Filed 12/16/13 Estancia C oas tal v. KB H ome Coastal CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

ESTANCIA COASTAL, LLC, Plaintiff and Respondent,

v. KB HOME COASTAL INC. , et al., Defendants and Appellants. D062219
(Super. Ct. No. 37

- 2010

- 00054047

- CU

- BC

- NC)

ESTANCIA COASTAL, LLC, Plaintiff and Respondent,

v. KB HOME COASTAL INC., Defendant , Cross

- complainant and Appellant; KB HOME, Defendant and Appellant; LO LAND ASSETS, LP., Cross

- defendant and Respondent. D062885
(Super. Ct. No. 37

- 2010

- 00054047

- CU

- BC

- NC)

APPEAL from a judgment and order s of the Superior Court of San Diego County, Thomas P. Nugent, Judge. Affirmed in part, r eversed in part, and remanded with directions.2

Munger, Tolles & Olson, Daniel P. Collins and Daniel B. Levin for Defendant , Cross

- complainant and Appellant and for Defendant and Appellant. Payne & Fears, Daniel M. Livingston and Thomas L. Vincent for Plaintiff and Respondent and for Cross

- defendant and Respondent.
KB Home C oastal Inc. (KB), a developer and builder , appeal s the judgment awarding Estancia Coastal, LLC (Estancia) , a financing company, approximately $6.5 million for governmental fees designed to mitigate the impact of the residential development of Old Creek Ranch on schools, parks, roadways , and water and sewer systems (collectively, the impact fees). Estancia ' s assignor , Lo Land Assets, LP ( Lo Land ), bought Old Creek Ranch, granted KB an option to develop and purchase the property in parcels, a nd hired KB to perform certain work needed to prepare the site for
construction of homes

. After KB decided not to exercise the option, Lo Land terminated its contracts with KB, contracted with another builder to complete the project , and sued
KB for the i mpact fees. A jury determined KB breached its contractual obligation to pay the impact fees, and the trial court denied KB ' s motion for partial judgment notwithstanding the verdict (partial JNOV motion), which sought to eliminate the award of impact fees

. KB contends the judgment and the order denying its partial JNOV motion must be
reversed because the jury erroneously interpreted the applicable contracts and , under the correct interpretation, it had no obligation to pay the impact fees. K B also appeals the orders awarding Estancia attorney fees and costs, contending elimination of the erroneously award ed impact fees from the judgment requires reversal of the cost and3

attor ney fee orders and remand for a redetermination of who is the prevailing party
enti tled to costs and fees. Agreeing with KB ' s contentions except as to costs, we reverse and remand for further proceedings.
I.
FACTUAL BACKGROUND
A. Establishment of the Parties ' Contractual Relationship In early 2005, KB approached Lo Land about financing the development of Old Creek Ranch, which is located in the City of San Marcos (the City). The parties structured the project as a " land banking " transaction, whereby the developer identi fies a property to be developed; the financer takes title and , in exchange for a fee, grants the developer an option to purchase and develop th e property in parcels over time; and the financer hires the developer to complete certain site improvement work even if the developer decides not to exercise the op tion. Th e Old Creek Ranch transaction was completed by execution of the three contracts described below

. 1. The Purchase Agreement
KB entered into a purchase agreement (the Purchase Agreement) with the owner of Old Creek Ranch , Brookfield Univ ersity Comm ons LLC (Brookfield)

. KB agreed to develop the property in accordance with certain covenants, conditions , and restrictions , and to build a certain combination of home types according to an agreed schedule

. If KB
failed to proceed with the developme n t under these conditions , Brookfield had the option

to repurchas e Old Creek Ranch

.4

The Purchase A greement imposed on KB certain " Buyer ' s Work Obligations , " consisting of landscaping, construction, and other site development work. The Purchase
A greement also required KB to pay " Buyer ' s Fees, " which includ ed the five impact fees
at issue

. KB later assigned its interest in the Purchase A greement to Lo Land

. Lo Land paid the purchase price and took title to Old Creek Ranch

. 2

. The Option Agreement In connection with the purchase of Old Creek Ranch, KB and Lo Land executed an Option Agreement pursuant to which Lo Land granted KB an exclusive option to purchase Old Creek Ranch in portions and over time

. In exchange for the option , KB agreed to pay a n initial deposit and to make monthly payments to Lo Land . For the option to remain effective, KB also had to acquire periodically a designated portion of
Old Creek Ranch by paying the scheduled price

. KB had the right to terminate the Option Agreement a t any time by giving written notice to Lo Land and its designate d
outside counsel , and Lo Land had the right to terminate if KB failed to acquire portions
of Old Creek Ranch in accordance with the schedule or otherwise defaulted.
T he Option Agreement conta ined several provisions relevant to the issues raised on appeal. S ection 6.1 obligat ed KB to pay certain development costs, including impact
fees that accrue d or bec a me due during the term of th e Option Agreement

. Section 6.5 generally required KB to assume all of the obligations of the Purchase A greement that otherwise would have belonged to Lo Land as the " Buyer

. " An indemnity clause required KB to defend and indemnify Lo Land against claim s for impact fees and real5

property taxes ari sing during the term of the Option Agreement and for other development

- related fees required to be paid under the Purchase Agreement

. A survival
clause stated that unless expressly provided to the contrary in the Option Agreement, all obligations and inde mnities would continue to be binding on the parties even after
termination of the Option Agreement

. Finally, a cost provision required the losing party in any litigation on the contract to pay the prevailing party ' s costs, including attorney
fees.
3

. The C onstruction Agreement
KB and Lo Land also executed a Construction Agreement , which obligated KB to perform c ertain " Work " needed to prepare the site for later construction of homes even if KB decided not to exercise its option to buy Old Creek Ranch. The Work consist ed generally of grading the property; building roads; and installing fenc es , sewers, curbs, gutters, and water and utility lines. The Construction Agreement required KB to pay all

" governmental fees " necessary to do the Work. In exchange , Lo Land agreed to
reimburse KB f

or all costs of performing the Work, up to a maximum amount.
B

. Termination of the Parties ' Contractual Relationship and Post

- termination Events On February 27, 2007, KB sent Lo Land a letter electing not to maintain its option under the Option Agreement. Lo Land responded with a letter, dated March 7, 2007, terminating the Option Agreement. After termination of the Option Agreement, KB continued to perform the Work required by the Construction Agreement. The parties disputed whether the Work included construction of a swimming pool and a recreation center and other tasks , but6

agreed to proceed with the tasks that they did not dispute

. In the fall of 2008, Lo Land directed KB to stop all site development and advised KB it would proceed with another
builder. Approximately one year later , Lo Land sent KB a letter asserting it was responsible under the Construction Agreement for paying approximately $4.5 million in impact fees that would be incurred in con n ection with the development of Old Creek
Ranch. Lo Land demanded payment within 10 days. KB refused the demand.
Lo Land subsequently assigned its rights and interests under the Option and Construction Agreements to Estancia. T he parties stipulated that " Estancia stands in the shoes of [ Lo Land ] " and " holds all rights Lo Land had under the contracts. " In addition,
KB ' s parent, KB Home, agreed to be held jointly and severally liable with KB on the

contracts.
II.
PROCEDURAL BACKGROUND
A. Pleadings
Estancia sued KB for breach of contract. In its complaint, Estancia alleged that although it had performed all of its obligations under the Option and Construction Agreement s , KB breached those agreements by refusing to pay certain property taxes, impact fees, and construction costs. To remedy these alleged breaches, Estancia sought damages and costs, including attorney fees.7

