Filed 2/25/15

                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



DON R. HEMPHILL,                                   D065462

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. 37-2012-00054705-
                                                   CU-PO-NC)
WRIGHT FAMILY, LLC et al.,

        Defendants and Respondents.


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

Robert P. Dahlquist, Judge. Reversed and remanded.

        Skolnick Law Group, Suzanne C. Skolnick; Kohn Law Office and Russell S.

Kohn for Plaintiff and Appellant.

        Wolfe & Wyman, Gregg L. Vorwerck and David C. Olson for Defendants and

Respondents.



        In this action, we interpret an attorney fee provision in a lease agreement which

allows the prevailing party in any action arising out of the homeowner's tenancy, the

agreement, or the provisions of the Mobilehome Residency Law (Civ. Code, § 798 et
seq.) to recover reasonable expenses including attorney fees and costs. We conclude

that a tenant's fall while walking across a common area lawn arose out of the

homeowner's tenancy and entitled him to an award of attorney fees as the prevailing

party in the action. Accordingly, we reverse the trial court's order denying a fee award

and remand the matter for further proceedings.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Wright Family, LLC dba Roadrunner Club (Roadrunner Club) is about a 200

acre manufactured home park consisting of home sites, a golf course, common areas

and a large "greenbelt" common area lawn. Don Hemphill purchased a home at the

park and leased the space under a written lease agreement with Roadrunner Club.

Roadrunner Club is required to maintain the common area lawns, which are open to

residents 24 hours per day, seven days a week. While on the lawn area near his home,

Hemphill stepped into a sunken and uncovered drainage hole causing him to fall and

suffer serious injuries.

       Hemphill sued Roadrunner Club alleging negligence and premises liability on

the property in which Hemphill was a tenant under the lease agreement. After being

instructed with CACI No. 1006 regarding a landlord's duty, a jury returned a special

verdict in favor of Hemphill and awarded him damages of $311,899.67. Following

trial, Hemphill moved for an award of attorney fees under his lease agreement with

Roadrunner Club, which allows the prevailing party to recover fees if the action arose

out of, among other things, the homeowner's tenancy. The trial court denied the

motion. Hemphill timely appealed.

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                                      DISCUSSION

       Hemphill argues the trial court erred in denying his attorney fees motion

because the action arose out of his tenancy and the Mobilehome Residency Law. We

conclude that the action arose out of Hemphill's tenancy. Accordingly, we need not

address Hemphill's alternative argument that the action arose out of the Mobilehome

Residency Law.

       Generally, each party to litigation must bear its own attorney fees, unless

otherwise provided by statute or contract. (Code Civ. Proc., § 1021, undesignated

statutory references are to this code.) While section 1021 does not independently

authorize recovery of attorney fees (Santisas v. Goodin (1998) 17 Cal.4th 599, 607, fn.

4), "[i]f a contractual attorney fee provision is phrased broadly enough . . . it may

support an award of attorney fees to the prevailing party in an action alleging both

contract and tort claims." (Id. at p. 608.) We use traditional contract interpretation

principles in assessing the extent of the parties' rights to recover attorney fees. (Ibid.)

Where, as here, the parties do not present extrinsic evidence to interpret the attorney

fee provision of a contract, we determine de novo whether the contractual attorney fee

provision entitles the prevailing party to attorney fees. (Exxess Electronixx v. Heger

Realty Corp. (1998) 64 Cal. App. 4th 698, 705.)

       Here, the Roadrunner Club lease agreement provides that in "any action

aris[ing] out of the Homeowner's tenancy, this Agreement, or the provisions of the

Mobilehome Residency Law, the prevailing party or parties shall be entitled to recover

reasonable expenses, including without limitation" attorney fees and costs. The

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attorney fee provision is written in the disjunctive and provides three independent

bases upon which attorney fees may be awarded. Significantly, the term

"[h]omeowner's tenancy" is not defined in the lease agreement. Roadrunner Club has

not offered a definition of the term, nor has it offered examples of the type of actions

arising out of a homeowner's tenancy. Moreover, as Hemphill notes, the lease

agreement is a preprinted form with blanks on the face page and first page to input the

date and tenant specific information. Accordingly, to the extent that an ambiguity

exists, we interpret the language "most strongly against the party who caused the

uncertainty to exist." (Civ. Code, § 1654.) On its face, the term "[h]omeowner's

tenancy" is very broad.

       The lease requires Roadrunner Club to maintain all physical improvements,

including common area lawns, in good working order and condition "for the non-

exclusive use of [h]omeowners." The lease agreement defines a resident as, among

other things, "the person(s) signing th[e] [lease] as [h]omeowner." In contrast, an

extra person is defined as, among other things, persons sharing the home site and

invitees on the home site "at the invitation, request or tolerance of [h]omeowner."

Additionally, until the prospective purchaser has been approved for tenancy and has

closed escrow on the home occupying the home site, such person is deemed to be an

"extra person" and not a "homeowner." Thus, the lease agreement clearly

differentiates a homeowner with a tenancy relationship with the Roadrunner Club from

all other individuals.



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       Hemphill was a homeowner and thus a tenant of the Roadrunner Club. The

jury found that Hemphill suffered injuries while crossing a common area lawn as a

result of Roadrunner Club's negligence. To make this determination, the court had

instructed the jury with CACI No. 1006 regarding a landlord's duty of care. On these

facts, we conclude the action here arose out of the homeowner's tenancy and the trial

court erred in denying Hemphill's motion.

       To avoid this result, Roadrunner Club argues the legal duty it breached was not

created by the lease agreement. While this assertion is correct, it ignores that the

attorney fee provision in the lease agreement contains three independent bases upon

which attorney fees may be awarded. "Courts must interpret contractual language in a

manner which gives force and effect to every provision, and not in a way which

renders some clauses nugatory, inoperative or meaningless." (City of Atascadero v.

Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473.)

Roadrunner Club's interpretation of the attorney fee provision renders the term

"[h]omeowner's tenancy" meaningless.

       The order is reversed and the matter is remanded to the trial court for a

determination of the reasonable amount of attorney fees and costs to be awarded

against Roadrunner Club for trial and this appeal. (Serrano v. Unruh (1982) 32 Cal.3d

621, 637 [attorney "fees, if recoverable at all—pursuant either to statute or parties'

agreement—are available for services at trial and on appeal"]; Lindelli v. Town of San

Anselmo (2006) 139 Cal.App.4th 1499, 1517 [determination of the amount of fees "is



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a factual issue more properly considered in the first instance by the trial court on

remand"].)

                                     DISPOSITION

       The order is reversed. The matter is remanded for further proceedings

consistent with this opinion. Appellant is awarded his costs on appeal.



                                                                 MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.




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