KREMER, P. J.

Plaintiff Del Cerro Mobile Estates appeals an order granting defendant Margery L. Proffer's motion for attorney fees under Civil Code section 798.85 after Del Cerro voluntarily dismissed its lawsuit against Proffer for breach of contract and abatement of nuisance. Del Cerro contends the court should have concluded Proffer was not entitled to attorney fees on either cause of action. Del Cerro also attacks the amount of attorney fees awarded. We affirm the order.

I INTRODUCTION

In January 1991 Del Cerro rented Proffer a homesite in its mobilehome park. Under the parties' written rental agreement, Proffer agreed to abide by the park's rules and regulations. The parties' rental agreement also contained an attorney fee clause.

In January 1997 Del Cerro filed this lawsuit against Proffer. Del Cerro's first amended complaint's cause of action for breach of contract alleged Proffer breached her contractual obligations by violating various provisions of the park's rules and regulations, thus entitling Del Cerro to compensatory damages. Further, Del Cerro's first amended complaint's cause of action for abatement of nuisance alleged those asserted violations by Proffer constituted a public nuisance under the Mobilehome Residency Law, thus entitling Del Cerro to compensatory damages and injunctive relief. Del Cerro also alleged contractual and statutory entitlement to attorney fees.

In September 1997 upon Del Cerro's request, the clerk entered dismissal of the entirety of this lawsuit without prejudice. A few days later, Proffer filed a motion and cost memorandum seeking $10,924.75 attorney fees as the asserted prevailing party under section 798.85. In October 1997 Proffer filed another cost memorandum seeking total attorney fees of $13,674. In November 1997 after hearing, the superior court awarded Proffer $8,153.65 attorney fees.

II DISCUSSION

Seeking reversal of the order awarding Proffer attorney fees, Del Cerro contends its voluntary dismissal of this lawsuit precluded Proffer from recovering attorney fees incurred in defending against Del Cerro's cause of action for breach of contract. Del Cerro also contends Proffer was not entitled to attorney fees as the prevailing party under section 798.85 because the attorney fee clause in the parties' rental agreement assertedly did not contemplate a fee award where litigation arising under such agreement was voluntarily dismissed without prejudice. Further, Del Cerro attacks the amount of the attorney fees awarded to Proffer as assertedly devoid of evidentiary support. Finally, Del Cerro contends that absent an unqualified reversal of the appealed order, the matter should be remanded to the superior court for allocation of the costs including attorney fees incurred by Proffer in defending against each separate cause of action. However, as we shall explain, although Del Cerro's voluntary dismissal of this lawsuit barred Proffer's recovery of attorney fees incurred in defending against Del Cerro's cause of action for breach of contract, the court properly awarded Proffer her attorney fees incurred in defending against Del Cerro's cause of action for abatement of nuisance. Moreover, on this record Del Cerro has not established that the court reversibly erred with respect to the amount of the attorney fee award or that remand for allocation is warranted.

A Proffer Was Not Entitled to Attorney Fees on Cause of Action for Breach of Contract

Here, the attorney fee clause of the parties' rental agreement provided: "In any action arising out of Homeowner's tenancy, this Agreement, or the provisions of the Mobilehome Residency Law, the prevailing party shall be entitled to reasonable attorneys' fees and costs. A party shall be deemed a prevailing party if the judgment is rendered in his favor or where the litigation is dismissed in his favor prior to or during the trial, unless the parties otherwise agree in the settlement or compromise." However, despite the language of such attorney fee clause, Del Cerro's voluntary dismissal of this lawsuit barred Proffer from recovering attorney fees incurred in defending against Del Cerro's breach of contract cause of action. (§ 1717; Santisas v. Goodin, supra, 17 Cal.4th at pp. 602, 617.)

In Santisas v. Goodin, supra, 17 Cal.4th 599, the Supreme Court expressly concluded that "in voluntary pretrial dismissal cases, Civil Code section 1717 bars recovery of attorney fees incurred in defending contract claims . . . ." ( Id. at p. 602.) In reaching such conclusion, the Supreme Court construed subdivision (b)(2) of section 1717 "as overriding or nullifying conflicting contractual provisions, such as provisions expressly allowing recovery of attorney fees in the event of voluntary dismissal or defining `prevailing party' as including parties in whose favor a dismissal has been entered. When a plaintiff files a complaint containing causes of action within the scope of section 1717 (that is, causes of action sounding in contract and based on a contract containing an attorney fee provision), and the plaintiff thereafter voluntarily dismisses the action, section 1717 bars the defendant from recovering attorney fees incurred in defending those causes of action, even though the contract on its own terms authorizes recovery of those fees." ( Santisas, at p. 617.) Accordingly, we conclude Proffer was not entitled to recover attorney fees for defending against Del Cerro's breach of contract cause of action.

B Proffer Was Entitled to Attorney Fees on Statutory Nuisance Claim

Although section 1717 precluded Proffer from recovering attorney fees incurred in defending against Del Cerro's breach of contract cause of action, the superior court properly awarded Proffer attorney fees incurred in defending against Del Cerro's statutory nuisance action. Nothing in section 1717 or attendant case law "bars recovery of attorney fees incurred in defending tort or other noncontract claims." ( Santisas v. Goodin, supra, 17 Cal.4th at p. 602.) Thus, where "an action asserts both contract and tort or other noncontract claims, section 1717 applies only to attorney fees incurred to litigate the contract claims." ( Id. at p. 615.)