KB filed an answer generally denying the allegations of Estancia ' s complaint and

assert ing several affirmative defenses. KB sough t a judgment dismissing the complaint and awarding KB its costs, including attorney fees.
B. Motion in Limine
Esta ncia moved in limine for an order prohibiting extrinsic evidence on the meaning of the parties ' contracts from being presented to the jury , a t least until the court
decide d which party wa s contractually responsible for paying the impact fees. Estancia argued the Court should interpret the contr acts as a matter of law at the beginning of trial. KB opposed Estancia ' s in limine motion . KB argued the court should deny the motion on proce dural grounds because it was a belated attempt to obtain bifur cation or summary adjudication. KB also argued the motion s hould be denied on the merits
because the c ourt and the jury need ed to hear the same e vidence

— the court to determine
if the contracts we re reasonably susceptible to differing interpretations, and the jury to resolve any factual disputes as to when the impact fees accrued or became due or whether the payment of the impact fees was necess a r y to complet e the Work required by the Construction Agreement.
The court denied Estancia ' s motion on the ground that it was " not an in limine motion by any definition. "
C

. Conflicting Extrinsic Evidence Admitted at Trial
In accordance with the trial court ' s in limine ruling , the parties offered conflicting testimony on their intent in entering into the Option and Construction Agreement s
. Typical of that evidence is the following testimony.8

1. Estancia '

s Extrinsic Evidence Lisa Albanez, an investment manager for Lo Land , testified about her negotiations with KB concerning Old Creek Ranch. Albanez ' s understanding of the " general terms " of
the transaction was that KB would be given an option to purchase the property and would be obligated " to design, engineer, develop, and construct finished lots on the property. " According to Albanez, payment of government fees is " always the responsibility of the
buil der in this type of transaction " ; Lo Land never agreed to finance any of t he government fees th at would be due on the property; and she informed several individuals at KB that payment of the government fees would be KB ' s responsibility

. Albanez
further testified that KB ' s assumption of all of the B uyer ' s obligations under the P urchase
A greement , including payment of all government fees and the finishing of the lots , " was a very mate rial part of [the] negotiations " ; indeed, " if KB was not willing to agree to this, then [ Lo Land ] could not move forward with the deal. "
Albanez was the " lead negotiator " for Lo Land as to the Option Agreement. According to Albanez, section 6.1 wa s a " standard provision " regarding payment of taxes and fees, but s ection 6.5 was not a " typical provision " and was included so that " it was very clear " the obligat ions of the B uyer under the Purchase A greement " stay [ed] with the
builder. " It was Albanez ' s " understanding that KB had the obligation under the [Purchase
A greement ] to pay [impact] fees whenever they were due. " Albanez also testified it was

" very important " to her that " KB ' s obligations under the [Purchase A greement ] would survive any termination of the option. " In that regard, Albanez explained that the indemnity and survival clause s were included in the Option Agreement because Lo Land9

" wan ted to be sure that KB was going to be respons ible for all of the obligations

. . . regardless of whether or not [KB ] terminated the option to purchase the property. "
Without these " protections, " Albanez testified, Lo Land would not have entered into the
deal

. Albanez was also the " lead negotiator " for Lo Land as to the Construction Agreement. Albane z testified the description of the Work contained in the Construction Agre ement was a " standard provision " that she " intended to be very broad

. . . to make sure that all of the obligations, not just finishing the lots, were included. " According to Albanez, a lot is " finished " when the site is complete, all government fees are paid, and the City approves it. 1 During the negotiations, Albanez told KB representatives that impact fees " would be [KB ' s] obligation and contribution to the cost of the finished lots. "
Estancia also called Erica Bose, an attorney who represented Lo Land in the Old
Creek Ranch transacti on , to testify about her involvement in drafting the contracts . Bose
testified Lo Land ' s " policy " was to " make sure [it] did not have to as sume any obligations under the [P]urchase [A] greement short of, obviously, paying the purchase price. " According to Bose, she had conversati ons with representatives of KB " about the fact that [the parties] were going to need to make significant modifications to the provisions of the

1 Estancia's expert "real estate professional," Michael Ryan, gave a more extensive definition of the phrase "finished lot" at trial. Ryan testified that a finished lot is one "that you can start to build a complete house on. In the industry, a finished lot is a lot in a subdivision where all entitlements have been received, impact fees have been paid, all on
- and off

- si te construction has been completed, the conditions of approval as they relate to the site improvements have been satisfied, including common area, and all that work

. . . has been inspected and accepted by the City."10

Option Agreement for Old Creek Ranch to make sure that it was clear where the
allocatio n of responsibility with respect to [the Purchase Agreement] fell

. " With respect to the Option Agreement, Bose testified that b ecause Lo Land was not in the business of building homes or developing lots, she was " cautious " in drafting
section 6.5 " to make it very clear " that KB had all the obligations of the B uyer under the
Purchase A greement. According to Bose , it was Lo Land ' s " intention for [ section ] 6.5 to
survive the terminati on of the Option Agreement. " She also explained that section 6.1

was a " general provision " that Lo Land included in its form option a greement; that
section 6.5 was drafted specifically for the Old Creek Ranch deal ; and that section 6.1

" was not intended to limit " the scope of section 6.5.
Bose also testified about her involve ment in drafting the Construction Agreement.
Accordi ng to Bose, the description of the W ork contained in the Construction Agreement was synonymous with construction of " finished lots, " a phrase Bose acknowledged had
been used in other documents forming a part of the Old Creek Ranch negotiations but not in the Construction Agreement itself.
2. KB '

s Extrinsic Evidence Greg Gallagher, KB ' s former e xecutive v ice p resident, testified about his
involvement in the Old Creek Ranch transaction . Gallagher signed the P urchase
A greement. He also acted as " the primary point of contact " for KB in negotiations with
Lo Land concerning Old Creek Ranch, and later signed the Option and Construction Agreement s
.11

Gallagher testified his " understanding " o f section 6.1 of the Option Agreement was that KB had to pay any impact fees that became due and payable during the period KB was exercising its option rights. He further testified that he " underst[oo]d "
section 6.5 to require KB to perform the obligation s there in mentioned " [t]o the extent [KB was] the builder and [it] incur[red] those obligations. " Gallagher testified his " understanding " of the Construction Agreement was that it

was " another finan cing opportunity for Lo Land to lend more money " for " inf rastructure improvements to keep the process moving along for the home building effort. " He did not recall any discu ssion that the description of the Work include d the construction of

" finished lots. " Gallagher also testified that his " understanding " of section 2.6 of the Construction Agreement was that KB would have to pay whatever fees were required for
it to perform the site development work. According to Gallagher, not all of KB ' s obligations under the Construction Agreement " remained " if KB decided not to exercise its option

. D. Verdict The jury returned a special verdict in which it found KB breached the Option and Construction Agreement s
. Under the Option Agreement, the jury awarded Estancia the following damages: $622,229.25 for property taxes, $6,464,071.84 for impact fees, and $2,706,074 for costs to complete site development work. Under the Construction Agreement, the jury awarded the same damages for impact fees and costs to complete site development work.12

