Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC320639, Kenneth R. Freeman, Judge.
Malhotra & Malhotra and Krishna R. Malhotra; Howard Posner for Defendants and Appellants Alicia Pinedo Bello, Ruben Pinedo Bello and Ruben Bello.
Law Offices of Douglas J. Farrell and Robert Cipriano for R. Marie Estrada and Tracy Torres, Co-conservators of the Person and the Estate of Fred Ortega.
PERLUSS, P. J.
Alicia Pinedo Bello, her husband Ruben Bello and their adult son Ruben Bello Pinedo (the Bellos) appeal from the judgment entered in this action brought by R. Marie Estrada and Tracy Torres, as conservators of the person and estate of Fred Ortega (the conservators), to invalidate a real estate and personal services contract between Ortega, on the one hand, and Alicia and Ruben Jr., on the other hand. The trial court invalidated the contract, finding it the product of the Bellos’ undue influence and awarded the conservators their attorney fees. On the Bellos’ cross-complaint for breach of contract and common counts, the court awarded the Bellos some of their out-of-pocket expenses incurred in repairing the Ortega home.
We refer to the Bellos by their first names (identifying Ruben Bello Pinedo as Ruben Jr. and Ruben Bello as Ruben Sr. in accordance with the convention adopted in the parties’ briefs) not out of disrespect, but for clarity and convenience. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
The Bellos contend the court erred in failing to reimburse them for all the expenses incurred and services provided to Ortega during the contract period. The conservators have cross-appealed, contending the trial court erred in permitting the Bellos any recovery for expenses incurred and in calculating the attorney fee award. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Real Estate and Personal Services Contract
In 2000 Fred Ortega, then 76 years old, and his wife Olga Ortega were both in failing health. Fred Ortega was diabetic and nearly blind from glaucoma. The Ortegas owned their own home in Granada Hills, where they had lived together for nearly 50 years. The Bellos lived next door to the Ortegas. The two families were friendly; and Alicia had often helped the Ortegas, especially during Olga Ortega’s most recent illness.
In August 2000, following the death of their only child, the Ortegas grew concerned about their own deteriorating health and their ability to keep up their home and care for themselves. Estranged from his extended family, Fred Ortega devised a plan for his and his wife’s continued care and contacted Christine Lyden, an attorney, to help him execute it. Pursuant to Fred Ortega’s wishes, Lyden drafted a contract between the Ortegas, on the one hand, and Alicia and Ruben Jr., on the other hand, that provided: (1) The Ortegas would convey a joint-tenancy interest in their residence to Ruben Jr. (Ruben Sr. and Alicia’s 19-year-old mentally-challenged son); (2) Ruben Jr. would pay the Ortegas $15,000 and execute a promissory note for $135,000, payable in monthly installments of $300 until the sum of $135,000 had been paid in full or “upon the death of both Fred and Olga J. Ortega, which ever occurs first”; (3) Ruben Jr. and Alicia would provide the Ortegas with home care, including transportation to the doctor for medical appointments and assistance with cooking, cleaning and other household chores, and maintain the property, including repairing the roof and erecting a fence; (4) if Ruben Jr. and Alicia failed to provide the required services for more than six consecutive months, the joint interest in the property would revert to the Ortegas. Ruben Jr. also executed a quitclaim deed reconveying his interest in the home to the Ortegas. Lyden told the Ortegas they could record the quitclaim deed and “undo” the entire transaction if Ruben Jr. or Alicia breached the contract.
Ruben Sr. did not sign the agreement and is not named as a defendant in the action to invalidate the real estate and personal services contract. However, he is a party to the Bellos’ cross-complaint and the instant appeal.
Although Fred Ortega told Lyden the house was worth more than $200,000, he explained he wanted to structure the transaction to pay the Bellos for the cost of the care they would be providing to him and his wife. At the time of trial, the appraised value of the house was $540,000.
The contract between the Ortegas and Alicia and Ruben Jr. also included an attorney fee clause: “If any action, proceeding, or arbitration arising out of or relating to this agreement is commenced by either party to this Agreement, then the prevailing party shall be entitled to receive from the other party . . . the reasonable attorneys’ fees, costs, and expenses incurred in the action, proceeding, or arbitration by the prevailing party.”
