Concord Shopping Center Assn. v. Contra Costa County Harvest Church










Filed 9/26/11 Concord Shopping Center Assn. v. Contra Costa County Harvest Church CA1/2





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CONCORD SHOPPING CENTER ASSOCIATION et al., Plaintiffs and Appellants, v. CONTRA COSTA COUNTY HARVEST CHURCH, INC., et al. Defendants and Respondents.

A128116 & A129626 (Contra Costa County Super. Ct. No. C08-00533)

I. INTRODUCTION
Plaintiffs and appellants, Concord Shopping Center Association, Concord Shopping Center Parking Maintenance Association, and Vimal Kumar (collectively referred to as the Association), appeal from a judgment, following a court trial, in favor of defendants, North American Resources Corporation (North American), Arthur H. Sutter, Judith Sutter Pifer, and Judd S. Kessler (collectively referred to as Sutter) and defendant Contra Costa County Harvest Church, Inc. (Harvest Church). The Association also appeals from an order awarding attorney fees to Sutter and to Harvest Church.
The Association argues that the trial court erred in finding that respondents did not violate certain contracts governing development at the Concord Shopping Center. We disagree and affirm. With regard to the fee award, with the exception of that portion of the court’s order holding appellant Kumar liable to respondents for attorney fees, we affirm the fee award.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Property
This appeal concerns the Concord Shopping Center, sometimes referred to as the Park-N-Shop Center (the Center) in Concord, California, and, in particular, a three and one-half acre piece of the Center referred to by the parties as the Point. The Point is on the corner of Market Street and Willow Pass Boulevard in Concord.
B. The 1956 Grant of Easements
In the 1950’s, when the only business on the Point was a gas station, the original developer of the Concord Shopping Center, which owned or had a 99-year leasehold interest in the shopping center, and two other parties who owned the remaining parcels in the shopping center, entered into a “Grant of Easements and Parking Agreement” (the 1956 Easement Agreement). The parties did so in order to designate a common area at the center upon which there would be no construction. The parties granted each other “a non-exclusive easement for the purpose of ingress and egress for pedestrians and automobiles and for automobile parking purposes over and upon the property of each other, except where buildings are located or proposed to be located as shown on . . . Exhibit B.” The easements were granted “for the express benefit of the respective lessees who may now or hereafter lease from any of the parties hereto any property in said Concord Shopping Center, and may be enforced by any of such lessees.”
The parties to the 1956 Easement Agreement also agreed that “no buildings or other structures shall be erected” on any of their properties “occupying more area or in a different location” than depicted on an exhibit that showed existing buildings and proposed building sites.
In addition, the parties agreed that they would not “erect, place or maintain, or permit the continued [existence] of any fences, curbs, or other obstructions of any nature whatsoever on his or its property so as to interfere with the use of the entire parking area . . . .”
C. The 1981 Development
By the late 1970’s, the Point had become an “eye sore” and its sole gas station had fallen into disuse. In 1979, Sutter signed a Disposition and Development Agreement with the City, in which Sutter agreed to redevelop the Point into a more attractive gateway to the city (the 1981 Project). The 1981 Project ultimately resulted in the construction of a “three-structure project that was approved by the City of Concord. The bank building consisted of about 7,200 square feet, the taqueria building was approximately 1,675 square feet, with the Emil Villa’s structure being 7,400 square feet, so the total building square footage was 16,320 . . . square feet.” With “flatwork” (improvements that “allow[] the structures to communicate with each other as far as pedestrian access and circulation”, the “total area of improvement of building and flatwork” in the 1981 Project was 26,600 square feet.
Sutter and the City agreed that the 1956 easements would prevent this development and, therefore, would have to be either extinguished by agreement or condemned by the city before the 1981 Project could be built.
D. Grant Deed Releasing Easement Rights
Most of the lessees and owners who were beneficiaries of the 1956 Agreement agreed to release that portion of the easements granted to them in 1956 that would allow Sutter to develop the Point and the remaining unreleased easements were condemned by the City.
