{"id":229,"date":"2026-03-24T12:00:00","date_gmt":"2026-03-24T12:00:00","guid":{"rendered":"https:\/\/california.shuster.info\/?p=229"},"modified":"2026-03-24T12:00:00","modified_gmt":"2026-03-24T12:00:00","slug":"oleary-jones-arbitration-confirmation-prevailing-party-section-1717","status":"publish","type":"post","link":"https:\/\/california.shuster.info\/?p=229","title":{"rendered":"O’Leary v. Jones \u2014 Dismissal of arbitration confirmation petition for lack of personal jurisdiction did not make defendant the prevailing party on the contract for fees"},"content":{"rendered":"
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\n
Case<\/dt>\n
O’Leary v. Jones<\/dd>\n
Court<\/dt>\n
4th District Court of Appeal<\/dd>\n
Date Decided<\/dt>\n
2026-03-24<\/dd>\n
Docket No.<\/dt>\n
D085327<\/dd>\n
Status<\/dt>\n
Reported \/ Citable<\/dd>\n
Topics<\/dt>\n
Civil Code section 1717, prevailing party, attorney fees, petition to confirm arbitration award, personal jurisdiction, Code of Civil Procedure section 1032, costs<\/dd>\n<\/dl>\n<\/div>\n

Background<\/h2>\n

Michael Scheinker leased commercial property to Green America Inc., with Walter Jones III signing the lease both on behalf of Green America and as a personal guarantor. The guarantee provided that Jones would be responsible for prompt payment of rent and other amounts due, including court costs and attorney fees incurred in enforcement.<\/p>\n

After disputes arose, Green America sued Scheinker. Scheinker successfully petitioned to compel arbitration, then filed a counterdemand against Green America, Jones, and others. The arbitrator ruled in Scheinker’s favor and found Jones liable as guarantor. Scheinker returned to court and filed a petition to confirm the arbitration award against Green America, Jones, and others. The court confirmed the award against Green America but dismissed the petition as to Jones for lack of personal jurisdiction, reasoning that Jones had never been joined as a party in the underlying court action and the arbitration provision did not extend to him personally. The court expressly declined to rule on Jones’s request to vacate the award.<\/p>\n

Jones moved for attorney fees under Civil Code section 1717 and for costs as a prevailing party. The trial court denied the motion for attorney fees, finding that there was no party prevailing on the contract because the dismissal was a procedural ruling that did not finally resolve the merits of the contract dispute. Jones appealed, with Jennifer O’Leary substituting in as Scheinker’s successor in interest.<\/p>\n

The Court’s Holding<\/h2>\n

The Fourth District Court of Appeal, Division One, affirmed the denial of attorney fees but reversed and remanded for an award of costs. On the attorney fee issue, the court held that the trial court did not abuse its discretion in finding that Jones was not the party prevailing on the contract for purposes of Civil Code section 1717. Section 1717 contemplates a comparison of the parties’ ultimate positions on the contract claims, and a procedural dismissal that does not finally resolve enforceability of the underlying obligation may not amount to a prevailing party victory.<\/p>\n

Here, the dismissal was based on personal jurisdiction grounds and the trial court expressly declined to rule on Jones’s request to vacate the arbitration award. The arbitration award itself remained intact, and Scheinker (or his successor) could potentially pursue confirmation in a different forum or by joining Jones as a party in a new action. Following DisputeSuite.com, Inc. v. Scoreinc.com, the court explained that a section 1717 prevailing party determination should consider whether the contract litigation will continue in another forum and whether the dismissal was on the merits or merely interim. Jones had achieved only an interim victory on a procedural ground, not a final resolution of the contract dispute.<\/p>\n

On the costs issue, however, the court reversed. Code of Civil Procedure section 1032 defines a prevailing party broadly to include a defendant in whose favor a dismissal is entered. That definition is more mechanical than section 1717’s analysis and applies here regardless of whether Jones was the prevailing party on the contract. Because the petition to confirm was dismissed as to Jones, he is entitled as a matter of right to recover costs.<\/p>\n

Key Takeaways<\/h2>\n