Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County Super. Ct. No. BC301909. John Shepard Wiley, Jr., Judge.
Robert G. Weitzman for Plaintiff and Appellant.
Julander, Brown & Bollard, Richard L. Brown and Catherine A. Close for Defendants and Respondents.
BIGELOW, J.
Cal-Tex Consulting and Leasing Corporation (Cal-Tex) sued Wright Investments, Ltd., Roger Wright, Tom Wright, Frances Elaine Wright, and the Frances Elaine Wright Trust (collectively “Wright defendants”), after it was evicted from a warehouse it leased from the Wright defendants. When the trial court denied Cal-Tex’s petition for a continuance only two days before trial, Cal-Tex voluntarily dismissed the case with prejudice. In two separate appeals, Cal-Tex challenges the denial of its request for a continuance and the trial court’s award of attorney fees and costs to the Wright defendants following the voluntary dismissal. We conclude that Cal-Tex’s voluntary dismissal precludes review of the order denying a continuance. We reverse the order awarding attorney fees, and affirm the order awarding costs.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, Cal-Tex filed a civil suit against the Wright defendants asserting claims for breach of contract, conversion, intentional misrepresentation, concealment, negligent misrepresentation, and restitution. Cal-Tex leased a warehouse from the Wright defendants for storage. According to the complaint, in 1999, the Wright defendants asked Cal-Tex to vacate the premises, but subsequently rescinded the request. The complaint charged that later in 1999, the Wright defendants filed an unlawful detainer action against Cal-Tex without serving it or otherwise giving Cal-Tex notice of the action. The complaint further alleged that until August 2002, Cal-Tex continued paying rent, which the Wright defendants accepted. In September 2002, Cal-Tex discovered that the warehouse had been demolished, and all of the items Cal-Tex had stored in the warehouse were gone.
The court set a November 7, 2006 trial date for Cal-Tex’s action. On October 27, 2006, the day of the final pretrial conference, Cal-Tex filed an ex parte application to shorten time for notice on a motion to continue the trial date. Cal-Tex’s counsel, Robert Weitzman, supported the application with a declaration stating that he was unable to finish his trial preparation because he was ill. He requested a three-week continuance.
Weitzman declared: “I have been working on the trial preparation phase of this case for several weeks. However, I have been unable to finish the preparation for trial because I am ill. I am suffering from an acute respiratory infection. I originally thought it was just a cold, but the sudden onset of fever and severe headaches now leads me to believe that it may be influenza. At my age influenza is very serious. Although I have worked for short periods of time hoping that I could shake the illness, however, without adequate bed rest I will not get better any time soon. My illness has physically and mentally exhausted me, to the extent that I have been unable to concentrate, and it has prevented me from properly preparing for trial. I have sought outside help without much success. I know that I will not be well enough for the trial on November 7, 2006.”
A specially appearing counsel represented Cal-Tex at the hearing. The court noted that the case was originally filed in September 2003, Cal-Tex had failed to file pre-trial documents, and Weitzman had provided no documentation about his illness except his own declaration. The court denied the ex parte application, but allowed that if Weitzman provided medical evidence of a serious illness, the court would reconsider the issue.
On November 2, 2006, Cal-Tex filed another ex parte application for a trial continuance. Attached to the request was a signed, but undated medical report from Dr. Robert Pallas. Dr. Pallas diagnosed Weitzman with gastroenteritis, cephalalgia, and fatigue. The report prescribed two weeks of bed rest. The Wright defendants opposed the continuance request, contending that Weitzman had never appeared in court, at a deposition, or at the mediation, and was not identified as trial counsel in Cal-Tex’s case management statement. The Wright defendants’ counsel further reported that she had never spoken with Weitzman by phone, and that he had communicated only by fax. The Wright defendants argued that the trial should not be delayed due to the illness of an attorney who appeared not to be involved in the case. They also asserted that they would be prejudiced by a continuance.
Cephalalgia is a medical term for headache. (Dorland’s Illustrated Medical Dict. (28th ed. 1994) p. 299.)
Specially appearing counsel represented Cal-Tex at the hearing. The court continued the hearing to the afternoon and asked that Weitzman personally appear in court, and that Dr. Pallas be available by telephone. Specially appearing counsel stated that Weitzman and Cal-Tex’s representative, Lionel Daley, had approached one of counsel’s colleagues, David Dennis, about taking over the case as trial counsel. The court asked that Dennis also appear that afternoon.
When the trial court re-called the case, Weitzman was not present, and specially appearing counsel Dennis had been unable to reach him at home. The court asked Dennis to try calling Weitzman at home once more. Again there was no answer. Dennis reported that he had already left Weitzman three telephone messages. He had also called Dr. Pallas’s cell phone number but received no response. Dennis said that although he had been in negotiations with Weitzman about taking over the case and was willing to do so, he was not certain that Weitzman planned to retain him.
