The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 18, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, S223536—Review Granted—March 18, 2015

This case presents the following questions: (1) Does the assertion of an agreement as an affirmative defense implicate the attorney fee provision in that agreement? (2) Does the term “action” or “proceeding” in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense?

This is an action for breach of a contract to purchase real estate. As affirmative defenses, defendants alleged the contract was illegal and that it was extinguished by novation when the parties entered into a later option agreement. Following a bench trial, the court ruled in defendants’ favor on both grounds but declined to award attorneys’ fees.

The Court of Appeal, First District, Division Two, reversed the denial of attorneys’ fees in a published opinion, Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2014) 231 Cal.App.4th 805. The court concluded the attorney fees clause applied to the novation defense because it was raised in connection with an “alleged dispute, breach, default, or misrepresentation” concerning a provision of the parties’ agreement. Second, citing Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263 and Gil v. Mansano (2004) 121 Cal.App.4th 739, the court held the assertion of an affirmative defense constituted an “action” or “proceeding” under Civil Code section 1717.

Justice Richman dissented, disagreeing that the novation defense arose out of a dispute involving the parties’ agreement.

Yoonessi v. Toyota Motor Sales USA, S223679—Review Granted & Held—March 18, 2015

The court ordered briefing deferred pending decision in John v. Superior Court, S222726, which presents the following issue: Must a defendant who has been declared a vexatious litigant and is subject to a prefiling order (Code Civ. Proc., § 391.7, subd. (a)) obtain leave of the presiding judge or justice before filing an appeal from an adverse judgment? The Second District Court of Appeal dismissed the appeal.

Review Denied (with dissenting justices)

None.

Depublished

None.