Filed 10/31/13 Gonya v. Stroud CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA

PAUL GONYA et al., Plaintiffs and Respondents,

v. KENNETH STROUD, Defendant and Appellant. D062315

(Super. Ct. No. GIC876435)

APPEAL from an order of the Superior Court of Sa n Diego County, Jeffrey B. Barton, Judge. Affirmed.

Law Office of Steven A. Marczeski a nd Steven A. Marczeski for Defendant and Appellant. Barker Olmsted & Barnier and Christ opher W. Olmsted for Plaintiffs and Respondents.2 Defendant Kenneth Stroud appeals an or der denying his motion for attorney fees

under Civil Code 1 section 1717. Plainti ffs Paul Gony and Gonya Enterprises, Inc. (GEI) (together Gonya/GEI) sued Stro ud for express contractual indemnity, implied contractual indemnity, and equitable indemnity, alle ging Stroud was requi red to indemnify Gonya/GEI for their settlement in a lawsuit with a third pa rty, Dartmout h Development Company (Dartmouth). Gonya/GEI based thei r claims on several agreements between themselves, Stroud, and Stroud's company. Stroud cross-complained against Gonya/GEI for declaratory relief on the in demnity issue and common count causes of action arising out of unpaid work Stroud performed for Gonya. After the bench trial commenced, Gonya voluntarily dismisse d both contractual indemnity claims. The court found for Stroud on the remaining equitable indemnity claim, finding (1) Stroud never si gned the contract establishing a right to indemnification, (2) the contract submitted at trial was inco mplete and unreliable, and (3) section 2774 (see fn. 5, post ) and the doctrine of unclean hands barred the claim. Stroud then moved for attorney fees unde r section 1717 based on the attorney fee provisions in an operating agreement betw een Stroud's company and Dartmouth. The court denied the motion, finding there were no contracts on which Stroud could rely to trigger application of section 1717. Specif ically, the court foun d (1) Stroud had not signed the indemnity agreement with Gony a, and (2) the operating agreement with

