interested in the moving
papers. In my review of all the moving papers, the fact that this has settled does not
make the plaintiff the prevailing party. And a dismissal was filed, so I‟m not sure that it
doesn‟t just make the defendants the prevailing party.”
       Counsel for Vision argued that “Chinn[1] says we cannot determine who the
waiver of costs goes to, therefore, we will advert to the statutory definition of prevailing
party under Civil Code [sic] 1032. That has nothing whatsoever to do with the case here
where the parties agreed that Vision gets a certain amount of money, nonmonetary relief,
plus the ability to apply to this court for attorney‟s fees under the Uniform Trade Secrets
Act and under 1033.5 in the Code of Civil Procedure, avoiding the Chinn problem
entirely, because the parties agree that Vision can make the application. It makes no
difference whatsoever whether Vision is a prevailing party or not. [¶] . . . [¶] Here, not
only does the agreement say that Vision is entitled to make this motion under the
Uniform Trade Secrets Act, but in the notice of settlement the parties say that Vision is
entitled to move for fees and file for costs. There is no doubt that the Chinn analysis,
which adverts to the prevailing party‟s status under 1032 of the Code of Civil Procedure
is simply not relevant to this particular settlement. . . . The challenge that defendants
have mounted that, yes, they‟ve agreed that the language in the settlement agreement says
that Vision is entitled to move for fees and costs doesn‟t really mean what it says.”


1      Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175 (Chinn).

                                              4
       The court characterized the parties‟ agreement as saying that “you all agreed to
take your best shot.” Counsel for Commline argued, “I think the court hit the nail on the
head from the very outset, which is, there is absolutely no case law, no statutory
authority, nothing that sets up a procedure to do what the plaintiff is trying to do, that is,
settle a case under 3426.4, and then come in and give you a bunch of paper, declarations
and say this shows willful and malicious misappropriation.” He pointed out the only case
plaintiff cited in support of its position was Vacco Industries, Inc. v. Van Den Berg
(1992) 5 Cal.App.4th 34 (Vacco), which involved a jury finding. Counsel continued, “I
think, we‟re on the same page as the court on its interpretation of the language of the
settlement agreement, which basically says, sure you can move and we can oppose it.
And the reason why is a nonissue; we know there‟s no finding of willful and malicious
misappropriation.”
       Commline‟s counsel asserted it would be akin to a violation of due process if the
court were to consider the pleadings and the submissions to determine whether attorney
fees were to be awarded because there had been no right of cross-examination. “They
have just submitted a mountain of paperwork, which admittedly we‟ve submitted a
mountain of paperwork on summary judgment. I think if you look at the volume of
paperwork there there‟s clearly nothing that shows a willful misappropriation by clear
and convincing evidence, which is the punitive damage standard.”
       Counsel for Vision disagreed and analogized to cases involving the Fair
Employment and Housing Act, for example, that allowed an award of attorney fees where
there had been a motion for summary judgment granted but no record of vexatiousness,
frivolousness, or being wholly without merit. In those cases, additional factors had to be
proved to the court in order for the defendant to prove entitlement to attorney fees. The
court responded, “No, because this isn‟t a motion for summary judgment, this isn‟t a trial,
this isn‟t a motion coming on the heels of a disputed hearing of findings, this is not. This
is after a settlement. And I think that there is a great big difference. And I think that the
Vac[c]o and the Chinn case[s], in fact, have the right logic in reaching the conclusion that
they did reach.” Vision‟s counsel noted that it sounded “as though as a matter of law an


                                               5
agreement like this cannot result in a recovery of attorney fees for Vision.” The court
replied, “You mean in a trade secrets case. Well, I‟m not going to say that it ever can‟t
because I don‟t know if it could have been worded differently. I don‟t know if there
could have been a reservoir set aside. I‟m not going to go into the amounts because I
don‟t think that I should. And here on the record, based on the fact that all of your
findings — I mean, your under seal documents have been presented to the court. But I
don‟t think that‟s — the only way that that can make a difference would be if there were
something set aside, because I just don‟t think that — first of all, I don‟t think that I can
find that there is a prevailing party. And, secondly, if I were to find it, then I don‟t think
that there‟s been a demonstration of willful and malicious misappropriation based on
what I have to look at here. I mean, this isn‟t presented to me in a context that I could
make that kind of finding.”
       Counsel for Vision then outlined the evidence it had submitted in support of the
assertion that Commline and the defendants engaged in willful and malicious
misappropriation. The court responded, “You know, counsel, I‟m listening to you, but
the matter is settled. And I‟m hearing — I read it and I‟m hearing it, but what you‟re
saying is — but I just really, I just — I‟m going to make a ruling, and my ruling is
basically going to be that the plaintiff is not the prevailing party under CCP 1032(a)(4),
and as discussed in Vac[c]o Industries, Inc. versus Vandenberg[,] 5 Cal.App.4th 34. And
under the law settlement proceeds given to the plaintiff does not make plaintiff the
prevailing party under that. And Chinn versus KMR Property Management, 166
Cal.App.4th 175 fits in the way that‟s been argued by the parties. And so as I‟ve
indicated, defendants obtained a dismissal by plaintiff having filed voluntary dismissal on
May 21st. And, if anything, it makes them the prevailing party. But as far as this court is
concerned, this motion is denied. And I won‟t go any further than that. So you have a
record.”
       The court entered a ruling denying the motion for attorney fees, and thereafter
entered a ruling granting Commline‟s motion to strike the memorandum of costs based



