Opinion
A128525
08-11-2011
CHIN TEH SHIH, as Trustee, etc., et al., Plaintiffs, Cross-Defendants and Appellants, v. ERIC W. LIEN et al., Defendants, Cross-Complainants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiffs and cross-defendants Chin Teh Shih (also known as Jessie Woo), as Trustee of the Woo Family 2000 Trust (Trustee), and Lucky United Properties Investment, Inc. (Lucky United; collectively, the Trust) and defendants and cross-complainants Eric W. Lien and Pi-Ching Yen (collectively, Lien/Yen) appeal a March 30, 2010 order denying each side's motion for contractual attorney fees (Civ. Code, § 1717) and litigation costs (Code Civ. Proc., § 1032) after the trial court determined there was no prevailing party. Each party contends it is the prevailing party for purposes
Trustee is the successor in interest to Ming Woo (Woo), who died in January 2005.
All undesignated section references are to the Civil Code.
(San Francisco County Super. Ct. No. CGC-99-305809) of an award of attorney fees and costs. We conclude the trial court did not abuse its discretion in determining there was no prevailing party and affirm.
On November 24, 2010, Lien/Yen requested that we take judicial notice of four trial court orders issued in this case between May 2004 and April 2005: (1) denying their motion to set a trial date, (2) appointing a guardian ad litem for Woo, (3) granting Lien/Yen's motion to continue trial, and (4) granting Trustee's motion to enter the proceedings as a successor party to Woo. We deny the request as unnecessary.
BACKGROUND
Some of the background facts are taken from two of our prior unpublished decisions: Woo v. Lien (Oct. 2, 2002, A094960) (Woo I) and Shih v. Lien (June 12, 2008, A114380) (Woo III).
This "epic contract dispute" regarding the purchase of property in San Francisco (the Property) has been litigated since 1999. In late 1995 and early 1996, Woo, Lien and Yen purchased the Property, consisting of 10 undeveloped lots in San Francisco's Bernal Heights neighborhood, for $178,000. For the sake of convenience, title was taken by Lucky United, a corporation owned solely by Woo. Pursuant to the parties' agreement, Woo would contribute $67,500 for a 37.5 percent share in the Property; Woo would loan $67,500 to Lien, which Lien would use to acquire a 37.5 percent share; and Yen would contribute $45,000, which would entitle her to a 25 percent share.
The Contract at Issue
The parties agree that three documents—a purchase agreement (Agreement) and two promissory notes—taken together, comprise the parties' contractual agreement (hereafter, the contract). The Agreement, executed by Woo, Lien and Yen in December 1995, stated in part, "Lien accepted the co-ownership arrangement with the understanding, that since all Lien's purchase money comes from loan(s), that Lien desires to repay the loan as soon as possible . . . from the sale of the lot or lots." The Agreement gave Lien the right to sell the Property for an amount that exceeded a 25 percent annual return on the original purchase price, subject to a right of first refusal granted to Woo. In January 1996, Woo and Lien executed a promissory note (Woo-Lien note) evidencing Woo's $67,500 loan to Lien. On the same day, on behalf of Lucky United, Woo signed a promissory note (Woo-Yen note) evidencing Yen's payment of $45,000 and executed a deed of trust in Yen's favor. Each note reflects that Woo would contribute $67,500 for a 37.5 percent share in the Property; Woo would loan $67,500 to Lien, which Lien would use to acquire a 37.5 percent share; and Yen would contribute $45,000, which would entitle her to a 25 percent share. Each note has an attorney fee clause which states, "If action be instituted on this Note, I promise to pay such sum as the Court may fix as attorney's fees."
The one-page Agreement does not contain an attorney fee clause. However, throughout this litigation, the parties have agreed that the attorney fee clauses in the Woo-Lien and Woo-Yen promissory notes govern the entire contract between the parties. (See IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal.App.3d 451, 463 [generally, several papers relating to the same subject matter and executed as parts of substantially one transaction, are to be construed together as one contract].)
The purchase of the Property closed in February 1996.
