Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 050000417
SIMS, J.Plaintiffs Robert Shane Lair and Coreen A. Lair sued defendants Ed Cletus Hendrickson and Cecilia L. Hendrickson, alleging breach of contract and fraud by Ed Hendrickson as plaintiffs’ agent in an attempted purchase of real property, which was purchased by the Hendricksons after the Lair purchase fell through. The trial court granted a defense motion to expunge a lis pendens (Code Civ. Proc., § 405 et seq.) and later awarded attorney fees to defendants in connection with that motion. The trial court granted a defense motion for judgment on the pleadings to remove Coreen Lair from the lawsuit as not being a party to the transaction. Robert Lair dismissed his lawsuit without prejudice. The trial court denied a defense request for contractual attorney fees (Civ. Code, § 1717; §§ 1032, 1033.5) or attorney fees as sanctions (which defendants sought under inoperative § 128.6).
Undesignated statutory references are to the Code of Civil Procedure.
We hereby grant defendants’ request, filed January 16, 2008, that we take judicial notice that Robert Lair subsequently filed a new lawsuit against Ed Hendrickson arising from the same facts.
Defendants appeal from the trial court’s denial of their motion for attorney fees.
Plaintiffs cross-appeal, challenging (1) judgment on the pleadings as to Coreen Lair, and (2) the attorney fee award in favor of defendants in connection with the lis pendens (§ 405 et seq.).
As to the lis pendens, we shall grant defendants’ motion to dismiss the cross-appeal, because the orders (expunging the lis pendens and awarding attorney fees) were nonappealable, and plaintiffs failed to file a timely writ petition.
We shall conclude (1) plaintiffs fail to show reversible error regarding the grant of judgment on the pleadings against Coreen Lair, and (2) defendants fail to show grounds for reversal regarding the denial of attorney fees.
Accordingly, we shall affirm the judgment.
We shall deny plaintiffs’ motion for sanctions for a frivolous appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed their original complaint in May 2005 and recorded a lis pendens against the subject real property.
The operative pleading in this appeal is the “SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT, FRAUD, DECLARATORY RELIEF, INJUNCTIVE RELIEF AND DAMAGES FOR WASTE,” apparently filed in December 2005 by plaintiffs Robert Shane Lair and Coreen A. Lair. The pleading named as defendants, Ed Cletus Hendrickson, his wife Cecilia L. Hendrickson, Homes and Land ‘4’ U, John D. Kring (a real estate broker), and Fast Track Mortgage. The only defendants at issue in this appeal are the Hendricksons.
The record on appeal, the appellant’s appendix, contains a copy of the pleading which fails to bear any court filing stamp.
The pleading alleged as follows:
Ed Hendrickson was a real estate agent and a representative of Homes and Land. Kring was a broker and representative of Homes and Land ‘4’ U and Fast Track Mortgage.
The pleading alleged breach of contract as a “FIRST CAUSE OF ACTION,” claiming that on November 22, 2004, plaintiffs were interested in purchasing real property being offered for sale by nonparty Grady Chesney. Ed Hendrickson was the listing agent; he presented himself as being licensed, but he was working under the license held by Kring, individually and doing business as Homes and Land ‘4’ U. Ed Hendrickson “counseled” plaintiffs to hire him as their agent. Plaintiffs entered into a verbal and written agency agreement, whereby defendants, who also represented the seller, agreed to act as dual agents and represent plaintiffs as well. The incorporated exhibit attached to the pleading was a “DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS” signed only by plaintiffs (with Coreen Lair’s signature crossed out), as acknowledgement of receipt of the form disclosing the obligations of sellers’ agents, buyers’ agents, and dual agents.
The complaint alleged Ed Hendrickson prepared a written offer for plaintiffs (plural) to buy the property. However, the purchase agreement attached to the complaint shows only Robert Lair as the buyer and bears only his signature as buyer. Chesney signed his acceptance of the offer on November 24, 2004 (as well as a commission agreement with defendants).
The complaint alleged defendants breached their agency agreement with plaintiffs in that they (1) failed to act in a competent or timely manner to secure financing for plaintiffs; (2) failed adequately to explore financing alternatives for plaintiffs; (3) failed to communicate the existence of any impediment to financing until plaintiffs contacted Ed Hendrickson on February 10, 2005, the date set for closing; (4) failed to communicate with the seller, creating a crisis of confidence; and (5) actively undertook to prevent the parties from communicating directly, as they had done at the outset of the transaction, leading to distrust and miscommunication.
The pleading alleged that, as a result of defendants’ breach, escrow did not close, and plaintiffs were damaged in the approximate amount of $250,000 in appreciation of property value, and $5,000 per month in loss of use of the property.
As a “SECOND CAUSE OF ACTION,” plaintiffs alleged three “COUNTS” of fraud. The first “COUNT” alleged that Ed Hendrickson induced plaintiffs to rely on his efforts on their behalf; as a result of his subsequent conduct “contrary to [his] promises,” plaintiffs’ escrow expired; and the following day the Hendricksons contracted to buy the subject property for themselves. That escrow closed on March 7, 2005.
The second fraud “COUNT” alleged Ed Hendrickson materially misrepresented facts, i.e., that plaintiffs could get an affordable mortgage without having to sell their present residence; that the seller was eager to sell in order to go to Mexico for cancer treatment; that the seller, due to his illness, did not want any direct contact from plaintiffs; and that the deal was “not dead yet” on the day set for escrow to close, and Ed Hendrickson would meet with the seller on Friday, February 11, 2005, and call plaintiffs the following Monday. The truth was the seller did not have cancer and did not express an unwillingness to have contact with plaintiffs. Plaintiffs alleged they still did not know the truth about their loan status, but Ed Hendrickson told them on the day escrow was supposed to close that their monthly payment would be $3,200, which was roughly double the amount they expected. After the Hendricksons purchased the property themselves, they allegedly offered to sell it to plaintiffs for a profit.
