Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. BS085069, Victor H. Person, Judge.
Pillsbury Winthrop Shaw Pittman, Scott A. Sommer, Todd W. Smith and Amy E. Gaylord for Plaintiff and Appellant.
William Matthew Ditzhazy, City Attorney (Palmdale); Meyers, Nave, Riback, Silver & Wilson, Deborah J. Fox, Philip A. Seymour and Dawn A. McIntosh for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Andrew J. Eliopulos, appeals from an order awarding $101,600 in attorney’s fees to defendants, the City of Palmdale (the city) and the City Council of the City of Palmdale (city council). We affirm the order.
II. BACKGROUND
A. Acquisition Of The Property
On August 16, 1991, Rancho Vista Development Company (the developer) entered into a development agreement with the city. The developer planned to develop approximately 1,300 acres for residential, commercial, and golf course uses consistent with the Rancho Vista Specific Plan. The Rancho Vista Specific Plan set forth the applicable zoning. The development agreement outlined the developer’s responsibilities. The development agreement ran with the land and was binding on successors and assigns. Section 23 of the development agreement stated, “This Agreement shall run with the land and shall inure to the benefit of, and shall be binding upon, all successors and assigns of the Developer and the City.” Section 19 of the development agreement provided for attorney fees in the case of suit, “In any action brought for breach of this Agreement or to enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees.” In 2001, J.P. Eliopulos Enterprises, Inc. (the corporation) acquired a six-acre portion of the Rancho Vista property. Plaintiff is the president of the corporation. Plaintiff, acting on the corporation’s behalf, applied to develop a 90-unit apartment complex on the site. The city planning commission approved the plan. But on May 14, 2003, the city council reversed that decision. This action followed.
B. The Initial Complaint and the Mandate Petition
On August 12, 2003, plaintiff filed his initial complaint and mandate petition. The complaint contained ten causes of action for: administrative and traditional mandate; breach of the development agreement; specific performance; deprivation of First Amendment, substantive due process, and equal protection rights in violation of the state and federal Constitutions and title 42 United States Code section 1983 (section 1983); inverse condemnation; declaratory relief; and intentional prospective economic relations interference. Plaintiff alleged generally: he had a vested right to develop the apartment complex at the densities specified in the development agreement and the Rancho Vista Specific Plan; in denying approval of the project, defendants ignored the development agreement, interfered with plaintiff’s vested rights thereunder, and breached their contractual obligations; defendants’ findings were not based on substantial evidence; defendants violated provisions of the Government Code with respect to allowable densities, the city’s general plan housing element, and regional housing needs; the project was deemed approved pursuant to the Permit Streamlining Act; and defendants discriminated against plaintiff and violated his constitutional and civil rights when they denied the project and took his property without just compensation.
In his first cause of action, plaintiff sought a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5. Plaintiff alleged: the city council’s failure to approve the project was arbitrary and capricious; the city planning director failed to review the project as required under the city’s municipal code; and the project was not disapproved within 60 days after the planning commission action as mandated by the Government Code. In addition, plaintiff alleged the following city council findings were deficient because they were not supported by substantial evidence or for other reasons: the site was too small; the project would have substantial adverse effects on adjoining properties; the noise and traffic hazards could not be mitigated; the site was inappropriately zoned for multi-family uses; the project site was not adequate in size or shape; the project had inadequate access; and adjoining property owners had been misled by a sign on the property stating that a “senior-assisted living facility” would be built. Plaintiff also alleged the following California Environmental Quality Act findings were not supported by substantial evidence: line of sight constraints would worsen traffic safety; the noise study was inadequate; the project would have significant adverse impacts on police services; and there was no feasible way to satisfactorily mitigate or avoid the project’s adverse impacts. Finally, plaintiff alleged the city failed to make statutorily mandated findings as to adverse public impacts.
The second cause of action of the initial complaint was for traditional mandate pursuant to Code of Civil Procedure section 1085. According to the second cause of action: the city was obligated to maintain an adequate inventory of housing to meet regional needs; in refusing to approve the project, the city council failed to make findings mandated by the Government Code; the city council violated the city’s housing element by failing to approve the project; and the city had failed to approve or disapprove the project within 60 days after the planning commission certified the mitigated negative declaration thereby violating the Government Code. On December 22, 2003, defendants demurred to plaintiff’s third through tenth (non-mandate) causes of action. The hearing on the demurrer was delayed pending a decision on plaintiff’s writ based causes of action.
