Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04CC05641
Appeal from a judgment and orders of the Superior Court of Orange County, Robert Monarch, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to Cal. Const., art. VI, § 6.) Affirmed.
Christa & Jackson and Laurence Jackson for Defendant, Cross-complainant, and Appellant.
Dale E. Washington for Plaintiff, Cross-defendant, and Respondent.
OPINION
ARONSON, J.
Cross-complainant Lanvesco challenges the judgment rejecting its claims of breach of contract, fraudulent concealment, and account stated arising from a commercial lease agreement with its tenant, LQNN, Inc. (LQNN). Lanvesco contends its due process rights were violated when the trial court amended the pleadings to conform to proof toward the conclusion of trial, and denied Lanvesco’s motion to reopen the evidence. Lanvesco also challenges the sufficiency of the evidence to support the trial court’s finding of mutual mistake and argues the trial court rendered a procedurally and substantively deficient statement of decision.
Defendant W. G. Wells Company (Wells Company) appeals the trial court’s orders denying it prevailing party attorney fees and denying its motion to vacate judgment. Wells Company contends it was the prevailing party at trial because the trial court ruled that plaintiff LQNN “shall take nothing by its complaint,” and Wells Company did not cross-complain in the action.
We conclude the trial court did not impair Lanvesco’s due process rights by granting amendment to conform to proof. The trial court based its judgment on issues of mutual mistake and failure of consideration raised in LQNN’s answer. We also reject Lanvesco’s challenge to the sufficiency of the evidence because substantial evidence supports the trial court’s judgment, and, alternatively, Lanvesco waived the claim by failing on appeal to set forth all of the facts bearing upon the issue of mutual mistake. Finally, we conclude the trial court’s statement of decision adequately addressed the factual and legal bases for its decision on each of the principal controverted issues of the case.
We reject Wells Company’s challenge to the judgment because Wells Company was dismissed before trial and was not a party “aggrieved” by the judgment. We also reject Wells Company’s challenge to the trial court’s order denying it attorney fees because the contract fee provision at issue awards attorney fees only to the party prevailing “on trial or on appeal.” Because Wells Company was dismissed pretrial, it did not prevail at trial. Accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
LQNN, doing business as Lee’s Sandwiches, is in the business of manufacturing food products. Through its broker, LQNN contacted Lanvesco about leasing warehouse space at Lanvesco’s facility in Garden Grove. In a letter to Lanvesco before the lease was signed, LQNN explained it was seeking the space out of “a need for a local warehouse facility in which we can store and process our food, beverage and related goods.” Consistent with the June 9 letter, LQNN’s broker, Sharanjit Kali-Rai, explained to Lanvesco’s representative that the space being sought “would be used as a warehouse, but also as a food processing facility . . . .”
LQNN and its principals, cross-defendants Chieu Van Le, Yen Ngoc Quach, and Than Quach, signed a five-year lease agreement in a form provided by Lanvesco, calling for a monthly rent of $4,640. LQNN agreed to use the warehouse for “office administration, warehousing of food and beverage products, and processing of coffee beans. . . . [Or] any other use which is reasonably comparable and for no other purpose.” The lease further provided: “In no event shall any use be permitted for outside painting, storage of inoperable motor vehicles or parts, outside car wash or auto repairs, outside storage of refuse or hazardous/toxic waste, debris, other than in covered trash containers and bins or outside storage of any kind.” The lease provided that LQNN could make no substantial alterations to the warehouse without obtaining Lanvesco’s prior written consent, which Lanvesco promised it would not unreasonably withhold. The lease required LQNN to remove all alterations and restore the premises at the end of the lease.
The lease provided that a breach or default would occur if LQNN abandoned or vacated the warehouse, failed to pay rent, or failed to perform any other covenant following 30 days written notice and opportunity to cure. Similarly, Lanvesco would be in material default and breach if it failed to perform its covenants following 30 days written notice and opportunity to cure. The lease provided that the prevailing party in any litigation arising from the lease would recover attorney fees.
LQNN took possession of the premises in July 2003. On November 12, 2003, LQNN provided Lanvesco building plans for the installation of a room-sized freezer and refrigerator, floor sinks, and sewer lines at the premises. These additions would require LQNN to cut into the floor and roof of the building, and place refrigerator condenser units on the roof. The plans were at some point approved by both the City of Garden Grove and the health department.