2. The Lawsuit
Shortly after Lyden drafted the contract, Olga Ortega was hospitalized. She died in January 2001. Fred Ortega continued to live in his home until June 2004 when he was hospitalized, suffering from dehydration, severely elevated blood sugar levels and dementia. On September 21, 2004 Estrada and Torres, Fred Ortega’s nieces, were appointed conservators of his person and his estate after the probate court found he was unable to properly provide for his personal needs, manage his financial resources or give informed consent for medical treatment.
In October 2004, after moving Fred Ortega to a skilled nursing facility, the conservators filed a lawsuit against Alicia and Ruben Jr., seeking to invalidate the real estate and personal services contract and to quiet title to the Ortega residence in the Ortega estate, asserting the transaction was the product of Alicia’s and Ruben Jr.’s undue influence over the Ortegas. In addition, the conservators sought damages on behalf of the Ortegas for fraud and elder abuse.
The Bellos, including Ruben Sr., who was not a signatory to the contract, filed a cross-complaint against the conservators seeking specific performance of the contract. The cross-complaint also alleged common counts for “work, labor, and services and materials rendered at the special instance and request” of the Ortegas and sought attorney fees.
3. The Bifurcated Trial and Settlement
Trial proceedings were bifurcated with the equitable quiet title and specific performance claims tried first to the court. After hearing testimony from Alicia, Ruben Sr. and Ruben Jr., as well as from the conservators, two real estate appraisers, the social workers who had attempted to visit with Fred Ortega in 2001, 2002 and 2003 but were denied entrance by him, Fred Ortega’s primary care physician and the geriatric psychiatrist who treated the Ortegas following the death of their son, the trial court concluded the contract was the product of undue influence. The court set aside the contract and quieted title to the residence in the estate of Fred Ortega. In support of its ruling the court made the following findings of fact:
“Fred Ortega, diabetic, feeble, paranoid and almost blind in his mid-70’s and his dying wife signed a contract that would . . . in effect upon their death, convey their primary worldly possession, their house, to their next-door neighbor’s mentally challenged son at a fraction of the house’s value. The idea behind this convoluted conveyance [originated with] Mr. Ortega himself, who on his own part and to the surprise of the Bellos, typed up all the terms and conditions of a contract and hired an independent lawyer to prepare the final form of the contract for signature. This lawyer, Christine Lyden, for a fixed fee of less than $500 . . . had no reservations about the transfer which was tantamount to a gift to a stranger. Had no reservations about an agreement absent any provision for a remedy in the event of a breach; had no reservations about her client’s capacity to prepare such an unusual agreement. She had no reservations, furthermore, about preparing and retaining a secret, unrecorded quitclaim deed. Indeed, during these proceedings she has had no reservations about voluntarily disclosing confidential client communication without permission, or even testifying contrary to her client’s interest.
“The court finds that during the period of time from the signing of the contract to the present, or at least until Mr. Ortega became incompetent, the Bello family systematically engaged in [conduct] to deprive . . . Mr. Ortega of all of his worldly assets. They took him shopping to buy diapers, phone cards and other such things that an isolated lonely man would have no use for. They were trusted by Mr. Ortega but did nothing to discourage Mr. Ortega’s isolation from his family and from the outside world. Furthermore, notwithstanding the one-sided nature of the contract, the Bellos did not comply with the terms of the agreement. They did not allow Mr. Ortega and his conservators to maintain possession during Mr. Ortega’s lifetime. The Bellos, or actually Mr. Ruben Bello, Jr., stopped paying the $300 per month the contract called for while Mr. Ortega still lived in the house. Furthermore, while Mr. Ortega was living there, they moved in [and] remodeled the house for the convenience of the Bellos; and when Mr. Ortega was forced to live in a nursing facility, took full possession of the property, all contrary to the terms of the agreement.”
Although Alicia testified that the contract was subsequently modified to forgive the $300 monthly obligation, the court found the testimony of Alicia and Ruben Jr. “not credible.” The court summarized its view of Ruben Jr.’s testimony: “[H]e remembered nothing, knew nothing about the transaction. Didn’t read English. Didn’t know how the contract was negotiated. Didn’t know what was to be done on his part, and didn’t use own funds to make any of the payments. He didn’t know what support he was supposed to provide and did not work at the house but rather had his own job. . . . Furthermore, with his [limited] mental capacity it is questionable that he could do anything to help Mr. Ortega.”
