Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge, Super. Ct. No. 06CECG01916
Gilmore, Wood, Vinnard & Magness, David M. Gilmore, Jody L. Winter, and Jennifer J. Panicker for Defendants and Appellants.
McCormick, Barstow, Sheppard, Wayte & Carruth, Stephen E. Carroll and David L. Emerzian for Plaintiffs and Respondents.
Wiseman, Acting P.J.
Appellant tenants contend that the trial court erred when it denied their motion for contractual attorneys’ fees arising from an action brought against them and later voluntarily dismissed by respondent landlords. Relying on Santisas v. Goodin (1998) 17 Cal.4th 599, the tenants say the case falls outside the bar set out in Civil Code section 1717, subdivision (b)(2), on contractual attorneys’ fees in voluntarily dismissed cases because the action contained noncontract claims covered by the fee clause. We disagree. The trial court correctly held that all the claims in the action were claims on the contract—the parties’ lease—since none of those claims, however styled, could have been established in any way except by proof of a breach of the lease. The judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORIES
James and Sharon Norris, the landlords, leased commercial property in 2003 to Oliverio Herrera and George Thomas, the tenants. In 2006, the landlords filed a complaint against the tenants in superior court. The complaint alleged that the tenants had stopped using the property and had sublet it or assigned the lease to third parties in violation of the no-sublet and no-assignment clauses in the lease. The complaint alleged six additional breaches of the lease: (1) placement of large signs on the property in violation of a covenant not to alter, add to, or improve the property without consent; (2) painting of the building in violation of the same covenant; (3) operation of an unlicensed business in violation of a provision prohibiting illegal activities; (4) failure to maintain insurance in violation of a covenant requiring the tenants to maintain insurance; (5) failure to maintain the property in a good and safe condition in violation of a covenant requiring this; and (6) failure to maintain equipment on the property in good and working condition in violation of a covenant requiring this be done.
On the basis of these alleged breaches of the lease, the complaint included three causes of action. The first, titled ejectment, stated that the tenants were withholding possession of the property despite the landlords’ demands that they vacate because of their breaches of the lease. On this cause of action, the landlords prayed for a decree that they were entitled to possession; a writ of execution directing the sheriff to remove the tenants; and damages. The second cause of action, titled declaratory relief, asked the court for a declaration that the tenants breached the lease; that the lease, including a purchase option, was of no further effect; and that the tenants were in possession unlawfully because of their breaches. The third, titled quiet title, stated that the landlords sought to quiet title to the property in their favor on the ground that the tenants had breached the lease. On this cause of action, the landlords prayed for a judgment that they were the sole owners of the property; a decree that the landlords would retain all money paid to them by the tenants; restitution of the property to the landlords; and damages. The tenants filed a cross-complaint claiming they attempted to exercise the purchase option but the landlords refused, and in doing so breached the lease.
The parties later reached an agreement on the exercise of the option, and the property was sold to the tenants. The complaint and cross-complaint were voluntarily dismissed.
The tenants filed a motion for $53,532.75 in attorneys’ fees. They relied on an attorneys’ fees clause in the lease:
“In case suit shall be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including reasonable attorney’s fees.”
They cited Code of Civil Procedure section 1032, subdivision (a)(4), which defines “a defendant in whose favor a dismissal is entered” as a prevailing party for purposes of awarding costs, and Code of Civil Procedure section 1033.5, subdivision (a)(10), which allows attorneys’ fees to be awarded as costs if authorized by contract.
The trial court issued an eight-page written order denying the request for fees. It relied on Civil Code section 1717. Subdivision (a) of this section provides for the enforcement of contractual attorneys’ fees clauses by prevailing parties, but subdivision (b)(2) makes an exception for voluntarily dismissed cases: “Where 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.” The court acknowledged that Santisas v. Goodin, supra, 17 Cal.4th at page 617, held that the Civil Code section 1717, subdivision (b)(2), exception does not apply if the action is not an action on the contract and the fee clause is broad enough to cover noncontract claims. In that situation, Code of Civil Procedure section 1021 authorizes—and Civil Code section 1717, subdivision (b)(2), does not bar—enforcement of the parties’ fee-shifting agreement. The court concluded, however, that all the causes of action in the complaint were based on the contract and that the action was an action on the contract, so Civil Code section 1717, subdivision (b)(2), did bar a fee award. The tenants filed this appeal.
