Filed 1/21/15 Century Quality Management v. JMS Air Conditioning etc. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


CENTURY QUALITY MANAGEMENT,                                          B255326
INC.,
                                                                     (Los Angeles County
         Cross-complainant and Respondent,                           Super. Ct. No. BC472126)

         v.

JMS AIR CONDITIONING AND
APPLIANCE SERVICE, INC.,

         Cross-defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Michael P.
Linfield, Judge. Affirmed.
         Law Office of Robert G. Klein and Robert G. Klein, for Cross-defendant and
Appellant.
         No appearance for Cross-complainant and Respondent.
       Century Quality Management Inc. sued JMS Air Conditioning and Appliance
Service, Inc. for JMS’s allegedly defective performance on a construction project located
on University Avenue in Riverside County. Century Quality Management’s first
amended complaint was dismissed with prejudice. The trial court thereafter denied
JMS’s motion for attorney fees, ruling JMS had failed to establish the action was based
on a contract with an attorney fee provision. JMS appeals from the order denying
attorney fees. We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       1. The University Avenue Project
       In May 2008 Notis Enterprises, doing business as L&M Construction, entered into
a construction contract with the owner of property at 1820-1860 University Avenue in
Riverside, California to build two commercial buildings. L&M was the general
contractor; according to JMS, Century Quality Management was the construction
manager representing the project owner. L&M and JMS thereafter entered into a series
of subcontracts between February 2008 and March 2009 for heating, ventilation and air
conditioning work at the University Avenue project. Those subcontracts contained a
provision for attorney fees: “Purchaser agrees to pay all costs of collection, including
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attorney’s fees.” Century Quality Management is not a party to any of those contracts.
       2. The Initial Lawsuits
       JBT Construction, Inc., another subcontractor on the University Avenue project,
sued L&M in Riverside County with respect to a dispute regarding its work on the
project. That case was transferred by stipulation to the Los Angeles Superior Court,
where it was related to an action brought by JBT for work performed on a different
project (in West Hollywood) as to which L&M was also the general contractor. Through
a series of cross-complaints, JMS was brought into this action; and L&M and JMS

1
       L&M’s contract with the project owner and the L&M-JMS subcontracts were
included in a request for judicial notice filed by JMS in the trial court. The record on
appeal does not reflect any ruling on that motion.
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ultimately litigated in a November 2011 bench trial their disputes regarding the
University Avenue project (among others), including L&M’s claim that JMS had
negligently installed fresh air ducts in the interior of the buildings and JMS’s claim that
L&M had improperly withheld certain payments. JMS prevailed, recovered a monetary
judgment against L&M and was awarded attorney fees pursuant to Civil Code
section 1717 (section 1717).
       3. Century Quality Management’s Lawsuit
       Sometime in 2011 Century Quality Management sought leave to file a cross-
complaint against JMS in the litigation then pending in superior court. Prior to trial of
the L&M-JMS cross claims, the court denied Century Quality Management’s motion
without prejudice to it filing a separate action to recover damages due to delays in the
University Avenue project allegedly as a result of JMS’s deficient performance.
       On October 24, 2011 Century Quality Management filed its complaint in this
action, asserting causes of action against JMS for breach of express warranty, breach of
implied warranty, negligence and strict liability, as well as a claim for comparative
equitable indemnity seeking an apportionment of liability if any damages were recovered
against Century Quality Management in the previously filed lawsuits. The complaint
alleged that JMS had performed defective subcontracting work at the University Avenue
project and was liable to Century Quality Management for damages it had suffered as a
result of those deficiencies. There was no demand for attorney fees. The case was
deemed related to the previously filed actions involving L&M.
       After its success in the L&M lawsuit, JMS answered the complaint and moved for
judgment on the pleadings, arguing Century Quality Management, as the project manager
and not a contracting party, had no standing; the claims were barred by res judicata or
collateral estoppel; and all claims were precluded by the applicable statutes of limitation.
The court did not rule on JMS’s motion but instead struck the complaint on its own




