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Court of Appeal, Fourth District, Division 2, California.

CANAL-RANDOLPH ANAHEIM, INC., a California Corporation, Plaintiff and Appellant, v. John Patrick MOORE et al., Defendants and Respondents.

Civ. 17688.

Decided: March 09, 1978

Respondents have filed petitions for rehearing making several new contentions and citing several additional authorities. While we do not ordinarily consider arguments and authorities cited for the first time in a petition for rehearing, we deem it appropriate to do so in this instance.

Respondents' suggestion we should not have passed upon the propriety of the attorney fee awards because appellant did not complain thereof is both mistaken and unsound. Appellant appealed from the entire judgment of which the attorney fee awards are a part. Appellant complained expressly in both its opening and closing briefs that Wilkoski should not have been awarded attorney fees in view of his disavowal of the Maher lease. The propriety of both attorney fee awards was inquired into and argued at oral argument. In any event, a determination of the rights of the parties to recovery of attorney fees is necessary to a resolution of the dispute between the parties, and this court has the inherent power to decide any issue deemed necessary for a proper disposition of the case whether or not it was originally presented or briefed by the parties. (Philbrook v. Randall, 195 Cal. 95, 104-105, 231 P. 739; Schubert v. Lowe, 193 Cal. 291, 294, 223 P. 550; Burns v. Ross, 190 Cal. 269, 276, 212 P. 17.)

Although that was not their position at oral argument, respondents now urge that under the language of the attorney fee provision in the Maher lease they were not required to be a party to the lease to recover attorney fees, that the trial court so found and that we are bound by this finding. Respondents are wrong on all counts.

The trial court made no such express finding nor even an express conclusion to this effect. However, assuming that such a finding or conclusion may be inferred, it is patently incorrect and we are not bound by it.

The argument respondents now make is based entirely on the language of the provision. In the absence of conflicting extrinsic evidence, the interpretation of the language of a writing is a question of law upon which the reviewing court is required to exercise its independent judgment. (Estate of Dodge, 6 Cal.3d 311, 318, 98 Cal.Rptr. 801, 491 P.2d 385; Parsons v. Bristol Development Co., 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839.) The interpretation made by the trial court is not binding on the reviewing court even if it is reasonable and based on conflicting inferences from extrinsic evidence if the extrinsic evidence is not in conflict. (Estate of Dodge, supra.)

The attorney fee provision in the Maher lease reads in pertinent part: “In the event of any litigation between Tenant and Lessor to enforce any provision of this Lease or any right of either party hereto, the unsuccessful party to such litigation shall pay to the successful party all costs and expenses including reasonable attorney's fees, incurred therein.” (Emphasis added.) Respondents urge the words “to such litigation” indicate the provision means that in any litigation between the tenant and the lessor, the successful party shall recover attorney fees whether he is a party to the lease or not. Not so. The quoted language is a garden variety attorney fee provision and indicates no intention of conferring the right to recover attorney fees on persons not a party to the lease. The words, “the unsuccessful party to such litigation” and “the successful party” both refer back to their antecedents, “either party hereto,” and “Tenant and Lessor.” If “the unsuccessful party to such litigation” is interpreted as referring to a person not a party to the lease, an absurdity results; the parties to the lease would be attempting to bind a person not a party to the lease to pay attorney fees. The interpretation urged by respondents is patently incorrect.

Respondents do quite properly call to our attention the By the Court opinion of this court in Care Constr., Inc. v. Century Convalescent Centers, Inc., 54 Cal.App.3d 701, 126 Cal.Rptr. 761, in which Babcock v. Omansky, 31 Cal.App.3d 625, 107 Cal.Rptr. 512 is cited as additional support for the decision. In our opinion in the case at bench, of course, we disagreed with Babcock v. Omansky insofar as it indicated one who is not a party to a contract may recover attorney fees pursuant to the contract under Civil Code section 1717.

In the Care Construction case the parties to the litigation were both parties to the lease which contained the attorney fee provision. The problem was that the lessee prevailed in the litigation on the basis there was no enforceable lease. The question was whether a party to a lease containing a unilateral attorney fee provision may recover attorney fees under Civil Code section 1717 if he succeeds in defending on the basis that the lease is unenforceable. Our holding that he may is explicitly set forth in the last substantive paragraph of the opinion. (54 Cal.App.3d at p. 707, 126 Cal.Rptr. 761.) We fully adhere thereto. However, out citation of Babcock v. Omansky for additional support was both improvident and unnecessary to the decision. Accordingly, that portion of the opinion in Care Constr. Inc. v. Century Convalescent Centers, Inc., supra, 54 Cal.App.3d at p. 706, 126 Cal.Rptr. 761, citing Babcock v. Omansky as additional support is disapproved.

Finally, with respect to attorney fees, respondent corporation asserts there is an inconsistency in our holding it cannot recover attorney fees under the Maher lease and at the same time holding appellant may recover interest under the Maher lease. No such inconsistency exists, for our opinion contains no holding that appellant is entitled to recover interest from the corporation. What we held in respect to interest was that appellant was permitted to include in its three-day notice to pay rent or quit the amount claimed due as interest under the lease, the notice being directed to the remaining partners of the Maher law firm. We expressed no opinion of the liability of the corporation for either rent or interest on unpaid rent, since, as we pointed out, the trial court made no finding as to the status of the corporation. Neither did we express any opinion on the standing or right of the corporation to question the accuracy of the notice. (Cf. Code Civ.Proc., s 1164).

Turning to another issue, respondent corporation, citing Civil Code section 1501 and Code of Civil Procedure section 2076, contends that appellant waived any objection to the checks delivered to it by the corporation because it failed to object to the checks at the time they were delivered to it. In the first place, Code of Civil Procedure section 2076 applies when a tender has been made. Here, the trial court expressly declined to make a finding the checks were tendered. In any event, it is well established that the waiver provided for by these statutory provisions does not apply to the requirement that a person offering to perform must be willing and able to perform (Civ.Code, s 1495) and that a failure to object to a tender or offer to perform on the ground of inability to perform does not waive that requirement. (Allen v. Chatfield, 172 Cal. 60, 68-69, 156 P. 47; Doak v. Bruson, 152 Cal. 17, 21-22, 91 P. 1001; McCarthy v. Grider, 72 Cal.App. 393, 402-403, 237 P. 751.)

The remaining contentions and arguments in the petitions for reconsideration are either irrelevant to any holding we have made or without merit. In either event they require no discussion. We do observe, however, that respondent corporation's reliance on the substantial evidence rule is entirely misplaced and misapprehends the basis for the reversal. We did not hold a single finding of the trial court was not supported by substantial evidence. We held the trial court failed to find on material questions of fact so that its legal conclusions, sometimes labeled as findings of fact, and the judgment were not supported by the findings.

Respondents' petitions for reconsideration are denied.

KAUFMAN, Acting Presiding Justice.

McDANIEL and MORRIS, JJ., concur.

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