For purposes of recovering attorney fees as litigation costs under Code of Civil Procedure section 1033.5, subdivision (a)(10)(A) through (C), Proffer had a legal basis to claim recovery of such fees grounded in the Mobilehome Residency Law, a statute "independent of the cost statutes" and also wholly separate from section 1717. ( Santisas v. Goodin, supra, 17 Cal.4th at p. 606; cf. Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1776.) Specifically, Proffer was entitled to recover attorney fees under section 798.85, a statute providing that the prevailing party in an action under the Mobilehome Residency Law is entitled to reasonable attorney fees and that a party is deemed the prevailing party for the purposes of that statute "where the litigation is dismissed in his or her favor prior to or during the trial, unless the parties otherwise agree in the settlement or compromise." ( Ibid.) Accordingly, given the absence of any showing that the parties agreed otherwise with respect to actions arising out of the Mobilehome Residency Law, the express language of section 798.85 deemed Proffer to be the prevailing party entitled to recover the attorney fees she incurred in defending against Del Cerro's cause of action for abatement of nuisance under the Mobilehome Residency Law.

We reject Del Cerro's contention based on Damian v. Tamondong (1998) 65 Cal.App.4th 1115 that the matter must be remanded to the superior court to use "a pragmatic approach" in making a factual determination whether in this litigation Proffer was in fact a defendant "in whose favor" a dismissal was entered and, as such, was a "prevailing party" entitled to costs and attorney fees under Code of Civil Procedure section 1032, subdivision (b). Del Cerro's reliance on Damian is unavailing as that case is factually distinguishable. Specifically, unlike the definition of "prevailing party" in section 798.85, the definition of "prevailing party" in the statute at issue in Damian (§ 2983.4) was silent on the effect of a pretrial dismissal. Further, our interpretation of section 798.85's express language as deeming Proffer to be the prevailing party is consistent with case law indicating the Legislature has specified in section 798.85 that a voluntary dismissal makes the defendant the prevailing party. ( Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 101-102.)

In sum, the superior court properly awarded Proffer attorney fees as the prevailing party under section 798.85 on Del Cerro's cause of action for abatement of nuisance.

C Amount of Attorney Fee Award Was Not Erroneous

D This Record Does Not Require Remand for Allocation

Del Cerro contends that even absent an unqualified reversal of the attorney fee award, we should remand the matter to the superior court to allocate the costs including attorney fees incurred by Proffer in defending against each separate cause of action in Del Cerro's first amended complaint. Del Cerro also contends that neither Proffer nor the court ever made any such specific allocation. Further, in support of its contentions, Del Cerro notes that in Santisas v. Goodin, supra, 17 Cal.4th 599, the cause was remanded to the trial court to determine the proper amount of the attorney fee award.

However, as acknowledged by Del Cerro, Proffer conceded in the superior court that her recovery of attorney fees under the attorney fee clause of the parties' rental agreement was precluded under section 1717 and International Industries, Inc. v. Olen (1978) 21 Cal.3d 218. Indeed, the record reveals that in a memorandum of points and authorities she filed in the superior court Proffer expressly stated she was "not demanding her attorney's fees under [the parties'] contract but rather by statute (other than by Civ. Code § 1717). Adler v. Vaicius[, supra,] 21 Cal.App.4th 1770, 1776." Nonetheless, despite Del Cerro's knowledge that Proffer's theory of entitlement to attorney fees was statutorily grounded in section 798.85, nothing in the record suggests Del Cerro ever argued to the superior court that any attorney fee award to Proffer should be apportioned between its contractual and noncontractual causes of action or limited to its noncontractual statutory cause of action for abatement of nuisance. Accordingly, Del Cerro may not raise such apportionment issue for the first time on appeal. (Cf. Royster v. Montanez (1982) 134 Cal.App.3d 362, 367.) Further, in any event, since Del Cerro's two causes of action arose from a common core of operative facts, the court was not required to apportion the attorney fees incurred by Proffer between those causes of action. ( Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133; Drouin v. Fleetwood Enterprises (1985) 163 Cal.App.3d 486, 492-493.) Thus, on this record remand for allocation is not warranted.

E Proffer Is Entitled to Attorney Fees on Appeal

Proffer requests recovery of attorney fees she has incurred in defending against this appeal by Del Cerro. "`[I]t is established that fees, if recoverable at all — pursuant either to statute or parties' agreement — are available for services at trial and on appeal.' . . . Indeed, appellate courts have consistently permitted a successful party to recover attorney fees incurred on appeal when a statute expressly permits such an award in the trial court or other lower tribunal." ( Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.) Since nothing in section 798.85 suggests otherwise, Proffer is entitled as the prevailing party under such statute to recover her attorney fees incurred in defending against this appeal in an amount to be determined by the superior court. ( Morcos, at p. 928.)

III DISPOSITION

We Concur:

HALLER, J.

McDONALD, J.