De Witte Mortgage Investors Fund v. Carradine CA2/1 ( 2024 )

Filed 1/8/24 De Witte Mortgage Investors Fund v. Carradine CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
DE WITTE MORTGAGE B322747
INVESTORS FUND, LLC,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 19STUD00909)
v. ORDER MODIFYING
OPINION AND DENYING
SANDRA WILL CARRADINE, REHEARING; NO CHANGE
IN JUDGMENT
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed on December 19, 2023,
be modified as follows:
1. On page 15, the first sentence of footnote 5 is modified to
read as follows:
At the time De Witte filed the unlawful detainer case,
the term of Carradine’s claimed three-year lease had not
yet expired.
2. The sentence commencing at the bottom of page 15,
line 23, with “There is” and ending at the top of page 16, line 2,
with “tactical maneuver” is modified to read as follows:
There is no evidence in the record that De Witte was
actually aware of Carradine’s occupancy and purported
lease when it filed the action and failed to name her as a
defendant as some sort of tactical maneuver.
There is no change in the judgment. Appellant Sandra Will
Carradine’s petition for rehearing is denied.
_________________________________________________________________
WEINGART, J. CHANEY, J. BENDIX, Acting P. J.
2
Filed 12/19/23 De Witte Mortgage Investors Fund v. Carradine CA2/1 (unmodified
opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
DE WITTE MORTGAGE B322747
INVESTORS FUND, LLC,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 19STUD00909)
v.
SANDRA WILL CARRADINE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Teresa Beaudet, Judge. Affirmed.
BASTA, Inc., Eric Post and Daniel J. Bramzon for
Defendant and Appellant.
Law Office of Shalom Rubanowitz, Shalom Rubanowitz;
Zarmi Law and David Zarmi for Plaintiff and Respondent.
____________________
INTRODUCTION
Respondent De Witte Mortgage Investors Fund, LLC (De
Witte)1 acquired a property in the City of Los Angeles through
foreclosure. De Witte filed an unlawful detainer action to obtain
possession and named as defendants former owners of the
property. Appellant Sandra Will Carradine was later added as a
defendant based on an alleged tenancy in the property pursuant
to a multi-year lease she had entered into with a prior owner. As
to Carradine, the unlawful detainer action ended in her favor
based on the court finding that De Witte’s notice to quit was
defective under applicable provisions of the Los Angeles
Municipal Code (LAMC).
Carradine then sought attorney’s fees from De Witte
premised on the lease she had entered with the former owner,
which provided for an award of attorney’s fees to the prevailing
party “[i]n any action or proceeding arising out of [the lease].”
The trial court denied the motion on several grounds, one of
which was that the unlawful detainer action was not based on the
lease.
Carradine now appeals. She raises multiple alleged errors
in the court’s order denying her fees; we find one issue dispositive
and thus address only it. Carradine argues the attorney’s fees
language in her lease encompassed the unlawful detainer
proceeding against her. We disagree. In the circumstances of
this particular case, the unlawful detainer action did not “aris[e]
1 In its appellate brief, respondent mistakenly identifies
itself as “De Witte Mortgage Investment Fund, Inc.” In its
complaint, respondent identified itself as “De Witte Mortgage
Investors Fund, LLC.”
2
out of” the lease as required by the contractual language. As a
result, Carradine’s claim for attorney’s fees fails, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Foreclosure, Notice to Quit, and Unlawful
Detainer Action
On October 1, 2018, De Witte acquired ownership of 2115
Kress Street (the Kress Street property) in Los Angeles through
foreclosure. On October 26, 2018, De Witte served a notice to
vacate and surrender possession, also known as a notice to quit,
by having it posted at the Kress Street property and sent by
certified mail to the property. The notice was addressed to
several prior owners of the property—one of whom was an
individual named Lee Wong—and also to “all other occupants in
possession” of the property. The notice indicated that any former
owners, and any individuals claiming an interest in the property
through a former owner, had three days to vacate; any tenant of
the former owner where a party to the deed of trust remained on
the property had 30 days to vacate; and any tenant of the former
owner “pursuant to a periodic tenancy or an expired lease” had 90
days to vacate. The notice did not specify any reason for the
termination of tenancies other than the sale of the property
following foreclosure.
