Castillo v. Community Med. Group

Filed 7/26/07 Castillo v. Community Med. Group CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEALS from a judgment and an order of the Superior Court of Los Angeles County, Haley J. Fromholz, Judge. Affirmed.

Stevens & Carlberg and Janeen Carlberg Yoshida for Plaintiff and Appellant.

Mesisca, Riley & Kreitenberg, Patrick A. Mesisca, Jr., Dennis P. Riley and Rena K. Kreitenberg for Defendant and Respondent.

___________________

INTRODUCTION

Plaintiff Gregory Castillo, M.D., appeals from a summary judgment entered in favor of defendant Community Medical Group of the West Valley, Inc. (No. B185657). Plaintiff also appeals from an award of attorney fees against him (No. B187734). We consolidate the two appeals for purpose of argument and decision. We affirm the summary judgment and the award of attorney fees.

FACTS

Overview

Plaintiff was a primary care physician for defendant. On June 18, 2004, plaintiff filed an action for 1) sexual harassment; 2) retaliation; 3) failure to prevent harassment; 4) wrongful termination; 5) breach of contract; and 6) breach of the implied covenant of good faith and fair dealing. Plaintiff alleged that he was sexually harassed by Amber McCartney (McCartney), an office receptionist 22 years plaintiffs junior, and when he complained, he was subjected to retaliation and was terminated. Defendant claimed that there was no sexual harassment or retaliation and plaintiff was terminated because 27 patients wrote letters of complaint about plaintiff in 18 months.

Defendants Evidence in Support of Summary Judgment

Defendant hired plaintiff as a primary care physician in April 2001, pursuant to an employment agreement dated April 4, 2001. Plaintiff reported directly to defendants president, Bernard Siegel, M.D. (Siegel). Siegel was concerned that plaintiff had received seven patient grievances in his first few months. Siegel met with plaintiff in March 2002 and warned plaintiff that the patient complaints were unacceptable. No primary care doctor had received seven complaints in such a short period of time. Siegel told plaintiff that he must dramatically improve his patient skills. By September 2002, plaintiff had received seven more patient complaints. Victor Reyes, M.D. (Reyes), defendants Medical Practice Committee Chairman, talked to plaintiff. Reyes was aware that most doctors receive one or two complaints per year. Reyes tried to give plaintiff advice about improving his patient communication.

Defendants regional manager, Betsy Adams (Adams), became concerned with other staff-related issues. When the current office manager, Cheri Ann Heller (Heller), resigned in December 2002, Adams hired Lynne Jones (Jones). Jones became concerned about plaintiffs disruptive behavior and complaints from patients. After a meeting in February 2003, plaintiff told Adams that he wanted her to intervene and assist with problems he was having with Jones. Plaintiff did not mention anything about sexual harassment. Also in February 2003, Siegel learned of three more patient complaints. A meeting was set with Adams, Siegel and plaintiff.

On February 20, 2003, at the meeting with Adams, Siegel and plaintiff, Siegel again discussed the continuing patient complaints. Plaintiff complained that Jones was condescending, rude and disrespectful. Plaintiff did not mention harassment, retaliation, or McCartney. The parties agreed to meet with Jones and try to resolve the conflict. At the meeting with Jones, Jones and plaintiff each claimed that the other had acted inappropriately. Plaintiff again did not mention harassment, retaliation or anything relating to McCartney.

On March 11, 2003, during a meeting with Human Resources Manager, Connie Kerr (Kerr), plaintiff first discussed inappropriate conduct by McCartney. He also indicated that Jones was unresponsive and disrespectful because she was protecting McCartney. He complained that McCartney was belligerent and rude. Defendant conducted an internal investigation. Adams interviewed plaintiff, McCartney, and other employees. During the interview with Adams, plaintiff stated that McCartney had not done anything sexual in nature since October 2002, and he did not report any conversations of a sexual nature. He indicated that his primary concern was that McCartney was rude and demanding in the office. The three examples of sexual conduct that plaintiff gave were: (1) McCartney asked plaintiff about a mole on her chest at work; (2) McCartney had shown him a mole on her leg; and (3) when her knee was hurt, McCartney had come to the Urgent Care for an exam when plaintiff was on duty.

Adamss interviews with other staff members revealed that plaintiff was a disruptive presence in the office. On April 28, 2003, Adams and Siegel met with plaintiff and explained that McCartneys conduct did not warrant discipline. Plaintiff was also told that several staff members continued to complain about plaintiffs conduct in the office. Plaintiff also received a copy of a patients complaint. Plaintiff had encouraged the patient to file a complaint. Siegel gave plaintiff a copy of the letter and told plaintiff that he had to improve his communication with patients immediately.