The court alternatively ruled, even if the contract were not the product of undue influence, the Bellos’ claim to specifically enforce the contract would fail because they had committed multiple material breaches: In contravention of the agreement, the Bellos moved into Fred Ortega’s home while he was still living there, took over possession of the property before his death, made improvements to the property that served only their interests and not Ortega’s, did not provide the home care services required and did not pay the monthly installment of $300 as required under the contract.
On July 10, 2006, prior to the date the second phase of the trial was to begin, the parties informed the court they had reached a “full and complete settlement.” According to the terms of the settlement, the Bellos would immediately relinquish the Ortega property to the conservators; Ruben Jr. would quitclaim any interest in the property to Fred Ortega; and the claims for reimbursement for the amount the Bellos had expended to improve the property and for the services Alicia had provided to the Ortegas would be resolved by motion, as would any claim for attorney fees. Both sides retained the right to appeal the court’s orders only on the motions for reimbursement and attorney fees.
4. The Bellos’ Post-settlement Motion To Recover Their Expenditures and the Reasonable Value of Alicia Bello’s Personal Services
Pursuant to the terms of the settlement, on August 1, 2006 the Bellos filed a motion to recover $119,000 expended in connection with repairs and improvements to the Ortega home and $403,440 for personal services provided to the Ortegas by Alicia Bello, an amount they asserted was based on the customary rate of service in the home health care industry.
After reviewing the evidence attached to the motion and holding a hearing, the trial court awarded the Bellos $36,000 for expenses incurred for improvements to the Ortega home that benefitted Fred Ortega: $5,000 to repair and remodel a bathroom, $3,000 for erecting a wall, $6,000 to replumb the house, $18,000 to reroof the house and $4,000 to replace the electrical wiring. The court rejected the Bellos’ claim for $80,000 for the addition of a bedroom, bathroom and porch to the house and the demolition and reconstruction of the existing garage, concluding those improvements were undertaken for the sole benefit of the Bellos (in anticipation of their complete ownership of the property after Fred Ortega’s death), not the Ortegas. The court also rejected the Bellos’ request for payment for personal services, concluding Alicia had not provided the care she had promised.
The Bellos actually sought $6,000, the full amount expended to build the wall. The trial court awarded them $3,000, presumably because the Bellos also benefitted from having a wall between the two properties. The Bellos do not challenge this part of the ruling on appeal.
5. The Conservators’ Attorney Fee Motion
The conservators moved to recover their attorney fees as the prevailing party in the action pursuant to the attorney fee provision in the real estate and personal services contract. The court awarded the conservators $131,400 in attorney fees, offset by the $59,400 the court had ordered reimbursed to the Bellos ($36,000 for the recoverable improvement expenses, plus $23,400 for payments made by the Bellos to the Ortegas under the contract).
Judgment was entered on November 27, 2006. Both the Bellos and the conservators have appealed.
CONTENTIONS
The Bellos contend they were entitled to reimbursement of the full amount they had expended to improve the Ortega home and, absent such an award, the Ortega estate is unjustly enriched. Alicia also contends the court’s finding she failed to provide the promised services to the Ortegas is not supported by substantial evidence.
The conservators contend the court erred in awarding the Bellos any monies for out-of-pocket expenses incurred as part of a fraudulent scheme to obtain the Ortega home. They also contend the court erred in calculating their attorney fee award.
DISCUSSION
1. The Trial Court Did Not Err in Denying the Bellos’ Common Count Claim for $80,000 in Labor Performed and Materials Provided on the Ground Those Construction Expenses Were Not Incurred for the Ortegas’ Benefit
The Bellos do not challenge the trial court’s finding the $80,000 in construction expenses incurred to improve the Ortega home by demolishing and reconstructing the garage, adding a bedroom, bathroom and porch and adding a four-foot width to the eastern side of the home were for their benefit, not the Ortegas’. Indeed, they insist whether the expenses were incurred at the Ortegas’ request or for their benefit is beside the point. Absent reimbursement for those expenses, they argue, the Ortega estate will be unjustly enriched.
