Opinion
B314254
06-23-2023
BARRY FISCHER, Plaintiff and Appellant, v. MARTHA PONCE, Defendant and Respondent.
Behrouz Shafie & Associates and Behrouz Shafie; Barry Fischer, in pro. per., for Plaintiff and Appellant. Osuna & Dotson, Juan Francisco Dotson, and Travis M. Poteat for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19STCV22508, Rupert A. Byrdsong, Judge. Affirmed in part, reversed in part.
Behrouz Shafie & Associates and Behrouz Shafie; Barry Fischer, in pro. per., for Plaintiff and Appellant.
Osuna & Dotson, Juan Francisco Dotson, and Travis M. Poteat for Defendant and Respondent.
CHANEY, J.
In the proceedings below, the trial court sustained without leave to amend the demurrer filed by respondent Martha Ponce to the second amended complaint (SAC) brought by appellant Barry Fischer D.B.A C-Heaven Inc (Fischer). Fischer subsequently brought a "Motion to Set Aside Dismissal" under Code of Civil Procedure section 473, challenging the court's order sustaining the demurrer. The court denied the motion and sanctioned Fischer for bringing it. Fischer then brought a motion asking the court to reconsider its denial of his Motion to Set Aside Dismissal and the imposition of sanctions. The court granted the motion as to sanctions, but otherwise denied it. Ponce brought a motion for attorneys' fees, which the court granted.
Undesignated statutory references are to the Code of Civil Procedure.
On appeal, Fischer contends the court erred in sustaining Ponce's demurrer without leave to amend, in denying his Motion to Set Aside Dismissal, in partially denying his motion for reconsideration, and in granting Ponce's motion for attorneys' fees. Ponce disagrees and additionally contends Fischer lacks standing to prosecute this appeal.
We conclude that Fischer has standing to prosecute the appeal, and that the court did not err in sustaining Ponce's demurrer without leave to amend or in denying Fischer's motions. However, we conclude the court did err in granting Ponce's motion for attorneys' fees because there was no valid basis upon which to award fees. We therefore reverse the portion of the court's orders granting Ponce's motion for attorneys' fees and affirm the remainder.
FACTUAL AND PROCEDURAL BACKGROUND
A. June 2018 Letter Agreement
In June 2018, Fischer and Ponce signed a five-page document (the June 2018 Agreement), which purported to be a "binding Letter Agreement" sent to Ponce "[o]n behalf of Barry Fischer and or his designee, C-Heaven Inc. or C heaven Collective [sic] or its nominee" (defined collectively as "Tenant"). The subject of the agreement was real property located at both 3634 Fruitland Ave. and 3626 Fruitland Ave. in the city of Maywood.
The agreement explained that Fischer was in the process of obtaining a cannabis business license from Maywood and stated that he "expects to obtain approval of the application for the license for Cannabis within ninety (90) days." The agreement provided that "[i]f the Tenant should not receive the City of Maywood license within the ninety (90) days, then the Lease will terminate unless mutually extended in writing by the Parties." The agreement later reiterated that "if the Tenant is unable to obtain license/permit for cannabis business at this location within ninety (90) days, then this letter Agreement will be considered terminated unless mutually extended in writing by the Parties."
The signature block for "Tenant" stated "BARRY FISCHER, President [¶] ACCEPTED AND AGREED TO BY: [¶] BARRY FISCHER, President C HEAVEN INC. C HEAVEN COLLECTIVE OR HIS DESIGNEE TENANT." The signature block for Ponce simply said "MARTHA PONCE OWNER." Both Fischer and Ponce signed and dated on the blank line next to their respective signature blocks.
B. The Initial Complaints
In June 2019, Fischer filed a complaint for breach of contract against Ponce. The complaint defined "PLAINTIFF" as "BARRY FISCHER" and alleged he was "also doing business as C HEAVEN INC." The complaint alleged that, in June 2018, "plaintiff and defendant entered into a written agreement . . . to enter into a lease for [Ponce]'s premises located at 3626 and 3634 Fruitland Ave, City of Maywood, California," and that Ponce breached this agreement by refusing to lease the premises to Fischer. The June 2018 Agreement was attached as Exhibit A.