Although the Property was undeveloped at the time of purchase, within a few months the City and County of San Francisco improved access to portions of Bernal Heights, including the Property. The improved access increased the Property's value and Woo and Lien agreed to delay marketing it to allow for completion of the improvements.
Between 1998 and mid-1999, the parties received several purchase offers for the Property, including three from Christopher Cook, but could not agree on a sale. Although no sale occurred, Woo asked Lien to repay him the money he had contributed on Lien's behalf. Lien did not respond and did not pay.
Woo Complaint
In August 1999, Woo and Lucky United sued Lien and/or Yen for breach of contract, declaratory relief and specific performance. The complaint alleged that Lien breached the Woo-Lien note by failing to repay Woo the $67,500 loan amount on demand. It sought a declaratory judgment against Yen to establish whether her $45,000 contribution gave her an equity interest in the Property or, instead, made her a creditor of Lucky United with no equity stake. It also sought a declaration establishing the parties' respective rights and obligations regarding the Property. The specific performance claim against Lien related to Woo's August 1999 attempt to purchase Lien's interest in the Property.
In October 1999, Cook offered to buy the Property for $675,000. Lien/Yen accepted the Cook offer and forwarded it to Woo, requesting that he accept the offer or exercise his right of first refusal.
On December 13, 1999, Woo sent a letter through his attorney stating that he was exercising the right of first refusal to purchase the Property for $675,000 subject to various conditions. One of those conditions was that opening of an escrow was unnecessary since title already resided in Lucky United. Another condition was that Woo would deduct from the $675,000 purchase price the five percent ($33,750) brokerage commission. Thus, Woo would actually pay $641,250 for the Property. On December 14, Lien responded, stating that an escrow was required to be opened if Woo wished to properly exercise his right of first refusal. Lien also stated that in order for Lien/Yen to be in the same position as if Cook had purchased the Property, Woo and Lucky United should agree to indemnify Lien/Yen against any possible suit by the brokers related to the brokers' commissions. Woo did not respond.
Lien/Yen Cross-Complaint
On January 6, 2000, Lien/Yen filed a cross-complaint against Woo and Lucky United alleging claims for resulting trust, declaratory relief, specific performance, breach of contract, partition, violation of Business and Professions Code section 17200 (17200 claim) and interference with prospective economic advantage. The cross-complaint alleged that Woo and Lucky United refused to allow the Cook sale to proceed, and failed to validly exercise the right of first refusal to match the terms of Cook's offer. It sought to establish the parties' respective rights in the Property. It asked the court to either declare that Lien/Yen together owned a 62.5 percent interest in the Property and partition the Property, or order Woo and/or Lucky United to purchase the Property for $675,000, with Lien and Yen to be paid their respective shares. The cross-complaint also sought damages and restitution.
The Lien/Yen cross-complaint referred to the terms of the Agreement and the promissory notes without distinguishing between the three documents.
Woo Amended Complaint
In June 2000, Woo and Lucky United filed an amended (and operative) complaint against Lien/Yen which eliminated the specific performance claim, again alleged breach of contract and declaratory relief, and added claims for fraud and abuse of process. The first cause of action for breach of contract alleged that Lien breached the Woo-Lien note by not repaying Woo's loan on demand. The second cause of action for declaratory relief alleged that the interest formula negotiated by Lien/Yen was usurious. The third cause of action against Lien/Yen for fraud justifying rescission or damages alleged that Lien, as Woo's fiduciary, breached his fiduciary duties and committed fraud in the formation of the transaction by structuring the purchase of the Property in a manner unfavorable to Woo. Woo sought to rescind the entire transaction by paying off Yen for $45,000, forgoing Lien's repayment of Woo's $67,500 loan, and keeping all interest in the Property for himself. Alternatively, Woo sought compensatory and punitive damages in the event the court upheld Lien/Yen's interest in the Property. The fourth cause of action against Lien sought damages for Lien's fraud and breach of fiduciary duty to Woo. The fifth cause of action against Lien alleged that Lien's filing of the 17200 claim in the cross-complaint was an abuse of process. The sixth cause of action against Lien/Yen for declaratory relief sought a declaration that Woo validly exercised his right of first refusal to purchase the Property for $675,000. It alleged that if Woo was not entitled to rescission of the entire transaction, the court should declare that the price he offered to pay to exercise his right of first refusal is the correct price.