Plaintiff filed a brief in support of his mandate claim. Plaintiff sought to compel defendants to set aside the project denial and reinstate the planning commission’s approval. Plaintiff asserted: he had a vested right under the development agreement to build an apartment complex on his land; but the neighbors, who owned single-family homes, did not want apartments there; the neighbors convinced the city council to deny the project approval request; the city council found the zoning was inappropriate; and it denied the project approval request on the pretext, unsupported by the evidence, that it violated various requirements as to noise effect, traffic, zoning, size and shape, open space, setbacks, and crime, none of which could be mitigated. In their opposition, defendants argued plaintiff’s planning problems grew out of his predecessor’s voluntary actions—the developer had obtained city approval for a senior assisted living residential facility on the property plaintiff now sought to develop. Also, the adjacent property had been down-zoned to single family residences at the developer’s request. Defendants contended: plaintiff had no vested right to approval of any particular site plan; substantial evidence supported the city council’s findings; and the city council was not required to make additional special findings under the Government Code.
On July 19, 2004, plaintiff’s writ petition was denied. Retired Judge Robert H. O’Brien found: “The Court finds that this is a [Code of Civil Procedure section ] 1094.5 petition in which [plaintiff] asserts prejudicial abuse of discretion; to wit, [defendants’] decision is not supported by the findings, nor are the findings supported by evidence. [¶] [Plaintiff] argues that he has a fundamental vested right emanating from the Development Agreement; thus, the court is to review [defendants’] decision by the independent judgment test. [¶] The court finds that [plaintiff] does not have a ‘fundamental vested right’ to have the application approved as submitted. Accordingly, the standard of review is ‘substantial evidence.’ [¶] The court finds that there is substantial evidence to support [defendants’] findings and substantial evidence to support the findings. [Sic.] Therefore the petition is denied.” Plaintiff appealed from the order denying his writ petition, but later abandoned that appeal. (Eliopulos v. City of Palmdale (Sept. 29, 2004, B178204) [abandoned Oct. 8, 2004].)
B. The First Amended Complaint
Rather than oppose defendants’ demurrer to his initial complaint, plaintiff filed a first amended complaint and writ petition on November 12, 2004. The first amended complaint asserted six causes of action for: administrative and traditional mandate; breach of the development agreement; denial of substantive due process and equal protection rights in violation of the state and federal Constitutions and section 1983; and inverse condemnation. Plaintiff alleged generally he had a vested right pursuant to the development agreement to develop his property at or below the maximum density set forth in that contract. Further, he alleged the city council had refused to honor the development agreement because, “[A] small, but highly-determined and very aggressive group of nearby homeowners . . . [had] waged an ugly campaign of fear-mongering and class prejudice (apartments will bring in a ‘criminal element’) . . . .”
The first cause of action sought a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5. The second cause of action was for traditional mandate pursuant to Code of Civil Procedure section 1085. The allegations paralleled those in the initial complaint, as to which the trial court had already ruled. The third cause of action sought damages for contract breach. Plaintiff alleged defendants had breached the development agreement by refusing to allow construction of apartments on his property at the contractually permitted density.
In his fourth cause of action, for denial of substantive due process rights under section 1983 and the United States Constitution, plaintiff alleged: “Defendants’ refusal to honor [plaintiff’s] rights . . . to build apartments at the maximum density was arbitrary and capricious, did not substantially advance any legitimate state interest, [was] not substantially or reasonably related to public health, safety or general welfare, and constituted grave unfairness in the discharge of legal responsibilities. [¶] . . . By denying the Project, in spite of the unambiguous provisions of the Agreement, and contrary to the advice of the City Attorney, defendants deliberately flouted the laws that govern its activities in violation of [plaintiff’s] right to substantive due process. Defendants’ action substantially and unreasonably diverged from clear legal rules, and trammeled upon [plaintiff’s] property rights.”
Plaintiff’s fifth cause of action alleged an equal protection denial under section 1983 and the federal Constitution. Plaintiff alleged: “There is no legitimate or rational basis for defendants’ discriminatory application of the law. Defendants’ decision was based entirely on the fears and racial and class prejudices of the opponents of the project, and on no legitimate or important governmental interest, which resulted in [plaintiff’s] project being singled out for selective treatment on such impermissible bases. Defendants have approved other apartment projects in the City that are subject to the same planning and zoning criteria. [¶] . . . There are no conditions or circumstances justifying the discrimination against [plaintiff] and his project, nor were there any appropriate planning or zoning criteria that would justify discriminatory and irrational application of the defendants’ laws and policies.”
