MOUNTAIN AIR ENTERPRISES v. SUNDOWNER TOWERSRespondent’s Opening Brief on the MeritsCal.May 19, 2015SUPREME COURT FILED MAY 19 2015 S223536 Frank A. McGuire Cle Deputy/ CR' SUPREME COURT OF CALIFORNIA 8.25(b) MOUNTAIN AIR ENTERPRISES, LLC, 2d Civil No. A138306 Plaintiff and Respondent, (Marin County Super. Ct. No. CIV081957) Vv. SUNDOWNER TOWERS,LLCetal., Defendants and Appellants. OPENING BRIEF ONTHE MERITS After a Decision by the Court ofAppeal First Appellate District, Division Two *Erik A. Humber #83669 *Jeffrey I. Ehrlich #117931 LAW OFFICE OF THE EHRLICH LAW FIRM ERIK A. HUMBER 16130 Ventura Boulevard, Suite 610 165 North Redwood Drive, Suite110 Encino, CA 91436 San Rafael, CA 94903 Telephone: (818) 905-3970 Telephone: (415) 479-7890 Facsimile: (818) 905-3975 Facsimile: (415) 479-7987 E-mail: jehrlich@ehrlichfirm.com E-mail: humlaw@pacbell.net Attorneys for Plaintiff and Respondent Mountain Air Enterprises, LLC S223536 SUPREME COURT OF CALIFORNIA MOUNTAIN AIR ENTERPRISES, LLC, Plaintiff and Respondent, V. SUNDOWNER TOWERS,LLCet al., Defendants and Appellants. 2d Civil No. A138306 (Marin County Super. Ct. No. CIV081957) OPENING BRIEF ON THE MERITS After a Decision by the Court ofAppeal First Appellate District, Division Two *Erik A. Humber #83669 “Jeffrey I. Ehrlich #117931 LAW OFFICE OF THE EHRLICH LAW FIRM ERIK A. HUMBER 16130 Ventura Boulevard, Suite 610 165 North Redwood Drive, Suite110 Encino, CA 91436 San Rafael, CA 94903 Telephone: (818) 905-3970 Telephone: (415) 479-7890 Facsimile: (818) 905-3975 Facsimile: (415) 479-7987 E-mail: jehrlich@ehrlichfirm.com E-mail: humlaw@pacbell.net Attorneys for Plaintiff and Respondent Mountain Air Enterprises, LLC TABLE OF CONTENTS ISSUE FOR REVIEW uo.sssssssseeesessseseseseeenseeeeseseeeensecesesseesseseseseeesens 1 INTRODUCTION...sescsesssesseeesceseenesesessesseeeeaceeeesssseessesesesesesesssaeeees 2 STATEMENTOFTHE CASE.......ccccssssssssssessessesesnessessesnessesreeseesessseneeseenes3 A. Factual Summary .0......eeeeeccecsscssseseeeesseesesceceseecassssesesessssesesesesnenens 3 1. The purchase and repurchase agreementsare executed............... 3 2. The option agreementis executed 00.0... eeseceeceststetsteeeeseeeeees 4 3. Sundownerfails to honor the repurchase agreement, so Mountain Air suesit and its MEMDETS......... eee eeseseeeeeeseeetseeeeeesees5 B. Procedural History .........secssccssessssseseceecseeececssesescsessssceescescseseseseeseeeD) 1. Thetrial court finds that the repurchase agreement cannot be enforced — but denies attorney fees ...........teseesssssessesesesseeees5 2. The Court ofAppeal holds that the novation defense warrants attorney FEES ooeeesessseseseseeeetscescesesessscscecscereessesessseeasanees 6 a. The majority Opinion...eeeeceestseeeeeeteeeessessseeesenssetieee 6 b. Justice Richman’s dissent ...........csssessssesecceceeseessesssesseseeseeeees 7 STANDARD OF REVIEW...ccceecssssseseseeeceecessececeseassccsssseseseasseseseeaesesees7 ARGUMENT. 0.ceseesesessseesesescsesesecesseesesssseseseeeescesesssesescseessesseacaeseseees 9 A. Overview of the dispute in the Court ofAppeal...........ccccscecsseseseeees 9 B. Attorney fees should be available only if the parties chose to include affirmative defenses in the text of the fee provision............. 10 C. The plain language ofthe attorney-fee clause does not include affirmative defenses ...........ecsesesssssecesesesesessseseeeesesseeseeessssesseeseeseecs 13 1. An affirmative defenseis neither an “action” nora “PLOCCEMING”.....c.sscssssssesssssesscssesesceneneeesscseeseareeseesseeteeeseseseseensees 13 2. Affirmative defenses are not “brought”...........:ccsssssssesesseeeeeeees 15 D. The tworationales for awarding fees are both deeply flawed........... 16 1. When awardingfees, it would be unreasonable to brand every event in a lawsuit as a “proceeding”..........ssseseseseseneeeee 16 2. The purposeofa given lawsuit cannotbe altered by an affirmative defense........ese seesseseeeeeesecseeeseceseeeessseesssesseessceeaes 20 CONCLUSION 0...eeeesesceesenseseseeseseseescseneesessesesessesasassacesaessasesesesessueess 23 ii TABLE OF AUTHORITIES Cases Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794.0... eeccessssseesereesceseeeeesesrersesssecseeeeseseceeenees 20 BlueLagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472...eesscsscecseessesssssessssssssessssassassesssesesscenesees 11 Blue Shield ofCalifornia Life & Health Ins. Co. v. Supertor Court (2011) 192 Cal.App.4th 727 oo... eseeccecseseesesescescescesesceeseecescessseeeeeeeseeseseens 17 Carver v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 498 v.ccccccccscscssescssssessssessssseessssesssessssseesssssessssieesen 8 Christensen v. Dewor Developments (1983) 33 Cal.3d 778 oescssssssssssssessessseessscssssessssscsssseessssecssseessssecsssneecsseessees 8 Curtis v. County ofLos Angeles (1985) 172 Cal.App.3d 1243 ...csccssssssessssssssssescesscsesssessessecssssccsssecessseesssecsees 21 Cytodyn, Inc. v. Amertimmune Pharmaceuticals, Inc. (2008) 160 Cal.App.4th 288...ccccsssssessssssssscccssescssssssssecesssesesssssvescesssssees 22 Deutsch v. Phillips Petroleum Co. (1976) 56 Cal.App.3d 586 ......eseessesseseesecesseceseeceseecsceesessecassescassessenseees 18 El Escorial Owners'Ass'n v. DLCPlastering, Inc. (2007) 154 Cal.App.4th 1337.0... eecsssessesesseccseesstesseeesseesecsaeneneeetseeeenenes7 Employers Reinsurance Corp. v. Phoenix Ins. Co. (1986) 186 Cal.App.3d 545 vsccssssssssssssssssssescssssesssssseeesssseeessssecesssvetessseesees 21 Exxess Electronix v. HegerRealty Corp. (1998) 64 Cal.App.4th 698ocsscsssssssesssccssseessesssssscessssssssseees 9, 13, 14 Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515 ...ccccscssccsessssssesssseessessseeessessssesseesssssssesssessseess 19 Gil vy. Mansano (2004) 121 Cal.App.4th 739...cccsssscssssssssssseecsseessseccssescsssessseesses 9, 13, 14, 20 lil Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 ..cccccscsssssessccsssesssssscssssssssssssssecsssssesssecessssessssssssssnses 21 Hinckley v. Bechtel Corp. (1974) 41 Cal.App.3d 206 ..cssssssesssssssessssssssssssseessssssessesssscssseessssesessessssssaes 12 Hsu v. Abbara (1995) 9 Cal.4th 