In March 2001, following a court trial before Judge Chaitin, judgment issued in favor of Lien/Yen on all of the causes of action alleged in Woo's amended complaint and on all of the causes of action alleged in Lien/Yen's cross-complaint. The trial court concluded: (1) Lien was not required to repay the Woo-Lien note on demand; (2) Yen was a 25 percent equity holder in the Property, with Lien and Woo each owning 37.5 percent; (3) Lien was not Woo's fiduciary; (4) Lien did not commit fraud or abuse of process; (5) Woo failed to validly exercise his right of first refusal; and (6) Lien/Yen were entitled to a resulting trust and equitable relief involving the sale of the Property. The trial court's rulings on the cross-complaint were predicated on its determination that Woo did not validly exercise his right of first refusal. Subsequently, the trial court awarded Lien/Yen costs and attorney fees under section 1717.
Woo separately appealed the March 2001 judgment and the attorney fee award. On October 2, 2002, in Woo I, this court affirmed the trial court's determination that Woo was not entitled to damages on the amended complaint's first five causes of action for breach of contract, declaratory relief regarding Yen's status, fraud, abuse of process, and breach of fiduciary duty. We also affirmed the trial court's determination that, prior to Woo's purported exercise of his right of first refusal, Woo and Lien each owned a 37.5 percent interest in the Property, and Yen owned a 25 percent interest in the Property. However, we reversed the trial court's ruling on the amended complaint's sixth cause of action for declaratory relief, concluding the trial court erred in determining that Woo did not validly exercise his right of refusal in December 1999. We remanded the matter to permit Lien to introduce additional evidence regarding affirmative defenses to Woo's purported exercise. We also reversed the trial court's judgment on the Lien/Yen cross-complaint, which was based on the trial court's erroneous determination that Woo did not validly exercise his right of first refusal. We concluded neither side was the prevailing party in the appeal and that each side should bear its own costs on appeal.
On October 3, 2002, in an unpublished opinion (Woo v. Lien (A096145)) (Woo II), we reversed the trial court's attorney fees and costs award to Lien/Yen based on our determination in Woo I that there was no prevailing party.
On December 12, 2005, following a court trial on Lien/Yen's affirmative defenses to Woo's exercise of his right of first refusal alleged in Woo's sixth cause of action for declaratory relief, the trial court (Judge Mellon) ruled that Lien/Yen failed to establish any affirmative defense. The trial court entered judgment in favor of Woo on the sixth cause of action, confirming that Woo had effectively exercised his right of first refusal in December 1999, and carried through the judgment in favor of Lien/Yen on Woo's first five causes of action. The trial court also ruled against Lien/Yen on their cross-complaint, including their cause of action for declaratory relief in which they sought to establish a continuing 62.5 percent interest in the Property, and their cause of action for partition. The court explained its ruling in its statement of decision as follows: "The plaintiffs are accordingly entitled to the declaration determining, as the Court of Appeal held, that Woo properly exercised his right of first refusal. Given the Court of Appeal'[s] determination that the trial court's ruling on the claims asserted in the cross-complaint and the relief the trial court granted on the cross-complaint each had to be reversed because that ruling and relief 'were predicated on the determination that Woo did not validly exercise his right of first refusal,' the resolution now made of the Sixth Cause of Action of plaintiffs' First Amended Complaint precludes any consideration by this court of the merits of any cause of action set forth in the cross-complaint." The court's judgment stated that Woo would take nothing on the allegations of the first through fifth causes of action of the amended complaint and that Lien/Yen would take nothing by reason of anything alleged in their cross-complaint.
No appeal was taken from the December 12, 2005 judgment.