On January 25, 2019, De Witte filed a complaint for
unlawful detainer against the parties listed on the notice to quit
as well as an additional limited liability company and “Doe”
defendants. On March 15, 2019, the clerk entered the default of
the named defendants at De Witte’s request. On March 18, 2019,
the court entered a default judgment in favor of De Witte against
the named defendants.
3
B. Carradine Joins the Unlawful Detainer Action
On April 4, 2019, after De Witte had caused a writ of
possession to be executed on the Kress Street property, Carradine
filed a claim of right of possession pursuant to Code of Civil
Procedure section 1174.3,2 alleging that she lived at the property
under a fixed-term lease she had entered with Wong before the
foreclosure. Carradine asserted that on May 1, 2018, she had
signed a three-year lease to rent the Kress Street property, which
is an approximately 750 square-foot residential single-family
home, and pre-paid rent of $43,200 for the first two years of the
lease term. After holding a hearing in April 2019, the court
granted Carradine’s claim and added her as a defendant in the
unlawful detainer action.
C. De Witte’s Motion for Summary Judgment
On October 24, 2019, De Witte filed a summary judgment
motion based on evidence that it had validly purchased the Kress
Street property at a foreclosure sale and had caused a notice to
quit to be served in accordance with section 1162. Anticipating
2 Unspecified statutory references are to the Code of Civil
Procedure. Section 1174.3 provides, in relevant part, “any
occupant not named in the judgment for possession who occupied
the premises on the date of the filing of the action may object to
enforcement of the judgment against that occupant by filing a
claim of right to possession as prescribed in this section.” (Id.,
subd. (a)(1).) If a claim of right to possession is properly
presented, section 1174.3 requires that a hearing be held at
which the parties can present evidence, and provides that, “The
court shall determine the claim to be invalid if the court
determines that the claimant is an invitee, licensee, guest, or
trespasser.” (Id., subd. (d).)
4
that Carradine would seek protection under section 1161b,
subdivision (b), which provides that, in the event of a foreclosure,
a tenant with “a fixed-term residential lease entered into before
transfer of title at the foreclosure sale shall have the right to
possession until the end of the lease term,” De Witte contended
that Carradine’s lease with Wong fell within exclusions set forth
in the statute for when “[t]he lease was not the result of an arms’
length transaction” and when “[t]he lease requires the receipt of
rent that is substantially less than fair market rent for the
property.” (§ 1161b, subd. (b)(3) & (4).) De Witte adduced
evidence which it contended showed that Wong “was not a true
owner of the [Kress Street p]roperty” and that the fair market
rental rate for the property was about twice the rate provided for
in the lease.
Carradine opposed the motion on five grounds. First, she
contended there was a triable issue whether the notice to quit
had been served as required by section 1162, averring that she
was at home the day the notice was allegedly posted but was not
personally served, did not see any posted notice, and did not
receive a copy later by mail. Second, she contended there were
triable issues whether the lease was an arms’ length transaction
(she claimed that she had no relationship with Wong prior to the
lease) and whether the rent she had agreed to pay was a fair
market rate (she claimed her rate “was a fair market rent in May
2018 for such a deteriorated property”). Third, she contended
that De Witte had violated federal law by failing to investigate
whether there was a tenant living at the Kress Street property
before seeking to obtain possession. Fourth, she contended there
was a triable issue whether she could invoke the affirmative
defense of retaliatory eviction based on complaints she had made
5
to the city “about . . . habitability defects in the property.” Fifth,
she contended a City of Los Angeles moratorium on “no fault”
evictions protected her.
On November 6, 2019, the trial court denied the motion,
finding there was a triable issue whether the notice to quit was
properly served. The court did not reach any of the other issues
raised by the parties.
