Opinion
A150165
07-27-2018
MONNIE WRIGHT, Plaintiff and Appellant, v. STATE OF CALIFORNIA et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. 1200705)
Appellant Monnie Wright was a prison guard at San Quentin State Prison. He lived on the San Quentin property in a residence that he leased from the State of California. Walking to work one morning, he was injured when he fell on some steps. Wright sued the State of California in a complaint alleging one count, for "Premises Liability." A jury awarded him over $1,300,000. Wright thereafter sought almost $1,200,000 in "attorney fees and expert costs," based on a provision in the lease. Following extensive briefing and a lengthy hearing, the trial court denied Wright's motion, concluding that Wright's claim did not come within the lease provision. Our de novo review leads to the same conclusion, and we affirm.
BACKGROUND
Despite that there was an actual trial, Wright did not include a reporter's transcript on appeal, and with his reply brief filed only an augmented reporter's transcript providing some selected excerpts of a small portion of the testimony. Wright's opening brief sets forth the "facts" from quotations in our earlier opinion in Wright v. State of California (2015) 233 Cal.App.4th 1218 (Wright), which addressed the facts in the context of a summary judgment. As will be seen, this results in Wright presenting a less than candid picture of the evidence at trial.
Wright was employed by the State of California, as a prison guard at San Quentin, employment he began in 1997. In 1998, Wright moved into a residence on the San Quentin property that was owned by the State of California, in connection with which Wright entered into a lease with the State of California. On the morning of December 14, 2010, while walking to work, Wright fell on some stairs and was injured.
The Proceedings Below
On February 15, 2012, represented by counsel, Wright filed a complaint. It named as defendants the State of California and the California Department of Corrections and Rehabilitation (collectively, the State). It was a form complaint entitled "Complaint—Personal Injury, Property Damage, Wrongful Death," and alleged one claim, for "Premises Liability." Specifically, the complaint alleged that Wright was injured on a "stairway [that] was used by residents and invitees in a public area of San Quentin" owned by the State; and that he was injured as a result of "the dangerous condition of public property," which condition was purportedly caused "by defendants' failure, as landowner of property used by the public" to ensure that the "public stairway" was maintained in a safe condition. The prayer of the complaint sought "costs of suit" and compensatory and punitive damages. It did not mention attorney fees.
Following its answer, the State moved for summary judgment on the basis that Wright's injuries occurred in the course of his employment, and thus his exclusive remedy was in worker's compensation, which Wright had in fact received. The trial court granted summary judgment. Wright appealed, and we reversed, in a published decision that among other things discussed the "premises line" rule, ultimately concluding that there is "at least a triable issue of material fact whether Wright was acting in the course of his employment at the time he was injured." (Wright, supra, 233 Cal.App.4th at p. 1234.)
Following remand, Wright's case proceeded to a jury trial. On June 10, 2016, the jury returned its verdict, finding that Wright's injuries were not covered by worker's compensation; that the State's property was in a dangerous condition that was a substantial factor in causing harm to Wright; and that Wright's total damages were $1,318,641. Ninety-five percent of the damages was apportioned to the State, five percent to Wright.
On September 2, Wright filed a "Motion for Attorneys' Fees, Expert Witness Fees, and Case Costs," set for hearing on September 30, seeking $1,184,941.02. The motion was based on "CCP section 1021" and "the rental contract between the parties that authorizes recovery of such fees and costs." The specific language in the lease relied on by Wright was paragraph 20, which reads as follows: "In any action or proceeding involving a dispute between Tenant and Owner arising out of the execution of this Agreement, whether for tort or for breach of contract, and whether or not brought to trial or final judgment, the prevailing party will be entitled to receive from the other party a reasonable attorney fee, expert witness fees, and costs to be determined by the court or arbitrator(s)."
This clause has appeared in every lease since the State first inserted it in the 2007 lease.
On September 19, the State filed its opposition, and on September 23 Wright his reply.
