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COURT OF APPEAL, FIRST APPELLATE DISTRICT
350 MCALLISTER STREET
SAN FRANCISCO, CA 94102
DIVISION 1
Office of the County Clerk
San Francisco County Superior Court - Main
Attention: Civil Appeals
400 McAllister Street, Ist Floor
San Francisco, CA 94102
San Francisco County Superior Court
. DAVID ACHTERKIRCHEN,
Plaintiff and Respondent, AUG 2 1 2020
Vv.
JESUS A. MONTIEL, CLE THE,C!
Defendant and Appellant.
A153560
San Francisco County Super. Ct. No. CPF11511639
* * REMITTITUR * * “
I, Charles D. Johnson, Clerk of the Court of Appeal of the State of California, for the First
Appellate District, do hereby certify that the attached is a true and correct copy of the original opinion or
decision entered in the above-entitled cause on March 24, 2020 and that this opinion has now become
final.
___ Appellant ___ Respondent to recover costs
___Each party to bear own costs
sts are not awarded in this proceeding
‘See decision for costs determination
Witness my hand and the Seal of the Court affixed at my office this AUG 17 2020
Very truly yours,
Charles D. Johnson
Clerk of the Cgurt
S. Digner
Deputy Clerk
P.O. Report:
Marsden Transcript:
Boxed Transcripts:
Exhibits: __y
None of the above: 14
rem1Court of Appeal, First Appellate District
Charles D. Johnson, Clerk/Executive Officer
Electronically FLED on 5/18/2020 by S. Diener, Deputy Clerk
Filed 5/18/20
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8 T115(), prohibifs courts and parties Irom citing or relying on opinions not cortified Tor
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
DAVID ACHTERKIRCHEN et al., A153560
Plaintiffs and Respondents, (San Francisco City & County
v. Super. Ct. No. CPF-11 5116369)
JESUS A. MONTIEL, . ORDER MODIFYING OPINION
Defendant and Appellant. AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on March 24, 2020, be
modified as follows:
1. At the bottom of page 4, the last sentence at the bottom of the
page that carries over to page 5, that reads, “Achterkirchen II was not a
separate action on the contract within the meaning of section 1717, nor did it
result in a separate final judgment on the merits, as Montiel also contends,”
add the following footnote as footnote 5, which will require renumbering of all
subsequent footnotes:
5 Tn his petition for rehearing, Montiel argues he
did not have the opportunity to brief these points
in his opening and reply briefs. To the contrary,
Montiel discussed the right to attorney fees undersection 1717 arises in an “action” on a specific
contract, that both Achterkirchen I and
Achterkirchen II were “on the contract” within the
meaning of section 1717, and that Achterkirchen II
was its own “action” and a separate final judgment
“on the merits.”
2. At the bottom of page 7, the last sentence on the page that carries
over to page 8, beginning “For the reasons already discussed,” is modified to
read as follows:
For the reasons already discussed, however,
Montiel’s success on appeal challenging the
evidentiary basis for an attorney fees award does
not amount to a separate final judgment entitling
him to his own award of attorney fees.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
Dated: 05/18/2020
SIDING JUSTICECourt of Appeal, First Appellate District
Charles D, Johnson, Clerk/Executive Officer
Electronically FILED on 3/24/2020 by S. Diener, Deputy Clerk
Filed 3/24/20 ‘
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Woules of Court, rule 8 11T5(), prohibifs courts and partigs from citing ov volving on opinions not cortiied for
publication or ordered published, except as specitied by rule 8.1116(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
DAVID ACHTERKIRCHEN et al.,
Plaintiffs and Respondents, A153560
v.
JESUS A. MONTIEL, (San Francisco City & County
Defendant and Appellant. Super. Ct. No, CPF-11 5116369)
MEMORANUM OPINION!
In this appeal, the fourth we have considered in this case, defendant
- Jesus Montiel challenges the trial court’s denial of his request for attorney
fees after he prevailed in his second appeal. We affirm.
Because the facts of the underlying controversy have been detailed in
our prior three opinions? and are mostly unnecessary to this one, we include
only a brief summary of the relevant facts.
1 We resolve this case by a memorandum opinion pursuant to the
California Standards of Judicial Administration, section 8.1(1), (2).
' 2 Achterkirchen v. Montiel (Mar. 24, 2015, A140277) [nonpub. opn.]
(Achterkirchen I; Achterkirchen v. Montiel (Mar. 28, 2017, A147386) [nonpub.
opn.] (Achterkirchen I]; Achterkirchen v. Montiel (Aug. 17, 2018, mod.
Sep. 13, 2018, A148424) [nonpub. opn.] (Achterkirchen IID).In 2011, plaintiffs David Achterkirchen, Jane Achterkirchen, Genna
Tricarico, Christopher Padula, Blake Mueller, and Matteo Fabiano
(plaintiffs) initiated an arbitration proceeding pursuant to the parties’
tenancy-in-common agreement (TIC Agreement) after Montiel refused to
remove a tax lien from the parties’ four-unit, tenant-in-common
condominium. Plaintiffs prevailed on the merits of their claim in arbitration
and were found to be the “prevailing party” by the arbitrator. The trial court
entered judgment in plaintiffs’ favor and Montiel appealed. In 2015, we
affirmed the arbitration award in Achterkirchen I, supra, A140277.