D. Carradine’s Motion for Summary Judgment
On July 12, 2021, Carradine filed her own motion for
summary judgment contending (1) the LAMC prohibited tenant
evictions from foreclosed residential rental properties unless the
eviction was for one of 14 permissible reasons prescribed in the
LAMC, (2) the LAMC requires the notice to quit set forth the
permissible reason(s) for the eviction, and (3) the notice to quit on
which De Witte’s complaint was based did not list any
permissible reason to evict as required by the LAMC.
Carradine relied on former section 49.923 of the LAMC,
which had provided, “A landlord who obtains title through
[f]oreclosure to property containing [r]ental [u]nits may bring an
action to recover possession of a [r]ental [u]nit on the property
from a tenant whose tenancy commenced on or before the date
that the landlord obtained title, only upon the grounds set forth
3 Former Section 49.92 was within article 14.1 of the
LAMC, which was titled “Eviction of Tenants from Foreclosed
Residential Rental Properties.” The LAMC provided that article
14.1 “shall be in effect through December 31, 2020, unless the
City Council acts by ordinance to amend this Section to extend its
effective period.” (LAMC, former § 49.95.) There is no dispute
that the notice to quit and unlawful detainer complaint were filed
while article 14.1 was in force.
6
in Subdivision A. of Section 151.09 of this Code. To recover
possession of a [r]ental [u]nit from a tenant, the landlord must
comply with all of the requirements and provisions of Section
151.09 . . . .” (Ibid.) Pursuant to LAMC section 151.09, a tenant
can be evicted only for one of 14 listed reasons (id., subd. (A)) and
“[i]n any action to recover possession of a rental unit, the
landlord shall serve on the tenant a written notice setting forth
the reasons for the termination . . . .” (Id., subd. (C).)
On August 26, 2021, De Witte filed an opposition in which
it argued that it was not a “landlord” under the LAMC and thus
was not required to satisfy the LAMC notice requirements for
eviction. De Witte further contended that it had not received any
rent from Carradine, and that the lease had expired by its own
terms so that no further rent was due. De Witte also argued that
the court should strike Carradine’s amended answer (which
asserted the defense upon which her motion was premised)
because it was not verified, and that the LAMC provisions upon
which Carradine relied were inapplicable because they had
expired.
E. The Trial Court Enters Judgment for Carradine
On September 13, 2021, the trial court granted Carradine’s
summary judgment motion, concluding that De Witte’s notice to
quit did not comply with the LAMC and this was a “complete
defense” to the unlawful detainer action. The court rejected De
Witte’s argument that there was no evidence of an agreement
between itself and Carradine on the grounds that De Witte did
not dispute that Carradine had entered into a three-year lease on
7
or about May 1, 2018, and that, upon foreclosure, De Witte
became the landlord under the lease by operation of law.4
F. Carradine Seeks Attorney’s Fees
1. Carradine’s Motion for Attorney’s Fees
On November 29, 2021, Carradine moved for an award of
$50,152 in attorney’s fees under a clause in the lease providing
that “[i]n any action or proceeding arising out of this [lease
a]greement, the prevailing party between [the l]andlord and [the
t]enant shall be entitled to reasonable attorney fees and costs.”
Carradine contended that De Witte became bound by the lease
upon taking ownership of the Kress Street property. Carradine
further contended, “Since [De Witte] ‘stands in the shoes’ of the
preceding landlord, [De Witte]’s action sought a judicial
determination that the lease agreement is either forfeited or
terminated due to the foreclosure. This action therefore ‘ar[ose]
from the agreement.’ ” Carradine submitted the lease as an
exhibit to a declaration from her attorney, Eric Post.
Carradine only sought attorney’s fees attributable to work
performed by Post beginning in April 2021, when Post took the
case over from another attorney at his firm. Post averred that he
spent 74.3 hours on the case and itemized his billing entries.
Post further averred that the prevailing market hourly billing
rate for an attorney with his experience and qualifications was
$450.