Prior to the hearing, the court had issued a lengthy tentative ruling that addressed several issues that had arisen post-trial, including, as relevant here, Wright's motion for "Attorney Fees and Costs"—a tentative ruling Wright's counsel described below as "very thoughtful." And as to it, the trial court issued a comprehensive analysis that discussed in detail Wright's cases and his arguments, ultimately to reject them, concluding as follows: "Plaintiff's interpretation would re-write the contract to make fees recoverable in any action 'between the parties to the lease.' Here, however, the parties included language that the dispute had to arise out of the execution of this agreement. These words indicate that the parties intended the provision to apply to disputes concerning the tenancy or the rental agreement. [¶] The Court finds that Plaintiff is not entitled to recover fees and costs based on the 2009 agreement. Because the Court has determined that Plaintiff does not have a contractual right to recover fees it need not determine whether the fee request is reasonable."
Wright contested the tentative ruling, and the matter came on for hearing on September 30. The trial court heard extensive argument, at the conclusion of which it took the matter under submission.
On October 17, the trial court filed its order denying Wright's motion, and a comprehensive order it was, six pages of thoughtful analysis. Among other things, the court rejected Wright's claim that the lease agreement "was central to his appeal and trial." As the court put it: "Plaintiff's personal injury action was not premised on the landlord-tenant relationship. Plaintiff advanced a single cause of action against the State for maintaining a dangerous condition on public property." And, the court went on, this sole "claim was based on the State's statutory duty as a public entity not an obligation created by the lease."
Among other things, the trial court noted as follows: "At the hearing on his motion, Plaintiff argued that his claim arose out of the lease because his injuries occurred in a 'common area' of the prison grounds. He grounded his claim in the lease by noting that it contained an indemnification provision that stated '[o]wner will not be liable for any damage or injury to Tenant, or any other person, or to any property, occurring on the premises, or in the common areas, unless such damage is the legal result of the negligence or willful misconduct of the Owner[.]' Relying on this reference to common areas, Plaintiff argued the fee provision applied under the reasoning of Hemphill v. Wright Family, LLC (2015) 234 Cal.App.4th 911. [(Hemphill)]"
Hemphill, supra, 234 Cal.App.4th 911 was not cited in Wright's moving papers, but had been found by Wright's counsel the day before the hearing.
Following a lengthy paragraph discussing Hemphill—a discussion, we note, that was spot on—the trial court held as follows: "The circumstances of the present lawsuit are different from those of Hemphill. Although there were references to 'common areas' at Plaintiff's trial, the testimony was controverted, with some witnesses testifying there were no such designated areas. In any event, the jury made no finding that Plaintiff fell in a common area and the issue was not material to the case. Plaintiff's claim was that the stairway where he fell was accessible to both the public and tenants. [Fn. omitted.]
This is one manifestation of the impropriety of Wright relying on the "facts" in our opinion, Wright's recitation in his brief stating that Wright fell on a "common area staircase."
Footnote 3 noted that "In his complaint Plaintiff alleged that he slipped and fell on a 'defectively constructed and dangerously maintained' stairway that was used 'by residents and invitees in a public area of San Quentin.' "
"In addition, unlike Hemphill, the fee provision in Plaintiff's lease limited recovery to actions arising out of the agreement; there was no broad provision permitting recovery in any matter arising out of the tenancy. Even if there had been such a provision, it is not clear that this action would fall within its terms. Plaintiff's lease did not include a promise by the landlord to maintain common areas for the benefit of tenants. The 2009 lease defined the 'premises' as the house where Plaintiff lived [citation] and his fall did not occur in this residence. Finally, the indemnification provision in Plaintiff's lease did not create any new duties or obligations for Defendant, rather it disclaimed legal responsibility for damage or injury other than that which Defendant would have by operation of law. This indemnification is not a basis for awarding fees."
Ultimately, the court concluded that "Plaintiff's interpretation would effectively re-write the contract to make fees recoverable in any action 'between the parties to the lease.' " But the lease explicitly limits the availability of attorney fees and expert costs to disputes that arises "out of the execution" of the agreement. Because it concluded that Wright is not entitled to recover fees or expert costs, the court declined to address whether the fee request was reasonable.
Wright filed a timely notice of appeal.
DISCUSSION
Standard of Review
The parties agree that our review is de novo. As the Supreme Court has recently put it, a " 'determination of the legal basis for an attorney fee award is a question of law to be reviewed de novo.' " (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751; accord, Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 705 (Exxess).)