In his sixth cause of action, plaintiff alleged inverse condemnation: “Defendants’ actions do not advance any legitimate state [or] governmental interests or goals, and defendants, by their actions, have caused damage to [plaintiff] by destroying the viability and economic value of the Agreement. [Defendants’] actions . . . have deprived, and continue to deprive, [plaintiff] of all value he has under the Agreement. [Defendants’] actions . . . unreasonably deprived [plaintiff] of his property without the payment of just, or any, compensation in violation of the United States and California Constitutions.”
On November 22, 2004, defendants demurred to the third, fourth, fifth, and sixth causes of action in plaintiff’s first amended complaint. On December 23, 2004, the demurrers to the third, fourth, and fifth causes of action, for contract breach, substantive due process violations, and equal protection violations respectively, were sustained without leave to amend. Now Retired Judge Victor H. Person ruled: the breach of contract claim was “utterly without merit”; the proposed project was inconsistent with the specific plan; and there was no legal support for the “absurd” proposition that defendants were required to approve plaintiff’s development project. Judge Person further ruled: disputes over local planning procedures do not support a section 1983 claim; a substantive due process claim is precluded in cases involving zoning and development issues, where the proper remedy is a takings claim under the Fifth Amendment; and, with respect to the equal protection cause of action, plaintiff failed to alleged he was treated differently and less favorably than similarly situated persons; moreover, judicially noticeable facts established there was a rational basis for defendants’ decision. Judge Person overruled the demurrer to the sixth cause of action, for inverse condemnation. Plaintiff’s reconsideration motion was denied. We denied plaintiff’s mandate petition. (Eliopulos v. Superior Court (Apr. 21, 2005, B181327) [nonpub. order].) Defendants answered the first amended complaint on January 14, 2005.
C. Defendants’ Summary Adjudication Motion and the Second Amended Complaint
On August 19, 2005, defendants filed a motion for summary adjudication of plaintiff’s remaining claim for inverse condemnation. On September 6, 2005, plaintiff moved to file a second amended complaint and to add the corporation as a plaintiff. On October 18, 2005, Judge Person ruled on both motions.
With respect to the summary adjudication motion, Judge Person ruled plaintiff had no standing to pursue the inverse condemnation claim. Judge Person’s October 18, 2005 minute order stated: “Plaintiff Eliopol[os][, an individual,] does not own the property at issue. Rather, the record owner is J.P. Eliopol[os] Enterprises, Inc., a corporation . . . . The original parties to the Development Agreement at issue were the City and Rancho Vista Development Co. The terms of the Development Agreement run with the land and are binding on successors-in-interest to Rancho [Vista]. As the owner of the property, the rights passed to [J.P. Eliopolo[os] Enterprises, Inc.] [¶] [The corporation] has been added as a Plaintiff to this action. However, [Mr.] Eliopol[os] can’t pursue the claims by himself because he is not the real party in interest. He cites no authority for the proposition that an individual can sue on behalf of a corporation except in a derivative action. The rights of officers, shareholders and employees of a corporation are not interchangeable with the rights of the corporation itself. Merco Construction Engineers, Inc. v. Municipal Court, (1978) 21 Cal.3d 724, 729-230.”
But Judge Person permitted the corporation to be added as a plaintiff and to proceed on a second amended complaint for inverse condemnation. Judge Person denied the corporation’s request for leave to re-plead the contract breach claim to which the demurrer had been sustained without leave to amend. An order granting in part and denying in part the corporation’s motion for leave to file a second amended complaint was entered on January 13, 2006. The order stated in part: “Plaintiff’s motion for leave to re-plead the cause of action for breach of contract is DENIED. . . . [T]he motion is nothing more than an improper and untimely motion for reconsideration. . . . [T]he proposed amendment is ultimately the same breach of contract claim that plaintiff previously alleged. The court sustained the City’s demurrer, without leave to amend. Plaintiff’s motion for reconsideration was denied. Plaintiff sought writ relief from the Court of Appeal, but was denied. Plaintiff points to no new facts or law to support changing the court’s earlier ruling. [¶] . . . Plaintiff previously alleged in his First Amended Complaint . . . that ‘In spite of the fact that the Agreement gives [plaintiff] the vested right to build [the] type of use (apartments) and density (156 units), the City unequivocally repudiated such rights. The City went further than to simply reject the particular site plan submitted by [plaintiff]; the City also stated in its findings that it would not permit any apartments on the property.’ . . . This has always been the crux of plaintiff’s claim for breach of contract . . . . Plaintiff’s claim has always been, and would continue to be under the proposed Second Amended Complaint, that the City repudiated the development rights.” On March 23, 2006, Judge Person entered a judgment against plaintiff and in defendants’ favor. Plaintiff did not appeal from the judgment.
