Filed 2/27/15 Rodriguez v. The Condon Group CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


JESUS RODRIGUEZ et al.,

     Plaintiffs and Appellants,                                        G049245

         v.                                                            (Super. Ct. No. 30-201100517158)

THE CONDON GROUP LLC et al.,                                           OPINION

     Defendants and Respondents.



                   Appeal from an order of the Superior Court of Orange County, H. Michael
Brenner. (Retired judge of the Orange County Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
                   Shahnaz Hussain for Plaintiffs and Appellants.
                   Tharpe & Howell, Paul V. Wayne and Eric B. Kunkel for Defendants and
Respondents.
              Jesus Rodriguez, Silvia Lopez, Carla Rodriguez, and Maricela Rodriguez
(collectively referred to as the Tenants unless the context requires otherwise), appeal
from the trial court’s order denying their request for attorney fees as the prevailing parties
in their action against former landlord Tobi Ishi Apartments aka, The Condon Group,
LLC (hereafter Condon).1 The Tenants prevailed on their causes of action for negligence
and premises liability, but the jury found Condon not liable for breach of the warranty of
habitability. As the prevailing party on two tort claims, the Tenants sought attorney fees
based on the terms of an agreement they did not actually sign. The court determined the
agreement did not authorize the recovery of attorney fees and denied the Tenants’ request
on that basis. We conclude the agreement was unenforceable and need not reach the
issue of whether it should be construed as permitting attorney fees in this case. And
although the parties’ operative rental agreement may authorize attorney fees, the Tenants
abandoned that claim on appeal. Accordingly, we affirm the trial court’s order denying
the Tenants’ request for attorney fees.
                                              I
              The Tenants executed a standard month-to-month agreement in February
2007 to rent an apartment in Santa Ana. Soon after moving in, the Tenants experienced
numerous problems, including water leaks, mold, lack of heating, vermin, and insects.
The Tenants became sick and notified Condon about the various problems. Unsatisfied
with the response they received, the Tenants filed a complaint against Condon alleging
negligence, premises liability, constructive eviction, intentional infliction of emotional
distress, and breach of the warranty of habitability.




1               Tenants also sued Condon’s managers Francisco and Dolores Jimenez. We
will refer to the two managers by their first names to avoid confusion with no disrespect
intended. When appropriate we will refer to Condon and the two managers collectively
and as a single entity “Condon.”

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              Before the jury heard the case, the court dismissed the constructive eviction
and emotional distress claims. A jury entered a verdict in favor of Condon on the breach
of warranty of habitability claim. It returned a verdict in the Tenants’ favor on the
negligence and premises liability causes of action. After a reduction of 50 percent for
comparative fault, the jury awarded the Tenants a combined total of $46,506.50 in
damages (Silvia $16,446, Jesus $8,590.50, Maricela $10,521.50, Carla $10,948.50).
              The Tenants filed a motion for attorney fees seeking $276,249. The
Tenants argued they were clearly the prevailing parties in the action and fees were
authorized by the terms of their rental agreement and Civil Code section 1717.
              In their moving papers, the Tenants asserted they had two rental
agreements, attached as exhibit No. 7 and exhibit No. 8 to their motion. However, the
attorney fee request was based solely on their interpretation of paragraphs 11 and 13
(hereafter Paragraph 11 and Paragraph 13) found in exhibit No. 7 (hereafter the Monthly
Agreement).
              Paragraph 11 of the Monthly Agreement stated, “The undersigned
Resident(s), whether or not in actual possession of the premises, are jointly and severally
liable for all obligations under this rental agreement, and shall indemnify owner for
liability arising prior to the termination of the rental agreement for personal injuries or
property damage caused or permitted by Resident(s), their guests or invitees. This does
not waive ‘Owner’s’ duty of care to prevent personal injury or property damage where
that duty is imposed by law.” And Paragraph 13 of the Monthly Agreement stated, “If
any legal action or proceeding be brought by either party to enforce any part of this
Agreement, the prevailing party shall recover, in addition to all other relief, reasonable
attorney’s fees and costs.” The Tenants argued Paragraph 11, an indemnity agreement,
authorized the recovery of attorney fees for tort claims because the last sentence clarified
the Tenants did not waive the owner’s duty of care towards them. They asserted



