Opinion
E067370
06-27-2018
KINKLE, RODIGER AND SPRIGGS, Plaintiff and Appellant, v. SPENCER GRAFFAM et al., Defendants and Respondents.
Kinkle, Rodiger and Spriggs and Michael F. Moon for Plaintiff and Appellant. Reid & Hellyer and Michael G. Kerbs for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1419075) OPINION APPEAL from the Superior Court of San Bernardino County. Donna G. Garza, Judge. Affirmed. Kinkle, Rodiger and Spriggs and Michael F. Moon for Plaintiff and Appellant. Reid & Hellyer and Michael G. Kerbs for Defendants and Respondents.
Plaintiff and appellant Kinkle, Rodiger and Spriggs (KRS) represented defendants and respondents Spencer Graffam (Graffam) and Jocer Enterprises, Inc. dba Castlebrook Barns (Jocer; collectively, Castlebrook) in multiple litigation cases. A dispute between the parties arose when KRS sent an invoice to Castlebrook alleging the nonpayment of attorney's fees. When Castlebrook failed to pay the invoice, KRS filed its lawsuit. After Castlebrook brought a successful motion for summary judgment, Castlebrook was awarded attorney's fees on their motion. KRS appeals the award of attorney's fees.
FACTUAL AND PROCEDURAL HISTORY
A. SECOND AMENDED COMPLAINT
On May 14, 2015, KRS filed its second amended complaint (SAC) against Castlebrook. KRS alleged Spencer Graffam was the sole owner of Jocer. In March 2008, Castlebrook contacted KRS seeking counsel in a lawsuit entitled Laura Attig v. Spencer Graffam et al., San Bernardino Superior Court case No. SCVSS135581 (Attig). KRS provided a written retainer agreement (Retainer) to Castlebrook but it was never signed by Graffam or Jocer.
KRS successfully defended Castlebrook in the Attig matter. Based on that success, Castlebrook sought to have KRS defend them in another case. KRS claimed in the SAC that "Defendants requested that the same terms and conditions regarding fees and services apply as originally set forth in the written retainer agreement. (Exhibit A)." The Retainer included that the hourly attorney's fee would be $225 and, if there was a dispute, the prevailing party would be entitled to attorney's fees. KRS also alleged that since "there was an ongoing continuum of litigation" Castlebrook agreed that additional retainer agreements would not be necessary and they agreed to be bound by the Retainer for any further litigation.
Thereafter, KRS represented Castlebrook in several additional cases. In each case, KRS alleged Castlebrook requested that the firm continue to represent them under the Retainer and agreed to be subject to the fees and costs contained in the Retainer. Based on the work completed in two of these cases, KRS alleged Castlebrook owed $29,610.42 in attorney's fees and costs to KRS. Castlebrook refused to pay the amount.
The first cause of action in the SAC was for breach of oral contract. KRS alleged Castlebrook "breached each oral agreement for all litigated matters following the Attig matter." There was no modification to the Retainer, which would allow them to refuse to pay for attorney's fees and costs. Castlebrook confirmed continuation of representation on the terms set forth in the Retainer by paying some of the attorney's fees.
The second cause of action was for common counts for services rendered. KRS alleged it had rendered services to Castlebrook and was owed money for attorney's fees and costs pursuant to the Retainer. KRS had expended funds at the special request of Castlebrook and had not been paid back. The third cause of action was for common count for an open book account. KRS alleged it had kept an open account for Castlebrook expending attorney's fees and costs on behalf of Castlebrook. Castlebrook owed $29,611.05. The fourth cause of action was for common counts alleging that KRS had performed services and had not been paid back for its services.
KRS sought damages in the amount of $29,611.05 plus interest. KRS attached the Retainer as exhibit A. The two-page document was not signed by Graffam or Jocer, but was purportedly signed by Graffam's wife, Jodi Graffam (Jodi). According to the terms of the Retainer, Castlebrook was to pay a retainer fee in the amount of $7,500. Any additional fees incurred would be paid by Castlebrook. The Retainer defined costs. It also included the following language: "Any unpaid balance on Clients' account thirty (30) days following rendition of attorney's billing shall bear interest at the rate of ten (10%) percent per annum and a successful party in any collection action shall be entitled to reasonable attorney's fees."
