Elusive 8307 v. Canterman CA2/4 ( 2024 )

Filed 1/3/24 Elusive 8307 v. Canterman CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ELUSIVE 8307, LLC, B321096
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC719944)
v.
MEREK CANTERMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Lia R. Martin, Judge. Reversed and remanded.
Christensen Law and Robert J. Christensen for Defendant and
Appellant.
Hennelly & Grossfeld, Ronald K. Giller for Plaintiff and Respondent.
This is the second appeal arising out of a dispute between plaintiff
Elusive 8307, LLC and defendant Marek Canterman, who own adjacent
residential properties. In 2004, the prior owners of the properties entered
into a settlement agreement granting an easement to Elusive over a portion
of Canterman’s property (the Agreement). Elusive later filed suit, claiming
that the parties intended a broader easement than that reflected in the
Agreement and seeking declaratory relief. The trial court granted
Canterman’s motion for judgment after trial because the Agreement
contained a release of all future easement claims. A different panel of this
court affirmed the judgment.
Canterman moved for attorney fees as the prevailing party, based on
an attorney fee provision in the Agreement. The trial court denied the
motion, finding that the action did not arise from a contract and that
Canterman was not entitled to attorney fees under the reciprocity principal
in Civil Code section 1717.1 On appeal, Canterman argues that the trial
court erred in denying his motion for attorney fees. We agree that the court
erred and therefore reverse.
FACTUAL AND PROCEDURAL HISTORY
The underlying facts are detailed in this court’s prior appellate opinion,
Elusive 8307, LLC v. Marek Canterman (May 1, 2023, No. B317164) (nonpub.
opn.). We summarize them here as relevant to the attorney fee issue
presented.
I. The Agreement
Canterman owns real property in Los Angeles (the Canterman
Property). Elusive owns two contiguous pieces of real property directly to the
east of the Canterman Property (8307 Elusive Drive and 8333 Elusive Drive;
collectively, the Elusive Properties). From a public street, Elusive accesses
the Elusive Properties by driving on a paved road that is part of the
Canterman Property (the Paved Road), and then turning into a dirt driveway
that is also part of the Canterman Property (the Dirt Driveway). According
to Elusive, this is the only means of accessing its property by car.
1
All further statutory references are to the Civil Code unless otherwise
specified.
2
In September 2003, Walter Altmann (who owned the Elusive Properties
at the time) sued Marian Afurong (who owned the Canterman Property at
the time). The complaint sought an easement over “a dirt road which
connects Rugby Place, a future street and Plaintiff's home.”2 A legal
description of the easement was included.
Altmann and Afurong settled the lawsuit in 2004 by entering into the
Agreement, with Altmann as “Grantee” and Afurong as “Grantor.” The
Agreement recited that Altmann had been “using a dirt road to access his
property” and now sought an access easement for ingress and egress “only
along the currently existing dirt driveway on” the Canterman Property. The
Agreement provided that Afurong was granting Altmann an easement for
ingress and egress “only to the following portion of the [Canterman]
Property,” and then listed the same legal description contained in Altmann’s
complaint, which did not include the Paved Road. In exchange, Altmann
agreed to pay Afurong $1,000 and to “be solely responsible for the
maintenance of the Easement Area at his sole cost and expense.” Paragraph
nine of the Agreement, titled “Final Settlement of All Disputes,” provided
that “[t]his Agreement shall be a final settlement between the parties with
respect to any rights [Altmann] may have to the adverse possession or to any
easement, whether by prescription, necessity or otherwise, to or over any
portion of the [Canterman] Property. [Altmann] shall not claim, bring any
claim or pursue any claim for . . . any easement to or over the [Canterman]
Property.”
The Agreement also contained an integration clause stating that it
“constitutes the entire agreement between [Afurong] and [Altmann] relating
to the above easement.” The clause further stated that any amendment to
the agreement had to be “in writing and signed by Grantor and Grantee.”
The Agreement proclaimed itself “binding on both parties hereto and for their
respective benefit and shall also be binding on the heirs, executors,
administrators, representatives, attorneys, counsel, successors, and the
assigns of either respective party hereto.”
2
Rugby Place is the public street that can be accessed from the Paved
Road (which, at the time of the Altmann lawsuit, was unpaved). The Paved
Road is part of a future street easement benefiting the city of Los Angeles.
