Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court No. 06CC04816 of Orange County, Josephine Staton Tucker, Judge. Appeal treated as taken from the subsequent judgment.
Madison Harbor, Robert Sabahat, Ali Parvaneh, MacKenzie T. Batzer and Warren D. Morten for Plaintiff and Appellant.
Law Offices of Ilbert A. Phillips and Ilbert A. Phillips for Defendant and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiff Khashayar Behnam appeals from an order denying his motion for attorney fees. Although this prejudgment order is not appealable (Meyers v. Guarantee Sav. & Loan Assn. (1978) 79 Cal.App.3d 307, 313), we treat the appeal as being taken from the subsequently entered final judgment that did not include a fee award. (Code Civ. Proc., § 904.1, subd. (a)(1); see Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997.) We shall affirm the judgment, concluding that, under the circumstances, the trial court did not abuse its discretion by denying the attorney fee request in its entirety.
FACTS
The case arose from a real estate sale transaction wherein plaintiff agreed to sell a home he owned to one Rashid Green. An escrow was opened with defendant Wilshire Central Escrow. After the time to complete the transaction expired, plaintiff assumed Green had abandoned his effort to purchase the home. In fact, Green had forged plaintiff’s signature on a grant deed and defendant proceeded to close escrow without obtaining signed escrow instructions from plaintiff or communicating with him. Green subsequently took out loans secured by the property.
Plaintiff sued Green, defendant, and several other parties, alleging seven causes of action, including fraud, breach of duty, slander of title, and civil conspiracy. Before trial, plaintiff settled or abandoned his claims against all parties except defendant.
After a court trial, the trial judge issued a minute order, ruling against plaintiff on the fraud count and the civil conspiracy count. But it ruled for plaintiff on his breach of duty and slander of title claims. The court awarded plaintiff $75,793.04, constituting the difference between the $720,000 purchase price agreed to between plaintiff and Green, and the $644,206.96 in loans plaintiff had on the property. It also authorized defendant “to release [any] funds [held in escrow] to plaintiff to satisfy all or part of th[e] judgment.”
Plaintiff moved for recovery of his court costs and $52,240.50 in attorney fees. His fee request cited Civil Code section 1717 and paragraph 8 of the parties’ escrow instructions, claiming it provided “the escrow company agreed to ‘pay all costs, expenses, and reasonable attorney’s fees expended or incurred.’” Counsel’s supporting declaration specified her hourly rate and stated “[p]laintiff’s case file... currently occup[ies] three standard-sized bankers’ boxes,” and “required considerable personal attention, commitment, and patience on [her] part....” Counsel also attached a 17-page summary of the time she spent working on the entire case.
Defendant opposed the attorney fee request. It argued “[p]laintiff has not provided sufficient foundation to show a contract with an attorney fee clause,” his victory on only some of the causes of action failed to establish he is the prevailing party, “the bulk of the... fees involved are in the prosecution of other [d]efendants,” and he “fail[ed] to allocate... fees” between himself and the other defendants.
Plaintiff’s reply included a copy of one page from the escrow instructions initialed by Green alone that contained the following paragraph: “If conflicting demands are made or notice served upon you or legal action is taken in connection with this escrow you shall [n]ot be required to determine the same or take any action in the premises, but may withhold and stop all further proceedings [w]ithout liability therefor, or you may file suit in interpleader or if any action of interpleader or declaratory relief is b[r]ought by you, we jointly and severally agree to pay all costs, expenses and reasonable attorney’s fees expended or incurred by you, and a lien is hereby created in your company’s favor to cover said items. We agree to save you harmless as escrow holder hereunder from all loss and expenses, including reasonable attorney’s fees and court costs sustained by reason of any action, legal or otherwise, which may in any way arise out of this escrow, before or after closing, notwithstanding anything in these instructions to the contrary.” The reply argued plaintiff’s “attorneys’ fees... are associated with the prosecution of all [d]efendants in this case” and the fact “that [defendant] was the only remaining defendant... at the time of trial is inconsequential” because the “fees... were reasonably necessary and associated with discovering information and prosecuting a case revolving around [d]efendant’s behavior with respect to the escrow account....”
The court awarded plaintiff his costs, but denied the attorney fee request. As for the document attached to plaintiff’s reply, the court noted he “fail[ed] to request that the court take judicial notice of it,” and “there is no indication... it reflects an agreement between plaintiff and this defendant.” Citing the factors relevant to determining the amount of an attorney fee award, the court concluded plaintiff failed to show the reasonableness of the fee request because he “originally stated numerous causes of action against multiple defendants” and “seems to argue... defendant... is obligated to pay all of... [the] fees, regardless of whether the work was directed to other defendants or other causes of action.”