B. MOTION FOR SUMMARY JUDGMENT AND RESPONSES
1. MOTION FOR SUMMARY JUDGMENT
On February 16, 2016, Castlebrook filed a motion for summary judgment (Motion). Castlebrook alleged the undisputed facts demonstrate that no balance of attorney's fees was owed to KRS. Castlebrook alleged Bruce Disenhouse, a partner at KRS, had negotiated a fee agreement with them. The payments made by Castlebrook pursuant to this oral agreement zeroed out any balance owed by Castlebrook to KRS. As such, no fees were due and owing to KRS. Moreover, Graffam never signed the Retainer and could not be held liable under its terms. Graffam, as an individual, never had a fee agreement with KRS and could not be found liable for the attorney's fees.
Castlebrook relied upon Business and Professions Code section 6148 that any fee contract between an attorney and client must be in writing if the costs incurred will exceed $1,000. Failure to get the agreement in writing voided any fee agreement between KRS and Graffam. Graffam never agreed, either in writing or orally, to be responsible for the fees incurred by Jocer. Further, Castlebrook was not responsible for any attorney's fees claimed to be owed to KRS because the final payments of attorney's fees were made in 2010 and 2011.
Castlebrook insisted there was no cause of action on any oral contract to extend the Retainer. First, there was no evidence that Castlebrook entered into the Retainer as it was not signed. Additionally, there was no evidence that Castlebrook agreed to extend the Retainer terms to any future litigation beyond the Attig matter. Each litigation was subject to a different fee agreement. Disenhouse could corroborate this evidence. For each litigation, a different agreement was reached; some were flat fee cases and others were to be billed hourly. Moreover, Disenhouse had authority to modify the fee agreements for each case. Disenhouse was a 50 percent shareholder in KRS and was identified as a senior partner. Castlebrook reasonably believed Disenhouse had the authority to enter into fee agreements.
Additionally, KRS ratified Castlebrook's agreements with Disenhouse. Disenhouse reached an agreement with Castlebrook that KRS would retain the award on one of the litigation cases as payment in full of all of the attorney's fees owed by Castlebrook to KRS. KRS was aware of the fee agreement with Disenhouse and accepted payment on this basis from Castlebrook. Castlebrook provided bank invoices showing several deposits of $5,000 into KRS's bank account.
KRS sent an invoice to Castlebrook in March 2011 that showed no attorney's fees were owed. It listed "Write-Down; Per BED and SBS" in the amount of $4,252.50, leaving the balance as zero. A summary invoice dated March 1, 2012, showed no fees were owed and another write-down by "BED" in the amount of $235.62. An invoice from August 2012 showed a balance of $3,000 was owed. It was a flat fee owed on a case entitled Frederick v. Jocer Enterprises.
Relevant here, Castlebrook presented the following undisputed material facts Nos. 50 through 56 and 68 through 78: As of September 15, 2015, Castlebrook had not received an invoice for payment of fees for 14 months. The KRS invoices did not reflect that fees were being charged according to the Attig agreement and some of the fees were being reduced. In July 2013, Castlebrook and Disenhouse entered into an agreement that the awards in two of Castlebrook's litigation cases would go directly to KRS to pay fees. KRS accepted these awards totaling at least $60,000. Absent the agreement between Disenhouse and Castlebrook, KRS would not be entitled to payment of the awards in those litigation cases.
Disenhouse believed it appropriate to reach these agreements with Castlebrook in order to have the fees paid, and Graffam would not have entered into these agreements unless "the issue of the outstanding fees with KRS was also resolved. Disenhouse believed he had authority to enter into these agreements. Disenhouse's partner at the law firm knew some fees were being written off and was aware of the agreements between Castlebrook and Disenhouse. While employed by KRS, Disenhouse was never told that Castlebrook still owed fees.