3
Paragraph 11 of the Agreement contained an attorney fees provision.
Pursuant to that provision, “[i]f any legal action or proceeding arising out of
or relating to this Agreement [is] brought by either party to this Agreement,
the prevailing party shall be entitled to receive from the other party...the
reasonable attorney’s fees . . . incurred in the action or proceeding by the
prevailing party.”
II. Subsequent Owners of the Properties
A. The Canterman Property
In April 2004, Afurong transferred the Canterman Property by grant
deed to Anita and Azadeh Famili. In June 2010, the Familis transferred the
Canterman Property by grant deed to Canterman.
B. The Elusive Properties
In 2012, Altmann hired real estate agent Shawn Kormondy to help him
sell the Elusive Properties. Kormondy also represented Afurong in a number
of transactions and discussed the Canterman Property with her. At the time,
Altmann told Kormondy that Altmann had a “legal easement” over the
Canterman Property from Rugby Place to the Elusive Properties.
Kormondy later changed sides in the transaction, representing Verono
LLC, in the purchase of the Elusive Properties from Altmann. In October
2014, Altmann recorded a deed transferring the Elusive Properties to Verono.
Seventeen days later, Verono transferred the Elusive Properties by grant
deed to Elusive, a limited liability company composed of the same parties as
Verono. Before, and during, the sale from Altmann to Verono and the
transfer to Elusive, there was no evidence to suggest that Kormondy or
anyone else at Verono or Elusive did any due diligence to confirm the
existence of the easement or to ensure that there was legal access to the
Elusive Properties.
Around 2016, Kormondy became the managing member of Elusive. At
about the same time, when searching court records for the easement Altmann
had claimed existed, Kormondy discovered the Agreement. At that time, he
had a title company plot the legal description contained in the agreement and
learned that it encompassed only the Dirt Driveway but not the Paved Road.
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III. Elusive’s Lawsuit
A. Complaints
In August 2018, Elusive filed a lawsuit against Canterman alleging
claims for declaratory relief for a prescriptive easement, and, in the
alternative, an equitable easement. Elusive alleged that it owned 8307
Elusive and also owned the easement set forth in the Agreement. Elusive
attached a copy of the Agreement to the complaint and fully incorporated it
by reference, alleging that the Agreement conveyed the easement from
Canterman’s “predecessor-in-interest” Afurong to Elusive’s “predecessor-in-
interest,” Altmann. The complaint further alleged that the intent of the
Agreement was to grant “complete easement access” to the owner of 8307
Elusive over the Canterman Property, and that the easement was to “benefit
and burden the successor owners of both [Elusive’s] Property and
[Canterman’s] Property in perpetuity.”
Elusive filed a first amended complaint (FAC) in December 2018,
alleging that the Agreement granted an easement from the eastern property
line of 8307 Elusive to the “northern boundary of the existing paved
community driveway.” Elusive further alleged that Altmann believed “a
recorded future street easement would serve as the easement from where the
existing community driveway ends to where the 2004 easement leads to
[8307 Elusive's] property line.” The FAC again attached a copy of the
Agreement and incorporated it by reference. It contained the same
allegations as the original complaint regarding the intent of the 2004
Agreement.
In March 2019, Elusive filed its operative complaint, the second
amended complaint (SAC). The SAC added an allegation that Elusive owned
8333 Elusive. It also alleged that the previous owners “attempted to record
an easement from [the] Eastern property line of 8307 Elusive Drive to the
northern boundary of the existing paved community driveway,” but that the
“2004 attempted easement is void.”3 As with the prior two complaints, the
SAC attached a copy of the Agreement and incorporated it by reference. The
SAC also continued to refer to Afurong and Altmann as “predecessors-in-
3
As we discuss further below, Canterman presented evidence that
Elusive later withdrew its contention that the 2004 Agreement was void.
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interest” to the current owners and repeated the allegations regarding the
intent of the Agreement. The SAC sought a judicial determination “so that
[Elusive] may ascertain its rights and duties with respect to the Complete
Easement Area,” which it described as the area necessary to provide complete
access to the Elusive Properties.
B. Trial
The trial court conducted a thirteen-day bench trial. Altmann’s son
testified that while he and his parents lived at 8307 Elusive, they openly
accessed the property by using the Paved Road and the Dirt Driveway.