E

. Partial JNOV Mot ion KB filed a partial JNOV motion (Code Civ. Proc., § 629) to exclude from the judgment the amount th e jury had awarded Estancia for impact fees on the grounds that
the award w as contrary to the language of the contracts and was unsup ported by
substantia l evidence. S pecifically, KB argued (1) the extrinsic evidence introduced at trial could not be considered in interpreting the contracts , because it consisted of improper opinion and statements of undisclosed subjective intent; (2) the interpretation of the contracts raised a question of law for the trial court; (3) under the proper interpretation of section 6.1 of the Option Agreement, KB had to pay only those impact
fees that accrued or beca me due during the term of the Option Agre ement; and (4) there
was no substantial evidence that any of the i m pact fees awarded by the jury had accrued
or become due before termination of the Option Agreement. Estancia opposed the motion on multiple g r ounds

. Estancia asserted that by demanding th e jury decide the breach of contract claims, KB forfeited its argument that the trial court must interpret the contracts. Estancia also argued various contract ual provisions , other documents, and witnesses ' testimony constituted substantial evidence
that it was the intent of the parties that KB build " finished lots, " and substantial evidence
showed that the impact fees were included in the cost to deliver such lots.
The trial court denied KB ' s partial JNOV motion, " find[ing] that there was
sufficient evid ence to support the verdict. "13

F

. Judgment KB paid the award of property taxes, and t he court entered judgment for Estancia in the amount of $9,170,145.84. The judgment included an award of pre
- and postjudgment interest.
G

. Orders Awarding Attorney Fees and Costs
Estancia moved for an award of attorney fees under the Option Agreement

. KB opposed the motion on the grounds , among others, that attorney fees were not recoverable for breach of the Construction Agreement and Estancia sought fees for tasks
th at were not reasonably necessary . The court awarded the full amount of fees Estancia requested

. By separate order, the court awarded Estancia its claimed costs.
H. Appeals KB filed a notice of appeal from the judgment and the order denying its partial
JNOV motion , and a separate notice of appeal from the order s awarding attorney fees and

costs

. (Code Civ. Proc., § 904.1, subd. (a)(1), (2), (4).) We consolidated the appeals.
III.
DISCUSSION
KB contends the judgment and the order denying its partial JNOV motion must be reversed because the trial court erroneously submitted the issue of who was contractually obligated to pay impact fees to the jury, and the jury ' s award of impact fees to Estancia was based on a legally incorrect interpretation of the parties ' contracts. According to KB, remand for entry of a new judgment deleting the award of impact fees is required. KB
also contends reversal of the judgment requires reversal of the order s awarding costs and14

attorney fees

. For reasons discus s ed below, we conclude KB is correct as to impact fees
and attorney fee s , but not as to costs

. A. The Award of Impact Fees Must Be Eliminated from the Judgment KB complains the jury improperly awarded Estancia nearly $6 .5 million in impact
fees because KB had no contractual obligation to pay them

. T o resolv e this complaint,

we must determine the scope of KB ' s contractual obligation to pay impact fees and whether KB breached that obligation , issue s we take up in turn below.
1. KB Was Not Con tractually Obligated to Pay the Impact Fees Awarded by the Jury

a. The Proper Standard of Review Is De Novo
W e must first decide a threshold matter the parties vigorously dispute: W hat standard of review applies to interpretation of the parties ' contracts? Estancia argues review for substantial evidence is the correct standard because at trial the parties presented conflicting extrinsic evidence on the meaning of the contracts. KB counters
that de novo review is the proper standard because no conflicting compete nt extrinsic evidence was presented at trial. We agree with KB. Appellate review of an interpretation of a written contract " is govern ed by the settled rule that where extrinsic evidence has been properly admitted as an aid to the interpretation of a contract and the evidence conflicts, a reasonable construction of the agreement

. . . which is supported by substantial evidence will be upheld. " ( In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746

- 747 .) This rule applies only w hen competent extrinsic evidence is in conflict and interpretation turns on the cr edibility of15

that evidence. ( City of Hope Nat. Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395 ( City of Hope ) ; Winet v. Price (1992) 4 Cal.App.4th 1159, 1166 ( Winet ).) Thus,

a n appell ate court is not bound by a n interpretation of a contract by a jury or a trial court
i f no extrinsic evidence was introduced, there wa s no conflict in the extrinsic evidence, or the interpretation was based on incompetent extrinsic evidence

. ( Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 ; accord, City of Hope , at p. 395; see Rilovich v. Raymond (1937) 20 Cal.App.2d 630, 639

- 640. ) " Under these circumstances, there is no issue of fact, and it is the duty of an appellate court to m ake the final determination in
accordance with the applicable principles of law. " ( Estate of Platt (1942) 21 Cal.2d 343, 352; accord, Canaan Taiwanese Christian Church v

. All World Mission Ministries (2012) 211 Cal.App.4th 1115, 1124.) Applying these rule s , we must interpret th e parties ' contracts de novo because
there was no conflict in competent extrinsic evidence as to their meaning. T he testimony
of Albanez, Bose, and Gallagher as to what obligations each of them intended or underst ood the Option and Construction Agreement s to impose regarding payment of impact fees exemplifies the conflicting extrinsic evidence introduced at trial

. (See pt. II.C., ante .) Although Albanez and Bose testified they communicated some of their intents and understandings t o KB representatives, there was no testimony that the KB representatives shared or agreed with those intents or understandings

— in fact, Gallagher testified he had contrary intents and understandings

. T h e extrinsic evidence
thus " amount [ed] to nothing mo re than a statement of what [each witness] personally
believed the agreement of the parties to be, " which is " immaterial " to the proper16

interpretation of the ir agreement

. ( Brant v. California Dairies , Inc. (1935) 4 Cal.2d 128,
133 ( Brant ) ; see Morrow v. L os Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444 [ witness ' s " opinion as to the meaning and legal effect of a contract " was inadmissible as to interpretation of contract] ; Achen v. Pepsi

- Cola Bottling Co. (1951) 105 Cal.App.2d 113, 123 [interpretation of contract is " not controlled in any sense by what either of the parties intended or thought its meaning to be " ] .) In other words , although the extrinsic evidence was conflicting, it was not competent extrin sic evidence

. ( See, e.g., PV Little Italy, LLC v. MetroWork Condominium Assn. (2012) 210 Cal.App.4th 132, 157 [a party ' s " subjective statements of ' understanding ' are irrelevant

. . . , particularly where there is no evidence that [the other party] had th e same understanding " ]; Winet , supra , 4 Cal.App.4th at p. 1166, fn. 3 [ " While this ' subjective
intent ' evidence was conflicting, it was not competent extrinsic evidence, because evidence of the undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language

. " ] ; Merced County Sheriff ' s Employee '

s Assn. v. County of Merced (1987) 188 Cal.App.3d 662, 672, fn. 1 [ a " party ' s subjective ' understanding ' of the meaning of the written contract

. . . does not p resent a credibility question " ]. ) Where, as here, there is no conflict in competent extrinsic evidence, the interpretation of a

contract " becomes solely a judicial function " ( City of Hope , supra , 43 Cal.4th at p. 395),
and " is subject to independent review on appe al " ( Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 390 ( Scheenstra ) ; see Winet , at p. 1166 & fn. 3 [ interpreting

contract de novo when only conflict was in extrinsic evidence that was not competent] ).17 b. KB Did Not Lose Its Right to U rge De Novo Review on Appeal
Estancia contends KB is " estopped " to argue we should interpret the contracts de

novo because in the trial court KB : (1) contended the contractual provisions concerning impact fees were " ambiguous , " and " demanded " the jury hear extrinsic evidence about those provisions; (2) " vigorously opposed " Estancia ' s in limine motion requesting the
trial court decide who was contractually obligated to pay the impact fees without considering any extrinsic evidence ; and (3 ) requ ested a jury instruction on ambiguity, and never sought a pre verdict ruling from the court on any contract interpretation issues.
These contentions have no merit

. First, KB never contended the jury needed to resolve any ambiguity regarding
who had the con tractual obligation to pay impact fees

. To the contrary, KB repeatedly argued that issue presented a legal question for the court to decide. For example:

— In discovery response s cited by Estancia, KB stated certain terms and phrases used in the parties ' contracts (e.g., " Work, " " fees, " and " gov ernmental fees " ) w ere ambiguous

. KB did not state the contracts were ambiguous as to who bore t he obligation to pay impact fees

.

