Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 462205
RUVOLO, P. J.
I.
INTRODUCTION
Appellants Radiant Skincare Clinic, a Delaware corporation, and Radiant Medical Group, a California corporation, contend the trial court erred in denying their motions for attorney fees and for prejudgment interest after a jury verdict was returned in their favor. We conclude the attorney fees clause in the operative agreement between appellants and respondent Linda Moore (Moore) does not provide for the recovery of attorney fees in this instance. We also conclude appellants made an untimely request for prejudgment interest. Therefore, the trial court did not err in denying both motions, and we affirm the judgment.
II.
FACTS AND PROCEDURAL HISTORY
Appellants offer medical and non-medical aesthetic services to the public. On January 23, 2004, appellant Radiant Medical Group and Moore entered into an Independent Contractor Agreement (the Agreement) wherein Moore agreed to provide medical and non-medical procedures to clients of Radiant Medical Group.
On April 11, 2007, appellants sued Moore and respondent Re: Juvenate, Inc. (Rejuvenate) for breach of contract as well as for various contract-related torts. The complaint alleged Moore breached the Agreement. On March 28, 2008, a jury verdict was entered in favor of appellants. Subsequently, appellants moved for attorney fees under the Agreement, and for prejudgment interest. Both motions were denied. Appellants filed a timely notice of appeal challenging the denial of these motions.
III.
DISCUSSION
A. Standard of Review
This appeal requires that we review the trial court’s interpretation of a provision of the Agreement to determine whether appellants were entitled to recover attorney fees as the prevailing parties. Because the trial court construed the provision at issue without the aid of extrinsic evidence, the interpretation of this provision is a question of law subject to our de novo review. (Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 868.) As such, this court is not bound by the trial court’s interpretation. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 847.)
Similarly, the trial court’s denial of prejudgment interest on the basis that the motion was untimely is a question of law subject to de novo review on appeal. (Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist. (2001) 90 Cal.App.4th 64, 69.)
B. The Motion for Attorney Fees was Properly Denied
The contract provision under which appellants sought attorney fees is paragraph 6 of the Agreement. That provision reads as follows:
“6. Indemnification Independent Contractor [Moore] shall and does hereby indemnify, defend and hold harmless RMG [appellant Radiant Medical Group], and RMG’s officers, directors, and shareholders from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorney fees and costs, that RMG may incur or suffer and that result from, or are related to any breach or failure of Independent Contractor to perform any of the representations, warranties, and agreements contained in this Agreement.”
The trial court denied the motion for attorney fees, finding that paragraph 6 was an indemnity clause that did not trigger the right to recover attorney fees under Civil Code section 1717. Noting also that appellants’ claims against Moore were not seeking indemnity, and there being no other provision in the Agreement relating to attorney fees, the court concluded that the wording of the indemnity clause was inadequate to put Moore on notice that she might be liable for attorney fees should appellants prevail in litigation between them under the Agreement, where indemnity was not sought.
Civil Code section 1717, subdivision (a) provides that fees are recoverable “[i]n any action on a contract, where the contract specifically provides that attorney[] fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney[] fees....”
The contract between appellants and Moore must be interpreted so as to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) The intention of the parties is to be ascertained from the “clear and explicit” language of the contract. (Civ. Code, §§ 1638, 1639.) “And, unless given some special meaning by the parties, the words of a contract are to be understood in their ‘ “ordinary and popular sense.” ’ ” (Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 504, citing Civ. Code, § 1644.)
Indemnity agreements are construed under the same rules which govern the interpretation of other contracts. (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 969 (Myers).) “In interpreting an express indemnity agreement, the courts look first to the words of the contract to determine the intended scope of the indemnity agreement.” (Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1737.)
Generally, the inclusion of attorney fees as an item of loss in a third party claim indemnity provision does not constitute a provision for the award of attorney fees in an action on the contract which is required to trigger Civil Code section 1717. (Myers, supra, 13 Cal.App.4th at pp. 971-973; Meininger v. Larwin-Northern California, Inc. (1976) 63 Cal.App.3d 82, 84-85 (Meininger).) “A clause which contains the words ‘indemnify’ and ‘hold harmless’ is an indemnity clause which generally obligates the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons. [Citation.] Indemnification agreements ordinarily relate to third party claims. [Citation.]” (Myers, supra, 13 Cal.App.4th at p. 969.)
In Myers, supra, 13 Cal.App.4th at pages 963-964, the contract provision under which the owner sought to recover its attorney fees provided as follow: “ ‘To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorney’s fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom and (2) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder....’ ” The court found the provision to be a standard third party claim indemnification clause, and not a provision allowing recovery of attorney fees on an action upon the contract, despite its reference to performance of the contract work. (Id. at p. 975.)