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Paragraphs 11 and 13 read together authorized attorney fees to the prevailing party in a
tort action.
               Condon opposed the motion on several grounds. First, it argued the
Tenants were relying on an unenforceable agreement and they were ignoring a valid
attorney fee agreement contained in the parties’ operative rental agreement. Condon
recited trial evidence proving the Monthly Agreement was not signed by the Tenants.
The apartment manager, Dolores, admitted she signed the Tenants’ names. When asked
why she created and signed a second contact, she explained the Tenants owed a $500
deposit and she wanted a copy of the rental agreement and their financial obligation for
her records. Condon asserted that based on this undisputed evidence the Monthly
Agreement’s attorney fee provisions were not binding on the parties because the
agreement lacked mutual consent.
               Condon argued the sole operative rental agreement was exhibit No. 8
(attached to the Tenants’ motion for attorney fees). It is a two page standardized form
agreement, and we will refer to this agreement as the Standard Rental Agreement. The
parties agree they all executed the Standard Rental Agreement. Although difficult to read
because the text is blurry, it plainly contains an attorney fee provision (Paragraph 21) and
an integration clause (Paragraph 26). We cannot decipher all the words contained in
these two paragraphs, but Condon asserts on appeal that Paragraph 21 stated, “Attorneys
[sic] Fees Waiver of Jury Trial: If any legal action or proceeding is brought by Owner or
Renter related to this Agreement, the prevailing party shall be entitled to recover
attorneys [sic] fees not to exceed $500.00.” Condon claims Paragraph 26 stated, “Entire
Agreement: The foregoing constitutes the entire agreement between the parties and
supersedes any oral or written representation or agreement contrary hereto. Tenant
represents that he has relied solely on his own judgment, experience and expertise in
entering into this Agreement.”



                                             4
              In its opposition, Condon argued fees were limited to $500 pursuant to the
terms of the Standard Rental Agreement, and in any event, the Tenants cannot recover
any fees because they did not prevail on a contract claim. Alternatively, Condon argued
the amount of fees requested by the Tenants’ counsel was not reasonable.
              The Tenants filed a reply insisting attorney fees could be based on the
indemnity provision of the Monthly Agreement. They explained the provision required
renters to indemnify the owner for tort liability, and also provided the owner may be “just
as liable.” They maintained the attorney fee provision was broadly written to apply to
any legal action brought by either party “‘to enforce any part’” of the agreement, which
would include Paragraph 11. The Tenants argued their negligence/premises liability
action arose from the contract because it fell within the definition of Paragraph 11. They
concluded the action sought to enforce a breach of Paragraph 11.
              With respect to Condon’s arguments about the enforceability of the
Standard Rental Agreement (exhibit No. 8), the Tenants asserted the contents were
illegible and it was impossible to find or read the provision limiting attorney fees to $500.
They argued Dolores handwrote the terms of the contract between the parties in both
rental agreements and when there are several contracts relating to the same matter, they
are to be taken together. (Citing Civ. Code, § 1642.) The Tenants asserted the rental
terms were the same on both contracts and they did not need to sign the Standard Rental
Agreement for it to be effective. They recognized the agreements were signed at
different times, but because the Monthly Agreement was signed last they claimed it
superseded the former agreement in the event any terms conflicted. Alternatively, the
Tenants argued that because the provisions in the Standard Rental Agreement are not
legible, the provisions in the Monthly Agreement must control. They failed to provide
any case authority to support their theory they may enforce an agreement they did not
sign. Similarly, they provided no case authority to support the notion a valid standard



                                             5
contract that is difficult to read should be ignored in favor of a more legible version they
did not actually sign.
              At the hearing, the court asked several questions about the Tenants’ theory
an indemnity provision would authorize attorney fees for tort claims. The court stated
Paragraph 11 appeared to be an oddly worded indemnity agreement, requiring tenants to
indemnify for any loss incurred by the landlord and the court concluded it did not create a
right to recover attorney fees for tort actions. The court determined Paragraph 11 stated
the landlord did not waive its duty but this statement would not “affect [the] contract in
any way.” The court found that because there was no recovery for tort causes of action
under Paragraph 13, the Tenants were not entitled to recover attorney fees.
                                              II
              On appeal, the Tenants assert the trial court incorrectly interpreted
Paragraph 11 and Paragraph 13 of the Monthly Agreement and erroneously failed to
award attorney fees. The Tenants argue they were the prevailing parties, and under Civil
Code section 1717, attorney fees were authorized by the express terms of the Monthly
Agreement. Their argument is premised on their belief the trial court determined the
Monthly Agreement (exhibit No. 7) was “the controlling rental agreement at the
September 12, 2013 hearing because the trial court referred to it” and failed to mention
the second rental agreement (the Standard Rental Agreement in exhibit No. 8). We note
the Tenants’ opening brief contains no other analysis regarding enforceability of the
Standard Rental Agreement. In their reply brief, the Tenants briefly discuss the issue by
asserting the two agreements “should be read together” but maintain the copy of exhibit
No. 8 is not legible and, therefore, the court correctly relied on exhibit No. 7 (the
Monthly Agreement).
              We conclude the premise of the Tenants’ argument is fundamentally
flawed, and consequently their arguments on appeal lack merit. It is true that the trial
court asked many questions about the meaning of the Monthly Agreement’s indemnity

