Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, County Super. Ct. No. BC317842 Judith C. Chirlin, Judge.
Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich and D. Aaron Brock for Plaintiff and Appellant
Law Offices of Kyle P. Kelley and Kyle P. Kelley for Defendant and Respondent.
CROSKEY, J.
Anahit Abedi appeals a postjudgment order awarding $249,522 in attorney fees to Friedman, Heller & Enriquez, LLP (Friedman, Heller). The court awarded fees to Friedman, Heller as the prevailing party on both Abedi’s complaint for legal malpractice and Friedman, Heller’s cross-complaint for breach of contract and common counts. Abedi contends Friedman, Heller is not entitled to recover fees incurred to defend against her complaint because her legal malpractice cause of action did not “aris[e] out of . . . this retainer agreement” within the meaning of the parties’ written agreements. We conclude that the agreements provide for a fee recovery not only in an action on the contract but also in a tort action for legal malpractice arising out of the legal representation that was the subject of the agreements. We therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Abedi and Friedman, Heller entered into a written agreement dated October 11, 2002, in which the firm agreed to represent Abedi as the plaintiff in an action then pending in the United States District Court for the Central District of California, Abedi v. Schlossman (No. SACV 00-1196) (Schlossman action), and in any other matter for which Abedi might request legal representation. Abedi and Friedman, Heller entered into a second written agreement dated October 15, 2002, in which the firm agreed to represent Abedi in two other actions then pending in the Los Angeles Superior Court, Abedi v. Sands (No. BC277983) and Sands v. Abedi (No. LC061900). The agreements contained similar language, including a provision authorizing an award of attorney fees to “[t]he prevailing party in any action or proceeding arising out of or to enforce any provision of this retainer agreement, with the exception of a fee arbitration or mediation under Business and Professions Code Sections 6200-6206.” Friedman, Heller later agreed to represent Abedi in a separate action then pending in the United States District Court for the Central District of California, Abedi v. Kobo (No. SACV 00-498) (Kobo action).
Friedman, Heller successfully moved to withdraw as counsel for Abedi in the two federal actions. Abedi then obtained new counsel in the litigation against Sands as well. Abedi settled with the defendants in the Schlossman and Kobo actions in August 2004.
2. Trial Court Proceedings
Abedi filed a complaint against Robert Heller and Friedman, Heller in June 2004, alleging a single count for legal malpractice. Friedman, Heller filed a cross-complaint against Abedi alleging a count for breach of contract and common counts, seeking to recover $31,482.61 in alleged unpaid legal fees.
Heller and Friedman, Heller moved for summary judgment or summary adjudication against Abedi’s complaint in February 2006. The court granted the motion in May 2006, awarding the defendants “summary judgment” against the complaint.
Summary judgment is proper only if there is no triable issue of material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A judgment is proper only if it finally resolves all issues in the action between the parties. (Id., § 577; see Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.) A party is entitled to summary adjudication if there is no triable issue of material fact as to one or more causes of action within an action. (Code Civ. Proc., § 437c, subd. (f)(1).) An order summarily adjudicating all of the causes of action in a complaint therefore is an order granting summary adjudication, rather than summary judgment, if causes of action in a cross-complaint between the same parties remain unadjudicated. Although the order stated that the court was granting summary judgment in favor of both defendants, as to Friedman, Heller we consider the order an order granting summary adjudication against the single count alleged in Abedi’s complaint.
After a nonjury trial on the cross-complaint, the court entered a judgment in July 2006. The judgment denies Abedi any relief on her complaint against the defendants and awards Friedman, Heller $21,112.02 on its cross-complaint against Abedi. The judgment also awards Friedman, Heller its attorney fees incurred to prosecute the cross-complaint and awards Heller and Friedman, Heller their attorney fees incurred to defend against the complaint, with the amounts of the awards left blank in the original judgment.
Abedi appealed the judgment in a separate appeal (No. B193217).
Friedman, Heller moved for an award of attorney fees against Abedi based on the fee provisions in the two legal services agreements. It requested a total of $261,528 in fees, including incurred $252,168 to defend against Abedi’s complaint and $6,760 incurred to prosecute the cross-complaint. The court awarded Friedman, Heller $249,522 in fees in a minute order dated November 27, 2006. Abedi timely appealed the order.
If a judgment determines the entitlement to, but not the amount of, an attorney fee award, an appeal from a postjudgment order awarding fees in a specified amount encompasses that part of the judgment determining the entitlement to fees. (P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1055.)
