NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC257767. Terry A. Green, Judge. Affirmed in part; reversed in part.
Bostwick & Jassy, Gary L. Bostwick, Jean-Paul Jassy; Westlake Law Group, David Blake Chatfield for Plaintiff and Appellant.
Epport, Richman & Robbins, Steven N. Richman, Lawrence A. Abelson for Defendant and Appellant.
ROTHSCHILD, Acting P. J.
Both parties appeal from an order awarding attorney fees and costs to the defendant following plaintiff’s voluntary dismissal of his action with prejudice. Plaintiff maintains that the parties’ contracts do not authorize attorney fees to defendant for defending against plaintiff’s noncontract causes of action. Defendant contends that the court erred in denying it attorney fees for defending against plaintiff’s breach of contract, equitable and statutory causes of action, failing to award it a reasonable amount of attorney fees on the tort causes of action and failing to award it expert witness fees and other costs. We conclude that defendant is not entitled to attorney fees on any of plaintiff’s causes of action and that the court ruled correctly in denying defendant its costs for expert witnesses, trial exhibits, messenger services and other miscellaneous items.
FACTS AND PROCEEDINGS BELOW
Stephen Gaggero borrowed money from First Federal Bank of California, memorialized by two notes and secured by trust deeds to two parcels of real estate on Venice Beach. (We will refer to the notes and deeds of trust together as the “loan documents.”) When the bank learned that Gaggero was attempting to transfer the secured property without its permission it commenced foreclosure. Gaggero sued the bank claiming it had a “plan to destroy” him. His complaint alleged causes of action for breach of contract, negligence and other torts, statutory violations, unjust enrichment and an accounting. By way of demurrers, motions to strike and a motion for summary adjudication First Federal succeeded in obtaining dismissal of all the claims except breach of contract, unjust enrichment and an accounting.
Prior to the date set for a jury trial the court held a hearing regarding the interpretation of certain provisions of the loan documents, the bank’s defense of res judicata to the breach of contract action and, if necessary, to try to the court Gaggero’s equitable causes of action for unjust enrichment and an accounting. The court concluded that the loan documents were unambiguous and required Gaggero to obtain First Federal’s written consent before transferring the secured property. Furthermore, the court concluded that the actions First Federal took in response to Gaggero’s transfers of the properties were permitted by the loan documents and therefore First Federal did not, as a matter of law, breach its contracts. Finally, the court found Gaggero’s claims that the bank overcharged interest were barred by res judicata.
Based on these rulings the court concluded that Gaggero could not prevail on his equitable, statutory or breach of contract causes of action and that if the case proceeded to the scheduled jury trial on those claims First Federal would be entitled to a nonsuit or directed verdict. A few days before the date set for the jury trial Gaggero dismissed his entire action with prejudice.
After Gaggero dismissed the action First Federal filed a cost bill and moved for an award of attorney fees under provisions of the loan documents. Gaggero filed a motion to tax costs and an opposition to the award of any attorney fees.
The trial court ruled that the loan documents entitled First Federal to attorney fees for defending against Gaggero’s tort causes of action but not his equitable and statutory causes of action. The court further ruled that because Gaggero voluntarily dismissed the action, First Federal was not entitled to attorney fees for defending against Gaggero’s breach of contract claims.
The court disallowed First Federal’s expert witness fees on the ground that the bank’s offer to compromise under Code of Civil Procedure section 998 was not made in good faith. The court also disallowed other costs claimed by First Federal.
The court awarded First Federal attorney fees of $1.5 million and costs of $22 thousand.
Both parties filed timely appeals.
I. Standard of Review
Where, as here, the trial court did not rely on extrinsic evidence in interpreting the parties’ agreement, the determination of the parties right to attorney fees and costs is a question of law that we review de novo. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.)
II. FIRST FEDERAL’S ENTITLEMENT TO ATTORNEY FEES FOR DEFENDING GAGGERO’S CONTRACT CLAIMS
The attorney fees provisions of a contract are subject to the provisions of Civil Code section 1717 (Santisas v. Goodin (1998) 17 Cal.4th 599, 616) which provides in subdivision (a), in relevant part: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce the 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.” Subdivision (b)(2) provides, however, “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”
In this case the trial court determined that as a matter of law Gaggero could not succeed on his causes of action against First Federal for breach of contract. The court further interpreted the loan documents to entitle First Federal to attorney fees for defending the breach of contract claims. (The parties do not dispute this interpretation.) Nevertheless, the court ruled that because Gaggero voluntarily dismissed his contract claims, Civil Code section 1717, subdivision (b)(2) precluded an award of attorney fees on those claims. As discussed below, that ruling was correct.