1 All statutory references are to the Civil Code unless otherwise specified.3 Dartmouth applied to its memb ers and did not provide attorn ey fees in an action to enforce its indemnity provision. Stroud contends the trial court (1) erre d in denying his motion for attorney fees based on his failure to sign the operating agr eement, and (2) erred in finding the attorney fees clause in the operating agreement was not sufficiently ex tensive to include an action to enforce the indemnity provi sion. We hold Stroud is not entitled to attorney fees because the contracts on which he relies ar e not the contracts Gonya/GEI sought to enforce in their lawsuit.
BACKGROUND
A. Factual Background
1. The formation of REI-NC, LLC Gonya is a developer and the sole owner of GEI. In 1987 GEI started a residential construction business called Real Estate In ternational (REI) whose primary projects involved large-scale custom homes in Alpine . Early on, Gonya utilized the services of David Waitley as a real estate agent to sell the homes and Stroud as a subcontractor and on-site supervisor. By 1998 Gonya decided to retire and remove himself from the day-today operations of prope rty development. His retiremen t plan allowed Waitley and Stroud to use the good will of REI and form a new business entity, REI-NC, LLC (REI-NC), to continue developing properties. In return, Waitley and Stroud allegedly agreed to use Gonya as a consultant and indemnify him fro m any claims arising out of their business activities.4 Waitley and Stroud formed REI-NC under the terms of the REI-NC, LLC operating agreement (REI-NC Operating Agreem ent). Among numerous other terms, the REI-NC Operating Agreement contained the following indemnification provision: "16.4 Indemnification by Company : "16.4.1 The Company shall indemn ify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proc eeding, whether civil, criminal, administrative or investigative, exce pt an action by or in the right of the Company, by reason of the fact that the person is or was a Manager, Member, employee or agent of the Company, or is or was serving at the request of the Company as a manager, member, officer, employee or agent of another limited-liability company, partnership, joint venture, trust or other enterprise, against expenses, including attorney's fees, judgmen ts, fines and amounts paid in settlement actually and reasona bly incurred by the person in connection with the action, suit or proceeding if the person acted in good faith and in a manner which the person reasonably believed to be in or not opposed to the best in terests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's c onduct was unlawful. . . ." Neither Gonya nor GEI was a pa rty or signatory to the REI-N C Operating Agreement. REI-NC then entered into an additional, separate indemnity agreement with Gonya and GEI (Indemnity Agreemen t). The relevant portion of the agreement read: "Section 2. AGREEME NT TO INDEMNIFY. "a. General Agreement. In the event Indemnitee [Gonya] was, is, or becomes a participant in, or is threat ened to be made a participant in, a proceeding by reason of (or arisi ng in part out of) an indemnifiable event, the Company shall indemn ify Indemnitee [Gonya] from and against any and all expenses to the fullest extent permitted by law, as the same exists or may hereafter be amended or interpreted (but in the case of any such amendment or in terpretation, only to the extent that such amendment or interp retation permits the Company to provide broader indemnification ri ghts than were permitted prior thereto). The parties hereto intend that this Agreem ent shall provide5 for indemnification in excess of th at expressly permitted by statute, including, without limitation any indemnification provided by the Company's articles of incorpora tion, its bylaws, a vote of its shareholders or disinterested di rectors, or applicable law." The Indemnification Agreement made no menti on of attorney fees. Both Gonya and Waitley signed the Indemnity Agreemen t, but Stroud did not.
2. The formation of REI-NC Dartmouth, LLC REI-NC subsequently started a home c onstruction venture with Dartmouth to build and sell custom homes. The two entitie s formed two limited liability companies, REI-NC Dartmouth I, LLC and REI-NC Dartmouth II, LLC, eac h of which was governed by a separate, but essentially identical, operating agreement (Dartmouth Operating Agreements). Only Waitley signed on behalf of REI-NC; Stroud did not sign either one. Additionally, neither Gonya nor GEI were signatories or parties to those agreements. The Dartmouth Operating Agreem ents both contained the followi ng relevant provisions: "6.5 Indemnification . To the fullest extent provided or allowed by California law, the Company shall indemnify, defend, protect and hold the Members, the Manager, the members of the Management Committee, the officers if any, th e employees and the agents blithe Company harmless for a ny and all costs, losses, liabilities and damages incurred, paid or accrued by such Member, the Manager, members of the Management Committee, officer employee or agent arising from, out of or in conn ection with the business of the Company. [¶] . . . "15.2 Rights of Creditor And Other Persons Under Operating Agreement . This Operating Agreement is entered among the Company and the Members for the exclusive benefit of the Company, its Members, and their successors and assigns. This Operating Agreement is expressly not intended for the benefit of any creditor of the Company or any other Person. Except and only to the extent provided by applicable st atute, no such creditor or other Person shall have any rights under this Operating Agreement or any6 agreement between the Company a nd any Member with respect to any Capital Contribution or otherwise. [¶] . . . "15.4 Attorneys' Fees . In the event suit is brought to enforce or interpret any part of this Opera ting Agreement, the prevailing party shall be entitled to recover as an el ement of his costs of suit, and not as damages, reasonable attorneys' fees to be fixed by the court. The 'prevailing party' shall be the part y entitled to recover its costs of suit, whether or not the suit proceeds to final judgment. A party not entitled to recover costs shall not re cover attorneys' fees. No sum for attorneys' fees shall be coun ted in calculating the amount of a judgment for the purposes of dete rmining whether a party is entitled to recover its costs or attorneys' fees." REI-NC Dartmouth II then hired Gonya/GEI as a consultant for its projects. Only Waitley signed the consulting engagement agreement (Consulting Agreement) with Gonya/GEI. The Consulting Agreement cont ained provisions detailing Gonya's specific duties and his fees; it contained neither indemnification nor attorney fee provisions.
3. The Dartmouth Action Dartmouth eventually grew concerned that Stroud, Waitley, and Gonya were mismanaging funds for the REI-NC Dartmouth pr ojects. An investig ation revealed that REI-NC Dartmouth projects had b een repeatedly bille d for costs and expenses that were meant for Waitley's and Gonya' s other projects. Dartmout h subsequently filed suit against Waitley, Stroud, REI-NC, and Gonya ( Dartmouth Action). 2 Dartmouth alleged claims of fraud, embezzlement, and breach of contract, among others. Although initially Waitley, Stroud, REI-NC, and Go nya retained joint counsel, Gonya eventually retained independent counsel. Gonya settled with Da rtmouth for $1 million. Stroud and Waitley

