Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Inyo County Ct. No. SICVCV642426. Brian Lamb, Judge.
Hardy & Place and Thomas L. Hardy for Plaintiff and Appellant.
Law Offices of Frederick G. Wood and Frederick G. Wood for Defendants and Respondents.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Plaintiff and appellant W. Richard Maudsley appeals from an order after judgment awarding attorney fees to defendants and respondents Mohammad Eslamieh and Elizabeth Eslamieh. Maudsley contends: (1) the award was premature because it was impossible to determine the extent to which each of the parties had succeeded or failed in their substantive contentions; (2) the award was inherently inequitable; and (3) the award was improperly made against an individual who was not a party to a contract allowing an award of attorney fees. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Maudsley brought the underlying action against the Eslamiehs seeking to enforce certain terms of a recorded easement with covenants and restrictions affecting land (EC&R’s). A second plaintiff, Thrifty Payless, Inc. (Thrifty), joined the action in the first amended complaint. Following the Eslamiehs’ successful demurrer to the first amended complaint, Thrifty and a new plaintiff, Bishop Plaza, LLC (Bishop Plaza) filed a second amended complaint after Maudsley’s counsel determined that the real property subject to the EC&R’s was owned by Bishop Plaza, a limited liability company of which Maudsley was the managing and sole member. The stated causes of action in the second amended complaint were essentially the same as those in the first amended complaint, and both complaints sought essentially the same relief. The Eslamiehs demurred to the second amended complaint, and the trial court sustained the demurrer without leave to amend.
Bishop Plaza has appealed from judgment of dismissal in the underlying action. (Case No. E044810.)
Meanwhile, the Eslamiehs applied for an order dismissing the action and for entry of judgment of dismissal against Maudsley for failure to amend the first amended complaint after the Eslamiehs’ demurrer was sustained with leave to amend. The trial court granted the application and ordered that the action as between Maudsley and the Eslamiehs be dismissed with prejudice.
The Eslamiehs filed a motion for attorney fees under Civil Code section 1717. The Eslamiehs based their motion on section 9(b) of the EC&R’s, which governed breaches of the EC&R’s, and which contained an attorney fee provision as follows: “The unsuccessful party in any action shall pay to the prevailing party a reasonable sum for attorney’s fees, which shall be deemed to have accured [sic] on the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.” Following a hearing, the trial court awarded attorney fees to the Eslamiehs.
III. DISCUSSION
A. The Award Was Not Premature
Maudsley contends the award or attorney fees was premature because it was impossible to determine the extent to which each of the parties had succeeded or failed in their substantive contentions. However, the trial court sustained the Eslamiehs’ demurrer to Maudsley’s first amended complaint with leave to amend. Maudsley failed to amend and failed to voluntarily dismiss the action as to himself as a plaintiff. The trial court granted the Eslamiehs’ application to dismiss the action as to Maudsley. The Eslamiehs are therefore the prevailing parties as to Maudsley’s claims.
When a party prevails on or defeats all contract claims, and the contract provides for attorney fees, Civil Code section 1717 entitles that party to recover reasonable attorney fees. (See First Security Bank of Cal. v. Paquet (2002) 98 Cal.App.4th 468, 475.) In that case, the defendant bank in a shareholder derivative action cross-complained against shareholders in their individual capacities. The trial court sustained the shareholders’ demurrer and entered judgment dismissing the cross-complaint. The trial court thereafter granted the shareholders’ motion for attorney fees under Civil Code section 1717. (First Security Bank of Cal. v. Paquet, supra, at p. 472.) On appeal, the plaintiff argued the award was premature because the action against the bank had not been finally determined. The court rejected that argument, holding that because the judgment in the cross-complaint resolved all claims against the shareholders, the judgment was final as to them in their individual capacities, and the trial court had correctly determined they were prevailing parties. (Id. at pp. 474-475.)
Maudsley relies on Estate of Drummond (2007) 149 Cal.App.4th 46, in which the court held the determination of the prevailing party in a probate action was premature because the petition for attorney fees was barred by the compulsory cross-complaint rule of Code of Civil Procedure section 426.30, subdivision (a). (Estate of Drummond, supra, at p. 49.) Because of the different procedural posture, we find nothing in Estate of Drummond helpful to Maudsley’s position. Maudsley also relies on Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, in which the court held that the determination of prevailing party status could not be made until the litigation between the parties was concluded on the merits. (Id. at p. 1120.) That case is not helpful to Maudsley because the litigation has been concluded as between Maudsley and the Eslamiehs.
B. The Award Was Not Inherently Inequitable
Maudsley next contends the attorney fee award was inherently inequitable because it punished an individual who attempted to correct a defect in the pleadings at an early stage in the case. Maudsley relies on International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 224-225. That case is distinguishable because there, the plaintiff filed a voluntary dismissal without prejudice before the final determination of the matter at trial on the merits. (Ibid.)
When the plaintiff voluntarily dismisses a breach of contract claim before trial, the defendant is not generally entitled to an award of attorney fees because under those circumstances, there is no prevailing party within the meaning of Civil Code section 1717, subdivision (b)(2), which states that “if ‘an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.’” (Santisas v. Goodin (1998) 17 Cal.4th 599, 602, 622.) Here, Maudsley had the opportunity to request a dismissal of the action without prejudice as to himself within the time the trial court allowed for filing an amended complaint (see, e.g., Code Civ. Proc., § 581), but Maudsley failed to do so. Instead, his counsel filed a verified second amended complaint alleging that Bishop Plaza was the proper party and that Maudsley was the sole member and manager of Bishop Plaza. Thereafter, the Eslamiehs moved for dismissal of Maudsley’s claims, and their motion was granted. We perceive no inequity in the trial court’s award of attorney fees under these circumstances.
C. The Award Was Made Against a Proper Party
Maudsley contends the attorney fee award was improper because he was not a party to a contract allowing an award of attorney fees. A party may recover attorney fees under Civil Code section 1717 only if the party “would have been liable” for such fees had the opposing party prevailed. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.)
Maudsley filed a verified complaint in which he held himself out as an owner of property entitled to institute an action for breach of the EC&R’s. Maudsley requested an award of attorney fees “as provided for in the EC&Rs” in his prayer for relief in the complaint and first amended complaint. In Milman v. Shukhat (1994) 22 Cal.App.4th 538, the court held that the defendants in an action for breach of contract were entitled to attorney fees under the contract when they prevailed on their defense that their signatures on the contract had been forged. Thus, even though they successfully argued that the contract did not exist, they were entitled to attorney fees because the plaintiff would have been entitled to such fees if the plaintiff had prevailed. (Id. at pp. 544-545.) Here, likewise, if Maudsley had prevailed on the contract-based claims, he would have been entitled to an award of attorney fees, and therefore the Eslamiehs, as prevailing parties, are entitled to their fees. We find no error in the trial court’s award.
IV. DISPOSITION
The order appealed from is affirmed. Costs to respondents.
We concur: GAUT, J., KING, J.