Smith v. Calbert Ca1/1

Filed 6/25/15 Smith v. Calbert Ca1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

CAMERON R. SMITH, Plaintiff and Appellant, A140558 v. BRIAN CALBERT et al., (Solano County Super. Ct. No. FCS037142) Defendants and Respondents.

The principal issue in this case is whether an attorney fees provision in a residential rental agreement is worded broadly enough to authorize fees incurred in connection with both contract and tort claims.1 Plaintiff and appellant Cameron R. Smith rented a residential property first to Brian and Rachel Calbert and, then, after the couple were divorced, to Brian, and finally to Brian and his new wife, Mikele Calbert. In total, Calberts occupied the property for nine years. After they vacated the property, Smith filed the instant lawsuit for damage to the property, alleging three causes of action—breach of contract, negligence and waste. Ten months later, after the Calberts had retained counsel and filed an answer to the complaint, Smith dismissed the lawsuit without prejudice. The Calberts filed a motion for attorney fees, claiming the fee provision in the rental agreement was broad enough to encompass tort, as well as contract, claims. This meant, according to the Calberts, the prohibition against a contractual fee award under 1 We conclude this appeal is proper for disposition by memorandum opinion pursuant to California Standards of Judicial Administration, standard 8.1.

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Civil code section 1717, subdivision (b)(2),2 where a lawsuit is voluntarily dismissed, did not apply. The trial court agreed and awarded the Calberts $26,761 in attorney fees.3 Smith contends the trial court erred in ruling the fee provision permits an award of attorney fees for both contract and tort claims and also erred in ruling the Calberts’ fee motion was timely. We need not and do not reach the second issue, since we agree the fee provision reaches only contract claims and therefore section 1717, subdivision (b)(2), forecloses any fee award, given Smith’s voluntary dismissal of the case. DISCUSSION The attorney fee provision in the rental agreement provides in pertinent part: “In any action or legal proceeding to enforce any part of this Agreement, the prevailing party . . . shall recover reasonable attorneys fees and court costs.” Section 1717 regulates contractual shifting of attorneys fees. Subdivision (b)(2) states: “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” The courts have construed this provision to mean that where there has been a voluntary dismissal, there can be no award of contractual fees in connection with a contract claim. However, the prohibition extends only to contract claims, and not to tort claims. Thus, if an attorney fees provision is broadly worded, and allows for an award of fees for both contract and tort claims, then there can be a “prevailing party” on the tort claims, despite a voluntary dismissal. (Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1071 (Drybread).) Frequently, the standard of review on appeal from an attorney fee award is abuse of discretion. That is not the case, however, where, as here, the issue on appeal is one of contractual interpretation. In such case, the court reviews the contractual language de novo. (Casella v. Southwest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1161 (Casella).)