Canal-Randolph Anaheim, Inc. v. Wilkoski

• Decision Date: 09 March 1978
• Docket Number: CANAL-RANDOLPH
• Citation: 144 Cal.Rptr. 474,78 Cal.App.3d 477
• Court: California Court of Appeals Court of Appeals
• Parties: ANAHEIM, INC., a California Corporation, Plaintiff and Appellant, v. John Patrick MOORE et al., Defendants and Respondents. Civ. 17688.

Page 474

144 Cal.Rptr. 474

78 Cal.App.3d 477

CANAL-RANDOLPH ANAHEIM, INC., a California Corporation, Plaintiff and Appellant, v. John Patrick MOORE et al., Defendants and Respondents.

Civ. 17688.

Court of Appeal, Fourth District, Division 2, California.

March 9, 1978.

KAUFMAN, Acting Presiding Justice.

Respondents have filed petitions for rehearing making several new contentions and citing several additional authorities. While we do not ordinarily consider arguments and authorities cited for the first time in a petition for rehearing, we deem it appropriate to do so in this instance.

Respondents' suggestion we should not have passed upon the propriety of the attorney fee awards because appellant did not complain thereof is both mistaken and unsound. Appellant appealed from the entire judgment of which the attorney fee awards are a part. Appellant complained expressly in both its opening and closing briefs that Wilkoski should not have been awarded attorney fees in view of his disavowal of the Maher lease. The propriety of both attorney fee awards was inquired into and argued at oral argument. In any event, a determination of the rights of the parties to recovery of attorney fees is necessary to a resolution of the dispute between the parties, and this court has the inherent power to decide any issue deemed necessary for a proper disposition of the case whether or not it was originally presented or briefed by the parties. (Philbrook v. Randall, 195 Cal. 95, 104-105, 231 P. 739; Schubert v. Lowe, 193 Cal. 291, 294, 223 P. 550; Burns v. Ross, 190 Cal. 269, 276, 212 P. 17.)

Although that was not their position at oral argument, respondents now urge that under the language of the attorney fee provision in the Maher lease they were not required to be a party to the lease to recover attorney fees, that the trial court so found and that we are bound by this finding. Respondents are wrong on all counts.

The trial court made no such express finding nor even an express conclusion to this effect. However, assuming that such a finding or conclusion may be inferred, it is patently incorrect and we are not bound by it.

The argument respondents now make is based entirely on the language of the provision. In the absence of conflicting extrinsic evidence, the interpretation of the language of a writing is a question of law upon which the reviewing court is required to exercise its independent judgment. (Estate of Dodge, 6 Cal.3d 311, 318, 98 Cal.Rptr. 801, 491 P.2d 385; Parsons v. Bristol Development Co., 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839.) The interpretation made by the trial court is not binding on the reviewing court even if it is reasonable and based on conflicting inferences from extrinsic evidence if the extrinsic evidence is not in conflict. (Estate of Dodge, supra.)

The attorney fee provision in the Maher lease reads in pertinent part: "In the event of any litigation between Tenant and Lessor to enforce any provision of this Lease or any right of either party hereto, the unsuccessful party to such litigation shall pay to the successful party all costs and expenses including reasonable attorney's fees, incurred therein." (Emphasis added.) Respondents urge the words "to such litigation" indicate the provision means that in any litigation between the tenant and the lessor, the successful party shall recover attorney fees whether he is a party to the lease or not. Not so. The quoted language is a garden variety attorney fee provision and indicates no intention of conferring the right to recover attorney fees on persons not a party to the lease. The words, "the unsuccessful party to such litigation" and "the successful party" both refer back to their antecedents, "either party hereto," and "Tenant and Lessor." If "the unsuccessful party to such litigation" is interpreted as referring to a person not a party to the lease, an absurdity results; the parties to the lease would be attempting to bind a person not a party to the lease to pay attorney fees. The interpretation urged by respondents is patently incorrect.

Respondents do quite properly call to our attention the By the Court opinion of this court in Care Constr., Inc. v. Century Convalescent Centers, Inc., 54 Cal.App.3d 701, 126 Cal.Rptr. 761, in which Babcock v. Omansky, 31 Cal.App.3d 625, 107 Cal.Rptr. 512 is cited as additional support for the decision. In our opinion in the case at bench, of course, we disagreed with Babcock v. Omansky insofar as it indicated one who is not a party to a contract may recover attorney fees pursuant to the contract under Civil Code section 1717.

In the Care Construction case the parties to the litigation were both parties to the lease which contained the attorney fee provision. The problem was that the lessee prevailed in the litigation on the basis there was no enforceable lease. The question was whether a party to a lease containing a unilateral attorney fee provision may recover attorney fees under Civil Code section 1717 if he succeeds in defending on...