                                               6
on the finding that Vision was not a “prevailing party under California Code of Civil
Procedure 1032(a)(4).”
       This timely appeal followed.


                                       DISCUSSION


       Vision contends that the trial court erred by denying its recovery of costs and
attorney fees pursuant to the terms of the parties‟ settlement agreement. Vision asserts
that it was entitled to seek costs under section 1033.5, and both costs and attorney fees
under section 3426.4. Vision contends the court erred by relying on Chinn, supra, 166
Cal.App.4th 175, to deny it an award of costs and attorney fees because Chinn, which
addresses only situations in which the parties‟ settlement agreement is silent on whether
costs may be recovered, is not applicable here as the parties specifically agreed that
Vision could seek recovery of costs as well as attorney fees. We agree that Chinn is
distinguishable and does not govern the circumstances present in this case. As we shall
explain, we conclude that the parties‟ settlement agreement was legally permissible and
dictates that the trial court must exercise its discretion to determine whether Vision is the
prevailing party—the parties having necessarily agreed that Vision is potentially a
prevailing party—and, if so, to determine whether Commline engaged in willful and
malicious misappropriation so as to justify an award of attorney fees and costs as
authorized by section 3426.4.


I.     Interpretation of the Settlement Agreement
       In interpreting the settlement agreement, we apply the general rules of contract
interpretation. (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 953
(Edwards).) “The goal of contractual interpretation is to determine and give effect to the
mutual intention of the parties. [Citations.]” (Safeco Ins. Co. v. Robert S. (2001) 26
Cal.4th 758, 763.) Thus, “„a court‟s paramount consideration . . . is the parties‟ objective
intent when they entered into [the contract].‟ [Citations.]” (People ex rel. Lockyer v. R.J.


                                              7
Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 525.) “A contract must be so
interpreted as to give effect to the mutual intention of the parties as it existed at the time
of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) “„If
a contract is capable of two constructions courts are bound to give such an interpretation
as will make it lawful, operative, definite, reasonable, and capable of being carried into
effect . . . .‟ [Citations.]” (Edwards, supra, at pp. 953-954.) In addition, “[a]n
interpretation which gives effect is preferred to one which makes void.” (Civ. Code,
§ 3541.) Because we interpret the parties‟ settlement agreement without resort to
extrinsic evidence, we apply a de novo standard of review.2 (St. Paul Mercury Ins. Co. v.
Mountain West Farm Bureau Mutual Ins. Co. (2012) 210 Cal.App.4th 645, 654.)
       The settlement agreement stated as follows: “Th[e] Settlement Sum is exclusive
of attorneys‟ fees and costs. . . . [¶] [Vision] shall apply to the Court by way of a motion
for such attorney‟s fees and costs incurred in the Action pursuant to Cal. Civ. Code
§ 3426.4, and for costs incurred in the Action pursuant to Memorandum of Costs under
Cal. Civ. Proc. Code § 1033.5, and Defendants reserve their right to oppose and tax
same.” The parties‟ joint notice of complete settlement stated that “the parties to this
action . . . have settled all causes of action in this lawsuit, reserving only the issue of
Plaintiff‟s costs and attorney‟s fees, which shall be submitted to the Court.” The parties‟
request for dismissal provided: “Plaintiff to separately seek recovery of fees and costs,
subject to opposition.”
       The language of the settlement agreement could mean only that the parties agreed
that the prevailing party, if there was one, was Vision. Agreeing that Vision “shall
apply” to the trial court for costs and attorney fees meant that the Commline defendants
were necessarily not the prevailing parties. By agreeing that Vision “shall apply to the
Court by way of a motion for such attorney‟s fees and costs,” and informing the court

2       We note Commline‟s contention that because the trial court ordered the settlement
agreement to be withdrawn from the record for reasons of confidentiality we should
strike the settlement agreement from the appellant‟s appendix and refuse to consider its
content. We reject that request. Commline cannot prevent substantive review of the
matter on that basis.