On June 10, 2003, defendant received another complaint about plaintiff. Siegel alone decided to terminate Castillo, without notifying or consulting Jones, based on the continuing complaints. He never discussed with Jones her feelings about plaintiff. Defendant gave plaintiff 30 days notice of his termination on June 20, 2003, citing plaintiffs rude treatment of patients and the letters of complaint.

Plaintiffs Evidence in Opposition to Summary Judgment

At the March 2002 meeting, Siegel and Adams showed plaintiff approximately seven patient complaints. Siegel asked him to be aware of the complaints. He was not told to improve his patient relations, however. The only other time that patient complaints were mentioned to plaintiff before he made complaints of sexual harassment was during a telephone conversation he had with Reyes sometime after March 2002. Again, plaintiff was not asked to improve his patient relations.

During plaintiffs employment, McCartney was offensive with her language and her conduct toward plaintiff, including trying to show plaintiff a mole on her chest and asking plaintiff to examine various body parts. In October 2002, McCartney was at Urgent Care seeking to have plaintiff examine her knee. Plaintiff also thought McCartneys behavior to be inappropriate and unprofessional. Plaintiff first complained to Heller in 2002 about McCartneys conduct. Plaintiff admits his complaints to Heller were vague and general. After plaintiff complained to Heller in October 2002, McCartneys behavior became hostile and belligerent toward him.

Heller left in December 2002 and Jones became the office manager. Plaintiffs perception was that Jones and McCartney were very friendly.

On February 13, 2003, plaintiff complained to Adams about Jones. Plaintiff told Adams that he believed Joness hatred was because plaintiff complained about McCartney. Plaintiff requested a meeting. At the meeting on February 20, 2003, plaintiff tried to discuss the sexual harassment and retaliation issues. He was interrupted by Adams and Siegel, who informed him that complaints by patients were a problem.

On February 24, 2003, Adams gave plaintiff a memorandum showing that he had received more complaints than other doctors. Plaintiff also received a memorandum concerning statements about him made by other staff members.

On March 12, 2003, plaintiff met with Kerr and reiterated his previous complaints. Adams assumed the responsibility for handling the complaints. Plaintiff was never advised of the status of the investigation.

On April 28, 2003, Siegel gave plaintiff a memorandum of his findings. The memorandum concluded that plaintiff had given the staff mixed messages by joking around with them, having lunch and going out with staff. Siegel concluded that plaintiff must establish and maintain a professional and consistent working relationship with the staff.

On May 23, 2003, plaintiff sent a letter to Siegel and Adams complaining about the memorandum of April 28, 2003. On June 12, 2003, Siegel responded to plaintiffs letter and indicated that plaintiffs complaints were not going to be addressed further. On June 15, 2003, plaintiff responded to Siegels June 12, 2003 letter.

On June 20, 2003, plaintiff was given a memorandum which terminated his employment. The termination notice indicated that plaintiffs performance warranted termination because of patient complaints.

DISCUSSION

Standard of Review on Summary Judgment

Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc.,  437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc.,  437c, subd. (p)(2); Aguilar, supra, at p. 849.) All doubts as to the propriety of granting the motion are resolved in favor of the opposing party. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

On appeal, we exercise our independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419.)

Whether There is a Triable Issue of Fact as to Plaintiffs Cause of Action for Sexual Harassment

Plaintiff submits that there is a triable issue of material fact concerning his cause of action for sexual harassment. We disagree.

For sexual harassment to be actionable under the Fair Employment and Housing Act (FEHA), it must be sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment. (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 160-161.) Factors considered by the court in evaluating the totality of the circumstances, in a claim of a sexual harassment hostile working environment, include: (1) the nature of the unwelcome sexual acts or words (with physical touching generally considered more offensive than mere words); (2) the frequency of the offensive acts or encounters; (3) the total number of days over which all the offensive conduct occurred; and (4) the context in which the sexually harassing conduct occurred. (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 150.)

The alleged inappropriate acts or words included McCartney asking plaintiff, a doctor, for medical examination. There was evidence that plaintiff overheard personal conversations McCartney had with others and that McCartney allegedly asked plaintiff about his dating life and flirted with him. The evidence is undisputed that plaintiff also participated in horseplay at work and with coworkers outside work, including going out for meals and drinking with staff and even smoking marijuana with staff outside of work. The socializing included the alleged sexual harasser, McCartney. The record is devoid of evidence that McCartney ever said anything sexual to plaintiff or touched him inappropriately.

