Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Rufus L. Yent and Stanford E. Reichert, Judges, Super.Ct.No. VCV027455
Law Offices of Keith S. Knochel and Keith S. Knochel for Defendants and Appellants.
Banks and Strathman, Matthew O. Strathman and Stephen Janis for Plaintiffs and Respondents.
OPINION
McKinster, J.
Defendants and appellants Richard and Maria Langmaack (Langmaacks) appeal from the trial court’s judgment awarding them $2,500 in attorney fees. The Langmaacks argue that the trial court abused its discretion when it awarded them less than the approximately $92,000 that they requested. As described more fully below, we conclude that the Langmaacks were not prejudiced by the judgment. This is because, under the terms of the standard form residential purchase contract into which the parties entered, they are not entitled to an attorney fees award at all because they refused the Strawsers’ pre-litigation offer to mediate.
Facts and Procedure
Plaintiffs and respondents Robert and Val Strawser (Strawsers) purchased a home from the Langmaacks in 2001. The Langmaacks moved to Lake Havasu City, Arizona. Approximately two months after the close of escrow, a portion of the home’s front porch caved in. In August 2002, the Strawsers filed a complaint for damages alleging various causes of action against the Langmaacks, the termite inspection company, the realtors and the homebuyers’ protection insurance company. The parties eventually took part in several rounds of mediation, including mandatory settlement conferences on December 3, 2003, and June 4, 2004.
The Strawsers at some point amended the complaint to include allegations that Mrs. Strawser was injured by mold that was caused by the faulty construction of the front porch.
On August 31, 2004, the date scheduled for trial, the trial court granted several motions in limine filed by the Langmaacks’ codefendants to exclude the Strawsers’ evidence on the issues of physical injuries, emotional distress, the presence of mold, and costs of repair, among others. Consequently, on November 30, 2004, the trial court entered judgment for the Langmaacks and their codefendants. The Langmaacks’ codefendants served and filed a notice of entry of this judgment on December 13, 2004. The judgment noted that attorney fees would be determined pursuant to memoranda of costs to be filed by counsel.
On November 2, 2004, the trial court held a hearing on the Langmaacks’ motion to fix attorney fees. The Langmaacks requested over $92,000 in attorney fees. The termite inspection company joined in the motion and requested $16,107 in attorney fees incurred after June 4, 2004, the date of the last “serious settlement discussions.” After taking the issue under submission, the trial court issued its ruling in a minute order dated December 2, 2004, awarding the Langmaacks $2,500 in attorney fees. The Langmaacks were to prepare an order after hearing.
The record does not contain a copy of an order prepared by the Langmaacks or a notice of entry of judgment. However, the March 29, 2005, case print for the denial of the motion to reconsider states: “The court’s ruling [on attorney fees] was made on December 2, 2004 and was served on the parties.” In addition, the case print for December 2, 2004, states: “Notice given by Courtroom Clerk. Correspondence coversheet generated to mail NOTICE OF RULING to counsel of record.” Our review of the superior court file showed no order prepared by the Langmaacks and no notice of entry of judgment for the award of attorney fees.
On February 22, 2005, the Langmaacks filed and served a motion for reconsideration of the attorney fees award. On March 29, 2005, after briefing by both sides and a hearing, the trial court denied the motion as untimely. On December 27, 2005, the trial court signed and filed a judgment after court trial, prepared by the Langmaacks, that included both the original judgment and the attorney fees award. This appeal followed on February 17, 2006.
Discussion
1. Appealability
In their responsive brief, the Strawsers argue that this appeal should be dismissed as untimely under former California Rules of Court, rule 2 (now rule 8.104) because it was filed more than 14 months after the trial court’s December 2, 2004, minute order awarding attorney fees. “Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] . . . [¶] (3) 180 days after entry of judgment.” (Cal. Rules of Court, rule 8.104(a)(3).)
Effective January 1, 2007, the California Rules of Court were reorganized and renumbered. We refer to all such rules by their current number.
An attorney fee award is appealable as an order made after an appealable judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).) However, where, as here, “the minute order directs that a written order be prepared, the entry date is the date the signed order is filed.” (Cal. Rules of Court, rule 8.104(d)(2).) In its December 2, 2004, minute order granting the Langmaacks $2,500 in attorney fees, the court ordered: “MOVING PARTY to prepare ORDER AFTER HEARNG.” No such order appears in the record until the December 27, 2005, judgment after court trial, which included both the original judgment and the attorney fees award. Thus, the Langmaacks had up to 180 days after December 27, 2005, in which to file their appeal, and so the notice of appeal filed February 17, 2006, is timely.