This action proceeded on the corporation’s second amended complaint alleging a single inverse condemnation cause of action. On July 18, 2006, Judge Person granted summary judgment against the corporation. A judgment was entered in defendants’ favor on July 18, 2006. We affirmed that judgment. (J.P. Eliopulos Enterprises, Inc. v. The City of Palmdale (Dec. 24, 2007, B193750) [nonpub. opn.].)
D. Defendants’ Attorney’s Fee Motion
On May 30, 2006, defendants filed an attorney fees motion. The attorney fees motion was premised on “Section 19 of the Development Agreement,” Civil Code section 1717, and section 1983. In support of the motion, Deborah J. Fox, a partner at the law firm Fox & Sohagi, which represented defendants, declared: “I personally reviewed [the firm’s invoices] and instructed that any items that were not directly related to the litigation or which are attributable to legal or factual issues unrelated to any alleged violation of the Development Agreement be eliminated. And, I eliminated time spent on takings issues unrelated to the Development Agreement, such as ripeness. As well, I eliminated time for discovery issues after the Court’s summary judgment ruling on October 18, 2005.” Defendants sought $276,755 in fees. Plaintiff opposed the motion. Judge Person awarded defendants $101,600 in attorney’s fees—much less than they had sought. Judge Person found defendants were entitled to recover fees incurred: in defense of plaintiff’s contract breach claim; for successfully defeating plaintiff’s civil rights claims, which were frivolous, unreasonable, or without foundation because plaintiff lacked standing to pursue them; and for the mandate proceeding in which plaintiff unsuccessfully sought to enforce the development agreement and which was “inextricably intertwined with the contract claim . . . .”
III. DISCUSSION
A. Development Agreement Breach
Plaintiff argues, “[The] city is not entitled to attorney’s fees from [plaintiff] as president of [the corporation] because [plaintiff] did not allege a theory that would have entitled him to fees from [the] city had he prevailed.” (Title format omitted.) Plaintiff reasons that because he was found not to have standing to sue for breach of the development agreement, he could not have recovered attorney’s fees. We independently review the legal basis for the attorney’s fee award as a question of law. (Exarhos v. Exarhos (2008) 159 Cal.App.4th 898, 903; Loduca v. Polyzos (2007) 153 Cal.App.4th 334, 340; California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 604.) We conclude the trial court properly awarded defendants the attorney’s fees they incurred defending plaintiff’s contract breach claim.
Attorney’s fees are not recoverable as costs unless authorized by agreement or statute. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Reynolds Metals Co. v. Alperso (1979) 25 Cal.3d 124, 127.) Civil Code section 1717, which governs contractual attorney’s fees, provides in part, “(a) 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.” Civil Code section 1717 was enacted to preclude one-sided attorney’s fee provisions. (Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at p. 128; System Inv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 163.) As our Supreme Court has held: “[Civil Code section] 1717 is obviously intended to create a reciprocal right to attorney fees when the contract provides the right to one party but not to the other. (System Inv. Corp. v. Union Bank[, supra,]21 Cal.App.3d [at p.] 163 . . . .)” (International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 223.) Under Civil Code section 1717, when authorized by an agreement, attorney fees are generally awarded to the party prevailing on a claim within the scope of the clause in an action between parties to the contract. (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 379-380; Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 544-545.)