After issuance ofthe remittitur in Achterkirchen I, plaintiffs moved
under Civil Code? section 1717 for an award of attorney fees as the prevailing
party in Achterkirchen I. The trial court awarded plaintiffs their requested
fees for work on Achterkirchen I. Montiel appealed, contending the
declaration in support of the fee application was insufficient to support the ,
award. We agreed, and in a memorandum opinion (Achterkirchen II, supra,
A147386), reversed the trial court’s award, awarding Montiel his costs on
appeal pursuant to California Rules of Court, rule 8.278(a)(1), (2). We said
nothing about attorney fees.
Following issuance of the remittitur in Achterkirchen II, Montiel filed a
motion for attorney fees as the prevailing party under section 1717 in
Achterkirchen II. This is the subject of the current appeal.4 The trial court
denied his motion, concluding, “Mr. Montiel is not the prevailing party in this
3 All further statutory references are to the Civil Code unless otherwise
specified.
4 Achterkirchen III, supra, A148424, concerned an order for monetary,
issue, and evidentiary sanctions issued in connection with plaintiffs’
judgment debtor examination of Montiel, which has no relevance to the
present appeal.case and is not entitled to an award of fees per the parties’ contract or Civil
Code [section] 1717. Mr. Montiel has not cited any authority that there is a
post-judgment exception to the single prevailing party rule, nor is the court
aware of such an exception.” Montiel timely appealed the trial court’s order
pursuant to Code of Civil Procedure section 904.1, subdivision(a)(2).
We review de novo a determination that a party is not entitled to
attorney fees as a matter of law. (Mountain Air Enterprises, LLC v.
Sundowner Towers, LLC (2017) 8 Cal.5th 744, 751 (Mountain Air); de la
Carriere v. Greene (2019) 39 Cal.App.5th 270, 275 (Carriere).) In “any action
on a contract” containing an attorney fees provision, section 1717 authorizes
the recovery of reasonable attorney fees for the “party prevailing on the
contract.” (§ 1717, subd. (a).) The prevailing party is the party who ©
recovered “greater relief in the action on the contract.” (Id., subd. (b)(1).)
Under section 1717, there can be only one prevailing party in an action on the
contract. (DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 977
(DisputeSuite.com) [attorney fees under § 1717 are available to the party who
“prevailed on the contract overall, not to a party who prevailed only at an
interim procedural step”]; Mountain Air, at p. 755 [multiple fee awards in a
single case would be “inconsistent with the conventional understanding of
how contractual attorney fees are awarded”); Frog Creek Partners, LLC v.
Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 543 (Frog Creek).)
In Frog Creek, Division Five of this court considered whether a plaintiff
who successfully defeated the defendant’s petition to compel arbitration could
recover attorney fees for that victory, even if it later lost on the substantive
contractual dispute. (Frog Creek, supra, 206 Cal.App.4th at pp. 520, 539.)
After an extensive examination of the legislative history of section 1717 and
relevant case law, the court concluded it could not, holding “under Civil Codesection 1717 there can only be one prevailing party on a given contract ina
given lawsuit.” (Frog Creek, at pp. 525-543.) The court reasoned that the
plaintiffs success on the petition to compel arbitration did not make the
plaintiff the prevailing party on the contract because it did not resolve the
parties’ contractual dispute, which was eventually decided in the defendant's
favor. (Id. at p. 546.) Thus, the Frog Creek court reversed the trial court’s fee
order because it had improperly awarded attorney fees to both parties on the
same contract in the same lawsuit. ([bid.)
In DisputeSuite.com, our Supreme Court discussed Frog Creek with
approval and found its “general principle” that “fees under section 1717 are
awarded to the party who prevailed on the contract overall, not to a party
who prevailed only at an interim procedural step” was “equally applicable” to
a situation where the defendant had obtained dismissal of a contract action
in one forum under a forum selection clause but the litigation could continue
in a different forum. (DisputeSuite.com, supra, 2 Cal.5th at pp. 977, 974.)
Although Montiel acknowledges Frog Creek was correctly decided on its
facts, he contends its statement of law that there may be only one prevailing
party on a contract is dictum and does not apply where the judgment on the
underlying lawsuit is final and the later appeal is from a postjudgment
decision. Here, he contends, plaintiffs may have prevailed in Achterkirchen J,
but he was the “ ‘party prevailing on a contract’” in a final, separate
appellate decision “on the merits” in Achterkirchen IT. Though his opening
and reply briefs total 85 pages, Montiel essentially bases his entire argument
on this one premise: that the “dispute” in Achterkirchen IT was a separate
“action” between the parties arising out of the TIC Agreement.