The third fraud “COUNT” alleged Ed Hendrickson concealed material facts, e.g., the status of the deal; that he could not obtain the mortgage they wanted; and that he wanted to buy the property himself. The fraud count alleged defendants acted with oppression, malice, and fraud warranting punitive damages, because they knew plaintiffs were making enthusiastic preparations to move into their new “dream home.”
The complaint alleged a “THIRD CAUSE OF ACTION” for declaratory relief, alleging the Hendricksons had no legal or equitable right to buy the property themselves and therefore took title to the property as constructive trustees for plaintiffs. The complaint sought a declaration that plaintiffs were the true legal and equitable owners and an order requiring the Hendricksons to transfer title to plaintiffs.
As to each cause of action, the complaint prayed for “costs of suit, including attorneys’ fees, if appropriate . . . .”
Attached to the pleading were two exhibits. Exhibit A was the purchase agreement, which stated the offer to buy the property came from Robert Shane Lair (with no mention of Coreen Lair) and which bore only Robert Lair’s signature, not his wife’s signature. Exhibit B was a disclosure form regarding real estate agency relationships, explaining dual agency where the agent represented both the seller and the buyer (as Ed Hendrickson did). Under the words “I/WE ACKNOWLEDGE RECEIPT OF A COPY OF THIS DISCLOSURE” appear the signatures of both Robert and Coreen Lair, with the word “Buyer” circled next to each signature, but with a handwritten line drawn, crossing out Coreen Lair’s signature.
In May 2006, defendants filed a motion to expunge the lis pendens and recover attorney fees on the motion. In June 2006, the trial court granted the motion to expunge the lis pendens, on the ground the complaint did not contain a real property claim. At the request of plaintiffs’ counsel, the trial court deferred the question of attorney fees regarding the lis pendens.
Defendants filed various motions in limine, to which plaintiffs responded before dropping their request for a jury trial. At issue in this appeal is a defense motion, labeled motion in limine No. 4, filed in July 2006, which asked for judgment on the pleadings (or nonsuit) on all causes of action as against plaintiff Coreen Lair, on the ground that she had no standing or interest in the litigation because (a) she was not a party to or third party beneficiary of any contract, (b) her signature was crossed out on the agency disclosure form, which in any event was merely a disclosure form, not a contract, (c) she did not plead any terms of any verbal agreement; (d) the fraud claims depended on a contractual relationship, and accordingly, (e) she had not stated a claim for the declaratory relief she hoped to obtain in the third cause of action. The motion also argued Coreen Lair could not use extrinsic evidence to show an interest in the litigation, because the purchase agreement contained an integration clause stating: “All understandings between the parties are incorporated in this Agreement. Its terms are intended by the parties as a final, complete and exclusive expression of their Agreement with respect to its subject matter, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. . . . Neither this Agreement nor any provision in it may be extended, amended, modified, altered or changed, except in writing [s]igned by Buyer and Seller.”
A motion for nonsuit cannot be made before plaintiffs give their opening statement. (§ 581c, subd. (a).)
Technically, Coreen Lair may still be entitled to a declaratory relief judgment, but if defendants were correct on their other points, that judgment would be that she is not entitled to any relief.
Although grounds for judgment on pleadings must appear on the face of the complaint or from matter of which the trial court may take judicial notice (§ 438, subd. (d)), defendants’ motion went further. The motion argued that, if there was any agreement to which Coreen Lair was a party, it was terminated on February 15, 2005, when the Lairs signed “MUTUAL CANCELLATION INSTRUCTIONS” (a copy of which was attached to the motion), directing the title company to release all documents and disburse the $2,000 deposit to “BUYER: Robert Lair and Corren [sic] Lair.” The motion argued Coreen Lair signed “for no apparent reason.”
We are perplexed as to why defendants thought this document helped their case. If anything, it would seem to support plaintiffs’ view that Coreen Lair had an interest in the transaction. Nevertheless, plaintiffs did not argue this point in the trial court and, as we discuss post, the document is not properly considered in the motion for judgment on the pleadings.
The motion also attached, purportedly for the (inappropriate) nonsuit motion, a copy of a letter (which the motion portrayed as a loan origination agreement), dated January 21, 2005, signed by both the Lairs, stating, “This letter is to confirm the dual residency of the above mentioned husband and wife. Coreen is the sole owner of their noted residence [a Rio Linda address which is not the subject of this litigation] . . . . She resides there with the four children of the marriage. Upon refinancing the loan on said property, Coreen obtained $82,000 from the equity and had it wired to the marital joint account. She did so in order that Robert would be able to use the funds to purchase his own separate residence, as he has been living mainly at his place of business 3 blocks away in a motor home for a little over 28 months. This was agreed to in exchange for Robert signing off on and giving up all rights to Coreen’s residence in Rio Linda.”
The Lairs opposed the motion for judgment on the pleadings, noting the motion’s reference to evidentiary matters was inappropriate. The Lairs argued extrinsic evidence to be adduced at trial would show Coreen was a party to the agreement, including that the Lairs intended to move their family and their family business to the property; both Lairs gave their credit information to Ed Hendrickson; they followed his advice in making the offer on behalf of Robert Lair alone; Ed Hendrickson provided false information to prospective lenders; and Coreen did not cross her name from any documents and it is unknown who did.
Plaintiffs moved for leave to file a third amended complaint, which would have alleged both Lairs wanted to sign the purchase agreement, but Ed Hendrickson stopped them, advising them they would have a better chance of obtaining favorable mortgage terms without her. However, the trial court denied leave to amend, and plaintiffs have made no assignment of error appealing that ruling. We therefore need not consider the proposed third amended complaint.
At the hearing, the trial court observed the conflicting positions as to why Coreen Lair did not sign the purchase agreement suggested the possibility of a mutual intent, by the Lairs and Ed Hendrickson, to deceive lenders. The court commented that a summary judgment motion would have been more appropriate than some of the motions in limine. Nevertheless, the court understood evidentiary conflicts were not at issue in the motion for judgment on the pleadings.
