Demari v. Desert Oasis Mobile Estates CA5 ( 2013 )

Filed 3/19/13 Demari v. Desert Oasis Mobile Estates CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
JULIET DEMARI et al.,
F064419
Plaintiffs and Appellants,
(Super. Ct. No. CV-271639)
v.
DESERT OASIS MOBILE ESTATES, LLC, et OPINION
al.,
Defendants and Respondents.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
Law Offices of Olaf Landsgaard and Olaf Arthur Landsgaard for Plaintiffs and
Appellants.
Borton Petrini, James J. Braze and Michael J. Stump for Defendants and
Respondents.
* Before Cornell, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
Appellants, Juliet Demari, individually and doing business as Leona Homes and
Westline Financial, and Doug Holland, challenge the trial court‟s award of attorney fees
to respondents, Desert Oasis Estates, LLC, Alfons Von Den Stemmen and Blanca
Gonzalez. Appellants contend the contracts they sued on did not contain an attorney fee
provision and therefore attorney fees were not recoverable. However, an additional
agreement was incorporated into the contracts that did include an attorney fees provision.
Accordingly, attorney fees were authorized. Therefore, the judgment will be affirmed.
BACKGROUND
Appellants entered into contracts, referred to as the Leona contracts, with
respondents that allowed appellants to place mobile homes in the Desert Oasis
Mobilehome Park to sell or rent. Appellants were to pay respondents storage fees for the
homes. Appellants also agreed “Each home seller brings to park is to conform to the
Desert Oasis Mobile Estates „Mobilehome Storage Agreement‟ (Exhibit A). And there
must be a separate agreement for each home.” The “Mobilehome Storage Agreement”
provides “[t]he prevailing party to any action necessary to enforce a party‟s right under
this Agreement, will be entitled to recover its reasonable attorney fees and costs.”
Appellants sued respondents for breach of contract. Respondents‟ demurrer to the
complaint was sustained without leave to amend. Thereafter, the trial court awarded
attorney fees to respondents as the prevailing parties based on the attorney fee provision
contained in exhibit A, the Mobilehome Storage Agreement, incorporated into the Leona
contracts.
DISCUSSION
In their motion for attorney fees, respondents included the Mobilehome Storage
Agreements behind the copies of the Leona contracts that appellants sued on. As noted
above, each Leona contract referred to the Mobilehome Storage Agreement and
designated it as exhibit A. Appellants contend the trial court erred in basing the attorney
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fees award on the Mobilehome Storage Agreements because those agreements were not
authenticated, were unsigned, and being unsigned, were not enforceable under the statute
of frauds.
It is the law that the parties may incorporate by reference into their contract the
terms of some other document. Accordingly, the contract may include the provisions of a
document not physically a part of the basic contract. (Troyk v. Farmers Group, Inc.
(2009) 171 Cal.App.4th 1305, 1331.) Although the reference must be clear and
unequivocal, and called to the attention of the other party who must consent thereto, the
contract need not recite that it incorporates another document, so long as it guides the
reader to the incorporated document. (Shaw v. Regents of University of California (1997)
58 Cal.App.4th 44, 54.)
Here, the Leona contracts referred to the Mobilehome Storage Agreements. This
reference was clear and unequivocal. Further, appellants agreed that each home they
brought to the Desert Oasis Mobilehome Park would conform to this agreement.
Accordingly, it must be inferred that the terms of the Mobilehome Storage Agreement
were known or easily available to appellants. Thus, the Mobilehome Storage Agreement
was part of each Leona contract and appellants were bound by its terms. (Wolschlager v.
Fidelity National Title Insurance Co. (2003) 111 Cal.App.4th 784, 791.) Since both
documents must be considered as a whole (Kraemer v. Kraemer (1959) 167 Cal.App.2d
291, 301), and appellants signed the Leona contract, appellants are bound by the terms of
the Mobilehome Storage Agreement despite that agreement being unsigned. Further,
appellants have not demonstrated that the trial court erred in finding that the proffered
Mobilehome Storage Agreement was part of each Leona contract.
DISPOSITION
The order is affirmed. Costs on appeal are awarded to respondents.
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