The Bellos’ argument fundamentally misapprehends the law governing recovery on a common count. Inherent in a claim for labor performed and materials furnished is the allegation the labor and materials were furnished at the beneficiary’s request or for his or her benefit. (See 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 518, 519, pp. 608-609 [common count for labor and services furnished is based on allegation that work or services were furnished “at defendant’s special insistence and request”]; see also Earhart v. William Low Co. (1979) 25 Cal.3d 503, 510-511.) Absent such a request or benefit, there is no basis to infer a promise to pay, the premise upon which common count recovery is predicated. (See, e.g., Earhart, at p. 518 [“[w]here one person renders services at the request of another and the latter obtains benefits from the services, the law ordinarily implies a promise to pay for the services”]; Maglica v. Maglica (1998) 66 Cal.App.4th 442, 446, fn. 2.) Here, although the trial court found some expenses were incurred to benefit Ortega, others, including the addition of a bedroom, bathroom and porch to the house, were not undertaken at Fred Ortega’s request or for his benefit, but rather to benefit the Bellos as part of their plan to occupy, and ultimately own, the house.
It makes no difference to the analysis whether the Bellos’ restitution claim is fashioned as a common count for labor and services performed, as actually alleged in the cross-complaint, or, as they suggest on appeal, a quasi-contract claim -- a contract implied-in-law in order to avoid unjust enrichment. (See McBride v. Boughton (2004) 123 Cal.App.4th 379, 388, fn. 6 [“‘Quasi-contract’ is simply another way of describing the basis for the equitable remedy of restitution when an unjust enrichment has occurred. . . . The quasi-contract, or contract ‘implied-in-law,’ [is not a contract]; rather, it is an obligation created by the law without regard to the intention of the parties, and is designed to restore the aggrieved party to his former position by return of the thing or its equivalent in money.”].) Under either theory, it is not sufficient to show a benefit has been bestowed. It must also be shown that retention of the benefit would be unjust: “‘[T]he fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it.’” (Id. at p. 389; First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1663 [restitution, an equitable remedy, is properly denied when application of the doctrine would involve a violation or frustration of the law or public policy; if, for example, a person receives a benefit “because of another’s mistake, policy may dictate that the person making the mistake assume the risk of the error”].)
As to the construction improvements undertaken without the Ortegas’ request and for the Bellos’ benefit, in anticipation of their own occupancy of the house, the court ruled retention of any benefit to the Ortega estate resulting from the extensive remodeling was not, under the circumstances, “unjust.” The Bellos have provided no factual or legal basis to undermine that ruling.
Attempting to go even further than the trial court did, in their cross-appeal the conservators argue it was “unjust” to award the Bellos any restitution for construction expenses in connection with a scheme to obtain Fred Ortega’s property by undue influence. That argument fails for essentially the same reason. The trial court concluded allowing the conservators to retain benefits bestowed at Fred Ortega’s direction and for his benefit, including plumbing and roofing repairs and construction of the wall expressly bargained for in the contract, would be unjust. The conservators have provided no argument that would justify reversing that conclusion.
The conservators’ contention the partial-reimbursement award is based on incompetent evidence is without merit. The record shows the conservators stipulated to each of the amounts the court ordered as reimbursement.
2. Substantial Evidence Supports the Trial Court’s Finding Alicia Bello Did Not Provide Any Services for the Benefit of Fred Ortega
Alicia Bello argues the trial court erred in finding the personal care services she provided to Fred Ortega were without any value. We review the trial court’s factual findings for substantial evidence (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633), viewing the record in the light most favorable to respondent and resolving all inferences in support of the judgment. (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.) We are precluded from reevaluating the trial court’s credibility determinations. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334 [“‘questions as to the weight and sufficiency of the evidence, the construction to be put upon it, the inferences to be drawn therefrom, the credibility of witnesses . . . and the determination of [any] conflicts and inconsistencies in their testimony are matters for the trial court to resolve’”]; Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 [“testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears”].) When the record as a whole shows a reasonable trier of fact could have found in favor of respondent, we must affirm. (Kuhn, at p. 1633.)
Despite Alicia’s insistence that “every unbiased observer during the years 2001-2003 testified that Fred Ortega appeared clean, reasonably healthy, alert, and well cared-for,” there was evidence to the contrary. Dr. David Trader, a board certified geriatric psychiatrist, assistant clinical professor at UCLA Neuropsychiatric Institute and Hospital and one of Ortega’s treating physicians, testified in 2004 Ortega suffered from severe dehydration, blood sugar levels at five times normal and severely altered levels of consciousness, conditions that vastly improved once he was given proper care. According to Dr. Trader, although Alicia acknowledged she had assumed responsibility for giving Fred Ortega his insulin shots, it was clear she did not do so on a regular basis, nor she did ask for assistance when that task proved too difficult. There was also evidence Ortega had been living in “dilapidated” and “extremely unhygienic” conditions, causing him to suffer “considerable pain and suffering.” One of Ortega’s nieces and a former neighbor each testified, when they visited Fred Ortega in 2002 and 2003, he was living in “filthy conditions” in a room that “was very cold” due to the on-going construction renovations and smelled strongly of urine.