As the trial court found, this argument lacks merit. Achterkirchen II
was not a separate action on the contract within the meaning of section 1717,nor did it result in a separate final judgment on the merits, as Montiel also
contends. “An ‘action on a contract,’ as used in Civil Code section 1717, refers
to ‘the whole of a lawsuit rather than to discrete proceedings within a
lawsuit.
supra, 206 Cal.App.4th at p. 527, fn. 6.) Achterkirchen I was a postjudgment
(Carriere, supra, 39 Cal.App.5th at p. 276, quoting Frog Creek,
appeal related entirely to the resolution of plaintiffs’ attorney fees motion as
the prevailing party in Achterkirchen I. The order on plaintiffs’ postjudgment
motion was an appealable collateral order, not a separate “action” instituted
on the contract. (See Code Civ. Proc., § 904.1, subd. (a)(2); Lakin v. Watkins
Associated Industries (1998) 6 Cal.4th 644, 654 [postjudgment order denying
attorney fees was appealable because it “affects the judgment or relates to its
enforcement in that it finally determines the rights of the parties arising
from the judgment”); Carriere, at p. 276 [trial and appeal are considered part
of the same action for purposes of determining contractual attorney fees].)
Indeed, despite 85 pages of briefing, Montiel never cites a single apposite
authority supporting the proposition that an appeal from a postjudgment
order awarding a party attorney fees is its own “action” entirely separate
from the underlying judgment for purposes of determining a prevailing party
under section 1717.5 Rather, as our Supreme Court explained in Lakin, such
5 Montiel cites a number of authorities to support his argument, but
none stand for the proposition that the appeal of a postjudgment attorney
fees motion constitutes a second judgment on the merits in a separate
“action” on the contract. Rather, as he acknowledged at oral argument, most
of the cases he cites involved multiple defendants in which there were
separate judgments (or potential judgments) as to each defendant on the
contract claims. (See Burkhalter Kessler Clement & George LLP v. Hamilton
(2018) 19 Cal. Appp.5th 38, 45 [considering application of § 1717 when there
are more than two parties in contract action, “a situation left unconsidered in
Frog Creek”; prevailing alter ego defendant entitled to attorney fees though
corporation was not]; Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9
[one final judgment rule does not apply where a case involves multiple
5appealable orders are “a final determination of a matter affecting plaintiff in
the original proceeding,” and “an adjudication of the right to attorney fees
arising from the judgment.” (Lakin, at p. 654, italics added; see Serrano v.
Unruh (1982) 32 Cal.3d 621, 636-637 [“A statutory fee motion ‘does not
create a new cause of action ...’ [citation], much less a new ‘action.’ It isa
collateral matter, ancillary to the main cause. [Citations.] It ‘ “seeks what is
due because of the judgment... .”’”].)
We find instructive a recent case from the Second Appellate District
which, like this case, dealt with a postjudgment appeal, Carriere, supra,
39 Cal.App.5th 270. In Carriere, defendant Greene obtained a judgment in
parties and judgment is entered which leaves no issue to be decided as to one
party]; Buckaloo v. Johnson (1975) 14 Cal.3d 815, 821, fn. 3 [same]; Pueblo
Radiology Medical Group, Inc. v. Gerlach (2008) 163 Cal.App.4th 826, 829
[affirming award of contractual attorney fees to individuals sued as alter ego
defendants before trial against corporation had taken place]; First Security
Bank of California v. Paquet (2002) 98 Cal.App.4th 468, 475 [cross-
defendants sued as alter egos could appeal postjudgment attorney fee award
while they continued their derivative shareholder lawsuit against bank].)
Here, by contrast, there was one defendant, in one capacity—Montiel—and
one action on the contract claim: Other cases on which Montiel relies
involved procedural postures not at issue here. (Turner v. Schultz (2009)
175 Cal.App.4th 974, 978-979, 983 [defendants entitled to attorney fees for
prevailing on declaratory and injunctive relief claims in independent lawsuit
seeking to stay arbitration]; Otay River Constructors v. San Diego
Expressway (2008) 158 Cal.App.4th 796, 806-808 [prevailing party on
petition to compel arbitration entitled to attorney fees when petition was
denied]; Cole v. BT & G, Inc. (1983) 141 Cal.App.3d 995, 998 [defendant could
obtain attorney fees after successfully setting aside confession of judgment
while new and independent lawsuit on liability under contract continued].)
Montiel also cites Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th
1394, 1396, 1398, for the proposition that a party who obtains an unqualified
victory on every contract claim is entitled as a matter of law to be deemed the
prevailing party for purposes of section 1717. In that case, however, unlike
here, defendants prevailed on the merits of the contract claim in the trial
court. (Deane Gardenhome Assn., at p. 1398.)
6his favor against the plaintiff. The trial court declared Greene the prevailing
party and awarded him attorney fees according to a contractual attorney fees
provision. Greene appealed, contending the trial court erred in calculating
his damages, but then voluntarily dismissed his appeal. The plaintiff then
moved for an award of attorney fees incurred on appeal, which the trial court
granted. (Id. at p. 273.) The appellate court reversed, following Frog Creek
and concluding that under section 1717, only one party could be the
prevailing party in an action on a contract. (Carriere, at pp. 273, 276.) The
trial court had determined Greene was the prevailing party in the lawsuit
after finding he had defeated the plaintiffs claims and obtained affirmative
relief on the cross-complaint, and the plaintiffs “subsequent success on
appeal and her postjudgment motion did not affect that determination.” (Id.
at p. 276.) Because Greene recovered the greater amount in the action on the
contract, he remained the prevailing party for purposes of section 1717.
