Filed 11/20/19 Yerman v. Parker CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

—-

JOHN YERMAN, Individually and as Trustee, etc.,

et al.,

Plaintiffs, Cross-defendants and Appellants,

v.

DON M. PARKER, as Trustee, etc., et al.,

Defendants, Cross-complainants and Respondents.

C080254

(Super. Ct. No. 11CV37528)

Plaintiffs John and Terry Yerman brought this action against their neighbors Don M., T.G., and Patricia Parker, trustees of the TLAM FBO Theodore and Patricia Parker Trust (collectively defendants), alleging interference with an easement. Defendants cross-complained for breach of the easement, as well as damages and declaratory relief. The trial court granted judgment in defendants’ favor on every issue except defendants’ claim that plaintiffs owed them money for utilities. As a result, defendants could continue to maintain a gate across the easement, defendants did not owe plaintiffs for repaving the easement, plaintiffs owed defendants for damages for injury to their livestock, but plaintiffs did not owe for utilities.

The sole issue plaintiffs raise on appeal is that the trial court erred in granting attorney fees to defendants as the prevailing party. The written easement agreement provided: “[T]he Prevailing Party in [the] litigation shall be entitled to recover from the nonprevailing party all reasonable attorney fees and costs.” Plaintiffs do not argue that defendants were not the prevailing party. Instead, they argue that plaintiffs were not the nonprevailing party.

We shall conclude that plaintiffs’ interpretation is at odds with Civil Code section 1717, which governs our interpretation of the fee agreement. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Even though the sole issue raised on appeal is defendants’ entitlement to attorney fees, some understanding of the facts of the underlying action is helpful. Plaintiffs own the real property in Burson, California, and defendants are neighboring property owners. Plaintiffs have a driveway easement for ingress and egress over defendants’ property. Plaintiffs alleged defendants threatened to erect a gate across the easement, and did erect and maintain such a gate from 2009 to 2010, when plaintiffs removed the gate. Plaintiffs also alleged defendants harassed them and failed to maintain the easement.

Defendants use their property for farming. They began to notice their real property, farming equipment, and supplies were being vandalized and stolen. They installed a gate with a lock across the driveway easement in an effort to protect their property. Defendants provided plaintiffs with keys and the combination to the lock. Plaintiffs removed the gate from its hinges.

The easement agreement stated plaintiffs would pay all utilities associated with the water holding tank located on plaintiffs’ property, but to which defendants had access. Defendants claimed plaintiffs had not paid the utility bills. Defendants also claimed plaintiffs’ dogs had entered defendants’ property and killed three sheep and six goats.

Plaintiffs filed a complaint alleging a single cause of action to “quiet title” in which they sought to prevent defendants from erecting a gate across the easement, to prevent defendants from harassing them, and to recover damages for defendants’ past obstruction of the easement. Plaintiffs also sought to recover money to pay for the repair of the driveway. Defendants cross-complained for declaratory relief to allow them to maintain a gate across the easement, for breach of easement to recover for the utilities associated with the water holding tank, and for damages for injury to their livestock.

The trial court ruled in defendants’ favor on the gate issue, finding that defendants’ gate did not unreasonably interfere with plaintiffs’ use and enjoyment of the easement. The trial court found plaintiffs had not presented credible evidence of damages to the driveway, thus found in favor of defendants and against plaintiffs on plaintiffs’ claim for damages. Likewise, the trial court fount plaintiffs had failed to establish their harassment claim.

On the cross-complaint, the trial court awarded defendants $1,350 for damage for injury to their livestock. However, the trial court found defendants had failed to provide sufficient evidence to support an award of damages for defendants’ claim that plaintiffs breached the easement agreement by failing to pay the utilities for the water holding tank.

Thus, the trial court ruled in defendants’ favor on the complaint, and ruled in defendants’ favor on the cross-complaint, with the exception of defendants’ cause of action for damages for breach of the easement agreement. The trial court found defendants were deemed the prevailing party and entitled to costs.

Defendants made a posttrial motion to recover attorney fees under the written easement agreement. The trial court found defendants were the prevailing party on the contract and awarded them $40,000 in attorney fees and $202 in costs, a reduction from the $79,675 in attorney fees defendants had requested.

DISCUSSION

I

Appealable Posttrial Motion

We first consider defendants’ argument that the appeal should be denied as untimely. Defendants argue that the time for plaintiffs to appeal the award of attorney fees began to run on March 10, 2015, when notice of entry of the judgment was served on plaintiffs. The judgment served on plaintiffs stated in part that judgment was entered for defendants’ costs incurred, “together with attorney’s fees in the amount of $ ________.” Thus, the amount of attorney fees was left blank. Defendants argue that pursuant to California Rules of Court, rule 8.104(a)(1)(B), plaintiffs had 60 days to appeal the award of attorney fees. Notice of appeal was not filed in this case until September 3, 2015.