Castlebrook also attached a declaration from Graffam. In 2008, he met Disenhouse and hired him to represent him in the Attig matter. Graffam received a copy of the Retainer but did not agree with the terms. He made changes but never signed the Retainer. The first time he saw the Retainer, purportedly signed by Jodi, was when it was attached to the SAC. Graffam individually and as president of Jocer never agreed to be bound by the Retainer either in the Attig case or any subsequent case. He negotiated each case handled by Disenhouse. Jodi did not have authority to enter into agreements for Jocer. Graffam never agreed to be personally responsible for fees incurred by Jocer Enterprises, Inc. Castlebrook entered into a settlement with KRS in 2013, through Disenhouse, which provided that an award in one of the cases would go directly to KRS and the balance with KRS would be zero. He received an invoice in July 2013, which showed he paid the fees in full. In September 2014 he received a bill from KRS for $29,611.05. Jodi submitted a declaration that she did not sign the Retainer.
Disenhouse's deposition was attached to the Motion. He began working with KRS in 1981. He became an equity partner in 1997. In 2012, he was named the vice president. In 2008, he started representing Castlebrook. He left KRS in January 2014 and started his own law firm.
He reviewed the Retainer, which was attached as exhibit A to the SAC; he had never seen it before. The signature for Jodi, the only one who signed the Retainer, did not appear to belong to her. To his knowledge, there was no written agreement between KRS and Castlebrook in relation to the Attig matter. He did not recall a retainer being paid by Castlebrook for the Attig matter.
Disenhouse denied there was ever any discussion that representation after the Attig matter would be based on the same terms as in the Retainer. Each case that Disenhouse handled for Castlebrook was based on different agreements. While at KRS, Disenhouse had authority to set the billing rates he charged for his private clients. He would just inform the other partners of the negotiated rate. He believed he had the authority to make adjustments to the bills for private clients.
Castlebrook agreed with Disenhouse to give KRS the settlement on a case to pay for all outstanding attorney's fees. While Disenhouse was still employed by KRS, he did on occasion agree to reduce Castlebrook's fees or write-down owed amounts. In March 2012, Castlebrook sent an email to Disenhouse that it was still receiving bills from KRS. Disenhouse assured Castlebrook that no money was owed.
2. OPPOSITION TO THE MOTION
KRS filed opposition to the Motion. It insisted that Castlebrook received the benefit of the services provided and never asked KRS to stop representing them. A triable issue of material fact existed regarding the value of services provided by KRS.
KRS alleged Graffam was personally liable as he had sole control over Jocer. There was a triable issue of fact whether Graffam dominated and controlled Jocer. It was also up to the trier of fact to determine the extent of the oral contracts for services between KRS and Castlebrook. It was a question of fact whether there was an agreement to satisfy the debts. Further, Castlebrook was aware as early as 2011 that Disenhouse had no authority to write-down the bills. KRS never ratified the agreement of Disenhouse; it continued to send invoices to Castlebrook. Disenhouse's partner had to approve all fees and agreements. Castlebrook was aware of the requirement that both partners needed to ratify any agreement regarding fees as Castlebrook had been involved in a similar situation with another law firm that had two partners.
KRS objected to the declarations of Jodi and Graffam. The accounting supervisor for KRS, Celeste Wardin, submitted a declaration that Disenhouse did not have the authority to set billing rates or make adjustments to client bills.
3. REPLY TO THE OPPOSITION TO THE MOTION
Castlebrook filed a reply to the opposition to the Motion. Castlebrook insisted the motion showed that no written agreement existed between KRS and Castlebrook as required by Business and Professions Code section 6148. Graffam was not individually liable for any of the debts that may be owed to KRS. Castlebrook pointed out that the SAC alleged that Castlebrook entered into the Retainer and agreed to be bound thereby. Castlebrook interpreted the argument in the opposition to be that any settlement between Disenhouse and Castlebrook was not enforceable because it was not in writing as required by Business and Professions Code section 6148. Castlebrook argued that pursuant to Business and Professions Code section 6148, subdivision (d)(4), an agreement between a corporation and an attorney need not be in writing. The agreement to zero out Castlebrook's fees was valid without a written agreement. Further, KRS had failed to establish that Graffam had any personal liability. KRS could not argue an "alter ego" theory that Graffam had sole dominion and control over Jocer as it was not plead in the SAC.
Castlebrook criticized KRS for changing its theory in the opposition. Castlebrook alleged that in the SAC, KRS stated there were several oral agreements to follow the Retainer in future cases. In the opposition, it stated there were several oral agreements to pay fees, which were unrelated to the Retainer. KRS could not argue the oral contracts it sought to enforce were unrelated to the Retainer as it had pleaded as such in the SAC.