In November 2019, Fischer filed a first amended complaint (FAC), adding causes of action for breach of the implied covenant of good faith and fair dealing and fraud. The FAC repeated the allegations in the complaint, again alleging that "plaintiff and defendant entered into" the June 2018 Agreement, and added that in June 2019, Ponce had leased the "property" to another tenant without telling Fischer.
In January 2020, Ponce demurred to the FAC. After expressing confusion regarding the identity of the plaintiff, Ponce additionally argued the causes of action were vague and uncertain. In July 2020, the court sustained the demurrer with 20 days leave to amend.
C. The Operative Complaint
In August 2020, Fischer filed his second amended complaint. The SAC claimed to be brought by "Barry Fischer, an individual, and C HEAVEN INC.," which was a California corporation. This time, Fischer alleged that "Plaintiffs[] and defendant" had entered the June 2018 Agreement (attached as an exhibit to the SAC) and that, "[o]n or about November 2018, the parties extended the contract and extended it again to 2019."Fischer alleged that Ponce breached the June 2018 Agreement by failing to lease 3626 Fruitland Ave. and 3634 Fruitland Ave. to him. He alleged Ponce breached the covenant of good faith and fair dealing by delaying the execution of a lease agreement, preventing Fischer from obtaining a cannabis license. Finally, Fischer claimed Ponce was liable for fraud because she failed to disclose, in June 2019, that she had granted an exclusive right to rent "the property" to an existing tenant.
The SAC stated that "Plaintiff Barry Fischer, an individual, and C HEAVEN INC. [would be] collectively referred to as the Plaintiffs."
Fischer attached an unsigned copy of the "extension agreement" but alleged "the parties did in fact sign this agreement." The unsigned copy of the extension agreement was undated, contained a blank for the amount of consideration Fischer would pay for this extension, and stated that the parties "agree to extend the letter of intent for 60 days 60 December 1, 2018. [sic]"
Ponce again demurred. She argued Fischer had failed to plead an enforceable contract because, by its terms, the June 2018 Agreement terminated in September 2018, and Fischer's unsigned "extension agreement" did not extend the June 2018 Agreement (and purported to only extend it to December 1, 2018). Further, despite Fischer's claims that he had performed all conditions required of him under the June 2018 Agreement, he admitted that he had not obtained a cannabis permit within 90 days. Finally, Ponce argued Fischer's fraud cause of action lacked the requisite specificity. In September 2020, the court sustained the demurrer without leave to amend.
D. Fischer Attempts to "Set Aside" the "Dismissal"
In December 2020, Fischer filed a declaration "in support of set aside order of dismissal this case on 9/28/2020 [sic]." The declaration attached a "Lease Agreement Letter" that Fischer claimed both parties signed on July 19, 2019 (the July 2019 Lease Agreement Letter). The Lease Agreement Letter referred to 3634 Fruitland Ave., stated it was a "binding agreement to lease" the property, and set forth the terms and conditions of the lease. The lease term was set from August 1, 2019, to July 30, 2024, and the agreement provided Fischer had 180 days to obtain a cannabis license. If he failed to do so, the parties would "revisit" the agreement to consider an extension. The agreement contained signatures from both Fischer and Ponce.
In January 2021, Fischer filed a "Motion to Set Aside Dismissal." Fischer argued that his attorney made an "excusable error" of "failing to locate the signed lease [referencing the July 2019 Lease Agreement Letter] which would have established the Plaintiff's causes of action, and to bring the lease into evidence in a timely fashion ...." Fischer also claimed that Ponce's attorney had made material misrepresentations to the court at the previous demurrer hearing when the attorney stated that the parties had never signed a lease, that Fischer's application was barred by a local Maywood ordinance, and that Ponce did not delay Fischer and believed he was no longer interested in leasing the properties. Fischer therefore claimed entitlement to relief under section 473, subdivision (b). Accompanying this motion was a declaration from Fischer's attorney, attaching a Proposed Third Amended Complaint (Proposed TAC).