Lanvesco hired a construction manager to review the plans and confer with LQNN on the proposed alterations. On November 25, 2003, the construction manager met LQNN representatives at the warehouse, and as a result of the meeting, LQNN agreed to provide Lanvesco with additional, more detailed plans. Nonetheless, on the following day, Lanvesco sent LQNN a letter stating that none of LQNN’s planned alterations were acceptable, and that Lanvesco’s “decision is final . . . .” Despite the November 26 letter, however, the parties attempted on December 17, 2003, to develop plans that would be agreeable to both LQNN and Lanvesco.
On January 26, 2004, LQNN leased space from a third party as a replacement for the Lanvesco space. In February 2004, LQNN vacated the Lanvesco warehouse, but continued to pay Lanvesco rent through its May 1, 2004 payment. On May 6, 2004, LQNN sent a letter to Lanvesco, stating LQNN could no longer use the Lanvesco warehouse space. The next day, LQNN sued Wells Company and fictitiously named defendants, alleging it was entitled to rescind the contract or, alternatively, to obtain damages because defendants breached the implied covenant of good faith and fair dealing by refusing to agree to LQNN’s proposed construction plans. LQNN later filed an amendment to substitute Lanvesco for a fictitiously-named defendant. Lanvesco answered and cross-complained against LQNN and cross-defendants for breach of the lease, fraud and account stated. The trial court granted Lanvesco’s summary adjudication motion on LQNN’s rescission cause of action.
During the bench trial held on the remaining causes of action, the trial court invited briefing on whether the parties had achieved a meeting of the minds necessary to forming a valid lease agreement. On the last page of LQNN’s brief filed in response, LQNN requested a return of its rent payments under a rescission theory, and stated: “Plaintiff therefore moves the court to conform to proof, and add the theory of mutual mistake, negligently known about by Lanvesco.” During closing argument, LQNN’s counsel referenced the motion to amend in its trial brief. The court replied: “Motion is granted.” When defendants argued LQNN never presented them with a formal motion to amend, the court replied: “I am doing it on my own motion . . . .”
On February 6, 2006, the trial court issued a statement of decision, noting the trial court “granted a motion, and on the court’s own motion, to amend the pleadings to conform to proof . . . .” The statement of decision included the following findings and conclusions: (1) the parties entered into a lease agreement; (2) LQNN’s proposed use of the premises for its food service business fell within the lease provision allowing the premises to be used for “any other use which is reasonably comparable”; (3) LQNN provided Lanvesco reasonably detailed plans of its proposed alterations, which enabled Lanvesco to approve or disapprove the plans; (4) Lanvesco unequivocally disapproved the construction plans, but the parties unsuccessfully attempted to negotiate an alterative plan; (5) LQNN’s requested building alterations were necessary to allow LQNN to conduct the business contemplated in the lease; (6) Lanvesco was unaware, until receiving the proposed building plans, of the alterations necessary to allow LQNN to conduct its business; (7) LQNN was unaware of what might constitute a reasonable objection to its proposed alteration plan until Lanvesco rejected LQNN’s plan; (8) “The parties were mutually mistaken as to the interpretation of the lease to enable implementation of the agreed upon use and to define the nature and extent of proposed alterations that might reasonably be rejected. Paragraph 7.5 of the lease is ambiguous in this regard and is subject to the interpretation of either party. As a result of the mutual mistake, the consideration upon which the lease was based utterly failed”; (9) ”As a result of the mutual mistake and/or failure of consideration, the lease terminated upon the final refusal of LANVESCO to approve the alteration plans proposed by LQNN”; (10) it would be inequitable for either party to have to pay damages; (11) LQNN takes nothing by its complaint; (12) Lanvesco takes nothing by its cross-complaint; (13) there is no prevailing party; and (14) the parties shall bear their own costs and attorney fees.
The court served its statement of decision by mail. On the same day, Lanvesco served and filed a notice of motion for leave to reopen evidence to allow it to respond to the pleading amendment granted by the court. On November 17, 2006, the court entered its judgment and, on the same day, Lanvesco filed its “Notice of Objection to Proposed Judgment.” Lanvesco and Wells Company each moved to set aside the judgment and for an attorney fee award. The trial court denied the motion to reopen, to set aside the judgment, and for an attorney fee award. Lanvesco now appeals the judgment and Wells Company appeals the trial court’s rulings on its motions to set aside the judgment and for attorney fees.
