Smith v. Guillosson CA2/2 ( 2024 )

Filed 1/30/24 Smith v. Guillosson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
GREGORY EDWARD SMITH, B322717
Plaintiff, Cross-defendant (Los Angeles County
and Appellant, Super. Ct. No.
19STCV33506)
v.
JEAN-CLAUDE GUILLOSSON
et al.,
Defendants, Cross-
complainants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Malcolm H. Mackey, Judge. Affirmed.
Gavrilov & Brooks, Bradley E. Jewett and Michael
Coleman for Plaintiff, Cross-defendant and Appellant.
Law Offices of Robert F. Rubin and Robert F. Rubin for
Defendants, Cross-complainants and Respondents.
______________________________
After prevailing on his own claims and successfully
defending the cross-claims of respondents Jean-Claude
Guillosson and Maureen Mansfield-Guillosson (the Guillossons),
appellant Gregory Edward Smith (Smith) moved for attorney
fees. The trial court denied the motion, and Smith appeals.
Because Smith has not established a basis for an award of
attorney fees, we affirm the court’s order.
BACKGROUND
I. The Properties and the Easements
This case involves two adjacent residential properties in
the Hollywood Hills—one owned by Smith and one owned by the
Guillossons. Each property is subject to and benefits from an
easement, which the parties refer to as the patio easement and
the walkway easement.
As is relevant to the issues in this appeal, the patio
easement provides that Smith “agrees to pay for any and all
damage or damages including costs and expenses of defense
which may occur to the real property.” Similarly, the walkway
easement provides, in relevant part, that the Guillossons “agree[]
to hold and save [Smith] harmless from any and all claims,
liability and damages including costs and expenses of defense”
arising from the use of the easement.1
II. The Underlying Litigation
When a dispute arose over the use of the easements, Smith
sued the Guillossons. The Guillossons filed a cross-action against
Smith.
1 There appears to be no dispute between the parties that
they are bound by the easements and that the claims and cross-
claims all arise from the rights and obligations imposed by the
easements.
2
A bench trial took place in July and August 2021. Smith
prevailed on each of his claims and the cross-claims against him.
In October 2021, the trial court entered judgment in Smith’s
favor.
III. Smith’s Motion for Attorney Fees
In December 2021, Smith filed a motion seeking $502,155
in attorney fees2 from the Guillossons pursuant to Civil Code
section 1717 and Code of Civil Procedure sections 1021, 1032, and
1033.5. Smith argued, inter alia, that the language of the
easements, to which he and the Guillossons were bound, entitled
him to prevailing party attorney fees. The Guillossons opposed
the motion.
IV. Trial Court Orders
The trial court heard Smith’s attorney fees motion on
March 30, 2022.3 The court initially granted the motion,
awarding Smith $462,714 in attorney fees. Later that day,
however, the court issued a minute order explaining that, “[u]pon
further consideration of the documents and argument from . . .
[the] hearing,” it would “set[] the matter for further
hearing/reconsideration” and permit additional briefing from the
parties.
After issuing a tentative ruling to deny Smith’s motion for
attorney fees, the trial court heard further argument on April 14,
2 The amount of fees sought included a $28,020 credit for
monetary sanctions that were previously awarded to Smith
against the Guillossons.
3 We were not provided reporter’s transcripts of the
March 30, 2022, hearing, or of the subsequent April 14, 2022, and
June 10, 2022, hearings.
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2022. The court continued the matter and permitted the parties
to submit another round of briefing.
The trial court held another hearing on June 10, 2022, at
which it vacated its March 30, 2022, order granting Smith’s
motion for attorney fees and, instead, denied the motion in its
entirety. The court concluded that “there is no authorized basis
for recovering any attorney[] fees[.]” It “interpret[ed] the subject
provisions [of the easements] to authorize indemnity-type relief,
not attorney fees.”
V. Appeal
Smith filed a timely notice of appeal from the trial court’s
June 10, 2022, order denying his motion for attorney fees.
