Filed 9/10/15 Eldridge v. Village Trailer Park, Inc. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

CATHERINE ELDRIDGE,
Plaintiff, Cross

- defendant and Res pondent,

v.
VILLAGE TRAILER PARK, INC., et al.,
Defendants, Cross

- complainants and Appellants. B252841
(Los Angeles County Super. Ct. No. BC465320)

APPEAL from a n order of the Superior Court of Los Angeles County, Cesar C.
Sar miento, Judge. Reversed

. Horvitz & Levy, David M. Axelrad, Felix Shafir; McKenna, Long & Aldridge,
David R. Krause

- Leemon and Michelle K. Sugihara for Defendants, Cross

- complainants and Appellants. Campbell & Farahani, Frances M. Campbell and Nima Farah ani for Plaintiff,
Cross

- defendant and Respondent.

_________________________2 INTRODUCTION Defendants Village Trailer Park, Inc., Village Trailer Park LLC, and Marc
Luzzatto (together, defendants) appeal from the post

- judgment order awarding attorney ’s
fee s to Catherine Eldridge, the prevailing party in a declaratory relief action concerning a dispute over the terms of a settlement agreement between the parties in an earlier lawsuit. (Civ. Code, § 1717, subd. (a).) 1 We hold that the award of attorney ’s fe es was error because , as a matter of law, the settlement agreement sued on did not authorize an award of attorney ’s fees . A lthough Eldridge ’s lease did contain an attorney’s fee clause, she did
not sue for breach of her lease. Accordingly, we reverse the order

.

FACTUAL AND PROCEDURAL BACKGROUND
1. Eldridge’s lawsuit against defendants Eldridge is a tenant in the Village Trailer Park (the park)
, a mobile home park
located in the City of Santa Monica and owned by defendants. She entered into a 60

- month lease commencing February 1, 1999. The lease included in paragraph 33 a provision for the recovery of attorney’s fees by the prevailing party “incurred in the event of litigation between us.” Eldridge was a plaintiff, along with numerous other park resi dents, in an action alleging Village Trailer Park, Inc. failed to maintain electrical, water, sewage, gas, and other facilities in the park. ( McNama v. Village Trailer Park, Inc . ( Super. Ct. L.A. County, 2003, No. SC062254).) That action was resolved in 2003 by a settlement, much of which was placed on the record in the trial court. (The McNama settlement. ) Portions of the oral part of the McNama settlement concerned Eldridge only. In 2011, Eldridge filed the instant action seeking declaratory and in junctive relief because of concerns that defendants planned to develop the park and evict her. She sought “declaratory relief regarding her rights under [ the ] 2003 Settlement Agreement
entered into in the case of McNama v. Village Trailer Park, Inc. ” (It alics added.) In particular, Eldridge’s complaint requested a declaration, based on the oral portion of the

1 All further statutory references are to the Civil Code , unless otherwise noted.3

McNama settlement
, that defendants had no right to, and were precluded from, taking any action that would change her lot line or cause her to move her home. Eldridge’s complaint makes no mention of her lease.
D efendants cross

- complained against Eldridge seeking a declaration that they were not obligated by any agreement with Eldridge.
Trial involved the interpretation of the McNama settlement an d the scope of its provisions as applied to Eldridge , and whether defendants were bound by that agreement

. After trial to the bench, the court ruled in favor of Eldridge. The court found that the
McNama settlement language was not ambiguous and based the reon, declared that defendants could not terminate Eldridge’s lease absent some legal requirement by an appropriate gove rnment agency.
2

. Eldridge’s attorney’s fee motion Eldridge moved for an award of attorney ’s fees against defendants in the amount of $325,680 on the ground that she was the prevailing party in the declaratory relief
action. The sole basis relied on by Eldridge for the award was paragraph 33 of her lease
and section 1717.
Defendants opposed the motion on the ground that Eldridge’s declaratory relief
action was based on the McNama settlement rather than on her lease
, and that the
McNama settlement did not authorize recovery of attorney’s fees . That settlement expressly require d the parties to bear their own fees in the McNama litiga tion, and wa s silent about the recovery of fees in later litigation on that agreement

