Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC354136. Elizabeth Grimes, Judge.
Charles G. Kinney for Cross-complainants and Appellants.
Marcus, Watanabe, Snyder & Dave, LLP and David M. Marcus for Cross-defendant and Respondent.
CHANEY, J.
Appellants Kimberly Kempton and Charles Kinney (“appellants”) appeal from the trial court’s order awarding attorney fees to respondent Michelle Clark. We affirm.
Background
The underlying action arose from the parties’ Residential Purchase Agreement (“Agreement”), which governed appellants’ purchase of property from Ms. Clark. The Agreement contained both an attorney fees and a mediation provision.
The facts and procedural history of the underlying case are set forth in our decision affirming the judgment of dismissal. (Kempton v. Clark (June 30, 2008, B200893) [nonpub. opn.].)
In a February 2007 letter to Ms. Clark, appellants requested mediation of their disputes under the Agreement. Appellants did not receive a response to their February letter and Ms. Clark stated she did not receive the letter, or any other mediation request, prior to receiving the complaint and summons in this case. In March 2007, appellants sued Ms. Clark. After filing suit, appellants sent three more letters to Ms. Clark requesting mediation. All of those letters were returned to appellants undelivered. Ms. Clark successfully demurred to the complaint and the trial court entered a judgment of dismissal, which we affirmed. (See fn. 1.)
Following appellants’ unsuccessful appeal, Ms. Clark requested, and the trial court awarded, attorney fees under paragraph 22 of the Agreement. Paragraph 22 provides that, in any action between appellants and Ms. Clark arising out of the Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs from the non-prevailing party, “except as provided in paragraph 17A” of the Agreement. Paragraph 17(A) requires appellants and Ms. Clark “to mediate any dispute or claim arising between them out of th[e] Agreement, or any resulting transaction, before resorting to arbitration or court action.... If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.”
Appellants appeal the court’s order awarding attorney fees, arguing Ms. Clark failed to comply with paragraph 17(A) and, therefore, is not entitled to attorney fees.
Discussion
We review the determination of an award of attorney fees de novo. (Van Slyke v. Gibson (2007) 146 Cal.App.4th 1296, 1299 (Van Slyke).)
1. Ms. Clark was not required to request mediation.
Appellants argue Ms. Clark waived her right to attorney fees because she did not request mediation before filing her demurrer. In considering the same paragraph 17(A) at issue here, the court in Van Slyke explained that “‘[s]eeking mediation is a condition precedent to the recovery of attorney fees by the party who initiates the action.’” (Van Slyke, supra, 146 Cal.App.4th at p. 1299.) Thus, because Ms. Clark did not initiate the action (but only demurred to appellants’ complaint against her), she was not required to request mediation as a condition precedent to her recovery of attorney fees. Appellants’ arguments to the contrary are without merit.
2. Ms. Clark did not receive appellants’ requests for mediation.
Appellants also argue that Ms. Clark is not entitled to attorney fees because she did not respond to appellants’ letters requesting mediation. But, as appellants’ documents reveal and Ms. Clark explained, she did not receive the letters. It is no surprise, therefore, that Ms. Clark did not respond to them. Although section 641 of the Evidence Code permits an inference that a letter correctly addressed and properly mailed is received, that inference may be rebutted. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.) By demonstrating Ms. Clark did not receive the letters requesting mediation, appellants’ evidence and Ms. Clark’s declaration rebutted that inference. (Id., at pp. 421-422.) Faced with conflicting evidence as to receipt of appellants’ letters, the trial court determined appellants failed to show Ms. Clark received any mediation request. We will not disturb this factual finding on appeal. (Ibid. [trial court’s “credibility call is binding on this appeal”].)
3. Ms. Clark did not refuse to mediate.
Finally, we reject appellants’ interpretation of Ms. Clark’s inaction as a refusal to mediate. The record is devoid of evidence that Ms. Clark “refused” to mediate. Ms. Clark could not refuse something she never received.
Accordingly, paragraph 17(A) does not bar Ms. Clark from recovering attorney fees.
Disposition
The order is affirmed.
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.