The trial court granted the defense motion for judgment on the pleadings to remove Coreen Lair as a plaintiff, on the ground Coreen Lair was not a proper party because she was not a party to the purchase agreement, and any alleged oral agreement with Ed Hendrickson related only to the purchase agreement.
Upon the trial court’s denial of leave to amend, on July 24, 2006, Robert Lair voluntarily dismissed the remainder of the lawsuit, without prejudice.
On August 18, 2006, defendants filed a motion for attorney fees against both the Lairs, seeking (1) contractual attorney fees under Civil Code section 1717 -- recoverable as costs under section 1033.5, or (2) attorney fees as a sanction for a frivolous lawsuit under (inoperative) section 128.6. The motion sought over $290,000 in attorney fees.
Plaintiffs opposed the motion for attorney fees.
The trial court denied the motion as against Robert Lair, because he dismissed his lawsuit. As against Coreen Lair, the trial court denied defendants contractual attorney fees on the ground the complaint’s prayer for attorney fees “if appropriate” did not constitute a claim for contractual attorney fees, and therefore there was no reciprocal right to contractual attorney fees in favor of defendants. The trial court denied the request for attorney fees as sanctions for a frivolous lawsuit, noting section 128.6 never became operative (Stats. 1998, ch. 121, § 1). The court expressed displeasure that defendants at the hearing raised section 128.7, which authorizes sanctions but was not raised in the motion. The court stated such a sanction was a matter of discretion for the trial court, as to whether it was an appropriate expeditious method of redressing frivolous litigation rather than defendants’ filing a malicious prosecution action. The court said, “the delicts assigned by the defendants to the plaintiffs are simply too numerous, and potentially arguable levels of good or bad faith as to particular acts too complex, to be efficiently resolved summarily in the context of a sanctions motion. While the math involved, in and of itself, is scarcely dispositive, the Court notes that the sanctions sought in this case are . . . quite substantially in excess of a quarter million dollars. Because the Court, under the particular facts of this case, regards a potential malicious prosecution action as a more efficient, indeed more just, method of resolving the instant issue, the Court will decline to entertain redress of the defense fees claim by way of sanction. [¶] The Court’s act in this regard is a matter of judicial economy and the demands of the due administration of justice for full evidentiary exposition of numerous disputed points and issues. The Court expressly disclaims that its ruling in this regard is to be interpreted, one way or the other, as determining whether the commencement and maintenance of this action were in good or bad faith, were otherwise proper or improper, or whether or not the action had merit as to, or as against, any party or parties.”
As we shall explain, post, the trial court’s reasoning was wrong, but the ruling was right.
On the reserved issue of attorney fees for the motion to expunge the lis pendens, the trial court awarded defendants attorney fees of $2,407.50, as against both plaintiffs.
Judgment was entered.
Defendants appeal from the denial of attorney fees.
Plaintiffs cross-appeal, challenging (1) the judgment on the pleadings removing Coreen Lair as a plaintiff; and (2) the expunging of the lis pendens and award of attorney fees regarding the lis pendens.
Plaintiffs move for sanctions for a frivolous appeal.
DISCUSSION
I. Defendants’ Appeal
Defendants in their reply brief engage in extensive discussion of (1) Cecilia Hendrickson separate from Ed Hendrickson and (2) other motions in the trial court that are not the subject of this appeal but which defendants cite to reveal the parties’ positions as to who was party to which agreement. For the most part, we need not engage in this discussion. We also find it unnecessary to address the attorneys’ unfortunate accusations against each other for bad faith and misrepresentation in their presentation of the case on appeal.
A. Civil Code Section 1717 Attorney Fees
Defendants contend the trial court erred in denying their motion for attorney fees under Civil Code section 1717 and the cost statutes which provide that costs include attorney fees when authorized by contract, statute, or law. (§§ 1032, 1033.5.) We disagree.
Civil Code section 1717 provides in part: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs. [¶] . . . [¶] Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit. [¶] . . . [¶] (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section. [¶] (2) Where an action has been voluntarily dismissed . . ., there shall be no prevailing party for purposes of this section.” (Italics added.)
Section 1032 says, “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding,” and prevailing party includes “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” In other situations, the court may allow costs or not. (§ 1032, subd. (a)(4).)
Section 1033.5 provides: “(a) The following items are allowable as costs under Section 1032: [¶] . . . [¶] (10) Attorney fees, when authorized by any of the following: [¶] (A) Contract. [¶] (B) Statute. [¶] (C) Law.”
We do not agree with the trial court’s reasoning, i.e., that the absence of an express prayer for contractual attorney fees in plaintiffs’ complaint precluded an award of contractual attorney fees for a prevailing defendant. The case cited by the trial court (Jones v. Drain (1983) 149 Cal.App.3d 484) did not so hold, but rather held prevailing defendants, sued on a contract containing an attorney fee clause, were entitled to attorney fees even though they prevailed on the ground that the plaintiff was not a party to the defendants’ contract with someone else. (Id. at p. 490.) Jones did cite a case which said plaintiffs, having alleged an attorney fees clause, were estopped to deny it. (Id. at p. 489.) However, that rule, which in any event has been criticized, does not speak to the situation where a plaintiff does not expressly allege entitlement to contractual attorney fees in the complaint.
Thus, plaintiffs cite our opinion in M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456 (Perez), that “it is not enough that the losing party claimed a nonspecific right to attorney fees. It must be a claim that a contract on which a cause of action for breach of contract is premised contains an attorney fee provision.” (Id. at p. 465.) However, we made that comment not as a pleading requirement but in connection with limiting application of judicial estoppel requiring a losing plaintiff to pay the defendant’s attorney fees where the plaintiff claimed a contract allowing fees and lost and was therefore estopped to deny applicability of an attorney fees clause. (Id. at pp. 464-465.) Here, in contrast, the more applicable rule is that a plaintiff’s omission of an allegation of Civil Code section 1717 fees as damages in a complaint does not necessarily preclude the plaintiff from recovering attorney fees as costs under section 1033.5 (fn. 11, ante). (Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1797.) Nevertheless, though we disagree with the trial court’s reasoning, we may affirm the trial court’s order for reasons different from those given by the trial court. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330.) We shall conclude the trial court reached the right result.