II
DISCUSSION
A. The Trial Court Did Not Deprive Lanvesco of Due Process by Allowing an Amendment to Conform to Proof
1. The Amendment to Conform to Proof Did Not Raise New and Substantially Different Issues
Lanvesco contends the trial court erred when it allowed amendment to conform to the proof presented at trial. We disagree.
A trial court has broad discretion in deciding whether to allow amendments to conform to proof, and we will not reverse the trial court’s order unless it clearly appears the court abused its discretion. (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31.) “Such amendments have been allowed with great liberality ‘and no abuse of discretion is shown unless by permitting the amendment new and substantially different issues are introduced in the case or the rights of the adverse party prejudiced [citation].’. . . [Citations.]” (Ibid, original italics.)
The trial court amended the pleadings to add a theory of mutual mistake and failure of consideration. The statement of decision clarifies that the parties mistakenly believed the warehouse space was suitable for LQNN to conduct its business. This mutual mistake arose because Lanvesco did not understand the scope of property alterations LQNN required, and LQNN did not understand the limits of alterations Lanvesco would allow. The parties’ misunderstanding was not apparent in the contract because the language governing the use and alterations of the property was ambiguous and susceptible to different interpretation by each side. Without the planned alterations, LQNN could not receive the benefit it believed it gained in the bargain. We therefore must consider whether the trial court’s rulings arise from “new and substantially different issues” introduced by the amendment, and whether the amendment prejudiced Lanvesco.
In both the initial and amended answer of the cross-defendants, the following affirmative defense appears: “There was a mistake of fact by one or both parties which rendered the premises unusable for the bargained-for use.” This defense places both unilateral and mutual mistake theories at issue in the case. Moreover, the defense squarely raises failure of consideration by asserting the alleged mistake “rendered the premises unusable for the bargained-for use.” The court overruled Lanvesco’s demurrer to this affirmative defense, and Lanvesco did not move for summary adjudication on the defense.
The record includes the answer of only one of the cross-defendants, Yen Ngoc Quach. Although Lanvesco requested the answer of LQNN and Chien Van Le to be included in the clerk’s transcript, the clerk’s affidavit states the answer is not on file. Lanvesco has made no effort to augment the record to include this answer, purportedly filed on August 10, 2005, and cites Quach’s answer in its brief when referencing the affirmative defenses of each of the cross-defendants, including LQNN. Accordingly, for purposes of this opinion, we will treat Quach’s answer as that of each of the cross-defendants.
Lanvesco contends the mistake of fact defense in cross-defendants’ answer does not apply because the trial court found a mistake of law based on the parties’ differing interpretations of an ambiguous lease term. We disagree. The parties’ disagreement regarding the ambiguous lease term arose from their mutual mistake that the premises could be used by LQNN to operate its business. This is a mistake of fact, not law.
Because cross-defendants had pleaded mistake and failure of consideration in their answer, the trial court’s amendment to conform to proof was unnecessary and did not prejudice Lanvesco’s right to a fair trial. Our conclusion that amendment of cross-defendants’ answer was unnecessary renders harmless any procedural errors by the trial court in granting amendment on its own motion, or in failing to require a written amendment.
2. LQNN’s Affirmative Defenses to the Cross-Complaint Were Not Affected Adversely When the Trial Court Granted Lanvesco’s Summary Adjudication Motion on LQNN’s Cause of Action for Rescission
Lanvesco also contends it was prejudiced because the amendment improperly revived an issue to which summary adjudication had been granted. Specifically, the trial court had previously granted summary adjudication as to LQNN’s cause of action for rescission based on mistake of fact. Lanvesco asserts it relied on the summary adjudication, and therefore decided not to depose the individual cross-defendants, or elicit evidence from Quach regarding the mistake of fact issue at trial. This argument is meritless.
Although the statement of decision does not identify the pleadings being amended, it expressly stated that “LQNN shall take nothing by its complaint.” Accordingly, the trial court did not purport to resurrect LQNN’s rescission cause of action in its complaint, and we may assume the trial court intended to amend the cross-defendants’ answers.
