Filed 5/30/14 Vestar/Kimco Tustin v. Sesbar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

VESTAR/KIMCO TUSTIN, L.P.,

 Plaintiff and Appellant,

v.

AYOUB SESAR,

 Defendant and Respondent.

 G048831

 (Super. Ct. No. 30-2011-00514253)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert J. 

Moss, Judge. Reversed.

Bewley, Lassleben & Miller and Ernie Zachary Park for Plaintiff and 

Appellant.

Ghods Law Firm, Mohammed K. Ghods, William A. Stahr and Ruben 

Escobedo III for Defendant and Respondent.

* * *
2

The trial court sustained defendant Ayoub Sesar’s demurrer to a breach of 

lease cause of action and overruled his demurrer to a breach of guaranty cause of action. 

Plaintiff Vestar/Kimco Tustin, L.P. (Vestar) subsequently filed a voluntary dismissal of 

its complaint on the date of trial. The court thereafter awarded Sesar attorney fees in 

connection with the breach of lease cause of action. Vestar appealed, contending the 

court erred in sustaining the demurrer to the breach of lease cause of action, and as a 

result, Sesar was not a prevailing party entitled to attorney fees. We agree and reverse.

I

FACTS AND PROCEDURAL BACKGROUND

Vestar filed its initial complaint against Kboby, Inc., Syed H. Miremad; Pei 

Chun Lin; Ayoub Sesar,

1and Does one through 20. The complaint alleged two causes of 

action. As to Kboby, Inc. and Does one through 10, Vestar alleged a cause of action for 

breach of lease. As to Sesar, Miremad, Lin, and Does 11 through 20, the complaint 

alleged breach of guaranty.

Vestar filed a first amended complaint in response to Sesar’s demurrer to 

the initial complaint. Sesar demurred to the four-page first amended complaint, which 

again alleged causes of action for breach of lease and breach of guaranty. The court 

sustained the demurrer to the breach of lease cause of action without leave to amend and 

overruled the demurrer to the breach of guaranty cause of action. Approximately eight 

months later, on December 4, 2012, the clerk of the court entered Vestar’s voluntary 

dismissal without prejudice on the date of trial and after counsel met with the assigned 

trial judge in chambers.

Sesar subsequently filed a motion for attorney fees based on provisions in 

the lease and the guaranty. (See Civ. Code, § 1717; all undesignated statutory references 

are to the Civil Code.) Vestar opposed the motion, contending Sesar’s demurrer to the 

 

1 Sesar was sued as Ayoub Sesur. Sesar is the only defendant appearing on 

appeal.
3

first amended complaint was overruled2 and as it had voluntarily dismissed the 

complaint, Civil Code section 1717, subdivision (b)(2)3 precludes an award of attorney 

fees. Vestar also asserted that if the court decided to award attorney fees, the amount 

requested was “grossly excessive.” In a supplemental brief, Vestar argued that although 

the court had sustained the demurrer to the breach of lease cause of action, it never 

entered a judgment on that action and therefore Vestar’s voluntary dismissal was as to 

both causes of action. 

The court’s tentative ruling on Sesar’s motion for $32,424 in attorney fees 

was to grant it in part and deny it in part. The court reasoned that Sesar was the 

prevailing party on the cause of action for breach of lease and was entitled to attorney 

fees under the terms of the lease and section 1717, but there was no prevailing party on 

the breach of guaranty, that action having been voluntarily dismissed. The court 

calculated the fees incurred in defending the breach of lease cause of action at 

$16,875.50. The hearing on the motion was continued and the parties filed supplemental 

briefs. Vestar suggested the court vacate the dismissal of the first cause of action and 

enter a judgment in Sesar’s favor on that cause of action, which would preserve the 

court’s order awarding attorney fees to Sesar and permit Vestar to appeal from the 

judgment.

The court’s May 17, 2013 minute order stated the dismissal on the breach 

of lease cause of action was vacated and entry of judgment dismissing that cause of 

action was ordered. Additionally, the court awarded Sesar $22,230 in attorney fees. That 

figure included the amount set forth in the court’s tentative ruling plus $5,742.50 incurred 

by Sesar during supplemental briefing. Judgment was thereafter entered on July 15, 

 

2 As noted above, only the demurrer to the breach of guaranty was 

overruled. 