This case was initially brought by plaintiff; a nonparty to the development agreement. This case presents the question whether the city, a signatory to the development agreement containing the attorney’s fee provision, may recover its fees from plaintiff, a nonsignatory to that contract. The Supreme Court considered the inverse of the present situation in Reynolds Metal Co. v. Alperson, supra, 25 Cal.3d at page 128—a signatory plaintiff sued a nonsignatory defendant. The Supreme Court held Civil Code section 1717 must be interpreted to provide a reciprocal remedy for a nonsignatory defendant sued on a contract: “Its purposes require [Civil Code] section 1717 be interpreted to further provide a reciprocal remedy for a nonsignatory defendant, sued on a contract as if he were a party to it, when a plaintiff would clearly be entitled to attorney’s fees should he prevail in enforcing the contractual obligation against the defendant.” (Reynolds Metal Co. v. Alperson, supra, 25 Cal.3d at p. 128.) In Reynolds Metal Co., the plaintiff signatory sued to collect on a note signed by a corporation. The individual nonsignatory defendants were allegedly the corporation’s alter egos. The individual defendants prevailed. The Supreme Court held: the nonsignatory defendants could recover their attorney’s fees; they were sued as if they were parties to the contract; and had the plaintiff prevailed on its alter ego theory against them, it would have been entitled to its attorney’s fees. (Id. at p. 129; see 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 186, p. 708.)
The Reynolds reasoning has also been applied in situations, as here, where a signatory defendant is sued on a contract by a nonsignatory plaintiff; the courts have awarded attorney’s fees to prevailing signatory defendants in actions by nonsignatory plaintiffs. (E.g., Exarhos v. Exarhos, supra, 159 Cal.App.4th at pp. 903-907; Loduca v. Polyzos, supra, 153 Cal.App.4th at p. 341; Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 451; Sessions Payroll Management, Inc. v. Noble Construction Co. (2000)84 Cal.App.4th 671,679; Real Property Services Corp. v. City of Pasadena, supra, 25 Cal.App.4th at p. 380; Brusso v. Running Springs Country Club, Inc. (1991) 228 Cal.App.3d 92, 108-111.) We stated the applicable rule in Real Property Services Corp. v. City of Pasadena, supra, 25 Cal.App.4th at page 382: “A party is entitled to recover its attorney’s fees pursuant to a contractual provision only when the party would have been liable for the fees of the opposing party if the opposing party had prevailed. Where a nonsignatory plaintiff sues a signatory defendant in an action on a contract and the signatory defendant prevails, the signatory defendant is entitled to attorney’s fees only if the nonsignatory plaintiff would have been entitled to its fees if the plaintiff had prevailed.”
As discussed above, plaintiff argues he could not have prevailed on the development agreement because he lacked standing, therefore defendants were not entitled to their attorney’s fees. But the pertinent inquiry is whether defendants would have been liable for plaintiff’s attorney’s fees if plaintiff had prevailed. (Reynolds Metal Co. v. Alperson, supra, 25 Cal.3d at p. 129; Exarhos v. Exarhos, supra, 159 Cal.App.4th at p. 906; Real Property Services Corp. v. City of Pasadena, supra, 25 Cal.App.4th at p. 382.) The underlying facts can be summarized as follows. The developer entered into a development agreement with the city. The development agreement contained an attorney’s fee clause. In addition, the development agreement recited that it was binding on successors and assigns. As noted above, section 23 of the development agreement stated: “This Agreement shall run with the land and shall inure to the benefit of, and shall be binding upon, all successors and assigns of the Developer and the City.” Neither plaintiff nor the corporation was a party to the development agreement. However, the corporation acquired from the developer a portion of the real property that was the subject of the development agreement. In his pleadings, plaintiff alleged he had standing to sue on the contract. The original complaint alleged, “[Plaintiff] is an assignee of, or successor in interest to, the Agreement, with respect to [the] property owned by [him].” In his first amended complaint, plaintiff alleged he was “authorized to prosecute this action on behalf” of the corporation, the property owner. In both pleadings, plaintiff sought attorney’s fees pursuant to the development agreement. In other words, plaintiff claimed a right to enforce the development agreement as an assignee or a successor in interest. An assignee or successor in interest assumes the rights and duties of the contracting party. (Exarhos v. Exarhos, supra, 159 Cal.App.4th at p. 905 [successor in interest]; California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc., supra, 96 Cal.App.4th at p. 605 [assignee]; Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 509 [same].) Had plaintiff prevailed on his contract breach claim as an assignee or successor in interest, he would have been entitled to attorney’s fees. (Exarhos v. Exarhos, supra, 159 Cal.App.4th at pp. 905-907; California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc., supra, 96 Cal.App.4th at p. 608.) Because defendants would have been liable for plaintiff’s attorney’s fees if he had prevailed on his contract breach claim, they, as the prevailing parties, are entitled to recover their attorney’s fees from him.