In Meininger, supra, 63 Cal.App.3d 82, Meininger was hired by Larwin-Northern California, Inc. to perform certain painting work. A dispute arose when Larwin refused or failed to pay Meininger fully for the work. A jury awarded Meininger $7,589.26, but the trial court denied the request for contractual attorney fees. (Id. at pp. 83-84.) On appeal, Meininger argued that the trial court erred in not awarding fees under the contract. The contract provision relied on by Meininger stated: “ ‘The Subcontractor shall indemnify and hold and save Larwin harmless from and against any and all actions or causes of action, claims, demands, liabilities, loss, damage or expense of whatsoever kind and nature, including counsel or attorneys’ fees, whether incurred under retainer or salary or otherwise, which Larwin shall or may at any time sustain or incur by reason or in consequence of any injury or damage to person or property which may arise directly or indirectly from the performance of this Contract by the Subcontractor, whether such performance be by himself or by any subcontractor of his, or anyone directly or indirectly employed by either of them.’ ” (Id. at p. 84, original italics.)
The court agreed with the trial court that the clause was a standard indemnity provision not subject to Civil Code section 1717: “While paragraph 13 of the contract provides for attorney[] fees in certain situations, it does not specifically provide for attorney[] fees in an action on the contract as is required to trigger operation of section 1717 of the Civil Code.” (Meininger, supra, 63 Cal.App.3d at p. 85, italics omitted.) The court also found the provision’s heading, “Subcontractor’s Liability Insurance, Indemnity, ” helpful in determining that the parties intended the clause to relate to indemnity and not to attorney fees generally. (Id. at p. 85.)
Similarly, in Campbell v. Scripps Bank (2000) 78 Cal.App.4th 1328, 1336, the court was called upon to determine whether a provision in an escrow agreement was a standard indemnity clause, or one allowing for mutual recovery of attorney fees on an action under the agreement. The sellers of property sued the escrow company after their retained security interest in the property was destroyed allegedly as a result of the escrow company’s failure to ensure that the loan terms complied with the terms of a subordination agreement. (Id. at pp. 1331-1332.) The provision referencing attorney fees stated: “ ‘If conflicting demands are made or notice served on you or any dispute or controversy arises between the Principals or with any third person relating to this escrow, you shall have the absolute right, at your election, to withhold and stop all further proceedings in this escrow without liability and without determining the merits of the demands, notices, or litigation; or sue in interpleader; or both. The Principals, jointly and severally, hereby promise and agree to pay promptly on demand, as well as to indemnify you and hold you harmless against and in respect of any and all litigation and interpleader costs, claims, losses, damages, recoveries, judgments, and expenses, including, without limitation, reasonable attorneys fees that you may incur or suffer, which arise, result from or relate to this escrow.’ ” (Id. at p. 1336, italics added.)
The appellate court reversed the trial court’s award of attorney fees to the escrow company after its motion for summary judgment was granted. (Campbell v. Scripps Bank, supra, 78 Cal.App.4th at pp. 1336-1338.) In doing so, the reviewing court concluded that the above clause simply provided for indemnification, including attorney fees, if the escrow company was successful in any dispute regarding conflicting demands made by the principals or third parties to the escrow company, or by the principals or third parties regarding the terms of the escrow. It was not a general attorney fees provision applicable to any dispute between a principal and the escrow company to enforce the general escrow instructions. (Id. at pp. 1337-1338.)
Similarly, we conclude that paragraph 6 of the Agreement is an indemnification clause providing for the recovery of attorney fees incurred in defending against third party claims. It is not a general attorney fees clause pertaining to disputes between appellants and Moore regarding their rights and obligations generally under the agreement. Thus, it does not trigger the operation of Civil Code section 1717.
Our conclusion is supported by the parallels between the language of the indemnity clause at issue and the language interpreted as indemnity clauses in Myers, Meininger, and Campbell. Also, the clause’s heading, “Indemnification, ” is particularly useful in determining that the parties intended the clause to relate to indemnity, and not to attorney fees generally. (SeeMeininger, supra, 63 Cal.App.3d at p. 84.) If it was appellants’ subjective intent otherwise to provide for the recovery of attorney fees in any dispute between the parties arising under the agreement, paragraph 6 failed to place Moore on notice that she may be liable for attorney fees should appellants prevail in such an action. (Myers, supra, 13 Cal.App.4th at p. 974.) We note too that, as the apparent drafter of the Agreement, any uncertainty in its terms properly are construed against appellants.