The Proposed TAC alleged the same causes of action as the SAC: breach of contract, breach of the covenant of good faith and fair dealing, and fraud. It accused Ponce of breaching the June 2018 Agreement by failing to sign a lease until July 2019, and of breaching the covenant of good faith and fair dealing by delaying the execution of a lease agreement, preventing him from obtaining a cannabis license. It also accused Ponce of intentionally failing to tell Fischer that she had agreed to rent "the property" to an existing tenant.
Ponce opposed the motion, arguing that section 473 was an improper vehicle with which to seek relief because Fischer was seeking to set aside a sustained demurrer and not a default or dismissal, and because Fischer appeared and opposed the demurrer. Ponce also argued that the Proposed TAC failed to remedy the defects in the SAC. Finally, Ponce requested sanctions against Fischer under section 128.7.
The hearing on Fischer's motion was set for February 10, 2021. His reply was therefore due on February 3, five court days prior. (§ 1005, subd. (b) ["all reply papers [shall be filed with the court and a copy served on each party] at least five court days before the hearing"].) Fischer did not file his reply until February 9, 2021. His attorney claimed the reply was late because he had a "negative reaction to the [COVID-19] vaccination and was out of the office from February 1, 2021 through February 9, 202[]1." The reply brief argued that relief was available under section 473, and discussed whether the requested relief was discretionary or mandatory.
In a February 17, 2021 minute order, the trial court stated it had "fully considered the moving papers, opposition, and oral argument"-but did not mention the late-filed reply-and denied Fischer's motion. The court also granted Ponce's request for sanctions.
E. Ponce Requests Attorneys' Fees and Fischer Moves for Reconsideration
In April 2021, Ponce filed a motion for attorneys' fees and post-offer costs against "Plaintiff." She claimed entitlement to attorneys' fees because: (1) Fischer failed to accept an offer she made in August 2020 under section 998; and (2) "[t]he lease Plaintiff sought to be enforced included the following attorney's fees clause: '30.6. Landlord Entitlement to Attorney's Fees and Costs. Landlord shall be entitled to recover from Tenant all of Landlord's expenses in exercising any of its rights under this Lease, including without limitation Landlord's reasonable attorney's fees.'" Fischer opposed the motion, arguing that the agreement Ponce cited as the basis for fees was "a proposed draft of a lease that was never signed by the parties."
Ponce attached an "Offer to Compromise to Plaintiff Fischer Pursuant to Code of Civil Procedure Section 998," in which Ponce offered to waive costs in exchange for a dismissal.
In May 2021, Fischer filed a motion to reconsider the court's February 2021 order denying his Motion to Set Aside Dismissal and granting monetary sanctions. He argued section 473 did not authorize sanctions when a motion thereunder was denied, and sanctions were improper under both sections 128.7 and 128.5. He also claimed the court was required to grant relief under section 473.
Fischer claimed he filed and served the motion on February 25, 2021, but that the filing was rejected because he failed to attach the reservation receipt. Fischer's attorney claimed he first discovered this rejection on May 4, 2021.
On July 7, 2021, the court granted Ponce's motion for attorneys' fees, awarding $19,468.85. The court partially granted Fischer's motion for reconsideration, vacating its previous order requiring Fischer to pay sanctions. The next day, the court entered a judgment of dismissal in favor of Ponce.
On July 23, "BARRY FISCHER D.B.A C-HEAVEN INC" filed a notice of appeal, appealing from: "1) Court's entry of Judgment on 7/9/2021 [¶] 2) Partial Denial of Motion for Reconsideration of The Court's Dismissal of Plaintiff's Second Amended Complaint on 7/9/2021. [¶] 3) Court's order denying Plaintiff's Motion to set Aside Dismissal 2/17/2021 [¶ and] 4) Court granting Defendant's Motion for attorneys fees ordering Plaintiff to pay Martha Ponce attorneys fees in the amount of $19,468.85 on 7/9/2021."
