Meininger v. Larwin-Northern California, Inc.

Opinion

KANE, J.

Statement of Facts

On May 5, 1972, appellant Meininger and respondent Larwin-Northem California, Inc. entered into a written contract whereby appellant was to perform certain painting work as respondent’s subcontractor.

When a dispute arose between the parties, appellant filed a complaint for breach of contract, alleging that respondent owed him $17,384.76 under the terms of the contract. Additionally, appellant alleged that under paragraph 13 of the parties’ contract and section 1717 of the Civil Code, he was entitled to reasonable attorney’s fees in the sum of $8,000.

[84]

At a pretrial conference on May 19, 1975, the trial court disallowed appellant’s claim for attorney’s fees. The case proceeded to trial, and on May 30, 1975, the jury returned a verdict in favor of appellant in the sum of $7,589.26. Thereafter, on June 17, 1975, the court entered judgment. Appellant appeals from that portion of the judgment disallowing attorney’s fees.

Discussion

The sole issue on this appeal is whether section 1717 of the Civil Code requires an award of attorney’s fees to appellant. Section 1717, in pertinent part, 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 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 necessaiy disbursements.” (Italics added.)

Thus, the resolution of this issue turns on whether or not the contract between appellant and respondent provided for attorney’s fees in an action to enforce the provisions of the contract. The pertinent provisions of the contract provide: “13. Subcontractor’s Liability Insurance, Indemnity: . . . [The first paragraph of this section requires the subcontractor to maintain insurance to protect him from claims arising under workers’ compensation laws, and from tort claims arising from damage to property or from bodily injury or death. The second paragraph continues as follows.]