The Trial Court Was Correct: Wright Was Not Entitled to Attorney Fees
The rule is that unless attorney fees are "specifically provided for by statute," they are "left to the agreement, express or implied, of the parties." (Code Civ. Proc., § 1021.) So, the parties to a contract may validly agree to contract for the award of attorney fees, "even though the suit is based on tort rather than contract." (Skyway Aviation, Inc. v. Troyer (1983) 147 Cal.App.3d 604, 610-611; accord Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1065 [expert witness fee].) And "the question of whether to award attorneys' fees turns on the language of the contractual attorneys' fee provision." (Exxess, supra, 64 Cal.App.4th at p. 708; Gil v. Mansano (2004) 121 Cal.App.4th 739, 743.)
The issue presented here is whether Wright's lawsuit arose "out of the execution" of the lease. The trial court concluded it did not. Wright asserts that "three reasons compel reversal" of that decision, three reasons he describes as follows:
"(1) As precedent shows, courts award attorney fees in tort actions under contract provisions that are identical or nearly identical to the one at issue here.
"(2) The lease's own terms require the award of attorney fees here because the lease (a) assigns to the State liability for injury, and (b) awards attorney fees and costs to the prevailing party in any action 'arising out of' this agreement, 'whether' in 'contract' or 'tort.'
"(3) The only possible capacities in which Mr. Wright could have sued the State for his injuries—caused by a step that collapsed on a common area staircase on his way to work—were as tenant or employee. And when Mr. Wright was injured, his status was that of a tenant."
As will be seen, none of the reasons is persuasive—Wright's claim does not "arise out of the execution of" the lease.
To begin with, Wright's complaint did not even mention, let alone rely on, the lease agreement. Not only that, in a pretrial filing, the State argued that because Wright "sued the State as the property owner, for a single cause of action for 'dangerous condition of public property,' " the trial court should preclude him from offering any evidence or argument at trial "that his lease with the State imposed any duty" beyond that imposed under Government Code section 835. More explicitly, the State argued that "Nowhere does Plaintiff allege a duty arising from a landlord-tenant relationship," and further, that Wright "did not allege a breach of contract cause of action."
In opposition, Wright argued that the lease agreement "inform[ed]" the State's duty of care for his dangerous premises claim; and, he asserted, "Plaintiff does not have to plead a breach of contract claim to obtain a jury instruction relating to standard of care," clarifying his argument with the assertion that "the contract simply establishes the standard of care owed to the tenant."
The trial court ruled that the landlord-tenant relationship was relevant to the extent that there was an issue whether Wright's "injury arose in the course and scope of his employment." But it rejected Wright's argument that the landlord-tenant relationship was relevant to the legal duty owed to him. Notably, Wright did not argue that the landlord-tenant relationship, or the lease, was relevant to any other claim.
At trial, the State argued that Wright's injury arose in the course of his employment, that worker's compensation applied, and that he was not entitled to tort damages. The trial court instructed the jury on this defense. The special verdict form submitted to the jury contained the elements of a premises liability claim, none of which involved a lease agreement. And none of the elements of the jury verdict form involved the parties' landlord-tenant relationship. The jury ultimately found that Wright's injury arose out of his employment with the State, but that he was not injured in the course of his employment. The jury also found in Wright's favor on the premises liability claim. The jury verdict did not rely on, or even mention, the landlord-tenant relationship—or the lease.
As shown above, Wright's complaint alleged that his injuries arose out of "the dangerous condition of public property," in a "public stairway" that was "used by residents and invitees." It further sought to hold the State liable "as landowner of property used by the public." The complaint did not allege that the injury was caused by the State's failure to abide by any of the terms of the lease, mention the lease agreement, or cite any breached lease term. Simply, Wright's premises liability claim for injuries incurred on the stairway did not "arise out of the execution" of the lease.
Essentially disregarding all that occurred below, Wright attempts to recast his claim as a "personal injury suit against his landlord," making no attempt to reconcile these arguments with his claim below, which made no mention of the landlord-tenant relationship. And Wright's statement on the next page—that "tenants who sue landlords in tort are entitled to attorney fees if specified in the lease"—misses the point altogether.
Wright's position is, as the State puts it, based on a false syllogism: "First, he contends that he sued either as an employee or as tenant. Second, he contends that the jury did not find that he was injured in the course of his employment. Ergo, he concludes, he must have sued 'in his capacity as tenant.' " But as the State aptly says, "This argument fails at the first step—it is not true that Wright sued the State either as an employee or as a tenant. Instead, as explained above and as the complaint demonstrates, he sued as a member of the public. The complaint states that the injury occurred in a 'public area' of San Quentin, open to both 'residents and invitees' as a result [of a] 'dangerous condition of public property.' " Put otherwise, Wright filed suit for injuries he incurred as a member of the public injured by a dangerous condition on premises open to the public.
