Court of Appeal, First District, Division 5, California.

DILLARD TRUCKING, Plaintiff and Respondent,

v.

Gurdial ATHWAL, Defendant and Appellant.

Jan. 17, 2008.

JONES, P.J.

Gurdial Athwal appeals contending the trial court erred when it ordered him to pay attorney fees to respondent Dillard Trucking (Dillard). We disagree and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dillard is a trucking firm. Athwal operates his own truck. In June 2003, Dillard entered into a contract with Athwal under which Athwal agreed to act as a subhauler for Dillard. In March 2004, Athwal’s driver was towing a load on a Dillard trailer when the brakes caught fire. The trailer was destroyed.

Dillard filed a complaint against Athwal seeking damages for the trailer. Athwal filed a cross-complaint against Dillard seeking unpaid subhauling fees. Dillard conceded it owed Athwal $25,262.04 in unpaid subhauling fees, so the case went to trial primarily on the issue of whether Dillard was entitled to compensation for the damaged trailer. After hearing the evidence presented, the court awarded Dillard $25,877.42 for damage to the trailer, plus $3,920.61 in prejudgment interest for a total of $29,798.03. The court also awarded Athwal $25,262.04 in unpaid subhauling fees, plus $5,678.84 in prejudgment interest for a total of $30,940.88. Offsetting the amount Dillard was awarded against the amount Athwal was awarded, the court ruled Athwal was entitled to a net award of $1,142.85.

Dillard and Athwal each filed a motion asking that they be awarded attorney fees under a fee cause contained in the June 2004 subhaul contract. Dillard and Athwal each argued they had prevailed in the litigation. The trial court ruled Dillard was the prevailing party and awarded it $24,778 in attorney fees.

II. DISCUSSION

The fee clause in the June 2004 contract between Dillard and Athwal states as follows:

“Subhauler is responsible for attorney’s fees, which Prime Carrier may suffer or incur, from any act or omission of Subhauler or because of the failure of Subhauler’s insurance carrier to defend any legal action against Prime Carrier arising out of such action or incident.”

Athwal now contends the trial court could not properly award Dillard fees because Civil Code section 1717 only permits such an award where a contract “specifically provides” for an award of fees, and that condition was not satisfied in this case.

Civil Code section 1717 states, “In any action on a contract, where the contract specifically provides that attorney’s 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 attorney’s fees in addition to other costs.”

We reject Athwal’s argument for two reasons. First, Athwal never raised this issue in the court below. Indeed, Athwal himself sought an award of fees under the clause in question. Whether we view appellant’s argument as new, or as a belated attempt to change his theory of the case, appellant has either forfeited or is barred from raising the issue on appeal. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1,Coy v. E.F. Hutton & Co. (1941) 44 Cal.App.2d 386, 391-392.) Second, Athwal has misinterpreted the code section upon which he relies. By its terms, “Civil Code section 1717 has a limited application. It covers only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract. Its only effect is to make an otherwise unilateral right to attorney fees reciprocally binding upon all parties to actions to enforce the contract.”(Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342. original italics.) Thus, contrary to Athwal’s argument, a party need not satisfy Civil Code section 1717 to obtain an award of fees.

Next, Athwal argues the trial court could not validly award attorney fees because the clause at issue was merely an indemnity provision. We reject this argument because it is based on a misquotation of the clause at issue. Athwal cites the clause as stating, “Subhauler is responsible for Attorney’s fees, which Prime Carrier may suffer or incur, from any act or omission of Subhauler because of the failure of Subhauler’s insurance carrier to defend any legal action against Prime Carrier arising out of such action or incident.”In fact Athwal has omitted the word “or” between the second “Subhauler” and “because.” When the clause is read accurately and completely, it states that Athwal must pay attorney fees caused by Athwal’s “act or omission” or fees caused by the failure to Athwal’s insurance carrier to defend any legal action that might be filed.

Next in a variation of the argument just discussed, Athwal argues the clause is “ambiguous” and that it “cannot reasonably be interpreted to be other than an indemnity provision.”However, again this argument is based on a misquotation of the fee clause at issue. When the clause is read accurately, it is not just an indemnity clause.

Finally, Athwal contends the trial court should not have awarded Dillard fees because “there was no clearly prevailing party.”We disagree. Our Supreme Court has said that the prevailing party for purposes of litigation is the party who achieves its litigation objectives as disclosed by the pleadings, trial briefs, and similar sources. (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.) When determining litigation success, courts should respect substance rather than form and should be guided by equitable considerations. (Id. at p. 877.)

Here, Dillard sought compensation from Athwal for damage to its trailer. Dillard’s trial brief indicated that it was seeking $26,399 .52. While the court ultimately awarded Dillard slightly less than that amount, ($25,877.42,) by any measure Dillard obtained a clear win. On the other hand, while Athwal sought and was awarded $25,262 .04 in unpaid subhaul fees, Dillard conceded those fees were owed. On this record, we conclude the trial court did not abuse its discretion when it ruled Dillard was in fact the prevailing party. (Cf. Epstein v. Frank (1981) 125 Cal.App.3d 111, 124,“the party who prevails on all of the issues which were actually litigated at the trial will be deemed the prevailing party even though the judgment may be entered in favor of the opposing party.”] )

III. DISPOSITION

The judgment is affirmed.

We concur: SIMONS and STEVENS, J.FN*

FN* Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Cal.App. 1 Dist.,2008.

Dillard Trucking v. Athwal