— I n opposin g Estancia ' s motion in limine, KB stated i t s belie f the contracts were n ot ambiguous as to its obligation to pay impact fees, and section 6.1 of the Option Agreement limited its obligation to fees that accrued or became due during the term of the Option Agreement

. KB also stated it was " confiden t " th at after the evidence was presented, the court would agree KB only had to pay impact fees that accrued or became due during the option term, and the jury would agree no such fees accrued or became due until after the option expired

.

— During trial, when Estancia sought testimony from Bose and Albanez about their subjective intents and understandings as to whom the Option and Construction Agreements required to pay the impact fees , KB repeatedly objected on the ground such testimony wa s irrelevant to the proper legal interpretation of the contracts.18

— After the jury returned its verdict, KB filed its partial JNOV motion, arguing Estancia ' s extrinsic evidence could not properly be considered in interpreting the contracts; interpret ation raised a question of law for the court to decide; and under the correct interpretation, KB was not liable for the impact fees. Second, KB did not lose its right to urge de novo review on appeal by opposin g the in limine motion Estancia filed to preclude pr esentation of extrinsic evidence to the jury until after the trial court ruled on who was contractually obligated to pay the impact
fees

. In its opposition, KB asserted section 6.1 of the Option Agreement " clearly limited [its] obligation to pay only thos e fees that accrued or became due during the term of the Option Agreement, " but because Estancia contended otherwise, the trial court provisionally had to hear extrinsic evidence to determine whether the contracts were reasonably susceptible to the different interpretations. In making this argument, KB simply urge d the co urt to follow correct procedure.

" Where the meaning of the words used in a cont ract is disputed, the trial court must provisionally receive any proffered extrinsic evidence which is relevant to show whether the contract is reasonably suscep tible of a particular meaning. [Citations.] Indeed, it is reversible error for a trial court to refuse to consider such extrinsic evidence on the basis of the trial court ' s own conclusion that the language of the contract appears to be clear and unambiguous on its face. Even if a contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible. " ( Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912 , italics added

. ) Although the court typically hears extrins ic evidence outside the presence of the jury ( Equitable Life Assurance Society v. Berry (1989) 212 Cal.App.3d 832, 838) , KB reasonably argued that for reasons of witness convenience and judicial economy, the court should not hold a separate hearing regardi ng extrinsic evidence because the jury19

needed to hear that evidence and other testimony from the same witnesses in order to decide factual questions related to the issue of breach (e.g., when impact fees accrued or became due, and whether payment of impact fees was necessary to complete the Work).
But , KB made very clear in its opposition that the contracts were not ambiguous as to the allocation of responsibility for payment of impact fees, it had no obligation to pay those fees, and it was " confident " th e trial court would agree after hearing the extrinsic
evidence

. Third, by agreeing to a jury instruction on ambiguity and by not moving for summary judgment, nonsuit, or directed verdict, KB did not lose its right to argue that we must interpret the contracts de novo

. Estancia ' s contrary assertion is not supported by the case on which it exclusively relies, Mozzetti v. City of Brisbane (1977) 67 Ca l.App.3d
565. Unlike the defendant in Mozzetti , KB did not request a jury instruction that was

" tantamo unt to submitting the legal questions in dispute to the jury. " ( Id. at p. 573, italics added.) The jury instruction quoted by Estancia neither informed the jury that the parties had a dispute over who bore the contractual obligation to pay impact fees no r advised the jury how to resolve that dispute. Rather, t h e instruction informed the jury that the parties
had a factual dispute over what physical tasks were included in the " Work " KB agreed to
do and what types of associated expenses constituted the " fees " KB had to pay, and advised the jury of some factors to consider to resolve that dispute

. 2 Further, unlike the

2 The instruction, based on CACI No. 3 14, stated: "Estancia and KB dispute the meaning of terms contained in their contracts regarding the scope of work to be performed by KB and the fees that it would pay. [ ¶ ] In deciding what the terms of a20

defendant in Mozzetti , KB did not fail to seek a dete rmination of the legal issues by the trial court. ( Ibid. ) As Mozzetti recognize d , a party may preserve a claim that the cour t should have decided disputed legal issues if it moves for summary judgment, nonsuit, or directed verdict, or " seek [ s ] a court determination on the legal issues in any other way

. " ( Ibid. , italics added

. ) KB satisfied this preservation requirement by filing a partial JNOV
motion. ( See Stevenson v. Oceanic Bank (1990 ) 223 Cal.App.3d 306, 313, 318 [JNOV motion properly granted when jury awarded damages based on erroneous contract interpretation supported by inc ompetent extrinsic evidence]; Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510 [ " Where appropriate a partial JNOV may be granted. " ] .) In sum, we reject Estancia ' s argument that KB invited the error in the jury ' s determination of disputed contract ual interpretation issues based upon incompetent
extrinsi c evidence. W e hold KB did not lose its right to pursue its claim on appeal that we must interpret the contracts de novo

.

c
. The Option Agreement Expressly Limit s KB ' s Obligation to Pay Impact Fees to Those That Accrued or Became Due During the Term of the Option Agreement Applying the de novo standard of review , we now must determine the scope of
KB ' s contractual obligation to pay impact fees

. Our primary goal in interpreting a

contract is to effectuate the mutual intention of the parties as it existed at the time the

contract mean, you must decide what the parties intended at the time the contract was created. You may consider the usual and ordinary meaning of the language used in the contract as well as the circumstances surrounding the making of the contract."21

contract was made. (Civ. Code, § 1636; State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195. ) We ascertain such intention solely from the words of a wri tten contract , if possible. (Civ. Code, § 1639; Continental Ins. Co. , at p. 195.) The words used in a contract, taken in their ordinary and popular sense unless used in a technical sense, govern interpretati on of the contract as long as the words are cle ar and explicit and do not involve an absurdity. (Civ. Code, §§ 1638, 1644; Code Civ. Proc., § 1861; Continental Ins. Co. , at p. 195.) In short , to decide wh e ther K B must pay the impact fees, " [w]e look to the contract itself and interpret it so as to give effect to the intent of the parties. " ( Sayble v. Feinman (1978) 76 Cal.App.3d 509, 513 ( Sayble ) .)
T he parties exp licit ly set forth their intent concerning the payment of impact fees
in section 6.1 of the Option Agreement , which states in pertinent pa rt :

" It is the parties ' intention that [ Estancia ] shall not be required, during the term of this Agreement

, to incur any expense or other charge applicable to [ Old Creek Ranch ] except as expressly set forth herein , so that all impositions,