2 Dartmouth Development Company, Inc., et al. v. Real Estate International Corporation et al. (Super. Ct. San Diego C ounty, 2005, No. GIC845987).7 also agreed to settle for $1 million, but pa id only $750,000. Gonya then sought indemnity from Waitley, Stroud, and REI-NC . Waitley indicated in a memorandum that Gonya made a demand for indemnification (Pre-Litigation Demand) for his involvement in the Dartmouth Action, and that such indemnificati on was provided "by the contract to which [Gonya and GEI] are not a part to but have been so id entified pursuant to paragraph 6.5 of said contract."
B. Procedural Background
1. Gonya/GEI's complaint Gonya/GEI filed the compla int against Waitley, Stroud, and REI-NC in this case in December 2006. The complaint contained four causes of action. In their first cause of action, Gonya/GEI alleged their right to i ndemnification based on express contractual indemnity. Gonya/GEI based this claim on (1 ) the indemnification provision in the REINC Operating Agreement under which Go nya/GEI claimed to be a third party beneficiary, and (2) the Indemnity Agreemen t with Waitley and REI-NC. Under this cause of action, the complaint also allege d Gonya/GEI had previously demanded orally and in writing that Waitley, Stroud, and REI- NC fulfill their obligation to indemnify. Gonya/GEI attached the REI-N C Operating Agreement and th e Indemnity Agreement to the complaint as Exhibit A and Exhibit B, respectively. Gonya/GEI's second cause of action a lleged implied contractual indemnity. Gonya/GEI based this claim on their Consu lting Agreement with REI-NC/Dartmouth II. Gonya/GEI conceded the Cons ulting Agreement did not have an express provision for indemnification, but claimed "it was unde rstood" and "equitabl y implied" in the8 Consulting Agreement that G onya/GEI would receive indemn ification for expenses from lawsuits arising out of his relationship with REI-NC. The Consulting Agreement was attached to the complaint as Exhibit C. Go nya/GEI also included an allegation that REINC entered into the Dartmout h Operating Agreements. Gonya/GEI's third cause of action a lleged equitable indemnity. Gonya/GEI alleged his involvement in the Dartmouth Action was based on his alleged liability for the actions of Waitley, Stroud, and REI-NC. Gonya/GEI denied contributing to the damages sought in the Dartmouth Action, denied being a memb er of REI-NC, and denied being a participant or signatory to the Dartmouth Operating Agreements. 3 Stroud subsequently filed a cross-complaint asser ting a claim for declaratory relief on the indemnity issues and two common count causes of actions. 4

2. The bench trial Gonya/GEI's action against Stroud went to a bench trial. Gonya/GEI dismissed their claims for express and implied contract ual indemnity during final argument, leaving only the equitable indemnity claim. In its decision, the court determined "no intact, signed indemnity agreement" existed to support Gonya/GE I's claim. The court fou nd for Stroud on the equitable

3 Gonya's complaint included a fourth caus e of action for breach of contract based on unpaid fees under the Consu lting Agreement. Gonya ma de this claim only against Waitley. Waitley ultimately settled with Gonya before trial and Gonya dropped the breach of contract claim.
4 Stroud's cross-complaint is not a subject of his appeal.9 indemnity claim on the followi ng grounds: (1) Stroud never signed the Indemnity Agreement; (2) the agreement provided at tr ial was "incomplete and highly unreliable"; and (3) the claim for equitable in demnity was barred by section 2774 5 and the doctrine of unclean hands. The court denied declaratory relief for Stroud based on his admitted par ticipation in the transac tions which led to the Dartmouth Action.
3. Stroud's motion for attorney fees Stroud subsequently moved for a ttorney fees under section 1717. 6 Stroud argued he was entitled to fees under the contractual indemnity cl aims because Gonya/GEI had abandoned them in final argument. As su ch, Stroud argued he successfully defended himself and "must be considered the prevaili ng party upon each contract that Gonya has demanded and claimed a right to indemnity under." While Stroud conceded neither Gonya/GEI nor himself was a party to the Dartmouth Oper ating Agreements, he argued he could rely on those agreements as the basi s for his right to atto rney fees. Although Gonya/GEI did not attach the Dartmouth Oper ating Agreements to his complaint, Stroud argued Gonya/GEI "utiliz[ed] the agreemen ts" for their suit by (1) issuing the PreLitigation Demand, and (2) referencing the ag reements in paragra phs 28 and 30 of the