Santisas v. Goodin, supra, 17 Cal.4th 599, supports the trial court’s interpretation of section 1717. In Santisas, the purchasers of a home sued the seller’s broker and the broker’s attorney alleging breach of contract, negligence, deceit, negligent misrepresentation and suppression of fact. After discovery, the plaintiffs voluntarily dismissed their action with prejudice and the defendants moved to recover their attorney fees, based on an attorney fees provision in the residential purchase agreement. The Supreme Court held: “When a plaintiff files a complaint containing causes of action within the scope of section 1717 (that is, causes of action sounding in contract and based on a contract containing an attorney fee provision), and the plaintiff thereafter voluntarily dismisses the action, section 1717 bars the defendant from recovering attorney fees incurred in defending those causes of action, even though the contract on its own terms authorizes recovery of those fees.” (Santisas v. Goodin, supra, 17 Cal.4th at p. 617; italics omitted.)
First Federal argues that subdivision (b)(2) does not bar its recovery of attorney fees because Santisas limited subdivision (b)(2) to cases in which there was a pretrial dismissal of the action. In this case, the bank contends, there was a bench trial on the contract claims before Gaggero dismissed the action and, therefore, subdivision (b)(2) is not applicable. The bank bases its argument on references in Santisas to “voluntary pretrial dismissal,” dismissals “‘prior to trial,’” and “pretrial dismissal cases.” (Santisas v. Goodin, supra, 17 Cal.4th at pp. 602, 616.) We need not decide whether the proceedings in which the trial court construed the loan documents constituted a trial or a partial trial or the commencement of a trial. The bank’s argument fails regardless of those considerations.
The plain language of subdivision (b)(2) applies to any “voluntary dismiss[al]” of an action. Nothing in the subdivision’s language limits its application to pretrial dismissals. (Marina Glencoe, L.P. v. Neue Sentimental Film AG (2008) 168 Cal.App.4th 874, 877.) Indeed, under Code of Civil Procedure section 581, subdivision (e), a plaintiff may dismiss the action with prejudice “[a]fter the actual commencement of trial.” Moreover, Santisas did not interpret subdivision (b)(2) as only applying to voluntary dismissals prior to trial. In Santisas, plaintiffs dismissed their action after conducting discovery. (Santisas v. Goodin, supra, 17 Cal.4th at p. 603.) Thus, when the court referred to “pretrial” dismissal it was merely referring to the nature of the dismissal that had occurred in the case before it.
Code of Civil Procedure section 581, subdivision (e), states in relevant part: “After the actual commencement of trial, the court shall dismiss the complaint, or any cause of action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal....”
Although Civil Code section 1717, subdivision (b)(2) and our Supreme Court’s opinion in Santisas compel the conclusion that a voluntary dismissal with prejudice bars the recovery of attorney fees incurred in defending contract claims we question the equity of that result in a case such as the one before us in which the dismissal occurs in the shadow of the action’s impending doom. As Justice Mosk pointed out in his concurrence in Santisas, by the time the plaintiff dismisses the action the defendant may have incurred substantial attorney fees in consulting with counsel, locating witnesses, preparing pleadings, conducting discovery and engaging in other preparations in anticipation of a contested trial. (17 Cal.4th at p. 624 (conc. opn. of Mosk, J.).) When a case has proceeded as far as this one, of course, the attorney fees are likely to be even greater than the ones that concerned Justice Mosk.
III. FIRST FEDERAL’S ENTITLEMENT TO ATTORNEY FEES FOR DEFENDING GAGGERO’S NONCONTRACT CLAIMS
Civil Code section 1717, discussed above, does not bar attorney fees involving noncontract claims. (Santisas v. Goodin, supra,17 Cal.4th at pp. 615-617.) Nor does any other statute bar recovery for such fees if they are covered by contract. The question of entitlement to attorney fees on noncontract causes of action turns on the language of the contractual attorney fees provision, i.e., whether the fees sought are within the scope of the provision. (Id. at p. 617.) Accordingly, we must look to the loan documents to determine whether First Federal is entitled to attorney fees for defending Gaggero’s noncontract causes of action.
Each of the notes Gaggero executed contains a paragraph pertaining to the bank’s right to accelerate the principal payment in the event of Gaggero’s failure to “keep the promises” he made in the note or the deed of trust securing it. Paragraph 8(e) of the notes states: “Payment of Note Holder’s Costs and Expenses: If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Such expenses include, for example, reasonable attorneys’ fees.”
