Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC415902 . Edward D. Webster and Gary B. Tranbarger, Judges.
Miltner Law Group, William L. Miltner and Teresa L. Polk for Plaintiff and Appellant.
Grant, Genovese & Baratta, David C. Grant and Gordon G. May for Defendants and Respondents.
OPINION
Gaut J.
1. Introduction
Plaintiff Roadway Construction Co., Inc. (Roadway) appeals from a judgment awarding contractual attorney’s fees to defendant Hanson. Roadway argues Hanson is not entitled to recover attorney’s fees after Roadway dismissed part of its complaint with prejudice, relying on Civil Code section 1717, subdivision (b)(2). In the alternative, Roadway argues the court abused its discretion in setting the amount of the fees. Roadway proposes a 90 percent reduction in the fee award. We reject these contentions and affirm the judgment.
Stanley Hanson as an individual and trustee of the Hanson Family Trust; Hanson Enterprises, Inc., doing business as Stan Hanson Enterprises; and ACRA Aerospace, Inc., a California corporation. Stanley Hanson died May 11, 2009. The successor trustees of the Hanson Family Trust are Christopher Jones, Jim Kilkowski, and Larry Kirschenbaum.
All further references to section 1717 are to Civil Code section 1717.
2. Factual and Procedural Background
In 1997, Roadway was the grading contractor on a construction project formerly owned by Sixth and Radio Business Park (Sixth & Radio). Roadway had an option to purchase the project when construction was completed but Sixth & Radio sold the property to Hanson in 1998 for $1,100,000. In 2001, Hanson sold the property for $1,600,000.
In the second amended complaint filed in May 2005, Roadway sued Hanson for breach of contract and unjust enrichment to recover the value of grading work of $943,250. Roadway also sued Hanson for declaratory relief to recover $1,000,000 for work performed and $400,000 for out-of-pocket expenses. In its prayer for relief, Roadway sought attorney’s fees on all three causes of action against Hanson.
The grading contract contains a broad provision for attorney’s fees: “If any arbitration or legal action is commenced between the parties concerning [] the Contract Documents, or the rights and duties of any person in relation thereto, the party prevailing in such action shall be entitled to recover its attorney[’s] fees and costs in connection therewith from the losing party.” The signatories to the grading contract were Roadway and Sixth & Radio.
After the trial court dismissed Roadway’s unjust enrichment claim based on the two-year statute of limitations (Code Civ. Proc., § 339), Roadway dismissed with prejudice its other two claims for breach of contract and declaratory relief. Subsequently, the trial court awarded Hanson contractual attorney’s fees of $382,233.25.
3. Discussion
We conduct an independent review of Hanson’s entitlement to attorney’s fees and apply the standard of abuse of discretion to the award of fees. (SC Manufactured Homes, Inc. v. Canyon View Estates, Inc. (2007) 148 Cal.App.4th 663, 673, citing MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1397; Topanga and Victory Partners, LLP v. Toghia (2002) 103 Cal.App.4th 775, 779-780.)
This appeal concerns the distinction between attorney’s fees that are awarded pursuant to contract (Code Civ. Proc., § 1021) and attorney’s fees awarded in an action on a contract. (§ 1717.) We begin by holding that Hanson has a contractual right to recover attorney’s fees under the grading contract.
All further references to section 1021 are to Code of Civil Procedure section 1021.
Section 1021 provides: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties;...” In other words, the parties can agree to pay attorney’s fees in both tort and contract cases. (Santisas v. Goodwin (1998) 17 Cal.4th 599, 608.)
In addition to section 1021, section 1717 provides for the reciprocal right to attorney’s fees in a contract case: “(a) 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.”
As explained in Topanga and Victory Partners, LLP v. Toghia, supra, 103 Cal.App.4th at page 787, under section 1021, a broad contractual provision for attorney’s fees is not dependent on section 1717. As also determined in Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 877-878: “‘First, Civil Code section 1717 does not independently bar an award for attorney fees in a tort action. Code of Civil Procedure section 1021 states in pertinent part: ‘Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys... is left to the agreement, express or implied, of the parties....’ Under this statute ‘“[t]he parties to a contract may validly agree to allow for the award of attorney’s fees, even though the suit is based on tort rather than contract.” [Citations.]’ (Lerner v. Ward (1993) 13 Cal.App.4th 155, 161.)” (Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342-1343 [clause allowing fees in any lawsuit or other legal proceeding to which the agreement gives rise broad enough to encompass both contract and tort actions]; Santisas v. Goodwin, supra, 17 Cal.4th at p. 608.)
Roadway brought three kinds of legal action—breach of contract, unjust enrichment, and declaratory relief—against Hanson. The attorney’s fees clause broadly applies to “any... legal action... between the parties... concerning” the grading contract or “the rights and duties of any person in relation thereto.” All of Roadway’s claims involved an effort to recover compensation for the grading work it performed. Roadway repeatedly insisted, thus admitting, that Hanson had assumed all the rights and obligations of the original signatory, Sixth & Radio. (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 269; Gates v. Bank of America (1953) 120 Cal.App.2d 571, 575; Civ. Code, § 1458.) As the successor to Sixth & Radio, Hanson certainly qualifies as a person with rights and duties in relation to the grading contract. Under these circumstances, attorney’s fees were recoverable under any of the causes of action, including the claim for unjust enrichment.
Nevertheless, Roadway argues that Hanson cannot recover attorney’s fees for its successful defense of the unjust enrichment claim because Roadway dismissed the contract cause of action. Roadway asserts that Hanson was not the prevailing party, relying on an exception stated in section 1717, subdivision (b)(2): “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.”
Roadway reasons that Hanson is not the prevailing party under the grading contract or under section 1717 because Hanson prevailed only on the unjust enrichment claim, after which Roadway dismissed its other two claims. Roadway, however, cannot assert the exception stated in section 1717, subdivision (b)(2), because it did not dismiss its unjust enrichment claim and it did not voluntarily dismiss any of its claims as part of a settlement. (Santisas v. Goodwin, supra, 17 Cal.4th at p. 618.)
Roadway’s reliance on MarinaGlencoe, L.P. v. Neue Sentimental Film AG (2008) 168 Cal.App.4th 874, 877-878, does not support its position because, in that case, the court dismissed an action with prejudice at the request of a party while a motion for judgment was pending. The voluntary dismissal before trial triggered the operation of section 1717, subdivision (b)(2). (D & J, Inc. v. Ferro Corp. (1986) 176 Cal.App.3d 1191, 1194.)
In the present case, Roadway dismissed its other two claims after the court ruled against it on the unjust enrichment claim. The dismissal of the remaining claims did not deprive Hanson of its contractual right to fees on Roadway’s unsuccessful unjust enrichment claim. Hanson is entitled to its fees as the prevailing party. (§ 1021.)
We also conclude the amount of the fee award was not an abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1083.) This action was intensively litigated for three years from May 2005 until May 2008. It involved a bankruptcy and generated extensive pretrial law and motion proceedings until it finally terminated by the court granting a motion for judgment on the pleadings in favor of Hanson. No reason exists to apportion the fees incurred when all of Roadway’s claims against Hanson were based on the same operative facts and issues. (Id. at p. 1083, citing Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111; Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130.)
4. Disposition
We affirm the judgment and order Hanson as the prevailing party to recover its costs on appeal.
We concur: Ramirez P. J., Hollenhorst J.