In her appellate brief, Ponce argues we should not countenance Fischer's appeal from "Court's entry of Judgment" because "Notice of entry of judgment is not a judgment; thus it is not appealable." But "[t]he notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2).) We construe Fischer's appeal from "Court's entry of Judgment on 7/9/2021" as an appeal from the judgment the court entered on July 8, 2021.
F. Ponce Moves to Dismiss and Requests Judicial Notice
In September 2022, Ponce moved to dismiss the appeal, arguing that the sole appellant, Fischer, lacked standing to prosecute the appeal because the June 2018 Agreement was between Ponce and the corporation C-Heaven Inc., not Fischer. Fischer opposed the request, arguing that he was a party to the June 2018 Agreement, and that he was an aggrieved party because attorneys' fees had been assessed against him as an individual. In reply, Ponce countered that Fischer failed to demonstrate the attorneys' fees award was entered against him, that Fischer was not permitted to use C-Heaven Inc. as a DBA, and that it was C-Heaven Inc. and not Fischer who was a party to the June 2018 Agreement.
Also in September 2022, Ponce requested we judicially notice the "State Bar of California Member Profile for Plaintiff and Appellant Barry Fischer." The profile lists incidents of discipline in December 2016, March 2018, March 2019, and May 2020. Fischer opposed the request, contending the profile was irrelevant. Ponce disagreed, arguing the profile "relates to the circumstances that existed when the trial court had the option whether to consider" Fischer's late-filed reply to Ponce's opposition to Fischer's motion to set aside dismissal.
The appellate court deferred the ruling on both the motion to dismiss and the request for judicial notice until the matter was fully briefed and assigned to a panel.
DISCUSSION
A. We Deny Ponce's Motions
1. Motion to Dismiss
Ponce argues that Fischer lacks standing to prosecute this appeal because he is not a party to the June 2018 Agreement, and because the attorneys' fees awarded to Ponce were not awarded against Fischer. We disagree.
(a) The June 2018 Agreement Is Ambiguous
In ruling on a demurrer, "the allegations of the complaint must be accepted as true" except where the "allegations [are] contradicted by the exhibits." (Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.) Further, the allegations "are construed liberally in favor of the pleader." (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.)
In the first and second iterations of the complaint, Fischer alleged that "plaintiff and defendant" entered the June 2018 Agreement, defining "plaintiff" as "BARRY FISCHER." In the operative complaint, he alleged that it was "Plaintiffs[] and defendant" who entered the agreement, and had earlier stated that "Plaintiff Barry Fischer, an individual, and C HEAVEN INC. [would be] collectively referred to as the Plaintiffs." In other words, Fischer has consistently alleged that he, as an individual, was the party or one of the parties to the June 2018 Agreement.
The June 2018 Agreement claims to be a binding letter agreement sent on behalf of "Barry Fischer and or his designee, C-Heaven Inc. or C heaven Collective [sic] or its nominee." It is signed by "BARRY FISCHER, President" on behalf of "BARRY FISCHER, President C HEAVEN INC. C HEAVEN COLLECTIVE OR HIS DESIGNEE TENANT." It is thus unclear whether the contracting party is Fischer or C-Heaven Inc. or their "nominee" or "designee." Given our mandate to liberally construe the SAC's allegations, we cannot conclude that the pleadings categorically demonstrated that Fischer was not a party to the June 2018 Agreement.
We decline to address Ponce's contention that C-Heaven Inc. is an invalid fictitious business name under Business and Professions Code section 17900. Ponce cites no authority for the proposition that improper use of a fictitious business name deprives a party of standing to appeal.
(b) Attorneys' Fees Were Awarded Against Fischer
In Ponce's motion for attorneys' fees, she argued that "defendant is entitled to recover from Plaintiff the reasonable attorney fees incurred in defending against all of Plaintiff's claims." The caption page of the motion identifies "PLAINTIFF" as "BARRY FISCHER D.B.A C-HEAVEN INC." Moreover, the motion claimed entitlement to fees under section 998 and referenced a section 998 offer made to "Plaintiff Fischer." The court granted Ponce's motion. We therefore reject Ponce's assertion that no attorneys' fees were awarded against Fischer as an individual, and Fischer certainly has standing to appeal an order awarding fees against him.