. . . utility expenses, construction costs,

. . . development fees, community facility district fees or costs, storm water pollution prevention fees or costs,

. . . and all other costs and expenses (but excluding income taxes and franchise taxes) of whatsoever character or kind, general or special, ordinary or extraordinary, foreseen or unforeseen, and of every kind and nature whatsoev er related to [O ld Creek Ranch] (collectively,

' Expenses ' ) , shall be paid or discharged by [KB]

. . . . The Expenses are additional Optio n consideration and are nonrefundable to [KB] and not applicable to the purchase price of the Condominiums. Without limiting the foregoing, [ KB ] shall

. . . pay prior to delinquency all real estate taxes, special taxes, assessments and other charges, incl uding

. . . fees or costs pertaining to roadway, water, wastewater, impact or other fees payable to the City or any other Approving Authority, or otherwise payable by [Estancia] and attributable to [Old Creek Ranch], which accrue or become due during the t erm of this Agreement (but regardless of whether such taxes

. . . , assessments, fees or charges relate to periods prior to the term of this Agreement)

. . . . After termination of this Agreement , [ KB ] shall have no further obligation to pay the Expenses as they relate to Condominiums22

or Real Property not previously acquired by [ KB ]; provided, however, nothing herein shall limit [KB ' s] obligations under Section 9.1 below. " (Italics added.) Section 9.1, the indemnity clause of the Option Agreement, require s KB to indemnify Estancia against " any loss, liability, claim, action or proceeding made against [Estancia] or [Old Creek Ranch] relating to impact fees

. . . arising for any time periods during and before the term of this Agreement

. " (Italics added.)
As the italicized language above indicates , section 6.1 of the Option Agreement
allocate s the duty to pay impact fees based on the date the fees " accrue " or " beco me due "
relative to the date the Option Agreement terminate s
. An impact fee accrues when it

" co me[s] into ex istence as an enforceable claim " or " vest[s] as a right. " (Webster ' s 3d New Internat. Dict. (2002) p. 13, col. 2; accord, Black ' s Law Dict. (9th ed. 2009) p. 23,
col. 2; see Webster ' s, p. 13, col. 3 [defining " accrued liability " as " the portion of an accruing liability that has become definitely ascertainable and chargeable though actual payment thereof is not yet due " ]. ) 3 An impact fee becomes due when it " come[s] to
exist " and " reache[s] the date at which payment is required. " (Webste r ' s, p. 195, col. 1 [defining " become " ], p. 699, col. 2 [defining " due " ]; see Black ' s, p. 574, col. 1 [defining

" due " as " [i]mmediately enforceable " or " [o]wing or payable " ] .) Thus, u nder the plain meaning of section 6.1 , KB had to pay an impact fee if th e government al entity ' s right to
3 We must interpret the words "accrue" and "become d ue" in their ordinary and popular sense because the parties did not give them a special or technical meaning. (Civ. Code, § 1644; Code Civ. Proc., § 1861.) In doing so, we may consult dictionaries, where the ordinary and popular sense of a word is found. ( People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2004) 116 Cal.App.4th 1253, 1263; Scott v. Continental Ins. Co. (1996) 44 Cal.App.4th 24, 30.)23

collect the fee arose or came into existence during the time period the Option Agreement was in effect, regardless of whether the government al entity could demand payment of
the fee immediately or only at a future time

. Once the Option Agreement terminated and KB had acquired no portion of Old Creek Ranch , however, KB had no obligation to pay
any new impact fee s that arose going forward ; but KB did retain a duty to indemni f y Estancia against claims for payment of impact f ee s that a government al entity previously had acquired a right to collect

. Since these temporal limitations on KB ' s duty to pay impact fees are clear and explicit and do not involve an absurdity, they govern. (Civ. Code, §§ 1638, 1639; County of San Diego v. Ace Property & Casualty Ins. Co. (2005) 37 Cal.4th 406, 415; Valencia v. Smyth (2010) 185 Cal.App.4th 153, 177.)
2. KB Did Not Breach Its Contractual Obligation to Pay Impact Fees Next, w e must determine whether KB breached its contr actual duty by refusing to
pay impact fees that accrued or beca me due during the time the Option Agreement was in
effect

. The parties agree that w hether a party breached a contract is a question of fact ( Moresco v. Foppiano (1936) 7 Cal.2d 242, 245 ; Kotler v. PacifiCare of California (2005) 126 Cal.App.4th 950, 956 ) , to which we app ly the substantial evidence standard of review ( Crawford v. Southern Pac ific Co. (1935) 3 Cal.2d 427, 429; Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 170 )

. The record here contains no
substantial evidence of a ny breach by KB

. T he parties agree t he Option Agreement24

terminated no later than March 7, 2007 , and u ndisputed evidence show s that n one of the impact fees awarded by the jury accrued or bec a me due by then

. 4 The impact fees awarded by the jury included those for schools, parks, roadways,
and water and sewer facilities

. The City had no legal right to collect s chool impact fees
until it had approved and issued a building permit. (Ed. Code, § 17620, subd. (b); Gov. Code, § 65974, subd. (c); San Marcos Mun. Code, § 17.52.050, subd. (i). ) Park a nd roadway impact fees likewise were " due and payable upon issuance of a building permit by the City

. " (San Marcos Mun. Code, §§ 17.36.040, 17.44.070.) 5 According to
Esta ncia, building permi ts were issued at various time s from June 2009 through April 2011, more than two years after termination of the Option Agreement. W ater and sewer impact fees did not become " owing, due, and payable " until application s for service were submitted to the Vallecitos Water District (the District). (Vallecitos Water Dist. Ord.
Nos. 122, § 9, 138, § 9, 139, § 8. ) 6 Those applications were not submitted until August 4, 2009, and fees were not paid until the following December

.

4 Because the operative facts concerning breach of contract are not in dispute, the de novo standard of review would appear to be more appropriate. (See, e.g., Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 ( Ghirardo ); Scheenstra , supra , 213 Cal.App.4th at p. 391.) As explained in the te xt, however, even under the more deferential substantial evidence standard urged by the parties, KB is not liable for breach.
5 Estancia's expert witnesses agreed school, park, and roadway impact fees had to be paid to obtain a building permit.
6 The District's engineer, Kenneth Gerdes, whom Estancia called as a witness, agreed water and sewer impact fees must be paid when a customer requests service.25

In sum , the evidence shows that all of the impact fees KB challenges on appeal
accrued or became due after termination of the Option Agreement

. Hence , under the plain terms of section 6.1 , KB had no contractual obligation to pay any of them

. 3. None of Estancia '

s Arguments in Support of the Award of Impact Fees Has Merit Estancia advances several arguments in defense of the jury ' s award of impact fees.
As we explain below , n one is persuasive.

a. KB Did Not Waive Its Right to Appeal by Failing to Discuss A ll Material Evidence in Its Opening Brief Estancia contends KB waived its right to appeal under the rule that unless an appellant challenging the sufficiency of the evidence to support a verdict sets forth in its
brief all material evidence

— not just the evidence supporting the appellant ' s position, but
also that suppo rting the respondent ' s position

— the challenge is deemed waived. ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881

. ) A lthough in its brief s KB
did not cite so much of the evidence support ing Estancia ' s position as did Estancia in its
brief , KB did discuss the contract provisions, documents, and testimony relevant to our resolution of the issues raised on appeal