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provision (Paragraph 11). The reporter’s transcript of the hearing shows the court found
the indemnity provision was oddly worded and ultimately concluded it could not be
construed to authorize attorney fees. In deciding Paragraph 11 was inapt, the court did
not reach the larger issue of whether the agreement was enforceable or valid because it
was not signed by the Tenants. This omission cannot be interpreted as a ruling in the
Tenants’ favor on this issue. There is nothing in the record to support such an inference.
The court made no ruling on the enforceability of either rental agreement.
              In any event, because our standard of review is de novo we are not bound to
follow the trial court’s analytical approach or ruling. “‘[T]o determine whether an award
of attorney fees is warranted under a contractual attorney fees provision, the reviewing
court will examine the applicable statutes and provisions of the contract. Where extrinsic
evidence has not been offered to interpret the lease, and the facts are not in dispute, such
review is conducted de novo. [Citation.]’ [Citation.] ‘As the case law makes clear, the
test is not whether the cause of action sounds in tort or contract. Instead, the sole
question is the intent of the parties: did they intend to authorize the prevailing party to
recover its attorney fees for a tort cause of action. [Citations.]’ [Citation.]” (Chinn v.
KMR Property Management (2008) 166 Cal.App.4th 175, 182-183.)
A. Mutual Intent Determines the Operative Agreement
              In this case before us, there was evidence of two rental agreements.
Because the issues litigated at trial related to claims of inhabitability and negligence,
there was no need to determine which contract was controlling. The jury’s verdict and
damages were based on factual findings of negligence and premises liability.
Consequently, the jury was not required to decide which document was the operative
agreement. The issue emerged only in the context of determining the Tenants’ attorney
fee motion.
              Before delving into contract interpretation, we must first determine the
exact language at issue, i.e., what was the operative agreement? Was it the Standard

                                              7
Rental Agreement, a combination of two rental agreements, or was it the Monthly
Agreement? A court’s goal “in interpreting a contract is to give effect to the mutual
intention of the contracting parties at the time the contract was formed. (Civ. Code,
§ 1636.) “Mutual intent is determinative of contract formation because there is no
contract unless the parties thereto assent, and they must assent to the same thing, in the
same sense. [Citation.]” (Banner Entertainment, Inc. v. Superior Court (1998) 62
Cal.App.4th 348, 359.)
              There was undisputed evidence presented at trial regarding the parties’
mutual intent with respect to the Standard Rental Agreement. The parties agree this
contract was executed by both sides and it contained the relevant rental terms such as the
names of the Tenants, the monthly rent of $950, the start date of February 1, 2007, and
the obligation to pay a $500 security deposit. This agreement was executed on February
1, 2007, and was signed by Condon, Jesus Rodriguez and Silvia Lopez.
              The same mutual intent is not evident with respect to the Monthly
Agreement. Dolores testified she alone filled out the form agreement to serve as a copy
of the parties’ actual rental agreement. She intended to use the document to prove the
Tenants owed a $500 security deposit. Dolores admitted she signed on behalf of Condon,
and she handwrote the Tenants’ names at the bottom of this contract. Dolores stated she
kept her version of the rental agreement in her files and intended to let the Tenants know
she had a copy if they needed to see it. The document does not reflect when Dolores
prepared the Monthly Agreement because she did not include a date when she signed the
document. It can be inferred from Dolores’s testimony that she believed the standardized
printed terms in the Monthly Agreement were the same as the Standard Rental
Agreement and, therefore, she believed she was creating the second document solely for
record keeping purposes.
              This inference is supported by the Tenants’ testimony. When Lopez was
questioned about the Monthly Agreement at trial, she testified she did not remember ever