Kormondy testified about his involvement in the sale of the Elusive
Properties. Canterman testified that he installed a gate separating Rugby
Place and the Paved Road after he purchased the Canterman Property in
2010 or 2011. Canterman gave Altmann “clickers” to open the gate and
provided him with an access code. Elusive also had a “clicker” to open the
gate. A member of the Famili family testified that they understood that
Altmann was using the Paved Road with their permission.
C. Judgment
Canterman orally moved for judgment under Code of Civil Procedure
section 631.8 at the close of Elusive’s case. The trial court declined to render
judgment until the close of all evidence. Canterman renewed the motion
after both parties rested. Canterman sought judgment on the grounds that
the Agreement was a covenant that runs with the land, was binding on
Elusive, and barred Elusive from seeking any easements outside of the
Agreement. Canterman also argued that Elusive failed to prove the elements
of its claims for prescriptive and equitable easement. Elusive opposed the
motion for judgment, arguing that the Agreement did not run with the land
because the Elusive Properties were not particularly described in the
Agreement and did not bind it as a successive owner.
In a written order filed in July 2021, the trial court granted
Canterman’s motion for judgment. It found that Elusive “did not meet its
burden to prove [the Agreement] is not valid.” The court found that under
the Agreement, Afurong granted Altmann an easement to use the Dirt
Driveway, and in exchange, Altmann agreed not to “bring or pursue any
claim” for any other easement on the Canterman Property. The court
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rejected Elusive’s argument that the Agreement did not run with the land.
The court also found that as Altmann’s successor, Elusive continued to
benefit from the Agreement because it used the easement granted therein,
but did “not want to accept the burden of the covenant.” Thus, even if the
Agreement was not a covenant that ran with the land, Elusive was still
bound by it.
The court found that the easement in the Agreement did not include
the Paved Road, and that Elusive failed to prove that the parties to the
Agreement intended otherwise. In support of its conclusion, the court cited
the provision in the Agreement requiring any amendment to be in a signed
writing and the fact that Elusive did not call Afurong as a witness.
The trial court additionally found that Elusive was not entitled to a
prescriptive easement because it failed to prove its use of the Paved Road was
hostile. Moreover, Elusive had only owned the properties for four years when
it filed suit, so it could not show the requisite five years of hostile use.
D. First Appeal
Elusive appealed from the judgment and subsequent denial of its
motion for new trial. A different panel of this court affirmed, concluding that
substantial evidence supported the trial court’s express finding that Elusive
did not meet its burden to demonstrate an entitlement to a prescriptive
easement and the trial court’s implied finding that Elusive was not entitled
to an equitable easement. The court did not reach the parties’ arguments
regarding whether the Agreement and its release of further claims to
easements created a covenant that would run with the land and bind Elusive.
IV. Motion for Attorney Fees
In October 2021, Canterman filed a motion for reasonable attorney fees
pursuant to section 1717. Section 1717 allows a prevailing party to recover
reasonable attorney fees incurred in “any action on a contract,” where the
contract specifically provides for the award of such fees to the prevailing
party. Canterman argued that the action was “on a contract” within the
meaning of section 1717 because it involved the Agreement and as the
prevailing party he was entitled to attorney fees under the Agreement. He
also argued that he and Elusive were successors-in-interest to the signatory
parties to the Agreement, and therefore were bound by the Agreement,
7
including its attorney fee provision. Canterman sought $353,682 in attorney
fees.
Elusive opposed. It argued that its action was not “on a contract”
because Elusive alleged only “real property claims that were directed at
seeking an easement by operation of law.” Elusive contended that it did not
seek to enforce the Agreement due to its defects and the fact that it did not
give Elusive the necessary access across both the Paved Road and the Dirt
Driveway. In addition, Elusive argued that Canterman had asserted
throughout the litigation that the Agreement was void, and that the
agreement “had no role” in the case until Canterman moved for judgment
based on the agreement. Finally, Elusive argued that neither it nor
Canterman were signatories to the Agreement and therefore could not
enforce the attorney fee provision.
In reply, Canterman asserted that he and Elusive were bound by the
attorney fees provision because they were “stand[ing] in the shoes” of the
parties to the Agreement.