“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys, and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (§ 1021.)
The determination as to a legal basis for an award of attorney fees is a question of law, which we review de novo. (Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1069-1070.)
Even assuming plaintiffs had an agency agreement with defendants, the question is whether any such agreement contained an attorney fee clause.
Defendants contend there were three “contracts” that support their motion for attorney fees:
1. The purchase agreement between plaintiff Robert Lair and the seller, Chesney. This purchase agreement stated in clause 22: “ATTORNEY FEES: In any action, proceeding, or arbitration between Buyer [Lair] and Seller [Chesney] arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 17A [mediation].”
2. The Kring-Chesney Commission Agreement between Chesney (the seller) and the broker, which was signed by Ed Hendrickson, and which stated in paragraph 2: “ATTORNEY FEES: In any action, proceeding, or arbitration between Principal and Broker(s) arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs.” Defendants believe the terms of the Kring-Chesney Commission Agreement should apply to them, pursuant to their verbal “dual agency” agreement with Ed Hendrickson, the terms of which were not specifically alleged in the operative complaint but which were alleged in a proposed third amended complaint -- in which plaintiffs asserted it was their intent and understanding based on Ed Hendrickson’s explanation, that the verbal dual agency agreement granted plaintiffs the same contractual rights that Ed Hendrickson owed to the seller based on the Kring-Chesney Commission Agreement, which was signed by Ed Hendrickson.
We use the label used by the parties, though the name Kring does not appear in the commission agreement, which lists the broker as Homes and Land ‘4’ You and bears the signature of Ed Hendrickson.
3. The written agency disclosure form, disclosing the dual agency. Defendants acknowledge the agency disclosure form is not a contract, but they argue it is written evidence of the verbal dual agency agreement and therefore also incorporates by reference the attorney fee clause of the Kring-Chesney Commission Agreement.
We can quickly reject defendants’ second and third points, because the dual agency did not implicitly or explicitly incorporate the terms of the commission agreement, since the commission was to be paid to the broker by the seller (Chesney), not by plaintiffs. There is no allegation in the operative complaint that plaintiffs were to pay any commission and no basis to believe they were subject to the duties or rights of the commission agreement. Since the trial court denied leave to file the proposed third amended complaint (a ruling not assigned as error in plaintiffs’ cross-appeal), we need not address the allegations of that proposed pleading that plaintiffs understood the dual agency to mean they had the same duties and rights as the seller. Although a prevailing defendant may recover on an attorney fee clause in a contract found by the court not to exist, such recovery would be appropriate only if the plaintiff would have been entitled to recover attorney fees had the plaintiff prevailed. (Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. (2007)) § 6.14, pp. 184-186, and cases cited therein.) Here, even assuming plaintiffs prevailed on their contract and/or fraud claims, we see nothing suggesting their success would be in any way based on Chesney’s commission agreement. The complaint alleged only that the Hendricksons violated the purchase agreement and the agency agreement, not the commission agreement between the seller and the broker.
We conclude defendants are not entitled to an award of attorney fees based on the verbal agency agreement or the commission agreement. We therefore need not address the parties’ extensive arguments on this subject.
We next address the attorney fee clause in the purchase agreement.
The purchase agreement was signed by Robert Lair (as buyer) and by Chesney (as seller). Coreen Lair’s name does not appear anywhere on the purchase agreement. The purchase agreement was signed by Ed Hendrickson, on behalf of the broker, Homes and Land ‘4’ You, but his signature appears in a box which expressly states: “Real Estate Brokers are not parties to the Agreement between Buyer and Seller.” Cecilia Hendrickson did not sign the purchase agreement at all.
We shall consider the question of plaintiffs’ liability for attorney fees separately as to Robert Lair and Coreen Lair.
Robert Lair voluntarily dismissed his complaint and therefore is not liable for attorney fees on the contract claim, because Civil Code section 1717, subdivision (b), footnote 9, ante, states there is no party prevailing on the contract when the plaintiff voluntarily dismisses the action.
The voluntary dismissal does not necessarily preclude an award of attorney fees for tort claims, if the attorney fee clause is broad enough to encompass tort claims. (Santisas v. Goodin (1998) 17 Cal.4th 599, 619.) Thus, the provision of Civil Code section 1717 that there is no party prevailing on the contract when the plaintiff voluntarily dismisses the action “does not affect [defendants’] right to recover as costs the attorney fees they incurred in defense of . . . tort claims. Because section 1717 does not apply to those claims [citations], it does not bar recovery of attorney fees that were incurred in litigation of those claims and that are otherwise recoverable as a matter of contract law.” (Santisas v. Goodin, supra, 17 Cal.4th at p. 619.) Thus, a question remains as to whether defendants could recover attorney fees from Robert Lair for defense of the tort claims (which according to defendants includes the breach of contract claim which really alleged negligent performance).
As argued by defendants, the fact they were not signatories to the purchase agreement does not resolve the question. A party who has not signed a contract can be a prevailing party on that contract and thus entitled to a fee award under Civil Code section 1717, if the plaintiff would clearly have been entitled to attorney fees had he or she prevailed. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128; Loduca v. Polyzos (2007) 153 Cal.App.4th 334, 341.) The statutory language construed by Reynolds has not been significantly changed by subsequent amendments to the statute. (Cal. Attorney Fee Awards, supra, at § 6.11, pp. 176-177.) Additionally, a defendant can recover Civil Code section 1717 attorney fees for successfully defending against a contract claim by establishing that no contract existed. (North Associates v. Bell (1986) 184 Cal.App.3d 860, 865; Jones v. Drain, supra, 149 Cal.App.3d 484.)