Under the terms of the Grant Deed Releasing Easement Rights (the 1981 Release), the beneficiaries of the 1956 Easement Agreement conveyed and released easement rights “limited to an area equal to 17,000 square feet for the purposes of construction of commercial structures” and an additional amount of square footage, ultimately agreed to be 52,000 square feet, “for the purpose of landscaping, public open space, and other amenities” as set forth in a site plan attached to the Grant Deed.
E. The 1981 Agreement
On May 18, 1981, before construction at the Point commenced, respondent North American and Alden A. Jones and Josephine F. Jones entered into an agreement with the Concord Shopping Center Association (the 1981 Agreement). The Shopping Center Association, which is comprised of owners of the businesses in the Shopping Center, which stands physically somewhat apart from the Point, does not itself own or lease property in the Center. However, it appears to wield a great deal of influence among the owners and lessees of the Center. The Association agreed, in exchange for the payment of approximately $50,000 and the construction of certain improvements, to recommend to its members that they execute the 1981 Release. North American Resources and Jones also agreed that “the plans and specifications . . . for the development as approved by the City of Concord Redevelopment Agency and as reviewed and approved by BOARD, may only be modified or changed with the approval of the City of Concord Redevelopment Agency, provided that any modifications or changes to the landscaping, exterior design, or architectural appearance shall be subject to Board approval.”
The 1981 Agreement also contained the following attorney fees clause: “In the event it [is] necessary for any party to seek counsel or pursue litigation to enforce the provisions of this agreement the prevailing party shall be entitled to reasonable attorney’s fees and costs, in addition to other damages.”
F. The 2004 Project
Almost 30 years later, the three buildings constructed in 1981 had become “obsolete.” The drive-through bank facility was no longer a draw, the Emil Villa’s structure was “just dark,” and “the property looked in disrepair.” Respondents, along with the City of Concord, “decided to reconfigure our existing rentable square footage . . . bring in some new tenants that were conducive to bringing new traffic to the shopping center.”
Respondents first developed the “Mimi’s” building (which apparently housed a restaurant called Mimi’s). Before respondents did so, respondent Sutter had his real estate broker show the plans for the building to the Concord Shopping Center Association’s manager. Sutter told the Center’s manager that “it was a smaller building and we were not moving the parking around.” The Association did not complain about the building, and construction commenced in 2004. Sutter then located a second tenant for the Point—a Chuck E. Cheese restaurant. The building ultimately constructed to house Chuck E. Cheese (sometimes referred to as the CEC Project) was “roughly 12,700 square feet.”
G. The Litigation
Appellants sued Sutter in 2008. Before trial, the court denied appellants’ claim for injunctive relief contained in the complaint’s first cause of action and struck several other causes of action and a claim for relief following a demurrer. Ultimately, appellants’ complaint, which went through four amendments, contained a claim for declaratory relief, with 12 separate issues, two breach of contract claims and a claim for declaratory relief as to the construction of the Mimi’s Restaurant.
Specifically, appellants asked the court to find the following:
“a. That the CEC PROJECT violates the 1956 EASEMENTS by removing six parking spaces from the existing CENTER parking lot.
“b. That the CEC PROJECT violates the 1956 EASEMENTS by encroaching outside of CONDEMNATION PARCEL ONE and CONDEMNATION PARCEL THREE.
“c. That the CEC PROJECT violates the 1956 EASEMENTS by occupying more area than the combined area of CONDEMNATION PARCEL ONE and CONDEMNATION PARCEL THREE as originally allowed.
“d. That the CEC PROJECT violates the 1956 EASEMENTS by occupying a different area than the combined area of CONDEMNATION PARCEL ONE and CONDEMNATION PARCEL THREE as originally allowed.
“e. That the CEC PROJECT violates the 1956 EASEMENTS and the 1981 SETTLEMENT AGREEMENT by destroying the 1982 LANDSCAPING IMPROVEMENTS defendants are obligated to maintain.
“f. That the CEC PROJECT violates the 1956 EASEMENTS and the 1981 SETTLEMENT AGREEMENT by modifying and changing the 1982 IMPROVEMENTS and the 1982 LANDSCAPING IMPROVEMENTS without approval by the CSC BOARD.
“g. That the OWNER-TENANT RELEASES are not unanimous, and do not relinquish sufficient rights from the 1956 EASEMENTS for defendants to build the CEC PROJECT.