Alicia, who the trial court found “not credible,” contends the testimony against her is unfair and biased and asserts she provided Ortega with excellent care; she also cites to testimony to support that claim. As discussed, our task is not to resolve credibility conflicts, but simply to determine whether substantial evidence supports the court’s finding Alicia did not provide Fred Ortega with the home care services he had requested and she had promised. The evidence in the record amply supports that finding.
3. The Attorney Fee Award Is Not Overly Broad
The Bellos contend the court’s attorney fee award improperly included fees incurred in connection with the elder abuse claim and the equitable quiet title claim. Relying on Santisas v. Goodin (1998) 17 Cal.4th 599, 615 (fees incurred to prosecute or defend tort claims not within ambit of Civ. Code, § 1717 and therefore not recoverable unless issue integrally related to claims for which recovery is authorized) and Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129 to 130 (Reynolds Metals), they argue the fee award is overly broad.
The Bellos’ argument lacks merit for several reasons. First, the equitable action to rescind the contract and quiet title is plainly a contract-based action. (See Hsu v. Abbara (1995) 9 Cal.4th 863, 870 [claim to rescind contract, like claim to enforce contract, is a contract-based claim for which attorney fees may be awarded under Civ. Code, § 1717].) Second, the real estate and personal services agreement between the Ortegas and Alicia and Ruben Jr. authorized the recovery of attorney fees “in any action, proceeding, or arbitration arising out of or relating to this agreement . . . .” The language “arising out of or relating to” is sufficiently broad to include tort claims concerning the Bellos’ treatment of Ortega during the contract period and equitable claims relating to ownership rights following recission of the agreement. (See Code Civ. Proc., §§ 1021 [authorizing attorney fee award when provided in contract]; 1033.5 [authorizing attorney fees as costs when provided in contract]; see also Trope v Katz (1995) 11 Cal.4th 274, 279; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160 [attorney fee provision authorizing attorney fees to prevailing party in any “‘“lawsuit or other legal proceeding to which this Agreement gives rise”’ sufficiently broad ‘to encompass both contract actions and actions in tort’” arising under contract]; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342 [same]; Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 1102.)
The Bellos also contend the attorney fee award is overly broad because it encompasses fees incurred in connection with the conservators’ failure to timely produce discovery, for which discovery sanctions were imposed against the conservators’ counsel. The Bellos argue sanctionable conduct, by definition, is unreasonable and therefore should have been excluded from the award of “reasonable attorney fees.”
The trial court’s discretion to reduce a fee award for conduct that is unreasonable or duplicative is well established. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21 [citing instances when unreasonable and duplicative conduct justify reduction in attorney fee award].) Whether litigation conduct is reasonable and thus properly included in an award of attorney fees is typically a matter within the trial court’s broad discretion and should not be disturbed absent proof that discretion was abused. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; see also Serrano v. Priest (1977) 20 Cal.3d 25, 49 [“[t]he ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’”].)
Here, the trial court concluded it was reasonable to award the conservators their attorney fees in opposing the Bellos’ motion to compel notwithstanding the Bellos’ express objection that the subject of the motion later became the basis for imposition of discovery sanctions on the conservators’ counsel. The conservators contend those sanctions were imposed only against their counsel and were payable only in the event the Bellos prevailed in the litigation. The order itself is not included in the record on appeal, nor is there any reporter’s transcript from the hearing at which discovery sanctions were imposed. Because we cannot determine from the record on appeal the basis for the court’s award of discovery sanctions, we are simply in no position to disturb the court’s ruling the fees, as awarded, were proper under the circumstances. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [appellant’s burden to overcome presumption on appeal that judgment or order is correct; appellant must provide adequate record demonstrating error]; Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1003, fn. 1 [same].)
