Filed 10/31/13 Gonya v. Stroud CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



PAUL GONYA et al.,                                                  D062315

         Plaintiffs and Respondents,

         v.                                                         (Super. Ct. No. GIC876435)

KENNETH STROUD,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of San Diego County, Jeffrey B.

Barton, Judge. Affirmed.



         Law Office of Steven A. Marczeski and Steven A. Marczeski for Defendant and

Appellant.

         Barker Olmsted & Barnier and Christopher W. Olmsted for Plaintiffs and

Respondents.
       Defendant Kenneth Stroud appeals an order denying his motion for attorney fees

under Civil Code1 section 1717. Plaintiffs Paul Gony and Gonya Enterprises, Inc. (GEI)

(together Gonya/GEI) sued Stroud for express contractual indemnity, implied contractual

indemnity, and equitable indemnity, alleging Stroud was required to indemnify

Gonya/GEI for their settlement in a lawsuit with a third party, Dartmouth Development

Company (Dartmouth). Gonya/GEI based their claims on several agreements between

themselves, Stroud, and Stroud's company. Stroud cross-complained against

Gonya/GEI for declaratory relief on the indemnity issue and common count causes of

action arising out of unpaid work Stroud performed for Gonya.

       After the bench trial commenced, Gonya voluntarily dismissed both contractual

indemnity claims. The court found for Stroud on the remaining equitable indemnity

claim, finding (1) Stroud never signed the contract establishing a right to indemnification,

(2) the contract submitted at trial was incomplete and unreliable, and (3) section 2774

(see fn. 5, post) and the doctrine of unclean hands barred the claim.

       Stroud then moved for attorney fees under section 1717 based on the attorney fee

provisions in an operating agreement between Stroud's company and Dartmouth. The

court denied the motion, finding there were no contracts on which Stroud could rely to

trigger application of section 1717. Specifically, the court found (1) Stroud had not

signed the indemnity agreement with Gonya, and (2) the operating agreement with




1      All statutory references are to the Civil Code unless otherwise specified.
                                             2
Dartmouth applied to its members and did not provide attorney fees in an action to

enforce its indemnity provision.

       Stroud contends the trial court (1) erred in denying his motion for attorney fees

based on his failure to sign the operating agreement, and (2) erred in finding the attorney

fees clause in the operating agreement was not sufficiently extensive to include an action

to enforce the indemnity provision. We hold Stroud is not entitled to attorney fees

because the contracts on which he relies are not the contracts Gonya/GEI sought to

enforce in their lawsuit.

                                     BACKGROUND

       A. Factual Background

       1. The formation of REI-NC, LLC

       Gonya is a developer and the sole owner of GEI. In 1987 GEI started a residential

construction business called Real Estate International (REI) whose primary projects

involved large-scale custom homes in Alpine. Early on, Gonya utilized the services of

David Waitley as a real estate agent to sell the homes and Stroud as a subcontractor and

on-site supervisor. By 1998 Gonya decided to retire and remove himself from the day-to-

day operations of property development. His retirement plan allowed Waitley and Stroud

to use the good will of REI and form a new business entity, REI-NC, LLC (REI-NC), to

continue developing properties. In return, Waitley and Stroud allegedly agreed to use

Gonya as a consultant and indemnify him from any claims arising out of their business

activities.



                                             3
      Waitley and Stroud formed REI-NC under the terms of the REI-NC, LLC

operating agreement (REI-NC Operating Agreement). Among numerous other terms, the

REI-NC Operating Agreement contained the following indemnification provision:

         "16.4 Indemnification by Company:

         "16.4.1 The Company shall indemnify any person who was or is a
         party or is threatened to be made a party to any threatened, pending,
         or completed action, suit, or proceeding, whether civil, criminal,
         administrative or investigative, except an action by or in the right of
         the Company, by reason of the fact that the person is or was a
         Manager, Member, employee or agent of the Company, or is or was
         serving at the request of the Company as a manager, member,
         officer, employee or agent of another limited-liability company,
         partnership, joint venture, trust or other enterprise, against expenses,
         including attorney's fees, judgments, fines and amounts paid in
         settlement actually and reasonably incurred by the person in
         connection with the action, suit or proceeding if the person acted in
         good faith and in a manner which the person reasonably believed to
         be in or not opposed to the best interests of the Company, and, with
         respect to any criminal action or proceeding, had no reasonable
         cause to believe the person's conduct was unlawful. . . ."

