Frog Creek Partners, LLC v. Vance Brown, Inc., A129651.

CourtCalifornia Court of Appeals
Citation206 Cal.App.4th 515,141 Cal.Rptr.3d 834
Decision Date24 May 2012
Docket NumberNo. A129651.,A129651.
Parties FROG CREEK PARTNERS, LLC, Plaintiff, Cross-defendant, and Respondent, v. VANCE BROWN, INC., Defendant, Cross-complainant, and Appellant.

206 Cal.App.4th 515
141 Cal.Rptr.3d 834

FROG CREEK PARTNERS, LLC, Plaintiff, Cross-defendant, and Respondent,
VANCE BROWN, INC., Defendant, Cross-complainant, and Appellant.

No. A129651.

Court of Appeal, First District, Division 5, California.

May 24, 2012.

141 Cal.Rptr.3d 836

Sedgwick, Detert, Moran & Arnold LLP, Sedgwick LLP, San Francisco, and Gregg N. Dulik ; Miller Shakman & Beem LLP and Stuart M. Widman (pro hac vice); attorneys for Defendant, Cross-complainant and Appellant.

Ropers, Majeski, Kohn & Bentley, Redwood City, Susan H. Handelman and Terry Anastassiou, attorneys for Plaintiff, Cross-defendant and Respondent.

SIMONS, Acting P.J.

206 Cal.App.4th 520

Two parties enter into a contract with an arbitration clause and a separate attorney fee provision. A dispute arises, a lawsuit is filed, and the defendant petitions to compel arbitration. Under Civil Code section 1717, if the plaintiff defeats that petition, is it entitled to recover attorney fees, even if the plaintiff ultimately loses the substantive contractual dispute? This court considered an analogous question in Green v. Mt. Diablo Hospital Dist. (1989) 207 Cal.App.3d 63 [254 Cal.Rptr. 689] (Green ). There, albeit with relatively little discussion, we held that a party's request for Civil Code section 1717 attorney fees for defeating a petition to compel arbitration filed in a pending lawsuit was "premature." (Green, at pp. 76–77, 254 Cal.Rptr. 689.) In the present case, we reaffirm Green 's holding in light of the relevant legislative history and more recent case law. In particular, we hold that, under Civil Code section 1717, there may only be one prevailing party entitled to attorney fees on a given contract in a given lawsuit.1 On that basis, we reverse the

141 Cal.Rptr.3d 837

trial court's fee award, which awarded attorney fees to both parties on the same contract in the same lawsuit. On remand, we direct the court to award appellant Vance Brown, Inc. (Brown), reasonable attorney fees for the proceedings on its first petition to compel arbitration, which need not be in the amount requested by Brown. We also direct the court to award Brown reasonable attorney fees on the present appeal.


Brown agreed to build a multimillion dollar home for Jeffrey Drazan, the managing director of a venture capital firm, Sierra Ventures. Drazan formed his own limited liability company, Frog Creek Partners, LLC (Frog Creek), to manage the construction project. Brown began constructing Drazan's home on September 18, 2002, before a written contract had been executed. On September 20, Brown presented Frog Creek with a draft contract that included a dispute resolution provision requiring mediation of all disputes followed, if necessary, by arbitration of all disputes involving $50,000 or less. On September 24, Norman McKay, counsel for Frog Creek, responded with a five-page letter suggesting various changes to the contract, including elimination of the $50,000 cap on disputes subject to arbitration.

206 Cal.App.4th 521

The suggested change to the dispute resolution provision was made by Brown in a subsequent draft of the contract. A number of drafts passed between the parties, and Brown made several other changes at Frog Creek's request. Frog Creek was given a typewritten version of the contract and made a number of handwritten notations and changes, none of which affected the dispute resolution provision. Drazan signed this version of the contract in late 2002. He was not represented by counsel at that time.

Brown's president signed a "clean" version of the typewritten contract that did not contain the handwritten changes that had been made by Frog Creek to its version.3 The appellate record does not include a single version of the contract containing signatures of representatives of both parties, and the parties have not presented separate but identical signed versions of the contract. The dispute resolution, arbitration, and attorney fee provisions in each party's version of the contract are identical.