(Carriere, at pp. 276-277; see Wood v. Santa Monica Escrow Co. (2009)
176 Cal.App.4th 802, 806, 808 [rejecting plaintiff's argument he was
“prevailing party” because he won appeal of attorney fees award; trial and
appeal are parts of a single proceeding and party prevailing on appeal is not
necessarily the prevailing party for purposes of awarding contractual
attorney fees].) The Carriere court also rejected the plaintiffs argument that
the underlying action had been “ ‘fully resolved’” and her appeal constituted
a”
a “ ‘separate matter, standing on its own merits’ ” for purposes of awarding
attorney fees. (Carriere, at p. 277.)
Montiel contends Carriere is distinguishable because it, like Frog
Creek, involved “one contract dispute, a single lawsuit and one final judgment
on the merits,” and is not “relevant here where there were two final
judgments on separate and unconnected issues.” For the reasons alreadydiscussed, however, Montiel’s success on appeal challenging the evidentiary
basis for an attorney fees award does not amount to a separate final
judgment. Here, as in Carriere, there was one lawsuit and one final
judgment on the merits. The fact Montiel won in a subsequent appeal
challenging the attorney fees award does not change that fact.
In Achterkirchen I, supra, A140277, we affirmed the judgment finding
plaintiffs prevailed on the substance of their contract claims, obtaining a
forced sale of Montiel’s interest in the property, liquidated damages of $5,000,
attorney fees and costs of $334,536, fees and costs associated with enforcing
the award, and prejudgment interest. In Achterkirchen IT, supra, A147 386,
Montiel succeeded only in challenging an insufficient declaration in support
of plaintiffs’ fee request, reversing a $18,360 attorney fees award. On these
facts, we perceive no abuse of discretion by the trial court in denying
Montiel’s request for fees because plaintiffs clearly recovered the greater
amount in the action on the contract, and were, thus, the prevailing party for
purposes of section 1717.
We also reject Montiel’s argument that the language of the parties’ TIC
Agreement dictates a different outcome. Paragraph 15.10 of the TIC
Agreement states: “In the event that any dispute between the Parties related
to this Agreement or to the Property should result in litigation or arbitration,
the prevailing Party in such dispute shall be entitled to recover from the
other Party all reasonable fees, costs and expenses of enforcing any right of
the prevailing Party, including without limitation, reasonable attorney fees
and expenses, all of which shall be deemed to have accrued upon the
commencement of such action and shall be paid whether or not such action is
prosecuted to judgment. Any judgment or order entered in such action shall
contain a specific provision providing for the recovery of attorney fees andcosts incurred in enforcing such judgment . . .” If further provides: “For the
purposes of this Section: (i) attorney fees shall include, without limitation,
fees incurred in the following: (a) post-judgment motions...and |
(ii) prevailing Party shall mean the Party who is determined in the
proceeding to have prevailed or who prevails by dismissal, default or
otherwise.” Montiel contends the language of the TIC Agreement clearly :
shows the parties agreed “that the prevailing party on any matter that might
arise from any provision of their contract would be entitled to an award of
attorney fees” because it refers to “any dispute . . . related to this Agreement.”:
He further contends a “proceeding” would include an appeal.
We disagree that the language of the parties’ contract can be read to
confer a separate right to attorney fees for a party that prevails on any
dispute related to the TIC Agreement. The TIC Agreement specifically refers
to “any dispute” that “should result in litigation or arbitration,” consistent
with Frog Creek and other case law construing prevailing party to mean the
party prevailing in the whole lawsuit on the contract—not any party who
prevails on a particular issue or procedural ground. (Frog Creek, supra,
206 Cal.App.4th at p. 548; Mountain Air, supra, 3 Cal.5th at p. 755;
DisputeSuite.com, supra, 2 Cal.5th at p. 977.) Though Montiel argues
“proceeding” can mean “appeal,” nothing in the language of the contract \
suggests that meaning. Rather, the more logical reading of “proceeding” is
that it refers to either “litigation or arbitration” as stated in the first sentence’
of paragraph 15.10 of the TIC Agreement. (See, e.g., Mountain Air, at
pp. 755-756 [interpreting contractual provision by “considering the words in -
context and the provision as a whole”].)In any event, section 1717 does not authorize the parties to agree to
more than one prevailing party in a contract action for attorney fees. “[T]he
definition of ‘prevailing party’ in Civil Code section 1717 is mandatory and
cannot be altered or avoided by contract. [Citation.] Contractual provisions
that conflict with the ‘prevailing party’ definition under section 1717 are
void.” (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698,
107; Frog Creek, supra, 206 Cal.App.4th at pp. 544-546 [rejecting argument
that parties to a contract could provide for attorney fees in any specified
circumstance with highly specific contractual language].) Accordingly, we
reject Montiel’s-claim that the specific language of the TIC Agreement
entitles him to an award of attorney fees for his success in Achterkirchen II.
The trial court’s order denying Montiel’s request for attorney fees under
section 1717 is affirmed. Plaintiffs are to recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(D), (2).)