DISCUSSION
The tenants’ argument on appeal is the same as the argument they made before the trial court: The landlords’ claims are not contract claims, as ejectment is a tort theory, quiet title a real property theory, and declaratory relief an equitable remedy. The tenants contend that, regardless of the fact that all the landlords’ claims were based on alleged breaches of the lease, each of those claims “sounds in” something other than contract in the abstract, and that is what matters. They argue that, because the Supreme Court stated that Civil Code section 1717 bars contractual attorneys’ fees in voluntarily dismissed cases only with respect to “causes of action sounding in contract” (Santisas v. Goodin, supra, 17 Cal.4th at p. 617), our consideration must be limited to the labels attached to the causes of action in the complaint, and the fact that the only basis of liability alleged in the complaint for any of the causes of action is a breach of a contract is irrelevant. This is a question of law that we review de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
The tenants’ view that the labels control over the substance is not supported by authority or reason. The superior court refuted this view in a well-reasoned and detailed analysis. We adopt the following portion of it:
“We must determine if the three causes of action are contract or noncontract causes of action. There is no bright line rule for determining if an action is on the contract. Such a finding depends on the facts of each case.
“The complaint contains three causes of action: ejectment, declaratory relief and quiet title. There was no ‘breach of contract’ cause of action alleged. However, this does not mean that the action is not on the contract.
“The court gives more weight to the substance of an action than to its form[;] therefore the court looks beyond the parties’ characterization of whether an action is on a contract in determining whether the action is ‘on a contract’ for purposes of CC §1717. See Boyd [v.] Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 377. The court held that, in determining whether a party prevailed on the contract, ‘the court should consider the pleaded theories of recovery, the theories asserted and the evidence produced at trial, if any, and also any additional evidence submitted on the motion in order to identify the legal basis of the prevailing party’s recovery.’ Id.
“In applying the approach set out in Boyd the court finds that the three causes of action in the present case are all based on the contract. The suit fundamentally was based upon the lease, in that plaintiff sought redress for breaches of the lease. See Beeman [v.] Burling (1990) 216 Cal.App.3d 1586, 1608.
“Ejectment is a legal action to recover possession of real property wrongfully withheld from the plaintiff. Caperton [v.] Schmidt (1864) 26 Cal. 479[, 495]; McNulty [v.] Copp (1954) 125 Cal.App.2d 697[, 705-706, 708]. The gravamen of an ejectment action is frustration of the plaintiff’s right to possession. B & B Sulfur Co. [v.] Kelley (1943) 61 Cal.App.2d 3[, 9].… In this case, the plaintiff was seeking to eject the defendant and recover the property under the lease agreement because of a breach. The cause of action is on the contract.
“The declaratory relief COA alleges a dispute under the lease. Under CCP §1060, any person interested under a contract or under a written instrument, excluding a trust or will, may seek declaratory relief and obtain a judicial declaration of respective rights and duties under the instrument. In this case, the cause of action for declaratory relief is based upon the lease agreement. In his claim for declaratory relief, the plaintiff is requesting that the court determine the parties’ rights and duties under the lease. Such a claim is ‘on a contract’ for purposes of section 1717. See Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 707; City and County of San Francisco v. Union Pacific R.R. Co. (1996) 50 Cal.App.4th 987, 999-1000; Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1259.
“Also, the quiet title cause of action seeks to quiet title based upon a breach of the lease.… The court therefore finds that the cause of action is based on [the] contract.
“The action was voluntarily dismissed and there is no prevailing party on the contract for purposes of §1717. CC §1717 (b)(2); Santisas [v.] Goodin (1998) 17 Cal.4th 599[, 619]. Because there are no noncontract causes of action in this case, attorney’s fees will not be awarded.”
In sum, relief was sought for nothing but a set of alleged breaches of contract. The landlords sought an order ejecting the tenants from the property because they breached the lease; they sought a declaratory judgment that the tenants breached the lease; and they sought an order quieting title in their favor on the ground that the tenants breached the lease. In substance, the complaint alleged breaches of the lease and asked for remedies called ejectment, declaratory relief, and quiet title. The conclusion that this action, or any portion of it, was not an action on a contract would plainly not be correct.