Following a hearing, the court issued a written order on February 9,
2022. The court denied Canterman’s motion for attorney fees, finding that
“the instant case is distinguishable from Apex LLC v. Korusfood.com (2013)
222 Cal.App.4th 1010,[4]and attorney fees would not have been awarded to
[Elusive] had [Elusive] been the prevailing party.” The court further found
that Elusive “did not bring this action to enforce the terms of the 2004
Settlement Agreement or allege that [Canterman] had breached its terms.
Rather, [Elusive] contended that the 2004 Settlement Agreement had not
achieved the easement the parties must have intended.5
Canterman timely appealed.
4 Canterman does not dispute that Apex is factually distinguishable. As
his counsel explained to the trial court at the hearing on attorney fees, he
cited the case in his motion for the “legal proposition” that a nonsignatory
could be bound when standing in the shoes of a party, not as factually
analogous, (See Apex LLC v. Korusfood.com, supra, 222 Cal.App.4th at pp.
1017-1018 [nonsignatory bound by attorney fees provision because it was the
same entity as a contracting party].)
5
In the same order, the court denied Elusive’s motion to strike or tax
costs. That ruling is not at issue in this appeal.
8
DISCUSSION
Canterman contends the trial court erred in denying his motion for
attorney fees. He challenges the court’s findings that the action was not “on
a contract” and that there was no reciprocal right to fees. We agree that the
trial court erred as to both findings.
I. Legal Standards
“Each party to a lawsuit must pay his or her own attorney fees except
where a statute or contract provides otherwise.” (Cargill, Inc. v. Souza (2011)
201 Cal.App.4th 962, 966 (Cargill).) Attorney fees authorized by contract are
recoverable as costs by the party prevailing in the action. (Code Civ. Proc.,
§§ 1032, subd. (b), 1033.5, subd. (a)(10)(A); see also Scott Co. v. Blount, Inc.
(1999) 20 Cal.4th 1103, 1109.) Thus, in analyzing a request for contractual
attorney fees, the court must “‘determine whether the parties entered an
agreement for the payment of attorney fees, and if so, the scope of the
attorney fee agreement.’ [Citation.] This determination requires us to apply
traditional rules of contract interpretation.” (Mountain Air Enterprises, LLC
v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 752 (Mountain Air), citing
Santisas v. Goodin (1998) 17 Cal.4th 599, 608.)
On appeal, “a determination of the legal basis for an attorney fee award
is a question of law to be reviewed de novo.” (Mountain Air, supra, 3 Cal.5th
at p. 751; see also Cullen v. Corwin (2012) 206 Cal.App.4th 1074, 1078;
Cargill, supra, 201 Cal.App.4th at p. 966.) We interpret a contract de novo if
the interpretation does not turn on the credibility of extrinsic evidence. (City
of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238; Kalai v.
Gray (2003) 109 Cal.App.4th 768, 777.) To the extent the trial court resolved
a disputed factual issue, we determine whether substantial evidence supports
the court’s findings. (Cullen v. Corwin, supra, 206 Cal.App.4th at p. 1078;
Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 378.)
II. Action on a Contract
Canterman sought attorney fees as the prevailing party pursuant to
section 1717. Pursuant to section 1717, a prevailing party is entitled to
reasonable attorney fees incurred “[i]n 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
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or to the prevailing party.” The parties here do not dispute that Canterman
was the prevailing party in this action. At issue is whether Elusive’s action
was “on a contract” within the meaning of the statute. Elusive argues it was
not, asserting that its claims were for an easement rather than an action to
enforce the Agreement.
“California courts liberally construe the term ‘on a contract’ as used
within section 1717. As long as the action ‘involve[s]’ a contract it is ‘on [the]
contract’ within the meaning of [s]ection 1717.” (Blickman Turkus, LP v. MF
Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894 (Blickman),
quoting Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 455; see also
Care Constr., Inc. v. Century Convalescent Centers, Inc. (1976) 54 Cal.App.3d
701, 706 [“‘as long as the action here involved a contract it was “on a
contract” and within Civil Code, section 1717’”].)
