Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. GIN043020, Michael M. Anello, Judge.
IRION, J.
Attorney Jennifer Hasso-Najm (Hasso Najm) appeals from a postjudgment order ruling on her motion for attorney fees incurred in litigation with her former client Donna Ferrey. We conclude that the trial court properly apportioned fees, awarding only those fees that Hasso Najm incurred in pursuing her claim for breach of contract against Ferrey to recover payments due under the terms of the retainer agreement between Hasso Najm and Ferrey. Accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Hasso Najm was retained by Ferrey to represent her in a family law proceeding after Ferrey had been represented by a string of previous attorneys. In connection with that representation, the parties entered into a retainer agreement (the Agreement). Among other things, the Agreement included an explanation of the legal services that Hasso Najm would provide to Ferrey and the fees that Ferrey would be obligated to pay Hasso Najm for those services. The Agreement also contained a provision, which stated:
"In the event it becomes necessary for Law Offices of Jennifer J. Hasso-Najm or you to institute legal action to recover any amount due pursuant to the terms of this Attorney/Client Fee Agreement, the prevailing party in such action will be entitled to reasonable attorney's fees and costs incurred in such action."
After Hasso Najm's representation of Ferrey concluded, Ferrey filed a lawsuit for legal malpractice against Hasso Najm. Ferrey's first amended complaint against Hasso Najm alleged causes of action for legal malpractice, breach of fiduciary duty and constructive fraud, setting forth several alleged deficiencies in Hasso Najm's handling of Ferrey's family law case.
Hasso Najm then filed a cross-complaint against Ferrey. Hasso Najm's first amended cross-complaint contained nine causes of action against Ferrey: (1) breach of contract; (2) concealment; (3) stalking; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; (6) invasion of privacy; (7) indemnity and contribution; (8) declaratory relief; and (9) abuse of process. The breach of contract cause of action was based on the Agreement, and alleged that Ferrey had not paid the legal fees and costs due to Hasso Najm under the terms of the Agreement. The remaining causes of action were primarily based on Ferrey's allegedly tortious conduct toward Hasso Najm during the representation in the family law case, including alleged harassment and stalking, and on Ferrey's alleged misconduct during the instant litigation.
The trial court granted summary judgment in favor of Hasso Najm on Ferrey's legal malpractice complaint. Hasso Najm's cross-complaint was tried to a jury. The jury found in favor of Hasso Najm and awarded a total of $96,602.40, including $41,602.40 on the breach of contract cause of action.
Ferrey appealed from the judgment entered in favor of Hasso Najm on the cross-complaint, and we affirmed the judgment. (Hasso-Najm v. Ferrey (June 2, 2009, D051674).) We have granted Hasso Najm's unopposed motion to take judicial notice of the record in that appeal.
At issue in this appeal is Hasso Najm's postjudgment motion for attorney fees pursuant to Civil Code section 1717. In the motion, Hasso Najm sought to recover the $343,205 in attorney fees that she expended in defending against Ferrey's legal malpractice action and in pursuing her cross-complaint against Ferrey. The trial court ruled that pursuant to the terms of the Agreement, Hasso Najm was entitled to recover only the attorney fees incurred in prosecuting the breach of contract cause of action in her cross-complaint. It explained that "the contract in question limits recovery of attorney's fees to actions to recover amounts due pursuant to the [Agreement]," which "does not cover attorney's fees incurred to defend a legal malpractice case."
The trial court then afforded Hasso Najm an opportunity to "submit a breakdown of the attorney's fees claimed... to show those incurred to prove up that portion of the verdict awarded on her retainer fee contract action." In response, Hasso Najm took the position that "there is no way to apportion fees" despite the trial court's request, and Hasso Najm's attorney submitted a declaration stating, "There is no way that I could possibly break[ ]down the attorney's fees such that I could 'show those incurred to prove up that portion of the verdict awarded on her retainer fee contract action' as they are impossibly intertwined." The trial court then arrived at an apportionment of the fees "based upon the court's familiarity with this matter and with attorney fees customarily charged in this community in matters of this nature." It apportioned 20 percent of the total fees incurred by Hasso Najm to the prosecution of the breach of contract claim against Ferrey, awarding $68,641 in fees out of the total of $343,205 that Hasso Najm requested to be awarded.
