Filed 7/10/17 El Dorado Custom Pools v. Stein CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(El Dorado)
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EL DORADO CUSTOM POOLS,

Plaintiff, Cross-defendant and Respondent,

v.

STEVEN DANIEL STEIN,

Defendant, Cross-complainant and Appellant.


C075500

(Super. Ct. No. PC20080413)



El Dorado Custom Pools (Custom Pools) sued Steven Stein asserting breach of contract, quantum meruit and other claims following the partial construction of a pool, and Stein cross-complained. The trial court found the contract unenforceable, the quantum meruit claim was removed to bankruptcy court and later dismissed for lack of prosecution, and Stein ultimately dismissed his cross-complaint. The trial court entered judgment awarding nothing to Custom Pools on its complaint and nothing to Stein on his cross-complaint, but noted the judgment did not preclude a motion for attorney’s fees.
Stein moved for $241,647.20 in attorney fees. The trial court awarded him $31,888.57 based on Stein’s early effort to prove the contract was unenforceable, concluding that was the only matter arising out of the contract as required by Business and Professions Code section 7168.
Stein now contends he was entitled to a liberal interpretation of section 7168 due to pro-consumer fee-shifting legislation and the achievement of his main litigation objectives. We will affirm the trial court’s order.
BACKGROUND
Stein contracted with Custom Pools to build a pool on his property. Following excavation, Custom Pools sent Stein a partial bill, and then stopped work when Stein refused to pay. Custom Pools sued Stein asserting breach of contract, quantum meruit and other claims, and Stein filed a cross-complaint.
The trial court determined the contract was void and unenforceable because it did not comply with the consumer protection requirements described in section 7159. As a result, Custom Pools dismissed all of its claims except the quantum meruit cause of action. The trial court ruled Custom Pools was entitled to recover the reasonable value of the materials and services it provided to Stein, leaving for trial a determination of the amount.
Shortly before trial, however, Stein removed the case to federal bankruptcy court. The bankruptcy court eventually dismissed the complaint and cross-complaint for lack of prosecution, but the Bankruptcy Appellate Panel for the Ninth Circuit reinstated Stein’s cross-complaint and remanded the case to El Dorado Superior Court.
The trial court permitted Stein to dismiss his cross-complaint and entered a judgment awarding nothing to Custom Pools on its complaint and nothing to Stein on his cross-complaint. The trial court noted the judgment did not preclude a motion for attorney’s fees.
Stein moved for $241,647.20 in attorney’s fees, but the trial court awarded him $31,888.57 based on Stein’s early effort to prove the contract was unenforceable, concluding that was the only matter arising out of the contract as required by section 7168.
STANDARD OF REVIEW AND APPLICABLE LAW
Attorney’s fees are recoverable only when authorized by statute or contract. (Code Civ. Proc., § 1021.) Stein requested attorney’s fees pursuant to section 7168. The determination of the statutory basis for an award of attorney’s fees is a question of law that we review de novo. (Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 450.)
Section 7168 provides: “In any action between a person contracting for construction of a swimming pool and a swimming pool contractor arising out of a contract for swimming pool construction, the court shall award reasonable attorney's fees to the prevailing party.”
With respect to cost recovery, the term “prevailing party” generally means a party with net monetary recovery, a defendant in whose favor dismissal is entered, a defendant where neither party obtains relief or a defendant as against those plaintiffs who do not recover any relief against that defendant. (Code Civ. Proc., § 1032, subd. (a)(4).) But where the prevailing party is not obvious, identification of the prevailing party is a matter of trial court discretion. (Ibid.) This is particularly true when a contract claim is dismissed before trial. (Santisas v. Goodin (1998) 17 Cal.4th 599, 613, 621.) To determine which party prevailed on a contract claim that has been dismissed, “a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise.” (Id. at p. 622.)
We indulge all intendments and presumptions to support an attorney fee award unless error is affirmatively proven and we do not reverse a trial court’s fee award unless the trial court considered improper factors or simply snatched its award from thin air. (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1189-1190.) The reasonableness of the amount awarded is left to the broad discretion of the trial court. We review the amount awarded for abuse of discretion. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)
DISCUSSION
Stein argues a remedial statute like section 7168 must be interpreted broadly to accomplish its protective purpose. Specifically, he argues that unlike the narrower “on the contract” language in Civil Code section 1717, the “arising out of the contract” language in section 7168 has a broader scope allowing for the fee recovery he requested in this case. We understand Stein to suggest that although the Custom Pools quantum meruit claim was based in equity rather than in contract, it nevertheless was a claim “arising out of the contract” because Custom Pools would not have done the work if the parties had not signed a contract.
We are not persuaded that it is appropriate to adopt such a broad interpretation of the “arising out of the contract” language in this context. But even if we did adopt such an interpretation, Stein has not established that he is the ultimate prevailing party as required by section 7168.
The trial court determined the contract was void and unenforceable. Thus, as the trial court found, Stein won that round. But as Stein acknowledges, section 7167 provides that even where a contract is void, the contractor may recover under quantum meruit or other equitable remedies designed to prevent unjust enrichment. When the trial court made the determination that Custom Pools was entitled to such relief, Custom Pools won the second round. Ultimately, all the claims were dismissed on both sides, with Custom Pools apparently abandoning its quantum meruit claim based on Stein’s declared insolvency. The trial court found that each side obtained some, but not all, of their litigation objectives in this case.
On this record, the trial court did not err or abuse its discretion in awarding some, but not all, of Stein’s requested attorney’s fees.
Stein also argues the trial court erred in failing to award “fees on fees” (i.e., the fees associated with seeking an award of attorney fees). Attorney fee awards ordinarily include such fees, but not when the total award would be unjust. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) By stating that the award represented a “reasonable” amount, the trial court implicitly concluded the amount sought by Stein was unreasonable and unjust. The trial court was in a better position to determine whether the requested attorney’s fees were inflated. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 991.) Stein’s argument regarding fees on fees lacks merit.
DISPOSITION
The trial court’s order is affirmed.


/S/
MAURO, J.


We concur:



/S/
HULL, Acting P. J.



/S/
DUARTE, J.