The trial court denied the request for a continuance. The court noted that it was not finding that Weitzman was not sick, but instead that it had requested “some reasonably clear assurance of his physical condition,” but had not received it. The court concluded: “So it is his burden to try to establish good cause, and the circumstances are, frankly fishy, and on that basis, again, I am denying this request.”
On November 6, 2006, the day before trial, Cal-Tex voluntarily dismissed the entire action with prejudice. The dismissal included a note stating: “This Dismissal is filed for the purpose of expediting Appeal [sic] and does not indicate agreement or acquiescence with the Court’s rulings of 9/27/06, 10/27/06, 11/02/06 etc.” On November 28, Cal-Tex filed a notice of appeal from its voluntary dismissal.
The Wright defendants sought costs and attorney fees pursuant to a provision in the parties’ lease. Cal-Tex opposed the motion for attorney fees and filed a motion to tax costs. Cal-Tex argued that a voluntary dismissal does not trigger a cost bill, and that any costs judgment would be stayed pending appeal in any event. Cal-Tex also argued that the motion for attorney fees was improper because the action was not over, and asserted various arguments based on the merits of the underlying action. The court awarded the Wright defendants a total of $100,634.80 in attorney fees and $3,701.02 in other costs. Cal-Tex appealed the award. We granted Cal-Tex’s motion to consolidate the appeals.
DISCUSSION
I. Appealability
The Wright defendants argue that Cal-Tex cannot appeal the trial court’s order denying a trial continuance because it voluntarily dismissed the case with prejudice. We agree.
As a general matter, a voluntary dismissal with prejudice forecloses appellate review. “While a compulsory dismissal by order of a court is a judicial act from which a plaintiff may appeal, a voluntary dismissal by a plaintiff is accomplished by a ministerial act of the clerk, filing from which no appeal lies. [Citation.] Respecting appealability, ‘there is no kinship of a voluntary dismissal to a final judgment. A willful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on... motions made prior to the dismissal. [Citation.] Besides, a plaintiff ‘obviously [can] not appeal [his] own voluntary dismissal....’ [Citation.]” (Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342-1343 (Yancey).)
Cal-Tex justifies its appeal by referencing an exception some courts have made for appeals that were filed “after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal.” (Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 793 (Ashland).) However, the cases in which this exception has been applied differ markedly from the one before us. For example, in Ashland, the trial court sustained a demurrer to the plaintiff’s complaint without leave to amend. When the plaintiff realized the court had not yet entered a judgment, he asked the clerk to dismiss the complaint with prejudice so that he might expedite the appeal. (Id. at p. 792.) As the court noted, Ashland’s request was “tantamount to a request to enter judgment on [the] demurrer.” (Id. at p. 793.)
Subsequent cases have applied Ashland when an adverse trial court ruling on the merits of the case either foreclosed or severely limited the plaintiff’s action. In Denney v. Lawrence (1994) 22 Cal.App.4th 927 (Denney), the plaintiffs appealed from a stipulated judgment entered against them in their defamation action. The trial court had issued rulings precluding plaintiffs’ recovery of damages unless they showed the defendants acted with actual malice, and limiting plaintiffs’ potential recovery to special damages. (Id. at 930.) Although the dismissal was voluntary, the court, relying on Ashland, allowed the appeal.
Similarly, in Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112 (Casey), disapproved of on another ground in Jimenez v. Superior Court (2002) 29 Cal.4th 473, the trial court granted summary adjudication of one of the plaintiffs’ causes of action, and at the time of trial issued rulings that limited the plaintiffs to a negligence claim. (Casey, supra, at p. 116.) The court then granted a motion in limine prohibiting the plaintiffs from introducing evidence of their economic losses, which they admitted prevented them from proving a tort cause of action. (Id. at p. 124.) The defendant moved for a directed verdict pursuant to the parties’ stipulation. The trial court granted the motion and entered judgment for the defendant. The court of appeal allowed the appeal, citing Ashland and Denney for the proposition that although stipulated judgments cannot be appealed generally, a party “may agree to dismiss an action after an adverse ruling by the trial court, if the dismissal is intended to expedite the appeal and is not truly a voluntary relinquishment of the action.” (Id. at p. 116, fn. 2; see also Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006 (Stewart) [the parties settled their case but stipulated to litigate an appeal of a sanctions order; applying Ashland].)