Defendants recognize that a motion for new trial provides an extension of time, and plaintiffs filed a notice of motion for new trial on March 25, 2015. However, the extension of time is 30 days from denial of the motion. (Cal. Rules of Court, rule 8.108(b)(1).) Here, the motion was denied by operation of law on May 11, 2015. Defendants argue plaintiffs had to file their notice of appeal within 30 days, or June 10, 2015.

However, the attorney fee award was made in this case following a posttrial motion for fees. The judgment awarding fees following the motion was filed on August 31, 2015. That portion of a judgment that determines a party is entitled to attorney fees, but does not set the amount, is nonfinal and nonappealable. (P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053.) An order awarding attorney fees made after judgment is separately appealable. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) Thus, the earlier judgment awarding defendants their attorney fees, but leaving the amount blank was not final and not appealable as to the issue of attorney fees, and plaintiffs were not required to file their notice of appeal from that judgment in order to appeal the attorney fees award. The fee award was separately appealable, and the notice of appeal filed a few days after the fee award, on September 3, 2015, was timely.

II

Plaintiffs are the Nonprevailing Party Under the Contract

The attorney fee clause in the easement agreement states the following: “If litigation is commenced between the parties, the Prevailing Party in that litigation shall be entitled to recover from the nonprevailing party all reasonable attorney fees and costs. ‘Prevailing Party’ shall include without limitation a party who dismisses an action in exchange for sums allegedly due; the party who receives performance from the other party for an alleged breach of contract or a desired remedy where the performance is substantially equal to the relief sought in an action; or the party determined to be the prevailing party by a court of law.”

Defendants are undeniably the prevailing party in this action. Where neither party obtains a simple, unqualified victory, the trial court has the discretion to determine which party prevailed on the contract. (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.) We will not disturb the trial court’s determination on appeal absent a clear abuse of discretion. (In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 578.) There was no abuse of discretion here, because neither party obtained a simple, unqualified victory, and we cannot say that the ruling exceeds the bounds of reason or contravenes uncontradicted evidence. (Ibid.) Moreover, the easement agreement stated that the court could determine the prevailing party.

Plaintiffs do not try to argue that defendants are not the prevailing party, since the contract provides that the prevailing party may be determined by the court, and the trial court here determined defendants were the prevailing party. Instead, they argue that only a nonprevailing party must pay attorney fees under the clear terms of the contract. They argue, “when the contract provides that in order to be responsible for attorney’s fees you have to be a ‘non prevailing party’ it makes it very clear that only the party who had no success in the litigation and did not prevail on any Complaint or Cross-Complaint or Cause of Action is to have to pay attorney’s fees . . . .” Since they succeeded in not having to pay utilities, as sought in defendants’ breach of easement cause of action, plaintiffs argue they were a prevailing party. Not so.

If an action is on a contract, and the contract provides that the prevailing party shall recover attorney fees, attorney fees must be awarded in accordance with Civil Code section 1717. (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 707.) “The primary purpose of [Civil Code] section 1717 is to ensure mutuality of remedy for attorney fee claims under contractual attorney fee provisions.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 610.) The legislative intent in passing Civil Code section 1717 was “to establish uniform treatment of fee recoveries in actions on contracts containing attorney fee provisions and to eliminate distinctions based on whether recovery was authorized by statute or by contract.” (Santisas, at p. 616.) “Accordingly, while the availability of an award of contractual attorney fees is created by the contract (Code Civ. Proc., § 1033.5, subd. (a)(10)(A)), the specific language of the contract does not necessarily govern the award. In setting contractual attorney fees, ‘ “[e]quitable considerations [under Civil Code section 1717] must prevail over . . . the technical rules of contractual construction.” ’ [Citations.] Parties to a contract cannot, for example, enforce a definition of ‘prevailing party’ different from that provided in Civil Code section 1717.” (Walker v. Ticor Title Co. of California (2012) 204 Cal.App.4th 363, 372-373.)

Thus, the interpretation of contractual attorney fees provisions is governed by statute. Civil Code “section 1717, subdivision (b)(1) defines prevailing party as ‘the party who recovered a greater relief in the action on the contract.’ This definition is mandatory and cannot be avoided or altered by contract; contractual provisions conflicting with it are void.” (Wong v. Thrifty Corp. (2002) 97 Cal.App.4th 261, 264.)

If we were to accept plaintiffs’ interpretation of the easement agreement, it would conflict with Civil Code section 1717, subdivision (a), which states that if the contract provides for the award of attorney fees, “then the party who is determined to be the party prevailing on the contract . . . shall be entitled to reasonable attorney’s fees in addition to other costs.” The trial court determined defendants were the prevailing party, and plaintiffs cannot avoid their obligations under the agreement by their strained interpretation.

DISPOSITION

The judgment awarding attorney fees to defendants and respondents is affirmed. Respondents are awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

BLEASE, Acting P. J.

We concur:

/s/

HULL, J.

/s/

MAURO, J.