Neither Gonya nor GEI was a party or signatory to the REI-NC Operating Agreement.

      REI-NC then entered into an additional, separate indemnity agreement with Gonya

and GEI (Indemnity Agreement). The relevant portion of the agreement read:

         "Section 2. AGREEMENT TO INDEMNIFY.

         "a. General Agreement. In the event Indemnitee [Gonya] was, is, or
         becomes a participant in, or is threatened to be made a participant in,
         a proceeding by reason of (or arising in part out of) an indemnifiable
         event, the Company shall indemnify Indemnitee [Gonya] from and
         against any and all expenses to the fullest extent permitted by law, as
         the same exists or may hereafter be amended or interpreted (but in
         the case of any such amendment or interpretation, only to the extent
         that such amendment or interpretation permits the Company to
         provide broader indemnification rights than were permitted prior
         thereto). The parties hereto intend that this Agreement shall provide

                                            4
          for indemnification in excess of that expressly permitted by statute,
          including, without limitation any indemnification provided by the
          Company's articles of incorporation, its bylaws, a vote of its
          shareholders or disinterested directors, or applicable law."

The Indemnification Agreement made no mention of attorney fees. Both Gonya and

Waitley signed the Indemnity Agreement, but Stroud did not.

      2. The formation of REI-NC Dartmouth, LLC

      REI-NC subsequently started a home construction venture with Dartmouth to

build and sell custom homes. The two entities formed two limited liability companies,

REI-NC Dartmouth I, LLC and REI-NC Dartmouth II, LLC, each of which was governed

by a separate, but essentially identical, operating agreement (Dartmouth Operating

Agreements). Only Waitley signed on behalf of REI-NC; Stroud did not sign either one.

Additionally, neither Gonya nor GEI were signatories or parties to those agreements.

The Dartmouth Operating Agreements both contained the following relevant provisions:

          "6.5 Indemnification. To the fullest extent provided or allowed by
          California law, the Company shall indemnify, defend, protect and
          hold the Members, the Manager, the members of the Management
          Committee, the officers if any, the employees and the agents blithe
          Company harmless for any and all costs, losses, liabilities and
          damages incurred, paid or accrued by such Member, the Manager,
          members of the Management Committee, officer employee or agent
          arising from, out of or in connection with the business of the
          Company. [¶] . . .

          "15.2 Rights of Creditor And Other Persons Under Operating
          Agreement. This Operating Agreement is entered among the
          Company and the Members for the exclusive benefit of the
          Company, its Members, and their successors and assigns. This
          Operating Agreement is expressly not intended for the benefit of any
          creditor of the Company or any other Person. Except and only to the
          extent provided by applicable statute, no such creditor or other
          Person shall have any rights under this Operating Agreement or any

                                            5
          agreement between the Company and any Member with respect to
          any Capital Contribution or otherwise. [¶] . . .

          "15.4 Attorneys' Fees. In the event suit is brought to enforce or
          interpret any part of this Operating Agreement, the prevailing party
          shall be entitled to recover as an element of his costs of suit, and not
          as damages, reasonable attorneys' fees to be fixed by the court. The
          'prevailing party' shall be the party entitled to recover its costs of
          suit, whether or not the suit proceeds to final judgment. A party not
          entitled to recover costs shall not recover attorneys' fees. No sum
          for attorneys' fees shall be counted in calculating the amount of a
          judgment for the purposes of determining whether a party is entitled
          to recover its costs or attorneys' fees."

