Filed 9/10/15 Eldridge v. Village Trailer Park, Inc. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


CATHERINE ELDRIDGE,                                                  B252841

      Plaintiff, Cross-defendant and                                 (Los Angeles County
Respondent,                                                          Super. Ct. No. BC465320)

         v.

VILLAGE TRAILER PARK, INC., et al.,

      Defendants, Cross-complainants and
Appellants.




         APPEAL from an order of the Superior Court of Los Angeles County, Cesar C.
Sarmiento, Judge. Reversed.
         Horvitz & Levy, David M. Axelrad, Felix Shafir; McKenna, Long & Aldridge,
David R. Krause-Leemon and Michelle K. Sugihara for Defendants, Cross-complainants
and Appellants.
         Campbell & Farahani, Frances M. Campbell and Nima Farahani for Plaintiff,
Cross-defendant and Respondent.
                                        _________________________
                                    INTRODUCTION
       Defendants Village Trailer Park, Inc., Village Trailer Park LLC, and Marc
Luzzatto (together, defendants) appeal from the post-judgment order awarding attorney’s
fees to Catherine Eldridge, the prevailing party in a declaratory relief action concerning a
dispute over the terms of a settlement agreement between the parties in an earlier lawsuit.
(Civ. Code, § 1717, subd. (a).)1 We hold that the award of attorney’s fees was error
because, as a matter of law, the settlement agreement sued on did not authorize an award
of attorney’s fees. Although Eldridge’s lease did contain an attorney’s fee clause, she did
not sue for breach of her lease. Accordingly, we reverse the order.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. Eldridge’s lawsuit against defendants
       Eldridge is a tenant in the Village Trailer Park (the park), a mobile home park
located in the City of Santa Monica and owned by defendants. She entered into a 60-
month lease commencing February 1, 1999. The lease included in paragraph 33 a
provision for the recovery of attorney’s fees by the prevailing party “incurred in the event
of litigation between us.”
       Eldridge was a plaintiff, along with numerous other park residents, in an action
alleging Village Trailer Park, Inc. failed to maintain electrical, water, sewage, gas, and
other facilities in the park. (McNama v. Village Trailer Park, Inc. (Super. Ct. L.A.
County, 2003, No. SC062254).) That action was resolved in 2003 by a settlement, much
of which was placed on the record in the trial court. (The McNama settlement.) Portions
of the oral part of the McNama settlement concerned Eldridge only.
       In 2011, Eldridge filed the instant action seeking declaratory and injunctive relief
because of concerns that defendants planned to develop the park and evict her. She
sought “declaratory relief regarding her rights under [the] 2003 Settlement Agreement
entered into in the case of McNama v. Village Trailer Park, Inc.” (Italics added.) In
particular, Eldridge’s complaint requested a declaration, based on the oral portion of the


1
       All further statutory references are to the Civil Code, unless otherwise noted.
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McNama settlement, that defendants had no right to, and were precluded from, taking any
action that would change her lot line or cause her to move her home. Eldridge’s
complaint makes no mention of her lease.
          Defendants cross-complained against Eldridge seeking a declaration that they
were not obligated by any agreement with Eldridge.
          Trial involved the interpretation of the McNama settlement and the scope of its
provisions as applied to Eldridge, and whether defendants were bound by that agreement.
After trial to the bench, the court ruled in favor of Eldridge. The court found that the
McNama settlement language was not ambiguous and based thereon, declared that
defendants could not terminate Eldridge’s lease absent some legal requirement by an
appropriate government agency.
          2. Eldridge’s attorney’s fee motion
          Eldridge moved for an award of attorney’s fees against defendants in the amount
of $325,680 on the ground that she was the prevailing party in the declaratory relief
action. The sole basis relied on by Eldridge for the award was paragraph 33 of her lease
and section 1717.
          Defendants opposed the motion on the ground that Eldridge’s declaratory relief
action was based on the McNama settlement rather than on her lease, and that the
McNama settlement did not authorize recovery of attorney’s fees. That settlement
expressly required the parties to bear their own fees in the McNama litigation, and was
silent about the recovery of fees in later litigation on that agreement.
          Recognizing that the McNama settlement did not provide for an award of
attorney’s fees, the trial court stated at the hearing, “The issue really is, does this action
arise out of the lease.” The court stated that the “only way that attorney fees are going to
be recoverable” would be based on an interpretation that this lawsuit “arose out of the
lease agreement between the two parties” because the lease contained an attorney’s fees
clause.
          The trial court resolved the issue in Eldridge’s favor and granted her motion based
on the lease’s attorney’s fee provision. Quoting from Boyd v. Oscar Fisher Co. (1989)

