California Court of Appeal Mar 17, 2025 No. E081888Unpublished
Filed 3/17/25 Trapp v. Maham Corp. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
BENNIE G. TRAPP, JR. et al.,
Plaintiffs and Appellants, E081888
v. (Super.Ct.No. RIC1906211)
MAHAM CORP. et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Eric A. Keen, Judge.
Affirmed in part, reversed in part with directions.
Andrews Law Group and Brian C. Andrews for Plaintiffs and Appellants.
Manjlai Law and Haroon Manjlai for Defendants and Respondents.
Plaintiffs Bennie G. Trapp Jr. (Trapp) and Kerrie Louise Trapp as trustee of the
Bennie Garrett Trapp Jr. Special Needs Trust (the trust) appeal from an order denying the
trust’s motion for attorney fees and costs. We reverse the order and remand with
directions to grant the motion.
1
BACKGROUND1
Trapp entered into an agreement with Maham Corp. (Maham) in December 2016
to lease certain residential property from January 1, 2017, to December 31, 2018. The
lease agreement contained an addendum that gave Trapp the right either to purchase the
property on December 31, 2018, for $110,000 or to renew the lease through the end of
2020. If Trapp exercised the right of renewal, the lease agreement provided him “the
option, on December 31, 2020, to purchase the premises for a fair market value at that
time” to be determined by a real estate appraiser or a real estate professional.
In December 2019, Trapp filed a lawsuit against Maham, Sayid Ali, and Jawad
Afzal (collectively, defendants), seeking declaratory relief and alleging that defendants
breached the lease agreement by listing the property for sale without offering Trapp the
right of first refusal. Trapp alleged that he renewed the lease agreement on or before
December 31, 2018, and that he learned in November 2019 that defendants listed the
property for sale for $169,000. He further alleged that in December 2019 he sent
defendants a residential purchase agreement with an offer to purchase the property at the
asking price. Defendants allegedly did not respond to the offer.
1 Our summary of the facts is based on the record on appeal. We do not consider factual assertions contained in appellants’ briefs that are not supported by evidence in the record. (Nick v. City of Lake Forest (2014) 232 Cal.App.4th 871, 879.) ““Citing points and authorities filed in the trial court is not appropriate support for factual assertions in a brief. Points and authorities are not presented under penalty of perjury. Matters set forth in points and authorities are not evidence.” (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590.) Argument by counsel at a court hearing is also not evidence. (El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 62.)
2
In conjunction with filing the complaint, Trapp filed with the superior court a lis
pendens concerning the property.2 In January 2021, the trial court ordered the case to be
mediated by May 7, 2021.
Trapp filed a first amended complaint in February 2021 in which he again alleged
causes of action for breach of contract and declaratory relief. Trapp alleged that Maham
breached the lease agreement by not accepting his offer to purchase the property for
$169,000.
According to the superior court’s docket, an assigned mediator conducted the
court-ordered mediation in May 2021, and the mediation “ended in nonagreement.” In
August, the trial court expunged the lis pendens filed by Trapp.
Trapp filed a second amended complaint in October 2021. He alleged two breach
of contract causes of action and requested declaratory relief. Trapp alleged that
defendants breached the lease agreement by refusing a December 2018 offer that he made
to purchase the property for $110,000 and also by refusing to perform on a separate
agreement to sell the property to the trust for $169,000. He attached the signed purchase
agreement to the pleading. It was entered into by the trust and Maham in April 2020,
with Maham agreeing to sell the property to the trust for $169,000.
2 “‘“In California, a notice of lis pendens [or a notice of pending action] gives constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice. [Citation.] Any taker of a subsequently created interest in that property takes his [or her] interest subject to the outcome of that litigation.”’ [Citation.] If an action asserts a ‘real property claim,’ any party to the action may record a lis pendens.” (Rey Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th 259, 262.)
3
In October 2021, the trust filed a lawsuit against defendants for specific
performance of the purchase agreement. The trial court consolidated the lawsuits in May
2022, and the trust then filed a first amended complaint for specific performance of the
purchase agreement.
The trial court held a bench trial in October 2022. In a statement of decision
issued in January 2023, the court found that in December 2018 Trapp exercised his
option under the lease agreement to purchase the property for $110,000 but also found
that Trapp waived the right to purchase the property at that price by doing nothing to
enforce that right. The court further found that Trapp later offered to purchase the
property for $169,000 and that defendants accepted the offer in November 2019. The
court further found that during escrow Trapp and defendants agreed to an amended price
of $150,000. The court ordered “the property that is the subject of the 12/29/16
residential lease agreement sold to the Bennie Garrett Trapp, Jr. Special Needs Trust or to
Mr. Trapp. Defendants, jointly and severally, are ordered to sell the property at $150,000
....”
