Patacsil v. Perez CA3

Filed 12/21/22 Patacsil v. Perez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

ERNESTO PATACSIL, JR., C095195

Plaintiff, Cross-defendant and (Super. Ct. No. STK-CV- Appellant, UBC-2018-0008935)

v.

HENRY PEREZ,

Defendant, Cross-complainant and Respondent.

In prior litigation involving the sale of real property in Stockton, plaintiff and cross-defendant Ernesto Patacsil, Jr., and defendant and cross-complainant Henry Perez entered into a settlement agreement and release (Settlement Agreement). Thereafter, Patacsil filed a new action alleging Perez breached the Settlement Agreement. Perez cross-complained, asserting causes of action, among others, seeking to quiet title and for breach of contract. The trial court entered judgment adjudging Perez the owner of the

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subject real property. Perez then filed a motion for attorney fees pursuant to the Settlement Agreement. Patacsil did not oppose the motion. The trial court granted Perez’s unopposed motion, awarding him attorney fees and costs. On appeal, Patacsil asserts (1) the issue of the lack of a legal basis for the attorney fees award presents a question of law, and therefore his failure to oppose Perez’s motion for attorney fees in the trial court does not preclude us from reviewing the legal basis for the award, (2) there is no valid legal basis for the award because the Settlement Agreement only authorized an award of attorney fees for the party prevailing on contract- based claims, and here, Perez prevailed on his cause of action seeking to quiet title, not his breach of contract claim, and (3) in the event that the underlying judgment is reversed on his separate appeal, the award of attorney fees must fall with the judgment. We affirm. We conclude Patacsil forfeited his claim that there is no valid legal basis for the award of attorney fees by failing to raise it in the trial court by opposing Perez’s motion. We decline to exercise our discretion to reach the merits as to whether a valid legal basis supported the award. Assuming it is properly before us, Patacsil’s contention that, if the underlying judgment is reversed, the award of attorney fees must fall with the judgment is moot because another panel of this court affirmed the judgment. FACTUAL AND PROCEDURAL BACKGROUND In 2010, Patacsil, as buyer, and Perez, as seller, entered into a residential purchase agreement for certain real property in Stockton. According to the complaint, Perez breached the agreement. Prior litigation ensued, in which Patacsil sought to enforce his right to purchase the property. In 2014, the parties settled the prior litigation by entering into the Settlement Agreement. Section II, paragraph 7 of the Settlement Agreement pertained to attorney