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Ronald Miller v. Charles F. Bush

April 10, 2012


(Super. Ct. No. CV022559)

The opinion of the court was delivered by: Duarte , J.

Miller v. Bush



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal of an attorney fee award requires us to decide whether the trial court properly awarded defendants their attorney fees after defendants prevailed in an earlier appeal and were awarded costs pursuant to California Rules of Court, rule 8.278(a)(1). The attorney fee award was based on defendants' having successfully defeated plaintiff's motion under Code of Civil Procedure*fn1 section 664.6 to enter judgment on a settlement agreement containing an attorney fee clause; however, there was arguably never a separate "action" on the settlement agreement, as contemplated by Civil Code section 1717.

We hold that on the specific facts of this contorted and lengthy litigation, the fee award was proper, because (1) plaintiff's own failure/refusal to comply with the terms of the settlement by not moving for dismissal allowed him to avoid the requirement that he bring a separate "action" to enforce the agreement; and (2) in prosecuting his section 664.6 motion, plaintiff fully litigated his claims regarding the settlement agreement; thus the "motion" functioned as the equivalent of an "action" under these particular circumstances. Consequently, we shall affirm.


Plaintiff Ronald Miller (Miller) appeals from the trial court's orders awarding attorney fees of $9,918.75 to defendants Charles F. Bush, Sr., and Kathleen Bush (the Bushes), and denying his motion to strike the attorney fees from the Bushes' memorandum of costs.

This is Miller's fourth appeal in this matter, and we rely in large measure on our prior unpublished opinion in Miller v. Bush (Aug. 24, 2009, C060166 [nonpub. opn.]) for the background facts concerning the litigation surrounding the settlement agreement, pursuant to which attorney fees were awarded. Recitation of some if not all of these facts is necessary for context and perspective in connection with the instant appeal.


The Underlying Action and Settlement

Miller filed the underlying action following a dispute concerning real property owned by the Bushes (the property). In November 2004, the parties agreed to a settlement of that action, with, among other terms, the Bushes agreeing to pay Miller a sum certain upon their sale of the property and Miller agreeing to dismiss the action with prejudice. The parties recited the terms of their agreement on the record before the trial court, and it was later memorialized in a document entitled "Notice of Lien and First Right of Refusal," which was signed by the parties and recorded in January 2007.*fn2 The court ordered that the parties' settlement agreement was "going to become the judgment of the court[,]" but no judgment was filed.

The settlement agreement contains the following attorney fee provision: "Should any legal action or proceeding arising out of or related to this Notice of Lien and Right of Refusal be brought by either BUSH or MILLER, the prevailing party shall be entitled to receive from the other party, in addition to any other relief which may be granted, the reasonable attorneys' fees, costs and expenses incurred in the action or proceeding by the prevailing party."


Miller's Motions to Enter Judgment

In December 2006, Miller filed a motion for judgment pursuant to stipulation under Code of Civil Procedure section 664.6, seeking entry of a formal judgment.*fn3 He ultimately asked that the motion be taken off calendar.

In or about July 2007, Miller filed his second motion for judgment pursuant to section 664.6, seeking an order compelling the Bushes to sell the property to him for a set price of $1.2 million. The Bushes opposed the motion, claiming that the settlement agreement did not oblige them to sell the property to Miller at so low a price. The trial court (Holland, J.) denied Miller's motion in a written ruling, finding: "The [settlement agreement] provides for a 'right of first refusal' on specified terms and is not, as Plaintiff argues, an unqualified 'right to purchase' anytime for a specified price. Plaintiff's right of refusal accrues 'in the event the property does not sell to any other buyer for a sales price . . . that exceeds $1,200,000' and must be exercised within 10 days after notice from Defendants that they have a buyer. It is important to note that the settlement agreement plainly contemplated that Defendants may sell the subject real property for a price in excess of $1,200,000; indeed, the agreement recites that Defendants will pay additional compensation to Plaintiff in such an event. It appears that Plaintiff's right of refusal comes into play only if a prospective buyer offers to purchase the subject property for less than $1,200,000. [¶] Defendants were under no obligation to accept Plaintiff's offer to purchase dated May 25, 2007, since the conditions under which Plaintiff's right of refusal had not arisen. . . . [T]he conditions under which Plaintiff may exercise his right of refusal do not presently exist."

While his motion for judgment was pending, Miller quitclaimed to the Bushes for valuable consideration "any interest [he] may have acquired in the subject property" by virtue of the settlement agreement, and ...

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