Thereafter, the trust filed a motion for an award of attorney fees and costs in the
amount of $116,961.25. The trust argued that it was entitled to attorney fees under the
purchase agreement as the prevailing party.
The attorney fees provision of the purchase agreement provides: “In any action,
proceeding or arbitration between Buyer and Seller arising out of this Agreement, the
prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the
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non-prevailing Buyer or Seller, except as provided in paragraph 22A.” Paragraph 22A
reads: “The parties agree to mediate any dispute or claim arising between them out of
this Agreement, or any resulting transaction, before resorting to arbitration or court action
through the C.A.R. Real Estate Mediation Center for Consumers
(www.consumermediation.org) or through any mediation provider or service mutually
agreed to by the Parties. . . . If for any dispute or claim to which this paragraph applies
any party (i) commences an action without first attempting to resolve the matter through
mediation or (ii) before commencement of an action refuses to mediate after a request has
been made, then that Party shall not be entitled to recover attorney fees even if they
would otherwise be available to that Party in any such action. . . . Exclusions from this
mediation agreement are set forth in paragraph 22C.” Paragraph 22C(2) provides: “The
following shall not constitute a waiver nor violation of the mediation and arbitration
provisions: . . . (ii) the filing of a court action to enable the recording of a notice of
pending action, . . . .”
The trust argued that it satisfied the mediation requirement in paragraph 22A by
attending the court-ordered mediation in the Trapp litigation before it filed its lawsuit. It
stated: “This case, including demands by both Plaintiffs, to wit, Garrett Trapp, an
individual, with regard to his already filed lawsuit, as well as the demands of The Bennie
Garrett Trapp, Jr. Special Needs Trust (hereinafter the ‘The Trust’—and at that time
being represented in this matter by Garrett Trapp) were all mediated on May 3, 2021.
Trustee, Kerri Trapp was available to participate remotely upon request.” (Capitalization
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and boldfacing omitted.) Counsel for the trust filed a declaration in support of the
motion. The only statement he made concerning the court-ordered mediation is:
“Defendants and Plaintiffs did specifically mediate the issues raised in the Trust lawsuit,
as part of Mediation undertaken in related civil action on May 3, 2021.”
Defendants opposed the motion, arguing that the court-ordered mediation did not
satisfy the purchase agreement’s mediation requirement and that the trust otherwise failed
to satisfy the agreement’s mediation requirement because the trust filed the lawsuit
without first attempting to resolve the dispute through the specific mechanisms set forth
in the agreement. Ali submitted a declaration in support of the opposition. He attested
that neither Trapp nor the trust ever asked him to mediate any disputes related to the
property. Ali stated that he would have agreed to mediation conducted by the C.A.R.
Real Estate Mediation Center for Consumers or other mediation service providers.
The trust addressed defendants’ arguments in its reply and also argued for the first
time that it was exempted from the mediation requirement because it filed the lawsuit in
order to record and maintain a lis pendens. In support of its argument that the lis pendens
exception in paragraph 22C(2) applied, the trust relied on Blackburn v. Charnley (2004)
117 Cal.App.4th 758 (Blackburn), which involved a residential purchase agreement
containing a similar attorney fees provision, mediation requirement, and lis pendens
exception. (Id. at p. 767.)
The trial court continued the hearing on the motion and allowed defendants to file
a sur-reply in order to address the new argument concerning the lis pendens. Defendants
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argued that the lis pendens exception was inapplicable because the trust did not file a lis
pendens with the court, thus rendering any recorded lis pendens void under sections
405.22 and 405.23 of the Code of Civil Procedure. Defendants further argued that no
evidence of a lis pendens recorded by the trust was presented at trial or introduced in
support of the attorney fees motion.
Defendants requested that the trial court take judicial notice of its own docket,
which reflected that no lis pendens had been filed. After defendants filed the sur-reply,
the trust filed a request for judicial notice of a lis pendens that the trust recorded with the
county clerk on October 18, 2021, the same day that the trust filed its original complaint.
The trial court issued a tentative ruling in which it indicated that it was inclined to
deny the motion. The trust requested a hearing on the motion, which the trial court held.
The court took judicial notice of the lis pendens that the trust recorded with the county
clerk in October 2021.