Wright's brief states that he "assert[ed] below that he sued in his capacity as a tenant." The record reference Wright cites, appellant's appendix, p. 82, is a proof of service.
Wright attempts to make much of the fact that the lease agreement provides for attorney fees for both " 'tort or breach of contract.' " But the key question is not whether Wright's premises liability claim arose in tort, but whether it arose "out of the execution" of the lease. (Exxess, supra, 64 Cal.App.4th at pp. 712-713.) In fact, courts have held that tort claims are not covered by lease language like that at issue here. (See, e.g., Exxess, supra, at p. 711 [plaintiff's "tort claims are premised on a duty . . . that was not created by the lease"].) The State's duty to maintain the stairway "arose before the lease even existed." (Ibid.) It was not created by the lease.
Turning to Wright's first reason for reversal, he cites five cases in claimed support of his "precedent": Santisas v. Goodin (1998) 17 Cal.4th 599 (Santisas); Hemphill, supra, 234 Cal.App.4th 911; Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270, 1277; Lerner v. Ward (1993) 13 Cal.App.4th 155; and Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338 (Xuereb). None is applicable here.
Santisas, supra, 17 Cal.4th 599, was an action by buyers of a house against the sellers, the sellers' agent, and its attorney for alleged defects in the house. The complaint alleged causes of action for breach of contract, negligence, deceit, negligent misrepresentation, and suppression of fact. (Id. at p. 603.) The complaint attached a copy of the purchase agreement with a fee provision we quote in its entirety: " 'In the event legal action is instituted by the Broker(s), or any party to this agreement, or arising out of the execution of this agreement or the sale, or to collect commissions, the prevailing party shall be entitled to receive from the other party a reasonable attorney fee to be determined by the court in which such action is brought.' " (Ibid.) And unlike Wright's complaint here, the "complaint sought attorney fees." (Ibid.)
Following discovery, plaintiffs voluntarily dismissed the complaint. Defendants then sought attorney fees, which the trial court granted. The Supreme Court reversed, holding that Civil Code section 1717 barred the recovery of attorney fees incurred by defendants in defense of plaintiffs' breach of contract claim, as defendants were not prevailing parties on that cause of action, since plaintiffs voluntarily dismissed the action. However, defendants were "prevailing parties" within the meaning of Code of Civil Procedure section 1032, subdivision (b), and thus were entitled to recover costs, including attorney fees under Code of Civil Procedure section 1033.5, subdivision (a)(10), incurred in defending against the tort claims. (Santisas, supra, 17 Cal.4th at p. 599.)
Hemphill, supra, 234 Cal.App.4th 911, involved a tenant in a mobile home park who was injured when he stepped into a sunken drainage ditch near his home, and sued his landlord for negligence and premises liability. (Id. at p. 911.) The jury determined the injuries were incurred in a common area lawn. Hemphill sought attorney fees under this lease provision: "in 'any action aris[ing] out of the Homeowner's tenancy, this Agreement, or the provisions of the Mobilehome Residency Law, the prevailing party or parties shall be entitled to recover reasonable expenses, including without limitation' attorney fees and costs," a fee provision, the court noted, that "is written in the disjunctive and provides three independent bases upon which attorney fees may be awarded." (Id. at p. 914.) The landlord argued that the "duty it breached was not created by the lease agreement." (Id. at p. 915.) The trial court ruled against Hemphill, but the Court of Appeal reversed, noting that the lease agreement there included a provision covering claims arising out of the "homeowner's tenancy." (Ibid.) Here, by contrast, the injuries Wright suffered took place in an area "used by the public" that was allegedly not properly maintained by a public entity.
Wright argues that Hemphill is applicable because, in his words: "First, as this Court noted, Mr. Wright was on a 'common area staircase' 'just outside his unit' when he fell. (Wright, supra, 233 Cal.App.4th at [p.] 1223.) And at 'the bottom' of this staircase 'were two pillars painted with the address numbers for Wright's unit and a neighboring unit.' (Ibid. (emphasis added).)" As indicated, we are dismayed that Wright would assert facts from our opinion, as it was based on the record on summary judgment. Here, as the trial court expressly noted, at trial the issue as to "common area" was controverted.