Thereafter, the parties each sought to be declared the prevailing party entitled to contractual attorney fees and costs. In an April 2006 order, the trial court (Judge Mellon) declared Woo the prevailing party for purposes of recovering costs and attorney fees. It concluded that based on this court's decisions in Woo I and Woo II, it had no authority to determine the prevailing party status for costs or attorney fees for any period prior to the issuance of the remittiturs in those appeals, i.e., December 26 and 30, 2002, and had no authority to consider matters occurring prior to the remittitur in determining who was the prevailing party following the December 2005 entry of judgment. The trial court also concluded that if it did have discretion to award earlier incurred costs, it declined to do so in light of the mixed results achieved by the parties. Finally, it concluded that as to the proceedings occurring after issuance of the remittitur and through trial which commenced in November 2005, Woo was the prevailing party for purposes of attorney fees and costs. It awarded Woo $440,000 in attorney fees and $13,224.22 in costs. Lien/Yen appealed the order declaring Woo the prevailing party and awarding him attorney fees and costs.
Woo apparently sold the Property in March 2006 for $1.75 million. Litigation has since ensued over numerous issues including Lien/Yen's share, if any, of the purchase price.
We deny as unnecessary Woo's May 12, 2011 request that we judicially notice the May 4, 2011 judgment entered in Shih v. Lien (S.F. Super. No. CGC-09-487145), as well as a prejudgment order and pleading filed in that action.
In June 2008, in Woo III, we reversed the trial court's determination that Woo was the prevailing party for contractual attorney fees and for costs. We determined the trial court erroneously concluded that our remand instructions in Woo I and Woo II stripped it of authority to determine the parties' prevailing party status for any period prior to the issuance of the remittiturs in Woo I and II. We also concluded the trial court erroneously determined it lacked authority to consider matters occurring prior to the remittitur in determining who was the prevailing party following the December 2005 entry of judgment. Finally, we concluded the trial court erred in separating the litigation into preremittitur and postremittitur phases and, thus, determining that there was no prevailing party in the preremittitur phase and that Woo was the prevailing party in the postremittitur phase. We remanded the matter to the trial court with instructions to determine the prevailing party, if any, based on the final results of the litigation as a whole.
Following the August 2008 issuance of the remittitur in Woo III, the parties again each sought to be declared the prevailing party.
In its March 30, 2010 order, the trial court (Judge Ulmer) determined that there is no prevailing party based on the final results of the litigation for purposes of awarding attorney fees under section 1717 and costs under Code of Civil Procedure section 1032. The court's written ruling explained: First, employing an "action-by-action" analysis, although Woo prevailed on his sixth cause of action for validation of his exercise of his right of first refusal and Lien/Yen lost on all their cross-claims, Woo lost on his first and second causes of action and Lien/Yen's cross-complaint was " 'defensive' makeweight.' " Second, employing a "litigation objective" analysis, Woo succeeded in what he considered his litigation objective of actual ownership of the Property by the litigation's vindication of his right of first refusal. However, Woo failed in his attempt to rescind the parties' entire agreement, which Lien/Yen asserted was Woo's litigation objective. Third, the City and County of San Francisco's improvements to the Bernal Heights area increased the Property's value "many fold" constituting a "simple fortuity" that "radically skews" an attempt to employ a "monetary" analysis. The court concluded that none of these analytical approaches yielded a prevailing party, and each approach confirmed that there is no prevailing party based on the final results of the litigation.Both parties have timely appealed the court's March 30, 2010 order.
The court noted the difficulty of employing a litigation objective analysis in this case "where pleadings and theories of the case changed repeatedly."
The court also concluded that Woo's claim for rescission based on fraud is a claim sounding in contract for purposes of an award of section 1717 attorney fees, but, in any case, resolution of that issue would not materially affect the court's prevailing party analysis.
DISCUSSION
Each party contends it should have been declared the prevailing party; therefore, the trial court erred in concluding there was no prevailing party for purposes of a contractual attorney fee award under section 1717.
