Demari v. Desert Oasis Mobile Estates CA5

California Court of Appeal Mar 19, 2013 No. F064419Unpublished

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Holding. The court held that an attorney fee provision contained in a document incorporated by reference into the parties' main contract is enforceable, even if the incorporated document itself is unsigned.

Issues

Whether an attorney fee provision in an incorporated document is enforceable when the incorporated document is unsigned.
Whether the trial court erred in awarding attorney fees based on an incorporated agreement.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“It is the law that the parties may incorporate by reference into their contract the terms of some other document.”

“appellants signed the Leona contract, appellants are bound by the terms of the Mobilehome Storage Agreement despite that agreement being unsigned.”

Filed 3/19/13 Demari v. Desert Oasis Mobile Estates CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JULIET DEMARI et al., F064419 Plaintiffs and Appellants, (Super. Ct. No. CV-271639) v.

DESERT OASIS MOBILE ESTATES, LLC, et OPINION al.,

Defendants and Respondents.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Law Offices of Olaf Landsgaard and Olaf Arthur Landsgaard for Plaintiffs and Appellants. Borton Petrini, James J. Braze and Michael J. Stump for Defendants and Respondents.

* Before Cornell, Acting P.J., Poochigian, J. and Franson, J.

-ooOoo- Appellants, Juliet Demari, individually and doing business as Leona Homes and Westline Financial, and Doug Holland, challenge the trial court‟s award of attorney fees to respondents, Desert Oasis Estates, LLC, Alfons Von Den Stemmen and Blanca Gonzalez. Appellants contend the contracts they sued on did not contain an attorney fee provision and therefore attorney fees were not recoverable. However, an additional agreement was incorporated into the contracts that did include an attorney fees provision. Accordingly, attorney fees were authorized. Therefore, the judgment will be affirmed. BACKGROUND Appellants entered into contracts, referred to as the Leona contracts, with respondents that allowed appellants to place mobile homes in the Desert Oasis Mobilehome Park to sell or rent. Appellants were to pay respondents storage fees for the homes. Appellants also agreed “Each home seller brings to park is to conform to the Desert Oasis Mobile Estates „Mobilehome Storage Agreement‟ (Exhibit A). And there must be a separate agreement for each home.” The “Mobilehome Storage Agreement” provides “[t]he prevailing party to any action necessary to enforce a party‟s right under this Agreement, will be entitled to recover its reasonable attorney fees and costs.” Appellants sued respondents for breach of contract. Respondents‟ demurrer to the complaint was sustained without leave to amend. Thereafter, the trial court awarded attorney fees to respondents as the prevailing parties based on the attorney fee provision contained in exhibit A, the Mobilehome Storage Agreement, incorporated into the Leona contracts. DISCUSSION In their motion for attorney fees, respondents included the Mobilehome Storage Agreements behind the copies of the Leona contracts that appellants sued on. As noted above, each Leona contract referred to the Mobilehome Storage Agreement and designated it as exhibit A. Appellants contend the trial court erred in basing the attorney

Demari v. Desert Oasis Mobile Estates CA5

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