Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 03CC02347, Clay M. Smith, Judge.
Kevin E. Monson for Defendant and Appellant.
Kutak Rock, Edwin J. Richards and Antoinette P. Hewit, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Dee R. Bangerter appeals from a postjudgment order that denied his motion for attorney fees, after he prevailed on a prior appeal in which we reversed a fee award for Wells Fargo Bank Minnesota, National Association (Wells Fargo). Bangerter argues he was entitled to fees under Civil Code section 1717 (section 1717). We disagree and affirm.
FACTS
This matter was the subject of two prior appeals. In one, we affirmed a judgment for Wells Fargo in a breach of lease action against B.C.B.U., Inc., and a declaratory relief action against Bangerter (its president) as guarantor of the lease. (Wells Fargo Bank Minnesota, N. A. v. B. C. B. U. et al. (2006) 143 Cal.App.4th 493.) In the other, we reversed a postjudgment order that awarded Wells Fargo attorney fees against Bangerter (but affirmed as against B.C.B.U.) (Wells Fargo Bank Minnesota, N. A. v. B. C. B. U. et al. (Sept. 27, 2006, G036131) [nonpub. opn.].)
On remand, Bangerter moved for attorney fees on his successful appeal. His theory was Wells Fargo would have been entitled to its fees had it won the prior fee appeal, so the rule of reciprocity under section 1717 entitled Bangerter to fees. The trial court denied the motion, and properly so.
DISCUSSION
It is the law that “a party is entitled to attorney fees under section 1717 ‘even when the party prevails on grounds the contract is inapplicable, invalid, unenforceable or nonexistent, if the other party would have been entitled to attorney’s fees had it prevailed.’ [Citations.]” (Hsu v. Abbara (1995) 9 Cal.4th 863, 870.) But as another court explained in denying a motion for fees on appeal, “[a] prevaling party is not entitled to fees simply because the opposing party requested them. In Hsu, the attorney’s fee clause in the alleged contract was sufficient to encompass the cause of action, and Hsu would have been entitled to fees had he prevailed. Here, however, the alleged contract . . . did not entitle either party to fees, no matter who prevailed.” (Hasler v. Howard (2005) 130 Cal.App.4th 1168, 1171.) Such is the case here.
In our opinion on the prior fee appeal, we held Wells Fargo could not recover from Bangerter for two reasons. One was the fee clause in Bangerter’s guarantee was not broad enough to include the sole claim against him, for declaratory relief. (Wells Fargo Bank Minnesota, N. A. v. B. C. B. U. et al, supra (Sept. 27, 2006, G036131 [nonpub. opn.], pp. 4-5.) To paraphrase Hassler, neither party was entitled to fees under the guarantee, regardless of who prevailed. Since Wells Fargo could not have won the fee appeal because the fee clause was inapplicable, Bangerter was not entitled to fees under the rule of reciprocity.
Bangerter argues the lease also had a fee clause that was broad enough to allow an award of fees on the declaratory relief claim against him, so he should get fees now for prevailing on the prior fee appeal. But we deem the argument waived. First, the lease fee clause is not in the record before us, nor was it designated for inclusion in the clerk’s transcript by Bangerter. (See Cal. Rules of Court, rule 8.122 (a).) Second, the point was not raised until Bangerter filed a reply brief, which is too late. The failure to raise a point in appellant’s opening brief waives the issue on appeal. (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361.)
Since Bangerter was sued for a declaration his guarantee was enforceable, but the guarantee fee clause did not encompass an award in a declaratory relief action,
Bangerter was not entitled to fees for prevailing on the prior fee appeal. The order appealed from is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: O’LEARY, J., IKOLA, J.