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210 Cal.App.3d 368 (Boyd), the court construed the McNama settlement together with
the lease, reasoning that together the two agreements governed Eldridge’s rights as
defendants’ tenant. The court found that the lease’s fee provision was “extremely broad
and applies to litigation between the landlord and tenant without any express limitation”
and that “[t]his action was asserted to vindicate [Eldridge’s] rights as a tenant.” On that
basis, the court ruled that Eldridge was entitled to attorney’s fees and fixed the amount at
$146,970. Defendants appeal.
                                       CONTENTION
       Defendants contend that the trial court erred as a matter of law in awarding
Eldridge attorney’s fees under the authority of Civil Code section 1717 and Boyd. They
do not challenge the amount of the fee award.
                                        DISCUSSION
       Code of Civil Procedure section 1033.5, subdivision (a)(10) allows the recovery of
attorney’s fees as part of costs if such fees are authorized by a contract or statute. Section
1717, subdivision (a) reads in relevant part, “In 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 or to the prevailing party, then
the party who is determined to be the party prevailing on the contract, whether he or she
is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees
in addition to other costs.” (Italics added.)
       Section 1717 “ ‘covers only contract actions, where the theory of the case is
breach of contract, and where the contract sued upon itself specifically provides for an
award of attorney fees incurred to enforce that contract.’ [Citation.]” (Federal Deposit
Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 357, second italics added.) To
determine which contract was sued upon, we look to the gravamen of the action and the
evidence, and the grounds of recovery articulated in the trial court’s ruling. (Hyduke’s
Valley Motors v. Lobel Financial Corp. (2010) 189 Cal.App.4th 430, 435-436.)
Eldridge’s motion premised her right to attorney’s fees on her lease, and on appeal, she
insists that the “underlying action involved [her] right to remain a tenant under her lease.”

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Looking at Eldridge’s complaint however, and at the evidence adduced at trial, there is no
question but that her declaratory relief action was on the McNama settlement and not on
the lease. The gravamen of Eldridge’s action was that the McNama settlement prevented
defendants from moving her or evicting her. Stated otherwise, Eldridge was suing
defendants to prevent their breach of the McNama settlement. That she sought in this
litigation to remain a tenant in the park does not convert her action to one “on” the lease
because her right to stay in the park was based on the words of the McNama settlement
alone.2
          Recognizing the problem, the trial court relied on the authority of Boyd to construe
the McNama settlement together with Eldridge’s lease so as to invoke the lease’s broad
attorney’s fee provision. In Boyd, the trial court awarded a manufacturer attorney’s fees
on a written dealership agreement with a dealer despite the absence of an attorney’s fee
provision. However, the manufacturer’s invoices did provide for attorney’s fees. (Boyd,
supra, 210 Cal.App.3d at pp. 372-375, 378.) Boyd recited the rule that “Courts will
construe together several documents concerning the same subject and made as part of the
same transaction (Civ. Code, § 1642; [citation]) even though the documents were not
executed contemporaneously [citations] and do not refer to each other [citations]. It is
generally a factual question whether several documents were intended to govern the same
transaction. [Citations.] However, ‘[i]nterpretation of a contract presents a question of
law unless it depends on conflicting evidence, and an appellate court is not bound by a
trial court’s interpretation which does not depend on the credibility of extrinsic evidence.’


