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Specific Performance
Availability of a Decree of Specific Performance
(Charnley v. Blackburn)
 

Attorney's Fees-Real Property Purchase Agreement-Lis Pendis Action Not Bar
(Charnley v. Blackburn)
 

II.  The Award of Attorney's Fees

                        Charnley contends the trial court erred in awarding attorney's fees to the Blackburns and Thomases because they failed to satisfy a contractual condition precedent for the recovery of fees.  He argues that the couples were required to mediate their claims prior to filing suit in order to preserve their right to seek attorney's fees.  On appeal, we review the determination of the legal basis for an award of attorney fees de novo as a question of law.  (Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 431.)   

                        The parties' purchase agreement provides that in any action arising out of the agreement, "the prevailing Buyer or Seller shall be entitled to reasonable attorney's fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 21A."  

                        Paragraph 21A requires the parties to mediate their disputes prior to initiating an action to preserve the entitlement to attorney's fees.  Paragraph 21A provides in pertinent part:  "21. DISPUTE RESOLUTION:  [¶]  A.  MEDIATION:  Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to . . . court action, subject to paragraphs 21C and D below. . . .  If any party commences an action based on a dispute or claim to which this paragraph applies, without first attempting to resolve the matter through mediation, then that party shall not be entitled to recover attorney's fees, even if they would otherwise be available to that party in any such action. . . ."

                        Paragraph 21C sets forth exemptions to the requirement of mediation.  Paragraph 21C provides in pertinent part:  "The following matters are excluded from Mediation and Arbitration hereunder . . . .  The filing of a court action to enable the recording of a notice of pending action . . . or other provisional remedies, shall not constitute a violation of the mediation and arbitration provisions."  (Italics added.)

                        In granting the motion for attorney's fees, the trial court ruled that the purchase agreements expressly exempted the couples from the mediation requirement because they filed an action to enable the recording of a notice of lis pendens.  Alternatively, the court ruled that any attempt to mediate the dispute would have been futile.  The court reasoned:  "[T]he filing of an action to enable the recording of a notice of pending action is not a violation of the mediation provision.  The Blackburns filed a Notice of Lis Pendens on October 12, 2001; the Thomases filed theirs on March 27, 2002.  Prudent practice dictated this result.  They wanted specific performance of agreements for the purchase of real property.  Had they not filed them, defendant would have been free to sell to third parties and specific performance might not have been available.  [¶]  Moreover, mediation was conducted pursuant to this court's practices.  Although an extremely effective mediator-Judge Burke-mediated the cases after filing and before trial, he was unable to reach agreement.  This is strong evidence that any attempt at mediation prior to filing would have been futile."

                        Here, the parties filed a lawsuit and recorded a lis pendens on their lots in order to protect their homes from resale to a bona fide purchaser in a booming real estate market and to preserve their right to seek specific performance.  Under the plain and unambiguous provisions of the purchase agreements, they were exempt from the mediation requirement.  We agree with the trial court that the couples were entitled to attorney's fees as the prevailing parties.

                        We reject Charnley's contention that the trial court should have made a finding, either at trial or at the attorney's fee hearing, that prior to recording their lis pendens the plaintiffs had a good faith reason to believe that Charnley was going to sell the parcels out from under them imminently.  The language of paragraph 21C sets forth no such restriction in order preserve the entitlement to attorney's fees.  The language expressly states that the filing of an action to enable the recording of a lis pendens is not a violation of the mediation requirement.  As the Blackburns and Thomases observe, if the drafters of the standard CAR purchase agreement intended the "lis pendens" exception to apply only when an anticipatory breach is documented, the drafters could have easily said so in the agreement.  (See, e.g., In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1440-1441 [rejecting interpretation of a marital settlement agreement that would have added qualifying language to an unambiguous provision].)

                        Leamon v. Krajkiewcz, supra, 107 Cal.App.4th 424, cited by Charnley, is inapposite.  There, the Court of Appeal interpreted a similar real estate purchase agreement and affirmed the trial court's order denying a seller's request for attorney's fees on the ground that the seller had failed to seek mediation prior to filing suit.  Leamon did not address the particular clause of the purchase agreement at issue here which allows the buyers to file suit without first seeking mediation to enable the recording of a lis pendens.

                        Charnley also contends that the couples' right to obtain attorney's fees is negated by technical defects in their service and filing (not recording) of the lis pendens placed on each of their lots.  Charnley failed to raise this argument in the court below in opposition to the motion for attorney's fees.  Additionally, he failed to move to expunge the lis pendens recorded by the Blackburns and Thomases.  We conclude, therefore, that Charnley has waived this issue on appeal.  (Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 372.)