Stutz v. Cloyd

Filed 11/19/07 Stutz v. Cloyd CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Leon S. Kaplan, Judge. Reversed in part and remanded.

Stanley D. Bowman for Defendant, Cross-Complainant, and Appellant Gerald Knapp.

Law Offices of Robin E. Paley and Robin E. Paley for Plaintiffs, Cross-Defendants, and Respondents Harold J. Stutz and Eileen M. Stutz.

INTRODUCTION

Defendant, cross-complainant, and appellant Gerald Knapp appeals from a default judgment in his favor against plaintiffs, cross-defendants, and respondents Harold and Eileen Stutz (the Stutzes), contending that the trial court erred in failing to award restitution damages for the sale of his residence and in failing to award attorney fees.[1] We hold that the trial court erred when it failed to award restitution damages for the sale of Knapps residence and when it failed to award attorney fees. We remand the case for an award of such damages and such fees.

BACKGROUND

The Stutzes filed an action against Michael Cloyd and Knapp to recover monies loaned to Cloyd.[2] On June 4, 1993, Cloyd executed a promissory note in the amount of $12,000 in the Stutzes favor. Pursuant to a three-year loan agreement and promissory note, both dated September 22, 1993, the Stutzes loaned to Cloyd $60,000, which loan included the prior $12,000 loan, to secure investment funding for the operation of Chasers Bar and Grill. Only Cloyd executed the promissory note and loan agreement. Cloyd stopping making payments on the note in June 1994, and the Stutzes filed their complaint for breach of contract and fraud on September 13, 1996 against Cloyd and Knapp. Knapp was not a signatory to the contract or note.

After filing an answer to the complaint, Cloyd and Knapp failed to respond to discovery. Cloyds and Knapps attorney failed to oppose, or appear at the hearing of, the Stutzes motion to compel discovery responses, and the trial court granted the motion. Later, Cloyds and Knapps attorney did not file an opposition to the Stutzes motion to strike Cloyds and Knapps answer and to enter default as a discovery sanction. The trial court vacated Cloyds and Knapps answer and entered default against them. Thereafter, a default judgment in favor of the Stutzes was entered as follows: $115,184 in damages; $100,000 in punitive damages against Cloyd; $250,000 in punitive damages against Knapp; and $10,000 in attorney fees. To satisfy the judgment, Knapps residence was sold, and the Stutzes attached certain of Knapps accounts.

The trial court granted Cloyds and Knapps motion to set aside the default and default judgment due to attorney neglect. The Stutzes appealed, and we affirmed the trial courts ruling in Stutz v. Cloyd (2002) B150482.

On remand, Knapp moved for leave to file a cross-complaint against the Stutzes, Henkhaus,[3]and others alleging causes of action for conspiracy to defraud, fraud, cancellation of instrument, and quiet title concerning the sale of Knapps residence in satisfaction of the Stutzes overturned default judgment. Knapp also moved for restitution of monies in his mutual funds levied on by the Stutzes in satisfaction of the Stutzes overturned default judgment. Knapp asked the trial court, Judge James A. Kaddo, to reserve the issue of damages he suffered through the sale of his residence as an issue to be resolved in connection with his cross-complaint.

Judge Kaddo heard and granted Knapps motions on October 22, 2002. With respect to restitution, Judge Kaddo issued the following order, IT IS HEREBY ORDERED THAT the issue of restitution and damages Re: real property located at 4903 Kingspine Rd., Rolling Hills Estates, California be reserved pending determination of the Cross-complaint filed by defendant GERALD KNAPP. [] IT IS FURTHER ORDERED THAT all the funds levied and collected by plaintiffs from the Mutual Funds of GERALD KNAPP be deposited by plaintiffs forthwith into an interest bearing account at California Federal Bank 16601 Ventura Blvd., Encino, California 91436 pending determination of the First Amended Complaint on file herein. Said Bank Account shall be jointly held by Stanley D. Bowman, attorney for Gerald Knapp and Robin E. Paley, attorney for plaintiffs. At the hearing, Judge Kaddo determined that the amounts in the mutual funds that the Stutzes had levied on totaled $252,173.57.