DISCUSSION
Under the American rule, which California follows, each
party to civil litigation must ordinarily pay its own attorney fees.
(Trope v. Katz (1995) 11 Cal.4th 274, 278 (Trope).) Code of Civil
Procedure section 1021, however, “gives individuals a rather
broad right to ‘contract out’ of the American rule by executing” an
agreement allocating attorney fees. (Trope, supra, at p. 279.)
That agreement may be “express or implied[.]” (Code Civ. Proc.,
§ 1021.)
Smith contends that, as the prevailing party, he has a
contractually based right to recover his attorney fees under the
terms of the easements.
I. Standard of Review
To determine whether Smith is entitled to attorney fees, we
must interpret the language of the easements. We do so de novo.
(See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865
[“It is . . . solely a judicial function to interpret a written
instrument unless the interpretation turns upon the credibility of
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extrinsic evidence”]; Gil v. Mansano (2004) 121 Cal.App.4th 739,
743 [“If the parties do not present extrinsic evidence to interpret
the attorney fee provision of a contract, the appellate court
determines de novo whether the contractual attorney fee
provision entitles the prevailing party to attorney fees”].)
II. Rules of Construction
We apply settled rules applicable to contracts when
interpreting the terms of the easements. (See Laux v. Freed
(1960) 53 Cal.2d 512, 522–523 [“‘[T]he rules applicable to the
construction of deeds generally apply with full force and effect to
instruments conveying easements or other similar rights or
privileges[]’”]; Pear v. City and County of San Francisco (2021)
67 Cal.App.5th 61, 70 [“Deeds are interpreted in the same
manner as contracts”]; see also Christian v. Flora (2008)
164 Cal.App.4th 539, 551 [“Contracts, in turn are writings to be
construed in accordance with substantially the same canons of
interpretation as statutes”].)
Our “fundamental goal . . . is to give effect to the mutual
intention of the parties.” (Bank of the West v. Superior Court
(1992) 2 Cal.4th 1254, 1264.) “Such intent is to be inferred, if
possible, solely from the written provisions of the contract.
[Citation.] 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’ [citation], controls judicial interpretation.” (AIU
Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 822.)
“Interpretive constructions which render some words
surplusage, defy common sense, or lead to mischief or absurdity,
are to be avoided. [Citations.]” (California Mfrs. Assn. v. Public
Utilities Com. (1979) 24 Cal.3d 836, 844.)
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III. Analysis
The easements do not contain the term “attorney fees” or
any variation of that term. Smith nevertheless contends that
both easements “provide in express and implied terms reciprocal
attorney[] fee provisions . . . .” (Bolding omitted.) In support, he
points to the language in the easements providing for “costs and
expenses of defense” arising from the rights granted or reserved
by the easements.4 Smith argues that the term “expenses of
defense” must mean “attorney fees.”
We cannot agree with Smith’s interpretation.
First, it is well-established that, “[i]n the absence of some
specific provision of law otherwise, attorney fees and the
expenses of litigation, whether termed costs, disbursements,
outlays, or something else, are mutually exclusive, that is,
attorney fees do not include such costs and costs do not include
attorney fees. [Citations.]” (Ripley v. Pappadopoulos (1994)
23 Cal.App.4th 1616, 1626 (Ripley); accord, People v. United
States Fire Ins. Co. (2012) 210 Cal.App.4th 1423, 1428; Hsu v.
Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1342.)
Smith’s appellate briefs fail to grapple with this relevant
authority and, tellingly, he cites no case that has equated the
term “expenses of defense” with attorney fees. (See Cal. Rules of
Court, rule 8.204(a)(1)(B) [appellate briefs must “support each
point by argument and, if possible, by citation of authority”]; Abir
Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882,
888 [“We are troubled by . . . [the appellants’] failure to cite . . .
4 We need not delve into the differences between the
language used in the patio easement and the walkway easement.