Section 1717 permits an award of attorney fees to the prevailing party in an action on a contract. (Silver Creek, LLC v. BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533, 1538 (Silver Creek))"[I]n deciding whether there is a 'party prevailing on the contract,' the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by 'a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.' [Citation.]" (Hsu v. Abbara (1995) 9 Cal.4th 863, 876 (Hsu).)Where the judgment was a " 'simple, unqualified win' " on the only contract claim, a trial court has no discretion to deny an attorney fee award to that prevailing party under section 1717. (Hsu, at p. 876.) Thus a party "whose litigation success is not fairly disputable" can claim attorney fees as a matter of right. (Ibid.)Where both parties seek relief on a contract but neither party prevails, the trial court retains discretion to determine that there is no prevailing party under section 1717. (Hsu, at p. 875.) "If neither party achieves a complete victory on all the contract claims, it is within the discretion of the trial court to determine which party prevailed on the contract or whether, on balance, neither party prevailed sufficiently to justify an award of attorney fees." (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.)
Section 1717 provides, in part: "(a) 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 prevailing party 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." Subdivision (b)(1) of section 1717 provides: "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) [voluntary dismissal of the action or dismissal of the action pursuant to settlement], 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."
"A trial court has wide discretion in determining which party is the prevailing party under section 1717, and we will not disturb the trial court's determination absent 'a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.' [Citation.]" (Silver Creek, supra, 173 Cal.App.4th at p. 1539.) One example of such an abuse of discretion occurs when the trial court fails to recognize that the party who obtained a "lopsided" victory is the prevailing party. (de la Cuesta v. Benham (2011) 193 Cal.App.4th 1287, 1295.)
The Parties' Contentions
The Trust contends Woo's sole litigation objective was to validate his right of first refusal and establish his ownership of the Property. The Trust also contends that Lien/Yen's litigation objective was to defeat Woo's exercise of his right of first refusal and assert their own ownership interest.
The Trust contends that facts extrinsic to the instant action should be considered because they will "shed light on the parties' litigation objectives and the extent to which the parties achieved those objectives." Thus, they argue we may look to related trial court cases and appellate decisions filed following the December 2005 judgment in this case. We disagree. As we noted previously, "in deciding whether there is a 'party prevailing on the contract,' the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources." (Hsu, supra, 9 Cal.4th at p. 876.) Here, the action on the contract concluded with the trial court's entry of judgment in December 2005. Thus, the parties' attempts to establish their litigation objectives in this action were limited to the pleadings, trial briefs, opening statements and other filings in this action.
The Trust argues that Woo obtained the greater relief on the contract because his success in validating his exercise of the right of first refusal on his sixth cause of action for declaratory relief and obtaining ownership of the Property is "far greater" relief than Lien/Yen's success in defeating Woo's first cause of action for breach of contract and Woo's second cause of action seeking a declaration that the interest formula negotiated by Lien/Yen was usurious. The Trust asserts that had Lien/Yen defeated Woo's exercise of his right of first refusal and retained their 62.5 percent ownership interest, Lien/Yen would have been entitled to that percentage of the Property's $675,000 sale price. Instead, since Woo prevailed on his exercise of the right of first refusal, he obtained full ownership of the Property, and, therefore, Lien/Yen will only be entitled to their share of the exercise price, minus offsets for repayment of Lien's loan.
Since the amount owed under the exercise was outside the scope of these proceedings, we do not consider the Trust's assertions regarding that amount.
The Trust also argues that Woo's third cause of action seeking rescission was not a contract claim. Instead, it argues the rescission claim for fraud in the inducement is a tort claim. The Trust therefore concludes that Lien/Yen's success in defeating Woo's rescission claim cannot be considered for purposes of determining the prevailing party under section 1717. Alternatively, the Trust asserts that even if Lien/Yen's success on the rescission claim is considered pursuant to the section 1717 analysis, Woo's success is greater because he retained possession of the Property and a greater share of the eventual sales price.
The Trust concedes that "Woo would have been even better off if he had prevailed on the rescission issue. In that case, instead of having potentially to pay [Lien/Yen] their share of the exercise price . . . , he would have only had to refund Yen her investment."