2. Request for Judicial Notice
Ponce asks us to judicially notice Fischer's California State Bar profile. We decline to do so because the profile has no bearing on any issue decided herein. While Ponce argues the profile relates to "circumstances relevant to whether the trial court abused its discretion in not considering Fischer's late Reply," she suggests no logical connection-nor do we see one- between discipline apparently instituted by the State Bar against Fischer in December 2016, March 2018, March 2019, and May 2020, and the circumstances surrounding the failure of Fischer's counsel to file a timely reply in February 2021.
B. The Court Did Not Err in Sustaining the Demurrer Without Leave to Amend
"[A]n' "order sustaining a demurrer . . . is generally reviewable on appeal from the final judgment in the action." '" (Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1132.) "Appellate review of an order sustaining a demurrer is de novo. [Citation.] 'In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] . . ." Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.'" (Ferrick v. Santa Clara University, supra, 231 Cal.App.4th at p. 1341.)
Fischer contends the court erred in sustaining the demurrer to the SAC without leave to amend because Ponce's counsel allegedly misled the court by claiming that the parties never signed a lease, and by opining that it would have been impossible for Fischer to obtain a cannabis license. Fischer claims the true facts are that there was a signed lease between the parties-pointing to the July 2019 Lease Agreement Letter- and that he could have obtained a cannabis license. We discern no error.
1. The Court Did Not Err in Sustaining the Demurrer
For the purposes of our review, it is of no import whether the trial court relied on any statement or argument about the non-existence of a lease between the parties, or Ponce's opinion that Fischer could not have obtained a cannabis license. "We review the ruling sustaining . . . demurrers de novo, exercising independent judgment as to whether the complaint states a cause of action as a matter of law." (Sipple v. City of Hayward (2014) 225 Cal.App.4th 349, 355.) We are "unconcerned with the trial court's reasons for sustaining . . . demurrers, as it is the ruling, not the rationale, that is reviewable." (Ibid.)
Moreover, in sustaining Ponce's demurrer, the trial court could not have erred in failing to consider the July 2019 Lease Agreement Letter because it was not included in the SAC.
The SAC alleged Ponce breached the June 2018 Agreement by failing to lease 3626 Fruitland and 3634 Fruitland to Fischer. He alleged Ponce breached the covenant of good faith and fair dealing by delaying the execution of a lease agreement, preventing Fischer from obtaining a cannabis license. But the June 2018 Agreement does not require Ponce to lease any property to Fischer until after Fischer obtained a cannabis license. The agreement expressly states that "if the Tenant is unable to obtain license/permit for cannabis business at this location within ninety (90) days, then this letter Agreement will be considered terminated unless mutually extended in writing by the Parties." Not only did Fischer fail to allege he had obtained the cannabis license, he also affirmatively alleged that he could not do so. Ponce therefore had no duty under the June 2018 Agreement to enter a lease with Fischer, and her failure to do so cannot be a breach of contract or a breach of the covenant of good faith and fair dealing.
The SAC also contained a fraud cause of action, alleging that, in June 2019, Ponce intentionally failed to tell Fischer that she had agreed to rent the property to an existing tenant. But "[a] fraud claim based upon the suppression or concealment of a material fact must involve a defendant who had a legal duty to disclose the fact." (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1186.) The SAC sets forth no facts that would indicate Ponce had such a duty. Therefore, Fischer's fraud cause of action necessarily fails.
2. The Court Did Not Err in Denying Leave to Amend
To the extent Fischer argues the court erred by denying him leave to amend because it believed Ponce's supposed misrepresentations, we reject that contention. Neither the existence of the July 2019 Lease Agreement Letter nor Fischer's claim that he could have obtained a cannabis license has any bearing on the causes of action stated in his Proposed TAC. In fact, the July 2019 Lease Agreement Letter is not even pled in the Proposed TAC-though Fischer alleges that Ponce "refused to sign a lease until July 9, 2019" (presumably referencing Ponce's signing of the July 2019 Lease Agreement Letter), Fischer neither attaches the July 2019 Lease Agreement Letter to the Proposed TAC nor alleges therein that Ponce breached it.