4 The court entered judgment in Carradine’s favor on
September 28, 2021, and De Witte appealed. We affirmed the
judgment on May 24, 2023. (De Witte Mortgage Investors Fund,
LLC v. Carradine (May 24, 2023, B317957) [nonpub. opn.].)
8
Based on the 74.3 hours worked by Post and a billing rate
of $450 an hour, Carradine contended that she had incurred
$33,435 in attorney’s fees. She sought to multiply that amount
by one and a half “to compensate counsel for the risks [counsel]
took by taking the case on a modified contingency and for the
skill and quality in the representation.”
2. De Witte’s Opposition
De Witte opposed the motion, arguing that its unlawful
detainer action did not arise from the lease, and that its notice to
quit did not rely on any lease terms and was not directed to any
tenants holding over under a fixed-term lease. It pointed out the
case was resolved based on a finding that the notice to quit was
defective because it did not identify a ground for eviction allowed
under the LAMC.
De Witte further argued the trial court had “never
determined that Carradine was a bona [f]ide [t]enant,” nor “that
the purported [l]ease between W[ong] and Carradine was valid.”
De Witte noted that there was a separate lawsuit among itself,
Carradine, and the former owners of the Kress Street property,
and it attached a copy of a cross-complaint it had filed in that
action against Carradine which, among other things, challenged
the validity of the lease. De Witte also contended that, even if it
was bound by the lease, it was not bound by all provisions in the
agreement, only those necessary to protect tenants from eviction.
Lastly, De Witte challenged the reasonableness of the proposed
billing rate, multiplier, and hours incurred on grounds not
relevant to this appeal.
3. Carradine’s Reply
In her reply, Carradine argued, in part, that the validity of
her lease with Wong “was implicitly litigated as part of” her
9
motion for summary judgment. Carradine further argued that
De Witte had not proven the lease was invalid and had forfeited
any challenge to the lease by failing to dispute the existence of
the lease in opposing Carradine’s motion for summary judgment.
Carradine contended that, under the express language of section
1161b, subdivision (b), “all rights and obligations under the lease
shall survive foreclosure,” which would include the lease’s
attorney’s fees clause.
4. The Trial Court’s Tentative Ruling and Request for
Further Briefing
Prior to the hearing on the motion, the trial court issued a
tentative ruling that Carradine was not entitled to attorney’s fees
because the unlawful detainer action was not premised on the
lease. The tentative ruling also stated, “for purposes of this
motion, the validity of the purported [l]ease [a]greement has
never been established in this case,” and “The declaration from
[Carradine’s] counsel is not competent to establish the existence,
let alone the validity of the purported [l]ease [a]greement because
he has no personal knowledge thereof.”
At the hearing, the court deferred ruling. It instead
requested further briefing regarding whether its earlier orders
and/or judicial admissions by De Witte established the existence
and validity of the lease, and whether the court’s tentative ruling
to exclude the lease for purposes of the attorney’s fees motion was
correct.
5. The Parties’ Supplemental Briefing
Carradine’s supplemental brief pointed out that the court,
in ruling on her claim of right to possession, had admitted the
lease without objection and concluded that “[Carradine] showed
by a preponderance of the evidence that she had a valid claim of
10
right to possession based on her lease with the prior owner.”
Second, Carradine argued that, by stating in her attorney’s fees
motion that it was based on “the [c]ourt’s file,” she had
incorporated by reference her earlier declarations authenticating
the lease. She noted that she had submitted the lease in support
of her successful motion for summary judgment, and the court
had overruled De Witte’s objection to the lease. Third, Carradine
contended that, due to the court’s earlier finding on Carradine’s
claim of right to possession, De Witte had the burden to show the
invalidity of the lease and had failed to present evidence to
support such a conclusion.
De Witte’s supplemental brief argued that the court’s
earlier ruling allowing Carradine to assert a right to possession
only adjudged that Carradine had established a “colorable” right
to possession (bold omitted), citing Crescent Capital Holdings,
LLC v. Motiv8 Investments, LLC (2022) 75 Cal.App.5th Supp. 1,
4, and nothing more. De Witte also argued that, although it did
not contest admissibility of the lease, it never conceded that the
lease was valid and instead consistently asserted the lease was
not valid or enforceable under section 1161b, subdivision (b).