Faced with this, Wright's reply brief was accompanied by a motion to augment, and a reporter's transcript providing some selected excerpts from the trial, purporting to quote or summarize various witnesses' testimony. We grant the motion to augment. And based on that selected testimony, the brief concludes: "And the preponderance of the testimony . . . was that Mr. Wright was injured on a common area staircase."
Cruz v. Ayromloo, supra, 155 Cal.App.4th 1270, was an action by tenants against their landlord for forcible detainer, wrongful eviction, and infliction of emotional distress. The tenants prevailed, some of whom sought attorney fees based on a lease provision allowing fees to a prevailing party in an action "in connection with the lease." The trial court awarded attorney fees, and the Court of Appeal affirmed, holding that "the broad language of the attorney fee clause . . . permitted recovery of attorney fees for breach of contract or any other claim asserted in connection with the lease." (Id. at p. 1277.) No lease-based claim was asserted here, Wright's one-count complaint for premises liability not even mentioning the lease agreement.
Lerner v. Ward, supra, 13 Cal.App.4th 155, was a fraud action by buyers of real estate against their sellers. The agreement provided for attorney fees to the prevailing party in any action or proceeding " 'arising out of this agreement.' " The trial court held that attorney fees were "not recoverable" under the agreement "in a tort action for fraud." (Id. at pp. 157-158.) The Court of Appeal reversed, holding that the contract clause " 'arising out of this agreement' " "was not limited merely to an action on the contract, but to any action or proceeding arising out of the agreement," which "included any action for fraud arising out of that agreement." Indeed, the buyers "alleged and tried to prove that the [sellers], though their fraudulent representations, induced [them] to enter into an agreement to purchase the property." (Id. at p. 160.) In short, the court noted, "the tort cause of action arose out of the written agreement." (Ibid.)
Xuereb, supra, 3 Cal.App.4th 1338, was also an action by buyers against a real estate broker and agent, which action alleged "various causes of action arising out of a real estate transaction in which respondents were the purchasers." (Id. at p. 1340.) "The complaint included causes of action for negligence, products liability, fraud and misrepresentation, and breach of contract against appellants as well as the other defendants. Also contained in the complaint was a request for attorney fees under the attorney fees provision of the Purchase Agreement." (Id. at p. 1341.)
Defendants prevailed and sought attorneys fees, based on a provision in the agreement providing for fees in any " 'lawsuit' " to which " 'this Agreement gives rise.' " (Xuereb, supra, 3 Cal.App.4th at pp. 1342-1343.) The trial court denied fees on the basis "that the case had been tried on tort theories rather than on the contract." (Id. at p. 1340.) The Court of Appeal reversed, holding that the language of the provision was "broad enough to encompass both contract actions and actions in tort" (id. at p. 1343), more specifically that the litigation "may be viewed as having arisen from the Purchase Agreement" because "but for the Purchase Agreement by which the allegedly defective property was sold to respondents, the dispute between the parties would not have arisen." (Id. at pp. 1343-1344.) There is no "but for" requirement here.
Wright also argues that the trial court's "ruling—that the provision applies only to 'disputes relating to the interpretation and performance of the lease'—would award attorney fees only for contract claims. Specifically, disputes relating to 'interpretation' (what the contract means) and 'performance' (whether someone performed or breached the contract) are inherently contract claims." This is wrong, as claims "arising out of the execution of this Agreement" could include fraud, and breach of the warranty of habitability, clearly not only "contract claims."
Wright's second reason for reversal is that "The lease's own terms require the award of attorney fees here because the lease (a) assigns to the State liability for injury, and (b) awards attorney fees and costs to the prevailing party in any action 'arising out of' this agreement, 'whether' in 'contract' or 'tort.' (See Part I.B.2.f.)" The cite is, as noted, to "Part 1.B.2.f." of his brief, a part that is two pages long, two pages that essentially repeat Wright's reliance on his cases. But one three-line paragraph in those pages asserts that the State agreed to be liable for " 'any damage or injury to Tenant' " " 'occurring on the premises, or in common areas' " that was " 'the legal result of the negligence' " of the State or its employees.