“It is difficult to draw definitively from case law any general rule
regarding what actions and causes of action will be deemed to be ‘on a
contract’ for purposes of [section] 1717.” (Hyduke’s Valley Motors v. Lobel
Financial Corp. (2010) 189 Cal.App.4th 430, 435 (Hyduke’s).) “Among the
relevant factors are ‘the pleaded theories of recovery, the theories asserted
and the evidence produced at trial, if any, and also any additional evidence
submitted on the motion in order to identify the legal basis of the prevailing
party's recovery.’” (Ibid., quoting Boyd v. Oscar Fisher Co. (1989) 210
Cal.App.3d 368, 377; see also Mountain Air, supra, 3 Cal.5th at pp. 760–761
[courts may consider pleaded theories of recovery and the evidence produced
at trial to determine “whether a claim on which attorney fees are incurred is
within the scope of a fees provision”].) As summarized by the court in
Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th
230, 241–242, “An action (or cause of action) is ‘on a contract’ for purposes of
section 1717 if (1) the action . . . ‘involves’ an agreement, in the sense that the
action ... arises out of, is based upon, or relates to an agreement by seeking to
define or interpret its terms or to determine or enforce a party’s rights or
duties under the agreement, and (2) the agreement contains an attorney fees
clause.”
Elusive argues that the action is not on a contract because its claims
were for a prescriptive or equitable easement, and it “did not bring this action
10
to enforce the 2004 Agreement or allege a breach of it.” This reads the
requirements of section 1717 too narrowly. “In determining whether an
action is ‘on the contract’ under section 1717, the proper focus is not on the
nature of the remedy, but on the basis of the cause of action.” (Cussler v.
Crusader Entertainment, LLC (2012) 212 Cal.App.4th 356, 365–366 (Cussler),
quoting Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 347 (Kachlon).)
For example, a declaratory relief cause of action seeking interpretation of a
contract is “on the contract” within the meaning of the statute. (Cussler,
supra, 212 Cal.App.4th at p. 366, citing Kachlon, supra, 168 Cal.App.4th at p.
348; see also Milman v. Shukhat (1994) 22 Cal.App.4th 538, 545 [“section
1717 does apply, even though the relief sought by respondents was of a
declaratory nature”].)
Here, Elusive’s action involved the Agreement, as it sought to interpret
the agreement as part of a determination of its rights to the claimed
easement. Elusive’s contention that it “sought an easement without regard
to the terms of the 2004 Agreement” belies its own pleadings in this matter.
Elusive’s initial complaint and FAC referenced and attached the Agreement,
alleged that Elusive owned the easement pursuant to the Agreement, and
further alleged that the intent of the Agreement was to grant Elusive
“complete easement access.” Although Elusive altered its claims in the SAC
to allege on information and belief that the Agreement was void,6 Elusive
nevertheless continued to reference and attach the Agreement, and also
sought a judicial determination of Elusive’s “rights and duties with respect to
the Complete Easement Area.” After filing the SAC, Elusive’s counsel argued
that the Agreement was relevant to the lawsuit and gave Canterman “formal
notice” that Elusive was withdrawing its allegation that the Agreement was
void. In addition, the Agreement was introduced as an exhibit at trial and
Elusive’s counsel presented argument during trial regarding the intent of the
parties to the Agreement. Elusive’s claims thus sought the court’s
interpretation of the Agreement and findings regarding what the parties
6
To the extent this allegation was not later withdrawn, the court may
disregard any allegations inconsistent with prior pleadings. (See, e.g.,
Deveny v. Entropin, Inc. (2006)139 Cal.App.4th 408, 425, fn. omitted.)
11
intended when entering into that Agreement. As such, the action was “on a
contract” and the trial court erred in concluding to the contrary.
III. Nonsignatory’s Right to Fees
Canterman claims the trial court also erred in denying his motion for
attorney fees because he failed to show the right to recovery was reciprocal,
that is, that Elusive would have been entitled to recover fees had it prevailed
on its claims. “[I]n cases involving nonsignatories to a contract with an
attorney fee provision, . . . [a] party is entitled to recover its attorney fees
pursuant to a contractual provision only when the party would have been
liable for the fees of the opposing party if the opposing party had prevailed.”
(Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 451, quoting Real
Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 382
(Real Property); see also Sessions Payroll Management, Inc. v. Noble
Construction Co. (2000) 84 Cal.App.4th 671, 679 (Sessions).)