                                               8
that they were “reserving only the issue of Plaintiff‟s costs and attorney‟s fees, which
shall be submitted to the Court,” the parties‟ agreement must also be interpreted as
acknowledging that the parties were agreeing to submit to a procedure by which the court
would exercise its discretion to determine whether Vision was a prevailing party and
whether, as required by section 3426.4, the Commline defendants engaged in willful and
malicious misappropriation.
       Commline suggests that the agreement could be interpreted to mean that Vision
was permitted to “take [its] best shot” and bring a motion for costs and fees as authorized
by sections 1033.5 and 3426.4, but that the effort would be futile because (1) Vision
could not qualify as a prevailing party because settlement proceeds are not included in
determining if a party received a net monetary recovery, and (2) there had been no
finding of willful and malicious misappropriation and such a finding could not be made
post dismissal, and therefore Vision‟s motion would inevitably be unsuccessful as a
matter of law.3 However, as noted above, “„If a contract is capable of two constructions
courts are bound to give such an interpretation as will make it lawful, operative, definite,
reasonable, and capable of being carried into effect . . . .‟ [Citations.]” (Edwards, supra,
44 Cal.4th at pp. 953-954.)
       By agreeing that only Vision could potentially be the prevailing party and
reserving that decision for the trial court‟s determination, the parties agreed to supersede
resort to the default definitions of “prevailing party” contained in the first clause of Code
of Civil Procedure section 1032, subdivision (a)(4), i.e., “the party with a net monetary
recovery, [or] a defendant in whose favor a dismissal is entered.” Instead, they opted to
define their status as described in the remainder of section 1032, subdivision (a)(4): “in

3       At oral argument before the trial court, counsel for Commline argued that there is
no case law or statutory authority providing for a procedure “to do what the plaintiff is
trying to do, that is, settle a case under 3426.4, and then come in and give you a bunch of
paper, declarations and say this shows willful and malicious misappropriation.” Counsel
continued, “we‟re on the same page as the court on its interpretation of the language of
the settlement agreement, which basically says, sure you can move and we can oppose it.
And the reason why is a nonissue; we know there‟s no finding of willful and malicious
misappropriation.”

                                              9
situations other than as specified, the „prevailing party‟ shall be as determined by the
court, and under those circumstances, the court, in its discretion, may allow costs or not
and, if allowed may apportion costs between the parties on the same or adverse sides
pursuant to rules adopted under [Code of Civil Procedure] Section 1034.” (Italics added.)
Section 1032, subdivision (c) explicitly provides that parties to litigation are permitted to
agree on their own method of awarding costs. It states that “[n]othing in this section shall
prohibit parties from stipulating to alternative procedures for awarding costs in the
litigation pursuant to rules adopted under Section 1034.” (See also Chinn, supra, 166
Cal.App.4th at p. 184 [acknowledging § 1032, subd. (c) “allows the parties to stipulate to
procedures for resolving the matter of costs,” citing Goodstein v. Bank of San Pedro
(1994) 27 Cal.App.4th 899, 908].) The parties did just that, agreeing that Vision was the
only potential prevailing party—and that it could be found to be a prevailing party—and
reserving that question for the court to decide. Without interpreting the agreement to
include an understanding that Vision could be found to be a prevailing party, that portion
of the settlement agreement would be empty, ineffectual, and nothing more than a
promise to waste everyone‟s time and money. Indeed, it would make no sense for
Commline to agree that it would spend time and money opposing Vision‟s efforts to
recover costs and fees, knowing that Vision‟s efforts were doomed to fail. We find such
an interpretation to be unreasonable.
       As we next discuss, there was no legal impediment to the parties agreeing that
Vision could be found to be the prevailing party, subject to the court‟s exercise of its
discretion. It is not unlawful for a plaintiff who filed a voluntary dismissal but received a
net monetary recovery through settlement to be found to be a prevailing party. Nor is it
unlawful or procedurally impossible for parties to ask a trial court to act as fact finder
postsettlement and decide whether defendants engaged in willful and malicious
misappropriation of trade secrets.