6 Montiel cites several cases for the proposition that “[s]ection 1717
does not supersede or limit the right of the parties to enter into an agreement
that broadly covers all aspect[s] of litigation with as much specificity as they
choose,” but the cases he cites all concern whether parties may contract for
recovery of attorney fees on tort claims. (See Allstate Ins. Co. v. Loo (1996)
46 Cal.App.4th 1794, 1799; Xuereb v. Marcus & Millichap, Inc. (1992)
3 Cal.App.4th 1338, 1842; Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270,
1277; Khan v. Shim (2016) 7 Cal.App.5th 49, 60-62.)
10We concur:
Humes, P. J.
Sanchez, J.
A153560
Achterkirchen v. Montiel
11
Margulies, J.
Preview
COURT OF APPEAL, FIRST APPELLATE DISTRICT 350 MCALLISTER STREET SAN FRANCISCO, CA 94102 DIVISION 1 Office of the County Clerk San Francisco County Superior Court - Main Attention: Civil Appeals 400 McAllister Street, Ist Floor San Francisco, CA 94102 San Francisco County Superior Court . DAVID ACHTERKIRCHEN, Plaintiff and Respondent, AUG 2 1 2020 Vv. JESUS A. MONTIEL, CLE THE,C! Defendant and Appellant. A153560 San Francisco County Super. Ct. No. CPF11511639 * * REMITTITUR * * “ I, Charles D. Johnson, Clerk of the Court of Appeal of the State of California, for the First Appellate District, do hereby certify that the attached is a true and correct copy of the original opinion or decision entered in the above-entitled cause on March 24, 2020 and that this opinion has now become final. ___ Appellant ___ Respondent to recover costs ___Each party to bear own costs sts are not awarded in this proceeding ‘See decision for costs determination Witness my hand and the Seal of the Court affixed at my office this AUG 17 2020 Very truly yours, Charles D. Johnson Clerk of the Cgurt S. Digner Deputy Clerk P.O. Report: Marsden Transcript: Boxed Transcripts: Exhibits: __y None of the above: 14 rem1Court of Appeal, First Appellate District Charles D. Johnson, Clerk/Executive Officer Electronically FLED on 5/18/2020 by S. Diener, Deputy Clerk Filed 5/18/20 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8 T115(), prohibifs courts and parties Irom citing or relying on opinions not cortified Tor publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE DAVID ACHTERKIRCHEN et al., A153560 Plaintiffs and Respondents, (San Francisco City & County v. Super. Ct. No. CPF-11 5116369) JESUS A. MONTIEL, . ORDER MODIFYING OPINION Defendant and Appellant. AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT: It is ordered that the opinion filed herein on March 24, 2020, be modified as follows: 1. At the bottom of page 4, the last sentence at the bottom of the page that carries over to page 5, that reads, “Achterkirchen II was not a separate action on the contract within the meaning of section 1717, nor did it result in a separate final judgment on the merits, as Montiel also contends,” add the following footnote as footnote 5, which will require renumbering of all subsequent footnotes: 5 Tn his petition for rehearing, Montiel argues he did not have the opportunity to brief these points in his opening and reply briefs. To the contrary, Montiel discussed the right to attorney fees undersection 1717 arises in an “action” on a specific contract, that both Achterkirchen I and Achterkirchen II were “on the contract” within the meaning of section 1717, and that Achterkirchen II was its own “action” and a separate final judgment “on the merits.” 2. At the bottom of page 7, the last sentence on the page that carries over to page 8, beginning “For the reasons already discussed,” is modified to read as follows: For the reasons already discussed, however, Montiel’s success on appeal challenging the evidentiary basis for an attorney fees award does not amount to a separate final judgment entitling him to his own award of attorney fees. There is no change in the judgment. Appellant’s petition for rehearing is denied. Dated: 05/18/2020 SIDING JUSTICECourt of Appeal, First Appellate District Charles D, Johnson, Clerk/Executive Officer Electronically FILED on 3/24/2020 by S. Diener, Deputy Clerk Filed 3/24/20 ‘ NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Woules of Court, rule 8 11T5(), prohibifs courts and partigs from citing ov volving on opinions not cortiied for publication or ordered published, except as specitied by rule 8.1116(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE DAVID ACHTERKIRCHEN et al., Plaintiffs and Respondents, A153560 v. JESUS A. MONTIEL, (San Francisco City & County Defendant and Appellant. Super. Ct. No, CPF-11 5116369) MEMORANUM OPINION! In this appeal, the fourth we have considered in this case, defendant - Jesus Montiel challenges the trial court’s denial of his request for attorney fees after he prevailed in his second appeal. We affirm. Because the facts of the underlying controversy have been detailed in our prior three opinions? and are mostly unnecessary to this one, we include only a brief summary of the relevant facts. 