DISCUSSION
Plaintiff contends he is entitled to recover his attorney fees from defendant under Civil Code section 1717 (section 1717). That statute declares, in part: “In any action on a contract, where the contract specifically provides that attorney’s 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’s fees in addition to other costs.” (§ 1717, subd. (a).) The trial court’s “authority to award attorney fees is a legal issue” subject to “review de novo,” but the amount of fee awards is generally reviewed for “abuse of discretion. [Citation.]” (Globalist Internet Technologies, Inc. v. Reda (2008) 167 Cal.App.4th 1267, 1273, fn. omitted; see also Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
Many of the trial court’s findings fail to support its ruling. The trial court suggested plaintiff failed to provide evidence of a contract containing an attorney fee clause and ruled “there is no indication th[e escrow instructions] reflect[] an agreement between plaintiff and this defendant.” But the record shows the escrow instructions were introduced at trial as exhibit number 28. Paragraph 8 thereof stated defendant could recover attorney fees from the buyer and seller in actions for interpleader, declaratory relief or “any action, legal or otherwise, which may... arise out of this escrow....” (Bruckman v. Parliament Escrow Corp. (1987) 190 Cal.App.3d 1051, 1059 [finding attorney fees recoverable under similar escrow instructions clause].) In ruling for plaintiff on the breach of duty claim, the court also found defendant “failed in its duty to comply strictly with the parties’ escrow instructions, and in its duty to exercise reasonable skill and diligence in carrying out the escrow instructions.” The court acknowledged this fact in its minute order denying the fee request.
While paragraph 8 only authorizes defendant to recover attorney fees, courts have recognized “[s]ection 1717 was enacted to establish mutuality of remedy where contractual provision makes recovery of attorney’s fees available for only one party [citations].... [Citation.]” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128.) “Under [the statute], ‘if a contract gives one party the right to recover attorney fees in an action arising out of the contract, the other party, [if it prevails], is [also] entitled to fees.’ [Citation.]” (Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174, 1178.) Furthermore, by receiving the greater relief, plaintiff is clearly the prevailing party. (§ 1717, subd. (b)(1).)
Plaintiff never signed the escrow instructions, but the law is settled that “‘[i]n cases involving nonsignatories to a contract with an attorney fee provision,... [a] party is entitled to recover its attorney fees pursuant to a contractual provision... when the party would have been liable for the fees of the opposing party if the opposing party had prevailed.’ [Citation.]” (Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 451; see Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 380-382 [and cases cited therein].) Had defendant prevailed on the breach of duty count, it could have sought attorney fees based on theory plaintiff and Green, as the parties to the real estate purchase contract, agreed to “save [it] harmless as escrow holder... from all loss and expenses, including reasonable attorney’s fees... sustained by reason of any action, legal or otherwise, which may in any way arise out of this escrow....”
However, the court also denied plaintiff’s fee request because he “originally stated numerous causes of action against multiple defendants” and, by claiming “defendant... is obligated to pay all of [his] fees, regardless of whether [counsel’s] work was directed to other defendants or other causes of action,” plaintiff “offer[ed] insufficient information to allow the court to apportion attorneys’ fees appropriately.” This ruling has merit.
“Where a cause of action based on the contract providing for attorney’s fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney’s fees under section 1717 only as they relate to the contract action. [Citations.]” (Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at p. 129.) But “[c]onversely, plaintiff’s joinder of causes of action should not dilute its right to attorney’s fees.” (Ibid.) Thus, a court should apportion fees unless it finds the fees were “‘incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not’” or if “‘the liability issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not....’ [Citation.]” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 157.)
The problem in this case is that plaintiff insisted he was entitled to recover all attorney fees incurred in this litigation from defendant alone, and failed to present the court with any means to calculate the fees he incurred to prosecute the claims asserted against defendant. On appeal, he repeats this contention.
“The apportionment [of attorney fees] is within the trial court’s discretion” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1365), and an “exercise of [this] discretion is abused only when its ruling ‘“‘“exceeds the bounds of reason, all of the circumstances before it being considered”’”’ [citations]” (Thompson Pacific Const., Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 555). “The trial court, having heard the entire case, was in the best position to determine whether any further allocation of attorney’s fees was required or whether the issues were so intertwined that allocation would be impossible. [Citation.]” (Id. at p. 556.)
Plaintiff brought this appeal on a short record. It does not include the pleadings or a reporter’s transcript of the trial. We are limited to only the trial court’s findings, its decision on each of the causes of action plaintiff pursued at trial, and the parties’ posttrial motions concerning costs and attorney fees. “[T]he party challenging a fee award... has an affirmative obligation to provide an adequate record so that we may assess whether the trial court abused its discretion. [Citations.] We cannot presume the trial court has erred.... ‘“A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent....” [Citation.]’ [Citations.]” (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447, italics omitted.)
Given the limited record, we must accept the trial judge’s conclusion allocation of attorney fees was possible between the fees incurred in prosecuting defendant and those incurred for other parties plaintiff initially sued, and between the causes of action on which plaintiff prevailed and those he lost. Furthermore, in light of plaintiff’s repeated insistence he was entitled to recover all fees from defendant alone, his appellate claim that he could now submit a supplemental declaration permitting an apportionment of fees is too little, too late. We conclude the trial court did not abuse its discretion in denying the fee request altogether.
DISPOSITION
The order denying appellant’s motion for an award of attorney fees is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: BEDSWORTH J., FYBEL, J.