Demari v. Desert Oasis Mobile Estates
Filed 3/19/13
Demari v. Desert Oasis Mobile Estates CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
JULIET DEMARI et al.,
Plaintiffs and
Appellants,
v.
DESERT OASIS MOBILE ESTATES,
LLC, et al.,
Defendants and
Respondents.
F064419
(Super.
Ct. No. CV-271639)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Law Offices
of Olaf Landsgaard and Olaf Arthur Landsgaard for Plaintiffs and Appellants.
Borton
Petrini, James J. Braze and Michael J. Stump for Defendants and Respondents.
-ooOoo-
Appellants,
Juliet Demari, individually and doing business as Leona Homes and Westline
Financial, and Doug Holland, challenge the trial court’s award of attorney fees
to respondents, Desert Oasis Estates, LLC, Alfons Von Den Stemmen and Blanca
Gonzalez. Appellants contend the
contracts they sued on did not contain an attorney fee provision and therefore
attorney fees were not recoverable.
However, an additional agreement was incorporated into the contracts
that did include an attorney fees provision.
Accordingly, attorney fees were authorized. Therefore, the judgment will be affirmed.
BACKGROUND
Appellants entered into contracts,
referred to as the Leona contracts, with respondents that allowed appellants to
place mobile homes in the Desert Oasis Mobilehome Park to sell or rent. Appellants were to pay respondents storage
fees for the homes. Appellants also
agreed “Each home seller brings to park is to conform to the Desert Oasis
Mobile Estates ‘Mobilehome Storage Agreement’ (Exhibit A). And there must be a separate agreement for
each home.†The “Mobilehome Storage
Agreement†provides “[t]he prevailing party to any action necessary to enforce
a party’s right under this Agreement, will be entitled to recover its
reasonable attorney fees and costs.â€
Appellants sued respondents for
sustained without leave to amend.
Thereafter, the trial court awarded attorney fees to respondents as the
prevailing parties based on the attorney fee provision contained in exhibit A,
the Mobilehome Storage Agreement, incorporated into the Leona contracts.
DISCUSSION
In their motion for attorney fees,
respondents included the Mobilehome Storage Agreements behind the copies of the
Leona contracts that appellants sued on.
As noted above, each Leona contract referred to the Mobilehome Storage
Agreement and designated it as exhibit A.
Appellants contend the trial court erred in basing the attorney fees
award on the Mobilehome Storage Agreements because those agreements were not
authenticated, were unsigned, and being unsigned, were not enforceable under
the statute of frauds.
It is the law that the parties may
incorporate by reference into their contract the terms of some other
document. Accordingly, the contract may
include the provisions of a document not physically a part of the basic
contract. (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1331.) Although the reference must be clear and
unequivocal, and called to the attention of the other party who must consent
thereto, the contract need not recite that it incorporates another document, so
long as it guides the reader to the incorporated document. (Shaw
v. Regents of University of California (1997) 58 Cal.App.4th 44, 54.)
Here, the Leona contracts referred
to the Mobilehome Storage Agreements.
This reference was clear and unequivocal. Further, appellants agreed that each home
they brought to the Desert Oasis Mobilehome Park would conform to this
agreement. Accordingly, it must be
inferred that the terms of the Mobilehome Storage Agreement were known or
easily available to appellants. Thus,
the Mobilehome Storage Agreement was part of each Leona contract and appellants
were bound by its terms. (
Insurance Co. (2003) 111 Cal.App.4th 784, 791.) Since both documents must be considered as a
whole (Kraemer v. Kraemer (1959) 167
Cal.App.2d 291, 301), and appellants signed the Leona contract, appellants are
bound by the terms of the Mobilehome Storage Agreement despite that agreement
being unsigned. Further, appellants have
not demonstrated that the trial court erred in finding that the proffered
Mobilehome Storage Agreement was part of each Leona contract.
DISPOSITION
The order is affirmed. Costs on
appeal are awarded to respondents.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Poochigian, J. and Franson, J.
