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Plaintiffs, a homeowner and her daughter, filed a quiet title action against defendant buyers claiming their written contract was not valid. The jury found the contract invalid and judgment was entered for plaintiffs. The trial court denied plaintiffs’ request for attorney fees as the prevailing party under Cal. Civ. Code § 1717. After an unsuccessful cross-appeal before the instant appellate court, plaintiffs filed a petition for rehearing.

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In their cross-appeal, plaintiffs claimed that, even though they asserted the underlying contract was not valid and did not fulfill the contractual condition precedent of seeking mediation before filing suit, they were entitled to attorney fees under the contract since they would have been liable for attorney fees had the buyers prevailed. The instant court disagreed. In their petition for rehearing, plaintiffs sought a modification of the court’s decision to avoid a conflict in the interpretation of § 1717 with the decision in Wong v. Thrifty Corp. The instant court concluded the Wong decision was distinguishable because (1) the attorney fees provision in Wong was unilateral while the instant provisions applied equally to the parties, and (2) the Wong case did not involve the satisfaction of a condition precedent completely within the control of the party requesting attorney fees. The court held that the enforcement of the contractual condition precedent to the recovery of attorney fees did not conflict with the concept of mutuality of remedy embodied in § 1717. This interpretation served the public policy goal of promoting mediation as a preferable alternative to trial.


Plaintiffs’ petition for rehearing or modification of opinion was denied.