2
        In her brief on appeal, Eldridge argues she is entitled to recover attorney’s fees
under Code of Civil Procedure section 1021 because her lease allows the prevailing party
to recover attorney’s fees “incurred in the event of litigation between us.” However,
apart from the fact that Eldridge raises this basis for fees for the first time on appeal and
so has forfeited it (In re Marriage of Modnick (1983) 33 Cal.3d 897, 913, fn. 15;
Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 113), her
“contractual right to attorney fees must come from the agreement that was entered and
was breached,” not from an unrelated one that was not breached. (Khajavi v. Feather
River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 61, italics added.)

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[Citations.]” (Boyd, supra, at p. 378.) The Boyd court read the dealership agreement
together with the manufacturer’s invoices to affirm the fee award. (Id. at pp. 379-380.)
       Neither Boyd nor Civil Code section 1642 authorizes the construction of
Eldridge’s lease together with the McNama settlement agreement as part of a single
transaction. The Boyd dealership agreement and subsequent invoices were considered
related to each other by the California Uniform Commercial Code sales provisions
governing dealership contracts. (Boyd, supra, 210 Cal.App.3d at p. 379, quoting from
Cal. U. Com. Code, § 1201, subd. (b)(12).) Also, the dealer never suggested that the
dealership agreement, the first contract, was intended to be a final and exclusive
expression of the parties’ agreement. (Boyd, supra, at p. 379.) Finally, the conduct of the
parties supported the conclusion that they added terms to the dealership agreement by
subsequent invoices. (Ibid.)
       Here, no statute that operates like the Uniform Commercial Code applies to read
the lease and the McNama settlement as part of the same transaction. Nothing in the
McNama settlement indicates that it was meant to be construed together with the lease.
Neither agreement refers to the other. Merely because these two contracts concern
Eldridge’s presence at defendants’ park does not transform the two agreements into a
single transaction. Rather, unlike Boyd, the lease here contains an integration clause and
so the lease was the final and exclusive expression of the parties’ agreement at the time.
Thus, the McNama settlement created an entirely new right to stay in the park. These
uncontradicted facts preclude us from inferring that the parties intended that the McNama
settlement would add terms to the lease so as to justify construing the two agreements
together as part of the same transaction.
       “The general rule under the code section [1642] . . . is that two or more separately
executed instruments may be considered and construed as one contract ‘only when upon
their face they deal with the same subject matter and are by reference to one another so
connected that they may be fairly said to be interdependent.’ [Citations.]” (Coons v.
Henry (1960) 186 Cal.App.2d 512, 517.) The lease and the McNama settlement provide
for contradictory bases for their termination. The lease, which has long since expired,

                                             6
could be terminated in accordance with the requirements of the Mobilehome Residency
law, whereas the McNama settlement prohibits termination “absent some legal
requirement by an appropriate government entity.” Thus, Eldridge’s right to remain at
the park is premised solely on the McNama settlement. Civil Code section 1642 does not
apply to warrant extension of the lease’s attorney’s fee provision to this lawsuit to
enforce the McNama settlement.
       Where the evidence is not in dispute, interpretation of the contracts to determine
whether they were intended to govern the same transaction presents a question of law.
(Boyd, supra, 210 Cal.App.3d at p. 378.) As a matter of law these documents are not
intended to govern the same transaction. Therefore, neither section 1717 nor section
1642, nor Boyd allows Eldridge to recover fees on the basis of an attorney’s fee provision
in her lease, which was never at issue, or for vindication of the McNama settlement
which had no attorney’s fees clause. There is no legal basis for the award of attorney’s
fees to Eldridge.




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                                     DISPOSITION
      The order appealed from is reversed. Appellant is to recover costs on appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                ALDRICH, J.




We concur:




             KITCHING, Acting P. J.




             JONES, J.





        Judge of the Los Angeles Superior Court, assigned by Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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