Later, after proceedings not relevant here, Knapp filed a second amended cross-complaint for declaratory relief against the Stutzes and Henkhaus concerning the loss of his residence in satisfaction of the Stutzes overturned default judgment against him. The Stutzes demurred to the second amended cross-complaint, setting the hearing for June 24, 2003. The trial court overruled the demurrer.[4] On July 8, 2003, the Stutzes filed an answer to the second amended cross-complaint.

In December 2003, Knapp filed motions to strike the Stutzes complaint and their answer to his cross-complaint[5]on the grounds that the Stutzes had failed and refused to comply with the trial courts order to deposit the money they levied upon from Knapps accounts into a jointly held bank account. On March 1, 2004, the trial court granted Knapps motions.[6]

Henkhaus also demurred to the second amended cross-complaint. On March 16, 2004, the trial court, Judge Leon S. Kaplan, sustained Henkhauss demurrer with leave to amend.

On March 26, 2004, Knapp filed a third amended cross-complaint for declaratory relief. The third amended cross-complaint concerns the loss of Knapps residence in satisfaction of the Stutzes overturned default judgment against him. Henkhaus demurred to the third amended cross-complaint. Judge Kaplan sustained Henkhauss demurrer to the third amended cross-complaint without leave to amend. Knapps attorney then requested a default prove up hearing as to the Stutzes. Judge Kaplan set the matter for hearing, requesting that Knapp provide a declaration and appear for examination by the court.

In support of the default judgment, Knapp submitted his declaration setting forth his claimed damages. Knapp claimed $359,894.72 ($252,173.53 in principal plus interest at 10 percent) for the monies levied upon in his mutual funds and $685,000 for the net current fair market value of his residence. Knapp also claimed $143,789.45 in attorney fees. The default prove up hearing was held on December 17, 2004.

By minute order dated March 14, 2005, Judge Kaplan awarded Knapp $252,173.57 (a figure equal to the principal the Stutzes recovered from Knapps accounts) plus interest that Knapp would have received had the money been placed in an interest bearing account at a major bank. Judge Kaplan did not award Knapp any amount for the loss of his residence. Judge Kaplan denied Knapps request for attorney fees, ruling that the original contract contains no such applicable provision and moving party is not a party to the contract.

On May 16, 2005, Knapp filed a motion for clarification seeking to determine whether Judge Kaplan had intended not to rule on his request for the current market value of his residence or whether the omission was an error. Knapp set the matter for hearing on June 14, 2005. At the hearing, Judge Kaplan stated that Knapps motion was more in the nature of a motion for reconsideration and, initially, denied the motion on the ground that Judge Kaddo had placed a value on the loss of Knapps residence at the October 22, 2002, hearing. After further argument by Knapps attorney, Judge Kaplan took the motion under submission stating that if counsel did not hear from the court by minute order by the following Monday, then the courts tentative ruling would stand.

Thereafter, in connection with an opposition to an order to show cause why sanctions or dismissal should not be entered, Knapps attorney stated in a declaration that he had filed a proposed Default Judgment and Declaration Re: Interest. In the declaration counsel further stated that as the trial court had not ruled on the motion for clarification, he concluded that the court intended not to award any damages on the reserved issue of the amount of restitution that should be awarded for Knapps residence, and he had prepared the default judgment accordingly. At the hearing on November 30, 2005, Judge Kaplan took the matter under submission, stating that he would issue a minute order.

On December 9, 2005, Judge Kaplan issued a minute order entitled RULING ON SUBMITTED MATTER. The minute order provides, Counsel for defendant/Cross-complainant is referred to the minute order of March 14, 2005; also the June 14, 2005 ruling on motion for clarification. No issues concerning restitution were reserved. [] Counsel to resubmit a corrected judgment deleting the reference to restitution and setting forth the interest rate as an order.

