Cullen v. Corwin

Opinion

BUTZ, J. Plaintiffs Joe and Marieanne Cullen stated alternate counts1 that alleged defendants Paul and Geraldine Corwin acted either negligently or fraudulently in failing to disclose the defective condition of the garage roof when the Corwins sold a vacation home to the Cullens.2

The Corwins moved for summary judgment on the ground that the statute of limitations had expired. The trial court granted the motion and entered judgment in their favor. It subsequently granted their motion to recover $16,500 in legal fees as costs, pursuant to a provision in the standard form purchase agreement. The Cullens filed a timely notice of appeal from the judgment and order.

The Cullens contend there are triable issues of fact regarding the accrual of their cause of action, and assert the trial court abused its discretion in any event in failing to grant leave to amend their pleading to state a theory of breach of a written contract. They also assert (among other arguments) that there is a procedural bar to the recovery of legal fees because the Corwins failed to agree to mediation, which is a condition precedent under the purchase agreement for recovery of legal fees. We shall affirm the judgment for the reasons stated in the unpublished part of the opinion and reverse the order awarding legal fees.

FACTUAL AND PROCEDURAL BACKGROUND*

[1077]DISCUSSION

I.-III.*

IV. Legal Fees

The parties’ standard form purchase agreement provides for the prevailing party in any dispute to recover legal fees. However, this right is subject to a condition precedent that reads, “If, for any dispute ... to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after [the making of\\ a request . . . , then that party shall not be entitled to recover attomey[] fees . . . .” (Italics added; see Lange v. Schilling (2008) 163 Cal.App.4th 1412, 1416-1417 [78 Cal.Rptr.3d 356] (Lange) [describing contingent effect of this standardized contractual language].)

In her declaration in opposition to the request for an award of legal fees as costs, the attorney for the Cullens asserted that in 2010 she had twice requested mediation of the litigation in accordance with the trial court’s suggestions, but counsel for the Corwins adamantly rejected the two requests. At the latter point, defense counsel had billed only about $4,300 in legal fees.