. Recognizing that the McNama settlement did not provide for an award of attorney’ s fee s , the trial court stated at the hearing, “The issue really is, does this action

a rise out of the lease.” The court stated that the “only way that attorney fees are going to
be recoverable ” would be based on an interpretation that this lawsuit “ arose out of the lease agreement between the two parties ” because the lease contained an att orney’s fees
clause.
The tr i a l court resolved the issue in Eldridge’s favor and granted her motion based

on the lease’s attorney ’s fee provision. Q uoting from Boyd v. Oscar Fisher Co . (1989)4

210 Cal.App.3d 368 ( Boyd ) , the court construed the McNama sett lement together with
the lease
, reasoning that together the two agreements govern ed Eldridge’s rights as
defendants’ tenant. The court found that the lease’s fee provision was “extremely br o ad and applies to litigation between the landlord and tenant with out any express limitation”
and that “ [ t ] his action was asserted to vindicate [Eldridge’s] rights as a tenant.” On that basis, the court ruled that Eldr idge was entitled to attorney’s fees and fixed the amount at $146,970. Defendants appeal.
CONTENTION
Defendants contend that the trial court erred as a matter of la w in awarding Eldridge attorney’s fees under the authority of Civil Code section 1717 and Boyd

. They do not challenge the amount of the fee award.
DISCUSSION
Code of Civil Procedure section 1033.5, subdivision (a)(10) allows the recovery of attorney’s fees as part of costs if such fees are authorized by a contract or statute. Section 1717, subdivision (a) reads in relevant part, “In any action on a contract , where the contract spec ifically p rovides 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.” (Italics added.)
S ection 1717 “ ‘covers only contract actions, where the theory of the case is breach of contract, and where the con tract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract.’ [Citation.]” ( F ederal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 357 , second italics added .) To
determine which contract was su ed upon, w e look to the gravamen of the action and the evidence, and the grounds of recovery articulated in the trial court’s ruling. ( Hyduke’s Valley Motors v. Lobel Financial Corp . (2010) 189 Cal.App.4th 430, 435

- 436.) Eldridge’s motion premised her ri ght to attorney’s fees on her lease
, and on appeal, she
insists that the “underlying action involved [her] right to remain a tenant under her lease.”5

Looking at Eldridge’s complaint however, and at the evidence adduced at trial, there is no question but t hat her declaratory relief action was on the McNama settlement and not on the lease. The gravamen of Eldridge’s action was that the McNama settlement prevented defendants from moving her or evicting her. Stated otherwise, Eldridge was suing
defendants to prevent their breach of the McNama settlement. That she sought in this litigation to remain a tenant in the park does not convert her action to one “on” the lease because her right to stay in the park was based on the words of the McNama settlement
alone

. 2 Recognizing the problem, the trial court relied on the authority of Boyd to construe the McNama settlement together with Eldridge’s lease so as to invoke the lease’s broad attorney’s fee provision. In Boyd , the trial court awarded a manufacturer att orney ’s fees

on a written dealership agreement with a dealer despite the absence of an attorney ’s fee provision. However, the manufacturer’s invoices did provide for attorney’s fees. ( Boyd
, supra , 210 Cal.App.3d at pp. 372

- 375, 378.) Boyd recited the ru le that “Courts will construe together several documents concerning the same subject and made a s part of the
same transaction (Civ. Code, § 1642; [citation]) even though the documents were not executed contemporaneously [citations] and do not refer to each other [citations]. It is generally a factual question whether several documents were intended to govern the same transaction. [Citations.] However, ‘ [i]nterpretation of a contract presents a question of law unless it depends on conflicting evidence, an d an appellate cour t is not bound by a trial court’ s interpretation which does not depend on the credibility of extrinsic evidence. ’