Paragraph 8 of the notes states in relevant part: “Borrower’s Failure To Pay As Required. (A) Late Charges For Overdue Payments. If the Note Holder has not received the full amount of any monthly payment by the end of ten calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 10.000 percent of my overdue payment of principal and interest. I will pay this late charge promptly but only once for each late payment. (B) Default. If I do not pay the full amount of each monthly payment on the date it is due, or if I do not keep the promises I make in this Note or Deed of Trust securing it, I will be in default. (C) Notice Of Default. If I am in default, the Note Holder may send me a written notice telling me that if I do not correct the default by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount.... (E) “Payment of Note Holder’s Costs and Expenses: If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Such expenses include, for example, reasonable attorneys’ fees.”
Each deed of trust Gaggero executed contains a paragraph (9) which states in relevant part: “Protection of Lender’s Security. If Borrower fails to perform the covenants and agreements contained in this Deed of Trust, or if any action or proceeding is commenced which affects the Property or title thereto or the interest of Lender therein, including, but not limited to, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then Lender at Lender’s option may make such appearances, disburse such sums and take such action as Lender deemed necessary, in its sole discretion, to protect Lender’s interest, including, but not limited to, (i) disbursement of attorneys’ fees....”
However broad the attorney fees provisions of the loan documents may be, they primarily apply to Gaggero’s promises to perform and refrain from performing certain actions and to First Federal’s remedies should Gaggero fail to keep those promises. They are not broad enough to provide a basis for awarding attorney fees on the noncontract causes of action.
Gaggero’s claims that the bank unlawfully declared the loans in default, accelerated the principal payments and imposed an incorrect interest rate, pertain to the parties’ rights and obligations under the provisions of the deed of trust and promissory note. They are, therefore, contractual in nature. But Gaggero also alleged noncontractual causes of action for gross negligence, intentional infliction of emotional distress, fraud, intentional interference with prospective business advantage, unfair competition, unjust enrichment and violation of the California Consumer Credit Reporting Agencies Act. “It is well settled that while a contract action protects a party’s interest in having promises performed, ‘[a] tort action... redresses the breach of the general duty to society which the law imposes without regard to the substance of the contractual obligation.’ [Citation.]” (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 711.)
In determining the scope of an attorney fee provision, “we apply the ordinary rules of contract interpretation. ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639) The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,” unless “used by the parties in a technical sense or a special meaning is given to them by usage” (id., § 1644), controls judicial interpretation. (Id., § 1638.) Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. [Citations.]’” (Santisas v. Goodin, supra,17 Cal.4th at p. 608.)
In Gil v. Mansano (2004) 121 Cal.App.4th 739, 744, the court, in reviewing contractual fee provisions that supported awards for tort claims, found “an attorney fee provision applicable to ‘any dispute under the agreement’ is sufficiently broad to include the assertion of a contractual defense to fraud and breach of fiduciary duty causes of action. (Thompson v. Miller [(2003)] 112 Cal.App.4th  at pp. 335-337.) Such an attorney fee provision is not limited to an action brought to enforce the agreement. Other broad language has also been interpreted... to include tort actions. (Santisas v. Goodin, supra, 17 Cal.4th at p. 607 [‘arising out of the execution of the agreement’]; Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1799... [‘“relating to the demised premises”’]; Moallem v. Coldwell Banker Com. Group, Inc. (1994) 25 Cal.App.4th 1827, 1831... [‘“relating to” the contract’”]; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342. [‘to which “this Agreement gives rise’”].)”
There is no such language in the loan documents in this case. The notes and deeds of trust provide for attorney fees in very limited circumstances not present here. Paragraph 8(e) of the notes provides for payment of attorney fees incurred by First Federal in enforcing the acceleration clause of paragraph (8) entitled “Borrower’s Failure To Pay As Required.” Paragraph 9 of the deeds of trust entitled “Protection Of Lender’s Security” provides for payment of attorney fees incurred by First Federal in enforcing Gaggero’s obligations under the notes and deeds of trust and in defending the bank’s security interest in the properties. Nothing in either of these provisions, even arguably, provides for the payment of attorney fees expended in the defense of tort or other noncontract actions.
