Cooley Construction v. Matthews CA4/3

Filed 2/24/15 Cooley Construction v. Matthews CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

COOLEY CONSTRUCTION, INC., G050422 Plaintiff and Respondent, (Super. Ct. No. CIVVS703800) v. OPINION PATRICK MATTHEWS et al.,

Defendants and Appellants.

Appeal from an order of the Superior Court of San Bernardino County, Marsha Slough, Judge. Reversed and remanded. Wagner Kirkman Blaine Klomparens & Youmans, Carl P. Blaine and Eric R. Garner for Defendants and Appellants. Law Offices of Gregory J. Hout and Gregory J. Hout for Plaintiff and Respondent. * * *

Defendants Patrick Matthews and Home Builders, Inc., (collectively, Matthews) appeal from the trial court’s order limiting them to one-third of their requested costs as the prevailing parties in a contract action and denying their motion for attorney fees. Plaintiff Cooley Construction, Inc., (Cooley) sued Matthews and other defendants for payment of the $400,000 remainder owed for paving and grading work Cooley completed on a residential subdivision project in Victorville. Cooley claimed Matthews was the alter ego or de facto partner and true contracting party behind the limited partnership, Victorville Wildbrook, LP, and CH Builders, Inc. (collectively, Wildbrook), with whom Cooley signed the paving and grading contract. Cooley sued both Matthews and Wildbrook for the money due on the contract, and Cooley prevailed against Wildbrook, but not Matthews. The contract included an attorney fees provision for the prevailing party in payment disputes and, although Matthews did not sign the contract, Cooley had sought in its complaint an award of attorney fees against Matthews based on the contract, presumably on alter ego grounds. In a bench trial on the underlying payment dispute, the trial court rejected the notion Matthews “engaged in, induced, [or] led anyone . . . to believe that” Matthews was Wildwood’s alter ego or the true party entering the contract with Cooley. The court therefore decided the lawsuit in Matthews’ favor against Cooley, but rejected Matthews’ motion for attorney fees, apparently on the basis that Matthews did not sign the contract. But case law establishes a nonsignatory sued on a contract in these circumstances is entitled to attorney fees under the contract, and we therefore reverse the judgment. The matter is remanded for the trial court to determine the amount of attorney fees and costs to which Matthews is entitled. I DISCUSSION Because the parties’ dispute centers on the attorney fee terms of the paving and grading contract, and neither party offered extrinsic evidence to aid in interpreting