B. Non-Contract Claims
Plaintiff argues, even if defendants are entitled to attorney’s fees for defense of the contract breach claim, they cannot recover fees incurred to defend the writ proceeding. Plaintiff fails to cite the pertinent law or the applicable standard of review. We find no abuse of discretion.
The Supreme Court has held: “Where[, as here,] a cause of action based on a 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 [Civil Code] section 1717 only as they relate to the contract action. (McKenzie v. Kaiser-Aetna (1976) 55 Cal.App.3d 84, 88-90; see Schlocker v. Schlocker [(1976)] 62 Cal.App.3d 921, 923.) Describing the attorney’s fees provision, [Civil Code] section 1717 specifically refers to fees ‘incurred to enforce the provisions of [the] contract.’ A litigant may not increase his recovery of attorney’s fees by joining a cause of action in which attorney’s fees are not recoverable to one in which an award is proper. . . . [¶] Conversely, plaintiff’s joinder of causes of action should not dilute its right to attorney’s fees. Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Reynolds Metal Co. v. Alperson, supra, 25 Cal.3d at pp. 129-130, italics added; accord Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1603-1604.) The Court of Appeal has explained: “‘Attorney’s fees need not be apportioned between distinct causes of action where plaintiff’s various claims involve a common core of facts or are based on related legal theories.’ (Drouin v. Fleetwood Enterprises (1985) 163 Cal.App.3d 486, 493.) Apportionment is not required when the issues in the fee and nonfee claims are so inextricably intertwined that it would be impractical or impossible to separate the attorney’s time into compensable and noncompensable units. (Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672, 687; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.)” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 159; accord, Thompson Pacific Const., Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 555-556; Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1083; Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133 [“All expenses incurred on the common issues qualify for an award”]; Korech v. Hornwood (1997) 58 Cal.App.4th 1412, 1422.)
Moreover, the allocation of fees between contract and noncontract causes of action is a matter within the trial court’s discretion. (Amtower v. Photon Dynamics, Inc., supra, 158 Cal.App.4th at p. 1604; Thompson Pacific Const., Inc. v. City of Sunnyvale, supra, 155 Cal.App.4th at p. 555; Erickson v. R.E.M. Concepts, Inc., supra, 126 Cal.App.4th at p. 1083.) As the Supreme Court has repeatedly held, “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; accord, Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, 722; Abdallah v. United Savings Bank, supra, 43 Cal.App.4th at p. 1111; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; Walker v. Superior Court (1991) 53 Cal.3d 257, 272.)
Here, Ms. Fox declared fees for attorney time spent on legal or factual issues unrelated to alleged violations of the development agreement had been excluded from the attorney’s fee request. Judge Person found: plaintiff had sought to enforce the development agreement in the writ proceeding; plaintiff asserted he had a vested right under the development agreement to improve the property as proposed; and defendants improperly denied his project for pretextual reasons. Judge Person ruled, “The writ proceeding was inextricably intertwined with the contract claim . . . .” Plaintiff has not shown, by reference to the record, that Judge Person’s finding is without support. Plaintiff has not established, by reference to the record, that his contract cause of action and his mandate claim did not involve a common core of facts or related legal issues. Plaintiff has not pointed to any evidence Judge Person’s $101,600 award in attorney’s fees included compensation for time spent on issues of law or fact divorced from the contract breach claim. No abuse of discretion occurred.
Plaintiff’s reliance on Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 and Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 705, is misplaced. Both cases involved only noncontract claims. In those cases, the Courts of Appeal properly applied the rule that when only noncontract causes of action are at issue, Civil Code section 1717 and its mutuality and reciprocity effects are inapplicable, and the availability of attorney’s fees turns on the contract language. (Gil v. Mansano, supra, 121 Cal.App.4th at pp. 742-745; Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at pp. 702-715.) Here, plaintiff asserted both contract and noncontract claims. Therefore, Civil Code section 1717 applies and the applicable analysis is as discussed above.