“h. That the OWNER-TENANTS RELEASES are not unanimous, but do grant defendants permission to build the 1982 IMPROVEMENTS to an extent that precludes defendants from claiming the right to build the CEC PROJECT by adverse possession, prescriptive easement, or abandonment.
“i. That the City of Concord has no authority or jurisdiction to compel Defendants to build the CEC PROJECT and that defendants’ decision to proceed with the CEC PROJECT was voluntary.
“j. That Defendants had a duty to investigate Plaintiffs’ claims prior to commencing construction of the CEC PROJECT.
“k. That the CEC PROJECT encroachment is not innocent, but deliberate, willful, and prospective, made with full knowledge of Plaintiffs’ rights and with full understanding of the consequences which might ensue, such that this Court may not consider Defendants’ alleged hardships resulting from such encroachments.
“l. That the 1956 EASEMENTS are now perpetual over all CENTER parcels . . . .”
Appellants’ third and fourth causes of action sought monetary damages. Appellants’ fifth cause of action concerned the construction of the Mimi’s Project and the question of whether respondents secured appellants’ consent to this construction improperly.
Finally, appellants’ fifth cause of action sought declaratory relief as to the Mimi’s Restaurant and alleged, generally, that the project violated the 1956 Agreement because its size was greater than permissible under that agreement. In addition, appellants alleged that respondents made certain representations about the size and scope of the Mimi’s project, and appellants reasonably relied on these representations.
H. The Judgment
After a court trial, in a lengthy, well-reasoned opinion, the trial court denied each of the Association’s claims. The court specifically addressed each of the 12 issues for which the Association sought declaratory relief. As to items (a) through (f), the court held that these claims were not subject to declaratory relief because they sought to “redress[] past wrongs.” In the alternative, the court found that the Chuck E. Cheese project did not violate any of the agreements binding on respondents.
With regard to items (g) and (h) the court found that “no cross-easement rights . . . exist that are broader than those which are modified by the ‘releases.’ While not ‘unanimous,’ those servitudes or easements that were not released were extinguished by the condemnation action brought by the City of Concord Redevelopment Agency.”
The court denied relief as to item (i) because the City of Concord was not a party to the action. The court also found, with regard to item (j), that defendants did not owe appellants the described duty.
The court found that there was no wrongful encroachment as alleged by the Association in item (k). Finally, the court found that item (l) was “overly broad.”
The court denied relief under the third and fourth causes of action which sought monetary damages on the ground that the Association had failed to show any damage. The court also denied the Association’s fifth cause of action, which concerned the Mimi’s Restaurant. It held that the Association had failed to establish any damages and that Mimi’s was not overbuilt. The court also found that the doctrine of laches applied to this claim. Finally, the court found that any equitable remedy to which the Association might be entitled was barred by the doctrine of unclean hands, given that appellants had not objected when owners or lessees at the Concord Shopping center had overbuilt or otherwise occupied a cross-easement area.
I. Attorney Fees
The trial court awarded costs to respondents and attorney fees to North American Resources and Sutter in the amount of $607,659 and to Harvest Church in the amount of $66,937.00. This timely appeal followed.
III. DISCUSSION
A. Scope of 1981 Release
The most significant issue in this appeal is the question of whether respondents violated the 1981 Release when they built the 2004 Project, which was of nearly identical square footage to the 1981 Project, but in a slightly different configuration. On appeal, appellants contend that this construction violates the terms of the 1956 Easement Agreement because it was built outside the area released in the 1981 Release. We disagree.
1. Standard of Review and Applicable Legal Principles
The trial court did not find any of the agreements between appellants and respondents ambiguous. Therefore, “we review the trial court’s application of law independently. [Citations.]” (McCrary Constuction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal.App.4th 1528, 1535.)
Our determination of the scope of the easement is subject to the same rules that are applicable to the construction of a contract. (Civ. Code, § 1066.[1]) One of the most basic principles of contract interpretation is that we interpret a contract in such a way as to “ ‘protect the reasonable expectations of the parties’ (Ben-Zvi v. Edmar Co. (1995) 40 Cal.App.4th 468, 475) at the time the contract is formed. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) ‘[L]anguage in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract. [Citation.] Courts will not strain to create an ambiguity where none exists.’ (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18-19).” (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 842 (Kashmiri ).)
