Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 04CC06073, Kirk H. Nakamura, Judge.
Blumberg Law Corporation and Ave Buchwald for Defendant and Appellant.
Bidna & Keys, Richard D. Keys and Jon A. Longerbone for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
The parties to a lawsuit reached a settlement, and placed that settlement on the record in court. One of the terms of the settlement required defendants to cause a nonparty to transfer an interest in a piece of real property to plaintiff. The nonparty refused, and plaintiff sued the nonparty for breach of the contract entered on the record. The nonparty prevailed, and then moved for an award of attorney fees. The trial court denied the motion, and this appeal followed.
Having reviewed the record de novo, we conclude the nonparty was not sued for breach of a separate written contract that did contain an attorney fees provision, and therefore was not entitled to recover the attorney fees incurred in defending against plaintiff’s case. We affirm the trial court’s postjudgment order denying the motion for attorney fees.
Statement of Facts and Procedural History
Edith L. Hogard, formerly Edith L. Splain, as trustee of the Hogard Trust (Splain), sued Thomas R. Hogard, individually and as trustee of the Thomas and Norma Hogard Trust; Barbara T. Hogard; and Beverly A. Fuhrman, individually and as trustee of the Norwood Trust. The lawsuit sought to set aside a fraudulent conveyance and to quiet title, and requested damages. The parties reached a settlement, the terms of which were recited in court on the record. The parties agreed, in part, that Thomas Hogard and Barbara Hogard would transfer to Splain their interest in a piece of real property in Missouri, and would cause Thomas Hogard’s son, John T. Hogard (Hogard), to transfer his interest in the Missouri property to Splain. The settlement agreement placed on the record in court did not include a provision regarding attorney fees.
A written settlement agreement was later entered into between Splain, and Thomas Hogard, Barbara Hogard, Beverly Fuhrman, and Conway Fuhrman; Hogard was not a party to the written settlement agreement. In the written settlement agreement, Thomas Hogard and Barbara Hogard agreed to transfer the Missouri property to Splain, and to cause Hogard to transfer his interest in the Missouri property to Splain. The written settlement agreement also contained a provision that the prevailing party in any “suit... to enforce or interpret any part of this Agreement” shall recover attorney fees as an element of costs.
Hogard refused to convey his interest in the Missouri property to Splain. Splain filed a motion under Code of Civil Procedure section 664.6 to enforce the terms of the settlement agreement entered on the record in court. The trial court granted the motion, and permitted Splain to file a supplemental complaint naming Hogard as a defendant. Hogard’s demurrer to the cause of action for fraud against him was sustained without leave to amend. Hogard then filed a motion for summary judgment as to the remaining cause of action against him for damages and specific performance. The trial court granted the motion, and judgment was entered.
Hogard filed a motion for attorney fees. The trial court denied Hogard’s motion. Hogard timely appealed.
Discussion
I.
The trial court did not err in denying Hogard’s motion for attorney fees.
“The legal basis for an award of attorney fees is reviewed de novo.” (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1511.) “We review de novo a determination of an award of attorney fees under a contractual provision where, as here, no extrinsic evidence has been offered to interpret the contract, and the facts are not in dispute.” (Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174, 1177.)
In his motion for attorney fees, Hogard argued he was entitled to contractual attorney fees under Civil Code section 1717, subdivision (a), which provides, in relevant part, 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.” Section 1717 permits the recovery of contractual attorney fees “when a person sued on a contract containing a provision for attorney fees to the prevailing party defends the litigation ‘by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract.’ [Citation.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 611.)
Civil Code “[s]ection 1717 was enacted to establish mutuality of remedy where contractual provision makes recovery of attorney’s fees available for only one party [citations], and to prevent oppressive use of one-sided attorney’s fees provisions. [Citation.] [¶] Its purposes require section 1717 be interpreted to further provide a reciprocal remedy for a nonsignatory defendant, sued on a contract as if he were a party to it, when a plaintiff would clearly be entitled to attorney’s fees should he prevail in enforcing the contractual obligation against the defendant.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128.) Hogard relies on Reynolds Metals Co. v. Alperson, to no avail, for two reasons. First, he cannot establish any entitlement to attorney fees on the part of any party under the court supervised settlement agreement, as opposed to the written settlement agreement, which Hogard never executed. Second, with respect to Splain’s claim for breach of the written settlement agreement, she did not seek attorney fees against Hogard.