863....cccccccsssssssesssccssesssssessssssssvscessssecssssucesssesssssseceeeseesenees 11 Idell vy. Goodman (1990) 224 Cal.App.3d 262 csssssesssscssessssesssesssssecssssecesessseesssesessssessesesenssnes 21 In re Marriage ofOddino (1997) 16 Cal.4th 67 c.sccceesssssssssssssssessssessssssssssessssssssvessssssussssssssssssssssesnaees 22 In re Tobacco Cases I (2013) 216 CalApp.4th 570.0... eececesssssceeeesseeeeseneeeeseseteeseeseeeeessesseeeeaes 8 Minkler v. Safeco Ins. Co. ofAmerica (2010) 49 Cal.4th 315....ccscccccscccsccsssssesecsssssssssseesssssssssssnssessssusecssssssssesessen 16 Mirpad, LLC v. California Ins. Guarantee Assn. (2005) 132 Cal.App.4th 1058.....ccsssscccsssssssssssssescssssssecscssssecssssesessssssssssssues 16 Moallem v. Coldwell Banker Com. Group, Inc. (1994) 25 Cal.App.4th 1827 ..sssesssscsssesssesscsssssssesssssssscesssesesssscssssesesssssessans 20 Moore v. California State Bd. ofAccountancy (1992) 2 Cal.4th 999 ..cccccccssssssesssssssssessscsssssssessesssseessssseecssseesssnseessssssssssess 17 Perry ». Robertson (1988) 201 CalApp.3d 333 .0.....esesesessesesesesesssseersasecsssceecescsesseeeeaserenseees 22 Roybal v. Governing Ba. ofSalinas City Elementary School Dist. (2008) 159 CalApp.4th 1143 oo.ceessessceesscseseescscteesesseeecsceeseseessnsessenees 8 Safeco Ins. Co. ofAmerica v. Robert S. (2001) 26 Cal.4th 758 w..cscssssssssssssssssesesssessssssessssecsssecesseresseessessseessssssed 12,14 Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664 voccccssscsssssssssssecssssssseeesseenn 9, 14, 19, 21 Sampson v. Century Indem. Co. (1937) 8 Cal.2d 476 viecccscsssssssssssssssssssccssssesssseesssseesssssssssssesessecssssessssseessas 16 iv Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72 wn .ceccscssecssessssescssssesserssssscsssesserssessssssssecsesseaes 8 Sears v. Baccaglio (1998) 60 Cal.App.4th 1136.0... eeesssssssessscessscececeesseeseseesstereretenseaseteoes 8 Shadoan v. World Savings & Loan Assn. (1990) 219 Cal.App.3d 97 oesesesssssceseeseesseetessecsesesescseaesesesaseeesnanensssaeaseaeaes7 Share ». Castano Bel-Air Homeowners Assn. . (1989) 215 Cal.App.3d 515 0... ssesescesessseeteececessesseseseseesseeeessseeseesesnseeeens 14 Signal Companies, Inc. v. HarborIns. Co. (1980) 27 Cal.3d 359 ooceecesescessseeeessceessesecetsceenesrsasessacaceasaracsssenteaeaeas 11 Stockton Theatres v. Palermo (1954) 124 Cal.App.2d 353 oo. cesesesssessseesssssssssssesssessecssseseasarssenseaes 10 Thompson v. Miller (2003) 112 Cal.App.4th 327 ..cccccssssssesssessssssesessseecssssesessssecsssenssssesseeen 14, 20 Tract 19051 Homeowners Ass'n v. Kemp (2015) 60 Cal.4th 1135, 184 CalRptr.3d 701.0... eeeseeseeteeeeeeeeeeeseeeeees 10 Vons Companies, Inc. v. Lyle Parks, Jr., Inc. (2009) 177 Cal.App.4th 823 ...ccscccsssssssessssssessssssescssssssssessusenssessecesssssnseeen 22 Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158 ..scccccsssescssesccssssessssssesesssssssssssseceesssecesseesssesees 8 Windsor PacificLLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263...ccecsccsssscsssssssssssssssssssesssssessessesessess 9, 15, 19, 20 WoodlandHills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917..sssssscsssssessssseecssecssseessssesessssesssseessssuessssecssssesceesssseesssees7 Zellerino v. Brown (1991) 235 Cal.App.3d 1097........s.sssssccessesesssseeeeceeesseseseseseeeeereneasenseeeeseeees 17 Statutes California Civil Code § 1354, subd. (f).......ccsscssescscesesseseeecescessensceeeseseneeeeees 9 California Civil Code § 1638 ..........ccccccssesccessesesesccesescssecesseececssescotecssessesenee 11 California Civil Code § 1641 vc.iccecsscssscsesecsscesceecseseceesseesseesesesseseeeenes 16 California Civil Code § 1717 ........ccccccccsssscsssscssesseeseecssesesseeeseesseseseesseesseeeesens 11 California Code of Civil Procedure §§ 20-22...........cccccsssssssssesessscseessseeseees 13 California Code of Civil Procedure § 473 .........cccssscssseesrsessecsssessesseeseesnsees 17 vi ISSUE FOR REVIEW Can party’s assertion of an affirmative-defense trigger a clause that awards attorney’s fees to the party who prevails in an “action”or “proceeding”to enforce the contract? INTRODUCTION Theproperconstruction of the type of attorney’s fee clause used by the parties in this case has divided the Court ofAppeal. Some courts take a literal view of the language in the clause. Asa result, they will award fees to a party whoaffirmatively files suit, but not to a party whorelies on the contract defensively. This asymmetry troubles the courts in the other camp, so they stretch the languageofthe clause to ensure that either party invoking the contract can obtainfees. In Mountain Air’s view, the courtsin the literalist camp have the better argument. The attorney-fee clause in this case applies to an action or proceeding broughtto enforce the contract. Affirmative defenses are not actions or proceedings, and they are pleaded — not brought. Therefore, the attorney-fee clause does not apply to affirmative defenses. This casetrulyis that straightforward. Noneofthe wordsin the attorney-fee clause are unclear. The Court of Appeal majority in this case, whoadopted the “symmetrical” view, was simply unwilling to credit their natural meaning becauseit felt that attorney fees should be available for affirmative defenses. This approachto contract interpretation is troubling becauseit is not animated by whattheparties actually agreedto.It is doubtful that the authors of the opinions holding that affirmative defenses can trigger an attorney’s fee clause that does not mention them believe thatthe parties actually had affirmativedefenses in mind when they used the term “proceeding.” That would have been aninexplicable choice of words, given that affirmative defensesare not referred to as proceedingsin any other context. Nor are they ever “brought” — which makestheuseofthat verb in the fee provision equally problematic. Neither the majority opinion in this case norits predecessors offer solutionsto these lexical dilemmas. Rather, they suggest that there is no logical reason for a fee provision to treat complaints and affirmative defenses differently. Actually, the distinction may be usefulifa party wants to retain the option of raising contract-basedaffirmative