Lastly, De Witte submitted a judgment and trial transcript from
the separate lawsuit in which the court found that Wong had
intentionally and negligently interfered with De Witte’s loan
contracts by entering into the lease with Carradine, and was
obligated to disgorge all money Wong took as rent.
In her reply brief, Carradine contended the judgment
against Wong had no res judicata or collateral estoppel effect, and
argued the finding that Wong acted tortiously in entering the
lease did not mean that the lease was invalid or that Carradine
11
had acted inappropriately. Carradine also objected on various
grounds to the evidence regarding the judgment against Wong.
6. The Trial Court’s Ruling
On July 28, 2022, the court held a further hearing and
denied Carradine’s attorney’s fees motion. The court concluded
that Carradine had failed to support her motion with competent
evidence of the existence and validity of the lease. In so
concluding, the court noted that Carradine’s attempt to introduce
the lease through her counsel’s declaration lacked foundation,
because her counsel had no personal knowledge regarding the
lease. The court also rejected Carradine’s reliance on the
statement in the motion that it was based on “the [c]ourt’s file,”
because Carradine did not reference any specific document(s) in
the file, which distinguished her case from the authority on which
Carradine relied.
The court additionally concluded that De Witte’s unlawful
detainer complaint did not mention the lease and the action
“[wa]s not an action to enforce or avoid enforcement [of the
lease].”
Carradine timely appealed.
DISCUSSION
Carradine contends that the trial court erred in (1) ruling
that she could not recover attorney’s fees under the clause in the
lease because De Witte’s unlawful detainer action was not
premised on the lease, and (2) finding that Carradine had not
submitted competent evidence of the existence and validity of the
lease. For the reasons we explain below, we reject Carradine’s
first contention, which is dispositive of her appeal. Because the
attorney’s fees clause in Carradine’s alleged lease did not apply to
12
De Witte’s unlawful detainer action, we need not decide, and
therefore do not address, whether the trial court erred in
concluding that Carradine failed to support her motion with
competent evidence of the existence and validity of the lease.
A. Standard of Review
“ ‘[I]t is a discretionary trial court decision on the propriety
or amount of statutory attorney fees to be awarded, but a
determination of the legal basis for an attorney fee award is a
question of law to be reviewed de novo.’ ” (Mountain Air
Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th
744, 751.)
“The normal rules of appellate review apply to an order
granting or denying attorney fees; i.e., the order is presumed
correct, all intendments and presumptions are indulged to
support the order, conflicts in the evidence are resolved in favor
of the prevailing party, and the trial court’s resolution of factual
disputes is conclusive.” (Apex LLC v. Korusfood.com (2013) 222
Cal.App.4th 1010, 1017.)
Finally, “It is the ruling, and not the reason for the ruling,
that is reviewed on appeal.” (Muller v. Fresno Community
Hospital & Medical Center (2009) 172 Cal.App.4th 887, 906-907.)
B. The Attorney’s Fees Clause Did Not Encompass De
Witte’s Unlawful Detainer Action
“Under the American rule, each party to a lawsuit
ordinarily pays its own attorney fees. [Citation.] . . . [S]ection
1021, which codifies this rule, provides: ‘Except as attorney’s fees
are specifically provided for by statute, the measure and mode of
compensation of attorneys and counselors at law is left to the
agreement, express or implied, of the parties . . . .’ In other
words, section 1021 permits parties to ‘ “contract out” of the
13
American rule’ by executing an agreement that allocates attorney
fees. [Citations.]” (Mountain Air Enterprises, LLC v. Sundowner
Towers, LLC, supra, 3 Cal.5th at p. 751.)