However, defendants concede in their reply brief: “Super 7 Motel Associates v. Wang . . . would prevent an award of attorney fees to Ed [Hendrickson] (or Kring, for that matter) as neither is a party to the purchase agreement, and the terms of the purchase agreement attorney fee clause would prohibit such an award to the brokers.” Defendants’ reply brief also concedes Cecilia Hendrickson, as a nonparty to the contract, is not entitled to recover attorney fees against Robert Lair on the contract or tort claims.
We accept defendants’ concessions.
Thus, in Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, a buyer of real property sued the seller and its broker for fraud, seeking rescission or compensatory damages. The broker prevailed (though the buyer recovered damages against the seller). The appellate court reversed an order granting attorney fees to the broker. As a nonparty to the purchase agreement, the broker was not entitled to invoke the contractual attorney fee clause, even if he could be considered a third party beneficiary of the contract. (Id. at pp. 544-546.) The broker could not prevail on the theory that the buyer was estopped from denying the right to attorney fees after suing him as if he were a contracting party. (Id. at pp. 548-549.) The broker could recover as a nonparty only if he could have been liable for attorney fees on the contract had the buyer prevailed. (Ibid.) “[A]n action for fraud seeking damages sounds in tort, and is not ‘on a contract’ for purposes of an attorney fee award, even though the underlying transaction in which the fraud occurred involved a contract containing an attorney fee clause. [Citation.]” (Id. at p. 549.) An action for fraud seeking rescission can sound in contract and permit the award of attorney fees. (Ibid.) While the broker could have been held jointly and severally liable for consequential damages on the rescission claim, that liability would have been premised not on the contract but on fraud and would have been ancillary to the contract claim against the seller. (Id. at pp. 544-550.) Accordingly, Super 7 Motel concluded the broker would not have been liable to the buyer for attorney fees, had the buyer prevailed, and therefore the broker was not entitled to recover attorney fees. (Id. at p. 550.)
The procedural posture of Super 7 Motel, supra, 16 Cal.App.4th 541, is similar to this case, and we similarly conclude defendants are not entitled to an attorney fee award against Robert Lair.
Additionally, Topanga and Victory Partners v. Toghia (2002) 103 Cal.App.4th 775 (Topanga) said a defendant dismissed from a lawsuit alleging contract and tort claims could not recover Civil Code section 1717 fees due to the dismissal and could not recover attorney fees for noncontract claims as costs under section 1032 because he was not party to the contract with the attorney fee clause. (Id. at p. 786.) Thus, although a nonsignatory can recover fees for contract claims (Santisas v. Goodin, supra, 17 Cal.4th 599), he cannot recover fees for noncontract claims. Defendants argue Topanga’s statement was mere dictum because the opinion did not say the defendant made his fee claim under section 1032, as opposed to Civil Code section 1717. Defendants also argue Topanga misconstrued Santisas as ruling that only contracting parties were entitled to section 1032 fee awards -- an issue that was not before the Santisas court. However, section 1032 merely establishes a procedure for claiming fees due under Civil Code section 1717 or other legal authority. Section 1032 is not an independent source of entitlement to attorney fees. Thus, defendants’ arguments are without merit.
We conclude the trial court properly denied defendants’ motion for attorney fees as against Robert Lair.
We next consider whether defendants could recover their attorney fees from Coreen Lair under Civil Code section 1717.
As to the contract and tort claims based on the attorney fee clause in the purchase agreement, neither Coreen Lair nor the Hendricksons were parties to the purchase agreement. Indeed, the purchase agreement expressly stated that brokers were not parties to the purchase agreement, and Ed Hendrickson signed on behalf of the broker.
Defendants argue Coreen Lair was in effect suing as a third party beneficiary of the purchase agreement. However, as observed by the trial court at the hearing, plaintiffs had not pleaded a theory of third party beneficiary. Moreover, in order for Coreen Lair to be a third party beneficiary, the agreement would have to reflect the intent to make her a third party beneficiary -- an issue which is largely a question of interpreting the written contract. (Loduca v. Polyzos, supra, 153 Cal.App.4th at p. 341 [property owner was third party beneficiary of contract between general contractor and subcontractor].) Here, nothing in the purchase agreement reflected an intent to make Coreen Lair a third party beneficiary. Instead, defendants rely on allegations of the complaint and assertions of plaintiffs’ attorney in arguing motions to the trial court. Such reliance is ineffective.
To the extent that defendants argue Coreen Lair was at a minimum a third party beneficiary to a verbal agency agreement with defendants, they fail to show the verbal agency agreement contained any attorney fee clause.