“The interpretation of a contract ‘must be fair and reasonable, not leading to absurd conclusions.’ (Transamerica Ins. Co. v. Sayble (1987) 193 Cal.App.3d 1562, 1566.) ‘A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.’ ( . . . § 1643.)” (Kashmiri, supra, 156 Cal.App.4th at p. 842.)
We are also guided by two principles that are specific to the granting of an easement. First, section 1069 provides: “A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.” Therefore, we interpret the terms of the 1981 Release in favor of respondents, as the grantees. Second, “some flexibility exists in determining an easement holder’s rights. The operation of easements must necessarily be prospective. (Faus v. City of Los Angeles (1967) 67 Cal.2d 350, 355 [].) Thus easement dedications are interpreted broadly and are deemed to have been intended to accommodate future needs.” (Anderson v. Time Warner Telecom of California, Inc. (2005) 129 Cal.App.4th 411, 416–417.)
2. The 1981 Release
Appellants contend that the 2004 Development violates the 1956 Easement Agreement because it is built on land that is not subject to the 1981 Release. We disagree.
The 1956 Easement Agreement carved out undeveloped areas within the Center for parking and ingress and egress. In 1981, a portion of the easements created in that agreement were released to respondents for the purpose of developing the Point. When respondents redeveloped this area in 2004, they were required to comply with all applicable restrictions on the property, including the 1956 Easement and the 1981 Release. Therefore, the first issue we must address is whether the 2004 Project violates the 1981 Release. If it does not, then it does not violate the 1956 Easement.
The 1981 Release provides: “The easement rights conveyed and released hereby are limited to an area equal to 17,000 square feet for the purposes of construction of commercial structures and an additional [approximately] 52,000 square feet for the purpose of landscaping, public open space, and other amenities as may be set forth in a Final Site Plan approved by . . . the City of Concord . . . , which area shall be located within the boundaries of that real property” designated by four assessor parcel numbers.[2] The 1981 Release does not contain a legal description of the specific building sites. We conclude that the language of the 1981 Release is unambiguous and, therefore, we need not rely on extrinsic evidence to interpret it.[3]
Construing the language in the grant in favor of respondents, and with the “flexibility” the law allows, we find that the parties intended broadly to exclude from the 1956 easements 69,000 square feet of developable area, the location of which was approximate, but, in general, to occur at the site identified by respondents and the City of Concord as appropriate for development. The phrase “[approximately] 52,000 square feet” indicates that the parties were not particularly concerned with precision in the calculation of the space that would be developed. In fact, some of the signatories to the Grant Deed left blank the second square footage number. This further supports our conclusion that the parties’ intent was to permit a portion of the Point to be developed in the area designated by the City and respondents, an area which was subject to some adjustment as the project was finalized. We agree with the trial court’s finding that the fact that the parties did not include a more specific description of the property indicates that they left it to the City to determine the ultimate shape of the project.
Sutter’s expert witness, Michael Milani, a civil engineer, testified about the 2004 development of the Point and, in particular, about the footprint of various parts of the project compared to those they replaced.[4] Milani testified that the Emil Villa’s building that the Mimi’s Restaurant replaced had a building footprint of 7,400 square feet and flatwork (the sidewalks and patios) of about 3,400 square feet. The Mimi’s footprint was approximately 7,200 square feet and the flatwork was another 3,300 square feet. The two projects, therefore, were of comparable size.[5]
The Chuck E. Cheese project replaced two structures that totaled 8,875, with associated flatwork of 6,800 square feet. In addition, the canopy area that projected from the bank building, amounted to 1,900 square feet, the driveway associated with the drive through teller consisted of 6,300 square feet, and the second story of the bank building was 2,400 square feet. Under these calculations, the Chuck E. Cheese project replaced “roughly 36,000 square feet of impact area.”
