Cable v. O'Neill CA4/1

Filed 7/7/22 Cable v. O’Neill CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DENISE CABLE et al., D079096

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2019- 00018657-CU-BC-CTL) MICHAEL THOMAS O’NEILL,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Reversed. Dean Gazzo Roistacher, Lee H. Roistacher, Samuel C. Gazzo and Joseph M. Radochonski for Plaintiffs and Respondents. No appearance for Defendant and Respondent.

Denise and James Cable appeal an order denying their motion for attorney fees after the trial court entered judgment in their favor on their breach of contract claim against Michael O’Neill for failing to repay a debt

under the terms of a written agreement.1 The trial court concluded that the Cables’s action was based on a debt extension agreement that did not contain an attorney fee provision. The Cables contend that the court erred in declining to read the extension agreement in conjunction with the original loan agreement, which does contain an attorney fee provision. O’Neill did not file a respondent’s brief. We agree with the Cables’s contention and reverse the order denying their motion for attorney fees. On remand, the court shall enter a new order granting the Cables attorney fees and conduct further proceedings to fix the amount of fees. FACTUAL AND PROCEDURAL BACKGROUND O’Neill asked the Cables to loan him $100,000 in February 2016. O’Neill intended to loan the money, in turn, to the owner of Ocean Enterprises, a company that conducted three different types of business: a scuba gear retail store, which included service, rental, and instructional departments; military sales; and a travel division that took clients on scuba diving trips. O’Neill was interested in purchasing the scuba gear retail portion of the business. O’Neill assured the Cables that their loan was solely to him and that he would pay it back quickly with interest. Denise wrote a check to O’Neill in the amount of $100,000 on February 16, 2016. O’Neill drafted and executed a two-page “loan agreement” dated February 17, 2016. The terms of the loan agreement required O’Neill to repay the $100,000 with interest at a rate of 10 percent per annum. He agreed to repay the loan “in consecutive monthly installments of interest only . . . commencing the month following the execution of this Agreement