Defendants assert Coreen Lair would have been entitled to recover attorney fees from them had she prevailed in proving breach of contract. However, they fail to explain why this would be so. Under Civil Code section 1717, “a prevailing party is entitled to attorney fees only if it can prove it would have been liable for attorney fees had the opponent prevailed.” (Perez, supra, 111 Cal.App.4th at p. 467.) Although the clause there was an indemnity clause rather than a prevailing-party-attorney-fee clause within the meaning of Civil Code section 1717 (Perez at p. 463), we discussed Civil Code section 1717 in connection with our rejection of a general contractor’s argument that the property owner was judicially estopped to deny the existence of a prevailing-party-attorney-fee clause in light of the owner’s having sought an attorney fee award in its breach of contract claim against the contractor based on the contract. (Perez at p. 463.) In Perez, we disapproved dictum in our earlier opinion in International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, (International Billing Services), which said, “Where a party claims a contract allows fees and prevails, it gets fees. Where it claims a contract allows fees and loses, it must pay fees.” (International Billing Services, supra, 84 Cal.App.4th at p. 1190.) We said in Perez, “[t]his conclusion is correct only if the litigation is over the validity of the attorney fee provision. A more precise statement of the rule would be: Where a party claims that a contract allows fees and proves it, that party gets fees. Where a party claims that a contract allows fees and does not prove it, the opponent gets fees.” (Perez, supra, 11 Cal.App.4th at p. 468.) We explained in Perez: “The problem with International Billing Services is that it assumes the underlying litigation is over the validity of the contract in general or the attorney fee provision in particular. Where a plaintiff claims breach of a contract containing an attorney fee provision and the defendant asserts there is no contract and wins, it will have established that there is no contract and, hence, no attorney fee provision. Nevertheless, since the plaintiff would have been entitled to attorney fees if the plaintiff had succeeded in proving there was a contract, courts have recognized a right of the defendant to recover attorney fees even if defendant proves there was no contract, in order to further the purposes of Civil Code section 1717. [Citations.] [¶] However, where the underlying litigation is not over the validity of the contract or the attorney fee provision, this rationale disappears [e.g., where the defendant admits the existence of the contract but denies breach].” (Perez, supra, 111 Cal.App.4th at p. 467.) “The fallacy of the rule stated in International Billing Services is the assumption that if the party who claims that a contract allows fees prevails in the underlying litigation, it gets attorney fees. In truth, the party must still prove that the contract allows attorney fees. The mere allegation is not enough. It is only where the parties litigate the existence of an attorney fee provision and the party claiming such a right prevails that the party should be entitled to attorney fees. Under such circumstance, if the opponent succeeds in proving there is no attorney fee provision, it should be awarded its fees in order to further the purpose of Civil Code section 1717.” (Id. at p. 468.)
Even if Coreen Lair had prevailed in proving an attorney fee clause, we see no basis upon which Coreen Lair would have been entitled to recover attorney fees from the Hendricksons, who were not parties to any attorney fee clause. Defendants are therefore not entitled to a fee award, because a party is entitled to recover its attorney fees pursuant to a contractual provision only when the party would have been liable for the fees of the opposing party if the opposing party had prevailed. (Loduca v. Polyzos, supra, 153 Cal.App.4th at p. 341.) Defendants would not have been liable for Coreen Lair’s attorney fees and therefore are not entitled to require her to pay their attorney fees.
We conclude defendants fail to show reversible error in the trial court’s denial of their motion for attorney fees under Civil Code section 1717 or section 1033.5.
B. Attorney Fees as Sanctions
Defendants argue the trial court erred in declining to address on the merits the issue whether defendants could recover attorney fees as sanctions in lieu of a malicious prosecution lawsuit. We see no grounds for reversal.
Defendants ignore the fact that their motion relied upon a statute which never became operative. (Stats. 1998, ch. 121, § 1 [§ 128.6 was to become operative unless the repeal date of section 128.7 was repealed]; Stats. 2002, ch. 491, § 1, and Stats. 2005, ch. 706, § 9 [extending and then repealing the repeal date of section 128.7].) This alone defeats their appeal.
Defendants argue they do not base their appeal on the statute, but rather on case law authorizing sanctions “in lieu of a malicious prosecution.” They claim plaintiffs waived opposition by failing to address this issue. Defendants’ argument is nonsense.
Thus, the case cited by defendants did not create a common law right to sanctions but construed a different sanctions statute, section 128.5 (sanctions for frivolous actions or delay tactics), as a substitute for a malicious prosecution action. (Andrus v. Estrada (1995) 39 Cal.App.4th 1030, 1038, 1041.) Andrus observed the intent was to broaden the trial court’s powers to provide for expeditious handling of the matter where appropriate. (Id. at p. 1041.)
Defendants did try to assert a different statutory basis for their motion at the hearing in the trial court, where they cited section 128.7, which provides, “the court may . . . impose an appropriate sanction upon the attorneys, law firms, or parties” if the court finds a violation of the rule that, by presenting a pleading to the court, the attorney certifies that it is not being presented “primarily for an improper purpose, such as to harass or to cause unnecessary delay,” and that the claims are “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” (§ 128.7, subds. (b)-(c).)
Even assuming for the sake of argument that defendants could rely on section 128.7 as an alternative statutory basis (though they do not cite either statute in their opening brief on appeal), they fail to show grounds for reversal.
Thus, the trial court said, “the delicts assigned by the defendants to the plaintiffs are simply too numerous, and potentially arguable levels of good or bad faith as to particular acts too complex, to be efficiently resolved summarily in the context of a sanctions motion.”
Defendants argue it is precisely for this reason that the trial court should have addressed the matter, rather than forcing defendants to engage in further litigation via a malicious prosecution lawsuit.
Defendants misunderstand the purpose of the statutory sanctions, which allow the trial court the handle the matter when it can do so expeditiously. (Andrus v. Estrada, supra, 39 Cal.App.4th at p. 1041.) Here, the matter could not be handled expeditiously. Moreover, defendants fail to show plaintiffs’ complaint constituted a malicious prosecution, and the trial court expressly stated it was not deciding that issue. We disregard defendants’ belated attempt to demonstrate malicious prosecution in their reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763, 766 [reviewing court need not address new points raised in reply brief].)
On appeal, defendants argue, “Surely the Judgment on the Pleadings against Coreen [citation], the voluntary dismissal by Shane Lair at the moment of opening statement [citation], the waiver of a jury after Motions in Limine had been prepared and filed [citation], and the continuation of the case after May 12, 200[5] [when defendants demanded dismissal from plaintiffs] [citation] are all evidence of the meritless prosecution of this case.”
However, none of these points establishes malicious prosecution as a matter of law, and defendants cite no authority requiring the trial court to litigate a malicious prosecution matter as a motion after the pre-trial disposal of plaintiffs’ case.
We decline to address a new point raised in defendants’ reply brief, that sanctions are recoverable as costs under section 1033.5 independent of section 128.7. (Reichardt v. Hoffman, supra, 52 Cal.App.4th at pp. 763, 766.)