Additionally, the July 2019 Lease Agreement Letter provided two conflicting dates for its commencement: "upon mutual execution of the Lease" and "upon the execution of this Agreement, upon receipt of the City of Maywood Cannabis license approval." Given the undisputed fact that Fischer never received a cannabis license from the City of Maywood, it is unclear if Fischer would even be able to allege a breach.
Fischer's Proposed TAC contains the same three causes of action as the SAC: breach of contract, breach of the covenant of good faith and fair dealing, and fraud. It accuses Ponce of breaching the June 2018 Agreement by failing to sign a lease until July 2019, and breaching the covenant of good faith and fair dealing by delaying the execution of a lease agreement, preventing him from obtaining a cannabis license. These contract causes of action thus suffer from the same defect as those stated in the SAC-Fischer did not and cannot allege that he obtained a cannabis license, and therefore Ponce had no duty under the June 2018 Agreement to lease any property to him. Similarly, the Proposed TAC's fraud cause of action-again accusing Ponce of intentionally failing to tell Fischer that she had agreed to rent the property to an existing tenant-still fails because Fischer again pled no facts to establish that Ponce had a duty to disclose this information to him.
When a demurrer "is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Fischer has not met this burden. We therefore conclude the court did not err in sustaining Ponce's demurrer without leave to amend.
C. The Court Did Not Err in Denying Fischer's Motion to Set Aside Dismissal
Section 473, subdivision (b), provides that "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." (Ibid.)
In his "Motion to Set Aside Dismissal," Fischer argued the court should set aside its order sustaining Ponce's demurrer without leave to amend because his attorney erred by (1) "failing to locate" the July 2019 Lease Agreement Letter "which would have established the Plaintiff's causes of action" and (2) failing to correct misrepresentations supposedly made by Ponce's lawyer, that there was no signed lease agreement between the parties, that it was impossible for Fischer to obtain a cannabis license, and that Ponce did not delay Fischer and believed he was no longer interested in a lease. He requested relief under both the discretionary and mandatory provisions of section 473. The court denied the motion.
On appeal, Fischer argues the court erred because: (1) the court's order sustaining the demurrer was based on misrepresentations made by Ponce's counsel; and (2) the court abused its discretion in not considering his late-filed reply. We find no error.
1. No Relief Warranted Under Section 473
Fischer argues he was entitled to relief because the court's order sustaining the demurrer was based on alleged misrepresentations from Ponce's counsel that the parties had never signed a lease agreement, that it was impossible for Fischer to obtain a cannabis license, and that Ponce did not delay Fischer and believed Fischer was no longer interested in a lease. But, as discussed above, neither the SAC nor the Proposed TAC alleged that Ponce breached the July 2019 Lease Agreement Letter. As such, its existence would not have changed the outcome of Ponce's demurrer. Similarly, whether Fischer could have obtained a cannabis license or whether Ponce delayed in signing a lease agreement or knew that Fischer was intensely interested in signing a lease agreement had no bearing on whether Ponce breached the June 2018 Agreement or committed fraud-as discussed above, Ponce had no duty to enter into a lease agreement with Fischer until Fischer had obtained a cannabis license, and had no duty to disclose to Fischer whether she was leasing her properties to other parties. Because the order sustaining Ponce's demurrer was not obtained "through" the neglect of Fischer's counsel, and was not "caused" by it, Fischer was not entitled to relief under section 473. (§ 473, subd. (b).)
For similar reasons, we reject Fischer's argument that he was entitled to relief under the court's equitable power to set aside a judgment in the face of extrinsic mistake or fraud. Preliminarily, Fischer forfeited this argument by failing to raise it below. (See Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 769 [" 'Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider' "].) In any case, even if the court had believed the alleged misrepresentations supposedly made by Ponce's counsel, the court's order sustaining the demurrer was not caused by this alleged mistake or fraud. Therefore, Fischer was not entitled to relief under the court's inherent power.