. There has been no waiver.

b. Section 6.1 of the Option Ag reement Does Not Require KB to Pay the Impact Fees Estancia next argues section 6.1 of the Option Agreement requires KB to pay the impact fees because the record contains substantial evidence that KB ' s " impact fee obligations " accrued during the option term, even though the fees themselves might not
have been due and payable during that term

. According to Estancia , KB immediately26

obligated itself to pay the impact fees when it signed the P urchase Agreement and the Option Agreement ; when the Development Declaration was recorded; when the City issued its conditions of approval for the development of Old Creek Ranch; and when the District demanded payment of water and sewer impact fees in November 2006. We are not persuaded

. To the extent Estancia bases it s argument on the provisions of the Purchase Agreement, the Option Agreement , and the Development Declaration, Estancia confuses
the issue of when KB ' s executory obligation to pay impact fees arose with the issue of when a particular impact fee accrued or became due. Although KB assumed an obligation to pay impact fees when it signed the Purchase and Option Agreement s , and the Development Declaration confirmed that obligation insofar as it was based on the
Purchase A greement , section 6.1 of the Option Agre ement expressly limited that obligation to impact fees " which accrue or become due during the term of this Agreement. " Thus, to trigger KB ' s o bligation to pay an impact fee , the specific impact fee itself must have accrued or becom e due during the term of the Option Agreement

. Because , all of the impact fees at issue on appeal accrued or became due after termination of the Option Agreement , KB had no obligation to pay any of them.
Estancia also asserts the accrual of KB ' s impact fee obligations was aff irmed when the City imposed c o nditions of approval on the development of Old Creek Ranch

. Estancia cites no legal auth ority to support this assertion. The only evidence Estancia cites is testimony from Ryan, its expert " real estate professional , " that " i mpact fees are normal and customary in the real estate industry " ; " the City puts them in the conditions of27

approval " because " they are paid by the developer of the site, " not by the project lender;
and a " shift in timing " of the payment of impact fees does not " shift[] the obligation " to
p ay them. None of t his generalized testimony about who customarily pays impact fees for a real estate development project indicates when any particular impact fee accrued or
became due as to Old Creek Ranch , the issue determinati ve of KB ' s obligation to pay
such a fee

. Ryan ' s opinions about who ordinarily has to pay impact fees are not binding

on us , because the determination of KB ' s obligation to pay impact fees depends on the interpretation of statutes, ordinan ces, and contracts, and their application to undisputed facts, which are all matters subject to our de novo review. ( City of Monterey v.
Carrnshimba (2013) 215 Cal.App.4th 1068, 1081 ; Scheenstra , supra , 213 Cal.App.4th at
p p
. 390

- 391 ; Herman v. Los Angele s County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 825.) Lastly, Estancia maintains the water and sewer impact fees accrued and became
due in November 2006 when the District demanded payment of those fees. We disagree. Although in November 2006 the District did demand payment of impact fees as a condition of final approval of t he development plans , the District later withdrew that
demand . At trial, Gerdes, the District ' s engineer , testified that when he signed off on th e plans on March 13, 2007, the water and sewer impact fees were not yet due. Gerdes explained that the fees for Old Creek Ranch had to be paid " prior to hook

- up or prior to taking service, actually turning on the meter and taking service, " " either through water meters or through the public sewer. " Gerdes further testified that water and sewer impact fees are not like property taxes, which accrue during the year but are not payable until a28

later date, because water and sewer impact fees do not have to be p aid unless and until there is a request for service. Gerdes ' s testimony is consistent with the District ' s ordinances, which provide that water and sewer impact fees " shall become owing, due, and payable at the time application is made to connect to the Di strict ' s water [or sewer] system. " (Vallecitos Water Dist. Ord. Nos. 122, § 9, 138, § 9, 139, § 8.) Because no such application was made until 2009 , the water and sewer impact fees did not accrue or bec o me due before termination o f the Option Agreement i n March 2007

.

c. Section 6.5 of the Option Agreement Does Not Require KB to Pay the Impact Fees Estancia also contends section 6.5 of the Option Agreement requires KB to pay the impact fees. That provision state s : " [KB] agrees and acknowledges that it is the intent of the parties t hat notwithstanding the fact that [Estancia] acquired [Old Creek Ranch] as the

' Buyer ' under the Purchase Agreement, all the obligations of

. . . ' Buyer ' under the Purchase Agreement

. . . shall be performed by and shall be th e sole obligations of [KB]. " Among the many obligations the Purchase Agreement imposed on the Buyer was the obligation to pay specified " Buyer ' s Fees, " including the impact fees. According to Estancia, section 6.5 was specifically negotiated to ensure th at KB retained full responsibility for the impact fees no matter when due , and s ection 6.1 was not intended to limit the scope of s ection 6.5. We perceive at least three flaws in this argument

. First, to the extent general and specific contract provision s conflict , the specific provision controls. (Civ. Code, § 3534; Code Civ. Proc., § 1859; National Ins.
Underwriters v. Carter (1976) 17 Cal.3d 380, 386 ( Carter ) ; Ovitz v. Schulman (2005)29

133 Cal.App.4th 830, 855 ( Ovitz ) .) Here , the temporally limited du ty to pay impact fees specifically prescribed by section 6.1 prevails over the broad duty to perform all of the Buyer ' s obligations under the Purchase Agreement generally prescribed by section 6.5. Second, Estancia ' s interpretation of section 6.5 effectiv ely read s section 6.1 out of the Option Agreement. If, as Estancia insists, section 6.5 requires KB to pay i mpact fees no matter when due, the explicit language of section 6.1 restricting KB ' s payment obligation to fees that accru ed or became due during t he term of the Option Agreement
would be nullified. A court should not interpret a contract so as to render a provi sion inoperative or meaningless. ( Code Civ. Proc., § 1858; Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 957; Kavruck v. Blue Cross of California (2003) 108 Cal.App.4th 773,
783

. ) Rather, a court should strive to give effect to every contractual provision and to avoid making any superfluous. ( Civ. Code, § 1641; Carson v. Mercury Ins. Co. (2012) 210 Cal.App.4th 409, 420; Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010,
1027 )

. W e thus interpret section 6.1 to govern KB ' s obligation to pay i mpact fees and
section 6.5 to govern other obligations KB assumed under the Purchase Agreement. Third, interpreting section 6.5 of the Option Agreement as overriding the temporal
limitations of section 6.1 would upset the parties ' basic bargain and produc e an un just
result

. A court must give a contract a reasonable and commonsense interpretation that is consistent with the parties ' apparent purpose in entering into the contract. (Civ. Code, § 1643; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 526 ; Howe v. American Baptist Homes of the West, Inc. (1980) 112 Cal.App.3d 622,30

626 .) Here, the parties ' contractual relationship was essentially a financing arrangement:
Lo Land , Estancia ' s assignor, bought Old Creek Ranch f or $52 million and g ranted KB an option to purchase and develop the property in parcels over time, and i n e xchange KB paid Lo Land $17.7 million in initial and monthly payments to keep the option open

. The Option Agreement also required KB to pay impact fees that " accrued or be come due during the Option Term " as " additional consideration " for the option and as a " condition " to keeping it open. Although i t is economically rational for KB to agree to pay impact
fees that arose during the option term as add itional consideration to keep the option open , i t is not economically rational for KB to agree to pay impact fees that arose after Lo Land terminated the Option Agreement

