APPEALS from a postjudgment order of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed.
The opinion of the court was delivered by: McCONNELL, P. J.
Manoogian v. San Diego Unif. School Dist.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Peggy Manoogian and San Diego Unified School District (SDUSD) appeal from the trial court's postjudgment order regarding attorney fees and costs.
The trial court found Manoogian was the prevailing party on SDUSD's cross-complaint for breach of contract and granted her attorney fees under Civil Code section 1717, but awarded her $40,000 in fees rather than her requested $500,000, reasoning that the contract cause of action was not so inseparably intertwined with her tort causes of action as to preclude apportionment. It denied SDUSD's motion for attorney fees, concluding that Manoogian's retaliation cause of action, which failed at trial, and her age discrimination cause of action and the concealment cause of action, which were summarily adjudicated in SDUSD's favor, were not unreasonable, frivolous or vexatious. The court further ruled SDUSD was not entitled to recover attorney fees because SDUSD's "success" was merely that the court struck Manoogian's contract cause of action in a demurrer, an interim motion.
Ruling on the parties' cross-motions to strike cost bills, the court found no party received any monetary benefit. It denied Manoogian's motion on grounds she was not the prevailing party under Code of Civil Procedure*fn1 section 1032 and granted SDUSD's motion as the prevailing party, but taxed SDUSD's costs, awarding it $41,251.26.
Manoogian contends the trial court abused its discretion by: (1) substantially reducing her attorney fee request upon a finding SDUSD'S cross-complaint for breach of contract was not significantly intertwined with her other causes of action; (2) striking her cost bill in its entirety and failing to tax SDUSD's cost bill because Government Code section 12965, subdivision (b) mandates that under the Fair Employment and Housing Act (FEHA, Govt. Code, § 12900 et seq.), a defendant may recover costs only if the plaintiff's claim was frivolous, unreasonable, or without foundation; and (3) awarding SDUSD costs under section 998.
SDUSD contends that the trial court abused its discretion in finding Manoogian was the prevailing party on the contract cause of action and granting her attorney fees. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Manoogian was employed by SDUSD for several years. In January 2003, she was on leave from her job as head counselor at a school when she filed her initial lawsuit alleging causes of action for age discrimination (first cause of action), race discrimination and harassment (second cause of action), failure to prevent discrimination and harassment (third cause of action), breach of contract (fourth cause of action), breach of implied covenant of good faith and fair dealing (fifth cause of action), intentional infliction of emotional distress (sixth cause of action), and negligent infliction of emotional distress (seventh cause of action).
In February 2007, she filed a third amended complaint alleging age discrimination (first cause of action), retaliation (second cause of action), and concealment (third cause of action).
In March 2007, SDUSD cross-complained for breach of contract, alleging that Manoogian signed a settlement agreement obligating her to resign or retire from employment at SDUSD by June 2004, and release all claims against SDUSD.
In April 2007, the parties stipulated to consolidate the two actions.
In September 2007, SDUSD sent Manoogian an offer to compromise under section 998 that stated in its entirety, "Pursuant to section 998 of the California Code of Civil Procedure, Defendants, [SDUSD] hereby offer to compromise this matter in exchange for a waiver of fees and costs. [¶] By signing below, Plaintiff, Peggy Manoogian, by and through her attorney of record, hereby accepts the terms and conditions indicated above pursuant to California Code of Civil Procedure section 998."
In March 2008, following demurrers and summary adjudications, Manoogian's retaliation cause of action and SDUSD's cross-complaint for breach of contract proceeded to jury trial. The jury found in SDUSD's favor on Manoogian's retaliation cause of action and in Manoogian's favor on SDUSD's breach of contract action.
In the first appeal, we affirmed the summary adjudication of Manoogian's causes of action for age discrimination and concealment, and the judgment on her retaliation cause of action. (Manoogian v. San Diego Unified School District (Sept. 25, 2009, D053366) [nonpub. opn.].)
Manoogian's attorney fee award was based on a provision in the parties' settlement agreement stating, "In the event of any litigation or arbitration to interpret or enforce the terms of this [r]elease, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs." The trial court determined that provision applied only to contract causes of action.
Civil Code section 1717 authorizes an attorney fees award to a prevailing party "[i]n any action on a contract . . . to enforce that contract" if the contract provides for an award of attorney fees. (Civ. Code, § 1717, subd. (a).) "[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract." (Civ. Code, § 1717, subd. (b)(1).) The trial court has broad discretion "to determine who, if anyone, is the party prevailing on the contract." (Otay River Constructors v. San Diego Expressway (2008) 158 ...