Thus, the key to the exception is whether the purpose of the voluntary dismissal is truly to expedite an imminent appeal, and the extent to which the dismissal is voluntary. When a demurrer is sustained without leave to amend, a subsequent dismissal may be construed as involuntary. The case cannot continue, and, in one way or another, will be dismissed. The same may be said of substantive rulings that effectively terminate the action. But here, the court’s order only moved the case forward to trial so that the merits could be considered and did not effectively end the case. A voluntary dismissal taken after such an order is not tantamount to an involuntary dismissal. (Cf. Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967 (Gutkin) [where plaintiff voluntarily dismissed action, appeal of order sustaining demurrer without leave to amend was permissible, but discovery orders relating to remaining causes of action that were dismissed without prejudice could not be appealed; distinguishing Ashland based on finality of dismissal with prejudice].)
In support of its position, Cal-Tex cites only to the California Practice Guide, which in turn cites Ashland, as well as Stewart and Gutkin, which rely on Ashland. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 2:137.1, p.2-72.3.) But the rationale of Ashland does not apply here. There was no substantive ruling all but terminating, or even narrowing, Cal-Tex’s action. Here, Cal-Tex was not expediting an imminent appeal, it was unilaterally attempting to create one out of whole cloth.
As noted above, in Stewart, the parties settled the action, but stipulated that the appellant could appeal a sanctions order under $5,000. The case was over. In Gutkin, the court held that interim discovery orders could not be appealed following a voluntary dismissal. Although the Gutkin court focuses its analysis on the fact that the appellant dismissed the active parts of the case without prejudice, the result is the same. The touchstone of our analysis is not whether the action is dismissed with or without prejudice, but rather whether the appeal may properly be construed as an involuntary dismissal as a result of the adverse trial court ruling.
We also note that Cal-Tex’s conduct since the filing of its notice of appeal has been entirely inconsistent with its stated desire to expedite the appeal. Largely due to Cal-Tex’s repeated requests for extensions of time to submit each of its appellate filings, we did not deem the case fully briefed until April 2009, almost one and a half years after the initial deadline for the consolidated opening brief.
We find the general rule applicable in this case: “A willful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review... motions made prior to the dismissal.” (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760-761; Yancey, supra, 226 Cal.App.3d at p. 1343.) Cal-Tex’s appeal of the order denying its request for a trial continuance is dismissed.
II. Costs and Attorney Fees
Cal-Tex asserts that the trial court should not have assessed attorney fees and costs because an appeal was pending. It also contends that Civil Code section 1717, subdivision (b)(2) barred an attorney’s fee award.
The first argument merits little discussion. “[F]iling of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs.” (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369.)
Turning to the second argument, under Civil Code section 1717 (section 1717), in any action on a contract where the contract contains an attorney’s fees and costs provision, the prevailing party is entitled to reasonable attorney’s fees in addition to other costs. Section 1717, subdivision (b)(2), provides that where an action has been voluntarily dismissed, there is no prevailing party to whom attorney fees may be awarded. However, section 1717, subdivision (b)(2) “applies only to causes of action that are based on the contract and are therefore within the scope of section 1717. If the voluntarily dismissed action also asserts causes of action that do not sound in contract, those causes of action are not covered by section 1717, and the attorney fee provision, depending upon its wording, may afford the defendant a contractual right, not affected by section 1717, to recover attorney fees incurred in litigating those causes of action.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 617 (Santisas).) The Wright defendants have taken the position that the lease’s attorney’s fees provision allowed them to recover fees they incurred in defending against Cal-Tex’s tort claims.
We note that Cal-Tex did not raise a section 1717, subdivision (b)(2) argument in the trial court. Instead, Cal-Tex argued only that the case was not over, thus attorney’s fees were not proper. However, whether section 1717, subdivision (b)(2) precluded an attorney’s fee award in this case involves only contract and statutory interpretation, and no question of fact. As a result, we may consider the issue on appeal. (Palmer v. Shawback (1993) 17 Cal.App.4th 296, 300.) In addition, the Wright defendants briefed the applicability of section 1717, subdivision (b)(2) below, and on appeal.
To entitle a prevailing party to recover attorney’s fees for tort causes of action, the contract’s fee provision must be sufficiently broad. (Santisas, supra, at p. 608; Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1161.) Courts have found that provisions authorizing fees in actions “arising out of” the contract, or “relating to” a subject property, or “in any lawsuit” to which the contract gives rise, are broad enough to encompass both contract and related tort claims. (Santisas, supra, 17 Cal.4th at p. 607 [provision authorized fees “ ‘in the event legal action is instituted... arising out of the execution of this agreement or the sale, or to collect commissions’ ”]; Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1799 [provision authorized fees in “ ‘any legal action brought... to enforce the terms hereof or relating to the demised premises’ ”]; Lerner v. Ward (1993) 13 Cal.App.4th 155, 159 [provision authorized fees “ ‘[i]n any action... arising out of this agreement”]; Exxess Electronixx v. Heger Reality Corp. (1998)64 Cal.App.4th 698, 712-713 (Exxess) [collecting additional cases].)