                                             10
II.    Parties May Agree That a Plaintiff Is Potentially a Prevailing Party After a
       Voluntary Postsettlement Dismissal
       The trial court based its ruling denying Vision‟s motion for attorney fees and costs
in large part on the premise that settlement proceeds cannot be considered in determining
whether a plaintiff has received a net monetary recovery for purposes of deciding
prevailing party status under Code of Civil Procedure section 1032, subdivision (a)(4).
As the court and Commline noted, this premise was discussed at length in Chinn, supra,
166 Cal.App.4th 175, and the trial court stated it was relying on the reasoning stated in
Chinn in denying Vision‟s motion for attorney fees. We conclude, however, that the
holding in Chinn is inapposite to this case. Furthermore, Chinn did not hold that a
plaintiff who voluntarily dismisses its case in exchange for monetary recovery can never
be found to be a prevailing party for purposes of recovering costs or statutory attorney
fees, and no other statute or case law supports that premise. Rather, in negotiating a
settlement, parties to litigation are free to agree to the standards and procedures to which
they wish to adhere regarding recovery of attorney fees and costs, as the parties did here.
As Vision contends and we have concluded, “[t]he Parties‟ Settlement Agreement
jumped over any necessity to demonstrate that VISION was a „prevailing party‟ under the
fee and cost statutes, overtly giving VISION the right to seek fees and costs.”
       In Chinn, supra, a tenant filed a lawsuit sounding in tort against her apartment
complex manager, property management company, and the property owner. The tenant
accepted defendants‟ Code of Civil Procedure section 998 (section 998) offer to
compromise and voluntarily entered dismissal of the case. She then sought recovery of
her costs and attorney fees, asserting she was the prevailing party because she received a
monetary recovery after defendants had rejected her earlier section 998 offer and later
compromised the case on terms more favorable to her, and because her lease agreement
provided for an award of attorney fees to the prevailing party in any legal action brought
by either party to the agreement. The trial court awarded the tenant costs but denied her
motion for attorney fees.



                                             11
       The Court of Appeal began by recognizing that section 998 and Code of Civil
Procedure section 1032, subdivision (c) allow parties to allocate costs in their
compromise agreement. (Chin, supra, 166 Cal.App.4th at p. 183.) Looking to the
parties‟ compromise agreement, the appellate court reasoned that, “Because we conclude
the agreement was silent as to which party was entitled to recover costs and fees, we turn
to the statutory provisions for costs.” (Id. at p. 185.) Based upon the language of section
1032, subdivision (a)(4), the plaintiff argued she was the prevailing party because she
received a net monetary recovery, while defendants argued they were entitled to costs as
the prevailing party because after a dismissal a defendant is entitled to an award of costs
as a matter of right. The panel held that defendant was the prevailing party under section
1032, subdivision (a)(4), because “[c]onstruing the term „net monetary recovery‟ in
context, we conclude that the Legislature did not intend to include settlement proceeds
received by the plaintiff in exchange for a dismissal in favor of the defendant. The
definition of „prevailing party‟ provided in section 1032 requires the court to award costs
as a matter of right in specified situations. By precluding consideration of settlement
proceeds as a „net monetary recovery‟ when a dismissal is entered in favor of the
defendant, only one party qualifies for a mandatory award of costs, consistent with the
prior law.” (Id. at p. 188.)
       Contrary to the present case, the Chinn court was addressing a postsettlement
award of costs where the settlement agreement was silent on the allocation of costs and
attorney fees. The court acknowledged that interpretation of the definition of prevailing
party set forth in Code of Civil Procedure section 1032 was necessary only because the
parties had not themselves agreed to an allocation of costs. In the case before us, the
parties agreed that Vision was the only possible prevailing party. Interpretation of or
adherence to the legislative intent behind the default provisions of section 1032 is not
required or even relevant here. In reaching a settlement agreement, parties are free to
vary from the statutory definitions of prevailing party for purposes of awarding costs.
(Chinn, supra, 166 Cal.App.4th at pp. 183, 184.) Here, the parties agreed that if either
party was the prevailing party it was Vision, and that they would treat the matter as a