Plaintiff cites Government Code section 800 for the proposition attorney’s fees are available in an administrative mandate proceeding only to a prevailing complainant. Government Code section 800 is inapplicable. Government Code section 800, subdivision (a) states: “In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, except actions resulting from actions of the California Victim Compensation and Government Claims Board, if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney’s fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), if he or she is personally obligated to pay the fees in addition to any other relief granted or other costs awarded.” (Italics added.) Government Code section 800, subdivision (a) applies by its unambiguous terms when a successful complainant in a proceeding to review an administrative determination asserts the public entity acted in an arbitrary or capricious manner. (See Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826; Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) Plaintiff was unsuccessful and is not seeking attorney’s fees from defendants on the theory their conduct was arbitrary or capricious or on any other ground. Moreover, Government Code section 800 is “ancillary only” (Gov. Code § 800, subd. (b)); it in no way precludes an attorney’s fee award pursuant to a contract.
C. The Section 1983 Claims
A trial court may, in its discretion, award attorney’s fees to the prevailing party in an action under section 1983. (42 U.S.C. § 1988(b); Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1610.) The Civil Rights Attorney’s Fees Awards Act of 1976, title 42 United States Code, section 1988(b), provides in part, “In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . .” Here, Judge Person awarded defendants attorney’s fees incurred successfully defending against plaintiff’s federal civil rights claims. Judge Person found the section 1983 assertions were frivolous, unreasonable, or without foundation because plaintiff lacked standing to pursue them. Our review is for an abuse of discretion. (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 418; Robbins v. Regents of University of California (2005) 127 Cal.App.4th 653, 665; McFadden v. Villa (2001) 93 Cal.App.4th 235, 237.) We find no abuse of discretion.
Plaintiff argues: defendants are not entitled to attorney’s fees incurred with respect to his federal civil rights causes of action because they did not prevail on the merits; he withdrew his First Amendment claim before defendants’ demurrer was heard; and his equal protection and due process causes of action were dismissed when defendants’ demurrer to his first amended complaint was sustained without leave to amend. Whether a party has prevailed is a threshold determination. (Hensley v. Eckerhart (1983) 461 U.S. 424, 433; DiLaura v. Township of Ann Arbor (6th Cir. 2006) 471 F.3d 666, 670; Dover v. Rose (6th Cir. 1983) 709 F.2d 436, 438.) The United States Supreme Court has held: “In designating those parties eligible for an award of litigation costs, Congress employed the term ‘prevailing party,’ a legal term of art. Black’s Law Dictionary 1145 (7th ed. 1999) defines ‘prevailing party’ as ‘[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded (in certain cases, the court will award attorney’s fees to the prevailing party.) -- Also termed successful party.’ This view that a ‘prevailing party’ is one who has been awarded some relief by the court can be distilled from our prior cases.” (Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Services (2001) 532 U.S. 598, 603, fn. omitted.)
Defendants were the prevailing parties within the meaning of title 42 United States Code section 1988(b). Without abusing his discretion, Judge Person could find defendants were the prevailing parties on the federal constitutional right allegations because: defendants’ demurrers to two of the section 1983 claims were sustained with out leave to amend; plaintiff abandoned his third claim; and plaintiff lacked standing to sue. (Schmidt v. Cline (D.Kan. 2000) 127 F.Supp.2d 1169, 1180 [“The defendant is unquestionably the ‘prevailing party’ in this proceeding, based upon the court’s ruling that plaintiffs lack standing to pursue this case, that some of plaintiffs’ claims are moot, and that the complaint fails to state a claim under which relief may be granted”]; see Adkins v. Briggs & Stratton Corp. (7th Cir. 1998) 159 F.3d 306, 307 [defendant prevailed on motion to dismiss where plaintiff had no claim]; Anthony v. Marion County General Hospital (5th Cir. 1980) 617 F.2d 1164, 1169-1170 [dismissal with prejudice for failure to prosecute].)
Plaintiff argues even if defendants are prevailing parties within the meaning of title 42 United States Code section 1988(b), his section 1983 claims were not groundless, frivolous, or without foundation. The United States Supreme Court has held a prevailing defendant may recover attorney’s fees under title 42 United States Code section 1988(b) only when the plaintiff’s lawsuit was vexatious, frivolous, or brought to harass or embarrass the defendant; that is, the underlying claim is frivolous, unreasonable, or groundless, or the plaintiff continued to litigate after it clearly became so. (Hensley v. Eckerhart, supra, 461 U.S. at p. 429, fn. 2; Hughes v. Rowe (1980) 449 U.S. 5, 14; Jones & Matson v. Hall, supra, 155 Cal.App.4th at p. 1610.) In Hughes, the United States Supreme Court explained, “The plaintiff’s action must be meritless in the sense that it is groundless or without foundation.” (Hughes v. Rowe, supra, 449 U.S. at p. 14.) This rule exists to avoid imposing a chilling effect on plaintiffs seeking to vindicate civil rights. (Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412, 422; Vandenplas v. City of Muskego (7th Cir. 1986) 797 F.2d 425, 429.) But, as the Supreme Court explained in Hughes, “The fact that a plaintiff may ultimately lose his case is not in itself sufficient justification for the assessment of fees.” (Hughes v. Rowe, supra, 449 U.S. at p. 14; accord, LeBlanc-Sternberg v. Fletcher (2nd Cir. 1998) 143 F.3d 765, 770.)