The Chuck E. Cheese building that replaced these two structures was approximately 12,700 square feet. Its flatwork totaled 5,100 square feet for a total of 17,800 square feet. Comparing only the square footage of the old and new buildings, the Chuck E. Cheese building was 3,825 square feet larger than the structures it replaced. Comparing the flatwork and the buildings together, the difference between the two projects, the older of which was 15,675 square feet and the newer 17,800 square feet, was 2,125 square feet. However, we agree with the trial court that the relevant space should include the drive-through area, a permanent structure that amounted to 6,300 square feet. Therefore, the footprint occupied by the Chuck E. Cheese project was smaller than the footprint of the project it replaced. The trial court reached this conclusion also and substantial evidence supports it. Further, although the Chuck E. Cheese project extended beyond the footprint of the previous buildings, when the drive-through area was taken into account, it did not.
Taken as a whole, the Mimi’s Restaurant project and the Chuck E. Cheese project were of comparable size to the structures they replaced. In addition, any differences between the configuration of the 1981 Project and the 2004 Project is slight and, therefore, not significant. We conclude, as the trial court did, that neither the Mimi’s project nor the Chuck E. Cheese project violated the 1981 Release and, therefore, Sutter did not violate the 1956 Easement Agreement.
In their reply brief, appellants cite Whalen v. Ruiz (1953) 40 Cal.2d 294 (Whalen), Hannah v. Pogue (1944) 23 Cal.2d 849, 855 (Hannah) and Wilson v. Abrams (1969) 1 Cal.App.3d 1030 (Wilson), for the proposition that a court may not change the location of an easement “ ‘regardless of the question as to the relative benefit and damage that would ensue to the parties by reason of a change in the mode and manner of its enjoyment.’ ” (Whalen, supra, at p. 302.) Appellants’ authorities are inapposite. This case does not involve a change in the location of an easement. Rather, it concerns the proper construction of a deed granting an easement. The other cases cited by appellants involve similar facts to Whalen and are, therefore, similarly inapplicable.
B. The 1981 Agreement
The trial court found that respondents did not violate the 1981 Agreement with the Association when they removed and replaced existing landscaping during the 2004 Project. The trial court also found that respondents did not violate the 1981 Agreement when they built the 2004 Project without the Association’s approval. We agree.[6]
Paragraph 6 of the 1981 agreement between the Association and respondents obligates respondents to install landscaping, benches and trellis, along with paving, repair, striping and curbs. Respondents also agreed to maintain the landscaping. The 1981 Agreement does not contain any express term of the duration of Sutter’s obligation to maintain the landscaping. Therefore, we will imply one from the “ ‘nature of the contract and the circumstances surrounding it.” (Zee Medical Distributor Assn. Inc. v. Zee Medical, Inc. (2000) 80 Cal.App.4th 1, 8.) We note, too, that “in some cases the court by referring to the nature of the contract and the totality of circumstances is able to determine that the obligations of the contract were impliedly conditioned as to duration upon the occurrence or nonoccurrence of some event or situation.’ [Citation.] ‘California courts have not hesitated’ to imply an ascertainable term of duration when reasonably possible. [Citation.]” (Id. at pp. 8-9.)
In our view, the reasonable term of the maintenance of the 1981 Agreement landscaping was the life of the 1981 Project. It is unreasonable to think that respondents agreed to maintain this landscaping in perpetuity—the parties certainly contemplated that there would be a time when the 1981 Project might no longer be in use. The obligation under the 1981 Agreement, therefore, ceased when the 2004 Project was constructed.
Appellants also alleged that respondents were in violation of the 1981 Agreement because they failed to seek the Board’s approval before “modifying and changing” the 1982 improvements. The trial court correctly found that the 1981 Agreement contains no such requirement. Paragraph 12 of the Agreement, which forms the basis of appellants’ argument that such a responsibility exists, provides as follows: “It is agreed by JONES and NORTH AMERICAN that the plans and specifications described above for the development as approved by the City of Concord Redevelopment Agency and as reviewed and approved by BOARD may only be modified or changed with the approval of the City of Concord Redevelopment Agency, provided that any modifications or changes to the landscaping, exterior design, or architectural appearance shall be subject to Board approval.” Although this paragraph does not explicitly provide that the approvals Jones and North American were required to secure in the event of changes to the project referred to the 1981 Project, it is clear from the context in which the 1981 Agreement was executed, that the parties intended this provision to apply only to changes to the 1981 Project during the time it was being built. In our view, the parties did not intend to confer on the Association approval rights to changes made in the Point in perpetuity.