                                             12
“„situation[] other than specified,‟” reserving for the trial court the question whether
Vision was indeed entitled to costs. (Id. at p. 189.)
       As to attorney fees, “the prevailing party for the award of costs under [Code of
Civil Procedure] section 1032 is not necessarily the prevailing party for the award of
attorney fees. (Santisas v. Goodin [(1998)] 17 Cal.4th 599, 621-622 . . . ; [citation].)”
(Chinn, supra, 166 Cal.App.4th at p. 190.) Code of Civil Procedure section 1021
provides: “Except as attorney‟s fees are specifically provided for by statute, the measure
and mode of compensation of attorneys and counselors at law is left to the agreement,
express or implied, of the parties; but parties to actions or proceedings are entitled to their
costs, as hereinafter provided.”
       “Prior to 1968, contractual attorney fees could be awarded only after pleading and
proof, and therefore, they could not be recovered after a voluntary dismissal.
(International Industries, Inc. v. Olen [(1978)] 21 Cal.3d [218,] 223 (Olen).) The
enactment of Civil Code section 1717 in 1968, which created a reciprocal right to
attorney fees in contracts with unilateral attorney fee provisions, was found to have
removed the procedural bar to awarding contractual attorney fees after a dismissal,
because fees authorized by statute are recoverable as costs. (Olen, supra, 21 Cal.3d at
p. 223, citing T.E.D. Bearing Co. v. Walter E. Heller & Co. (1974) 38 Cal.App.3d 59, 63
et seq.) However, in Olen, the Supreme Court concluded public policy and equitable
considerations required the parties should bear their own attorney fees when the plaintiff
voluntarily dismissed an action prior to trial, whether the claim for fees was based on a
contract provision or on the reciprocal right provided by Civil Code section 1717. (Olen,
supra, 21 Cal.3d at p. 223.)” (Chinn, supra, 166 Cal.App.4th at pp. 190-191, fn.
omitted.) That holding in Olen was later codified into section 1717, subdivision (b)(2),
which now states that “[w]here an action has been voluntarily dismissed or dismissed
pursuant to a settlement of the case, there shall be no prevailing party for purposes of this
section.”
       But Civil Code section 1717, which by its terms applies “[i]n any action on a
contract, where the contract specifically provides that attorney‟s fees and costs, which are


                                              13
incurred to enforce that contract, shall be awarded either to one of the parties or to the
prevailing party,” is not applicable here.4 (§ 1717, subd. (a).) Section 1717 applies only
to causes of action sounding in contract and based on a contract containing an attorney
fee provision. The attorney fees at issue here were not incurred to enforce the settlement
agreement, the only contract between the parties, but instead were incurred to remedy the
alleged misappropriation of trade secrets. These attorney fees are potentially recoverable
as costs because they are authorized by statute, namely, section 3426.4, which provides in
relevant part that “[i]f . . . willful and malicious misappropriation exists, the court may
award reasonable attorney‟s fees and costs to the prevailing party.” Even if section 1717
were applicable here, “[s]ection 1717, subdivision (b)(2) does not bar a fee award where
the prevailing party‟s right to recover fees arises under a fee-shifting statute.
[Citations.]” (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170,
178 (Kim).) The parties agreed that if anyone was the prevailing party it was Vision,
obviating the need to look to the definitional provisions of section 1032 for purposes of
determining which party had prevailed. Because Vision was the only possible prevailing
party, the parties contemplated that the motion for attorney fees to be filed by Vision
based on section 3426.4 would be brought on the basis of Commline‟s alleged willful and
malicious misappropriation (rather than the claim of misappropriation being made in bad
faith, for example). (See § 3426.4.)
       In Santisas v. Goodin, supra, 17 Cal.4th 599 (Santisas), the Supreme Court
answered the question whether its earlier holding in Olen, supra, 21 Cal.3d 218, barred
recovery, under a contractual attorney fee provision, of attorney fees incurred for the
defense of tort or other noncontract claims that are outside the scope of Civil Code


4      When the trial court said it could only make a prevailing party finding if there had
been a “reservoir” or deposit set aside it perhaps was referring to the provision in Civil
Code section 1717, subdivision (b)(2), which states that where an action has been
voluntarily dismissed or dismissed pursuant to a settlement, and where the defendant has
answered and tendered to plaintiff the full amount to which plaintiff was entitled (by
depositing that amount into the court), the defendant may be deemed to be a prevailing
party on the contract. That provision has no relevance here.

                                              14
section 1717. We quote at some length the discussion of this question in Santisas
because it is instructive here. The Court noted that its “subsequent references to Olen,
supra, 21 Cal.3d 218, suggest that we have viewed that decision narrowly as deciding
only the right under section 1717 to recover attorney fees as costs in pretrial dismissal
cases.” (Santisas, supra, at p. 620.) For example, “we described Olen as a decision in
which „this court determined that a defendant could not recover attorney fees under
section 1717 when the plaintiff voluntarily dismissed the action before trial.‟ (Hsu v.
Abbara [(1995)] 9 Cal.4th 863, 872, italics added.)” (Santisas, supra, at p. 620.)
       The Santisas court continued: “To read Olen as establishing a rule extending
beyond the reach of [Civil Code] section 1717 would mean that our decision did not
merely engage in statutory construction of section 1717 but instead independently
declared contractual attorney fee provisions unenforceable, on public policy grounds, in
all pretrial dismissal cases. Historically, this court has been reluctant to declare
contractual provisions void or unenforceable on public policy grounds without firm
legislative guidance. [Citations.] When this court decided Olen, supra, 21 Cal.3d 218,
there was no statutory or constitutional provision clearly articulating a public policy
against enforcement of contractual attorney fee provisions in voluntary pretrial dismissal
cases. In response to Olen, the Legislature barred attorney fee awards in voluntarily
dismissed actions within the scope of section 1717, but the Legislature did not act to
expand the scope of section 1717 to encompass tort and other noncontract claims arising
from contracts containing broadly worded attorney fee provisions, nor did it enact
separate legislation to address such claims or otherwise articulate public policy as
permitting or precluding attorney fee awards as costs for such claims. Given this
legislative inaction, we cannot assume that the Legislature views such awards as against
public policy. Indeed, . . . the 1986 enactment of the current version of Code of Civil
Procedure section 1032, defining „prevailing party‟ for purposes of costs as including a
party in whose favor a dismissal has been entered, and the 1990 amendment of Code of
Civil Procedure section 1033.5, defining awardable costs as including attorney fees
authorized by contract, at least suggest that the Legislature does not view contractual