The federal courts have repeatedly found an action to be unreasonable or frivolous when the plaintiff had no colorable legal theory. (E.g., No Barriers, Inc. v. Brinker Chili’s Texas, Inc. (5th Cir. 2001) 262 F.3d 496, 498-499 [plaintiff failed to sue proper party and presented no evidence on essential element]; Morse v. North Coast Opportunities, Inc. (9th Cir. 1997) 118 F.3d 1338, 1343 [complaint was completely barred by terms of statute]; Hutchinson v. Staton (4th Cir. 1993) 994 F.2d 1076, 1080-1081 [plaintiffs’ claims backed only by conjecture and speculation]; Schmidt v. Cline, supra, 127 F.Supp.2d at pp. 1180-1181 [claim in direct contravention of controlling law]; Tufaro v. Willie (S.D.Fla. 1991) 756 F.Supp. 556, 560-561 [claims had no basis in law]; Gilyard v. South Carolina Dept. of Youth Services (D.S.C. 1985) 667 F.Supp. 266, 274-278 [no factual basis for claims]; see Larson v. Wind (D.Ill. 1982) 548 F.Supp. 479, 479-480 [settled adverse legal doctrine and known facts defeating section 1983 claim]; Brown v. Fairleigh Dickinson University (D.N.J. 1983) 560 F.Supp. 391, 405 [no evidence produced at trial].) Here, plaintiff had no standing to assert the section 1983 claims because he was not the property owner and he failed to establish any other theory on which he could pursue the corporation’s claims. The United States Supreme Court has held a plaintiff claiming civil rights violations under section 1983 must assert his or her own legal rights and interests—not those of a third party. (Conn v. Gabbert (1999) 526 U.S. 286, 292-293; Warth v. Seldin (1975) 422 U.S. 490, 499.) Code of Civil Procedure section 367 states, “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” A corporation is a distinct legal entity, separate from its officers, directors, employees, and stockholders. (Merco Construction Engineers, Inc. v. Municipal Court, supra, 21 Cal.3d at p. 730; Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 150.) When a corporation has suffered an injury to its property, it is the corporation that possesses the right to sue. (Gagnon Co., Inc. v. Nevada Desert Inn, Inc. (1955) 45 Cal.2d 448, 453; Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 183.) If a corporation fails to sue for redress of the injury, a shareholder may file a derivative action on its behalf. (Gagnon Co., Inc. v. Nevada Desert Inn, Inc. supra, 45 Cal.2d at p. 453; Desaigoudar v. Meyercord, supra, 108 Cal.App.4th at p. 183.) Plaintiff does not dispute his lack of standing. (See Cone Corp. v. Hillsborough County (M.D.Fla. 1994) 157 F.R.D. 533, 541 [“A review of th[e] law should clearly have indicated to a reasonably competent attorney that the standing requirement could not be met in this case”].) Given plaintiff’s lack of standing, Judge Person could reasonably conclude this action was frivolous or without foundation. No abuse of discretion occurred.
Even if Judge Person acted outside the allowable scope of his judicial discretion in awarding section 1983 fees, reversal is not in order. As we have noted, there was a separate ground for awarding attorney’s fees—the attorney fee clause in the development agreement. Plaintiff has failed to demonstrate that the award would have been any different had Judge Person merely relied on the contract theory rather than citing to title 42 United States Code section 1988(b).
IV. DISPOSITION
The order awarding $101,600 in attorney’s fees to defendants, the City of Palmdale and the City Council of the City of Palmdale, is affirmed. Defendants are to recover their costs on appeal, including attorney’s fees, from plaintiff, Andrew J. Eliopulos.
We concur MOSK, J., KRIEGLER, J.