On February 28, 2006, Judge Kaplan entered the following default judgment. This cause came on for default hearing on January 14, 2005, before the HONORABLE LEON S. KAPLAN, Judge presiding in Department B of the above entitled court, STANLEY D. BOWMAN, appearing for plaintiff. [] It further appearing that on October 22, 2002, the Court ordered that defendant, GERALD KNAPP, was entitled to $252,173.57. It further appears the interest rate that would have been received from a major bank is 2.8% per year. [] IT IS ORDERED that cross-complainant, GERALD KNAPP have and recover judgment against cross-defendants, HAROLD J. STUTZ and EILEEN M. STUTZ in the sum of $252,173.57 plus interest at 2.8% per year from October 22, 2002 to January 14, 2006 in the amount of $23,546.54 for a total judgment in the amount of $275,720.11. [] IT IS FURTHER ORDERED that cross-complainant, GERALD KNAPP, request for attorney fees is denied.

DISCUSSION

I. Restitution Damages for the Sale of Knapps Residence

Knapp contends that Judge Kaplan erred when he found that Judge Kaddos October 22, 2002, restitution calculation of $252,173.57 included restitution for the sale of Knapps residence. Accordingly, Knapp contends, Judge Kaplan erred when he determined that Knapp was not entitled to any additional amount as restitution damages for the sale of his residence. We agree that Judge Kaplan erred.

On October 22, 2002, Judge Kaddo reserved the issue of restitution and damages for the sale of Knapps residence pending the outcome of Knapps cross-complaint. Specifically, Judge Kaddo issued the following order, IT IS HEREBY ORDERED THAT the issue of restitution and damages Re: real property located at 4903 Kingspine Rd., Rolling Hills Estates, California be reserved pending determination of the Cross-complaint filed by defendant GERALD KNAPP. The $252,173.57 that Judge Kaddo ordered the Stutzes to deposit at California Federal Bank was for money the Stutzes had levied upon from Knapps mutual funds and not for the sale of Knapps residence.

After Judge Kaplan issued his March 14, 2005, minute order awarding Knapp $252,173.57 the same amount Judge Kaddo had determined that the Stutzes had obtained from Knapps mutual funds Knapp filed a motion for clarification to determine whether Judge Kaplan had intended to omit any award of restitution for the sale of Knapps residence. At the hearing of that motion, Judge Kaplan unequivocally asserted that Judge Kaddos October 22, 2002, restitution calculation of $252,173.57 included restitution for the sale of Knapps residence. At that hearing, Judge Kaplan stated, the formula for quantifying the amount of restitution were considered in prior rulings, such as the October 22, 02 award of 252,173.57 from Judge Kaddo. Knapps attorney asked to make a statement, and he and Judge Kaplan engaged in the following discussion:

[Knapps attorney]: The reason why I brought this motion is because the house wasnt dealt with in your tentative decision. You know, the facts show that they did take his house from him and he received no compensation back in the way of restitution. In fact, --

The Court: Sir, believe me, I understand that. The question is: youre asking current fair market value.

[Knapps attorney]: Im asking for any value.

The Court: Theres a prior ruling, sir, that I just cited that gave a dollar amount.

[Knapps attorney]: It gave nothing for the house. Nothing has been awarded for the house. All the money that came was for accounts they had taken, the money they had actually taken out of checking and savings accounts. Nothing has been awarded for the house, and thats what I want to point out.

It seems like your decision didnt take into consideration the fact that the house was worth $200,000 or they got $200,000 for the house at the time they took the house and sold it. None of that was ever given back. The only amount that has been awarded back to him is for cash actually taken out of bank accounts.

The Court: Yes. But the providence was what? It all harkens back to the house.

Ill review it and see if I missed something. I dont think so.

[Knapps attorney]: They took the house.

The Court: The value of the house at the time was 250 something. Youre saying what the court ought to do is give him fair market value, because its the value of the house. And Im saying that was quantified once already. There is a ruling that has been made and you dont like it.

Sir, Ill review it and Ill see if theres something flawed.

[Knapps attorney]: All Im saying is no value has ever been given to him for the house.

The Court: All Im saying is something different.

Ill review it to be sure I didnt miss it.