While it is not clear from Wright's briefing, it appears that this assertion is based on an indemnification provision in the lease, as this is where Wright's quoted language appears. That indemnification clause provides as follows: "14. INDEMNIFICATION. Owner will not be liable for any damage or injury to Tenant . . . occurring on the premises, or in common areas, unless such damage is the legal result of the negligence or willful misconduct of the Owner . . . . Tenant agrees to hold Owner harmless from any claims for damages, no matter how caused, except for injury or damages caused by negligence or willful misconduct of the Owner." That clause does not avail Wright here.
To begin with, Wright's motion for attorney fees did not even cite to, much less rely on, the indemnification provision. Rather, Wright's position was based exclusively on paragraph 20 of the lease. No such argument having been made below, it has no place here. (Rush v. White Corp. (2017) 13 Cal.App.5th 1086, 1103-1104; Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.)
Wright's reply brief responds that "after plaintiff's counsel raised the indemnification clause at the hearing, the trial court asked the State's counsel the following question: [¶] 'Doesn't [the indemnification clause] mean that [the State] would be held liable if they [sic] were negligent or willful misconduct in the common areas as well as the premises?' [¶] Accordingly, the trial court could and did consider this argument." And it is true that the subject was discussed at the argument, and addressed in the court's order.
In any event, the indemnification clause does not change the legal analysis above. The indemnification clause does not speak to attorney fees or expert costs at all. (See Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 971 ["A provision including attorney fees as an item of loss in an indemnity clause is not a provision for attorney fees in an action to enforce the contract."]; cf. Campbell v. Scripps Bank (2000) 78 Cal.App.4th 1328, 1336 ["[A]n indemnification clause will not give rise to a Civil Code section 1717 contractual claim for an award of attorney fees."].)
Wright's third reason for reversal is that "The only possible capacities in which Mr. Wright could have sued the State for his injuries—caused by a step that collapsed on a common area staircase on his way to work—were as tenant or employee. And when Mr. Wright was injured, his status was that of a tenant." The claim is fatuous. Maybe Wright was a tenant when he was injured. But that does not mean that his injuries arose "out of the execution of" the lease—or that his capacity was essential to his lawsuit against the State. To the contrary, a meter reader, or a UPS delivery person, or indeed a visiting Wright relative staying with him, would have been able to sue the State if he or she were injured on the steps. As Wright concedes, "a member of the public certainly could have sued the State for injuries on the same stairway"—lawsuits that would not have arisen "out of the execution of" the lease.
Wright's reply brief states, however audaciously, that his "claim is and always was that the State-drafted lease agreement provides for attorney and expert fees to the prevailing party where the landlord's negligence caused a tenant's injuries in the common area of the rental premises." Or, as Wright puts it later, he "always maintained that he brought a tort claim that arose from the 'execution' of the lease and so is entitled to the fees provided for in the lease." Hardly.
As indicated above, there was no mention of the lease in the complaint and no prayer for attorney fees. And while there may not be any requirement that attorney fees be demanded in the complaint (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 194), as the leading practical treatise puts it, "If plaintiff is entitled by statute or contract to recover attorney fees from defendant [citation], it is customary to plead the applicable basis for the fees recovery and demand payment of same in the prayer." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 6:275, p. 6-90.)
Beyond that, Wright has provided no demand letter, no case management statement, no nothing, setting forth in any way that his claim against the State included that he was claiming any right to attorney fees. In light of this, the observation in Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2nd ed. 2008 supp.) Overview, § 1.2, p. 3 is apt: "The prospect of court-awarded attorney fees plays a significant part in determining a strategy for initiating or defending litigation. Litigation costs (including the potential fee award) can be enormous, sometimes rivaling or even exceeding the amount involved on the merits." (Accord, International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1186 [quoting Pearl] (Emigh).) "Therefore, in planning to initiate or respond to litigation, it is critical to determine whether a statute, a common-law theory, or a contractual provision might provide for some form of fee-shifting." (Pearl, Cal. Attorney Fee Awards, supra, § 1.2, p. 3.) Indeed, "the policy indicating the mere threat of an attorney fees award alters the dynamics of litigation." (Emigh, supra, at p. 1191.)
Given this, Wright should not be permitted to bring a statutory tort claim, omit any mention of attorney fees or otherwise bring into play the lease agreement, and thus not risk being saddled with the State's attorney fees if he lost at trial; and then, having won, subsequently contend that his claim was based on the lease.
DISPOSITION
The order is affirmed. The State shall recover its costs on appeal.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Stewart, J.