4. The Trial Court Did Not Err in Refusing To Enhance the Attorney Fee Award by Applying a Multiplier
Although the conservators obtained nearly all of their requested fees at their requested rate, they contend the trial court abused its discretion by declining to apply a multiplier to enhance their fee award. “The trial court is not required to include a fee enhancement, although it retains discretion to do so in the appropriate case. “A trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138-1139.) Based on this standard, the trial court determined that, while the conservators were entitled to a fee award, the nature of the case was not so novel and difficult to warrant application of a multiplier. This determination was well within the trial court’s discretion.
5. The Trial Court Did Not Err in Failing To Hold Ruben Sr. Jointly Liable for Attorney Fees
Citing Reynolds Metals Co., supra, 25 Cal.3d at pages 128 to 129, the conservators contend the trial court erred in failing to hold Ruben Sr. jointly liable for attorney fees even though he was not a signatory to the contract authorizing recovery of fees. In Reynolds Metals the plaintiff supplied aluminum to Turner, a subsidiary of TMI, under a general consignment agreement that TMI signed as guarantor of Turner’s payments. Turner also later executed and delivered two promissory notes in favor of the plaintiff, which TMI endorsed, providing for recovery of attorney fees if Turner defaulted. After Turner and TMI became insolvent, the plaintiff sued to hold TMI shareholders and directors personally liable for the debts those companies owed to plaintiff even though they were not signatories to the contract. After the nonsignatories prevailed, they sought an award of attorney fees against the plaintiff under the attorney fee provisions in the promissory notes. The Supreme Court held, given Civil Code section 1717’s purpose to establish a mutuality of remedy, the nonsignatory defendants sued on a contract could recover fees as if they were signatories if the signatory parties would have been entitled to fees had they prevailed. (Reynolds Metals, at p. 128.)
The rationale of Reynolds Metals has been applied to actions by a nonsignatory plaintiff seeking to enforce a contract against a signatory defendant. (See Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 383 [nonsignatory sublessee is third party beneficiary of lease and entitled to enforce attorney fee provision in action against lessor for breach of lease].) As Reynolds Metals and Real Property Services Corp. make clear, the relevant inquiry in determining whether a nonsignatory to a contract can be held liable for attorney fees pursuant to a contractual fee provision is whether the nonsignatory would have been entitled to attorney fees if he or she had prevailed in the action on the contract. (Reynolds Metals, supra, 25 Cal.3d at p. 128; Real Property Services Corp., at p. 383; see Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 680 (Sessions).)
Although the conservators did not initially identify Ruben Sr. as a party to the contract and thus did not name him as a defendant in their complaint to rescind the contract and quiet title to the property in the Ortega estate, they nonetheless contend that, having made the initial $15,000 down payment and the monthly $300 payments and arranged for most of the construction improvements, Ruben Sr. was, at the very least, a third-party beneficiary of the contract he, his wife and son sued to enforce in their cross-complaint. Because he would have been entitled to attorney fees had he prevailed, they argue, he must also be held liable for attorney fees under the same contract.
It is well settled a third-party beneficiary may enforce a contract made expressly for his or her benefit. (Sessions, supra, 84 Cal.App.4th at p. 681; Macaulay v. Norlander (1992) 12 Cal.App.4th 1, 4 [broker had standing as third-party beneficiary to enforce arbitration agreement entered into between clearing broker and stock investor].) The party asserting third-party beneficiary status bears the burden of proving the contract, or some part of it, was intended for his or her benefit. This is largely a question of contract interpretation. (Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 436; Sessions, at pp. 680-681.) Here, nothing in the contract identifies Ruben Sr. as a participant in the transaction or suggests the parties’ intended he benefit from the agreement. Nor is there the kind of nexus between Ruben Sr. and his wife and son (apart from the familial relationship) that an assignment or some other vehicle would have afforded. (Sessions, at pp. 681-682; cf. Real Property Services, Corp. v. City of Pasadena, supra, 25 Cal.App.4th at pp. 381-382.) Although the conservators failed to challenge during trial his standing to enforce a contract to which he was not a party, we are not persuaded Ruben Sr. would have been able to establish entitlement to attorney fees had his coplaintiffs prevailed in the action. Accordingly, we find no error in the trial court’s determination not to hold him, along with his wife and son, jointly liable for the attorney fee award.
DISPOSITION
The judgment is affirmed. Each party is to bear his or her own costs on appeal.
We concur: WOODS, J., ZELON, J.