In his December 9, 2005, RULING ON SUBMITTED MATTER, Judge Kaplan stood by his prior rulings, referring Knapps attorney to the courts March 14, 2005, minute order and its June 14, 2005, ruling on Knapps motion for clarification. Judge Kaplan specifically found that No issues concerning restitution were reserved.

For reasons that do not appear in the record, Judge Kaplan believed that Judge Kaddos October 22, 2002, restitution calculation of $252,173.57 included restitution for the sale of Knapps residence. Plainly, it did not. Judge Kaplan erred when he failed to award Knapp restitution damages for the sale of his residence. This part of Knapps default judgment against the Stutzes is reversed and remanded for an award of such damages.

The Stutzes argue that Knapp may not appeal because, having had a default judgment entered in his favor, he is not an aggrieved party within the meaning of Code of Civil Procedure section 902.[7] One is considered aggrieved whose rights or interests are injuriously affected by the judgment. . . . Appellants interest must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737[97 Cal.Rptr. 385, 488 P.2d 953], citations omitted.) (Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1201.) [A] party is aggrieved by a judgment that is a victory in appearance only. (Moore v. Younger (1976) 54 Cal.App.3d 1122, 1125.) Here, the default judgment entered in Knapps favor failed to award him restitution damages and attorney fees. Accordingly, he is an aggrieved party within the meaning of Code of Civil Procedure section 902. (Crook v. Contreras, supra, 95 Cal.App.4th at p. 1201; Moore v. Younger, supra, 54 Cal.App.3d at p. 1125.)

II. Knapps Attorney Fees

Knapp contends that Judge Kaplan erred in denying him attorney fees. Knapp contends that he was entitled to an award of attorney fees under Civil Code section 1717, subdivision (a) (section 1717).[8] We agree.

A. Standard of Review

The determination of the legal basis for an award of attorney fees is a question of law which we review de novo. [Citation.] (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 424, disapproved on other grounds in Santisas v. Goodin (1998) 17 Cal.4th 599, 614, fn. 8.)

B. Mutuality of Remedy Under Section 1717

Attorney fees are not recoverable as costs unless expressly authorized by statute or contract. (Code Civ. Proc., 1021; Reynolds Metal Co. v. Alperson (1979) 25 Cal.3d 124, 127 [158 Cal.Rptr. 1, 599 P.2d 83].) Where a contract specifically provides for an award of attorney fees incurred to enforce the provisions of the contract, the prevailing party in an action on the contract is entitled to reasonable attorney fees. (Civ. Code,  1717, subd. (a);Reynolds Metal Co. v. Alperson, supra, 25 Cal.3d at p. 128.) [I]n an action on a contract between a signatory plaintiff and a signatory defendant to enforce its terms, [Civil Code section 1717] make[s] reciprocal any provision awarding attorney fees regardless of any wording purporting to make the right unilateral. (Wilsons Heating & Air Conditioning v. Wells Fargo Bank (1988) 202 Cal.App.3d 1326, 1332 [249 Cal.Rptr. 553].) As a general rule, attorney fees are awarded only when the action involves a claim covered by a contractual attorney fee provision and the lawsuit is between signatories to the contract. (Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 544-545 [20 Cal.Rptr.2d 193].) (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 379-380, footnotes omitted (Real Property).)
Under some circumstances, however, the reciprocity principles of Civil Code section 1717 will be applied in actions involving signatory and nonsignatory parties. (Reynolds Metal Co. v. Alperson, supra, 25 Cal.3d at p. 128.) Its purposes require [Civil Code] section 1717 be interpreted to further 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 attorneys fees should he prevail in enforcing the contractual obligation against the defendant. (Ibid.) (Real Property, supra, 25 Cal.App.4th at p. 380.)