Here, the provision was not so broad. The lease provided:
No extrinsic evidence has been offered to interpret the lease, thus we review the trial court’s award de novo. (Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 (Gil); Exxess, supra, 64 Cal.App.4th at p. 705.) “ ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. [Citation.] Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citation.] The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,” unless “used by the parties in a technical sense or a special meaning is given to them by usage” [citation], controls judicial interpretation. [Citation.] Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. [Citations.]’ [Citation.]” (Santisas, supra, 17 Cal.4th at p. 608; Gil, supra, 121 Cal.App.4th at p. 743.)
“The prevailing party in an action brought for the recovery of rent or other moneys due or to become due under this lease or by reason of a breach of any covenant herein contained or for the recovery of the possession of said premises, or to compel the performance of anything agreed to be done herein, or to recover for damages to said property, or to enjoin any act contrary to the provisions hereof, shall be awarded all of the costs in connection therewith, including, but not by way of limitation, reasonable attorney’s fees.”
Rather than authorizing fees for any action arising out of or relating to the lease, the provision set forth a few specific actions that would trigger an entitlement to attorney’s fees. Cal-Tex’s tort claims did not fit into any of the five categories for which the lease authorized attorney’s fees. In addition to a breach of contract claim, Cal-Tex asserted causes of action for conversion, intentional misrepresentation, concealment, negligent misrepresentation, and restitution based on fraud. Cal-Tex based its tort claims on the Wright defendants’ allegedly fraudulent eviction of Cal-Tex from the warehouse, and their alleged failure to tell Cal-Tex about the unlawful detainer action after they had asked Cal-Tex to continue the lease. The claims were also based on the allegation that the Wright defendants accepted Cal-Tex’s rent payments after the eviction, and that they converted the property Cal-Tex stored in the warehouse.
These claims could not be described as (1) actions to recover rent or other moneys due under the lease, or due as a result of the breach of any of the lease covenants; (2) actions to recover possession of the premises; (3) actions to compel performance of any of the lease provisions; (4) actions to recover for damage to the leased property; or (5) actions to enjoin any act contrary to the lease provisions.
The Wright defendants argue that the lease language is broad enough to authorize attorney’s fees for tort actions. For example, they contend that the lease provision authorizing fees in actions to recover rent or other monies due encompasses Cal-Tex’s fraud claim. But this interpretation would require that we stretch well beyond the plain meaning of the words used in the lease. The lease authorizes attorney’s fees in actions “brought for the recovery of rent or other moneys due or to become due under the lease or by reason of a breach of any covenant contained herein [.]” Under the lease, the only moneys due or to become due were rent owed to the lessor. The lessor was to give notice before terminating the lease, but the fraud claim arises out of the Wright defendants’ duty not to hide the fact of the eviction, not the failure to give notice itself. We also cannot read into the contract that the parties intended to allow attorney’s fees in an action to recover moneys that were not due but were allegedly collected under false pretenses.
Similarly, the Wright defendants contend that the language authorizing fees in actions to recover for property damage would include Cal-Tex’s conversion claim, but this is not supported by the provision’s plain language. The lease refers to damage to the “property,” which refers to the leased premises, not any of the contents the lessee kept inside, and which were allegedly converted in this case. To the extent Cal-Tex’s conversion claim purported to relate to the warehouse itself, the issue was not damage to the warehouse, it was damage Cal-Tex suffered due to the eviction from the warehouse.
The attorney’s fee provision here described several actions that are all essentially enforcement of the lease provisions. Contracts authorizing attorney’s fees in actions to enforce the contract’s provisions do not encompass tort actions, absent other broader language. (Gil, supra, 121 Cal.App.4th at pp. 743, 745; Exxess, supra, 64 Cal.App.4th at pp. 709-711; McKenzie v. Kaiser-Aetna (1976) 55 Cal.App.3d 84, 89 [“an action for negligent misrepresentation is not an action to enforce the provisions of a contract”].)
We are sympathetic to the Wright defendants’ position, but we cannot rewrite a fairly narrowly drawn attorney’s fee provision. (Gil, supra, 121 Cal.App.4th at p. 745; Exxess, supra, 64 Cal.App.4th at p. 712.) We conclude that the attorney’s fee provision was not broad enough to authorize fees incurred in the defense of Cal-Tex’s tort claims. And since Cal-Tex voluntarily dismissed the case, section 1717, subdivision (b)(2) precluded an attorney’s fee award for fees incurred in connection with the contract claim. The trial court’s award of attorney fees must therefore be reversed.
DISPOSITION
Cal-Tex’s appeal of the trial court’s order denying a continuance is dismissed. The trial court’s order awarding costs is affirmed. The trial court’s order awarding attorney’s fees is reversed. The parties are to bear their own costs on appeal.
We concur: RUBIN, Acting P. J., FLIER, J.