Barez v. Ni CA6

Filed 2/27/15 Barez v. Ni CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

H040654 FRED BAREZ et al., (Santa Clara County Super. Ct. No.1-10-CV170304) Plaintiffs, Cross-defendants, and Respondents, v. NICK ZHI NI et al.,

Defendants, Cross-complainants, and Appellants.

Appellants Fred Barez and Rank Technology Corporation appeal from an order denying their request for attorney fees for a successful appeal in a dispute with respondents Nick Ni and Renee Zhou over a lease of appellants’ commercial property. Appellants contend that the lease provided for attorney fees to the prevailing party in an appeal, regardless of that party’s success in the underlying litigation and independently of Civil Code section 1717 (section 1717). We will affirm the order. Background After respondents attempted to cancel their lease, Rank Technology Corporation and its sole shareholder, Barez, sued them for breach of contract and breach of guaranty. Respondents cross-complained for fraudulent inducement and breach of contract. A jury denied relief to both parties, and both then requested attorney fees under section 1717. The trial court, however, determined that neither party had prevailed, and we upheld that ruling on appeal (Barez, et al. v. Ni, et al. (July 31, 2013, H037572) [nonpub opn.]).

The respondents in that appeal, now appellants, sought their attorney fees for the appeal, 1 citing the fee provision of the lease. The court’s denial of that motion occasioned this timely appeal. Discussion In most contract actions, a party claiming attorney fees relies on section 1717 to 2 enforce a provision in the contract for attorney fees to the prevailing party. Appellants take a different approach; they attempt to distance themselves from that statute and instead insist that their right to recover is governed exclusively by the language of the attorney fees provision in the lease. According to their reasoning, section 1717 pertains to an entire action, whereas they sought fees for only a part of the action, the appeal. The lease, appellants explain, “isolates attorney fees on appeal from fees in the overall action and explicitly allows for the recovery of fees on the appeal, irregardless [sic] of the determination of the prevailing party in the entire action.” They further assert that “[t]he