1 We resolve this case by a memorandum opinion pursuant to the California Standards of Judicial Administration, section 8.1(1), (2). ' 2 Achterkirchen v. Montiel (Mar. 24, 2015, A140277) [nonpub. opn.] (Achterkirchen I; Achterkirchen v. Montiel (Mar. 28, 2017, A147386) [nonpub. opn.] (Achterkirchen I]; Achterkirchen v. Montiel (Aug. 17, 2018, mod. Sep. 13, 2018, A148424) [nonpub. opn.] (Achterkirchen IID).In 2011, plaintiffs David Achterkirchen, Jane Achterkirchen, Genna Tricarico, Christopher Padula, Blake Mueller, and Matteo Fabiano (plaintiffs) initiated an arbitration proceeding pursuant to the parties’ tenancy-in-common agreement (TIC Agreement) after Montiel refused to remove a tax lien from the parties’ four-unit, tenant-in-common condominium. Plaintiffs prevailed on the merits of their claim in arbitration and were found to be the “prevailing party” by the arbitrator. The trial court entered judgment in plaintiffs’ favor and Montiel appealed. In 2015, we affirmed the arbitration award in Achterkirchen I, supra, A140277. After issuance ofthe remittitur in Achterkirchen I, plaintiffs moved under Civil Code? section 1717 for an award of attorney fees as the prevailing party in Achterkirchen I. The trial court awarded plaintiffs their requested fees for work on Achterkirchen I. Montiel appealed, contending the declaration in support of the fee application was insufficient to support the , award. We agreed, and in a memorandum opinion (Achterkirchen II, supra, A147386), reversed the trial court’s award, awarding Montiel his costs on appeal pursuant to California Rules of Court, rule 8.278(a)(1), (2). We said nothing about attorney fees. Following issuance of the remittitur in Achterkirchen II, Montiel filed a motion for attorney fees as the prevailing party under section 1717 in Achterkirchen II. This is the subject of the current appeal.4 The trial court denied his motion, concluding, “Mr. Montiel is not the prevailing party in this 3 All further statutory references are to the Civil Code unless otherwise specified. 4 Achterkirchen III, supra, A148424, concerned an order for monetary, issue, and evidentiary sanctions issued in connection with plaintiffs’ judgment debtor examination of Montiel, which has no relevance to the present appeal.case and is not entitled to an award of fees per the parties’ contract or Civil Code [section] 1717. Mr. Montiel has not cited any authority that there is a post-judgment exception to the single prevailing party rule, nor is the court aware of such an exception.” Montiel timely appealed the trial court’s order pursuant to Code of Civil Procedure section 904.1, subdivision(a)(2). We review de novo a determination that a party is not entitled to attorney fees as a matter of law. (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 8 Cal.5th 744, 751 (Mountain Air); de la Carriere v. Greene (2019) 39 Cal.App.5th 270, 275 (Carriere).) In “any action on a contract” containing an attorney fees provision, section 1717 authorizes the recovery of reasonable attorney fees for the “party prevailing on the contract.” (§ 1717, subd. (a).) The prevailing party is the party who © recovered “greater relief in the action on the contract.” (Id., subd. (b)(1).) Under section 1717, there can be only one prevailing party in an action on the contract. (DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 977 (DisputeSuite.com) [attorney fees under § 1717 are available to the party who “prevailed on the contract overall, not to a party who prevailed only at an interim procedural step”]; Mountain Air, at p. 755 [multiple fee awards in a single case would be “inconsistent with the conventional understanding of how contractual attorney fees are awarded”); Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 543 (Frog Creek).) In Frog Creek, Division Five of this court considered whether a plaintiff who successfully defeated the defendant’s petition to compel arbitration could recover attorney fees for that victory, even if it later lost on the substantive contractual dispute. (Frog Creek, supra, 206 Cal.App.4th at pp. 520, 539.) After an extensive examination of the legislative history of section 1717 and relevant case law, the court concluded it could not, holding “under Civil Codesection 1717 there can only be one prevailing party on a given contract ina given lawsuit.” (Frog Creek, at pp. 525-543.) The court reasoned that the plaintiffs success on the petition to compel arbitration did not make the plaintiff the prevailing party on the contract because it did not resolve the parties’ contractual dispute, which was eventually decided in the defendant's favor. (Id. at p. 546.) Thus, the Frog Creek court reversed the trial court’s fee order because it had improperly awarded attorney fees to both parties on the same contract in the same lawsuit. ([bid.) In DisputeSuite.com, our Supreme Court discussed Frog Creek with approval and found its “general principle” that “fees under section 1717 are awarded to the party who prevailed on the contract overall, not to a party who prevailed only at an interim procedural step” was “equally applicable” to a situation where the defendant had obtained dismissal of a contract action in one forum under a forum selection clause but the litigation could continue in a different forum. (DisputeSuite.com, supra, 2 Cal.5th at pp. 977, 974.) Although Montiel acknowledges Frog Creek was correctly decided on its facts, he contends its statement of law that there may be only one prevailing party on a contract is dictum and does not apply where the judgment on the underlying lawsuit is final and the later appeal is from a postjudgment decision. Here, he contends, plaintiffs may have prevailed in Achterkirchen J, but he was the “ ‘party prevailing on a contract’” in a final, separate appellate decision “on the merits” in Achterkirchen IT. Though his opening and reply briefs total 85 pages, Montiel essentially bases his entire argument on this one premise: that the “dispute” in Achterkirchen IT was a separate “action” between the parties arising out of the TIC Agreement. As the trial court found, this argument lacks merit. Achterkirchen II was not a separate action on the contract within the meaning of section 1717,nor did it result in a separate final judgment on the merits, as Montiel also contends. “An ‘action on a contract,’ as used in Civil Code section 1717, refers to ‘the whole of a lawsuit rather than to discrete proceedings within a lawsuit. supra, 206 Cal.App.4th at p. 527, fn. 6.) Achterkirchen I was a postjudgment (Carriere, supra, 39 Cal.App.5th at p. 276, quoting Frog Creek, appeal related entirely