The attorney’s fees clause in the lease at issue provides, in
relevant part, “[i]n any action or proceeding arising out of this
[lease a]greement, the prevailing party between [the l]andlord
and [the t]enant shall be entitled to reasonable attorney fees and
costs.” “ ‘Under statutory rules of contract interpretation, the
mutual intention of the parties at the time the contract is formed
governs interpretation [of the lease’s attorney fees provision].
(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.]’
[Citation.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.)
As De Witte’s unlawful detainer lawsuit indisputably
qualifies as an “action” or “proceeding” as those terms are used in
the attorney’s fees clause, the determinative issue is whether the
unlawful detainer action “ar[o]s[e] out of” the lease. We have
addressed the meaning of “ ‘arising out of’ ” in the analogous
context of arbitration clauses that provided for arbitration of
“ ‘any controversy between the parties arising out of’ ” an
agreement. (Rice v. Downs (2016) 248 Cal.App.4th 175, 180.)
After surveying the caselaw, we found that “provisions using only
phrases such as ‘arising out of’ or ‘ “arising from” ’ . . . extended
only to disputes relating to the interpretation and performance of
14
the agreement [citations].” (Id. at p. 189.) We thus concluded,
“the parties intended the arbitration provision to apply to a very
limited range of controversies, not ones merely connected with
the . . . agreements or transactions contemplated by those
agreements and certainly not all controversies between them.”
(Id. at p. 190.) Such language stands in contrast to broader
“ ‘language such as “any claim arising from or related to this
agreement” ’ [citation] or ‘ “arising in connection with” the
agreement’ [citation].” (Id. at p. 186.)
Applying that test, De Witte’s unlawful detainer action did
not “aris[e] out of” Carradine’s alleged lease. The action was not
premised in any way on the interpretation of the lease’s terms or
the performance of the lease. De Witte sought in its complaint to
recover possession of the property pursuant to a statute (section
1161a, subdivision (b)(3)) by virtue of obtaining title to the
property through a foreclosure sale and serving a notice to quit
which did not address any tenant in possession under an
unexpired fixed-term lease.5 De Witte named as defendants the
prior owners of the property, and alleged that there was “no
landlord/tenant relationship” between itself and those prior
owners. It did not name Carradine as a defendant because it was
evidently unaware that Carradine was occupying the property
and claimed to have entered a fixed-term lease with Wong. There
is no evidence that De Witte was actually aware of Carradine’s
5 At the time De Witte filed the unlawful detainer case, the
term of Carradine’s lease had not yet expired. By the time
Carradine filed her summary judgment motion (the portion of the
action for which Carradine seeks attorney’s fees), her lease had
expired.
15
occupancy and purported lease when it filed the action and failed
to name her as a defendant as some sort of tactical maneuver.
Although Carradine eventually became a defendant
through her claim of right to possession, that later fact does not
bear on the circumstances under which the unlawful detainer
action initially arose. Nor, after Carradine became a defendant,
did the proceedings at issue then arise out of the lease. De Witte
continued to assert its right of possession was independent of any
alleged lease. The motion for summary judgment upon which
Carradine ultimately prevailed (and for which she seeks to
recover attorney’s fees) was premised on the claim that De
Witte’s notice to quit was defective under the provisions of the
LAMC, not on any claim by Carradine that she was entitled to
possession of the Kress Street property under the lease or other
issues concerning the interpretation or performance of the lease.
Indeed, by the time of her summary judgment motion, the three-
year purported lease term she claimed had expired.
Presumably in light of these facts, Carradine acknowledges
that “the [unlawful detainer] action was not based on anything
related to the [lease].” She instead contends that the unlawful
detainer sounded in tort rather than in contract (Fragomeno v.
Insurance Co. of the West (1989) 207 Cal.App.3d 822, 830-831
[unlawful detainer action arises in tort when based upon a civil
wrong such as possession of property by a holdover tenant],
disapproved on other grounds in Vandenberg v. Superior Court
(1999) 21 Cal.4th 815, 841 & fn. 13), and that the attorney’s fees
clause at issue is broad enough to apply to those tort claims. But
the tort remedies sought here did not involve the interpretation
or performance of the lease. Although the language of a
contractual attorney’s fees clause can be broad enough to apply to
16
related tort actions (see, e.g., Santisas v. Goodin, supra, 17
Cal.4th at p. 608 [“If a contractual attorney fee provision is
phrased broadly enough . . . , it may support an award of attorney
fees to the prevailing party in an action alleging both contract
and tort claims”]), the provision’s language must be broad enough
to encompass the specific claims at issue.