This rule is generally applied where one party is a signatory to a
contract but the other is not, in line with the reciprocity principals under
section 1717. (See Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128
[“Section 1717 was enacted to establish mutuality of remedy where [a]
contractual provision makes recovery of attorney's fees available for only one
party . . . and to prevent oppressive use of one-sided attorney’s fees
provisions.”]; see also ibid. [signatory plaintiff against nonsignatory
defendants; Real Property, supra, 25 Cal.App.4th at p. 379 [nonsignatory
plaintiff against signatory defendant].) Here, neither Canterman nor Elusive
were signatories to the Agreement. As such, the issue is not whether the
contract was one-sided, but whether as nonsignatories Canterman and
Elusive were included in the scope of the attorney fee provision.
A nonsignatory will be bound by an attorney fees provision in a
contract when the nonsignatory party “‘stands in the shoes of a party to the
contract.’” (Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 966, quoting
Blickman, supra, 162 Cal.App.4th 858, 897.) Canterman contends that he
and Elusive are bound by the Agreement as successors-in-interest. Elusive
counters that the attorney fee provision applies only to parties to the
Agreement.
12
As an initial matter, we reject Elusive’s contention that Canterman
forfeited this issue by failing to raise it below. Elusive’s assertion of
forfeiture is puzzling, as Elusive also recognizes that the trial court
considered and ruled on whether Elusive would be entitled to fees had it
prevailed. Moreover, Canterman specifically argued in his reply brief in
support of his motion for attorney fees that Elusive was bound by the
Agreement as a successor-in-interest and cited case law regarding the
mutuality requirement under section 1717.
Substantively, Elusive contends it would not have been entitled to
recover fees under the attorney fee provision of the Agreement because it “did
not allege any claims to enforce the 2004 Agreement or assert a breach of it.”
We have already concluded that the action was “on the contract” such that
Canterman could recover attorney fees pursuant to the Agreement; the same
conclusion would apply had Elusive prevailed. Moreover, the language of the
attorney fee provision itself does not exclude the type of action alleged here.
To the contrary, the broad provision allows fees for “any legal action or
proceeding arising out of or relating to this Agreement brought by either
party to this Agreement.”
Elusive also contends that the attorney fees provision does not apply
because neither Elusive nor Canterman are parties to the Agreement.
Canterman argues that he and Elusive stand in the shoes of Afurong and
Altmann, respectively, as successors-in-interest and owners of the relevant
properties. In granting judgment for Canterman, the trial court previously
found that Elusive was bound by the Agreement as Altmann’s successor.
This court did not disturb that finding in the prior appeal. Canterman also
points out that Elusive repeatedly alleged in all versions of its complaint that
Altmann and Afurong were the “predecessor[s]-in-interest” to the current
parties. Elusive also alleged that the intent of the Agreement was to grant
easement access “to the owner of [Elusive’s] Property,” and for the “Easement
Area . . . to benefit and burden the successor owners of both [properties] in
perpetuity.” Although Elusive now contends “there was no assignment or
assumption of contractual or other rights between Elusive and Altmann, or
between Afurong and Canterman,” this argument is not accompanied by any
citations to the record or supported by legal authority. We conclude that
13
Canterman has established that he and Elusive are bound by the Agreement.
Canterman may therefore recover attorney fees as the prevailing party on a
“legal action or proceeding arising out of or relating to th[e] Agreement,” as
set forth in the attorney fees clause.
Elusive’s reliance on Blickman and Sessions is misplaced. Both cases
involved attempts by a nonsignatory to recover attorney fees as a third party
beneficiary to the contract. In both instances, the court found that the
contract at issue did not reflect an intent to benefit the purported third party
beneficiary. (See Blickman, supra, 162 Cal.App.4th at p. 896; Sessions,
supra, 84 Cal.App.4th at p. 680.) Here, Canterman contends that he is
entitled to attorney fees (as Elusive would have been had it prevailed) as the
successor-in-interest to the Agreement. Moreover, the Agreement expressly
stated it was “binding on both parties hereto and for their respective benefit
and shall also be binding on the heirs, executors, administrators,
representatives, attorneys, counsel, successors, and the assigns of either
respective party hereto.”
We therefore conclude that Canterman established a right to attorney
fees under the Agreement as the prevailing party. The trial court erred in
denying his motion for attorney fees. We remand the matter so that the trial
court may determine the reasonableness of the fees Canterman seeks.
DISPOSITION
The order denying Canterman’s motion for attorney fees is reversed
and the matter is remanded for further proceedings. Canterman is entitled
to his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P.J.
We concur:
MORI, J. ZUKIN, J.
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