For plaintiff to prevail, he must be able to show a pattern of harassment of a routine or generalized nature. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1123.) That was not done by plaintiff. The actions of McCartney did not interfere with plaintiffs job performance or create a hostile working environment. The evidence is undisputed that plaintiff participated with staff in social activities. What interfered with plaintiffs job performance was the increasing number of patient complaints he received while employed by defendant.

Whether There is a Triable Issue of Fact as to Plaintiffs Cause of Action for Retaliation

Plaintiff submits that there is a triable issue of material fact concerning his cause of action for retaliation. Again, we disagree.

To establish a prima facie case of unlawful retaliation, a plaintiff must demonstrate that he or she engaged in a protected activity, the employer subjected him or her to an adverse employment action, and there was a causal link between the protected activity and the employers action. (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) If the employee can state a prima facie case, the burden shifts to the employer to demonstrate that the adverse employment action was taken for a reason other than retaliation. (Yanowitz, supra, at p. 1042; Flait, supra, at p. 476.) If the employer is able to do so, the presumption of retaliation is removed, and the burden shifts back to the plaintiff to produce evidence demonstrating that the employers articulated reason was merely a pretext, and there was intentional retaliation. (Yanowitz, supra, at p. 1042; Flait, supra, at p. 476.)

To obtain summary judgment on a retaliation cause of action, a defendant may demonstrate that some element of the prima facie case cannot be established. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202-203.) Alternatively, the defendant may demonstrate that the adverse employment action was taken for a reason other than retaliation. (Ibid.) If defendant does so, defendant is entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendants showing (id. at p. 203), i.e., that defendants reason for the adverse employment action was retaliatory and the reason given pretextual. (Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th at p. 1042; Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 476).

Even if we assume arguendo that plaintiff stated a prima facie case, defendant met its burden of showing a nonretaliatory reason for the termination. The evidence presented indicated that plaintiff was warned, counseled and finally terminated for receiving excessive patient complaints. While we agree with plaintiff that timing is an important factor in evaluating retaliation claims, the evidence is undisputed that plaintiff had performance issues long before he complained about McCartneys conduct. Plaintiff admits that Siegel counseled him about patient complaints in March 2002, well before plaintiff ever complained of sexual harassment. In September 2002, also before plaintiff complained, Reyes talked to plaintiff about reducing patient complaints.

While plaintiff complained to Heller about McCartney in 2002, the complaints did not mention sexual harassment. Heller never knew that he had any sexual harassment complaint. Before the February 20, 2003 meeting, plaintiff never said anything to Adams about McCartney and never suggested that Jones was retaliating against him. Plaintiffs deposition testimony also indicated that he was offended because he did not get to talk about his issues until the end of the meeting, after Siegel advised him of the unacceptable number of patient complaints. Plaintiff also indicated in his deposition that even at the end of the February 20, 2003 meeting, he did not mention anything about McCartney, sexual harassment or retaliation. His complaints about Jones were the same one that he had previously made: that she was a tyrant, condescending and rude.

Plaintiff did not tell Kerr that he had a complaint of sexual harassment in March 2003. His deposition testimony was as follows: I did not specifically mention sexual harassment . . . the complaint to Human Resources at that time was based on the general complaints I made about any given employee . . . .

The first time the evidence indicates that plaintiff engaged in a protected activity was on March 24, 2003, when he told Adams that he believed he had experienced sexual harassment. Adams investigated the complaint and did not find any evidence of sexual harassment. The evidence is clear that plaintiff was terminated for an excessive number of patient complaints, 27 in 18 months.

Plaintiff did not produce sufficient evidence of a pretext to raise a triable issue of fact. Plaintiff suggests that since there was no evidence of written communications to him about his poor performance, he has established pretext. He cites no authority for this claim. The evidence is undisputed that plaintiff was made aware of patient complaints within the first few months of his employment with defendant. Plaintiff himself admits that he met with his superiors on at least two occasions about patient complaints before he complained about McCartney or retaliation.

Whether There is a Triable Issue of Fact as to Plaintiffs Cause of Action for Failure to Prevent Harassment.

Since the plaintiff has not shown that there was sexual harassment, there is no cause of action for failure to prevent harassment. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

Whether There is a Triable Issue of Fact as to Plaintiffs Cause of Action for Wrongful Termination

As with plaintiffs retaliation cause of action, once defendant demonstrated that the adverse employment action was taken for a legitimate, nondiscriminatory reason, it was entitled to summary adjudication as to that cause of action unless the plaintiff produce[d] admissible evidence which raises a triable issue of fact material to the defendants showing. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150, italics omitted.)