3 “Where an action has been voluntarily dismissed or dismissed pursuant to 

a settlement of the case, there shall be no prevailing party for purposes of this section.” 

(§ 1717, subd. (b)(2).)
4

2013. The judgment stated the earlier dismissal on the breach of lease cause of action 

was vacated and “[i]n lieu of said dismissal, a judgment of dismissal is entered in favor of 

. . . Sesar and against [Vestar] as to the First Cause of Action of the First Amended 

Complaint based upon the court having previously sustained [Sesar’s] demurrer as to [the 

breach of lease] cause of action without leave to amend.” On August 8, 2013, Vestar 

appealed from the judgment, “including both the judgment of dismissal and the award of 

attorney’s fees and costs.”

II

DISCUSSION

As a general rule, the parties to a lawsuit must pay their own attorney fees. 

(Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1259.) An exception 

exists where a contract provides for the payment of such fees. (Trope v. Katz (1995) 11 

Cal.4th 274, 279.) Section 1717 provides a clause in a contract entitling one party to 

attorney fees incurred in enforcing the contract is deemed to be mutual and entitles the 

prevailing party to obtain attorney fees even if the contract limits the right to the other 

party. (§ 1717, subd. (a).) However, subdivision (b)(2) of section 1717 precludes finding 

a defendant in a breach of contract action to be a prevailing party for purposes of 

awarding attorney fees when the action was voluntarily dismissed prior to trial. (Santisas 

v. Goodin (1998) 17 Cal.4th 599, 615.)

After Vestar voluntarily dismissed its complaint on the date of trial, Sesar 

filed his motion for attorney fees incurred in defending the lawsuit. Vestar’s initial 

response was two-fold. First, it argued Sesar was not entitled to any attorney fees

because the matter was voluntarily dismissed. Second, Vestar claimed the amount sought 

was “grossly excessive.” In response to the superior court’s tentative ruling to award 

Sesar those attorney fees incurred in defending the breach of lease cause of action, given 

he prevailed on his demurrer to that cause of action, Vestar urged the court to vacate its 

voluntary dismissal as to the breach of lease cause of action only and to enter a new 
5

dismissal thereon based on the sustaining of Sesar’s demurrer to that cause of action. 

Vestar urged such an action would “preserve[]” the court’s decision to award Sesar 

attorney fees incurred in defending the breach of lease cause of action and permit Vestar 

to appeal the propriety of the court’s decision sustaining the demurrer to that cause of 

action.

A. Timeliness of the Appeal

Prior to addressing whether Sesar was entitled to an award of attorney fees 

for defending against the breach of lease cause of action, the procedural history in this 

matter requires us to determine whether Vestar’s appeal is timely. If it is not, we lack 

jurisdiction to address the merits of Vestar’s argument and must dismiss the appeal. 

(Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.) “[N]either mistake, accident, 

misfortune, estoppel, nor waiver will confer appellate jurisdiction. [Citation.]” (In re 

Marriage of Micalizio (1988) 199 Cal.App.3d 662, 669.)

Sesar contends Vestar’s August 8, 2013 notice of appeal was untimely and

argues Vestar should have filed his notice of appeal within 180 days of his December 4, 

2012 dismissal in order to challenge the trial court’s order sustaining the demurrer to the 

breach of lease cause of action. (Cal. Rules of Court, rule 8.104(a)(1)(C).) The 180-day 

period is binding, “[u]nless a statute or rule 8.108 provides otherwise.” (Cal. Rules of 

Court, rule 8.104(a)(1).) Vestar takes the position it could not have appealed from its 

own voluntary dismissal. Although voluntary dismissals have not traditionally been 

considered judgments from which a plaintiff may appeal (see Stewart v. Colonial 

Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012), more recently it has been 

found a trial “court’s order sustaining . . . demurrers without leave to amend, combined 

with the dismissal of the action, had the legal effect of a final, appealable order” (Gutkin 

v. University of Southern California (2002) 101 Cal.App.4th 967, 974).
6

Although no extension of the time to appeal listed in rule 8.108 occurred, 

the court’s action in entering its May 17, 2013 minute order vacating the December 4, 

2012 dismissal of the breach of lease cause of action prior to expiration of the time to 

appeal operated to prohibit an appeal from the earlier dismissal. (Ferraro v. Pacific Fin.