Respondents, therefore, are not in breach of the 1981 Agreement. In addition, we agree with the trial court’s ruling that, in any event, appellants failed to prove any damages as a result of this purported breach. At trial, respondents established – and the trial court found -- that the 2004 Project improved conditions at the Center.
C. Equitable Considerations
The trial court also found that appellants were not entitled to relief for unjust enrichment because the remedy in the event that respondents “overbuilt,” as appellants claim, would be money damages. Appellants did not show that they were entitled to monetary damages and, even more fundamentally, respondents Sutter did not overbuild. Therefore, appellants have failed to make out a claim for unjust enrichment.
Appellants do not dispute the trial court’s finding that they failed to show entitlement to this equitable remedy. Rather they focus on the trial court’s alternative ground for denying their unjust enrichment claim, namely that the doctrine of unclean hands precludes this remedy. We need not, however, consider whether the trial court erred in so finding because, quite simply, appellants were not, on the merits, entitled to relief for unjust enrichment.
D. Attorney Fees
The trial court, in a separate written order, found that respondents had a contractual right to attorney fees under the 1981 Agreement and awarded a total of $674,596 in fees to respondents. With the exception of the court’s order making appellant Kumar liable to appellants for fees, we affirm this order.[7]
Paragraph 14 of the 1981 Agreement provides “In the event it [sic] necessary for any party to seek counsel or pursue litigation to enforce the provisions of this agreement the prevailing party shall be entitled to reasonable attorney’s fees and costs, in addition to other damages.” Paragraph 15 of the 1981 Agreement provides that it is “expressly made binding upon each of the undersigned, their heirs, issues, executors, assigns, or successors in interest.”
Section 1717 makes such contractual attorney fees provisions applicable to the prevailing party in any litigation brought by a party to the contract. Respondents were the prevailing parties in this litigation and, therefore, entitled to fees.
Appellants contend, however, that the 1981 Agreement was only a “minor part” of their case and therefore, did not justify the court’s award. We disagree.
In effect, appellants are arguing that the trial court should have apportioned fees among the various claims they asserted. In general, “[w]hen a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action. However, the joinder of causes of action should not dilute the right to attorney fees. Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award. [Citation.] When the liability issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not, then allocation is not required. [Citations.]” (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133.)
This rule also applies to contractual attorney fees. When a cause of action based on a contract that provides for attorney fees is joined with other non-contract claims, fees should be apportioned between the two types of claims. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130 (Reynolds).) However, “[a]ttorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Ibid., see also Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687 [“Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units”]; Drouin v. Fleetwood Enterprises (1985) 163 Cal.App.3d 486, 493 [“Attorneys fees need not be apportioned between distinct causes of action where plaintiff’s various claims involve a common core of facts or are based on related legal theories”].)
Throughout this case, appellants took the position that the 2004 Development violated the 1981 Agreement. Appellants’ claims for injunctive relief, declaratory relief and for damages were all based, in whole or in part, on purported violations of the 1981 Agreement. In fact, appellants’ complaint specifically sought recovery for attorney fees under the 1981 Agreement. Claims involving the 1981 Agreement, as well as appellants’ additional claims against respondents, involved a core set of facts and interrelated legal issues—namely, the propriety of the construction of the 2004 Development. The trial court did not abuse its discretion or otherwise err by declining to apportion fees.
Appellants also contend that non-signatories to the 1981 Agreement cannot be required to pay attorney fees to respondents (in the case of appellant Kumar), and were not entitled to receive a fee award (in the case of respondents Harvest Church and Sutter) from appellants. Appellants are incorrect with regard to the award to Harvest Church and Sutter. They are, however, correct with regard to Kumar, who was not a party to the 1981 Agreement and is not liable for fees under that Agreement under any theory.
In general, section 1717’s reference to “any action on a contract,” has been construed to include “any action where it is alleged that a person is liable on a contract, whether or not the court concludes he is a party to that contract.” (Reynolds, supra, 25 Cal.3d at p.0 128.) Reynolds further interpreted section 1717 to “provide a reciprocal remedy for a nonsignatory defendant, sued on a contract as if he were a party to it, when a plaintiff would clearly be entitled to attorney’s fees should he prevail in enforcing the contractual obligation against the defendant.” (Ibid.)