       REI-NC Dartmouth II then hired Gonya/GEI as a consultant for its projects. Only

Waitley signed the consulting engagement agreement (Consulting Agreement) with

Gonya/GEI. The Consulting Agreement contained provisions detailing Gonya's specific

duties and his fees; it contained neither indemnification nor attorney fee provisions.

       3. The Dartmouth Action

       Dartmouth eventually grew concerned that Stroud, Waitley, and Gonya were

mismanaging funds for the REI-NC Dartmouth projects. An investigation revealed that

REI-NC Dartmouth projects had been repeatedly billed for costs and expenses that were

meant for Waitley's and Gonya's other projects. Dartmouth subsequently filed suit

against Waitley, Stroud, REI-NC, and Gonya (Dartmouth Action).2 Dartmouth alleged

claims of fraud, embezzlement, and breach of contract, among others. Although initially

Waitley, Stroud, REI-NC, and Gonya retained joint counsel, Gonya eventually retained

independent counsel. Gonya settled with Dartmouth for $1 million. Stroud and Waitley


2     Dartmouth Development Company, Inc., et al. v. Real Estate International
Corporation et al. (Super. Ct. San Diego County, 2005, No. GIC845987).
                                             6
also agreed to settle for $1 million, but paid only $750,000. Gonya then sought

indemnity from Waitley, Stroud, and REI-NC. Waitley indicated in a memorandum that

Gonya made a demand for indemnification (Pre-Litigation Demand) for his involvement

in the Dartmouth Action, and that such indemnification was provided "by the contract to

which [Gonya and GEI] are not a part to but have been so identified pursuant to

paragraph 6.5 of said contract."

       B. Procedural Background

       1. Gonya/GEI's complaint

       Gonya/GEI filed the complaint against Waitley, Stroud, and REI-NC in this case

in December 2006. The complaint contained four causes of action. In their first cause of

action, Gonya/GEI alleged their right to indemnification based on express contractual

indemnity. Gonya/GEI based this claim on (1) the indemnification provision in the REI-

NC Operating Agreement under which Gonya/GEI claimed to be a third party

beneficiary, and (2) the Indemnity Agreement with Waitley and REI-NC. Under this

cause of action, the complaint also alleged Gonya/GEI had previously demanded orally

and in writing that Waitley, Stroud, and REI-NC fulfill their obligation to indemnify.

Gonya/GEI attached the REI-NC Operating Agreement and the Indemnity Agreement to

the complaint as Exhibit A and Exhibit B, respectively.

       Gonya/GEI's second cause of action alleged implied contractual indemnity.

Gonya/GEI based this claim on their Consulting Agreement with REI-NC/Dartmouth II.

Gonya/GEI conceded the Consulting Agreement did not have an express provision for

indemnification, but claimed "it was understood" and "equitably implied" in the

                                            7
Consulting Agreement that Gonya/GEI would receive indemnification for expenses from

lawsuits arising out of his relationship with REI-NC. The Consulting Agreement was

attached to the complaint as Exhibit C. Gonya/GEI also included an allegation that REI-

NC entered into the Dartmouth Operating Agreements.

       Gonya/GEI's third cause of action alleged equitable indemnity. Gonya/GEI

alleged his involvement in the Dartmouth Action was based on his alleged liability for

the actions of Waitley, Stroud, and REI-NC. Gonya/GEI denied contributing to the

damages sought in the Dartmouth Action, denied being a member of REI-NC, and denied

being a participant or signatory to the Dartmouth Operating Agreements.3 Stroud

subsequently filed a cross-complaint asserting a claim for declaratory relief on the

indemnity issues and two common count causes of actions.4

       2. The bench trial

       Gonya/GEI's action against Stroud went to a bench trial. Gonya/GEI dismissed

their claims for express and implied contractual indemnity during final argument, leaving

only the equitable indemnity claim.