Corp. (1970) 8 Cal.App.3d 339, 345 [a party cannot appeal a vacated judgment].) 

Because the court’s action occurred at a time when Vestar could still have filed a timely 

notice of appeal, there is no reason to deny Vestar the right to appeal from the portion of 

the July 15, 2013 judgment entering a dismissal of the breach of lease cause of action 

based on the court having previously sustained, without leave to amend, a demurrer to 

that cause of action.4 Vestar timely appealed from the July 15, 2013 judgment when it 

filed its August 8, 2013 notice of appeal.

B. Attorney Fees

Sesar was awarded attorney fees because he prevailed on his demurrer to 

the breach of lease cause of action. Vestar contends the trial court erred because Sesar 

was not a defendant in that cause of action and consequently, his demurrer should not 

have been sustained. As Sesar is precluded from an award of attorney fees on the breach 

of guaranty cause of action, given that cause of action was voluntarily dismissed 

(Santisas v. Goodin, supra, 17 Cal.4th at p. 615; § 1717, subd. (b)(2)), we review whether 

the trial court erred in sustaining Sesar’s demurrer to the breach of lease cause of action. 

In reviewing a trial court’s decision sustaining a demurrer, “we examine the 

complaint de novo to determine whether it alleges facts sufficient to state a cause of 

action under any legal theory, such facts being assumed true for this purpose. 

[Citations.]” (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We also 

review exhibits attached to the complaint, here the lease. (Thaler v. Household Finance 

 

4 Sesar did not appeal from the July 15, 2013 judgment and does not argue 

the court lacked authority to vacate the earlier dismissal.
7

Corp. (2000) 80 Cal.App.4th 1093, 1101.) Additionally, we give the complaint “a 

reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]”

(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

A defendant may demur to a cause of action if it fails to state a cause of 

action or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) [failure to state a cause of 

action], (f) [uncertain].) For purposes of a demurrer, “‘uncertain’ includes ambiguous 

and intelligible.” (Ibid.) According to Sesar’s demurrer, the breach of lease cause of 

action was uncertain and failed to state a cause of action. However, in the section of his 

points and authorities directed to the breach of lease cause of action, he did not argue 

uncertainty. Rather, he argued Vestar failed to allege facts supporting the elements of 

breach of contract. In support of his contention, Sesar quoted a paragraph in the breach 

of lease cause of action: “On or about March 15, 2011, plaintiff and defendants, and each 

of them, entered into a written agreement (‘the Lease’) under the terms of which 

defendants, and each of them would rent from Plaintiff the premises. Defendants, and 

each of them, have breached the Lease by vacating the Premises prior to the termination 

thereof and by failing to pay the sums due thereunder.” In response to Sesar’s demurrer, 

Vestar pointed out the lease attached to the complaint showed Kboby, Inc. was the only 

defendant who was a party to the lease.

The court erred in sustaining Sesar’s demurrer to the breach of lease cause 

of action. In compliance with California Rules of Court, rule 2.112, that cause of action 

contained a heading clearly stating the cause of action was against Kboby, Inc. and Does 

one through 10. Sesar was not named as a defendant in that cause of action, a fact driven 

home by the heading for the breach of guaranty cause of action which stated it was 

against Miremad, Lin, Sesar, and Does 11 through 20. Giving the complaint “a 

reasonable interpretation, reading it as a whole and its parts in their context” (Blank v. 

Kirwan, supra, 39 Cal.3d at p. 318), the reference in the breach of lease cause of action to 

“[d]efendants, and each of them” must be interpreted as meaning the defendants listed in 
8

the heading to that cause of action. Sesar was not a defendant in the breach of lease 

cause of action. His demurrer to a cause of action in which he was not a defendant 

should have been overruled. 

It must have been obvious to Sesar that if Vestar could not prevail on the 

breach of lease cause of action against Kboby, Inc., Sesar would not have to pay anything 

on the breach of guaranty action. Thus he apparently attempted to step into Kboby Inc.’s 

shoes at the demurrer stage in the breach of lease cause of action even though he was not 

a defendant in that cause of action.

Because Sesar could not have prevailed on his demurrer to the breach of 

lease cause of action, the court erred in awarding him attorney fees under section 1717. 

(Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 

1106, 1120.) We therefore reverse the attorney fee award.

III

DISPOSITION

The judgment is reversed. Vestar shall recover its costs on appeal.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.