defenses without riskingliability for the plaintiff’s attorney fees under Civil Code section 1717. That is not, however, the central problem with the “symmetrical” view adopted in the majority’s opinion. The deeperflawis its determination to improvethe contract rather than to simply enforce it as written. Courts are supposedto carry out the mutual intentionofthe parties, without regard for the prudenceoftheir arrangement. Perhaps omitting affirmative defenses from an attorney-fee clauseis unwise. But evenill-considered contracts must be enforced according to their terms, andthereis no justification for ignoring or re-defining the terms that the parties included in their contract. STATEMENTOFTHE CASE A. Factual Summary 1. Thepurchase and repurchase agreements are executed ~The underlying dispute in this case concerned piece of commercial real estate in Reno, Nevada. (Typed Majority Opinion (“(Maj Opn.”) at 2.) Theproperty includes multiple buildings, which wereoriginally designated a single parcel located 450 Arlington Avenue. (/d.) On February 17, 2006 the property was subdivided into three separate legal parcels: the north tower, the south tower, and thecasino building. (/d.) Before the property was subdivided,it became the subject of a transaction between Steven Scarpa and a Nevadalimited liability company named Sundowner Towers. (/d. at 2.) On December12, 2005 Scarpa and Sundownerentered into two separate written contracts. (/d.) In thefirst contract, Sundowneragreedto sell the south tower to Scarpafor $7 million. (Id.) In the second contract, Sundowner promisedthatit wouldlater repurchase the south towerfor the sameprice, plus a 12% inflation factor. . Ud.) Sundowner’s members, Bijan Madjlessi and Glenn Larsen, personally guaranteedits obligations under the repurchase agreement. (Jd.) And Scarpa’s rights under both agreements were later assigned to Mountain Air Enterprises, a California limitedliability company in which he is the sole member.(Jd.at 2.) 2. The option agreementis executed On April 25, 2006 Mountain Air entered into an option agreement with Larsen and Madjlessi, giving them the exclusive right to purchase the south tower during a specified windowoftime.(Jd. at 2.) Sundowner was not a party to the contract. (/d.) The option agreementcontainedthe following attorney-fees clause: If any legal action or any other proceeding, including arbitration or an action for declaratoryrelief; is brought for the enforcementofthis Agreement orbecause ofan alleged dispute, breach, default, or misrepresentation in connection with any provision of this Agreement,the prevailing party shall be entitled to recover reasonable attorney fees, expert fees and othercosts incurredin that action or proceeding,in addition to any otherrelief to which theprevailing party maybeentitled. (/d. at 11-12.) 3. Sundownerfails to honor the repurchase agreement, so Mountain Air suesit and its members On April 27, 2006 Sundowner complied with the purchase agreementby acquiring the south towerfrom third party and transferring it to Mountain Air. (/d.) But Sundownernever repurchased the south tower, as it had promised to do in the repurchase agreement. (Jd.at 3.) Mountain Air attemptedto enforce the repurchase agreement by filing this lawsuit against Sundowner, Larsen, and Madjlessi. (Jd. at 3.) B. Procedural History 1. Thetrial court finds that the repurchase agreement cannot be enforced — butdenies attorney fees Thedefendants prevailedin a 13-day benchtrial. (/d. at 3.) Thetrial court ruled in their favor on two affirmative defenses: (1) that the repurchase agreementwasillegal and void under the subdivision-map laws ofboth California and Nevada, and (2) that the option agreement was a novation that extinguished the repurchase agreement. (Jd. at 3-4.) Thetrial court’s final statement of decision wasfiled on October 10, 2012 and judgmentwasentered the sameday. (/d.) On December7, 2012 the defendants movedfor an award of attorney fees based on the relevant provisions of the repurchase and option agreements. (Id. at 4.) Thetrial court denied the defendants’ motion on March20, 2013. (Dissentat 5.) The court determined that fees could not be awarded under the repurchase agreementbecausethat contract was void forillegality. (/d. at 5- 6.) It ruled that the option agreement’s attorney fee provision did not apply becausethe present action was not brought to enforce that agreement or because ofa dispute in connection with that agreement. (/d. at 6.) In the court’s view, the relevanceofthe option agreementto the novation defense wasnot enoughto warranta fee award.(/d.) On March29, 2013 the defendantsfiled a timely notice of appeal from the trial court’s order denying attorney fees. (Maj. Opn.at 4.) 2. The Court ofAppeal holds that the novation defense warrants attorney fees In a published 2-1 decision authored by Justice Stewart and joined by Presiding Justice Kline, the Court ofAppeal reversed the order denying attorney fees. (Maj. Opn.at 21.) Justice Richman dissented. (Dissenting opn. ofRichman,J. at 1-13.) a. The majority opinion The majority opinion approved ofthetrial court’s refusal to award attorney fees pursuantto the void repurchase agreement. (Maj. Opn.at 11.) Butit held that the defendants wereentitled to an award of attorney fees based on the option contract.