De Witte’s action sought possession of the property
independent of any lease, and holdover damages independent of
any rent purportedly due under the lease. Those tort remedies
therefore did not arise from the lease. Carradine did not claim a
right to remain on the property because of any lease; she claimed
De Witte failed to comply with LAMC provisions prerequisite to
her being ordered off the property by way of an expedited
unlawful detainer proceeding. Carradine was granted summary
judgment because De Witte’s notice to quit did not comply with
the LAMC, and not because of any provisions in the lease. Thus,
her defenses did not arise from the prior lease. Nothing in the
unlawful detainer action, and certainly not Carradine’s motion
for summary judgment for which she sought fees, involved the
interpretation or enforcement of the lease. Thus, regardless of
whether it sounded in tort, the unlawful detainer action did not
arise out of the lease as was required for the attorney’s fee clause
to apply.
Carradine presents no persuasive authority to the contrary
indicating that the unlawful detainer action “ar[o]s[e] out of” the
lease. Two of her cited cases involve distinguishable tort claims
that did in fact arise out of the agreement containing the
attorney’s fees provision. (Johnson v. Siegel (2000) 84
Cal.App.4th 1087, 1101 [claims for recission of real estate
purchase agreement and damages based on fraud and negligent
17
misrepresentation to induce the plaintiffs to enter into the
contract]; Xuereb v. Marcus & Millichap, Inc. (1992) 3
Cal.App.4th 1338, 1341, 1343-1344 [causes of action for
negligence, breach of fiduciary duty, concealment, and
misrepresentation based on the defendants’ alleged failure to
properly conduct an inspection and other actions required in a
purchase agreement].)6 Two others involve much broader
attorney’s fees provisions that applied, in one case, “ ‘[i]n the
event legal action is instituted by . . . any party to this
agreement’ ” (Santisas v. Goodin, supra, 17 Cal.4th at p. 603),
and in the other, not just to any action arising out of the lease but
also to “ ‘any action aris[ing] out of the [h]omeowner’s tenancy’ ”
(Hemphill v. Wright Family, LLC (2015) 234 Cal.App.4th 911,
914). The remaining two cases involve parties who did not
dispute the attorney’s fees provision applied to the tort claims at
issue. (Drybread v. Chipain Chiropractic Corp. (2007) 151
Cal.App.4th 1063, 1072 [the landlord did not argue the attorney’s
fees clause did not apply to the unlawful detainer action, but
instead that the landlord’s voluntary dismissal of that action
meant there was no prevailing party entitled to fees]; Wakefield
v. Bohlin (2006) 145 Cal.App.4th 963, 973 [both parties agreed
the attorney’s fees provision covered the claims at issue],
disapproved on another ground in Goodman v. Lozano (2010) 47
6 We also find Xuereb unpersuasive to the extent it
suggests that a claim arises out of an agreement if, but for the
agreement, there would have been no litigated controversy.
(Xuereb v. Marcus & Millichap, Inc., supra, 3 Cal.App.4th at
pp. 1343-1344.) In Rice, we rejected “such a simplistic, sweeping”
interpretation of the phrase “aris[ing] out of.” (Rice v. Downs,
supra, 248 Cal.App.4th at pp. 192-193.)
18
Cal.4th 1327, 1330.) Cases are not authority for “an issue not
presented by [their] own particular facts.” (McConnell v.
Advantest America, Inc. (2023) 92 Cal.App.5th 596, 611.)
DISPOSITION
The trial court’s order denying Carradine’s motion for
attorney’s fees is affirmed. De Witte is awarded its costs on
appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
19