Suffice it to say that both include the phrase “costs and expenses
of defense.”
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directly applicable contrary authority anywhere in their briefs”].)
Given “the clear distinction that has always been drawn between
attorney fees and the expenses of litigation” (Ripley, supra, at
p. 1626), we reject the contention that the easements contain
express attorney fee provisions.
Second, we are unconvinced that “expenses of defense” is
an implied attorney fee provision. “Implied terms are not favored
in the law, and should be read into contracts only upon grounds
of obvious necessity. [Citation.] A court may find an implied
contract provision only if[:] (1) the implication either arises from
the contract’s express language or is indispensable to effectuating
the parties’ intentions; (2) it appears that the implied term was
so clearly within the parties’ contemplation when they drafted
the contract that they did not feel the need to express it; (3) legal
necessity justifies the implication; (4) the implication would have
been expressed if the need to do so had been called to the parties’
attention; and (5) the contract does not already address
completely the subject of the implication. [Citations.]” (In re
Marriage of Corona (2009) 172 Cal.App.4th 1205, 1222.)
Smith asserts, in conclusory fashion, that all of these
criteria are satisfied here. But, he offers no extrinsic evidence to
support his contention that the easements’ drafters intended the
phrase “expenses of defense” to include attorney fees. Instead,
his assertion rests entirely on the canon against surplusage. (See
Black’s Law Dict. (11th ed. 2019), p. 1745 [defining “surplusage
canon” as “[t]he doctrine that, if possible, every word and every
provision in a legal instrument is to be given effect”].)
We disagree with Smith that, unless “expenses of defense”
is construed to mean attorney fees, the phrase “costs and
expenses of defense” is necessarily surplusage. It is possible that
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the drafters of the easements intended to distinguish between
and contract for the recovery of both statutorily “allowable” costs
(Code Civ. Proc., § 1033.5, subd. (a)) and other litigation expenses
“not allowable as costs” such as investigation expenses (Code Civ.
Proc., § 1033.5, subd. (b)).
But even if excluding attorney fees renders the phrase
“costs and expenses of defense” surplusage, “[t]he canon against
surplusage is not absolute. [Citations.]” (Sturgeon v. County of
Los Angeles (2015) 242 Cal.App.4th 1437, 1448.) “Canons of
construction need not be conclusive and are often countered, of
course, by some maxim pointing in a different direction.” (Circuit
City Stores, Inc. v. Adams (2001) 532 U.S. 105, 115.) We may
“not rewrite any provision of any contract . . . for any purpose”
(Certain Underwriters at Lloyd’s of London v. Superior Court
(2001) 24 Cal.4th 945, 968) and will not equate “expenses of
defense” with attorney fees simply to avoid some possible
redundancy in the easements.
Because the easements do not contain express or implied
attorney fee provisions, it follows that we reject Smith’s
alternative argument that he is entitled to attorney fees under
Civil Code section 1717. “Civil Code section 1717 . . . only comes
into play where a contract specifically provides for attorney fees.
‘The primary purpose of [Civil Code] section 1717 is to ensure
mutuality of remedy for attorney fee claims under contractual
attorney fee provisions.’ [Citation.] It cannot be bootstrapped to
provide for attorney fees for breach of a contract that has no
attorney fees provision.” (Khajavi v. Feather River Anesthesia
Medical Group (2000) 84 Cal.App.4th 32, 63, fn. 16 (Khajavi).)
With no statutory or contractual basis for attorney fees,
Smith’s motion was properly denied. (See Khajavi, supra,8
84 Cal.App.4th at p. 62 [“‘In the absence of a statute authorizing
attorneys’ fees as an element of damages, or of a contract to pay
such fees in event of the party’s recovery, attorneys’ fees paid by
a successful party in an action are never recoverable against the
unsuccessful party[]’”].)
All other issues are moot.
DISPOSITION
The order denying Smith’s motion for attorney fees is
affirmed. The Guillossons are entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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