True, LQNN’s affirmative defense of mistake mirrors its rescission cause of action. But summary adjudication of the latter had no affect on the former. Specifically, summary adjudication of LQNN’s rescission cause of action affected only that particular cause of action, and did not affect any of LQNN’s affirmative defenses to the cross-complaint. Code of Civil Procedure section 437c, subdivision (n)(2), provides: “In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any . . . affirmative defense . . . as to which summary adjudication was either not sought or denied.” (Italics added.) Because “‘the trial court’s role in deciding a motion for summary [adjudication] involves no findings of fact,’” the principles of collateral estoppel and res judicata do not apply to a grant of summary adjudication. (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1136 (Raghavan).) Accordingly, “each cause of action, or substantive area, that is not summarily adjudicated is to stand on its own at trial.” (Id. at p. 1137.)
In Raghavan, the trial court granted summary adjudication of the plaintiff’s defamation cause of action, concluding that the accusations contained in a written reprimand issued by the plaintiff’s employer were true. At trial, the defendant moved in limine to preclude the plaintiff from litigating the truth of those allegations in connection with his remaining wrongful termination claims. The trial court granted the motion and instructed the jury that the statements in the reprimand were true. (Raghavan, supra, 133 Cal.App.4th at p. 1134.) The Court of Appeal held that this was error, concluding that the 1990 and 1993 amendments to Code of Civil Procedure section 437c “express[ed] a unifying theme that summary adjudication shall have no preclusive effect during the subsequent trial.” (Id. at p. 1137.)
Lanvesco moved for summary adjudication only on LQNN’s causes of action in its complaint. Although it obtained summary adjudication on LQNN’s rescission cause of action, the trial court’s ruling did not affect the defenses of any of the cross-defendants –– including LQNN. Indeed, Lanvesco recognized the continued viability of LQNN’s affirmative defense of mistake in “Lanvesco’s Preliminary Trial Brief on Contract Formation Issues,” in which Lanvesco asserts: “The only issue likely to be presented by the evidence is whether LQNN can prove an affirmative defense to the existing contract based on mistake of fact.” Accordingly, we reject Lanvesco’s contention that the amendment to conform to proof resurrected an adjudicated claim or caused Lanvesco surprise or prejudice.
B. Substantial Evidence Supports the Trial Court’s Finding of Mistake
Civil Code section 1689, subdivision (b)(1), provides that a party to a contract may rescind “[i]f the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.” Although Civil Code section 1689 is written in terms of rescission, it also provides a basis for an affirmative defense to a breach of contract action. (Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 411.) Noting that consent to an agreement is given at the time of signing, Lanvesco contends a mistake defense under Civil Code section 1689 fails here because “no evidence whatsoever” was introduced at trial regarding the parties’ state of mind at the inception of the lease. We reject this contention.
“A high hurdle must be overcome by appellants challenging the sufficiency of evidence. . . . Conflict in the evidence is of no consequence. Our reviewing power ‘“begins and ends with a determination as to whether there is any substantial evidence to support [the factual findings]; [we have] no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.” [Citation.]’ [Citation.]” (People v. Orange County Charitable Servs. (1999) 73 Cal.App.4th 1054, 1071-1072, original italics.)
Accordingly, in order to challenge the evidentiary sufficiency of the trial court’s judgment, the appellant must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to its position. (Kanner v. Globe Bottling Co. (1969) 273 Cal.App.2d 559, 564; Davis v. Lucas (1960) 180 Cal.App.2d 407, 409.) We are not required to scour the record to ascertain whether it sustains the appellant’s contentions. (Eistrat v. J. C. Wattenbarger & Sons (1960) 181 Cal.App.2d 57.) Consequently, failure to set forth all material evidence amounts to waiver of the alleged error and we may presume the record contains evidence to sustain every finding of fact. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) Moreover, where the record on appeal is deficient on the issue presented, we will presume the evidence supported the court’s finding. (Smith v. Regents of University of California (1976) 58 Cal.App.3d 397, 405.)
Here, Lanvesco’s brief cites only evidence supporting its position, and disregards any evidence supporting the judgment. As noted by LQNN, the parties’ precontract knowledge and understanding of LQNN’s proposed uses for the property was evidenced by LQNN’s letter to Lanvesco explaining that LQNN was seeking to lease space out of “a need for a local warehouse facility in which we can store and process our food, beverage and related goods.” In a similar vein, LQNN’s broker testified that he explained to Lanvesco’s representative that the space being sought “would be used as a warehouse, but also as a food processing facility . . . .” The evidence supports the trial court’s view that before signing the lease, Lanvesco misunderstood the scope of alterations necessary for LQNN to operate a food processing facility. Lanvesco demonstrated the nature of this misunderstanding in its November 26 letter to LQNN rejecting LQNN’s planned alterations to the property, stating that “[h]ad this subject been disclosed prior to your lease, you would have been so informed.” (Italics added.)