C. HEARING ON THE MOTION
The Motion was heard on June 30, 2016. The trial court stated its tentative ruling was to grant the Motion. It concluded, "What I do find is there is not a triable issue in that the plaintiffs did not have a written agreement to bind the defendant." The trial court relied upon facts 50 through 56, facts 68 through 78, and Graffam's declaration. KRS argued the issue of whether there were oral contracts, consideration and satisfaction were all questions for the jury.
The trial court further found, "[F]or a breach of contract to lie—that's the cause of action, according to Business and Professions Codes, there has to be a written agreement for legal services. I don't show anything that binds Graffam in this matter. . . . I don't think there's any disputable facts that there was no contract. There is nothing that binds Graffam for the legal services in this matter." The trial court found that even if there was a written agreement, Disenhouse made an alternative agreement. There was no showing that Castlebrook owed anything to KRS. The order of judgment was signed on July 13, 2016. It provided, "Defendants Graffam and Jocer are awarded attorneys' fees upon filing of a post-judgment motion for attorneys' fees and costs of suit incurred herein." The notice of entry of order granting motion for summary judgment was filed on July 20, 2016.
D. CASTLEBROOK'S MOTION FOR ATTORNEY'S FEES
On July 21, 2016, Castlebrook moved for its attorney's fees in the amount of $42,883 pursuant to Civil Code section 1717. Castlebrook alleged, "The motion is made pursuant to the provisions of Civil Code section 1717 on the basis that defendants are the prevailing party in an action brought by plaintiff KRS pursuant to which plaintiff KRS alleged that defendants were subject to liability based upon the existence of a written contract, which contained an attorneys' fees provision."
All further statutory references are to the Civil Code unless otherwise indicated.
Castlebrook provided that KRS attached the Retainer to the SAC and alleged in the SAC that there was an oral agreement between Castlebrook and KRS that all litigation matters would be subject to the Retainer terms. KRS further alleged in the SAC that it accepted work from Castlebrook with the understanding the Retainer terms applied. The Retainer contained an attorney fee provision authorizing an award of reasonable attorney's fees to the prevailing party. Castlebrook was the prevailing party on the Motion.
Castlebrook argued the original complaint filed by KRS alleged a written contract and asked for an award of attorney's fees. Its first amended complaint also requested attorney's fees. The Retainer was attached to the SAC. Castlebrook argued that section 1717 was applicable. It cited to Hsu v. Abbara (1995) 9 Cal.4th 863 (Hsu), arguing section 1717 provided that even if a contract is found to be unenforceable or nonexistent, if the party who alleged the contract applied would have been entitled to attorney's fees, the prevailing party was entitled to fees. Castlebrook argued the allegations in the SAC specifically relied on the Retainer as the basis for the agreement of payment of fees. A summary of the billings was included.
KRS filed opposition to the motion for attorney's fees. KRS alleged the operative complaint was the SAC, which did not allege the existence of a written agreement. The first cause of action was for a breach of oral contract. Moreover, KRS did not request attorney's fees in the prayer. KRS alleged the Retainer attached to the SAC merely set forth the basis for the oral agreement as to fees and costs. Graffam was adamant he did not sign the Retainer. KRS also argued the attorney's fees requested by Castlebrook were unreasonable.
Castlebrook filed a request for judicial notice of the original and first amended complaints. Both alleged breach of a written agreement.
The motion for attorney's fees was heard on September 26, 2016. Initially, the trial court noted that some of the fees were excessive and it intended to reduce the bill. KRS argued the SAC was based on a breach of oral contract. The trial court replied, "I do find that based upon the complaint in this matter and based on what was being sought, that I did find it was based upon a contract under Civil Code Section 1717 in this matter."
On October 18, 2016, the judgment for attorney's fees in the amount of $38,841 and costs in the amount of $1,965 was entered in favor of Castlebrook. KRS appealed both the grant of the Motion and Castlebrook's motion for attorney's fees.