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motion “because it fails to allege facts to support a cause of action.” Century Quality
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Management was granted leave to file an amended complaint.
       According to the trial court’s subsequent minute order, the first amended
complaint “was nearly identical to the original complaint, except for the addition of a
footnote on the first page,” which addressed the procedural history of the action. JMS
demurred to the amended complaint. Rather than sustain the demurrer, the court on its
own motion struck the complaint with prejudice as uncertain and for failure to allege
facts to support a cause of action and dismissed the action.
       4. The Motion for Attorney Fees; the Trial Court’s Order Denying Fees
       Following dismissal of the amended complaint, JMS moved for an award of
$13,507.50 in attorney fees pursuant to section 1717, arguing Century Quality
Management’s complaint sought damages arising out of the written contracts between
L&M and JMS for work on the University Avenue project, contracts that contained
attorney fee provisions. In a declaration filed in support of the motion, JMS’s attorney
explained Century Quality Management was the project manager on the University
Avenue project and asserted Century Quality Management’s lawsuit sought the same
relief as L&M had unsuccessfully pursued in the earlier, related action. The declaration
attached copies of the contracts between L&M and JMS. Century Quality Management
did not file any opposition to JMS’s motion.
       The trial court denied the motion, ruling JMS had failed to prove the existence of a
contract between the parties that provided for attorney fees to the prevailing party in the
action. Specifically, the court explained that nothing in the first amended complaint
established that Century Quality Management brought the lawsuit under the L&M-JMS
contracts—there was no breach of contract claim, and Century Quality Management’s
pleadings did not support JMS’s contention the instant lawsuit was based on the same
facts and contracts as the JMS-L&M litigation. (The court also observed that JMS had

2
      The case was reassigned in August 2012 and thereafter was not heard by the same
judge who had presided at the L&M-JMS bench trial.
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failed to present admissible evidence that Century Quality Management was the project
manager for the University Avenue project; it had relied solely on the declaration of
JMS’s counsel without any showing of personal knowledge by the declarant.)
“Therefore, it has not been established that plaintiff’s action was on a contract, let alone
on the contracts mentioned in this motion.”
                                       DISCUSSION
       Section 1717, subdivision (a),3 authorizes the trial court to award reasonable
attorney fees to the prevailing party in a contract action if the contract specifically
provides for an award of such fees.4 To ensure mutuality of remedy, section 1717 makes
an attorney fee provision reciprocal even if it would otherwise be unilateral either by its
terms or in its effect. (Santisas v. Goodin (1998) 17 Cal.4th 599, 610; Reynolds Metals
Co. v. Alperson (1979) 25 Cal.3d 124, 128.)