       In its decision, the court determined "no intact, signed indemnity agreement"

existed to support Gonya/GEI's claim. The court found for Stroud on the equitable



3     Gonya's complaint included a fourth cause of action for breach of contract based
on unpaid fees under the Consulting Agreement. Gonya made this claim only against
Waitley. Waitley ultimately settled with Gonya before trial and Gonya dropped the
breach of contract claim.

4      Stroud's cross-complaint is not a subject of his appeal.

                                             8
indemnity claim on the following grounds: (1) Stroud never signed the Indemnity

Agreement; (2) the agreement provided at trial was "incomplete and highly unreliable";

and (3) the claim for equitable indemnity was barred by section 27745 and the doctrine of

unclean hands. The court denied declaratory relief for Stroud

based on his admitted participation in the transactions which led to the Dartmouth

Action.

       3. Stroud's motion for attorney fees

       Stroud subsequently moved for attorney fees under section 1717.6 Stroud argued

he was entitled to fees under the contractual indemnity claims because Gonya/GEI had

abandoned them in final argument. As such, Stroud argued he successfully defended

himself and "must be considered the prevailing party upon each contract that Gonya has

demanded and claimed a right to indemnity under." While Stroud conceded neither

Gonya/GEI nor himself was a party to the Dartmouth Operating Agreements, he argued

he could rely on those agreements as the basis for his right to attorney fees. Although

Gonya/GEI did not attach the Dartmouth Operating Agreements to his complaint, Stroud

argued Gonya/GEI "utiliz[ed] the agreements" for their suit by (1) issuing the Pre-

Litigation Demand, and (2) referencing the agreements in paragraphs 28 and 30 of the




5      Section 2774 reads: "An agreement to indemnify a person against an act already
done, is valid, even though the act was known to be wrongful, unless it was a felony."

6     Stroud also moved for attorney fees under Business and Professions Code section
7108.5, but has not appealed the court's order on those grounds.
                                              9
complaint. Stroud's motion did not assert a right to attorney fees with respect to the

equitable indemnity claim.

       At the motion hearing, Stroud's counsel again stated explicitly that Stroud was

seeking to recover attorney fees based on the Dartmouth Operating Agreements. He

argued the reference to the Dartmouth Operating Agreements in the Pre-Litigation

Demand and in Gonya/GEI's complaint brought the agreements "within the purview of

the complaint and within this case." Stroud's counsel again asserted Stroud was the

prevailing party under section 1717 "because he obtained the greater relief in getting the

claim dismissed against him."

       Gonya/GEI's counsel responded that the Dartmouth Operating Agreements were

not the basis for either the court's ruling nor Gonya/GEI's suit for indemnity.

Gonya/GEI's counsel also stated the complaint referred to the Dartmouth Operating

Agreements "for the purposes of putting context to the other parties' contractual

relationships."

       The court's minute order denying Stroud's motion for attorney fees states:

          "The court found in favor of Stroud on the cause of action for
          equitable, not contractual indemnity. The court's decision found that
          Stroud did not sign the indemnity agreement. [Citation] Even if
          Stroud had signed the indemnity agreement, the indemnity
          agreement does not state that the prevailing party is entitled to
          attorney's fees in a contest over claims for indemnity. During oral
          argument, Stroud stated that he was relying on the indemnification
          agreement within the REI/Dartmouth operating agreement in support
          of fees. However, the court has reviewed the operating agreement
          and finds that this is a standard indemnification clause for fee and
          costs of its members. Nonetheless, it is not sufficiently extensive to
          include attorney's fees to the prevailing party in an action to enforce
          the indemnification provision.

                                             10
          "In Baldwin Builders v. Coast Plastering Corp. (2005) 125
          Cal.App.4th 1339, 1346, the express language of the attorney fee
          clauses authorizes the recovery of attorney fees where one of the
          parties to the agreement brings an action to enforce the indemnity.
          In contrast, the indemnity contract in this case is silent on the issue.
          Thus, unlike Baldwin, neither the separate indemnification
          agreement, nor the clause in the operating agreement [is] 'on [the]
          contract' within the meaning of section 1717(a)' and the attorney fee
          clauses are not subject to the statutory requirement of reciprocity.

