Sancarrow Assocs. v. Hermanson CA4/3

Filed 9/26/16 Sancarrow Assocs. v. Hermanson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SANCARROW ASSOCIATES,

Plaintiff and Respondent, G051276

v. (Super. Ct. No. 30-2014-00739472)

BARRY HERMANSON et al., OPINION

Defendants and Appellants.

Appeal from an order of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed. Robert S. Lewin for Defendants and Appellants. Law Offices of Jim P. Mahacek and Jim P. Mahacek for Plaintiff and Respondent.

INTRODUCTION After a complaint against them for unlawful detainer was dismissed, appellants Barry Hermanson and Sally Hermanson moved in the trial court for their attorney fees. The court denied the motion on the ground that Civil Code section 1717 applied to the fee motion and the code section prohibited the award of fees after a voluntary dismissal. For their part, the Hermansons argued that because of the way the attorney fee provision was worded, Civil Code section 1717 did not apply to their motion; the correct statute was Code of Civil Procedure section 1032. We affirm, on two grounds. First, the attorney fee provision under which the Hermansons sought their fees did not apply to them. Second, Civil Code section 1717 governs all contract-based attorney fee motions, and the statute explicitly precludes attorney fee awards after a plaintiff has voluntarily dismissed a lawsuit. This code section applies regardless of the wording of any specific attorney fee provision. FACTS Respondent Sancarrow Associates owns a piece of commercial real estate in Santa Ana. In 1973, Sancarrow leased the property to Carrows Hickory Chip Restaurants, Inc. (Carrows). Carrows in turn subleased the property to the Hermansons 1 in 1986, and the Hermansons subleased it to R.D.R. Corporation. In 2014, Carrows assigned both the 1973 lease (the Senior Lease) and the Hermansons’ sublease to 2 Sancarrow. After having been assigned their sublease, Sancarrow filed an unlawful detainer action against the Hermansons, alleging they had breached an agreement to pay rent based on a percentage of their subtenant’s sales. The matter was set for trial on September 15, 2014. The Hermansons filed a motion in limine and a trial brief on