5 Section 2774 reads: "An agreement to indemnify a person against an act already done, is valid, even though the act was know n to be wrongful, unless it was a felony."
6 Stroud also moved for attorney fees under Business and Professions Code section 7108.5, but has not appealed the court's order on those grounds.10 complaint. Stroud's motion did not assert a right to attorney fees with respect to the equitable indemnity claim. At the motion hearing, Stroud's counsel again stated explicitly that Stroud was seeking to recover attorney fees based on the Dartmouth Operating Agreements. He argued the reference to the Dartmouth Operating Agreemen ts in the Pre-Litigation Demand and in Gonya/GEI's complaint brough t the agreements "with in the purview of the complaint and within this case." Stroud's counsel ag ain asserted Stroud was the prevailing party under section 1717 "because he obtained the greater relief in getting the claim dismissed against him." Gonya/GEI's counsel responded that th e Dartmouth Operating Agreements were not the basis for either the court's ru ling nor Gonya/GEI's suit for indemnity. Gonya/GEI's counsel also stated the comp laint referred to the Dartmouth Operating Agreements "for the purposes of putting c ontext to the other parties' contractual relationships." The court's minute order denying Stro ud's motion for attorney fees states: "The court found in favor of St roud on the cause of action for equitable, not contractual indemnity. The court's decision found that Stroud did not sign the indemnity ag reement. [Citation] Even if Stroud had signed the indemnit y agreement, the indemnity agreement does not state that the prevailing party is entitled to attorney's fees in a contest over claims for indemnity. During oral argument, Stroud stated that he was relying on the indemnification agreement within the REI/Dartmout h operating agreement in support of fees. However, the court has reviewed the operating agreement and finds that this is a standard indemnification clause for fee and costs of its members. Nonetheless, it is not sufficiently extensive to include attorney's fees to the prev ailing party in an action to enforce the indemnification provision.11 "In Baldwin Builders v. Coast Plastering Corp. (2005) 125 Cal.App.4th 1339, 1346, the expre ss language of the attorney fee clauses authorizes the recovery of attorney fees where one of the parties to the agreement brings an action to enforce the indemnity. In contrast, the indemnity contract in this case is silent on the issue. Thus, unlike Baldwin , neither the separate indemnification agreement, nor the clau se in the operating agreement [is] 'on [the] contract' within the meaning of s ection 1717(a)' and the attorney fee clauses are not subject to the stat utory requirement of reciprocity. "There are no contracts upon which to rely on Civil Code section 1717. The court's decision fou nd that Stroud did not sign the writing. . . . [Citation]."
C. Contentions on appeal Stroud raises two main contentions on appeal. Stroud first contends the court erred in ruling Stroud "was not entitled to enforce the terms of the contract as he was not a signatory to the cont ract." Relying on Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, Stroud correctly st ates attorney fees under section 1717 can be available to a nonsignatory defendant when the defendant would have been liable for the plaintiff's attorney fees if the plaintiff had been suc cessful in his action. However, Stroud asserts his right to attorney fees as a nonsignatory defendant to the Dartmouth Operating Agreements —a different set of contracts than th e Indemnity Agreement on which the trial court ruled. According to Stroud, if Gonya/GEI "[had] been successf ul for their claim of contractual indemnity, [Gonya/G EI] would have been able to claim atto rney's fees pursuant to the contract that [they] demande d indemnification under from [Stroud]." Second, Stroud contends the court erred in determining the a ttorney fees clause within the Dartmouth Operatin g Agreements was not broad enough to include litigation12 over the indemnity provision in those agreements. Relying on Toro Enterprises, Inc. v. Pavement Recycling Systems, Inc. (2012) 205 Cal.App.4th 954, 957-958 ( Toro Enterprises ), Stroud contends that because the a ttorney fee clause in the Dartmouth Operating Agreements reads: "I n the event suit is brought to enforce or interpret any part of this Operating Agreement . . . , " it is br oad enough to include suits to enforce the agreements' indemnification clause. Although his two main contentions are clea r, Stroud's briefs crea te some confusion as to the exact cause of action on which he asserts his right to attorney fees. In its decision after trial, the court ruled in Stroud's favor on the equitable indemnity claim, as Gonya/GEI had dismissed the contractual inde mnity claims. Stroud, however, moved for attorney fees as the prevailing party on the contractual indemn ity claims. In denying his motion, the court reiterated that it found for Stroud only on equitable indemnity. Nonetheless, Stroud repeatedly argues on appeal he is entitle d to attorney fees for the contractual indemnity claims. However, he specif ically refutes the trial court's findings on the equitable indemnity claims.