          "There are no contracts upon which to rely on Civil Code section
          1717. The court's decision found that Stroud did not sign the
          writing. . . . [Citation]."

       C. Contentions on appeal

       Stroud raises two main contentions on appeal. Stroud first contends the court

erred in ruling Stroud "was not entitled to enforce the terms of the contract as he was not

a signatory to the contract." Relying on Reynolds Metals Co. v. Alperson (1979) 25

Cal.3d 124, Stroud correctly states attorney fees under section 1717 can be available to a

nonsignatory defendant when the defendant would have been liable for the plaintiff's

attorney fees if the plaintiff had been successful in his action. However, Stroud asserts

his right to attorney fees as a nonsignatory defendant to the Dartmouth Operating

Agreements—a different set of contracts than the Indemnity Agreement on which the trial

court ruled. According to Stroud, if Gonya/GEI "[had] been successful for their claim of

contractual indemnity, [Gonya/GEI] would have been able to claim attorney's fees

pursuant to the contract that [they] demanded indemnification under from [Stroud]."

       Second, Stroud contends the court erred in determining the attorney fees clause

within the Dartmouth Operating Agreements was not broad enough to include litigation


                                             11
over the indemnity provision in those agreements. Relying on Toro Enterprises, Inc. v.

Pavement Recycling Systems, Inc. (2012) 205 Cal.App.4th 954, 957-958 (Toro

Enterprises), Stroud contends that because the attorney fee clause in the Dartmouth

Operating Agreements reads: "In the event suit is brought to enforce or interpret any part

of this Operating Agreement . . . , " it is broad enough to include suits to enforce the

agreements' indemnification clause.

       Although his two main contentions are clear, Stroud's briefs create some confusion

as to the exact cause of action on which he asserts his right to attorney fees. In its

decision after trial, the court ruled in Stroud's favor on the equitable indemnity claim, as

Gonya/GEI had dismissed the contractual indemnity claims. Stroud, however, moved for

attorney fees as the prevailing party on the contractual indemnity claims. In denying his

motion, the court reiterated that it found for Stroud only on equitable indemnity.

Nonetheless, Stroud repeatedly argues on appeal he is entitled to attorney fees for the

contractual indemnity claims. However, he specifically refutes the trial court's findings

on the equitable indemnity claims.

                                       DISCUSSION

       A. Standard of Review

       "We review de novo a determination of the legal basis for an award of attorney[]

fees." (Toro Enterprises, supra, 205 Cal.App.4th at p. 957.)




                                             12
       B. Section 1717

       When parties contract specifically to allocate the award of attorney fees, such

agreements are "subject to the restrictions and conditions of section 1717." (Trope v.

Katz (1995) 11 Cal.4th 274, 278.)

       Section 1717, subdivision (a) provides:

          "In an 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."

       Claims brought under this section are limited by subdivision (b):

          "(1) The court, upon notice and motion by a party, shall determine
          who is the party prevailing on the contract for purposes of this
          section, whether or not the suit proceeds to final judgment. Except
          as provided in paragraph (2), the party prevailing on the contract
          shall be the party who recovered a greater relief in the action on the
          contract. The court may also determine that there is no party
          prevailing on the contract for purposes of this section.

          "(2) Where an action has been voluntarily dismissed or dismissed
          pursuant to a settlement of the case, there shall be no prevailing
          party for purposes of this section."

       The "primary purpose of section 1717 is to ensure mutuality of remedy for

attorney fees claims under contractual attorney fee provisions." (Santisas v. Goodwin

(1998) 17 Cal.4th 599, 610.) When a contract authorizes the recovery of attorney fees to

the prevailing party or where the contract authorizes such recovery to only one party,

section 1717 creates a reciprocal right. (Id. at pp. 610-611.)