(Jd. at 21.) The majority determined that the novation defense constituted a “legal action” or “proceeding”for purposes of the attorney fee clause. (Jd. at 13-14.) It acknowledgedthata split of authority existed on this point;it endorsed a broad construction andrejected the appellate decisions to the contrary. (/d. at 15-18.) In the majority’s view,it would be “absurd”for an attorney-fees provisionto treat affirmative defenses differently than complaints. (Jd. at 18.) The majority held that the novation defense sought to enforce the option contract because it was based on theintegration clause in that document. (/d. at 19.) Alternatively, the majority believed that the defense had been asserted becauseof a dispute “in connection with” the option agreement. (Jd. at 20.) Because the subject matter of the novation defense fell within the scope of the attorney fee clause in the option contract, the majority concludedthat the defendants wereentitled to an award of attorney fees. (Jd. at 21.) b. Justice Richman’s dissent In his dissenting opinion, Justice Richman disputed whetherthe novation defensefell within the scope of the attorney-fee clause in the option contract. (Dissenting opn. of Richman,J. at 1.) In his view,the novation defense was notan attempt to enforce the option agreement, nor did it arise from a dispute in connection with that contract. (/d. at 10-11.) STANDARD OF REVIEW In the Court of Appeal, the majority applied a de novo standard of review becauseit believed that the availability of attorney fees under the option agreement waspurely a question of contract interpretation. (Maj. Opn.at 6 and 20,fn. 12.) Justice Richman disagreed. He argued that review should be deferential because the trial judge was in the best position to know whetherthe benchtrial had been a proceeding to enforce the contract. (Disn. Opn.at 11.) This deferential standard has already been employedin other cases where attorney fees wereavailable only for actions brought to enforce a specific contract. (Shadoan v. World Savings & Loan Assn. (1990) 219 Cal.App.3d 97, 107-108 [whether an action was “on the contract” should be decided bytrial court “‘in its discretion” ]; E/ Escorial Owners' Ass'nv. DLCPlastering, Inc. (2007) 154 Cal.App.4th 1337, 1365-1366 [where “provision limits fees to actions to enforce the termsofthe subcontract.. . apportionmentis within thetrial court's discretion”].) Whenawarding attorneyfees in other contexts, trial courts are afforded the samebroaddiscretion to evaluate the characterofthe litigation before them. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 938 [discretion to determine whetherlitigation involved enforcement ofimportant right affecting the public interest]; Sears ». Baccaglio (1998) 60 Cal.App.4th 1136, 1151-1152 [discretion to choose prevailing party based on “crux”oflawsuit]; Carver ». Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 498, 506 [discretion to determine whetherlawsuit was predominately an antitrust action]; Walker ». Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1181 [discretion to determine whether action had been broughtto enjoin unfair businesspractice].) The commonlink between thosesituationsis that theyall require the trial court to draw onits superior knowledgeofthe proceedings before it — whichis the underlying basis of the court’s broad discretion over attorney fees. (In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 588.) That does not meanthattrial courts have unfettered discretion to deny contractual attorney fees. (See,e.g., Christensen »v. Dewor Developments (1983) 33 Cal.3d 778, 786 [trial court abused discretion by denying contractual attorney fees without valid justification]; Roybal v. Governing Bad. ofSalinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148 [reversal required “even givingall possible deference to the superior court's exercise of discretion”].) But to the extent that thetrial courtrelied on its knowledgeofthe proceedings, its decision shouldbe affirmedso long as it is within the rangeofreason. (Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72, 80,fn. 1.) ARGUMENT A. Overview ofthe dispute in the Court ofAppeal Thedivision between the majority and the dissentin this appeal reflects a larger dispute in the Court ofAppeal about whethera contract- basedaffirmative defense is an “action” or “proceeding” as those terms are usedin attorney-fee clauses. The Court ofAppeal rejected that theory in Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 712, and Gil ». Mansano (2004) 121 Cal.App.4th 739, 742. As the Gi/ opinion explained, “the assertion of a contractual defenseto a tort action is not an ‘action brought to enforce the contract’ and,therefore, the prevailing party is notentitled to an attorney fee award.” (/d., 121 Cal.App.4th at p. 741.) Thedecision in Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 672-674, followed the logic of these casesin construing a statute that provided for attorney’s fees in an “action... to enforce the governing documents”ofa common-interest development.(Jd. at p. 670, quoting Civ. Code § 1354,subd.(f).) Justice Armstrong dissented in Gil and in Salawy,faulting the majority for adopting what he viewedas a hyper-technical interpretationof the word “action.” (Gz, 121 Cal.App.4that p. 746 (dis. opn. ofArmstrong, J.).) The court in Windsor PacificLLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 268, 276, was persuadedby his view, andheld that an affirmative defense qualified as an “action or proceeding”that triggered an entitlementto fees. The majority opinionin this case followed Windsor Pacific, explaining that it “agree[d] with Justice Armstrong” that a defendant whoraises an affirmative defense has the sameright to attorney fees as a plaintiffwho brings an action. (Maj. Opn. at 18.) Mountain Air’s research also unearthed an earlier case taking the same view — Stockton Theatres v. Palermo (1954) 124 Cal.App.2d 353, 362 — on the groundthatpleading an affirmative defense was the same thing as “commenc[ing]” a “legal proceeding.” B. Attorney fees should be available only ifthe parties chose to include affirmative defensesin the text ofthe fee provision At the outset, it is importantto clarify the limited scopeofthe issue presented in this case. The question is not whether the defendants deserve attorney fees. Noris it whetherattorney-fee clauses should be drafted so that they can betriggered byan affirmative defense. Instead, the only thing that matters is the actual text of the attorney-fee provision adopted by the parties in this case. Litigants do not have an innateright to attorney fees. By default, they are not recoverable. (Tract 19051 HomeownersAss'n y. Kemp (2015) 60 Cal.4th 1135, _, 184 Cal.Rptr.3d 701, 705). This is the so-called “American Rule.” (/d.) Since thereis no statute authorizing non- contractual attorneyfeesin this case, the defendantsare entitled to a fee award only if they can establish that right based on the languageofthe option agreement. . The majority opinion declares, however, that if the