Hasso Najm appeals from the trial court's order, arguing that the trial court erred in not awarding the total amount of $343,205.
II
DISCUSSION
A. Standard of Review
This appeal presents the issue of whether Hasso Najm is entitled to the attorney fees she seeks under the terms of the Agreement. Because our interpretation of the Agreement does not require us to consider extrinsic evidence, we apply a de novo standard of review. (Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 ["If the parties do not present extrinsic evidence to interpret the attorney fee provision of a contract, the appellate court determines de novo whether the contractual attorney fee provision entitles the prevailing party to attorney fees."].) To the extent that Hasso Najm is challenging the trial court's decision that 20 percent of Hasso Najm's fees were attributable to the prosecution of the breach of contract cause of action, we apply an abuse of discretion standard of review when considering the ruling making that apportionment. (See Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111; Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1083.)
B. Under the Agreement, Hasso Najm May Recover Only Those Fees Incurred to Prosecute the Breach of Contract Cause of Action in the Cross-complaint
Hasso Najm's motion for attorney fees was based on Civil Code section 1717, which provides for the recovery of attorney fees in an action on a contract based on a provision in a contract providing for the award of fees to one of the parties or the prevailing party. Accordingly, we look to the terms of the Agreement to determine whether Hasso Najm is entitled to recover all of the attorney fees that she incurred in defending against Ferrey's legal malpractice action and in pursuing her own cross-complaint. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 602 (Santisas) ["Whether attorney fees incurred in defending tort or other noncontract claims are recoverable... depends upon the terms of the contractual attorney fee provision."].)
Civil Code section 1717 states in relevant 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." (Id., subd. (a), italics added.) This provision "was enacted to establish mutuality of remedy where contractual provision makes recovery of attorney's fees available for only one party [citations], and to prevent oppressive use of one-sided attorney's fees provisions." (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128 (Reynolds).) We note that to some extent Hasso Najm's motion also could have been based on Code of Civil Procedure section 1021, which provides that "[e]xcept as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties...."
As we have discussed, the Agreement specifically provides for the recovery of attorney fees "[i]n the event it becomes necessary for [Hasso Najm] or [Ferrey] to institute legal action to recover any amount due pursuant to the terms of [the Agreement]." Thus the proper inquiry is whether all, or only a portion, of the litigation of Ferrey's legal malpractice complaint and Hasso Najm's cross-complaint constituted an action instituted to recover an amount due pursuant to the terms of the Agreement.
The fees incurred by Hasso Najm in connection with the portions of the litigation that do not fall under the terms of the Agreement's attorney fee provisions are not recoverable under Civil Code section 1717 unless they are "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, supra,25 Cal.3d at pp. 129-130.) "A litigant may not increase [her] 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." (Id. at p. 129.)
Hasso Najm's first argument is that Ferrey's legal malpractice complaint falls under the attorney fee provision of the Agreement because "[t]he action filed by Ferrey was intended to 'recover' amounts arising out of the Agreement purportedly as a result of Hasso[ Najm]'s failure to carry out the terms of [the] Agreement outlining what Hasso[ Najm]'s scope of duties to Ferrey were with reference to her family law case." (Italics added.) Hasso Najm argues that Ferrey's legal malpractice complaint arose out of the Agreement because "the claim asserted by Ferrey was that Hasso[ Najm]'s negligence occurred in the performance of the contract and was a direct breach of her contractual obligations." In support of her argument, Hasso Najm cites case law applying attorney fee provisions pertaining to litigation arising out of the applicable contract, and construing those provisions broadly to cover fees incurred in defending against tort claims. (See Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342 [contractual attorney fee provision, which referred to "any 'lawsuit or other legal proceeding' to which 'this Agreement gives rise' " was broad enough to encompass tort claims]; Santisas, supra,17 Cal.4th at p. 608 [attorney fee provision in real estate purchase agreement, which covered claims " 'arising out of the execution of th[e] agreement or the sale' " encompassed fees incurred in connection with tort claims].)