                                              15
attorney fee cost awards in voluntary pretrial dismissal cases as necessarily or invariably
being against public policy. [Citations.]
       “Moreover, upon fresh consideration of the matter, we are of the view that the
practical difficulties associated with contractual attorney fee cost determinations in
voluntary pretrial dismissal cases are not as great as suggested by the majority in Olen,
supra, 21 Cal.3d 218. The Olen majority soundly reasoned that attorney fees should not
be awarded automatically to parties in whose favor a voluntary dismissal has been
entered. In particular, it 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, or if the plaintiff dismissed for reasons, such
as the defendant‟s insolvency, that have nothing to do with the probability of success on
the merits. The Olen majority also soundly reasoned that scarce judicial resources should
not be used to try the merits of voluntarily dismissed actions merely to determine which
party would or should have prevailed had the action not been dismissed. But we do not
agree that the only remaining alternative is an inflexible rule denying contractual attorney
fees as costs in all voluntary pretrial dismissal cases. Rather, a court may determine
whether there is a prevailing party, and if so which party meets that definition, by
examining the terms of the contract at issue, including any contractual definition of the
term „prevailing party‟ and any contractual provision governing payment of attorney fees
in the event of dismissal. 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. (See Hsu v. Abbara,
supra, 9 Cal.4th 863, 877.)
       “For all of these reasons, we conclude that this court‟s decision in Olen, supra, 21
Cal.3d 218, did not establish an inflexible rule of contract law operating beyond the scope
of section 1717, but rather, . . . Olen merely construed section 1717 and has been



                                              16
effectively superseded by the 1981 amendment of section 1717 codifying its holding.”
(Santisas, supra, 17 Cal.4th at pp. 620-622.)
       Thus, as the Santisas court definitively summed up, post-dismissal awards of
attorney fees outside the scope of Civil Code section 1717 are not against public policy.
The provision in section 1717 barring recovery of attorney fees post dismissal does not
extend beyond causes of action sounding in contract and based on a contract containing
an attorney fee provision; because the Legislature has not enacted similar legislation
articulating public policy as permitting or precluding attorney fee awards as costs for any
other claims, we cannot assume that the Legislature views such awards as against public
policy. The parties here were legally permitted to include in their settlement agreement
the provision that Vision could apply to the trial court for an award of attorney fees after
voluntarily entering a dismissal of its claims.


III.   A Trial Court May Be Required to Act as Fact Finder on a Postsettlement
       Motion for Attorney Fees
       In addition to the premise advanced in Chinn that settlement proceeds are not
considered in finding a plaintiff has received a net monetary recovery (under Code Civ.
Proc., § 1032, subd. (a)(4))—a principle which we have found to be irrelevant in this
case—the trial court‟s overriding reason for denying Vision‟s motion for attorney fees
was that it did not believe the motion was properly brought after a settlement. In the trial
court‟s words, “it‟s really an issue as to whether or not we should be having the motion.
. . . [T]his matter was resolved in a settlement. And so, therefore, for me to make a
determination that defendants engaged in any willful and malicious misappropriation
would be well nigh impossible because this was all worked out. This would actually
mean that I would have to go back through the entire case, which is what it appears that
you would have me do. And I have read the majority of what you have submitted. I have
not read everything because a lot of this I already read before about submissions that
have been before. I am just not sure how we get there.” The court later continued, “This