2. The Late-Filed Reply
Fischer's counsel claimed he could not timely file a reply brief because he had a "negative reaction to the [COVID-19] vaccination and was out of the office from February 1, 2021 through February 9, 202[]1." "A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission." (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) In the minute order denying Fischer's motion, the court indicated it did not consider his late-filed reply by omitting it among the pleadings the court stated it had considered. The court did not specify its reasoning for disregarding the reply in its minute order, and Fischer failed to provide a reporter's transcript of the proceedings. We must therefore presume that, at this hearing, the court articulated a reasoned determination as to why it was rejecting the claim of Fischer's counsel that a negative reaction to the COVID-19 vaccine rendered him unable to work for nine days. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574 ["It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record"]; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 ["A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness"].)
Moreover, even had the court erred by refusing to consider Fischer's late-filed reply, we would find such error harmless. The late-filed reply consisted of arguments on why a party whose complaint had been successfully demurred to could request relief under section 473, and discussions on whether such relief was discretionary or mandatory. These arguments would have had no effect on the determination that Fischer did not meet the requirements for relief under section 473 in the first place.
D. The Court Did Not Err in Partially Denying Fischer's Motion for Reconsideration
Fischer contends the court erred in denying his motion for reconsideration because "the new evidence presented was that the parties did in fact have an enforceable signed lease dated 7/9/2019, that would support a cause of action for Breach of Contract." We reject this argument for two reasons.
First, the motion Fischer was asking the court to reconsider was his Motion to Set Aside Dismissal. The July 2019 Lease Agreement Letter was not "new evidence" discovered after the court denied his motion to set aside-the Lease Agreement Letter was included in the original motion itself. Second, the July 2019 Lease Agreement Letter would not support Fischer's breach of contract cause of action for the simple reason that even in his Proposed TAC, he never alleged Ponce breached this agreement.
E. The Court Erred in Awarding Attorneys' Fees
"It is settled that attorney fees are not available to a prevailing party unless provided for by statute or contract." (Otis Elevator Co. v. Toda Construction (1994) 27 Cal.App.4th 559, 564.) "We review a determination of the legal basis for an award of attorney fees de novo as a question of law." (Pueblo Radiology Medical Group, Inc. v. Gerlach (2008) 163 Cal.App.4th 826, 828.)
Here, Ponce claimed entitlement to attorneys' fees because Fischer rejected a section 998 offer. "Section 998 is a costshifting statute that allows for the recovery of costs, including attorney fees as costs if there is a contractual or other statutory basis for them." (Ford Motor Credit Co. v. Hunsberger (2008) 163 Cal.App.4th 1526, 1532.) Ponce argued that such a basis existed because "[t]he lease Plaintiff sought to be enforced" included an attorneys' fees clause.
On appeal, Fischer contends the court erred in granting Ponce's motion because the lease containing the attorneys' fees clause was merely proposed but was never signed or accepted. Ponce counters that the award was proper because "Fischer tried to enforce via SAC a lease which contained [an] attorney's fee clause," referencing the proposed lease. We agree with Fischer that the proposed unsigned lease provides no basis on which to award attorneys' fees.
The operative complaint references three agreements between the parties: the June 2018 Agreement, an extension to the June 2018 Agreement, and a proposed lease. While neither the June 2018 Agreement nor the purported extension thereto contains an attorneys' fees clause, the proposed lease does. But the SAC does not try to enforce the proposed lease. Instead, the SAC alleges that Ponce breached the June 2018 Agreement "by refusing to execute the lease and lease the premises to the Plaintiffs[]." The SAC contains no allegation that Ponce breached the proposed lease. Because it was improper to award attorneys' fees based on the proposed lease, and Ponce proffered no other basis for doing so, we hold the trial court erred in granting Ponce's motion for attorneys' fees.
DISPOSITION
The portion of the trial court's July 7, 2021 order granting Ponce's motion for attorneys' fees is reversed; the trial court is directed to enter an order denying that motion. The remainder of the court's orders is affirmed. In the interests of justice, each party shall bear their own costs on appeal.
We concur: BENDIX, Acting P. J., WEINGART, J.