At the hearing, the court indicated that it had updated the tentative to include two
additional paragraphs addressing Blackburn and the lis pendens exception in the purchase
agreement. The court described the added paragraphs as follows: “And what I indicated
in the last two paragraphs is that our residential purchase agreement doesn’t have the
same provision as what was dealt with in Blackburn which specifically talked about not
having to comply with the mediation requirement if you’re filing an action to contest a lis
pendens. [¶] That’s not in the residential purchase agreement. And in the last paragraph
I actually—my research attorney sent it to me, basically just sort of word-for-word what’s
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in the residential purchase agreement.” The court asked both parties’ counsel if they had
reviewed the amended version. The trust’s attorney responded: “I have the most current
tentative that the Court just described.” The version of the tentative ruling in the record
on appeal does not include the two additional paragraphs addressing the lis pendens
exception.3
Both counsel argued about whether the lis pendens exception applied. The trust’s
attorney argued that, contrary to the court’s tentative ruling, the purchase agreement did
have a lis pendens exception to the prelitigation mediation requirement. The trust’s
counsel described where the exception was located in the agreement and quoted the
language of the exception. Defendants’ attorney did not deny that the contract contained
a lis pendens exception but instead argued that the exception did not apply.
After hearing argument from both counsel, the trial court denied the motion for the
reasons stated in its tentative ruling and adopted the tentative ruling as the court’s order.
But the court also acknowledged that the purchase agreement contained the lis pendens
exception on which the trust’s counsel relied: “I do appreciate . . . you pointing out the
paragraph (c)(2) and then Roman Numerals I, II, III. I have that up in front of me. I’ve
3 In their opening brief, Trapp and the trust assert (without citation to any evidence) that the two additional paragraphs that the trial court described at the hearing “are not present in the tentative ruling possessed by Appellant’s counsel or in the tentative ruling available to download on the court’s website. Appellants assert that the tentative was never changed and/or that any such change was never published, and thus, tentative remains as issued originally.” That assertion contradicts appellants’ counsel’s express acknowledgement in the trial court that he had received the amended version of the tentative ruling.
8
been able to read it a couple of times. Both counsel have read it a couple of times. [¶]
At this point though, the Court is going to adopt its tentative.”
The court found the trust to be the prevailing party on its action for specific
performance of the purchase agreement, but the court nevertheless concluded that the
trust was not entitled to attorney fees because it failed to comply with the mediation
requirement contained in paragraph 22A. The court reasoned that the court-ordered
mediation in Trapp’s lawsuit did not satisfy paragraph 22A’s requirements because (1)
the mediation was court-ordered and not conducted by the provider specified in the
agreement or by a mutually chosen provider and (2) the trustee did not participate in the
mediation. In addition, the court did not analyze whether Trapp was entitled to attorney
fees under the purchase agreement. The court concluded that Trapp was not entitled to
attorney fees because he did not file a motion for attorney fees.
DISCUSSION
Trapp and the trust contend that the trial court erred by not awarding them attorney
fees pursuant to the purchase agreement. We agree as to the trust.
Civil Code section 1717 provides: “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.” (Id., subd. (a).) “Reasonable attorney’s fees shall be fixed by
9
the court, and shall be an element of the costs of suit.” (Ibid.) Attorney fees
contractually authorized by section 1717 of the Civil Code are recoverable as costs under
(c)(5)(B).) Such attorney fees “shall be fixed either upon a noticed motion or upon entry
of a default judgment, unless otherwise provided by stipulation of the parties.” (Code
Civ. Proc., § 1033.5, subd. (c)(5)(A).)
“The fundamental goal of contractual interpretation is to give effect to the mutual
intention of the parties.” (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254,
1264; Civ. Code, § 1636.) “Such intent is to be inferred, if possible, solely from the
written provisions of the contract.” (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d
807, 822; Civ. Code, § 1639.) If contractual language is clear, explicit, and not absurd,
the language governs. (Civ. Code, § 1638; Bank of the West, at p. 1264.)
We independently review the trial court’s interpretation of a written contract
unless “the contract is ambiguous and conflicting extrinsic evidence is admitted to assist
the court in interpreting the contract.” (Tribeca Companies, LLC v. First American Title
Ins. Co. (2015) 239 Cal.App.4th 1088, 1110.) We also independently review the
determination of the legal basis for an award of attorney fees. (Greif v. Sanin (2022) 74
Cal.App.5th 412, 454 (Greif); Blackburn, supra, 117 Cal.App.4th at p. 767.) We review
the trial court’s factual findings for substantial evidence. (Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) We do not “reweigh evidence,
10
reappraise the credibility of witnesses, or resolve factual conflicts contrary to the trial
court’s findings.” (Eidsmore v. RBB, Inc. (1994) 25 Cal.App.4th 189, 195.)