The tenants contend that B & B Sulfur Co. v. Kelley, supra, 61 Cal.App.2d 3 supports their position. They point out that, although the court there had to consider the terms of a lease to decide the plaintiffs’ ejectment claim, the claim nevertheless was “based on a … tort of defendants.” (Id. at p. 6.) The case is easily distinguished. The defendants there were not parties to the lease; the complaint did not allege that they breached any lease; and the significance of the lease was simply that it gave the plaintiffs a right of possession against the defendants as trespassers. (Id. at pp. 5-6.) In this case, by contrast, the landlords’ right of possession could be asserted against the tenants only if the tenants breached the lease. The tenants’ breach was the only alleged basis of their liability.
The tenants also rely on Stout v. Turney (1978) 22 Cal.3d 718 and Lerner v. Ward (1993) 13 Cal.App.4th 155, in which fraud claims arising out of contractual relationships were held not to be claims upon a contract for purposes of awarding attorneys’ fees under Civil Code section 1717. Neither case is helpful to the tenants. In both, the fraud claims were independent of any contract claims—i.e., they were claims that the defendants were liable for fraud whether they breached the parties’ contract or not. (Stout v. Turney, supra, at pp. 721-722, 730; Lerner v. Ward, supra, at pp. 157, 158-159.) To prevail on the fraud claims, the plaintiffs did not have to prove breach of contract. All the claims in the present case did depend on proof of a breach of contract. The tenants’ citation of McKenzie v. Kaiser-Aetna (1976) 55 Cal.App.3d 84 is similarly not helpful. There, the court held that a claim for negligent misrepresentation was not “on [the] contract” for purposes of Civil Code section 1717. Again, unlike here, the plaintiffs did not need to show a breach of the contract to prevail on the claim in question. (McKenzie v. Kaiser-Aetna, supra, at pp. 88-89.)
The tenants next argue that the landlords’ suit was not an action on the contract to the extent that it sought other remedies than damages. They say that “[b]ecause [the landlords] elected the non-contract remedies, they must bear the consequences of their actions.” The tenants’ assumption is that only a claim for contract damages is a contract claim. Under this reasoning, a complaint consisting of a cause of action for breach of contract and a prayer for specific performance would not be an action on a contract. To state this view is to refute it. In their reply brief, the tenants acknowledge that an unlawful detainer action seeking an eviction order would also be an action on a contract. There is no authority for the idea that a lawsuit is a contract action only when the remedies sought are damages or an eviction order, however.
Finally, the tenants say the trial court, in its discussion of declaratory relief, should have relied on Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141 instead of the cases it cited. The tenants claim Persson “superseded” the cases on declaratory relief the trial court relied on, but we do not see how. In fact, the holding of Persson is not applicable to the present case at all. In Persson, the Court of Appeal held that a declaratory relief action was not an action on a contract for purposes of applying Civil Code section 1717. The suit in Persson, however, sought declaratory relief for fraud, deceit, negligent misrepresentation, securities fraud, and breach of fiduciary duty. Unlike in the present case, the complaint did not allege that the defendants breached a contract; proof of breach of a contract was not necessary to show liability. (Persson v. Smart Inventions, Inc., supra, at pp. 1174, fn. 23, 1149-1150.) Where, as here, the relief sought is a declaration that the defendants breached a contract, the claim is a contract claim. As the Court of Appeal stated in City and County of San Francisco v. Union Pacific R.R. Co., supra, 50 Cal.App.4th at page 1000, the contention that an action for declaratory relief to determine the rights of the parties under a contract is not an action on the contract is “patently absurd.”
In their reply brief, the tenants argue for the first time that “a careful review of the complaint shows the gravamen of the case claims is actually trespass ab initio,” which, if correct, arguably would mean that the tenants could have prevailed without showing a breach of the lease. We generally do not address arguments made for the first time in an appellant’s reply brief. (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1022; California Recreation Industries v. Kierstead (1988) 199 Cal.App.3d 203, 205, fn. 1.) Further, the tenants have not cited any authority for, or made any genuine argument supporting, the proposition that a complaint alleging breaches of a lease and praying for ejectment, declaratory relief, and quiet title is, in reality, a suit for trespass ab initio. We need not address a point that has been inadequately briefed. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999)21 Cal.4th 352, 366, fn. 2.)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR, Dawson, J., Hill, J.