Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BS085069, Victor H. Person, Judge.
Meyers, Nave, Riback, Silver & Wilson, Deborah J. Fox and Philip A. Seymour for Defendants and Appellants.
Pillsbury Winthrop Shaw Pittman, Scott A. Sommer, Todd W. Smith, Stacey C. Wright and Amy E. Gaylord for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendants, the City of Palmdale (the city) and the City Council of the City of Palmdale (the city council), appeal from a January 23, 2007 order denying their motion for an award of attorney fees against plaintiff, J.P. Eliopulos Enterprises, Inc. The trial court held plaintiff’s inverse condemnation claim was not within the ambit of the relevant attorney fee provision. We agree and affirm the order.
II. BACKGROUND
We briefly state the relevant facts. The underling facts are more extensively discussed in our prior unpublished opinions in this matter. (Eliopulos v. City of Palmdale (March 25, 2008, B198084) [nonpub. opn.]; J.P. Eliopulos Enterprises, Inc. v. City of Palmdale (Dec. 24, 2007, B193750) [nonpub. opn.].) Section 19 of a development agreement between the city and a developer 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.” Plaintiff is a successor in interest to the developer. Plaintiff acquired a portion of the developer’s property and then sought to develop an apartment complex on the site. The city planning commission approved the plan, but the city council reversed that decision.
Plaintiff brought an inverse condemnation claim against defendants. Plaintiff sought just compensation. On July 18, 2006, on defendants’ motion, the trial court granted a summary judgment against plaintiff. On plaintiff’s appeal, we affirmed the judgment. (J.P. Eliopulos Enterprises, Inc. v. City of Palmdale (Dec. 24, 2007, B193750 [nonpub. opn.].) Defendants filed an attorney fee motion on August 15, 2006. Defendants argued plaintiff’s inverse condemnation action was on the contract—the development agreement—and alleged a breach of that agreement. As noted above, the trial court denied the motion. This appeal followed.
III. DISCUSSION
Defendants contend plaintiff’s inverse condemnation claim was clearly brought to enforce the terms of the development agreement, and as such was within the scope of the attorney fee provision. Defendants argue the language, “any action brought . . . to enforce the terms and conditions of this Agreement” should be construed to extend to plaintiff’s inverse condemnation action. The parties do not rely on any extrinsic evidence. Therefore, our review is de novo. (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1161; Gil v. Mansano (2004) 121 Cal.App.4th 739, 743; Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 705; Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 880.)
Attorney 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. Alperson (1979) 25 Cal.3d 124, 127.) Here, defendants rely on a contractual attorney fee provision. Whether the attorney fee clause of the development agreement extends to plaintiff’s inverse condemnation claim turns on the contract language, on whether the parties agreed to allow attorney fees for such claims. (Santisas v. Goodin, supra, 17 Cal.4th at p. 608; Gil v. Mansano, supra, 121 Cal.App.4th at pp. 742-745; Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 708.) To resolve this question, we apply ordinary rules of contract interpretation. (Santisas v. Goodin, supra, 17 Cal.4th at p. 608; Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 709.) According to our Supreme Court, those rules are as follows: “‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. . . . Such intent is to be inferred, if possible, solely from the written provisions of the contract. . . . The ‘‘clear and explicit’’ meaning of these provisions, interpreted in their ‘‘ordinary and popular sense,’’ unless ‘‘used by the parties in a technical sense or a special meaning is given to them by usage’’ . . . controls judicial interpretation. . . . Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. (See, e.g., Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807; Crane v. State Farm Fire & Cas. Co. (1971) 5 Cal.3d 112, 115.)’ (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-822.)” (Santisas v. Goodin, supra, 17 Cal.4th at p. 608.)
The development agreement authorized attorney fees in an action “brought . . . to enforce the terms and conditions” of the contract. An inverse condemnation claim does not enforce a contract. (See Gil v. Mansano, supra, 121 Cal.App.4th at p. 743; Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 709.) An inverse condemnation action allows a landowner to recover compensation for a public entity taking or damaging of his or her property when no condemnation proceedings have been instituted. (U.S. v. Clarke (1980) 445 U.S. 253, 257; Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 376-377; Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 867.) The United States Supreme Court has explained: “The phrase ‘inverse condemnation’ appears to be one that was coined simply as a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted. As defined by one land use planning expert, ‘[i]nverse condemnation is “a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.”’ D. Hagman, Urban Planning and Land Development Control Law 328 (1971) (emphasis added).” (U.S. v. Clarke, supra, 445 U.S. at p. 257.)
Plaintiff’s inverse condemnation claim was not brought to enforce the terms and conditions of the development agreement. Plaintiff did not by that cause of action seek an order allowing it to build an apartment complex on its land in accordance with its allegedly vested contractual right to do so. Rather, plaintiff by its inverse condemnation claim sought compensation for defendants’ alleged taking of its property by refusing to allow it to build an apartment complex on the land. Because the inverse condemnation cause of action did not seek to enforce the development agreement, no contractual attorney fees were recoverable. (Cf., e.g., Casella v. SouthWest Dealer Services, Inc., supra, 157 Cal.App.4th at pp. 1160-1162; Gil v. Mansano, supra, 121 Cal.App.4th at pp. 742-745; Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 709.)
IV. DISPOSITION
The January 23, 2007 order is affirmed. Plaintiff, J.P. Eliopulos Enterprises, Inc., is to recover its costs on appeal from defendants, the City of Palmdale and the City Council of the City of Palmdale.
We concur, MOSK, J., KRIEGLER, J.