DISCUSSION
A. Standard of Review "We review de novo a determination of th e legal basis for an award of attorney[] fees." ( Toro Enterprises, supra, 205 Cal.App.4th at p. 957.)13 B. Section 1717 When parties contract specifically to a llocate the award of attorney fees, such agreements are "subject to the restricti ons and conditions of section 1717." ( Trope v. Katz (1995) 11 Cal.4th 274, 278.) Section 1717, subdivision (a) provides: "In an action on a contract, where the contract specifically provides that attorney's fees and costs, wh ich are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party w ho 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 entitle d to reasonable attorney's fees in addition to other costs." Claims brought under this secti on are limited by subdivision (b): "(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on th e contract for purposes of this section, whether or not the suit pro ceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section. "(2) Where an action has been vo luntarily dismissed or dismissed pursuant to a settlement of the ca se, there shall be no prevailing party for purposes of this section." The "primary purpose of section 1717 is to ensure mutu ality of remedy for attorney fees claims under contra ctual attorney fee provisions." ( Santisas v. Goodwin (1998) 17 Cal.4th 599, 610.) Wh en a contract authorizes the r ecovery of attorney fees to the prevailing party or where the contract aut horizes such recovery to only one party, section 1717 creates a reciprocal right. ( Id. at pp. 610-611.)14 D. Analysis
1 . Stroud's contention that he may recover attorney fees under the contractual indemnity claims Any contention that Stroud may recover f ees on the contractual indemnity claims fails because Gonya/GEI voluntarily dism issed those claims. As section 1717, subdivision (b)(2) explic itly states, "[w]here an action has been voluntarily dismissed . . . there shall be no prevailing party for the purpos es of this section." The statute "provides no temporal limitation" and thus "attorney fees are barred regardless of when the dismissal is filed." ( CDF Firefighters v. Maldonado (2011) 200 Cal.App.4th 158, 164- 165.) As Stroud is well aware, Gonya/GEI dismissed their express and implied contractual indemnity claims dur ing final argument of the bench trial. According to the statute, neither Gonya/GEI nor Stroud was the prevailing party. Thus, Stroud cannot recover attorney fees because he di d not "prevail" on those claims. As noted, ante , Stroud does not clearly identify the cause of action on which he bases his right to fees. He fluctuates be tween his right to fees under the contractual indemnity claim and the court's de nial of fees under the equitable indemnity claim. If his appeal were premised solely on his clai med status as the prevailing party on the contractual indemnity claims, then it fails in its entirety and our anal ysis should end here. However, because Stroud specifically appeal s two particular findings the court made regarding attorney fees on the equitable indemnity claim, we will, in the interest of clarity, also address those points.15 2. Stroud's contention that the trial court erred by deny ing attorney fees based on his failure to sign the Dart mouth Operating Agreements Stroud contends that, under Reynolds Metals Co. v. Alperson , supra , 25 Cal.3d 124, he is entitled to recover attorney fees as a nonsignatory defe ndant to the Dartmouth Operating Agreements. In his motion, at hi s hearing, and throughout his briefs, Stroud has repeatedly emphasized hi s reliance on the Dartmouth Op erating Agreements as the basis for his right to attorney fees. He c ontends Gonya/GEI "relied on these agreements before and during trial," and th e court "considered [them]" in making its decision. As such, Stroud believes he is entitled to recover based on the attorney fees clause within those agreements. This argument fails for several reasons. In making this contention, Stroud mischaracterizes the c ourt's rulings. Despite the court explicitly stating it denied the mo tion based on his failure to sign the Indemnity Agreement , Stroud suggests the court denied the motion based on his failure to sign the Dartmouth Operating Agreement. In fact, the court provided distinct reasons as to why Stroud could not rely on either of these ag reements. The court first explained Stroud could not recover fees under the Indemnity Ag reement because (1) he did not sign it, and (2) it did not include an attorn ey fees clause for an action brought by one party to enforce the agreement. The court then separately ruled on the Da rtmouth Operating Agreements, finding the indemnification provision (1) was fo r fees and costs "of its members", and (2) was not sufficiently broad enoug h to include attorney fees in an action to enforce that provision. The court never stated Stroud's lack of signature was its reason for denying16 fees under the Dartmouth Opera ting Agreements. Stroud conf lates the court's rulings and appeals a finding that was simply not made. Furthermore, Stroud cannot recover atto rney fees under the Dartmouth Operating Agreements because Gony a/GEI did not bring an action to enforce those contracts. For a party to recover attorney fees under sect ion 1717, there must