parties had wantedtheir attorney-fee provision notto apply to affirmative defenses then they “would have goneto greater lengths to documentit.” (Maj. Opn.at 18.) This flips the burden ofproof, allowing the majority to elide the absence ofany referenceto affirmative defenses in the actual language of the contract. The majority also attempts to avoid the import ofthe language used by the parties by arguing that it would produce absurdresults to omit affirmative defenses from the attorney-fee provision. (Opn.at 18.) This argumentis strategic, since even clear andexplicit language can be 10 disregarded in orderto avoid an absurdity. (Signal Companies, Inc. v. Harbor Ins. Co. (1980) 27 Cal.3d 359, 375, citing Civ.Code § 1638.) Butit fails, since there is nothing absurd about denying a defendant’sright to recover attorney fees based on an affirmative defense. But the Americanlegal system is intentionally designed so that most litigants — whetherplaintiffs or defendants — are forced to pay their own legal expenses. So it hardly shocks the consciencethat a party could prevail on an affirmative defense without being entitled to attorney fees. On this side of the Atlantic, that outcomeis simply parfor the course. If parties wish to allow for a fee award in an actionto enforce their contract, they are not compelled to extend that arrangementto affirmative defenses. The majority here insists that raising an affirmative defenseis “legally the same”as bringing an action. (Maj. Opn.at 18.) That is simply untrue. They are both vehicles for asserting legal rights, but they arise in completely different procedural contexts. . One mayrationally believe that initiating litigation should carry different consequences than simply invoking a contract defensively in an existing lawsuit. That calculus makes particular sense in California, because creating a contractual right to attorney fees also spawnsa reciprocal potential forliability to the other side under Civil Code section 1717. (Hsu ». Abbara (1995) 9 Cal.4th 863, 870-871.) The parties mayprefer to retain the option of raising contract-based affirmative defenses without exposing themselves to that risk. (Cf. Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472, 477-478 [broadening statutory right to attorney fees would be “shortsighted”given “potential downside”ofpaying otherside’s costs].) 11 The majority points out that a defendant could pursue an attorney- fee awardif, instead of raising novation as anaffirmative defense, the defendantsimplyfiled a cross-complaintfor declaratory relief based on the samefacts. (Maj. Opn.at 18.) Thisis true, but that is a feature of the contract, not a flaw. It means that defendants enjoy two complementary optionsfor asserting their contractual rights. The conservative approachis to only plead a defense, knowing that eachside will pay for its own attorney fees. The aggressive approachistofile a cross-complaint, which puts both sidesat risk for an award of contractual attorney fees. Butevenifthere were a loophole in the termsofthe contract,it would not be the Court’s responsibility to patch it. (See Safeco Ins. Co. of America v. Robert S. (2001) 26 Cal.4th 758, 763-764 [invalidating “illegal acts” exclusion as overbroadinstead oflimiting it to “criminal acts” ].) “‘Courts cannot make for the parties better agreements than they themselves madeor rewrite contracts because they operate harshly or inequitably as to one of the parties.” (Hinckley v. Bechtel Corp. (1974) 41 Cal.App.3d 206, 211.) “To do so would violate the fundamentalprinciple that in interpreting contracts . . . courts are not to insert what has been omitted.” (Safeco, 26 Cal.4th at p. 764.) Thatprinciple delimits the inquiry before the Court. If the text of the attorney-fee clause includes affirmative defenses, then the defendants are entitled to a fee award. Butifthat languageis absent, then the Court must respect the parties’ decision not to make attorney fees available based on an affirmative defense. 12 C. Theplain languageofthe attorney-fee clause does not include affirmative defenses 1. Anaffirmative defense is neither an “action” nor a “proceeding” If the Court agrees to enforce the contract as written, then this appeal is functionally over because thereis not a single wordin the attorney- fee clause aboutaffirmative defenses. By its terms, it applies to a “legal action or any other proceeding,including arbitration or an action for declaratory relief . . . brought for the enforcementofthis Agreement.” (Maj. Opn.at 11-12.) This meansthat the clause does not reach affirmative defenses becausea defenseis not an action or proceeding. (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 712 (“Under any reasonable interpretation of the attorneys’ fee provision, we cannot equateraising a ‘defense’ with bringing an ‘action’ or ‘proceeding’.” ]; accord Gil ». Mansano (2004) 121 Cal.App.4th 739, 744 [“the assertion of a defense does not constitute the bringing of an action to accomplish that goal”’|.) Theseare the standard terms used in many attorney-feeclauses, precisely because their meaningis so clear. “An ‘action’ is ‘a lawsuit broughtin a court; a formal complaint within the jurisdiction of a court of law; an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcementor protection of a right, the redress or prevention of a wrong,or the punishmentofa public offense.’ ”(Gil ». Mansano, 121 Cal.App.4th at p. 744,ellipses and brackets omitted, quoting Black's Law Dict. (6th ed.1990) p. 28, col. 1; accord Code Civ. Proc., §§ 20-22.) “The word ‘proceeding’ may be used synonymously with ‘action’or ‘suit’ to describe the entire course of an action at law or suit in equity from 13 thefiling of the complaint until the entry of final judgment.” (Exxess Electronixx, 64 Cal.App.4th at p. 712,ellipses and brackets omitted, quoting Black's Law Dict., p. 1204,col. 1.) It is broader than ‘action,’ because it may encompassthe resolution of a dispute before quasi-judicial officers and boards. (/d.) By definition, a defenseis neither an action nor a proceeding.It is “that whichis offered and alleged by thepartyproceeded against in an action or suit, as a reason in law or fact whytheplaintiff should not recover or establish whathe seeks; it is a response to the claims ofthe otherparty, setting forth reasons whythe claims should not be granted.” (Gz/, 121 Cal.App.4th at p. 744, brackets andellipses omitted, italics modified, quoting Black's Law Dict., p. 419, col. 2.) Theparties would have chosen different wordsifthey wanted to makeattorney fees available for an affirmative defense. Many attorney-fee provisionsdirectly refer to defensesarising from the contract.