The foregoing evidence supports a finding that Lanvesco knew before signing the lease that LQNN would use the warehouse space for food processing, but Lanvesco did not understand the extent of alterations necessary for LQNN to conduct its business. The same evidence supports a finding that LQNN intended to use the warehouse space for food processing before signing the lease, and mistakenly believed Lanvesco would allow it to do so.
Moreover, to the extent that any of the foregoing might be insufficient to sustain the trial court’s findings on mistake, Lanvesco has waived any alleged error by failing to set forth all evidence on the issue, and we presume the record contains evidence to sustain the trial court’s findings of fact on precontract mistake.
C. The Trial Court’s Premature Entry of Judgment Did Not Prejudice Lanvesco
The trial court entered judgment on November 17, 2005, 11 days after it issued its statement of decision. Lanvesco contends the trial court erred because its time to request a statement of decision and challenge the proposed judgment had not yet run. According to Lanvesco, under the California Rules of Court, rule 3.1590, it had until November 21, 2005, to request a statement of decision.
“While a Rule of Court phrased in mandatory language is generally as binding on the courts and parties as a procedural statute, it is seldom jurisdictional and ordinarily departure from it is not reversible error unless prejudice is shown.” (Estate of Cooper (1970) 11 Cal.App.3d 1114, 1121-1122.) Even if Lanvesco is correct that the trial court entered judgment prematurely, the entry did not prejudice Lanvesco. Specifically, Lanvesco does not contend the judgment does not reflect the decision of the court. Moreover, after the trial court entered judgment, Lanvesco filed its request for statement of decision and objections to the judgment. Thus, we may still review them as if the court had entered judgment after they were heard.
D. The Trial Court’s Statement of Decision Is Legally Adequate
In response to the trial court’s statement of decision, Lanvesco filed its “Request for Statement of Decision,” requesting findings on 75 specified issues. Lanvesco contends the trial court erred by not amending its statement of decisions to include these matters. We disagree.
“Upon the timely request of one of the parties in a nonjury trial, a trial court is required to render a statement of decision addressing the factual and legal bases for its decision as to each of the principal controverted issues of the case. [Citation.] A statement of decision need not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.” (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125.) The court is required only to state ultimate, not evidentiary, facts. (People v. Casa Blanca Convalescent Homes (1984) 159 Cal.App.3d 509, 524 (Casa Blanca).) “The failure to make a finding on an issue raised in the pleadings and supported by substantial evidence is harmless when the missing finding reasonably may be found to be implicit in other findings. The failure to find is also harmless when, under the facts of the case, the finding necessarily would have been adverse to the appellants.” (McCullough v. Jones (1970) 11 Cal.App.3d 270, 275 (McCullough).)
Lanvesco cites a number of purported deficiencies in the statement of decision. First, it notes the trial court never directly addressed causes of action for fraudulent concealment and account stated in Lanvesco’s cross-complaint. The trial court’s finding of mutual mistake, however, implicitly precludes a finding of fraudulent concealment on the same subject.
Lanvesco’s causes of action for account stated, however, present a different issue. Neither Lanvesco’s cross-complaint nor its brief provide a clear description of these claims; we cannot therefore determine whether implicit findings on the claims may be found in the statement of decision. If these claims relate to sums accruing under the lease after Lanvesco’s final disapproval of LQNN’s building plans, the statement of decision’s finding that the lease terminated after that event implicitly rejected Lanvesco’s claims. If the account stated claims relate to some other sums due, the trial court may have erred in not making a finding on them. Nonetheless, Lanvesco does not cite to any substantial evidence supporting these claims, and therefore, we conclude any potential error here is harmless. (See McCullough, supra, 11 Cal.App.3d at p. 275.)
Lanvesco also argues the trial court erred when it concluded that “[i]t would be inequitable for either party to be ordered to pay damages to the other,” because it was entitled to damages under Civil Code section 3281. Lanvesco’s argument is based on winning its breach of contract claim, but as we have seen, Lanvesco did not prevail on this claim. Because the trial court sustained LQNN’s equitable mistake defense, the trial court properly denied Lanvesco a damage award.
