Filed 9/26/17 Truong v. Nguyen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed.

Law Offices of Jeffrey S. Benice and Jeffrey S. Benice for Defendant and Appellant.

Charles H. Manh, Van N. Dao and William Welden for Plaintiff and Respondent.

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Defendant and appellant Chung Nguyen appeals from an order denying his request for attorney fees against plaintiff and respondent Truc Thanh Thi Truong. He claims he was entitled to fees under Civil Code section 1717 (section 1717) pursuant to an attorney fees provision in an agreement that was the subject of the action. The court denied the request on the ground there were no contract-based causes of action against him. We agree with that ruling and affirm the order.

FACTS AND PROCEDURAL HISTORY

Plaintiff and Tuyet Le (Le), a defendant in the action though not a party to the appeal, were partners pursuant to a written partnership agreement (Agreement). Plaintiff owned a 30 percent interest and Le owned the other 70 percent. They operated a business entitled Aloha Spa Salon, a massage parlor (Business).

The Agreement contained a provision that if an offer was made to purchase the entire Business, either party had the right of first refusal to purchase it.

Le received an offer from defendant, whom plaintiff claimed is Le’s boyfriend, to purchase the Business and gave notice to plaintiff. She refused to disclose defendant’s identity to plaintiff. Plaintiff gave notice to Le she was exercising her right to purchase the Business but Le refused to sell the Business to her and instead sold it to defendant.

Plaintiff filed an action against Le. Plaintiff thereafter amended the complaint (complaint) to add defendant as a party, alleging the complaint arose from Le’s breach of the Agreement by “creating a sham sale” of the Business to defendant. The complaint included purported causes of action against defendant and Le for conspiracy, fraud, violation of Penal Code section 496 (receiving stolen property), declaratory relief, imposition of a constructive trust, conversion, and for an accounting. The complaint also alleged causes of action for breach of contract and the covenant of good faith and fair dealing, specific performance, breach of fiduciary duty, and dissolution of partnership against Le only.

During trial the court granted defendant’s motion for nonsuit on the fraud cause of action. Plaintiff prevailed on her complaint against Le with an award of $30,000 in damages.

At the conclusion of trial defendant filed a motion for attorney fees pursuant to section 1717 that is nearly identical to his brief on appeal, seeking just over $72,000. The court denied the motion. Although it found defendant was the prevailing party based on nonsuit,[1] it also found he had no contractual right to recover attorney fees. As defendant conceded, he was not a party to the Agreement. Further, none of the causes of action against him were based on contract.

DISCUSSION

A party to an action is responsible for his own attorney fees unless a statute or contract provides to the contrary. (Code Civ. Proc., § 1021; Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1142.) Defendant relies on the attorney fees provision in the Agreement and section 1717 as the basis for his claim. Neither supports his claim.

The attorney fees provision in the Agreement states in part: “If any Party brings an action or proceeding involving the Agreement, whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys’ fees.” However, as the court found, defendant was not a signatory to the Agreement.

Relying on section 1717, defendant contends the fact he is not a party to the Agreement does not bar his right to recover attorney fees. The statute 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.” (§ 1717, subd. (a).)

Defendant points to the rule that “‘in cases involving nonsignatories to a contract with an attorney fee provision, . . . [a] party is entitled to recover its attorney fees pursuant to a contractual provision only when the party would have been liable for the fees of the opposing party if the opposing party had prevailed.’” (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 819-820.)

Defendant claims he was sued for breach of the Agreement and thus would have been liable for plaintiff’s attorney fees had plaintiff prevailed. He relies primarily on the cause of action for conspiracy, which alleged defendant and Le “jointly operated to perpetuate the wrongful acts” and were “jointly and severally liable for each of the wrongs.” He also points to the allegation from the breach of contract cause of action that Le breached the Agreement by engaging in a sham sale of the Business to defendant.

From these allegations, defendant concludes that had the jury found he was a conspirator or aider and abettor, he would have been jointly liable for breach of contract, and thus responsible for plaintiff’s attorney fees. This argument has no merit.

“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) Aiding and abetting is also a theory of tort liability. (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1286-1287.) “Tort and other noncontract claims are not subject to section 1717 and its reciprocity principles.” (Brown Bark III, L.P. v. Haver, supra, 219 Cal.App.4th at p. 820.) In determining whether to apply section 1717, the court may not consider any tort claims. (Brown Bark III, L.P., at p. 820.) Thus, even had plaintiff prevailed on a conspiracy theory of liability she would not have been entitled to an award of attorney fees.

Although defendant did not argue the issue, it is worth noting none of the causes of action against defendant were on a contract. Therefore, section 1717 is not applicable and provides no basis for defendant to recover attorney fees.

Because defendant is not entitled to fees there is no need for us to discuss whether the amount he requested is reasonable.

DISPOSITION

The order is affirmed. Plaintiff is entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.