Finally, we reject First Federal’s contention that Gaggero is collaterally estopped from relitigating the bank’s right to recover its attorney fees in defending Gaggero’s tort claims. A party is collaterally estopped from relitigating an issue if (1) the issue in the former proceeding and the current proceeding are identical, (2) the issue was litigated on the merits; (3) the issue was necessarily decided; (4) there was a final decision; and (5) the party to be estopped was a party or in privity with a party to the former proceeding. (Gikas v. Zolin (1993) 6 Cal.4th 841, 849.) First Federal has cited us to a portion of the record containing an attorney fee order in another case between it and Gaggero but it has failed to cite us to any portion of the record that would support the first four conditions for collateral estoppel.
IV. FIRST FEDERAL’S COSTS OF SUIT
A. Expert Witness Fees
First Federal maintains the court erred in denying its request for an award of $161,299.71 in expert witness fees under Code of Civil Procedure section 998, subdivision (c)(1). That statute states in relevant part: “If an offer [of judgment] made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award... the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses... actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” Whether the plaintiff recovered a more favorable judgment or award than the defendant’s offer depends on the circumstances that existed when the plaintiff had the opportunity to accept the offer. (Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435, 1441.) Whether the defendant’s offer was reasonable and made in good faith and whether to award expert witness fees are issues within the sound discretion of the trial court. (Thompson v. Miller, supra, 112 Cal.App.4th at pp. 338-340.)
In a section 998 offer mailed to Gaggero on September 28, 2006, First Federal proposed that Gaggero allow a judgment to be entered against him and in favor of the bank in which Gaggero would take nothing from the bank. Bearing in mind the rule that attorney fees for litigating a breach of contract claim cannot be awarded to either side if the plaintiff voluntarily dismisses the action, (see discussion in Part II, above) we conclude that First Federal’s offer was not made in good faith because it was not “realistically reasonable under the circumstances” (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821) and that, in any event, the award of attorney fees actually made to First Federal was more favorable to Gaggero than it would have been had he accepted First Federal’s offer.
In Wear, the court held that “a good faith requirement must be read into section 998” and that normally “a token or nominal offer will not satisfy this good faith requirement....” (121 Cal.App.3d at p. 821.) This is so, the court explained, because “[a] plaintiff may not reasonably be expected to accept a token or nominal offer from any defendant exposed to [a high damage award] unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable.” (Ibid.)
First Federal made its offer in September 2006, after the court had disposed of Gaggero’s tort claims, but its offer expired before the court ruled against Gaggero on his breach of contract and unjust enrichment causes of action. Thus, at the time of the offer First Federal was exposed to Gaggero’s claim of damages in the amount of $257,410 for breach of contract and $2,257,410 for unjust enrichment plus interest, attorney fees and costs on each cause of action. First Federal’s settlement proposal was not even a “token or nominal offer” because it offered Gaggero nothing in return for his agreement to allow judgment to be entered against him. On the other hand, had he accepted First Federal’s offer, Gaggero would have been exposed to greater attorney fees than what he actually was charged. Even if it was “absolutely clear” to a plaintiff that it had no “reasonable possibility” of success on the merits of its contract cause of action the plaintiff would not accept the type of offer tendered by First Federal in this case. Instead, the plaintiff would be better off doing exactly what Gaggero did here. Gaggero voluntarily dismissed his action and thereby avoided an award of attorney fees on the contract causes of action. (Civ. Code § 1717, subd. (b)(2); see discussion in Part II, above.) Gaggero, therefore, obtained a more favorable net result by rejecting First Federal’s offer than he would have obtained by accepting it.
B. Other Costs
Finally, First Federal argues the court abused its discretion in denying it recovery for its costs of trial exhibits, messenger services, parking and mileage for court appearances and witness locator services. We find no abuses of discretion.
As to the cost of exhibits, Code of Civil Procedure section 1033.5, subdivision (a)(12) states that these costs may be recovered if the exhibits “were reasonably helpful to aid the trier of fact.” The court was the trier of fact in this case and found the exhibits were not reasonably helpful. (None of the exhibits were used in any court proceeding.) The court was in the best position to determine what was “reasonably helpful” and we see no grounds for disturbing its finding or decision. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557-1560.)
Recovery of the other costs is within the trial court’s discretion (Code Civ. Proc., § 1033.5, subd. (c)(4) and that discretion is guided by the Legislature’s instruction that the costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” (id. at § 1033.5, subd. (c)(2)). First Federal has failed to show an abuse of discretion in denying these costs. (Cf. Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 775-776 [upholding denial of local travel expenses and investigative costs].)
The trial court’s “Order Awarding Attorneys’ Fees and Costs To First Federal Bank Of California” is modified by striking the award of attorney fees to First Federal. In all other respects the order is affirmed. Each party will bear its own costs on appeal.
We concur CHANEY, J., JOHNSON, J.