This argument is flawed because the attorney fee provision in the Agreement does not refer to litigation "arising out of" the Agreement. Instead, it applies only to actions "institute[d]" to "recover any amount due pursuant to the terms of [the Agreement]." Ferrey's legal malpractice action was not an action to recover amounts due pursuant to the terms of the Agreement. Indeed, Ferrey's legal malpractice complaint does not rely on the Agreement at all as a ground for recovery.
Hasso Najm's second argument is that, under the terms of the Agreement, she may recover the fees incurred in defending against Ferrey's malpractice action because "[b]efore [Hasso Najm] could hope to prevail on her collection action, she was required to and did defend against all of the tort allegations asserted against her by [Ferrey]." In support of her argument, Hasso Najm contends that this case is analogous to Wagner v. Benson (1980) 101 Cal.App.3d 27. In Wagner, a bank that prevailed in an action to collect on promissory notes was entitled, under a provision in the promissory notes awarding attorney fees "incurred in collecting the balance due on the notes," to recover its fees in the collection action and the fees it incurred in defending a cross-complaint alleging that the promissory notes were not enforceable because they were procured through fraud. (Id. at p. 37.) Wagner based its holding on the fact that "[d]efense of the charge of fraud was necessary in the [b]ank's efforts to collect the notes." (Ibid.)
Wagner is consistent with the principle, expressed in other cases, that "California law is settled that an obligation to pay attorney fees incurred in the enforcement of a contract 'includes attorneys' fees incurred in defending against a challenge to the underlying validity of the obligation.' " (Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 878 [collecting cases].)
We reject Hasso Najm's argument and find Wagner to be inapposite. Hasso Najm has not established that she was required to defend against Ferrey's legal malpractice action in order to prevail on her breach of contract claim against Ferrey. Unlike in Wagner, the legal malpractice action filed by Ferrey did not challenge the enforceability of the contract on which Hasso Najm based her breach of contract cause of action. Accordingly, we cannot agree with Hasso Najm that her defense of the legal malpractice action should be considered part of her action to "recover any amount due pursuant to the terms of [the Agreement]."
Having rejected Hasso Najm's arguments for the applicability of the Agreement's attorney fee provision to causes of action other than her breach of contract claim, we agree with the trial court that the only portion of the litigation between Ferrey and Hasso Najm that falls under the attorney fee provision is Hasso Najm's breach of contract cause of action in the cross-complaint. Specifically, that cause of action is the only portion of the litigation between the parties which was "institute[d]" to "recover any amount due pursuant to the terms of [the Agreement]." Neither Ferrey's legal malpractice complaint nor Hasso Najm's other causes of action in the cross-complaint seek to recover amounts due under the Agreement. The trial court thus properly apportioned the attorney fees to be awarded to include only those fees incurred in Hasso Najm's prosecution of her breach of contract cause of action.
Hasso Najm makes a passing, unsupported argument in which she appears to challenge the trial court's conclusion that it was possible to apportion the fees that she incurred in pursuing the breach of contract cause of action. She argues that "the issues in the underlying case cannot be segregated, nor could the billing, and it was error for the trial court to attempt to do so for purposes of apportioning the attorney fee award." In her undeveloped argument, Hasso Najm provides no basis for us to conclude that the trial court abused its discretion in apportioning the fees incurred by Hasso Najm and awarding $68,641 to her. The record establishes that the trial court properly relied on its "familiarity with this matter and with attorney fees customarily charged in this community in matters of this nature" in making its decision.
DISPOSITION
The order is affirmed.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.