Frog Creek filed this suit against Brown seeking damages for breach of contract, conversion, and other causes of action arising out of the construction project. The first amended complaint alleged in relevant part that, in December 2002, Frog Creek and Brown entered into a written construction agreement entitled "Construction

141 Cal.Rptr.3d 838

Agreement for the Residence at 3 Bridle Lane, Woodside, California" (hereafter, Contract), under which Brown agreed to construct certain improvements on the real property. It further alleged a true and correct copy of the Contract was attached to the first amended complaint as exhibit A. Frog Creek's version of the Contract, the version with the handwritten notations, was the document attached to the first amended complaint as exhibit A.

In March 2005, Brown filed a petition to compel arbitration under Code of Civil Procedure section 1281.2, attaching two typewritten contract pages specifically addressing dispute resolution.4 At the same time, Brown filed a cross-complaint asserting causes of action for breach of contract, quantum

206 Cal.App.4th 522

meruit, and foreclosure of its mechanic's lien. No full copy of the Contract was attached to the cross-complaint; instead, the cross-complaint attached only the same two-page dispute resolution provision attached to the petition to compel arbitration. Ultimately, Brown produced its version of the Contract in support of its petition to compel arbitration, i.e., the version that was signed only by Brown's president and did not contain Frog Creek's interlineations. The trial court denied the petition to compel.

Brown appealed and, in July 2006, this court affirmed the trial court's order in Frog Creek I. We reasoned that Brown's petition was based on the arbitration clause contained in Brown's version of the Contract, which Frog Creek had never signed and to which no mutual assent could be found. We specifically noted that we took no position on whether Frog Creek's version of the Contract was a binding agreement or whether the parties were required to arbitrate under the Contract.

Following issuance of this court's opinion in Frog Creek I, Brown filed a renewed petition to compel arbitration based on Frog Creek's version of the Contract, which Brown stipulated was "the controlling agreement" between the parties regarding the construction of the home. Frog Creek opposed the petition, arguing that it was not properly before the trial court because there had been no changed circumstances as required by Code of Civil Procedure section 1008, that there was no valid agreement to arbitrate, and that if an arbitration agreement existed it was unconscionable. The trial court denied the petition, but, in December 2007, this court reversed in Frog Creek II and directed the trial court to stay the proceedings and send the dispute to arbitration.

Following 50 days of arbitration hearings, an American Arbitration Association panel issued a 65-page decision awarding

141 Cal.Rptr.3d 839

Brown damages against Frog Creek of $1,905,902.90, plus $2,517,687.31 in attorney fees for the arbitration proceeding and $666,422.78 in costs. The arbitrators declined to rule on whether attorney fees and costs might be awarded for litigation activity before the arbitration. Frog Creek paid the arbitration award in February 2010, and the trial court entered judgment on it on April 7, 2010.

206 Cal.App.4th 523

On May 17, 2010, Brown filed a motion for attorney fees and costs pursuant to Civil Code section 1717, seeking $998,260 in prearbitration and postarbitration costs and fees, including attorney fees for its unsuccessful March 2005 petition to compel arbitration and the Frog Creek I appeal. On May 20, Frog Creek filed a motion for $229,510.75 in attorney fees and costs pursuant to section 1717 in connection with its successful opposition to that petition and the Frog Creek I appeal. Frog Creek argued it was the "prevailing party" on Brown's unsuccessful effort to compel arbitration under Brown's version of the Contract.

In July 2010, the trial court entered its order on attorney fees. The court determined that Brown was the prevailing party in the arbitration and awarded Brown prearbitration attorney fees of $692,293 and postarbitration fees of $96,000. The court determined that Frog Creek was the prevailing party on the initial petition to arbitrate and awarded Frog Creek attorney fees of $125,000, including fees for the Frog Creek I appeal. The court denied Brown the $128,000 in attorney fees that Brown had sought for those proceedings. The net award of prearbitration and postarbitration attorney fees to Brown was $663,293. This appeal followed.


Brown contends the trial court erred in granting Frog Creek attorney fees in the amount of $125,000 for...

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1 cases
  • Frog Creek Partners, LLC v. Vance Brown, Inc.
    • United States
    • California Court of Appeals
    • 24 Mayo 2012
    ...206 Cal.App.4th 515141 Cal.Rptr.3d 834FROG CREEK PARTNERS, LLC, Plaintiff, Cross-defendant, and Respondent,v.VANCE BROWN, INC., Defendant, Cross-complainant, and Appellant.No. A129651.Court of Appeal, First District, Division 5, California.May 24, [141 Cal.Rptr.3d 836]Sedgwick, Detert, Mora......

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