Defendants argue that, in the event we do not conclude they are entitled to attorney fees, we should remand to the trial court for an evidentiary hearing to determine whether an award is appropriate.
We conclude neither course of action is warranted, and defendants have failed to show grounds for reversal of the trial court’s order denying their motion for attorney fees.
II. Plaintiffs’ Cross-Appeal
A. Motion for Judgment on the Pleadings
In their cross-appeal, plaintiffs argue the trial court erred in granting defendants’ motion for judgment on the pleadings, removing Coreen Lair from the lawsuit. We disagree.
The statute governing motions for judgment on the pleadings, section 438, provides in subdivision (d): “The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.”
“[A] motion for judgment on the pleadings is the equivalent of a general demurrer. [Citation.] This motion tests whether the allegations of the pleading under attack support the pleader’s cause if they are true. [Citation.] Where written instruments are the foundation of a claim or defense and are incorporated in a pleading, the recitals of the instruments take precedence over allegations in the pleading itself unless the incorporated instruments are susceptible to more than one interpretation. [Citation.]” (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.) “[I]n order for judicial notice to support a motion for judgment on the pleadings by negating an express allegation of the pleading, the notice must be of something that cannot reasonably be controverted. [Citations.] The same is true of evidentiary admissions or concessions.” (Ibid.) “The terms of a writing incorporated by reference which rebut an allegation of the pleading may conceivably be so clear and simple that parol evidence will be inadmissible to refute them. Judicial notice may conclusively defeat the pleading as where it establishes res judicata or collateral estoppel. The pleader’s own concession may have this same conclusive effect. [¶] In these limited situations, the court, in ruling on a motion for judgment on the pleadings, properly looks beyond the pleadings. But it does so only because the party whose pleading is attached will as a matter of law, or law’s equivalent of judicial notice of a fact not reasonably subject to contradiction, fail in the litigation. Where the significant issue is one of fact and not of law this process is inappropriate.” (Id. at p. 469.) Our review is de novo. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064-1065.)
Judgment on the pleadings is proper if the plaintiff lacks standing to sue. (Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224.)
Here, although the complaint alleged defendants represented both plaintiffs in a real estate transaction, the purchase agreement attached to the complaint clearly showed the buyer was Robert Lair alone. Thus, the purchase agreement stated: “THIS IS AN OFFER FROM Robert Shane Lair.” Although the document had two spaces for “BUYER,” only one was filled out and signed -- with the name Robert Shane Lair.
The purchase agreement prevails over the complaint’s allegation. (Columbia Casualty Co., supra, 231 Cal.App.3d at p. 468.) Coreen Lair was not a party to the purchase agreement. Thus, Coreen Lair had no viable claim for breach of contract. As to the fraud claims, all damage alleged to have been caused by defendants related to the failed real estate transaction, in which Coreen Lair had no interest. Thus, Coreen Lair had no viable claim at all.
The complaint also attached the dual agency disclosure form which bore the signatures of both the Lairs, with Coreen Lair’s signature crossed out. Plaintiffs argue this document renders the purchase agreement ambiguous, and therefore the purchase agreement cannot prevail over the complaint’s allegations. (Columbia Casualty Co., supra, 231 Cal.App.3d at p. 468 [written instrument incorporated in pleading does not take precedence over allegations if it is susceptible to more than one interpretation].) We disagree. Regardless of who crossed out Coreen Lair’s signature or why, the disclosure form was not a contract, nor could it be considered part of the purchase agreement (which was the object of the alleged agency by defendants), because paragraph 24 of the purchase agreement stated: “All understandings between the parties are incorporated in this Agreement. Its terms are intended by the parties as a final, complete and exclusive expression of their Agreement with respect to its subject matter, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. . . . Neither this Agreement nor any provision in it may be extended, amended, modified, altered or changed, except in writing [s]igned by Buyer and Seller.”
The page containing this clause is missing from the copy of the purchase agreement attached to the complaint in appellants’ appendix on appeal. However, the full purchase agreement appears in the record on appeal, attached to the motion for judgment on the pleadings.
The only damage alleged to have been caused by defendants’ alleged breach/fraud regarding the alleged agency agreement was loss of the real estate deal, which was not alleged to have been caused by defendants’ advice to omit Coreen Lair from the real estate transaction.
Thus, based on the pleading, defendants were entitled to judgment on the pleadings to remove Coreen Lair from the lawsuit, because the object of, and the only damage caused by, the alleged agency agreement with defendants was a real estate transaction to which Coreen Lair was not a party (or third party beneficiary).
We recognize defendants unwittingly tried to shoot themselves in the foot by presenting with their motion a document which might appear to undercut their position (though no one seemed to realize it in the trial court). Thus, in arguing in the alternative that any agency ended in February 2005, defendants submitted a copy of MUTUAL CANCELLATION INSTRUCTIONS, stating, “Robert Lair and Cor[e]en Lair, purchasers(s), and Gene Chesney, seller(s), agree that said escrow is null [and] void” and asking that the deposit money be returned to “BUYER: Robert Lair and Cor[e]en Lair.” The document was signed by both the Lairs (though the line for the seller’s signature was not signed). Plaintiffs did not latch onto this document as defeating judgment on the pleadings, but argued generally that it was inappropriate for defendants to submit evidence in a motion for judgment on the pleadings. In their reply on the cross-appeal, plaintiffs argue this document creates an ambiguity preventing a conclusion that the purchase agreement negated the complaint’s allegations beyond reasonable controversy.
However, the document does not require reversal of the judgment because, as indicated, paragraph 24 of the purchase agreement contained an integration clause precluding parol evidence to contradict the agreement, stating: “All understandings between the parties are incorporated in this Agreement, its terms are intended by the parties as a final, complete and exclusive expression of their Agreement with respect to its subject matter, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. . . . Neither this Agreement nor any provision in it may be extended, amended, modified, altered or changed, except in writing [s]igned by Buyer and Seller.”