Plaintiff concedes that his wrongful termination cause of action is dependent upon the viability of his sexual harassment and retaliation claims. Because plaintiffs sexual harassment and retaliation claims did not present triable issues of fact, the claim for wrongful termination also is not viable.

Whether There is a Triable Issue of Fact as to Plaintiffs Cause of Action for Breach of Contract

The contract between plaintiff and defendant was a written employment agreement.[1] Defendant terminated plaintiff pursuant to Paragraph 6.4, allowing termination without cause. Defendant paid plaintiff a pro rata share of his salary as required by Paragraph 6.7 of the agreement.

Plaintiff was terminated on June 20, 2003 and was paid through July 18, 2003. Plaintiff alleges that he had a yearly contract from April 4, 2003 through April 3, 2004 and should have been paid through April 3, 2004. We disagree. A fair reading of the employment contract provides that upon termination, the employee is entitled to a pro rata share of his base salary. It is clear that pro rata does not mean total or the remaining portion, but simply proportional. Thus, defendant did not breach the employment agreement by failing to pay plaintiff through April 3, 2004.

Plaintiff was also paid commissions owed on March 30, 2005, in an amount of $2,941.97. While this payment may have not been made timely, it was made prior to the motion for summary judgment. Plaintiff therefore did not establish a triable issue of fact as to breach of contract.

Whether There is a Triable Issue of Fact as to Plaintiffs Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing.

As plaintiff concedes, if his retaliation, wrongful termination and breach of contract causes of action fail, his cause of action for breach of the implied covenant of good faith and fair dealing also fails. Since defendant has shown good cause for plaintiffs termination and plaintiff has failed to present evidence establishing a triable issue of fact as to his other causes of action, this cause of action fails as well. (Stokes v. Dole Nut Co. (1995) 41 Cal.App.4th 285, 296.)

Since all of plaintiffs causes of action fail, his claim for punitive damages fails as well.[2]

Untimely Service of the Summary Judgment Motion

Plaintiff claims that he received defendants motion for summary judgment on Monday, January 31, 2005. Defendant claims that the motion was served on Friday, January 28, 2005, at 5:15 p.m. Even if the motion was served on January 28, 2005, it was not timely by 15 minutes. Code of Civil Procedure section 437c requires 75 days notice on a motion for summary judgment. Code of Civil Procedure section 1011 requires service to be made by leaving the documents between the hours of nine in the morning and five in the afternoon.

Defendant claims that the papers did not arrive on time because of record breaking rainfall, which excused their timely delivery. This claim is without merit. If a party files a lawsuit one day after the statute of limitations has run because of record rainfall or any other reason, the lawsuit is still barred by the statute of limitations.

Defendant also asserts that plaintiff waived the objection to the tardy service by fully opposing and appearing at the hearing on the motion. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) We find merit in this argument. The facts in Carlton are similar to the facts at issue here. An opposition to the motion for summary judgment was filed before the hearing and plaintiff appeared and argued at the summary judgment hearing. Plaintiff did not request a continuance or contend that he was prejudiced by the inadequate notice or service. Plaintiff did not assert any prejudice or request a continuance as a result of the untimely service. He merely stated that service had not been made in compliance with Code of Civil Procedure section 1011. The court held that by opposing the motion and appearing at the hearing on the motion, plaintiff waived his claim of inadequate service or notice. (Ibid.) The same applies here.

Plaintiff also claims that the trial court erred in granting defendants motion for reconsideration. The record here shows that on April 13, 2005, the trial court ruled that the motion for summary judgment was untimely. Defendant sought reconsideration of that ruling. After a hearing on May 3, 2005, the trial court granted the defendants motion.

Plaintiff claims the trial court lacked jurisdiction to reconsider its ruling under Code of Civil Procedure section 1008. While defendant termed its motion one for reconsideration, it actually sought relief under Code of Civil Procedure section 473c,[3] which the trial court granted. Plaintiff has failed to show that the trial court abused its discretion in granting relief under this section. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)

The Award of Attorney Fees Under FEHA

Plaintiff asserts that the award of attorney fees and costs under FEHA was error because his claims were not frivolous. A trial courts award of attorney fees and costs is subject to an abuse of discretion standard. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386-1387.) We find no abuse of discretion.

Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, cited by plaintiff, actually indicates that it is the trial courts discretion to award fees to defendants where the action filed by plaintiff was unreasonable, frivolous, meritless, or vexatious. (Id. at p. 866.) Meritless is groundless or without foundation, not simply that plaintiff lost his case. (Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1387.)

The trial court, in its order awarding fees, was very specific in listing the bases upon which it determined that plaintiffs action was unreasonable or frivolous. The findings included the following: (1) As to the sexual harassment claim, the conduct alleged was far from sufficient to support plaintiffs claim. (2) Most of the conduct alleged was not sexual in nature. (3) As to the cause of action for retaliation, plaintiff was not able to prove a prima facie case because his own declaration was contradicted by his deposition testimony. (4) Defendant was able to show a legitimate, nondiscriminatory reason for plaintiffs termination. (5) Finally, the causes of action for wrongful termination and failure to prevent harassment were unsupportable for the same reasons.

With respect to plaintiffs sexual harassment claim, plaintiff was unable to establish that McCartneys conduct was sexual in nature. There was no evidence presented that McCartney had any conversations of a sexual nature with him. It is important to note that plaintiff participated in horseplay with coworkers at work and outside work. Certainly, the conduct of McCartney was not severe or pervasive. Since there was no sexual harassment, there clearly was no action for failure to take steps necessary to prevent harassment.

As discussed above, plaintiff failed to show that the actions of defendant were to retaliate after plaintiff engaged in a protected activity. The evidence is undisputed that the first time plaintiff mentioned sexual harassment was in March 2003, many months after he had previously been warned about the patient complaints, complaints that continued even after plaintiff was aware of the complaints. It thus is clear that plaintiffs termination was not pretextual, but based on the patient complaints.

The trial court awarded attorney fees because it found that the plaintiffs claims were unreasonable, and good cause existed to grant attorney fees to defendant for his wrongful termination cause of action under Government Code section 12965, subdivision (b). We concur.

The Award of Attorney Fees Under the Contract

The fifth and sixth causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing are non-FEHA causes of action. Defendant sought attorney fees pursuant to Civil Code section 1717, subdivision (a),[4] and Article VII, Section 7.5 of plaintiffs employment agreement, which provides: If any legal action or other proceeding . . . is commenced which is related to this Agreement, the losing party shall pay the prevailing partys actual attorneys fees and expenses incurred in the preparation for, conduct of, or appeal or enforcement of judgment from the proceeding.

Plaintiff argues that he is the prevailing party because he was paid commissions of $2,941.97 after this lawsuit was filed. Defendant disputed that the amounts were due and owed under the employment contract. The trial court indicated that even if the payment of the lost commission was considered favorable relief, it would only establish that plaintiff prevailed on one of five types of damages alleged in his breach of contract cause of action.

The trial court has discretion to determine the prevailing party. (Acree v. General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385, 399.) The trial court found that plaintiff did not have sufficient evidence to support any of his claims. It is abundantly clear that defendant obtained greater relief and is entitled to attorney fees as the prevailing party. (Ibid.)[5]

DISPOSITION

The summary judgment and the order awarding attorney fees are affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

ROTHSCHILD, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] Two pertinent provisions in the written employment agreement are as follows: 6.1 Term. This Agreement shall begin on the date that Employee begins to provide medical services to CMGWV patients (Effective Date) and shall remain in effect for a term of one (1) year. The Effective Date of this agreement is April 15, 2001. Thereafter, this Agreement shall renew for successive one-year periods unless either party gives written notice to the other party of such partys intention not to renew this Agreement, which shall be provided at least thirty (30) days prior to the renewal date. (Bold deleted.)

6.4 Mutual Termination. Either party shall have the right to terminate this Agreement without cause upon thirty (30) days prior written notice to the other party.

[2] Defendant also argues that since the trial court sustained all of defendants evidentiary objections and plaintiff did not appeal the evidentiary rulings, the appeal must fail. (TIG Ins. Co. of Michigan v. Homestore, Inc. (2006) 137 Cal.App.4th 749, 762; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1015.) Based upon our decision to affirm the judgment of the trial court, we do not reach this issue.

[3] Code of Civil Procedure section 473, subdivision (b), permits the trial court to grant relief from a judgment, order or other proceeding taken against a party by mistake, inadvertence, surprise, or excusable neglect.

[4] Civil Code section 1717, subdivision (a), provides: In any action on a contract, where the contract specifically provides that attorneys 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 attorneys fees in addition to other costs.

[5] We also reject plaintiffs claim that the amount of attorneys fees awarded would be financially devastating to plaintiff. He submitted no evidence in support of this contention.

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