                                             17
is a settlement. You settled, you made your peace. I didn‟t understand the motion to
begin with. And after having read everything, I still don‟t understand why we‟re here.”5
       To the extent the court might have been expressing the notion that it lacked
jurisdiction to consider the motion, we conclude that because the dismissal was an action
in compliance with and required by the stipulated settlement, the dismissal did not
deprive the court of jurisdiction to consider the fee and cost motions that were
specifically contemplated by the settlement agreement, in which the parties specifically
stated their intent to preserve the court‟s jurisdiction to consider those motions. In 1993,
Code of Civil Procedure section 664.6 was amended to include stipulations in writing
outside the presence of the court, and added the language, “If requested by the parties, the
court may retain jurisdiction over the parties to enforce the settlement until performance
in full of the terms of the settlement.” (Stats. 1993, ch. 768, § 1.) The court had
continuing jurisdiction to consider the attorney fee and cost motions.
       In denying the attorney fee motion, the court relied on Vacco, supra, 5
Cal.App.4th 34. In that case, however, the appellate court found that attorney fees
awarded pursuant to the third party tortfeasor doctrine could only be awarded if pleaded
and proved at trial. An award of attorney fees based on the third party tortfeasor doctrine
is an element of damages, and “„[where] the attorney‟s fees are recoverable as damages,
the determination of the recoverable fees must be made by the trier of fact unless the
parties stipulate otherwise. [Citation.]‟ (Brandt [v. Superior Court (1985) 37 Cal.3d
813,] 819.)” (Vacco, supra, at p. 56, fn. omitted.) Vision did not claim entitlement to



5       Commline argues that the trial court did in fact consider on its merits the question
whether Vision had demonstrated willful and malicious misappropriation, and concluded
that it had not. The trial court stated it had reviewed “the majority” of the documents
submitted, having reviewed some things in the past, and later said that “if I were to find
it, then I don‟t think that there‟s been a demonstration of willful and malicious
misappropriation based on what I have to look at here.” The court ultimately concluded,
however, that “this isn‟t presented to me in a context that I could make that kind of
finding.” We do not agree that a fair reading of the record of the hearing indicates the
court made any factual finding on the substantive merits of the attorney fee motion.

                                             18
fees under the third party tortfeasor doctrine or any other theory that would have made
attorney fees an element of damages.
       In fact, the Vacco case supports the conclusion that the trial court here could
properly hear the postsettlement attorney fee motion. The Vacco court found that
attorney fees could be awarded under section 3426.4 in a posttrial motion, in that case
based on the jury‟s finding defendants liable for punitive damages. The punitive
damages awarded by the jury based upon a clear and convincing evidence standard
necessarily satisfied the requirement of finding defendants‟ acts of misappropriation were
done with malice. But the court did not conclude that a trial or factfinding by a jury on
the malicious and willful misappropriation issue was required. Defendants argued that
the attorney fee issue was never submitted to the jury for its determination, to which the
Vacco court responded: “With respect to the award made under section 3426.4, this
argument overlooks the provisions of Code of Civil Procedure section 1033.5,
subdivision (a)(10), which provides that allowable costs under Code of Civil Procedure
section 1032 include attorney fees whenever they are authorized by contract or statute.
Such authorized fees are properly fixed by the court in a posttrial noticed motion. (Code
Civ. Proc., § 1033.5, subd. (c)(5).)” (Vacco, supra, 5 Cal.App.4th at p. 55, first italics in
original, latter italics added, fn. omitted.)
       More to the point, just as an award of costs is “but an incident to the judgment”
rather than an integral part of a judgment, attorney fees authorized solely by statute are
not part of the cause of action. Such fees are incidents to the cause and therefore properly
awarded after entry of a stipulated judgment (unless expressly or by necessary
implication excluded by the stipulation). (Folsom v. Butte County Assn. of Governments
(1982) 32 Cal.3d 668, 678 (Folsom).) This is distinguishable from the situation in which
fees are part of the relief sought and therefore must be pleaded and proved at trial, such as
with the third party tort doctrine. “„No similar procedural and evidentiary base is
required where “the attorney fee was not the cause of action but an incident to it.”‟
([Mabee v. Nurseryland Garden Centers, Inc. (1979) 88 Cal.App.3d 420,] 425, citing