(See, e.g., Share v. Casiano Bel-AirHomeowners Assn. (1989) 215 Cal.App.3d 515, 521 [mandatingfees if “any party to this Agreement. . . is required to defend any action the defense to whichis any provision of this Agreement”].) Othersare drafted broadly enough that they apply wheneverthe contract becomesthe subjectoflitigation. (Thompson v. Miller (2003) 112 Cal.App.4th 327, 336-337 [clause awardingfees for “any dispute under the agreement” encompassedaffirmative defense]; Salawy, 121 Cal.App.4th at p. 674 [fees could be awardedfor any action “in which” the documentis enforced].) It would have been easy for the parties here to employ similarly broad language in their contract. (See Safeco, 26 Cal.4th at pp. 763-764 |“Had Safeco wanted to exclude criminal acts from coverage, it could have 14 easily done so”like other insurers].) Instead, they adopted a narrowerfee provision. The courts should respect that choice. 2. Affirmative defenses are not “brought” It is already clear from the definitions of the words “action” and “proceeding”that the fee provision does not apply to affirmative defenses. But the text of the contractclarifies this point by pairing those nouns with the verb “brought” — i.e., fees are available in an action or proceeding “brought for the enforcement of this Agreement.” (Maj. Opn.at 11-12, emphasis added.) Theuseofthis verb confirmsthat the drafters did not have affirmative defenses in mind. (See Windsor PacificLLC v. Samwood Co., Inc., 213 Cal.App.4th at p. 276 [explaining that earlier cases “seemed to regard the word ‘brings’ or ‘brought’ as narrowing the scopeofthe attorney fee clause”].)' In normallegal parlance, defenses are “pleaded”or “raised” or “asserted” — but they are not “brought.” The majority admits that is technically true, but it argues that raiseng a defenseis like bringing an action. (Maj. Opn.at 18.) In its view, the idea that the drafters would rely on such an inconsequential word to narrow the scopeofthe attorney-fee provision “elevates form over substance and fiction over reality.” (Maj. Opn. at 18.) Butit would be just as easy to turn that accusation on the majority for interpretingthe clause as if the word “brought”had not been included in it. That verb cannotbe deleted simply becauseit defies the majority’s preferences for what the contract should mean. Noris it unusual for courts to allow seemingly minorlinguistic nuances to have majorinterpretative ' The attorney-fee clause at issue in Windsor Pacific did not include the word “brought” or any equivalent term. (/d., 213 Cal.App.4th at p. 276.) 15 ramifications. For example, in an insurancepolicy, the scope of exclusion for liability resulting from the intentionalacts of “an” insured is much broader than onefor the intentionalacts of “the” insured. (See, e.g., Minkler v. Safeco Ins. Co. ofAmerica (2010) 49 Cal.4th 315, 322-323 [explaining distinction].) It is true that the parties probably did notinsert the word “brought” with the express purposeoflimiting the scope of the attorney-fee provision. They accomplished that with the terms “action” and “proceeding.” But the meaning of those nounscan be inferred by examining the verb that accompanies them. (Civ. Code, § 1641; see also, Sampson v. Century Indem. Co. (1937) 8 Cal.2d 476, 480 [““No term of a contract is either uncertain or ambiguousifits meaningcan be ascertainedby fair inference from other terms thereof”|.) Perhaps,in the abstract, there is some broad sense in which those nouns could encompassa defense. But “in construing a contract the court's function is not merely to importall of the possible definitions or even the broadest definition, but to glean the meaning of the wordsfrom the context and usage ofthe words in the contract ttself.” (Mirpad, LLC v. California Ins. Guarantee Assn. (2005) 132 Cal.App.4th 1058, 1069,originalitalics.) Here, ” “proceeding,” andthat exercise confirmsthat the words “action, “brought” do not refer to affirmative defenses. D. The two rationales for awarding fees are both deeply flawed 1. Whenawardingfees, it would be unreasonable to brand every event in a lawsuit as a “proceeding” The majority opinionin this case held that an affirmative defenseis a “proceeding” on the groundthat each discrete step in a lawsuit deserves thattitle. It explains that, “Anything done from the commencementto the 16 terminationis a proceeding.” (Maj. Opn.at 14, quoting Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1105.) Thereare contexts in which that expansive definition is appropriate, but this is not one of them. “‘Proceeding’ has different meanings in different contexts” — as explained by the case that the majority relies on. (Zellerino, 235 Cal.App.3d at p. 1105.) “Narrowly, it means an action or remedy before a court. . . Broadly, it means ‘All the steps or measures adoptedin the prosecution or defense of an action.’” (/d., internal citations omitted.) Zellerino “construed the term ‘proceeding’ in [Code of Civil Procedure] section 473 broadly,” because thatis clearly the sense in which the word appears within that statute. (/d.) Section 473 describes when a party may “amendany pleading or proceeding”orreceiverelieffrom a “judgment, dismissal, order, or other proceeding.” (Code Civ.Proc., § 473.) The other wordslisted in Section 473 are each individual steps within a lawsuit, so “proceeding”is clearly used in the samesense. Thisis a straightforwardresult of the rule that “‘a court will adopt a restrictive meaningofa listed item if acceptance of a more expansive meaning would make otheritemsin the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” (Moore v. California State Bd. ofAccountancy (1992) 2 Cal.4th 999, 1012.) The nameofthis rule is “noscitur a sociis: that a word takes its meaning from the companyit keeps.” (Blue Shield ofCalifornia Life & Health Ins. Co. v. Supertor Court (2011) 192 Cal.App.4th 727, 740.) Whenapplied to the contract in this case instead of section 473, the rule produces the opposite conclusion. The contract’s attorney-fee provision applies to “any legal action or any other proceeding, including 17 arbitration or an action for declaratory relief.” (Maj. Opn.at 11.) Each of those termsrefers to the entirety ofa suit,so it is clear that “proceeding”is used in the samesense. That conclusion is bolstered by the fact that the provision authorizes recovery of “attorney fees, expert fees and other costs incurred zn that action or proceeding...” (Maj. Opn.at 11,italics added.) A party incurs costs in a lawsuit, whereas it would be very oddto say that a party incurred costs 7m an affirmative defense. The preposition is only appropriate if “proceeding”is used in the narrow sense that is roughly comparable to “action.” The majority rejected this interpretation, suggesting that it would renderthe word “proceeding” superfluous within the attorney-fee clause. (Maj. Opn.at 14, citing Deutsch v. Phillips Petroleum Co. (1976) 56 Cal.App.3d 586, 590 [contract “must be construedsoas to give force and effect to every word contained within it”|.) It was mistaken. The clause lists a “legal action” as an example of a proceeding. The majority overlooked the presence of the word “other,” which is “used to referto all the membersofa group exceptthe personor thing that has already been mentioned.”” In the fee provision, the only phrase mentionedbefore “other proceeding”is “legal action.” Thus,a legal ‘actionis the first type ofproceeding mentionedin the clause. Then two other proceedingsare listed: “arbitration” and “an action for declaratory relief.” The drafter’s inclusion ofthe latter examples wasclearly intended to convey that the fee provision can be triggered — not only by a prototypical lawsuit seeking a monetary award before a court — but also ? Merriam-Webster Online, 2015. “Other.” . 18 actions broughtin quasi-judicial forums, as well as actions that do not seek pecuniary damages.” If “proceeding”referred to every step ofan action, then the clause would become incomprehensible. Listing a “legal action”as thefirst example of a “proceeding” would not makesense, because a “legal action” is not a discrete event within a lawsuit. (Salawy, 121 Cal.App.4th at pp. 672- 673 [“An ‘action to enforce’ does not refer to specific pleadingsor steps within the action or a defense.”]; accord Windsor Pacific, 213 Cal.App.4th at p. 274 [“the words‘action or proceeding’. . .encompasstheentire action or proceeding”’].) Worse,this definition would produce absurd results in the context of the attorney-fee clause. If every procedural event were an “action”or “proceeding,” then every ruling in the trial court could giverise to a separate fee award.It “would seem to justify awarding fees to a party who prevailson a contract-based motion to change venue.” (Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 545-546; accord Salawy, 121 Cal.App.4th at pp. 673-674 [ “logical conclusion” would be fee award just because “demurrers had been overruled” J.) Indeed, “party who succeeded on any dispute related to a contract's enforcement could claim fees, even if that party was notthe prevailingparty at trial.” (Frog Creek, 206 Cal.App.4th at pp. 545-546.) Obviously, this is not what advocates of the approach intend — butit is a logical consequenceoftheir definition. * This is immediately evident whentheitemsarelisted in a different order, e.g., “any proceeding, including any legal action, arbitration, or action for declaratory relief.” The actual clause meansexactly the samething. 19 2. The purposeofa given lawsuit cannotbe altered by an affirmative defense A different justification for awarding attorney-fees was adoptedin Windsor Pacific, based on Justice Armstrong’s dissent in Gz. Thecourt argued that, because an answeris part of an action or proceeding, pleading a contract-basedaffirmative defense should trigger attorney fees. In its view, once a contract-based affirmative defenseis pleaded,then the “action doesinvolve the interpretation of the [contract]” andit also qualifies as “an action 7 which a party seeks to enforce or interpret [the contract].” (Windsor Pacific, 213 Cal.App.4th at pp. 274-275, emphasis added.) Thoseare both reasonable descriptions of such an action. And they are roughly equivalent to the standards that appearin broadly worded attorney-fee clauses. The theory would make sensefor a clause triggered by “any dispute under the agreement,” since an affirmative defense can certainly place a contract in dispute. (Tompson v. Miller, 112 Cal.App.4th at pp. 335-337, emphasis added.) It would also be appropriate for clauses that awardfees in any action relatedto the contract. (See, e.g., Moallem v. ColdwellBanker Com. Group, Inc. (1994) 25 Cal.App.4th 1827, 1831 [<‘relating to’ the contract” ]; Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1799 [“relating to the demised premises”].) Provisions wordedin this wayare, by their clear terms, “notlimited to an action brought to enforce the agreement.” (Gi/, 121 Cal.App.4th at p. 745.) Thatlimitation did not appear in the clause from Windsor Pacific. It does, however, appear in the contractin this case. Thefee provision hereappliesonly if an action or proceeding “‘is broughtfor the enforcementofthis Agreementor because ofan alleged dispute, breach, default, or misrepresentation in connection with any 20 provision of this Agreement...” (Maj. Opn. at 14, emphasis added.) The prepositions “for” and “because of”each refer back to “brought” — which “refers to the initiation of legal proceedingsin a suit.” (Curtis v. County ofLos Angeles (1985) 172 Cal.App.3d 1243, 1249, quoting Black's Law Dictionary (Rev'd. 4th Ed. 1957) 242); see also, Employers Reinsurance Corp. v. Phoenix Ins. Co. (1986) 186 Cal.App.3d 545, 555 [ “the term ‘suit brought’ denotesthefiling of a lawsuit”|.) Theuseofthat verb comports with the “common understanding” that an action is a “proceeding initiated bythefiling of a claim,” which “‘is generally considered synonymouswith suit.” (Salawy, 121 Cal.App.4th at p. 672.) Thus, the specifications in the clause are conditions on the reason that the lawsuit wasfiled. The suit must have beeneither (1) filedfor enforcementofthe contract or (2) field because of'a dispute aboutthe contract. In the phrase “for enforcement,” the word “for”is “used as a function word to indicate purpose.””