                                             13
        D. Analysis

      1. Stroud's contention that he may recover attorney fees under the contractual
indemnity claims

        Any contention that Stroud may recover fees on the contractual indemnity claims

fails because Gonya/GEI voluntarily dismissed those claims. As section 1717,

subdivision (b)(2) explicitly states, "[w]here an action has been voluntarily dismissed . . .

there shall be no prevailing party for the purposes of this section." The statute "provides

no temporal limitation" and thus "attorney fees are barred regardless of when the

dismissal is filed." (CDF Firefighters v. Maldonado (2011) 200 Cal.App.4th 158, 164-

165.)

        As Stroud is well aware, Gonya/GEI dismissed their express and implied

contractual indemnity claims during final argument of the bench trial. According to the

statute, neither Gonya/GEI nor Stroud was the prevailing party. Thus, Stroud cannot

recover attorney fees because he did not "prevail" on those claims.

        As noted, ante, Stroud does not clearly identify the cause of action on which he

bases his right to fees. He fluctuates between his right to fees under the contractual

indemnity claim and the court's denial of fees under the equitable indemnity claim. If his

appeal were premised solely on his claimed status as the prevailing party on the

contractual indemnity claims, then it fails in its entirety and our analysis should end here.

However, because Stroud specifically appeals two particular findings the court made

regarding attorney fees on the equitable indemnity claim, we will, in the interest of

clarity, also address those points.


                                             14
        2. Stroud's contention that the trial court erred by denying attorney fees based on
his failure to sign the Dartmouth Operating Agreements

       Stroud contends that, under Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d

124, he is entitled to recover attorney fees as a nonsignatory defendant to the Dartmouth

Operating Agreements. In his motion, at his hearing, and throughout his briefs, Stroud

has repeatedly emphasized his reliance on the Dartmouth Operating Agreements as the

basis for his right to attorney fees. He contends Gonya/GEI "relied on these agreements

before and during trial," and the court "considered [them]" in making its decision. As

such, Stroud believes he is entitled to recover based on the attorney fees clause within

those agreements. This argument fails for several reasons.

       In making this contention, Stroud mischaracterizes the court's rulings. Despite the

court explicitly stating it denied the motion based on his failure to sign the Indemnity

Agreement, Stroud suggests the court denied the motion based on his failure to sign the

Dartmouth Operating Agreement. In fact, the court provided distinct reasons as to why

Stroud could not rely on either of these agreements. The court first explained Stroud

could not recover fees under the Indemnity Agreement because (1) he did not sign it, and

(2) it did not include an attorney fees clause for an action brought by one party to enforce

the agreement. The court then separately ruled on the Dartmouth Operating Agreements,

finding the indemnification provision (1) was for fees and costs "of its members", and (2)

was not sufficiently broad enough to include attorney fees in an action to enforce that

provision. The court never stated Stroud's lack of signature was its reason for denying




                                             15
fees under the Dartmouth Operating Agreements. Stroud conflates the court's rulings and

appeals a finding that was simply not made.

       Furthermore, Stroud cannot recover attorney fees under the Dartmouth Operating

Agreements because Gonya/GEI did not bring an action to enforce those contracts. For a

party to recover attorney fees under section 1717, there must be an action "on the

contract." While Stroud appears to believe any contract related to the action will suffice,

"on the contract" has a specific meaning within section 1717. "An action is 'on the

contract' when it is brought to enforce the provisions of the contract." (MBNA America

Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 7, citing McKenzie v. Kaiser-

Aetna (1976) 55 Cal.App.3d 84, 89-90.) Section 1717 applies when "the contract sued

upon itself specifically provides for an award of attorney fees incurred to enforce that

contract." (Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 357,

italics added).