to the resolution of plaintiffs’ attorney fees motion as the prevailing party in Achterkirchen I. The order on plaintiffs’ postjudgment motion was an appealable collateral order, not a separate “action” instituted on the contract. (See Code Civ. Proc., § 904.1, subd. (a)(2); Lakin v. Watkins Associated Industries (1998) 6 Cal.4th 644, 654 [postjudgment order denying attorney fees was appealable because it “affects the judgment or relates to its enforcement in that it finally determines the rights of the parties arising from the judgment”); Carriere, at p. 276 [trial and appeal are considered part of the same action for purposes of determining contractual attorney fees].) Indeed, despite 85 pages of briefing, Montiel never cites a single apposite authority supporting the proposition that an appeal from a postjudgment order awarding a party attorney fees is its own “action” entirely separate from the underlying judgment for purposes of determining a prevailing party under section 1717.5 Rather, as our Supreme Court explained in Lakin, such 5 Montiel cites a number of authorities to support his argument, but none stand for the proposition that the appeal of a postjudgment attorney fees motion constitutes a second judgment on the merits in a separate “action” on the contract. Rather, as he acknowledged at oral argument, most of the cases he cites involved multiple defendants in which there were separate judgments (or potential judgments) as to each defendant on the contract claims. (See Burkhalter Kessler Clement & George LLP v. Hamilton (2018) 19 Cal. Appp.5th 38, 45 [considering application of § 1717 when there are more than two parties in contract action, “a situation left unconsidered in Frog Creek”; prevailing alter ego defendant entitled to attorney fees though corporation was not]; Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9 [one final judgment rule does not apply where a case involves multiple 5appealable orders are “a final determination of a matter affecting plaintiff in the original proceeding,” and “an adjudication of the right to attorney fees arising from the judgment.” (Lakin, at p. 654, italics added; see Serrano v. Unruh (1982) 32 Cal.3d 621, 636-637 [“A statutory fee motion ‘does not create a new cause of action ...’ [citation], much less a new ‘action.’ It isa collateral matter, ancillary to the main cause. [Citations.] It ‘ “seeks what is due because of the judgment... .”’”].) We find instructive a recent case from the Second Appellate District which, like this case, dealt with a postjudgment appeal, Carriere, supra, 39 Cal.App.5th 270. In Carriere, defendant Greene obtained a judgment in parties and judgment is entered which leaves no issue to be decided as to one party]; Buckaloo v. Johnson (1975) 14 Cal.3d 815, 821, fn. 3 [same]; Pueblo Radiology Medical Group, Inc. v. Gerlach (2008) 163 Cal.App.4th 826, 829 [affirming award of contractual attorney fees to individuals sued as alter ego defendants before trial against corporation had taken place]; First Security Bank of California v. Paquet (2002) 98 Cal.App.4th 468, 475 [cross- defendants sued as alter egos could appeal postjudgment attorney fee award while they continued their derivative shareholder lawsuit against bank].) Here, by contrast, there was one defendant, in one capacity—Montiel—and one action on the contract claim: Other cases on which Montiel relies involved procedural postures not at issue here. (Turner v. Schultz (2009) 175 Cal.App.4th 974, 978-979, 983 [defendants entitled to attorney fees for prevailing on declaratory and injunctive relief claims in independent lawsuit seeking to stay arbitration]; Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 806-808 [prevailing party on petition to compel arbitration entitled to attorney fees when petition was denied]; Cole v. BT & G, Inc. (1983) 141 Cal.App.3d 995, 998 [defendant could obtain attorney fees after successfully setting aside confession of judgment while new and independent lawsuit on liability under contract continued].) Montiel also cites Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394, 1396, 1398, for the proposition that a party who obtains an unqualified victory on every contract claim is entitled as a matter of law to be deemed the prevailing party for purposes of section 1717. In that case, however, unlike here, defendants prevailed on the merits of the contract claim in the trial court. (Deane Gardenhome Assn., at p. 1398.) 6his favor against the plaintiff. The trial court declared Greene the prevailing party and awarded him attorney fees according to a contractual attorney fees provision. Greene appealed, contending the trial court erred in calculating his damages, but then voluntarily dismissed his appeal. The plaintiff then moved for an award of attorney fees incurred on appeal, which the trial court granted. (Id. at p. 273.) The appellate court reversed, following Frog Creek and concluding that under section 1717, only one party could be the prevailing party in an action on a contract. (Carriere, at pp. 273, 276.) The trial court had determined Greene was the prevailing party in the lawsuit after finding he had defeated the plaintiffs claims and obtained affirmative relief on the cross-complaint, and the plaintiffs “subsequent success on appeal and her postjudgment motion did not affect that determination.” (Id. at p. 276.) Because Greene recovered the greater amount in the action on the contract, he remained the prevailing party for purposes of section 1717. (Carriere, at pp. 276-277; see Wood v. Santa Monica Escrow Co. (2009) 176 Cal.App.4th 802, 806, 808 [rejecting plaintiff's argument he was “prevailing party” because he won appeal of attorney fees award; trial and appeal are parts of a single proceeding and party prevailing on appeal is not necessarily