CONTENTIONS
Abedi contends Friedman, Heller is not entitled to recover fees incurred to defend against her complaint because her legal malpractice cause of action did not “aris[e] out of . . . this retainer agreement” within the meaning of the agreements. She contends the fee provision encompasses only an action to enforce a provision in the agreements.
DISCUSSION
1. Standard of Review
Attorney fees can be awarded as costs to the prevailing party when authorized by contract. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10); Santisas v. Goodin (1998) 17 Cal.4th 599, 607, fn. 4.) A contract can provide for recovery of fees incurred on both contract and tort causes of action, or can be more narrowly drawn. (Santisas, supra, at p. 608.) Whether a contract provides for recovery of fees incurred on a particular cause of action is a question of contract interpretation. We independently determine as a question of law the scope of an attorney fee provision if the interpretation of the provision does not turn on extrinsic evidence, as here. (Kalai v. Gray (2003) 109 Cal.App.4th 768, 777; Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 705.)
2. The Agreements Provide for an Attorney Fee Recovery in an Action for Legal Malpractice Arising from the Representation that Is the Subject of the Agreement
The attorney fee provision in the legal services agreements stated:
“The prevailing party in any action or proceeding arising out of or to enforce any provision of this retainer agreement, with the exception of a fee arbitration or mediation under Business and Professions Code Sections 6200-6206, shall be entitled to recover all attorney’ fees (including the value of time of attorneys in our firm at their normal billing rates), all expert fees and expenses and all costs (whether or not such costs are recoverable pursuant to the California Code of Civil Procedure) as may be incurred in that action or proceeding, or in the enforcement of any judgment or award rendered.”
We interpret a contract so as to give effect to the parties’ mutual intention at the time the contract was formed. (Civ. Code, § 1636; Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524.) We ascertain that intention solely from the written contract, if possible, but also consider the circumstances under which the contract was made and the matter to which it relates. (Civ. Code, §§ 1639, 1647; Hess, supra, at p. 524.) We consider the contract as a whole and construe the language in context, rather than interpret a provision in isolation. (Civ. Code, § 1641.) We interpret words in a contract in accordance with their ordinary and popular sense, unless the words are used in a technical sense or a special meaning is given to them by usage. (Id., § 1644.) If contractual language is clear and explicit and does not involve an absurdity, the plain meaning governs. (Id., § 1638.)
An action or proceeding “arises out of” an agreement, in the ordinary meaning of those words, if the dispute arises from the transaction or relationship memorialized in the agreement. (Lerner v. Ward (1993) 13 Cal.App.4th 155, 160; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1344.) The language “arising out of” is broader than other language that the parties could have used to limit the scope of the fee provision to actions on the contract. (See, e.g., Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at pp. 708-709 [“to enforce the terms hereof or declare rights hereunder”]; Loube v. Loube (1998) 64 Cal.App.4th 421, 429-430 [“to enforce the terms of this Agreement”].) Moreover, the use of the disjunctive, “arising out of or to enforce any provision of this retainer agreement” (italics added), suggests that an action or proceeding “arising out of” the agreement is not limited to an action or proceeding “to enforce” the agreement.
We reject Abedi’s argument that broad language in an arbitration provision in the agreements and the specific mention of a malpractice action in that provision indicate that the scope of the attorney fee provision is narrower. The arbitration provision states, “[a]ny and all disputes that may arise between us including, but not limited to, claims of negligence or malpractice arising out of or relating to the legal services provided by us to you, shall be decided only by binding arbitration . . . .” In our view, this broadly worded arbitration provision does not implicitly limit the scope of the language “arising out of . . . any provision of this agreement” in the attorney fee provision, and the specific mention of a malpractice action in the arbitration provision does not compel the conclusion that a malpractice action is not encompassed within the attorney fee provision because it is not specifically mentioned there. Rather, we conclude that both provisions were intended to encompass a broad scope of actions and that the variance in the language in the two provisions merely shows that there is more than one way to describe a broad scope of actions.
We conclude that the contractual language “arising out of or to enforce any provision of this retainer agreement” encompasses a legal malpractice action arising from the representation that was the subject of the agreements. Abedi has shown no error in the award of fees incurred by Friedman, Heller to defend against her complaint for legal malpractice.
DISPOSITION
The order awarding attorney fees is affirmed. Friedman, Heller is entitled to recover its costs on appeal.
We Concur: KLEIN, P. J. KITCHING, J.