17 Cal. App. 5th 1019
Cal. Ct. App. 5th2017Background
- All Masonry (plaintiff) sued Oldcastle for breach of a 2001 dealer agreement, alleging exclusivity and preferential pricing in San Diego County; the written portion was a Belgard Authorized Dealer Agreement and alleged oral terms supplemented it.
- All Masonry changed its business name and signed a 2010 credit application updating credit terms; that application contained "Standard Terms and Conditions of Sales," an integration clause, and two attorney-fee provisions.
- The trial court granted judgment for Oldcastle on All Masonry's breach claim and other causes of action; Oldcastle then moved postjudgment for attorney fees based on the 2010 credit application.
- Trial court held the 2001 dealer agreement and the 2010 credit application could be construed together under Civ. Code § 1642, and awarded Oldcastle $180,120 in fees under Civ. Code § 1717.
- On appeal the court reviewed de novo whether the 2010 credit application formed part of the same transaction as the 2001 dealer agreement and thus could provide a contractual basis for fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2010 credit application (with fee clause) is part of the same transaction as the 2001 dealer agreement so fees apply under Civ. Code § 1642/§1717 | The 2010 credit application is a separate credit instrument not incorporated into the 2001 dealer agreement; the dealer program was a marketing program unrelated to purchase-order terms | The documents relate to the same subject and were made as part of substantially one transaction; §1642 allows construing them together so the 2010 fee clause applies to the 2001 claim | Reversed: §1642 does not apply; no clear and unequivocal intent to incorporate the 2010 terms into the 2001 agreement, so fees unavailable under that theory |
| Whether UCC § 2207 (battle-of-the-forms) supplies incorporation or adds fee terms to the preexisting dealer agreement | §2207 does not apply because a contract (the dealer agreement) already existed and the credit application was not an acceptance/confirmation of an offer | §2207 can validate added invoice/credit terms between merchants and thus support fee recovery (relying on Boyd) | Held not applicable; §2207 governs formation/acceptance, not adding terms to an already-formed contract here; integration clause further disfavors incorporation |
| Whether judicial admissions or litigation conduct by All Masonry bind it to the 2010 terms | Even if All Masonry acknowledged multiple documents or read the 2010 form, that does not show a clear, unequivocal incorporation to permit fees | Oldcastle argued All Masonry’s in-court statements operate as admissions supporting fee entitlement | Held immaterial: such statements don’t demonstrate the requisite clear incorporation and do not estop All Masonry from challenging the fee award |
| Whether Boyd v. Oscar Fisher Co. controls to allow fee recovery | Boyd is distinguishable because the original dealer agreement there required payment on terms established by the manufacturer and invoices incorporated those terms; invoices related directly to unpaid invoice cross-claims | Oldcastle urged following Boyd and §2207 | Court distinguished Boyd and refused to follow it as controlling here because factual and contractual differences (and integration clause) exist |
Key Cases Cited
- Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, 3 Cal.5th 744 (California Supreme Court) (standard for reviewing contractual fee awards; when separate writings may be construed together)
- Santisas v. Goodin, 17 Cal.4th 599 (California Supreme Court) (contractual attorney-fee provisions can be reciprocal under Civ. Code § 1717)
- Boyd v. Oscar Fisher Co., 210 Cal.App.3d 368 (Cal. Ct. App.) (invoices with fee clauses construed with dealer agreement; distinguished)
- Versaci v. Superior Court, 127 Cal.App.4th 805 (Cal. Ct. App.) (§1642 requires clear and unequivocal intent to incorporate later document)
- Pellegrini v. Weiss, 165 Cal.App.4th 515 (Cal. Ct. App.) (fee clauses limited to "this agreement" do not cover unrelated litigation)
- Paul v. Schoellkopf, 128 Cal.App.4th 147 (Cal. Ct. App.) (fee clause in escrow agreement limited to escrow disputes)
- Blickman Turkus LP v. MF Downtown Sunnyvale, LLC, 162 Cal.App.4th 858 (Cal. Ct. App.) (a party's pleading/request for fees does not estop it from contesting a fee award)