the prevailing party for purposes of awarding contractual attorney fees].) The Carriere court also rejected the plaintiffs argument that the underlying action had been “ ‘fully resolved’” and her appeal constituted a” a “ ‘separate matter, standing on its own merits’ ” for purposes of awarding attorney fees. (Carriere, at p. 277.) Montiel contends Carriere is distinguishable because it, like Frog Creek, involved “one contract dispute, a single lawsuit and one final judgment on the merits,” and is not “relevant here where there were two final judgments on separate and unconnected issues.” For the reasons alreadydiscussed, however, Montiel’s success on appeal challenging the evidentiary basis for an attorney fees award does not amount to a separate final judgment. Here, as in Carriere, there was one lawsuit and one final judgment on the merits. The fact Montiel won in a subsequent appeal challenging the attorney fees award does not change that fact. In Achterkirchen I, supra, A140277, we affirmed the judgment finding plaintiffs prevailed on the substance of their contract claims, obtaining a forced sale of Montiel’s interest in the property, liquidated damages of $5,000, attorney fees and costs of $334,536, fees and costs associated with enforcing the award, and prejudgment interest. In Achterkirchen IT, supra, A147 386, Montiel succeeded only in challenging an insufficient declaration in support of plaintiffs’ fee request, reversing a $18,360 attorney fees award. On these facts, we perceive no abuse of discretion by the trial court in denying Montiel’s request for fees because plaintiffs clearly recovered the greater amount in the action on the contract, and were, thus, the prevailing party for purposes of section 1717. We also reject Montiel’s argument that the language of the parties’ TIC Agreement dictates a different outcome. Paragraph 15.10 of the TIC Agreement states: “In the event that any dispute between the Parties related to this Agreement or to the Property should result in litigation or arbitration, the prevailing Party in such dispute shall be entitled to recover from the other Party all reasonable fees, costs and expenses of enforcing any right of the prevailing Party, including without limitation, reasonable attorney fees and expenses, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorney fees andcosts incurred in enforcing such judgment . . .” If further provides: “For the purposes of this Section: (i) attorney fees shall include, without limitation, fees incurred in the following: (a) post-judgment motions...and | (ii) prevailing Party shall mean the Party who is determined in the proceeding to have prevailed or who prevails by dismissal, default or otherwise.” Montiel contends the language of the TIC Agreement clearly : shows the parties agreed “that the prevailing party on any matter that might arise from any provision of their contract would be entitled to an award of attorney fees” because it refers to “any dispute . . . related to this Agreement.”: He further contends a “proceeding” would include an appeal. We disagree that the language of the parties’ contract can be read to confer a separate right to attorney fees for a party that prevails on any dispute related to the TIC Agreement. The TIC Agreement specifically refers to “any dispute” that “should result in litigation or arbitration,” consistent with Frog Creek and other case law construing prevailing party to mean the party prevailing in the whole lawsuit on the contract—not any party who prevails on a particular issue or procedural ground. (Frog Creek, supra, 206 Cal.App.4th at p. 548; Mountain Air, supra, 3 Cal.5th at p. 755; DisputeSuite.com, supra, 2 Cal.5th at p. 977.) Though Montiel argues “proceeding” can mean “appeal,” nothing in the language of the contract \ suggests that meaning. Rather, the more logical reading of “proceeding” is that it refers to either “litigation or arbitration” as stated in the first sentence’ of paragraph 15.10 of the TIC Agreement. (See, e.g., Mountain Air, at pp. 755-756 [interpreting contractual provision by “considering the words in - context and the provision as a whole”].)In any event, section 1717 does not authorize the parties to agree to more than one prevailing party in a contract action for attorney fees. “[T]he definition of ‘prevailing party’ in Civil Code section 1717 is mandatory and cannot be altered or avoided by contract. [Citation.] Contractual provisions that conflict with the ‘prevailing party’ definition under section 1717 are void.” (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 107; Frog Creek, supra, 206 Cal.App.4th at pp. 544-546 [rejecting argument that parties to a contract could provide for attorney fees in any specified circumstance with highly specific contractual language].) Accordingly, we reject Montiel’s-claim that the specific language of the TIC Agreement entitles him to an award of attorney fees for his success in Achterkirchen II. The trial court’s order denying Montiel’s request for attorney fees under section 1717 is affirmed. Plaintiffs are to recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(D), (2).) 6 Montiel cites several cases for the proposition that “[s]ection 1717 does not supersede or limit the right of the parties to enter into an agreement that broadly covers all aspect[s] of litigation with as much specificity as they choose,” but the cases he cites all concern whether parties may contract for recovery of attorney fees on tort claims. (See Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1799; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1842; Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270, 1277; Khan v. Shim (2016) 7 Cal.App.5th 49, 60-62.) 10We concur: Humes, P. J. Sanchez, J. A153560 Achterkirchen v. Montiel 11 Margulies, J.