In Reynolds, the plaintiffs claimed that nonsignatory defendants were liable for attorney fees under a contractual attorney fees provision because they were alter egos of the corporation that was the signatory to that contract. Because the alter ego defendants would have been liable for attorney fees had plaintiff had prevailed, the defendants were entitled to recover attorney fees pursuant to section 1717 even though they were nonsignatories. (Reynolds, supra, 25 Cal.3d at p. 129.) Therefore, if the nonsignatory defendants in this case – Harvest Church and Sutter – would have been liable for fees in this matter, they are entitled to recover fees.
This same rule “has also been applied . . . in actions by a nonsignatory plaintiff seeking to enforce a contract against a signatory defendant.” (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 380.) “Where a nonsignatory plaintiff sues a signatory defendant in an action on a contract and the signatory defendant prevails, the signatory defendant is entitled to attorney fees only if the nonsignatory plaintiff would have been entitled to its fees if the plaintiff had prevailed.” (Id. at p. 382.) Thus, in this situation, if Kumar would have been entitled to recover attorney fees from respondents, then he is liable for those same fees.
The question then, is whether, under Reynolds, Sutter and Harvest Church would be entitled to attorney fees even though they are not signatories to the 1981 Agreement. The signatories to the 1981 Agreement were Alden and Josephine Jones, respondent North American Resources Corporation and appellants Concord Shopping Center Owners Association. The trial court found that the claims against Arthur Sutter, Judith Sutter Pifer, trustee, and Judd S. Kessler, trustee, were made based on their “ownership and/or management roles, if any, with North American.” We agree with the trial court’s conclusion that given that appellants sought recovery against these Sutter defendants on an alter ego theory and, had they prevailed would have been entitled to fees against them, then they are entitled to fees against appellants.
Harvest Church is the successor in interest of Alden and Josephine Jones, who were signatories to the 1981 Agreement. Appellants would, therefore, have been entitled to fees against Harvest Church under paragraph 15 of the 1981 Agreement and, therefore, Harvest Church is entitled to fees against them.
As for appellant Kumar, the question is whether, under Real Property Services Corp. v. City of Pasadena, supra, 25 Cal.App.4th 375, respondents would be entitled to recover fees against him “as a nonsignatory plaintiff seeking to enforce a contract against a signatory defendant.” (Id. at p. 380.) As we have noted, the Reynolds rule applies equally to this situation and, therefore, “the signatory defendant is entitled to attorney fees only if the nonsignatory plaintiff would have been entitled to its fees if the plaintiff had prevailed.” (Id. at p. 382.)
The trial court found that Kumar would have been entitled to fees had he prevailed in this lawsuit and, therefore, should be liable for them. We disagree. Kumar would be entitled to recover fees under the 1981 agreement if he could show that he is a third party beneficiary of that contract. He could only do so “if it appears that the contracting parties intended to extend such a right to one in his position. [Citation.]” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (Blickman) (2008) 162 Cal.App.4th 858, 897.)
In this case, as in Blickman, the applicable fee provision reflects no such intent. Paragraph 12 of the 1981 Agreement applies to “parties” who seek to enforce the Agreement. Kumar was not a party to that Agreement, nor is the Agreement binding on him, through paragraph 15 of the Agreement, as is the case with Harvest Church.
Because the contract does not express such an intent, Kumar would not have been entitled to fees, nor may fees be awarded against him. It is of no moment that the 1981 Agreement was entered into “for the common benefit” of the center and Kumar was an owner in the center. He was not a party to the Agreement and, therefore, would not be entitled to fees. Similarly, although the Association approved the joining of Kumar as a co-plaintiff, this does not convert Kumar into a party to the 1981 Agreement.
Therefore, given that Kumar would not have been entitled to fees under the 1981 Agreement, he is not obligated to pay such fees.
IV. DISPOSITION
The judgment is affirmed. With the exception of that portion of the court’s attorney fees order awarding fees against appellant Kumar, the attorney fees award is affirmed.





_________________________
Haerle, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.

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