Finally, Lanvesco cites a number of additional matters which are all embraced within the trial court’s findings. A trial court is not required to subject itself to an inquisition under the guise of a request for statement of decision. (Casa Blanca, supra, 159 Cal.App.3d at p. 525.) We conclude the trial court’s statement of decision fairly disclosed the court’s determination of all material issues, and was therefore adequate under the law.
E. Wells Company Was Dismissed Before Trial
Wells Company filed a separate appeal, challenging the trial court’s orders denying it prevailing party attorney fees and denying its motion to vacate the judgment. LQNN moved to strike Wells Company’s brief, contending Wells Company was dismissed from the case before trial.
LQNN named Wells Company as the only named defendant in its complaint, and later added Lanvesco as a Doe defendant. Although Wells Company answered the complaint, Lanvesco did not, and LQNN took Lanvesco’s default. At the default prove-up hearing, the following colloquy occurred: “The Court: And is W G Wells Company dismissed also then? [¶] Mr. Washington: If I didn’t get the judgment against them. Yes. It appears the property is in the name of –– the lease is in the name of Lanvesco. [¶] The Court: I’m looking at the lease attached to the complaint, and it’s between Lanvesco and Lee Sandwiches. [¶] Mr. Washington: Okay. Then yes, your honor. [¶] The Court: Okay. [¶] The Clerk: Dismissing W G Wells? [¶] The Court: W G Wells Company.”
Despite the clarity of the hearing transcript, Wells Company contends that only W. G. Wells, an individual, was dismissed, and that Wells Company remained a defendant in the case. In making this contention, Wells Company seizes upon the minute order from the default proceedings, which reads: “Court dismisses all un-named Doe defendants and defendant W. G. Wells.” This contention is patently meritless. As Wells Company concedes in its opening brief, LQNN’s complaint “names only two Defendants: Lanvesco, sued as Doe 1 . . . and Wells Co.” We cannot presume the court dismissed someone who was never a party simply because the clerk abbreviated the name of the dismissed defendant. Moreover, the record reveals that neither Wells Company nor its attorney, W. G. Wells, entered an appearance at trial. Thus, we conclude Wells Company is not a party to the action.
“Although only a party of record may generally appeal from a judgment, an entity that is initially a nonparty in proceedings but is aggrieved by a judgment may become a party of record and secure the right to appeal by moving to vacate the judgment under Code of Civil Procedure section 663. [Citations.] Further, any entity that has an interest in the subject matter of a judgment and whose interest is adversely affected by the judgment is an aggrieved party and is entitled to be heard on appeal. However, the aggrieved party’s interest must be immediate, pecuniary and substantial, and not merely a nominal or remote consequence of the judgment.” (Howard Contracting, Inc. v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 58; see also Tomassi v. Scarff (2000) 85 Cal.App.4th 1053, 1057.)
Far from being aggrieved, Wells Company argues in its brief that it was the prevailing party on the judgment. We are unaware of any interest of Wells Company affected by the judgment that is “immediate, pecuniary, and substantial.” Accordingly, we conclude Wells Company lacks standing to challenge the judgment on appeal.
Although we conclude Wells Company lacked standing to appeal from the denial of its motion to vacate judgment, we deny LQNN’s motion to strike Wells Company’s brief. We also deny LQNN’s motion to augment the record based on appellants’ objections. Appellants’ motion to strike is moot.
Wells Company also challenges the trial court’s order denying it prevailing party attorney fees. Unlike the judgment, the trial court’s denial of Wells Company’s motion for attorney fees plainly and substantially affected its immediate pecuniary rights, and it thus has standing to appeal the trial court’s attorney fee order.
The attorney fee provision in the lease relied upon by Wells Company provides: “If either party . . . brings an action to enforce the terms hereof . . ., the prevailing party in any such action, on trial or appeal, shall be entitled to his reasonable attorney’s fees. . . .” (Italics added.) Because Wells Company was dismissed before trial, it did not prevail “on trial or appeal.” Accordingly, the trial court did not err in denying Wells Company’s attorney fee request.
III
DISPOSITION
The judgment and orders are affirmed. LQNN shall recover its costs of this appeal.
WE CONCUR: MOORE, ACTING P. J., FYBEL, J.