                                              8
seeing the agreement and she denied signing it. She declared the handwriting was not
hers. There was no evidence the Tenants saw this agreement or assented to terms
different from their original Standard Rental Agreement.
              Based on all of the above, we conclude the operative agreement is the
Standard Rental Agreement. The Monthly Agreement is not enforceable because there is
no evidence the parties mutually intended to be bound by its terms. Additionally, there is
nothing to suggest either party intended to create a second rental agreement to supersede
or replace their original Standard Rental Agreement. If the roles were reversed, and
Condon was seeking to enforce a provision of the Monthly Agreement, there is no doubt
the Tenants would prevail by arguing it was unenforceable due to lack of mutual
intention.
B. The Two Rental Agreements Cannot be Combined
              The Tenants believe the Monthly Agreement contains more favorable terms
than the Standard Rental Agreement. They are in the awkward position of seeking to
replace their actual rental agreement with a version they did not sign. Their solution on
appeal is to urge this court to treat the two rental agreements as one transaction pursuant
to Civil Code section 1642. They then ask us to enforce the paragraphs that are easier to
read and ignore the paragraphs that are nearly illegible. Not surprisingly, there is no legal
authority to support what they are trying to accomplish.
              Civil Code section 1642 allows two or more writings to be “taken
together.” It specifically provides, “Several contracts relating to the same matters,
between the same parties, and made as parts of substantially one transaction, are to be
taken together.” (E.g., Reigelsperger v. Siller (2007) 40 Cal.4th 574, 580 [informed
consent agreement and arbitration form signed at the same time should be construed
together]; Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1060
[trial period plan and loan modification agreement should be construed together];
Fillpoint, LLC v. Maas (2012) 208 Cal.App.4th 1170, 1178 [purchase agreement and

                                             9
employment agreement entered roughly the same time as part of single transaction must
be construed together]; Nevin v. Salk (1975) 45 Cal.App.3d 331, 335, 338 [agreement of
sale, two notes, real property deed of trust, and chattel mortgage formed single contract
for sale of veterinary practice].”
              Generally, whether multiple contracts are intended to be elements of a
single transaction under Civil Code section 1642 is a question of fact. (Pellegrini v.
Weiss (2008) 165 Cal.App.4th 515, 534.) We found no facts in this record to support the
conclusion the two rental agreements should be read together. True, they both relate to a
single transaction but rather than supplementing each other, they are duplicative and do
not refer to each other. Indeed, each rental agreement is printed on a standardized form
intended for landlords and tenants to easily use in their transactions. Each document is
clearly intended to stand alone as the complete agreement. There is nothing to suggest
the two agreements are each a part of one transaction that the parties intended to
incorporate in a single document. Civil Code section 1642 does not apply in these
circumstances.
              Moreover, at trial the parties never suggested the two agreements were
intended to be read together or incorporated into one document. With respect to the
Tenants, Lopez stated she was unaware of the Monthly Agreement. “A secondary
document becomes part of a contract . . . provided the terms of the incorporated
document are readily available to the other party. (King v. Larsen Realty, Inc. (1981)
121 Cal.App.3d 349, 357, italics added.) Such was not the case here. The evidence
shows the Tenants never knew the Monthly Agreement existed when they were renting
the apartment.
              With respect to the landlord’s (Condon’s) intention, Delores stated she
created the Monthly Agreement to merely serve as a copy or record of the Standard
Rental Agreement previously signed. She did not suggest the two contracts were two
parts of a single transaction. We found no evidence indicating the parties understood

                                            10
they needed or desired two separate standardized rental agreements to formalize their
transaction.
               And finally, we conclude the Tenants fail to appreciate the purpose of Civil
Code section 1642. On one hand, the Tenants assert they wish to enforce both
agreements and read them together. On the other hand, they assert any illegible terms in
one agreement should be ignored. This argument does not support a full integration of
the two documents as part of one transaction. The Tenants wish to join the two
agreements to have one attorney fee provision supersede and replace the attorney fee
provisions in the other. Civil Code section 1642 serves to treat two instruments covering
the same subject matter as having the effect of all terms being incorporated into one
document. It does not authorize the elimination of less favorable or conflicting terms.
C. Interpretation of the Standard Rental Agreement
               The Tenants did not seek attorney fees below or on appeal based on the
attorney fee provision contained in the Standard Rental Agreement. The fact it is
difficult to read is not dispositive. What ends our analysis is the Tenants’ apparent
abandonment of the issue. They had the burden below and on appeal to establish the
existence of a contract provision authorizing attorney fees to the prevailing party on tort
causes of action. On appeal, an argument may be deemed waived or abandoned if
appellant fails to present relevant legal authority or reasoned argument. (See Badie v.
Bank of America (1998) 67 Cal.App.4th 779, 784-785; Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 545-546 [it is not the proper function of Court
of Appeal to search the record on behalf of appellants or to serve as “backup appellate
counsel”]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [appellate court not
required to consider points not supported by citation to authorities or record].) The
Tenants do not urge us to undertake an interpretation of the Standard Rental Agreement
so we will not endeavor to do so.



                                             11
                                           III
              We affirm the trial court’s order denying attorney fees. Respondents shall
recover their costs on appeal.




                                                 O’LEARY, P. J.

WE CONCUR:



RYLAARSDAM, J.



BEDSWORTH, J.




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