In Brittalia Ventures v. Stuke Nursery Co., Inc. (2007) 153 Cal.App.4th 17, 21 22, the plaintiff sued for breach of express and implied warranties in connection with the purchase of 14,000 walnut trees from the defendant. The plaintiff argued the parties’ contract consisted only of a written purchase proposal and the plaintiff’s check. (Id. at p. 22.) The defendant contended the contract also included a series of invoices and receipts containing standard, preprinted warranty disclaimers. (Id. at pp. 20 22.) The plaintiff prevailed at trial, and was awarded attorney fees. (Id. at pp. 22 23.) The appellate court reversed the attorney fees award because the plaintiff had not sued the defendant under a contract containing an attorney fees provision. (Id. at p. 29.) The written purchase proposal on which the plaintiff sued did not contain an attorney fees provision; the attorney fees provision was included in the invoices and receipts, on which the defendant had relied, and which the plaintiff had successfully proven were not a part of the contract. (Id. at p. 31.) The appellate court concluded Civil Code section 1717’s mutuality of remedy for contractual attorney fees claims did not apply. “[The plaintiff] cannot be allowed to win on its contract action by championing one contract without an attorney fee provision, and then turn around and ask for attorney fees as prevailing party based on a different contract, with an attorney fee provision, that [the plaintiff] had to defeat to secure its victory.... ‘[S]ection 1717... only comes into play where a contract specifically provides for attorney fees. “The primary purpose of... section 1717 is to ensure mutuality of remedy for attorney fee claims under contractual attorney fee provisions.” [Citation.] It cannot be bootstrapped to provide for attorney fees for breach of a contract that has no attorney fees provision.’ [Citation.]” (Brittalia Ventures v. Stuke Nursery Co., Inc., supra, 153 Cal.App.4th at p. 31.)
Splain did not sue Hogard for breaching the written settlement agreement, which contains the attorney fees provision. Splain sued Hogard for breaching the settlement placed on the record in court on February 6, 2006, which agreement did not contain an attorney fees provision. The issue before the trial court on Hogard’s motion for summary judgment was whether Hogard breached the settlement placed on the court record.
On our own motion, we augment the record on appeal with the following document: memorandum of points and authorities of Splain in opposition to the motion for summary judgment of Hogard, filed April 10, 2008, in Splain v. Hogard (Super. Ct. Orange County, 2008, No. 04CC06073). (Cal. Rules of Court, rule 8.155(a)(1)(A).)
The allegations and prayer for relief in the supplemental complaint confirm our determination that Hogard was not sued for breach of the written settlement agreement. Paragraph 12 of the supplemental complaint alleges Splain and Thomas Hogard and Barbara Hogard entered into a court supervised settlement agreement, and later executed a written settlement agreement; Hogard is not alleged to have executed the written settlement agreement. Paragraph 13 alleges Thomas Hogard and Barbara Hogard represented to Splain they were authorized by Hogard to enter into the court supervised settlement agreement on his behalf; it does not allege Hogard authorized them to execute the written settlement agreement on his behalf. Paragraph 20 alleges: “The terms of the settlement agreement provide that Edith is entitled to recover her reasonable attorneys’ fees in an amount to be fixed by the court from Barbara and Thomas.” Paragraph 20 does not refer to Hogard at all. The prayer on the first cause of action for breach of the court supervised settlement agreement requests “reasonable attorney fees as against Thomas and Barbara.” By expressly requesting attorney fees from Thomas Hogard and Barbara Hogard, while not mentioning Hogard, who was also named as a defendant, Splain acknowledged she had no claim against Hogard under the written settlement agreement containing the attorney fees provision.
Splain’s prayer for costs on all the causes of action (including those against Hogard) does not entitle Hogard to attorney fees, even though the written settlement agreement defines attorney fees as an element of costs, not damages. “A prevailing party is not entitled to fees simply because the opposing party requested them.” (Hasler v. Howard (2005) 130 Cal.App.4th 1168, 1171.) Splain would not have been entitled to attorney fees from Hogard under the pleadings, as we have detailed ante. (Nor did she even ask for them.) As a result, Hogard is not entitled to such fees against Splain.
II.
The trial court did not prejudicially err in overruling Hogard’s objection to paragraph 9 of the declaration of Splain’s counsel.
Hogard argues the trial court erred by overruling his objection to paragraph 9 of the declaration of Jon A. Longerbone, Splain’s counsel, filed with Splain’s opposition to Hogard’s motion for attorney fees. Paragraph 9 reads as follows: “Plaintiff has never contended that defendant John Hogard agreed to any of the additional terms contained in the subsequent written settlement agreement and he was not sued on the written agreement which contains the additional provision for recovery of attorneys fees which was never part of the original agreement on February 6, 2006. Plaintiff has never alleged that defendant John Hogard agreed to any of those additional terms contained in the subsequent written agreement specifically including the attorneys fees provision.” Hogard objected to this paragraph as follows: “The supplemental complaint speaks for itself and is the best evidence of what is alleged. Thus, Jon A. Lon[g]erbone’s assertions that John was not sued on the subsequent written settlement agreement which contained the attorney fee provision and that plaintiff has never alleged that John Hogard agreed to these additional terms are conclusions, argumentative, hearsay and constitute secondary evidence which is not admissible. See Evidence Code section 1523, subdivision (a): ‘oral testimony is not admissible to prove the content of a writing.’”
We need not determine whether the trial court abused its discretion in overruling the objection to paragraph 9 of the Longerbone declaration, because Hogard conceded in his opening brief on appeal that any error was harmless. After explaining that the trial court recognized the principle that the language of the complaint itself, rather than counsel’s opinions of its meaning, determines what it means, Hogard’s brief states: “Thus, although the trial court overruled John’s objections to paragraph 9 of Mr. Longerbone’s declaration, it appropriately disregarded his characterizations of what Edith claimed in her supplemental complaint.”
Disposition
The postjudgment order is affirmed. Respondent to recover costs on appeal.
WE CONCUR: MOORE, ACTING P. J., ARONSON, J.