Trapp argues that he was entitled to attorney fees under the purchase agreement as
a prevailing party. The argument fails. The trial court declined to determine whether
Trapp was a prevailing party and instead did not award Trapp attorney fees because he
did not file his own motion for attorney fees. In order to be awarded attorney fees
pursuant to a contract, the party seeking the award must file a noticed motion for attorney
fees if the parties do not stipulate otherwise. (Code Civ. Proc., §1033.5, subd. (c)(5)(A);
Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1723-1725.) Trapp did not
file a motion for attorney fees, and the record contains no evidence that the parties
otherwise stipulated that Trapp was entitled to attorney fees under the purchase
agreement. He accordingly did not satisfy the statutory requirement of filing a noticed
motion to be awarded attorney fees. (Code Civ. Proc., §1033.5, subd. (c)(5)(A).) The
trial court therefore did not err by not awarding Trapp attorney fees. (Ibid.)
The trust contends that the trial court erred by not awarding it attorney fees
because (1) the trust satisfied the prelitigation mediation requirement of paragraph 22A
by attending the court-ordered mediation in the Trapp litigation and (2) in any event, the
trust was exempted from the mediation requirement in paragraph 22A because the trust
filed its lawsuit in order to record a lis pendens on the property. We need not address
whether the trust satisfied the prelitigation mediation requirement by attending the court-
ordered mediation, because we agree that the trust was exempted from that requirement.
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The lis pendens exception to the mediation requirement provides that “the filing of
a court action to enable the recording of a notice of pending action” “shall not constitute a
waiver nor violation” of the mediation requirement in paragraph 22A. On October 18,
2021—the same day that the trust filed its complaint—the trust recorded a lis pendens
with the county clerk. (Code Civ. Proc., § 405.20.) That same day, the trust served
Maham and Maham’s agent for service of process with the lis pendens. (Id., § 405.22.)
According to the superior court docket, the trust did not file the lis pendens with the
court. The efforts undertaken by the trust in recording and serving the lis pendens on the
same day that the lawsuit was filed satisfied the contractual requirement that the trust
filed the lawsuit “to enable the recording of a notice of pending action.” The lis pendens
exception to the prelitigation mediation requirement accordingly applies, and the trust is
therefore entitled to recover its attorney fees as the prevailing party. (Greif, supra, 74
Cal.App.5th at p. 455; Blackburn, supra, 117 Cal.App.4th at p. 768.)
Defendants’ only argument to the contrary fails. Defendants contend that the trust
“has not presented any arguments pertaining to CCP §§ 405.22 and 405.23, and why its
Lis Pendens is valid, despite failure to comply with mandatory procedural requirements
stated therein (‘Immediately following recordation, a copy of the notice shall also be filed
with the court in which the action is pending.’ CCP § 405.22.)” (Boldface omitted.) The
trust did not have to make any such argument or showing. First, the trial court did not
reject application of the lis pendens exception on the basis of noncompliance with Code
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of Civil Procedure section 405.22. Second, by its terms the lis pendens exception applies
if a court action was filed “to enable the recording of a notice of pending action.” That
contractual requirement was satisfied by the trust’s recording and service of the lis
pendens on the same day that it filed the lawsuit. Those facts show that the trust filed its
lawsuit “to enable the recording of a notice of pending action.”
For the foregoing reasons, we conclude that the trial court erred by denying the
trust’s motion for attorney fees under the purchase agreement.
DISPOSITION
The order declining to award attorney fees to Trapp is affirmed. The order
denying the trust’s motion for attorney fees is reversed, and the matter is remanded with
directions to grant the motion and determine the amount of the attorney fees award. The
parties shall bear their own costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
RAMIREZ P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trust was entitled to attorney fees because its lawsuit fell under the purchase agreement's lis pendens exception to the prelitigation mediation requirement. The court affirmed the denial of fees to Trapp individually because he failed to file a noticed motion for fees as required by statute.
Issues
Whether the trial court erred in denying the trust's motion for attorney fees based on the mediation requirement in the purchase agreement.
Whether the trial court erred in denying attorney fees to Trapp individually for failure to file a noticed motion.
Whether the lis pendens exception to the mediation requirement applies when a party records a lis pendens but fails to file it with the court.
Disposition. Affirmed in part, reversed in part with directions.
Quotations verified verbatim against the opinion
“The lis pendens exception to the prelitigation mediation requirement accordingly applies, and the trust is therefore entitled to recover its attorney fees as the prevailing party.”
“Trapp did not file a motion for attorney fees, and the record contains no evidence that the parties otherwise stipulated that Trapp was entitled to attorney fees under the purchase agreement.”