2. Attorney Fees
The Langmaacks argue the trial court abused its discretion when it awarded them only $2,500 in attorney fees after they requested over $92,000 in fees and documented that request with a bill from their attorney for $92,515.50 based on 356.40 hours of work, largely at $275 per hour.
The trial court here made the attorney fee award under Civil Code section 1717, subdivision (a), which provides, “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.” Paragraph 22 of the agreement for the purchase of the property provided: “In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney’s fees and costs from the non-prevailing Buyer or Seller . . . .”
A. Offer to Mediate
First, though, we address the Strawsers’ argument that the Langmaacks were not entitled to recover any attorney fees at all because they rejected the Strawsers’ offer to mediate before the Strawsers initiated the present litigation. The standard form residential purchase contract signed by the Langmaacks and the Strawsers reads as follows: “22. ATTORNEY’S FEES: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney’s fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 17A.” (Emphasis added.)
Paragraph 17A in turn states in relevant part that, “If . . . any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney’s fees, even if they would otherwise be available to that party.”
Thus, if the Strawsers made a request to mediate and the Langmaacks refused the request, the Langmaacks would not be entitled to recover their attorney fees, despite the fact that they are the prevailing parties in this litigation. (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1508, 1512.)
The Strawsers’ attorney first wrote to all of the defendants in October 2001 proposing to settle the matter for $9,600 – the estimated cost to repair the porch. On January 11, 2002, the Strawsers’ attorney again wrote to the defendants with what the Strawsers argue was an offer to mediate. The operative language of the letter is as follows: “I don’t favor the idea of taking this to court. If anybody in the group of potential defendants wants to initiate some sort of arbitration or mediation, we will participate. If you can all get together and divide the responsibility, we will compromise to some extent. . . . If we do not have a resolution by the end of February, we will file a Complaint in the Superior Court. Please try to participate in an amicable resolution.” No mediation took place at that point.
The Langmaacks concede in their reply brief that the Strawsers “did request the parties participate in mediation.” However, the Langmaacks assert, without supporting legal authority, that “mediation” can “include an informal dispute resolution process. In this instance, Mrs. Langmaack spoke with Plaintiffs’ attorney. Plaintiffs’ attorney requested that money be paid. Mrs. Langmaack declined. This is sufficient to qualify as a ‘mediation.’” This is an incorrect statement of the law.
In Frei v. Davey, supra,124 Cal.App.4th 1506, the appellate court made it very clear that, “Communications between the parties or their counsel regarding settlement are not the same as mediation. In mediation, a neutral third party analyzes the strengths and weaknesses of each party’s case, works through the economics of litigation with the parties, and otherwise assists in attempting to reach a compromise resolution of the dispute. [Citations.]” (Id. at pp. 1514-1515.) Here, the communications between the Strawsers’ legal counsel and Mrs. Langmaack did not include participation by a neutral third party, and therefore do not qualify as “mediation.” Thus, even were we to reach the merits of the attorney fee award, the Langmaacks would not be able to show that they were prejudiced by the trial court’s award of attorney fees. This is because, under Frei v. Davey, the Langmaacks were not entitled to an award of attorney fees at all because they refused the Strawsers’ offer to mediate the dispute.
This is the first published case to interpret the standard form residential purchase agreement used in California after it was amended to preclude a party who refused a request to mediate from recovering attorney fees. Previously, the clause applied only to plaintiffs who failed to request mediation before initiating litigation. The main holding of Frei v. Davey is that, “The new provision barring recovery of attorney fees by a prevailing party who refuses a request for mediation means what it says and will be enforced.” (Frei v. Davey, supra, 124 Cal.App.4th at p. 1508.)
We note that the December 2, 2004, minute order in which the trial court explained its decision plainly does not even attempt to make the required connection between the lodestar figure, that is, the product of the number of hours reasonably spent on the litigation multiplied by the reasonable hourly rate, and the $2,500 fee award. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
Disposition
The judgment is affirmed. The Strawsers are to recover from the Langmaacks their costs on appeal.
We concur: Hollenhorst, Acting P.J., King, J.