3
        Section 1717, subdivision (a), provides: “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. [¶] . . . [¶] Reasonable attorney’s fees shall be fixed by the
court, and shall be an element of the costs of suit.”
4
        An order granting or denying an award of attorney fees is generally reviewed for
abuse of discretion. (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th
1309, 1319; Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013)
221 Cal.App.4th 867, 887.) In particular, “[w]ith respect to the amount of fees awarded,
there is no question our review must be highly deferential to the views of the trial court.”
(Children’s Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777; see
PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [recognizing trial court’s
broad discretion in determining amount of reasonable attorney fees because experienced
trial judge is in the best position to decide value of professional services rendered in
court]; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [same].) However, we
independently determine as a question of law the scope of an attorney fee provision when
the interpretation does not turn on extrinsic evidence. (Kalai v. Gray (2003)
109 Cal.App.4th 768, 777; Exxess Electronixx v. Heger Realty Corp. (1998)
64 Cal.App.4th 698, 705.)
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       As JMS explains, under section 1717’s principle of reciprocity, a litigant who
defeats a contract claim by demonstrating the contract is inapplicable, invalid,
unenforceable or nonexistent is entitled to an attorney fee award if the opposing party
would have been entitled to attorney fees under the contract if he or she had prevailed.
(Santisas v. Goodin, supra, 17 Cal.4th at p. 611; Hsu v. Abbara (1995) 9 Cal.4th 863,
870.) However, “[w]here a cause of action based on the contract providing for attorney’s
fees is joined with other causes of action beyond the contract, the prevailing party may
recover attorney’s fees under section 1717 only as they related to the contract action.”
(Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at p. 129.)
       Although Century Quality Management’s first amended complaint contained
causes of action for negligence, strict liability and implied equitable indemnity—
noncontract claims—JMS is correct that its causes of action for breach of warranty are, in
essence, contract claims. (See, e.g., Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283,
1315 [“[g]enerally, a cause of action for breach of implied warranty requires privity of
contract”]; Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1058-1059
[“‘[t]he general rule is that privity of contract is required in an action for breach of either
express or implied warranty’”].) Indeed, paragraph 14 of the first amended complaint
alleged JMS “breached the express warranties provided in the agreement in that the work
provided by [JMS] was not done in a workmanlike manner, and material and
workmanship provided by defendant were defective . . . .” Thus, if Century Quality
Management had sued JMS for breach of express and implied warranties contained in, or
arising from, a contract with an attorney fee provision, as the prevailing party in the
litigation JMS would be entitled to its reasonable attorney fees, at least as related to its
successful defense of those claims.
       As the trial court found, however, JMS failed to carry its burden of proving any
such agreement was the basis for Century Quality Management’s lawsuit. (See Khajavi
v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 62-63 [no
recovery of attorney fees when plaintiff failed to establish his employment agreement

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contained attorney fees provision]; McKenzie v. Kaiser-Aetna (1976) 55 Cal.App.3d 84,
87 [it is the moving party’s burden of proof to establish the jury verdict and judgment in
that party’s favor is based on a written contract that contains an attorney fee provision];
see generally Evid. Code, § 500.) Because Century Quality Management was remarkably
uninvolved in the action it had initiated—it did not oppose JMS’s motion for judgment on
the pleadings, its demurrer to the first amended complaint or the motion for attorney fees
and did not appear at the hearing on any of the motions—all we know about its contract-
related claims is the general allegation that JMS’s work on the University Avenue project
was deficient and breached express warranties “in the agreement.” No specific
agreement is identified as the basis for those claims; certainly none with an attorney fee
provision. As discussed, it was precisely this failure of Century Quality Management to
be specific and to allege sufficient facts to support any of its claims that prompted the
trial court to strike the pleadings and ultimately to dismiss the action with prejudice.
       To be sure, because of the apparent relationship of the various lawsuits involving
L&M and the University Avenue project, JMS’s contention that Century Quality
Management’s complaint sought damages arising out of the written contracts between
JMS and L&M for subcontracting work on that project is reasonable. But JMS failed to
proffer any admissible evidence to establish that crucial point. Although the L&M-JMS
subcontracts were included in a request for judicial notice and attached to the motion for
attorney fees, the operative pleadings in the action between JMS and L&M were not
submitted; neither was Century Quality Management’s motion for leave to file the cross-
complaint in that earlier lawsuit, a document that very likely would have demonstrated
the connection between its warranty claims in the instant case and the contract-related
claims at issue in the L&M-JMS litigation. Absent any of that material, however, the
trial court was unable to confirm counsel’s assertion the Century Quality Management
lawsuit was based on the same facts and contracts as that earlier action. Nor was there
any admissible evidence concerning Century Quality Management’s status or role in the



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construction of the University Avenue project or its relationship to L&M and the
subcontracts to which JMS was a party.
       Century Quality Management’s overly vague warranty claims and JMS’s
unsupported factual assertions are simply insufficient to justify an award of attorney fees.
(See Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838
[“‘[W]here the issue on appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law. [Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.”’”].)
                                       DISPOSITION
       The order denying attorney fees is affirmed. Because Century Quality
Management filed no respondent’s brief, each party is to bear its own costs on appeal.




                                                  PERLUSS, P. J.


       We concur:




              ZELON, J.


              FEUER, J.*




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