The copy of the mutual cancellation instructions in the record does not bear the signature of the seller.
Plaintiffs complain defendants were allowed to bring forth evidence in a motion for judgment on the pleadings that should have been presented as a summary judgment motion, which would have afforded plaintiffs the opportunity to present their own evidence. However, plaintiffs fail to show any evidence submitted by defendants that helped their motion, other than the documents attached to the complaint, which could properly be considered in the motion for judgment on the pleadings. (Burnett, supra, 123 Cal.App.4th at p. 1064.) Plaintiffs suggest the court must have considered other evidence, because the court commented that summary judgment would have been more appropriate. However, the court’s comment was not directed at this particular motion (motion number 4) but followed the court’s review of its denial of motion number 7.
We conclude the trial court properly granted judgment on the pleadings, removing Coreen Lair from the lawsuit.
B. Motion to Expunge Lis Pendens and Award Attorney Fees
With respect to plaintiffs’ cross-appeal, defendants filed in this court a motion to dismiss plaintiffs’ cross-appeal of the order(s) expunging the lis pendens and awarding attorney fees on the lis pendens matter, because such orders are not appealable but are reviewable only upon a timely petition for a writ of mandate (which did not occur in this case). We agree with defendants and shall dismiss plaintiffs’ cross-appeal regarding the lis pendens.
On June 19, 2006, the trial court granted the motion to expunge the lis pendens on the ground the complaint did not contain a real property claim and, pursuant to section 405.31, “In proceedings under this chapter, the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim.”
At the request of plaintiffs, the trial court deferred the defense request for attorney fees in connection with the motion to expunge the lis pendens. Thereafter, in October 2006, the trial court awarded defendants $2,407.50 in attorney fees regarding their motion to expunge the lis pendens.
The recording of lis pendens, which gives notice of pending lawsuits asserting real property claims, is governed by sections 405 through 405.61. Section 405.30 authorizes a party to file a motion to expunge a lis pendens. Section 405.31 authorizes the court to expunge the lis pendens when the pleading contains no real property claim. Section 405.38 authorizes the court to award attorney fees to the party prevailing on a motion to expunge a lis pendens.
Section 405.39 provides, regarding lis pendens: “No order or other action of the court under this chapter shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate. The petition for writ of mandate shall be filed and served within 20 days of service of written notice of the order by the court or any party. The court which issued the order may, within the initial 20-day period, extend the initial 20-day period for one additional period not to exceed 10 days. A copy of the petition for writ of mandate shall be delivered to the clerk of the court which issued the order with a request that it be placed in the court file.”
Section 405.39 provides the sole remedy for review of the lis pendens matters. (Shah v. McMahon (2007) 148 Cal.App.4th 526, 529.)
Plaintiffs, in opposing dismissal, argue that since they cross-appealed from the judgment which incorporated the October 23, 2006, order after hearing (which incorporated the attorney fee ruling on the lis pendens matter), section 405.39 is not relevant to that order. However, plaintiffs cite no authority supporting their position.
The record on appeal (appellants’ appendix) does not contain any written order or service of the first ruling, expunging the lis pendens. Plaintiffs argue they did not care about the expungement until the court later awarded attorney fees. Plaintiffs also say they do not challenge the expungement itself. However, the only basis for their challenge to attorney fees is that the expungement was improper. In any event, we shall assume plaintiffs could have challenged that first ruling together with their challenge to the attorney fees on the lis pendens, which was reflected in the written order of October 23, 2006, which was served by mail by the court clerk on October 23, 2006.
However, plaintiffs never filed a writ petition to challenge the lis pendens rulings.
Nor could we treat plaintiffs’ cross-appeal as a writ petition, because it was not timely. Under section 405.39, the writ petition had to be filed within 20 days of service of the order (30 days with trial court permission, which did not happen in this case). Even if we count 30 days, the writ petition had to be filed by late November 2006. Plaintiffs’ cross-appeal was not filed until January 24, 2007. Even if we could use the date of defendants’ filing of the appeal from a different portion of the judgment, that date (December 21, 2006) would still be too late.
We conclude the trial court’s orders expunging the lis pendens and awarding attorney fees in connection with the lis pendens are not appealable, and the cross-appeal cannot be treated as a writ petition. Accordingly, the cross-appeal regarding the lis pendens is dismissed.
III. Motion for Sanctions for Frivolous Appeal
On January 31, 2008, plaintiffs filed in this court a motion for sanctions for a frivolous appeal, pursuant to California Rules of Court, rule 8.276(e). Plaintiffs’ memorandum of points and authorities in support of the motion added section 907 as an additional basis for the motion. We hereby deny the motion.
Rule 8.276, in its current form, effective January 1, 2008, provides in part, that “[o]n motion of a party or its own motion, a Court of Appeal may impose sanctions . . . on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal’s determination; [¶] (3) Filing a frivolous motion; or [¶] (4) Committing any other unreasonable violation of these rules.”
Section 907 provides: “When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.”
An appeal will be deemed frivolous only when it is prosecuted for an improper motive (to harass the respondent or delay the effect of an adverse judgment) or when it indisputably has no merit (when any reasonable attorney would agree the appeal was totally and completely without merit). (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650; Millenium Corporate Solutions v. Peckinpaugh (2005) 126 Cal.App.4th 352, 360.)
Since, as we have explained, the trial court erred in its reasoning (by stating the absence of a prayer for contractual attorney fees in the complaint precluded an award of contractual attorney fees for a prevailing defendant), we decline to characterize the appeal as frivolous.
The motion for sanctions for a frivolous appeal is denied.
DISPOSITION
The cross-appeal regarding the lis pendens is dismissed. The judgment is affirmed. Plaintiffs’ motion for sanctions for a frivolous appeal is denied. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)
We concur: SCOTLAND, P.J., HULL, J.