* Thefirst option therefore requires the lawsuit to have beenfiled for the purposeofenforcing the contract. “A lawsuit's ultimate purposeis to achieve actualrelieffrom an opponent” — i.e., “someaction (or cessation of action) by the defendant.” (Graham ». DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 571, citation omitted.) If the © relief the suit seeks it not enforcementofthe contract,it is irrelevant what affirmative defenses the answer pleads. An answercan neveralterthe suit’s purposebecause a defensive pleading’s “only goal is to preserve, or to return to, the status quo asit existed before judicial proceedings had commenced.” (/dell ». Goodman (1990) 224 Cal.App.3d 262, 273.) * Merriam-Webster Online, 2015. “For.” . 21 Thefactthat a pleading injects the agreementinto the lawsuit does not transform the proceeding into an action to enforce that agreement. (See Cytodyn, Inc. v. AmerimmunePharmaceuticals, Inc. (2008) 160 Cal.App.4th 288, 301 [“The mere mention of an agreement in a complaint does not mean,as defendants seem tobelieve, that the lawsuit has been broughtto enforce those agreements.”]; Vons Companies, Inc. v. Lyle Parks, Jr., Inc. (2009) 177 Cal.App.4th 823, 835 [rejecting “the proposition that any contract in amy way involved in an action renders the suit an action ‘on the contract’”]; Perry v. Robertson (1988) 201 Cal.App.3d 333, 343 [“a cause of action does not warrant a recovery . . . merely because a contract with an attorney's fees provisionis part of the backdropofthe case”J.) This Court has held that a “claim for benefits . . . is not an action to enforce ERISA” merely because a judge must examine ERISA provisions to determine whetherthey prevent benefits from being awarded. (Jn re Marriage ofOddino (1997) 16 Cal.4th 67, 79.) Similarly, a suit for relief underone contract does not becomea proceeding to enforce another merely because a defendantinvokes the secondcontractto avoid liability. That leaves the second prongofthe attorney-fee provision in this case, which requires the lawsuit to have beenfiled “because of” a controversy over the contract. The phrase “because of” means “by reason of: on accountof.”” That criterion can onlybesatisfiedifa conflict about the contract causedthefiling of the suit. An answer can never accomplish that becauseit is only filed once the lawsuit has already commenced. *Merriam-Webster Online, 2015. “Because.” . 22 CONCLUSION Someattorney-fee provisions do not allow fees to be recovered based on an affirmative defense, because the parties may wish to invoke the contract defensively without riskingliability for the other side’s fees. When the parties agree to this arrangement — astheyclearly did in this case — their bargain should be enforced. Dated: May 18, 2015. Respectfully submitted, LAW OFFICE OF ERIK A. HUMBER THE EHRLICH LAW FIRM wy Oth T UL Jeffrey I. Erlich torneysfor Plaintiff and Respondent Mountain Air Enterprises, LLC 23 Certificate ofWord Count (Cal. Rules ofCourt, Rule 8.520(c)(1)) Thetextofthis petition consists of 6,072 words, accordingto the word count generated by the Microsoft Word word-processing program used to preparethe brief. Dated: May18, 2015. ek IY Jeffrey I. Bhrlich Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, etal. Supreme Court No. S223536 Court ofAppeal No. A138306 Superior Court Case No. CIV081957 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business addressis: 237 WestFourth Street, Second Floor, Claremont, California 91711. On May18, 2015, I served the foregoing documents describedas OPENING BRIEF ON THE MERITSontheinterestedpartiesin this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: PLEASE SEE ATTACHED SERVICE LIST [XX] BY MAIL I am "readily familiar” with the firm's practiceofcollection and processing correspondencefor mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Claremont, California,in the ordinary course ofbusiness. I am aware that on motionofparty served, service is presumedinvalidif postal cancellation date or postage meter date is more than one(1) day after date of deposit for mailing in affidavit. [XX] ELECTRONIC copy was submitted electronically as indicated on the servicelist. [] BY OVERNIGHT MAIL/COURIERToexpedite service, copies were sent via FEDERAL EXPRESS. [] BY PERSONAL SERVICEI caused to bedelivered such envelope by handto the individual(s) indicated onthe servicelist. (State) I declare under penalty ofperjury underthe lawsofthe State of California that the aboveis true and correct. Executed on May 18, 2015,atLN. Isabel Cisneros-Drake, Paralegal Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, etal. Supreme Court No. S223536 Court ofAppeal No. A138306 Superior Court Case No. CIV081957 SERVICELIST Joe R. Abramson, Esq. ABRAMSON & BROWN 21700 Oxnard Street, Suite 1770 Woodland Hills, CA 91367 Telephone: (818) 227-6690 E-mail: jralaw1@pacbell.net David J. Lonich, Esq. LAW OFFICE OF DAVID J. LONICH 980 Doubles Drive, Suite 111 Santa Rosa, CA 95407 E-mail: djlonich@gmail.com Erik A. Humber, Esq. LAW OFFICE OF ERIK A. HUMBER 165 North RedwoodDrive, Suite 110 San Rafael, CA 94903 Clerk of the Superior Court Hon.Roy O. Chernus Marin County Superior Court 3501 Civic Center Drive Post Office Box 4988 San Rafael, CA 94913 Clerk of the Court ofAppeal First Appellate District, Div. 2 350 McAllister Street San Francisco, CA 94102 California Supreme Court 350 McAllister Street San Francisco, CA 94102 Attorneys for Defendants and Appellants BIJAN MADJLESSI, GLENN LARSEN,and SUNDOWNER TOWERS, LLC Attorneys for Defendants and Appellants BAN MADJLESSI, GLENN LARSEN,and SUNDOWNER TOWERS, LLC Attorneysfor Plaintiff and Respondent MOUNTAIN AIR ENTERPRISES, LLC Electronic submission Filed Via Overnight Delivery Original and 8 copies / plus electronic copy submission