[T]he fundamental purpose of section 1717 [is] to insure mutuality of a prevailing partys access to an award of attorney fees. As long as an action involves a contract, and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit, the other party should also be entitled to attorney fees if it prevails, even if it does so by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract. (Reynolds Metal Co. v. Alperson, supra, 25 Cal.3d at pp. 128-129; Jones v. Drain [(1983)] 149 Cal.App.3d [484,] 486-490; Care Constr., Inc. v. Century Convalescent Centers, Inc. [(1976)] 54 Cal.App.3d [701,] 705-707.) As stated in Jones v. Drain, supra, 149 Cal.App.3d at pages 489-490: The courts have consistently held that the award of Civil Code section 1717 contractual attorneys fees is to be governed by equitable principles. [Citations.] We believe that it is extraordinarily inequitable to deny a party who successfully defends an action on a contract, which claims attorneys fees, the right to recover its attorneys fees and costs simply because the party initiating the case has filed a frivolous lawsuit. As a consequence, we find that a prevailing defendant sued for breach of contract containing an attorneys fees provision and having had to defend the contract cause of action is entitled to recover its own attorneys fees and costs therefor, even though the trial court finds no contract existed. (North Associates v. Bell (1986) 184 Cal.App.3d 860, 865.)

The Stutzes original complaint asserts causes of action for breach of contract and fraud. [9] Knapp is a named defendant in the breach of contract cause of action. That cause of action alleges that Knapp, an owner of Chasers Bar and Grill, benefited, as a third party beneficiary, from the three year loan agreement and $60,000 promissory note. Attached as exhibits to the complaint are the three year loan agreement and the $60,000 promissory note. Knapp is not a signatory to the loan agreement or to the promissory note. The loan agreement itself does not contain an attorney fees provision, but the promissory note, signed by Cloyd, contains an attorney fees provision that states, If this Note is not paid when due, I promise to pay in addition all costs of collection and reasonable attorneys fees incurred by the holder hereof on account of such collection, whether or not suit is filed thereon. The breach of contract cause of action alleges that Cloyd doing business as Chasers Bar and Grill agreed, pursuant to the promissory note, to pay attorney fees if the Stutzes were required to institute legal action to collect on the note or to seek damages for breach of the loan agreement. It is apparently pursuant to the attorney fees provision in the promissory note and the allegations in the breach of contract cause of action that the Stutzes were awarded $10,000 in attorney fees against all defendants, including Knapp, as part of their subsequently overturned default judgment.

The Stutzes first amended complaint which was stricken asserts causes of action for breach of contract, conspiracy to breach a contract, unjust enrichment, fraud and deceit, and conspiracy. [10] In its prayer for relief, the first amended complaint seeks attorney fees pursuant to contract. The breach of contract cause of action, however, does not name Knapp as a defendant (although it names Chasers Bar and Grill, which the first amended complaint alleges Knapp owned).

Knapp attached to his declaration in support of the default judgment, a copy of the $12,000 promissory note dated June 4, 1993, signed by Cloyd in favor of the Stutzes. That promissory note contains an attorney fees provision that provides, Should suit be commenced to collect this note or any portion thereof, such sum as the Court may deem reasonable shall be added hereto as attorneys fees.

In his March 14, 2005, minute order, Judge Kaplan denied Knapps request for attorney fees on the grounds that the original contract contains no such applicable provision and moving party is not a party to the contract. Assuming that by original contract Judge Kaplan was referring to the three year loan agreement, the finding that the original contract did not contain an attorney fees provision is incorrect. The three year loan agreement referred to the terms of, and attached, the $60,000 promissory note, which contained the above quoted attorney fees provision. Again assuming that the original contract is the three year loan agreement, Judge Kaplan is correct that Knapp was not a signatory. The fact that Knapp was not a signatory to the loan agreement, however, does not automatically bar an award of attorney fees to Knapp.