. Rather , it would be inequitable to require KB to pay not only the $17 .7 million it had already paid to keep the option open but also the $6.5 million in p ost

- termination impact fees as " additional consideration " for an option it no longer had a right to exercise. Since w e must adopt an interpretation that makes a
contract fair and reaso nable rather than one that leads to a h arsh and illogical result ( Code Civ. Proc., § 1866; Cohn v. Cohn (1942) 20 Cal.2d 65, 70 ; Chavez v. Indymac Mortgage
Services (2013) 219 Cal.App.4th 1052, 10 58 ; Cooper v. Mart Associates (1964) 225 Cal.App.2d 108, 116 ) , we reject Estancia ' s claim that s ection 6.1 was not intended to limit the scope of s ection 6.5

.

d. The Survival Clause of the Option Agreement Does Not Require KB to Pay the Impact Fees Estancia claims that under the survival clause of the Option Agree ment, KB ' s obligation to pay impact fees r emained a binding obligation regardless of whether the31

option was exercised or terminated. We disagree. As pertinent here, the survival clause

states: " Unless expressly provided to the contrary herein , . . . all obligations and indemnities contained in this Agreement shall survive the

. . . termination of this Agreement, so that such obligations an d indemnities shall continue to be binding upon the parties hereto

. . . . " (Italics added.) Section 6.1 of the Option Agreement " expressly provided to the contrary " by stating : " A fter the termination of this Agreement, [KB] shall have no further obligation to pay the Expenses [ , ] " including impact fees. Although Estancia ignores the limit ing lan guage of the survival clause italicized above , we must give effect to such clear and explicit language. (Civ. Code, § 1638; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264; Brandt v. Lockheed Missiles & Space Co. (1984) 15 4 Cal.App.3d 1124, 1129

- 1130.)

e. The Indemnity Clause of the Option Agreement Does Not Require KB to Pay the Impact Fees Next, Estancia asserts the indemnity clause of the Option Agreement requires KB to pay the impact fees. Estancia is incorrect. As pertinent here, the indemnity clause requires KB to indemnify Estancia against " any loss, liability, claim, action or proceeding made against [Estancia] or [Old Creek Ranch] relating to impact fees and/or real property

taxes aris ing for any time periods during and before the term of this Agreement

. " (Italics added.) Under this plain language, KB is not liable for the impact fees because all of
them arose after Estancia terminated the Option Agreement. The indemnity provisions
on which Estancia relies relat e more generally to obligations of the B uye r under the Purchase Agreement and do not override the provision specifically governing impact32

fees. (Civ. Code, § 3534; Code Civ. Proc., § 1859; Carter , sup ra , 17 Cal.3d at p. 386; Ovitz , supra , 133 Cal.App.4th at p. 855.)

f. The Construction Agreement Does Not Require KB to Pay the Impact Fees Finally, Estancia argues t he jury properly awarded impact fees based on KB ' s breach of the Construction Agreement. In support of this argument, Estancia contends : (1) the W ork to be performed un der the Construction Agreement itself included payment
of impact fees ; and (2) the Construction Agreement require d KB to complete all work necessary to deliver " finished lots, " and impact fees had to be p aid for lots to be
considered " finished. " We reject th ese contentions as inconsistent with the plain language of the Constructi on Agreement. Two provisions of the Construction Agreement are pertinent here. Section 1.1 requir ed KB to " perform and complete the ' Work, ' " which was defined as " the
construction and services required by (and reasonably inferable from) the ' Contract
Documents '

. . . , whether completed or partially completed, and includes all labor, materials, equip ment and services provided or to be provided by [KB] to fulfill [its] obligations under this Agreement. " (Italics added.) Section 1.1 further provided: " The Work consists generally of the construction of certain roads, fencing, sewers, curbs, gutters, g rading, water lines and utility lines within, and adjacent to, [Old Creek Ranch]. "
S ectio n 2.6 of the Construction Agreement obligated KB t o " secure and pay for all approvals, easements, assessments, charges, permits and governmental fees , licenses and inspections necessary for proper executi on and completion of the Work

. " (Italics added.)33

T hus , KB had to pay all governmental fees required to grade, fence, construct roads, install utility lines, and otherwise physically improve Old Creek Ranch so that homes
could be built on it

. That obligation did not include payment of any of the impact fees awarded by the jury. T he school, park, and roadway impact fees did not have to be paid until approval and issuance of building permits for homes ; and the w ater and sewer impact fees did not
have to be paid until application was made to connect the homes to the District ' s facilities
and obtain service. (See pt. III.A.2, ante .) Payment of those impact fees was therefore not necessary unless and unt il homes were built. T he Construction Agreement , however, did not obligate KB to build any homes. The Work that section 1.1 required KB to perform consisted only of physical tasks needed to prepare the site for later home building. Accordingly, under section 2.6, KB did not have to pay the impact fees because they were not " necessary for proper executi on and completion of the Work. " Ignoring the contractual language and quot ing only extrinsic evidence, Estancia
claims the definition of Work contained in the Construction Agreement include s payment of impact fees. 7 That claim is untenable. Section 1.1 defines the Work generally as

7 Estancia asserts "Gallagher admitted that the 'Work' to be performed under the Construction Agreeme nt included impact fees," but the testimony Estancia quotes belies that assertion. When asked whether it was his "understanding that the work to be done under the Construction Agreement included impact fees," Gallagher responded, "I think the work include d whatever we were doing .

. . to construct and build homes. So if it .

. . incurred a fee, then we would have to pay that as the builder." (Italics added.) Gallagher later explained: "[T]his doesn't really talk about the homes. This talks about the c ompletion of the 'Work.' So if we had to get a grading permit, for instance, we would have to pay for a grading permit." Hence, Gallagher's testimony is consistent with the34

" construction and services, " and then lists " roads, fencing, sewers, curbs, gutters, grading,
water line s and utility lines " as specific examples of the types of construction or services
included within the definition. " [W] here specific words follow general words in a
contract, ' the general words are construed to embrace only things similar in nature to those enumerated by the specific words. ' " ( Nyg å rd, Inc. v. Uusi

- Kerttula (2008) 159 Cal.App.4th 1027, 1045.) Payment of impact fees constitutes neither " construction " nor

" service s , " and it bears no resemblance to grading, fencing, building roads, insta lling utility lines, or doing any of the other physical tasks needed to prepare Old Creek Ranch
for later home building

. Hence , contrary to Estancia ' s claim, we conclude that paying impact fees w as not part of the Work the Construction Agreement required KB to do

. We also reject Estancia ' s contention that the Construction Agreement requir ed KB to do all work necessary to deliver " finished lots , " a phrase Estancia claims is understoo d in the real estate industry to mean subdivision lots for which , among other things, impact fees have been paid

. (See fn. 1 , ante .) As Estanci a acknowledges in its briefing, t he quoted phrase never appears in the Construction Agreement , although the parties included it in the letter of intent that preceded the final contrac ts

. "The execution of a contract in writing .

. . supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." (Civ. Code, § 1625.) Thus, w hen interpreting a contract, a court ' s ta sk " is simply to ascertain and declare what requirement of section 2.6 that KB pay only those governmental fees necessary to complete the Work. In any event, Gallagher's "understanding" of the Construction Agreement is irrelevant to its proper interpretation. ( Brant , supra , 4 Cal.2d at p. 133; Winet , supra , 4 Cal.App.4th at p. 1166, fn. 3.)35

is in terms or in substance contained therein, not to insert what has been omitted. " (Code Civ. Proc., § 1858; see Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 954.)