As to appellants’ argument that the clause’s reference to the performance of the contract work necessarily allows for the recovery of attorney fees on any action upon the contract, a similar contention was made and rejected in Myers. (See Myers, supra, 13 Cal.App.4th at pp. 963-964.)
We also we find appellants’ reliance on Continental Heller Corp. v. Amtech Mechanical Services, Inc., supra, 53 Cal.App.4th 500, to be misplaced. That case principally involved the scope of recovery under an acknowledged indemnity clause. (Id. at p. 504.) Another issue was whether the indemnitee could recover its attorney fees and costs incurred in seeking the enforcement of its rights to indemnity. The court concluded it could based upon the fact that the provision for attorney fees not only included a paragraph relating to indemnity claims, but also a second subparagraph allowing for such recovery for any breach of the contract. (Id. at pp. 508-509.) There is no such separate provision in the Agreement at issue here.
C. Prejudgment Interest
Civil Code section 3287, subdivision (b) provides for the recovery of prejudgment interest on unliquidated damages. “ ‘Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.’ ” (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828 (North Oakland).) “That a party is entitled to prejudgment interest does not make an award automatic (except in the case of postjudgment interest).” (Id. at p. 829.) A request for interest must be made in the trial court; it cannot be made for the first time on appeal. (Peoples Finance etc. Co. v. Mike-Ron Corp. (1965) 236 Cal.App.2d 897, 904.)
As appellant correctly notes, a general prayer in the complaint is adequate to support an award of prejudgment interest. No specific request for interest need be included in the complaint; a prayer seeking “ ‘such other and further relief as the Court deems just and proper’ ” “is sufficient for the court, on its own, to invoke its power to levy such prejudgment interest as it deems just and equitable.” (Segura v. McBride (1992) 5 Cal.App.4th 1028, 1041 (Segura); Newby v. Vroman (1992) 11 Cal.App.4th 283, 286.) Consequently, appellants’ complaint’s prayer for prejudgment interest is sufficient to support an award of prejudgment interest.
However, the issue here is not whether appellants’ complaint adequately invoked the court’s power to award prejudgment interest, but rather whether appellants made a timely request for the court to exercise its power to award interest under Code of Civil Procedure section 3287. We conclude appellants are not entitled to claim prejudgment interest where damages have been awarded, but no interest was included in the verdict and subsequent judgment.
“It is well established that prejudgment interest is not a cost, but an element of damages.” (North Oakland, supra, 65 Cal.App.4th at p. 830; Harris v. Northwestern National Ins. Co. (1992) 6 Cal.App.4th 1061, 1067; Lawrence Tractor Co. v. Carlisle Ins. Co. (1988) 202 Cal.App.3d 949, 955.) As such, prejudgment interest must be included in the judgment before entry of judgment is made. (North Oakland, supra, 65 Cal.App.4th at p. 830.) This view is supported by rule 3.1802 of the California Rules of Court, which provides: “The clerk must include in the judgment any interest awarded by the court and the interest accrued since the entry of the verdict.” (North Oakland, at p. 830, citing former Cal. Rules of Court, rule 875, now rule 3.1802.) At the latest, a request for prejudgment interest under Code of Civil Procedure section 3287 may be sought as part of a motion for new trial pursuant to Code of Civil Procedure section 657, subdivision 5 on the grounds of “[e]xcessive or inadequate damages.” (Code Civ. Proc., §§ 657, subd. 5, 659.)
Here, after the verdict in their favor, appellants did not move for an award of prejudgment interest before entry of judgment, or move for a new trial pursuant to Code of Civil Procedure section 657. Instead, appellants filed a separate motion for prejudgment interest on April 24, 2010, nearly a month after judgment was entered. This request was untimely, and warranted denial of prejudgment interest.
Nevertheless, appellants argue that their request for prejudgment interest is not barred by any requirement of Civil Code section 3287, relying on Segura, supra, 5 Cal.App.4th at page 1041, and Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 294 (Steiny). Segura does not address the issue of the timeliness of appellant’s request, merely how the claim must be preserved in the complaint. In Steiny, the court allowed an award of prejudgment interest after entering final judgment, because the parties had stipulated before judgment that the request for interest would be adjudicated in a postjudgment hearing. (Steiny, at p. 294.) Steiny has no application here, where there was no stipulation that appellants’ request for interest would be adjudicated in a postjudgment hearing.
For these reasons, the trial court correctly denied appellants’ motion for prejudgment interest.
IV.
DISPOSITION
The trial court’s rulings on appellants’ motions for attorney fees and prejudgment interest are affirmed.
We concur: REARDON, J., SEPULVEDA, J.