2 In her brief on appeal, Eldridge argues she is entitled to recover attorney’s fees under Code of Civil Procedure section 1021 because her lease allows the prevailing party to recover attorney’ s fees “ incurred in the event of litigation between us. ” However, apart from the fact that Eldridge raises this basis for fees for the first time on appeal and so has forfeited it ( In re Marriage of Modnick (1983) 33 Cal.3d 897, 913, fn. 15; Sant an t onio v. Westinghouse Broadcasting Co . (1994) 25 Cal.App.4th 102, 113), her “contractual right to attorney fees must come from the agreement that was entered and was breached ,” not from an unrelated one that was not breached. ( Khajavi v. Feather River A nesthesia Medical Group (2000) 84 Cal.App.4th 32, 61 , italics added .)6

[Citations.]” ( Boyd
, supra , at p. 378.) The Boyd court read the dealership agreement together with the manufacturer’s in voices to affirm the fee award . ( Id . at p p. 379

- 380.)
Neither Boyd nor Civil Code section 1642 authorizes the construction of Eldridge’s lease together with the McNama settlement agreement as part of a single
transaction

. The Boyd dealership agreement and subsequent invoices were considered related to each other by the California Uniform Commercial Code sales provisions governing dealership contracts

. ( Boyd
, supra , 210 Cal.App.3d at p. 379, quoting from Cal. U. Com. Code, § 1201, subd. ( b)( 1 2 ).) Also, the dealer never suggested that the dealership agreement, the first contract, was intended to be a final and exclusive expression of the parties’ agreement. ( Boyd
, supra , at p. 379

. ) Finally, the conduct of the parties supported the conclusion that they added terms to the dealership agreement by subsequent invoices. ( Ibid. ) Here, n o statute that operates like the Uniform Commercial Code applies to read
the lease and the McNama settlement as part of the same transaction . Nothing in the
McNama settlemen t indicates that it was meant to be construed together with the lease.
N either agreement refers to the other. M ere ly because these two contracts concern Eldridge’s presence at defendants’ park does not transform the two agreements into a single transacti on. Rather, unlike Boyd , the lease here contains an integration clause and
so the lease was the final and exclusive expression of the parties’ agreement at the time

. Thus, the McNama settlement created an entirely new right to stay in the park. T he se

un contradicted facts preclude us from inferring that the parties intended that the McNama
settlement would add terms to the lease so as to justify construing the two agreements together as part of the same transaction.

“ T he general rule under the code secti on [1642]

. . . is that two or more separately executed instruments may be considered and construed as one contract ‘only when upon their face they deal with the same subject matter and are by reference to one another so connected that they may be fairly s aid to be interdependent.’ [Citations.]” ( Coons v. Henry (196 0 ) 186 Cal.App.2d 512, 517 .) The lease and the McNama settlement provide for contradictory bases for their termination. The lease, which has long since expired,7

could be terminated in accorda nce with the requirements of the Mobilehome Residency
law
, whereas the McNama settlement prohibits termination “absent some legal requirement by an appropriate government entity.” Thus, Eldridge’s right to remain at the park is premised solely on the McNa ma settlement. Civil Code section 1642 does not apply to warrant ex tension of the lease’s attorney’s fee provision to this lawsuit to enforce the McNama settlement.
W here the evidence is not in dispute , i nterpretation of the cont ract s to determine
wheth er they were intended to govern the same transaction presents a question of law. ( Boyd
, supra , 210 Cal.App.3d at p . 378.) As a matter of law these documents are not intended to govern the same transaction. Therefore, neither section 1717 nor section
164 2, nor Boyd allow s Eldridge to recover f ees on the basis of an attorney’s fee provision in her lease, which was never at issue, or for vindication of the McNama settlement
which had no attorney’s fees clause. There is no legal basis for the award of attor ney’s
fees to Eldridge

.8 DISPOSITION
The order appealed from is reversed

. Appellant is to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KITCHING, Acting P. J.

JONES, J. 

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