" This court has neither the power t o make for the parties a contract ual arrangement which they themselves did not make nor to insert in the agreement language that [ one party ]
now wish [ es ] were there. " ( Sayble , supra , 76 Cal.App.3d at p. 515 .) If Estancia wanted delivery of " finished lots, " it should have included that phrase in the Construction Agreement

. But it did not

. Estancia asserts , however, that KB ' s statement in discovery response s that the term

" Work " was ambiguous as use d in the Construction Agreement permitted the jury to resolve the ambiguity in Estancia ' s favor based on extrinsic evidence that the term essentially meant construction of lots for which impact fees had been paid. We disagree

. T he ambiguity KB perceived was whether the construction of a swimming pool and o ther improvements fell within the definition of Work, not whether the payment of impact fees
was included in the definition. On the issue of the obligation to pay impact fees, KB ' s consistent position at trial was that the parties ' contracts were not ambiguous and extrinsic evidence was not properly considered by the jury

. Moreover, " [e] ven where extrinsic evidence in aid of interpretation was offered in the trial court, the appellate c ourt is not bound by the [jury ' s] findings if the extrinsic eviden ce
. . . is inconsistent with the only interpretation to which the instrument is reasonably susceptible. " ( Pasadena Police Officers Assn. v. City of Pasadena (1983) 147 Cal.App.3d 695, 707.) Estancia ' s extrinsic
evidence is inconsistent with the plain la nguage of the Construction Agreement requiring
KB to pay only those governmental fees needed to get the site ready for home building ,36

because the impact fees did not have to be paid unless and until homes were built

. That
evidence therefore cannot support the jury ' s award of impact fees.
B. T he Trial Court Must Rec onsider the Attorney Fee Award b ut Not the Cost Award KB contends reversal of the judgment to eliminate the award of impact fees requires reversal of the orders awarding cost s and at torney fee s and remand for
redetermination of who is the prevailing party. We agree as to attorney fees, but not as to

costs

. 1. The Trial Court Must Determine Anew Who Is the Prevailing Party for

Purposes of Attorney Fee s In light of our decision that Estancia is n ot entitled to recover any impact fees, the trial court must reconsider its award of attorney fees. Estancia sought and obtained attorney fees on the basis of the following provision of t he Option Agreement:

" If there is any legal action or proceeding bet ween the parties to enforce or interpret any provisions of this Agreement or to protect or establish any right or remedy of any of them hereunder, the unsuccessful party to such action or proceeding shall pay to the prevailing party all costs and expenses (including, but not limited to, reasonable attorneys ' fees and costs) incurred by such prevailing party in such action or proceeding. " The prevailing party u nder t his provision is " the party who recovered a greater relief in
the action on the contra c t

. " ( Civ. Code, § 1717, subd. (b)(1).) Based on the jury ' s verdict, Estancia was the prevailing party because it had obtained " a ' simple , unqualified
win ' " on each of its contract claims. ( Hsu v. Abbara (1995) 9 Cal.4th 863, 876 ( Hsu ). ) Our conclusion the j ury erroneously awarded the impact fees changes the outcome to a mixed result, however, with Estancia prevailing on its claims for property taxes and costs37

to complete site development work, 8 and KB prevailing on Estancia ' s claim for the impact fees. In s uch a situation, where neither party won a complete victory on all
contract claims , the trial court has discretion to determine which party prevailed or whether, on balance, neither party prevailed sufficiently to jus tify an attorney fee award. ( Civ. Code , § 1717, subd. (b)(1); Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109 .)
We therefore r evers e the order awarding attorney fee s and remand the matter to allow the
trial court to exercise its discretion. (See, e.g., Ghirardo , supra , 8 Cal.4th at pp

. 808

- 809 [revers ing damages award and remand ing for reconsideration of prevailing party issue]; Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1097 [ same ].)
For the guidance of the trial court on remand, we note that i n deciding whethe r there is a prevailing party for purposes of awarding attorney fees, the " court is to compare the relief awarded on the contract claim or claims with the parties ' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be

8 We reject KB's argument that Estancia is not entitled to attorney fees based on the award of costs to complete site development work because that award rested solely on breach of the Construction Agreement. The Option Agreement defined a failure to perfor m under any of the "Builder's Agreements," which included the Construction Agreement, as a default that entitled Estancia to recover damages for breach of the Option Agreement. Estancia's claim for costs to complete the site development work thus fell wit hin the scope of the attorney fee clause because the claim constituted an "action or proceeding between the parties .

. . to protect or establish any right or remedy" under the Option Agreement. It is too late for KB to argue that its breach of the Constr uction Agreement did not qualify as a default under the Option Agreement on the ground that Estancia did not provide the required written notice of breach. KB did not argue that factual point in the trial court in opposition to Estancia's attorney fee mot ion and may not do so for the first time on appeal. (See, e.g., Silk v. Feldman (2012) 208 Cal.App.4th 547, 555; Perez v. Grajales (2008) 169 Cal.App.4th 580, 591

- 592.)38

made only upon final resolution of the contract claims and only by ' a comparison of the extent to which each party ha[s] succeeded and faile d to succeed in its contentions

. ' " ( Hsu , supra , 9 Cal.4th at p. 876

. ) The trial court must " identify the party obtaining ' a greater relie

f ' by examining the results of the action in relative terms: the general term

' greater ' includes ' [l]arger in size than others of the same kind ' as well as ' principal ' and

' [s]uperior in quality. ' " ( Sears v. Baccaglio ( 1998) 60 Cal.App.4th 1136, 1151.) In mixed result cases like this one, t he court also may determine there is no prevailing party for purposes of attorney fees. (Ci v. Code, § 1717, subd. (b)(1)

. ) " ' [T]ypically, a determination of no prevailing party results when both parties seek relief, but neither prevails, or when the ostensibly prevailing party receives onl y a part of the relief sought. ' " ( Hsu , at p. 875.) We express no opinion on which party, if any, the trial court
on remand should determine to be the prevailing party

. 2. Estancia Is the Prevailing Party for Purposes of Cost s Finally, we summarily reject KB ' s suggestion in a footnote in its opening brief that
we must also vacate the order awarding costs and remand for reconsideration

. As " the party with a net monetary recovery, " Estancia is the prevailing party entitled to costs " as a matter of right , " even though it di d not prevail on all of its claims for damages

. ( Code Civ. Proc., § 1032, subds. (a)(4), (b); see Dell ' Oca v. Bank of New York Trust Co., N.A. ( 2008) 159 Cal.App.4th 531, 559.)
DISPOSITION The judgment, the order denying KB ' s partial JNOV motion, and the order awarding Estancia attorney fees are reversed. The order awarding costs i s affirmed. The39

matter is remanded to the trial court with directions (1) to enter a new order granting
KB ' s partial JNOV motion; (2) to enter a new judgme nt deleting the jury ' s award of $6,464,071.84 for impact fees, awarding Estancia damages in the total amount of $2,706,074 for costs to complete site development work, and recalculating prejudgment
interest on that amount ; and (3) to conduct further procee dings to determine whether either Estancia or KB is a prevailing party entitled to attorn ey fees, and if so, to award th e prevailing party a reasonable amount of fees. Costs on appeal are awarded to KB.

IRION, J.
WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.