DISCUSSION
KRS does not raise any issues in its opening brief that the Motion was improperly granted. Rather, it contends attorney's fees in the amount of $38,841 were improperly awarded to Castlebrook based on section 1717. It claims the SAC was based on an oral contract and it did not request attorney's fees in the SAC. It insists that had it prevailed, it would not have been entitled to attorney's fees. Additionally, KRS argues that the case was actually decided on another implied oral contract between Disenhouse and Castlebrook that did not include an attorney fee provision. It claims its theory of recovery was that "some" oral agreement existed that entitled it to fees and that agreement did not have an attorney fee provision.
Pursuant to Code of Civil Procedure section 1021, each party to a lawsuit must pay its own attorney's fees unless a contract or statute or law authorizes a fee award. Civil Code section 1717, subdivision (a) provides as follows: "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."
"An action (or cause of action) is 'on a contract' for purposes of section 1717 if (1) the action (or cause of action) 'involves' an agreement, in the sense that the action (or cause of action) arises out of, is based upon, or relates to an agreement by seeking to define or interpret its terms or to determine or enforce a party's rights or duties under the agreement, and (2) the agreement contains an attorney fees clause." (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 241-242.)
" 'As long as an action "involves" a contract, and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit, the other party should also be entitled to attorney fees if it prevails, even if it does so by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract.' " (Anmaco v. Bohlken (1993) 13 Cal.App.4th 891, 902.) "[A] prevailing party is entitled to attorney fees only if it can prove it would have been liable for attorney fees had the opponent prevailed." (M. Perez Co. v. Base Camp Condominiums Ass'n No. One (2003) 111 Cal.App.4th 456, 467.)
In Hsu, supra, 9 Cal.4th 863 the dispute was over the purchase of the Abbaras's home by the Hsus. There were several offers and counteroffers exchanged between the parties, which contained attorney fee provisions. The Abbaras made a counteroffer of $297,000 but the Hsus communicated they would only pay $292,000, which the Abbaras did not accept. Nonetheless, the Hsus signed the counteroffer of $297,000 but the Abbaras did not want to go forward. The Hsus believed a contract for sale had been formed and sought specific performance. (Id. at p. 867.) The trial court determined that a contract to sell the home at a particular price was never formed. It concluded the Abbaras were not required to honor their counteroffer once the Hsus asked to pay $292,000. (Hsu, supra, 9 Cal.4th at pp. 867-868.)
The Abbaras sought attorney's fees arguing that if the Hsus had prevailed, they would have been entitled to attorney's fees under the counteroffer terms, which included an attorney fee provision. The trial and appellate courts denied fees to the Abbaras. (Hsu, supra, 9 Cal.4th at pp. 869-870.) The Supreme Court granted review and awarded attorney's fees to the Abbaras. The Supreme Court initially noted, "As a preliminary matter, we note that neither party attaches any special significance to the trial court's finding that no contract of sale was ever formed. The Hsus appear to concede that the validity or existence of the contract alleged in their complaint is not a prerequisite to an award of attorney fees under section 1717. It is now settled that a party is entitled to attorney fees under section 1717 'even when the party prevails on grounds the contract is inapplicable, invalid, unenforceable or nonexistent, if the other party would have been entitled to attorney's fees had it prevailed.' " (Id. at p. 870.) The court further held, "in deciding whether there is a 'party prevailing on the contract,' the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by 'a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.' [¶] Here, the judgment was a 'simple, unqualified win' [citation] for the [defendants/sellers] on the only contract claim between them and the [prospective buyers]." (Id. at pp. 870, 877.)
This court reviews a determination of the legal basis for an award of attorney's fees de novo as a question of law. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175; Dell Mark, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 450.)
Here, KRS filed the SAC based on breach of oral contract, common counts for services rendered, quantum merit and common count for an open book account. KRS specifically pled it was owed fees from Castlebrook based on the terms of the Retainer. The oral breach of contract claim referenced in the SAC was based on the allegation that KRS would continue to represent Castlebrook after the Attig matter, based on the terms in the Retainer. KRS included a copy of the Retainer with the SAC. It acknowledged it was not signed by Castlebrook, but alleged there was an oral agreement that the parties would abide by the Retainer for all legal matters. It specifically alleged Disenhouse did not have the authority to alter the oral agreement to abide by the terms of the Retainer; and presented evidence with the opposition, by way of the declaration of the accounting supervisor, that Disenhouse had no authority to set fees. The gravamen of the SAC was that KRS was owed attorney's fees based on an oral agreement to pay KRS fees in accordance with the Retainer. The invoices sent to KRS were based on the fees set in the Retainer: There was no dispute that the Retainer included a provision that the prevailing party was entitled to attorney's fees.