be an action "on the contract." While Stroud appears to believe a ny contract related to the action will suffice, "on the contract" has a specific meaning with in section 1717. "An action is 'on the contract' when it is brought to enforc e the provisions of the contract." ( MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4t h Supp. 1, 7, citing McKenzie v. KaiserAetna (1976) 55 Cal.App.3d 84, 89-90.) Section 1717 applies when " the contract sued upon itself specifically provides for an award of attorney fees in curred to enforce that contract." ( Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 357, italics added). Gonya/GEI's action is not "on the [Dar tmouth Operating Agreements]" for the purposes of section 1717. Gonya /GEI did not bring their suit to enforce the provisions of the Dartmouth Operating Agre ements. While their Pre-Litigation Demand suggests they might have initially sought indemnity under those agreements, they did not incorporate that claim into their lawsuit. In fact, in their complaint, Gonya/GEI denied signing or being a party to the Dartmouth Operating Ag reements. Stroud ev en conceded in his motion that Gonya/GEI did not attach those ag reements to their complaint. Gonya/GEI based their suit on the REI-NC Operating Agreement, Indemnity Agreement, and Consulting Agreement. Gonya/G EI did not allege Stroud wa s liable under the Dartmouth17 Operating Agreements. The brief mention of those agreements in the complaint served only to demonstrate the relationshi ps between all the parties. Furthermore, section 1717(a) explicitly states it applies to "the party who is determined to be the party prevailing on the contract . . . ." The tria l court never found Stroud to be the prevailing party on the Da rtmouth Operating Agreements. It makes no analysis or mention of those agreements exce pt to explain the events leading up to the Dartmouth Action. It only found in favor of Stroud on the eq uitable indemnity claim based on the shortcomings of the Indemnity Agreement. No party prevailed on the Dartmouth Operating Agreemen ts because they simply we re not a subject of the litigation. Stroud believes because "the tr ial court ruled in greater detail [on the Dartmouth Operating Agreements] . . . [it] shows that the tria l court did in fact consider these contracts in its ruling to deny attorney's fee clauses." The court's explanation as to why Stroud cannot rely on the Dartmouth Op erating Agreements is not proof that Gonya/GEI's lawsuit was an action to enforce those agreements. Section 1717 does not allow the prevailing party to use any contract containing an attorney fees clause; th e prevailing party must point to an attorney fee cl ause within the contract upon which he was sued. Stroud cann ot claim any right to attorney fees based on the Dartmouth Operating Agreements' pr ovisions because there was no action on those contracts within the meaning of section 1717.18 3. Stroud's contention that the court erre d by finding the attorney fees provision within the Dartmouth Operati ng Agreements was not sufficient to include litigation over the indemnification provision Stroud also appeals the court's ruling that the attorney fee clau se in the Dartmouth Operating Agreements was not sufficiently extensive to incl ude attorney fees for the prevailing party in an action to enforce the in demnity provision of those agreements. He cites Toro Enterprises, supra, 205 Cal.App.4th at pages 957-9 58, which held an attorney fee clause granting fees to "any dispute resolution between the parties" necessarily included an action to enforce the indemnity provision within that contract. Stroud contends because the attorney fees clause in the Dartmouth Operating Agreements states "[i]n the event suit is brough t to enforce or interpret a ny part of this Operating Agreement . . . ," it includes actions to enforce the indemn ity provision within those agreements. While Stroud may be correct in stating th e attorney fees clause in the Dartmouth Operating Agreements would cover actions betw een the contracting parties to enforce the indemnity provision, he is still relying on a contract that was not a part of Gonya/GEI's action. As we explained above, Gonya/GEI did not seek to enforce any part of the Dartmouth Operating Agreemen ts against Stroud. Gonya/ GEI's Pre-Litigation Demand that sought indemnity under the Dartmout h Operating Agreemen t was just that—a prelitigation demand. Gonya/GEI never sued to enforce the Dartmouth Operating Agreements. Whether or not the trial court wa s correct in its analys is of the sufficiency of the Dartmouth Operating Agreements' provi sions is irrelevant because the Dartmouth Operating Agreements are not "on the contract " within the meaning of section 1717.19 The trial court correctly ruled there ar e no contracts on which Stroud can rely to recover attorney fees as the prevailing party against Gonya/GEI. Stro ud's reliance on the Dartmouth Operating Agreements is mispla ced because Gonya/GEI never sought to enforce their provisions against Stroud in their lawsuit for i ndemnity. Thus, they are not subject to the reciprocity provided by section 1717.
DISPOSITION The order is affirmed. Gonya/GEI shall recover their costs on appeal.

NARES, Acting P. J.
WE CONCUR:

HALLER, J.

IRION, J.