                                                19
Huber v. Shedoudy (1919) 180 Cal.311, 314.)” (Folsom, supra, at p. 678, fn. 16, italics
added.)
       The Folsom court recognized that parties might wish to include the amount of an
attorney fee to be awarded in the settlement negotiations because “one settling a lawsuit
may want to know his total liability in advance of settlement.” (Folsom, supra, 32 Cal.3d
at p. 681.) The Supreme Court indicated that fee matters might “be injected into
negotiations on the merits without placing counsel in a position of inherent conflict,” but
maintained that “the preferred procedure is to reserve fee issues for judicial consideration
and determination [citation].” (Ibid., italics added.)
       The trial court confronted a very similar situation in Kim, supra, 149 Cal.App.4th
170, 180, in which “the trial court believed that Kim could not be a prevailing plaintiff
solely because the matter was resolved prior to trial by a settlement agreement.” The trial
court remarked that the plaintiff was asking the court to evaluate the value of the car
plaintiff purchased from defendants and the value to the defendants of not having to try
the case, and “„all kinds of things that I, as a court, don‟t believe that I should do.‟” The
court continued, “„I just think that it really strikes against the concept of settling a case
and ending it and then coming back and saying, “Now, Judge, tell us who is the winner.”
I can‟t do that.‟” (Ibid.)
       The Court of Appeal held that the trial court was required to exercise its discretion
to determine if plaintiff was the prevailing party and therefore entitled to attorney fees
under Civil Code section 1780, subdivision (d) of the Consumers Legal Remedies Act
(CLRA), which makes such an award mandatory to the “prevailing plaintiff.” The
appellate court stated, “Although we appreciate the trial court‟s dilemma, it still has an
obligation to determine whether or not plaintiff is a „prevailing plaintiff‟ under law. A
plaintiff‟s request for attorney fees under the CLRA is not inherently antithetical to a
pretrial settlement agreement. Because Kim‟s right to attorney fees arises not from
contract, but under section 1780(d), Kim is not precluded from obtaining an award of
attorney fees even though the litigation was resolved by a settlement agreement. . . . [¶]
Determinations of whether Kim is a „prevailing plaintiff‟ and the amount to be awarded,


                                              20
if any, are to be made, in the first instance, by the trial court in the sound exercise of its
discretion.” (Kim, supra, 149 Cal.App.4th at p. 181.) We reach precisely the same
conclusion here.
       The case before us differs from Kim, supra, in that the CLRA makes an award of
attorney fees mandatory to the “prevailing plaintiff” (Civ. Code, § 1780, subd. (e)), while
section 3426.4 requires the prevailing party to further demonstrate that “willful and
malicious misappropriation exists.” Vision submitted with its motion for attorney fees
documentary evidence in support of its assertion that Commline engaged in willful and
malicious misappropriation. We acknowledge that the trial court will be required to
engage in considerable factfinding after the parties have already “made [their] peace.”
However, an important part of making their peace was their agreement that the matter of
Vision‟s entitlement to attorney fees and costs will be submitted to the trial court. The
situation is essentially one in which Vision has come to the court requesting enforcement
of the settlement agreement as it is authorized to do under Code of Civil Procedure
section 664.6. “„The Legislature has now provided that a motion to enter judgment
pursuant to such a settlement need not be a motion for summary judgment.‟ (Corkland v.
Boscoe (1984) 156 Cal.App.3d 989, 991 [(Corkland)].) Section 664.6, enacted in 1981,
explicitly provides statutory authorization for the entry of judgment upon a stipulated
settlement by means of a noticed motion. That section provides: „If parties to pending
litigation stipulate, in writing or orally before the court, for settlement of the case, or part
thereof, the court, upon motion, may enter judgment pursuant to the terms of the
settlement.‟ (Italics added.)” (Casa de Valley View Owner’s Assn. v. Stevenson (1985)
167 Cal.App.3d 1182, 1189.) “„Even where there are contentions of disputed facts, if the
motion is one for entry of judgment pursuant to such a settlement, the Legislature has
now approved the filing of the motion under section 664.6. [Citation.] A motion for
summary judgment pursuant to [Code of Civil Procedure] section 437c[] is no longer
required. . . . [¶] In acting upon a section 664.6 motion, the trial court must determine
whether the parties entered into a valid and binding settlement of all or part of the case.
In making this determination trial judges, in the sound exercise of their discretion, may


                                               21
receive oral testimony or may determine the motion upon declarations alone. [Citation.]‟
([Corkland, supra,] 156 Cal.App.3d at p. 994.)” (Casa de Valley View, supra, at p. 1189,
italics added. See also Wackeen v. Malis (2002) 97 Cal.App.4th 429, 432, fn. 1.) Thus,
the court in its discretion may receive documentary evidence as well as declarations
and/or oral testimony in order to determine whether Vision was the prevailing party and,
if so, whether the willful and malicious misappropriation existed.


                                      DISPOSITION


       The orders denying Vision‟s motion for attorney fees and granting defendants‟
motion to strike Vision‟s memorandum of costs are reversed and the matter is remanded
to the trial court for further proceedings as described in this opinion. Costs on appeal are
awarded to Vision.


       CERTIFIED FOR PUBLICATION



                                                  SUZUKAWA, J.

We concur:



       EPSTEIN, P. J.



       WILLHITE, J.




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