Castlebrook defended the SAC in the Motion by presenting Graffam's declaration and Disenhouse's deposition, that they had never before seen the Retainer. Castlebrook argued in the alternative that the agreement on fees was between it and Disenhouse. They presented evidence supporting that another agreement was reached to zero out its balance of fees owed to KRS.
Had KRS been successful, the trial court could have concluded that all of Castlebrook's litigation was subject to the terms of the Retainer based on the oral agreement of the parties. The trial court could have concluded that no agreements with Disenhouse overrode the Retainer. The only possible recovery supported by the SAC was that KRS entered into an oral agreement to abide by the Retainer, which set the fees and contained the attorney fee provision. KRS could not claim that the only terms of the Retainer that the parties agreed to were the fees and costs. Further, KRS did not provide evidence that if the Retainer agreement applied, that the attorney fee provision did not apply.
It is true that KRS did not plead, in the SAC, a claim for attorney's fees. However, this did not prevent the trial court from finding that such fees could properly be awarded to KRS should KRS be successful. As conceded by KRS in its appellant's reply brief, Business and Professions Code section 6148, subdivision (d)(4) exempts corporations from having a written agreement for attorney's fees. Such failure to plead that attorney's fees were being sought in the SAC should not foreclose Castlebrook from being awarded the fees.
KRS appears to contend for the first time in the reply brief that the Motion was improperly granted based on (1) the trial court's failure to recognize that Business and Professions Code section 6148, subdivision (d)(4) did not require a written agreement; and (2) there was disputed evidence as to which oral agreement between the parties applied and how much KRS was owed by Castlebrook under these agreements. We will not address claims raised for the first time in the reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
KRS contends on appeal that the only operative agreement that the lower court considered and established on the record was the quasi-contract implied by the conduct of Disenhouse. This included the negotiations between Castlebrook and KRS as to flat fees to be paid by Castlebrook. According to KRS, this contract did not have an attorney fee provision. It alleges it could have been successful on a theory of quantum merit under the implied contract.
KRS's theory on appeal and, to some extent in the opposition filed in the trial court, are diametrically opposed to what was alleged in the SAC. As stated, the SAC alleged that the "oral agreement" between KRS and Castlebrook was that they would abide by the terms of the Retainer. In the opposition, KRS referred to some sort of oral contracts between Disenhouse and Castlebrook that entitled it to fees from Castlebrook. However, it also presented the declaration from the accounting supervisor declaring Disenhouse had no authority to set fees. On appeal, KRS claims that the only oral agreement the trial court addressed was that between Disenhouse and Castlebrook. However, KRS has never established what it would be owed if there was some sort of agreement between Disenhouse and Castlebrook. In granting the Motion, the trial court first concluded that there was no written agreement as to attorney's fees. It also concluded that even if there was an agreement, Disenhouse and Castlebrook reached an agreement to zero out those fees.
Implied in this ruling was that there was no oral agreement to abide by the terms of the Retainer. The trial court necessarily had to reject this theory to reach its conclusion that Castlebrook was the successful party. That the trial court erred by concluding Business and Professions Code section 6148 required a written agreement for Jocer has not been properly presented to this court. As such, KRS cannot avoid the attorney fee provision in the Retainer by now arguing that it never alleged attorney's fees were owed; by failing to recognize Business and Professions Code section 6148, subdivision (d)(4) in the SAC; and by insisting that some quasi-implied contract applied for the first time in the reply brief below and on appeal. Despite the trial court's conclusion that the parties never formed a contract for attorney's fees, if KRS had successfully argued that the oral agreement was based on the Retainer, it would have been entitled to attorney's fees. (Hsu, supra, 9 Cal.4th at p. 870.) As such, Castlebrook was properly awarded attorney's fees.
DISPOSITION
The trial court's order awarding attorney's fees is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.