       Gonya/GEI's action is not "on the [Dartmouth Operating Agreements]" for the

purposes of section 1717. Gonya/GEI did not bring their suit to enforce the provisions of

the Dartmouth Operating Agreements. While their Pre-Litigation Demand suggests they

might have initially sought indemnity under those agreements, they did not incorporate

that claim into their lawsuit. In fact, in their complaint, Gonya/GEI denied signing or

being a party to the Dartmouth Operating Agreements. Stroud even conceded in his

motion that Gonya/GEI did not attach those agreements to their complaint. Gonya/GEI

based their suit on the REI-NC Operating Agreement, Indemnity Agreement, and

Consulting Agreement. Gonya/GEI did not allege Stroud was liable under the Dartmouth

                                             16
Operating Agreements. The brief mention of those agreements in the complaint served

only to demonstrate the relationships between all the parties.

       Furthermore, section 1717(a) explicitly states it applies to "the party who is

determined to be the party prevailing on the contract . . . ." The trial court never found

Stroud to be the prevailing party on the Dartmouth Operating Agreements. It makes no

analysis or mention of those agreements except to explain the events leading up to the

Dartmouth Action. It only found in favor of Stroud on the equitable indemnity claim

based on the shortcomings of the Indemnity Agreement. No party prevailed on the

Dartmouth Operating Agreements because they simply were not a subject of the

litigation. Stroud believes because "the trial court ruled in greater detail [on the

Dartmouth Operating Agreements] . . . [it] shows that the trial court did in fact consider

these contracts in its ruling to deny attorney's fee clauses." The court's explanation as to

why Stroud cannot rely on the Dartmouth Operating Agreements is not proof that

Gonya/GEI's lawsuit was an action to enforce those agreements.

       Section 1717 does not allow the prevailing party to use any contract containing an

attorney fees clause; the prevailing party must point to an attorney fee clause within the

contract upon which he was sued. Stroud cannot claim any right to attorney fees based

on the Dartmouth Operating Agreements' provisions because there was no action on

those contracts within the meaning of section 1717.




                                              17
       3. Stroud's contention that the court erred by finding the attorney fees provision
within the Dartmouth Operating Agreements was not sufficient to include litigation over
the indemnification provision

       Stroud also appeals the court's ruling that the attorney fee clause in the Dartmouth

Operating Agreements was not sufficiently extensive to include attorney fees for the

prevailing party in an action to enforce the indemnity provision of those agreements. He

cites Toro Enterprises, supra, 205 Cal.App.4th at pages 957-958, which held an attorney

fee clause granting fees to "any dispute resolution between the parties" necessarily

included an action to enforce the indemnity provision within that contract. Stroud

contends because the attorney fees clause in the Dartmouth Operating Agreements states

"[i]n the event suit is brought to enforce or interpret any part of this Operating

Agreement . . . ," it includes actions to enforce the indemnity provision within those

agreements.

       While Stroud may be correct in stating the attorney fees clause in the Dartmouth

Operating Agreements would cover actions between the contracting parties to enforce the

indemnity provision, he is still relying on a contract that was not a part of Gonya/GEI's

action. As we explained above, Gonya/GEI did not seek to enforce any part of the

Dartmouth Operating Agreements against Stroud. Gonya/GEI's Pre-Litigation Demand

that sought indemnity under the Dartmouth Operating Agreement was just that—a pre-

litigation demand. Gonya/GEI never sued to enforce the Dartmouth Operating

Agreements. Whether or not the trial court was correct in its analysis of the sufficiency

of the Dartmouth Operating Agreements' provisions is irrelevant because the Dartmouth

Operating Agreements are not "on the contract" within the meaning of section 1717.

                                             18
       The trial court correctly ruled there are no contracts on which Stroud can rely to

recover attorney fees as the prevailing party against Gonya/GEI. Stroud's reliance on the

Dartmouth Operating Agreements is misplaced because Gonya/GEI never sought to

enforce their provisions against Stroud in their lawsuit for indemnity. Thus, they are not

subject to the reciprocity provided by section 1717.

                                      DISPOSITION

       The order is affirmed. Gonya/GEI shall recover their costs on appeal.


                                                                      NARES, Acting P. J.

WE CONCUR:


HALLER, J.


IRION, J.




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