Schlocker v. Schlocker

Opinion

KINGSLEY, Acting P. J.

Plaintiffs filed a complaint,

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in seven causes of action, claiming fraud, breach of contract, rescission and declaratory relief. Of the seven causes of action, only two (the first and fourth) purported to state a cause of action against defendant Marilyn Schlocker. Those causes of action sought recovery from her for fraud in inducing plaintiffs to enter into a contract. Marilyn’s motion for a summary judgment was granted and the court included, purportedly under the authority of section 1717 of the Civil Code, an award of attorney fees to her. Plaintiffs have appealed;

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we modify the judgment insofar as it awards attorney fees and affirm it as so modified.

Section 1717 of the Civil Code reads as follows:

“In any action on a contract, where such contract specifically provides that attorney’s fees and costs, which are incurred to enforce the

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provisions of such contract, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to costs and necessary disbursements.

“Attorney’s fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney’s fees is void.

“As used in this section ‘prevailing party’ means the party in whose favor final judgment is rendered.”

That section gives no authority for the award herein involved. Insofar as Marilyn is concerned, the suit was not, as the statute requires,

on

the contract but in tort for fraud in derogation of the contract. Marilyn’s reliance on

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