Under section 1717, Knapp is entitled to recover his attorney fees incurred in defending against the breach of contract cause of action in the Stutzes original complaintif the Stutzes would have been entitled to recover their attorney fees if they had prevailed. (Real Property, supra, 25 Cal.App.4th at p. 380; North Associates v. Bell, supra, 184 Cal.App.3d at p. 865.) Because the breach of contract cause of action alleges that Cloyd doing business as Chasers Bar and Grill agreed to pay attorney fees, it might appear that this cause of action sought to recover attorney fees only from Cloyd and not also from Knapp. As noted above, however, the trial court awarded the Stutzes $10,000 in attorney fees against Knapp in connection with the Stutzes subsequently overturned default judgment. Presumably this would be based on a theory that Knapp was a party to the agreement, including the note, as a third party beneficiary. There is no indication in the record that the Stutzes viewed such an award as inconsistent with the theory of recoverypleaded in their breach of contract cause of action. Thus, properly construed, the breach of contract cause of action in the Stutzes original complaint sought to recover attorney fees from Knapp based on the attorney fees provision in the promissory note. (See Real Property, supra, 25 Cal.App.4th at pp. 382-383 [signatory to contract sued by nonsignatory for breach of contract under a third party beneficiary theory was entitled to attorney fees as prevailing party when there was a sufficient nexus between the third party beneficiary and the signatory to the contract]; but see Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 680 [third party beneficiary was not entitled to attorney fees where the fee agreement did not indicate that the parties intended to benefit the third party beneficiary with the fee-shifting provision or that the parties intended to give the third party beneficiary the right to seek fees from a signatory to the contract].) The trial court did issue a judgment against Knapp for attorney fees. It does seem problematic as to whether the Stutzes were entitled to attorney fees from Knapp. But the Stutzes did claim such fees, and had they been successful in somehow establishing that Knapp was liable under the agreement and promissory note, they might be able to recover attorney fees.[11] Thus, under section 1717, Knapp is entitled to attorney fees for his defense against the contract cause of action in the Stutzes original complaint. (Real Property, supra, 25 Cal.App.4th at p. 380; North Associates v. Bell, supra, 184 Cal.App.3d at p. 865.)

The Stutzes first amended complaint removed Knapp as a named defendant from the breach of contract cause of action. Because Knapp was no longer a party to the Stutzes breach of contract cause of action, it would appear that the Stutzes would not be entitled to attorney fees had they prevailed. Thus, it also appears that Knapp would not be entitled to attorney fees for his defense against the Stutzes first amended complaint. We remand to the trial court the issue of the apportionment of Knapps entitlement to attorney fees for defending against the Stutzes original and first amended complaints and the contract and tort causes of action asserted therein. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 615 citing Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at pp. 129-130 [If an action asserts both contract and tort or other noncontract claims, section 1717 applies only to attorney fees incurred to litigate the contract claims]; Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at pp. 129-130 [Attorneys 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].)

DISPOSITION

Knapps default judgment against the Stutzes is reversed to the extent that it fails to award Knapp restitution damages for the sale of his residence and to award him attorney fees. We remand this case to the trial court for an award of restitution damages for the sale of Knapps residence and attorney fees. The judgment is otherwise affirmed. Knapp is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] In his appeal, Knapp also contended that the trial court erred in sustaining cross-defendant Lennard Henkhauss demurrer to the third amended cross-complaint without leave to amend. By order dated, September 20, 2007, we dismissed this part of Knapps appeal, without prejudice, on procedural grounds.

[2] The facts concerning the Stutzes action and Cloyds and Knapps default and relief from default are taken from our opinion in Stutz v. Cloyd (2002) B150482.

[3] The Stutzes allegedly assigned to Henkhaus a $250,000 interest in their default judgment against Knapp that was to be satisfied through the sale of Knapps residence.

[4] On our own motion, we augment the record on appeal to include the trial courts minute order overruling the Stutzes demurrer.

[5] We note that although Knapps motions addressed the Stutzes complaint and answer to complaint, the operative pleadings that the trial court struck were the Stutzes first amended complaint and their answer to Knapps second amended complaint.

[6] On our own motion, we augment the record on appeal to include Knapps motions and the trial courts minute order granting those motions.

[7] Code of Civil Procedure section 902 provides, in pertinent part, Any party aggrieved may appeal in the cases prescribed in this title.

[8] Civil Code section 1717, subdivision (a) provides, in pertinent part, In any action on a contract, where the contract specifically provides that attorneys fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees in addition to other costs.

[9] On our own motion, we augment the record on appeal to include the Stutzes complaint.

[10] On our own motion, we augment the record on appeal to include the Stutzes first amended complaint.

[11] From the record before us, we cannot ascertain the theory and evidence in support of the Stutzes claims.