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 contrаctual 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.
FACTS
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 othеr 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 сourt 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.
DISCUSSION
PNEC apрeals the court’s order awarding attorney fees. As noted, the fee-shifting provision in the pertinent contract provides: “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.” The provision must be construed to provide for reciprocal recovery of attorney fees, notwithstanding the contractual language favoring only PNEC. (Civ. Code, § 1717, subd. (a) [indicating the prevailing party shall be entitled to fees “whether he or she is the party specified in the contract or not”].)
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)
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,
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,
Profit Concepts rejected the notion that a final judgment was required to obtain attorney fees under Civil Code section 1717; nothing in the current
Here, the court dismissed the action on forum non conveniens grounds rather than for lack of personal jurisdiction.' PNEC claims this difference is determinative because forum non conveniens is not a jurisdictional concept, but is instеad “an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991)
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 сourt 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,
It is true that the language of the fee-shifting provision in the instant case diffеrs from the contract provisions at issue in Profit Concepts and the other aforementioned cases. But this action was clearly part of PNEC’s “collection” efforts, thereby triggering the attorney fee provision. (See Turner v. Schultz, supra,
The primary California case relied on by PNEC is distinguishable. (Estate of Drummond (2007)
PNEC notes that several federal cases point toward a contrary result. (See Dattner v. Conagra Foods, Inc. (2d Cir. 2006)
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 fеderal 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)
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.
Notes
In its brief, PNEC disparages the court’s underlying forum non сonveniens dismissal. But the court’s dismissal of the action is not before us. PNEC, by its own admission, did not file a timely notice of appeal with regard to the dismissal.
The Profit Concepts court also quoted Code of Civil Procedure section 1032, subdivision (a)(4), which defines “prevailing party” for the purpose of determining costs: “ ‘ “Prevailing party” includes the pаrty 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.’ ” (Profit Concepts, supra,
As already noted, we are not presented with the question whether the court properly dismissed the case (rather than staying the action or denying the motion altogether).