Lien/Yen contend their litigation objective was to preserve the parties' contract and defend their interests in the Property. They contend Woo's objective was to rescind the contract and annul Lien/Yen's interests in the Property. Lien/Yen argue that they obtained the greater relief on the contract because they defeated Woo's rescission claim, retained their right to an equitable share of the Property and "prevailed on every claim that affected the promissory notes containing the attorneys fees provisions."
The Fraud in the Inducement Claim Was "On the Contract"
Preliminarily, we address the Trust's contention that the third cause of action in Woo's amended complaint, seeking rescission of the contract or damages due to Lien/Yen's fraud and breach of fiduciary duty, does not constitute "action on a contract" pursuant to section 1717. Both parties acknowledge that, in essence, this cause of action was a claim for fraud in the inducement.
Courts in California construe the term "on a contract" liberally for purposes of section 1717. (Turner v. Schultz (2009) 175 Cal.App.4th 974, 979.) " ' "As long as the action 'involve[s]' a contract it is ' "on [the] contract;" ' within the meaning of section 1717. [Citations.]" [Citations.]' [Citation.]" (Id. at pp. 979-980.) Generally, an action sounding in tort for fraud is not an action "on a contract" or an action to enforce contract provisions under section 1717. (Stout v. Turney (1978) 22 Cal.3d 718, 730; McKenzie v. Kaiser-Aetna (1976) 55 Cal.App.3d 84, 89-90.) However, a fraud action seeking rescission is an action "on the contract" for purposes of section 1717. (Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139, 1152 & fn. 6, disapproved on other grounds in Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1261 and Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 775-776, fn. 6.; Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 549; Hastings v. Matlock (1985) 171 Cal.App.3d 826, 840-841.)
The Trust argues that because Woo's third cause of action for fraud in the inducement alternatively sought rescission and damages, the claim sounds in tort, not contract; therefore it is not "on the contract."
Although Woo's fraud in the inducement claim sought damages as an alternative remedy to rescission, the record before us establishes that prior to, at trial, and after trial, Woo sought rescission. At the hearing on his motion to amend his original complaint, Woo's counsel argued, "we seek rescission, . . . that's the reason for the new Complaint. . . . [T]he Court knows that we want rescission based on the facts that we set out in the Third—the fraud cause of action . . . ." In addition, Woo's trial memorandum stated, "if the matter is decided in favor of Woo, Woo would elect to rescind the entire transaction with Lien pursuant to Code of Civil Procedure section 1689, subd. (b)(2)." Finally, in his points and authorities memorandum in support of his motion for new trial, Woo argued, "A new trial should be granted because Lien's promissory note . . . was payable on demand. As a consequence, Woo is entitled to elect a remedy of rescission concerning the [parties' contract] . . . ." It would elevate form over substance to conclude that the alternative pleading of damages precludes Woo's fraud in the inducement claim from being considered as "on the contract." Because the evidence before us establishes that the legal basis for Woo's fraud in the inducement claim was rescission of the contract, that claim was "on the contract" for purposes of section 1717.
Neither Party Was the Prevailing Party
Viewing the substance rather than the form of this long and tortured litigation and taking into account equitable concerns, we conclude the trial court did not abuse its discretion in denying contractual attorney fees to both sides. Clearly, the record supports the conclusion that this was a mixed results case, and neither side obtained a "lopsided" victory. The trial court's well reasoned opinion reflects its careful consideration of the relevant circumstances. In addition, we note that, although Woo achieved his goal of taking full control of the Property, his failure to prevail on his rescission claim substantially increased his cost of doing so. Lien/Yen, on the other hand, sought to strip Woo of control, either by a partition or forced sale of the Property to a third person. They failed to achieve that goal. No abuse of discretion has been shown.
Since Woo's eventual sale of the Property and Lien/Yen's share of Woo's exercise price, if any, are matters that lay outside the scope of this action on the contract, the parties' relative monetary recovery cannot be considered for purposes of the prevailing party determination.
DISPOSITION
The order determining that there is no prevailing party for purposes of an award of contractual attorney fees (§ 1717) and costs (Code Civ. Proc., § 1032) is affirmed. Each side is to bear its own costs on appeal.
SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.