Gil v. Mansano, 17 Cal. Rptr. 3d 420 (Cal. Ct. App. 2004). · Go Syfert
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Gil v. Mansano, 17 Cal. Rptr. 3d 420 (Cal. Ct. App. 2004). Cases Citing This Book View Copy Cite
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cited 3× by 2 distinct cases, 2009–2024 · …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 prevailin… at p. 743 ✓
cited 3× by 2 distinct cases, 2013–2018 · 2 courts · …where a contract authorizes an award of attorney fees in an action to enforce any provision of the contract, tort claims are not covered. ✓
133 citation events (133 in the last 25 years) across 11 distinct courts.
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 41 distinct citers. How cited ↗
examined Cited as authority (quoted) Eagle Jets, LLC. v. Atlanta Jet, Inc. (2×)
Ga. Ct. App. · 2018 · signal: see · quote attribution · 2 verbatim quotes · confidence high
where a contract authorizes an award of attorney fees in an action to enforce any provision of the contract, tort claims are not covered.
discussed Cited as authority (rule) YCS Investments v. County of Santa Clara CA6
Cal. Ct. App. · 2026 · confidence medium
(Gil, supra, 121 Cal.App.4th at p. 743 [“ ‘As to tort claims, the question of whether to award attorney[] fees turns on the language of the contractual attorney[] fee provision . . . .’ ”].) We therefore conclude that, under the plain language of the settlement agreement’s fees provision, fees may be awarded on YCS’s negligent misrepresentation cause of action because it was necessary for the County to enforce the agreement’s damages waiver in response to the $6 million in damages that YCS sought on that cause of action.
discussed Cited as authority (rule) BMO Bank N.A. v. Singh
E.D. Cal. · 2025 · confidence medium
Code § 1021 11 (“Except as attorney’s fees are specifically provided for by statute, the measure and mode of 12 compensation of attorneys and counselors at law is left to the agreement, express or implied, of 13 the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter 14 provided.”); Gil v. Mansano, 121 Cal. App. 4th 739, 742-43 (2004).
cited Cited as authority (rule) BMO Bank N.A. v. SBFS Trucking, Inc.
E.D. Cal. · 2025 · confidence medium
Code 5 § 1021; Gil v. Mansano, 121 Cal. App. 4th 739, 742-43 (2004); Cap.
discussed Cited as authority (rule) BMO Bank N.A. v. Kular Transportation Inc
E.D. Cal. · 2025 · confidence medium
Code 19 § 1021 (“Except as attorney’s fees are specifically provided for by statute, the measure and mode 20 of compensation of attorneys and counselors at law is left to the agreement, express or implied, of 21 the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter 22 provided.”); Gil v. Mansano, 121 Cal. App. 4th 739, 742-43 (2004); Cap.
discussed Cited as authority (rule) BMO Bank N.A. v. Lala Trucking Inc
E.D. Cal. · 2025 · confidence medium
Code § 1021 (“Except as attorney’s fees are specifically provided for by statute, 1 the measure and mode of compensation of attorneys and counselors at law is left to the 2 agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to 3 their costs, as hereinafter provided.”); Gil v. Mansano, 121 Cal. App. 4th 739, 742-43 (2004); 4 Cap.
discussed Cited as authority (rule) BMO Bank N.A. v. Sunshine Trucking LLC
E.D. Cal. · 2025 · confidence medium
Code § 1021 (“Except as 12 attorney’s fees are specifically provided for by statute, the measure and mode of compensation of 13 attorneys and counselors at law is left to the agreement, express or implied, of the parties; but 14 parties to actions or proceedings are entitled to their costs, as hereinafter provided.”); Gil v. 15 Mansano, 121 Cal. App. 4th 739, 742-43 (2004).
discussed Cited as authority (rule) BMO Bank N.A. v. Chahal Roadlines Inc
E.D. Cal. · 2024 · confidence medium
Code § 1021 21 (“Except as attorney’s fees are specifically provided for by statute, the measure and mode of 22 compensation of attorneys and counselors at law is left to the agreement, express or implied, of 23 the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter 24 provided.”); Gil v. Mansano, 121 Cal. App. 4th 739, 742-43 (2004).
discussed Cited as authority (rule) Konkov v. Doubson CA6
Cal. Ct. App. · 2024 · confidence medium
(Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 (Gil).) “ ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation....
discussed Cited as authority (rule) Smith v. Guillosson CA2/2
Cal. Ct. App. · 2024 · confidence medium
(See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [“It is . . . solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of 4 extrinsic evidence”]; Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 [“If the parties do not present extrinsic evidence to interpret the attorney fee provision of a contract, the appellate court determines de novo whether the contractual attorney fee provision entitles the prevailing party to attorney fees”].) II.
discussed Cited as authority (rule) BMO Harris Bank N.A. v. Laddi Truck Lines Inc.
E.D. Cal. · 2023 · confidence medium
Code § 1021 (“Except as attorney’s fees are specifically provided 28 for by statute, the measure and mode of compensation of attorneys and counselors at law is left to 1 the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled 2 to their costs, as hereinafter provided.”); Gil v. Mansano, 121 Cal. App. 4th 739, 742-43 (2004); 3 Cap.
discussed Cited as authority (rule) Shetty v. Doshi CA2/4
Cal. Ct. App. · 2023 · confidence medium
“Civil Code section 1717 does not apply to tort claims; it determines which party, if any, is entitled to attorneys’ fees on a contract claim only. [Citations.] As to tort claims, the question of whether to award attorneys’ fees turns on the language of the contractual attorneys’ fee provision, i.e., whether the party seeking fees has ‘prevailed’ within the meaning of the provision and whether the type of claim is within the scope of the provision.” (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708 .) “If a contractual attorney fee provision is phrased br…
discussed Cited as authority (rule) BMO Harris Bank N.A. v. Singh
E.D. Cal. · 2023 · confidence medium
Code 23 § 1021 (“Except as attorney’s fees are specifically provided for by statute, the measure and mode 24 of compensation of attorneys and counselors at law is left to the agreement, express or implied, of 25 the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter 26 provided.”); Gil v. Mansano, 121 Cal. App. 4th 739, 742-43 (2004); Cap.
discussed Cited as authority (rule) Walter v. Estate Strategies CA2/6 (2×)
Cal. Ct. App. · 2022 · confidence medium
The normal rules of appellate review apply to an order granting or denying attorney fees; i.e., the order is presumed correct, all intendments and presumptions are indulged to support the order, conflicts in the evidence are resolved in favor of the prevailing party, and the trial court’s resolution of factual disputes is conclusive. [Citation.]” (Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010 , 1016–1017.) 40 “[A] broadly phrased contractual attorney fee provision may support an award to the prevailing party in a tort action.” (Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 (…
discussed Cited as authority (rule) Christopher Cardinal v. John Lupo
9th Cir. · 2021 · confidence medium
Under California contract law, the right to recover attorney’s fees for tort claims turns on “whether the party seeking fees has ‘prevailed’ within the meaning of the [applicable contractual] provision.” Gil v. Mansano, 121 Cal. App. 4th 739, 743 (2004).
discussed Cited as authority (rule) Khan v. Shim
Cal. Ct. App. · 2016 · confidence medium
(Gil v. Mansano (2004) 121 Cal.App.4th 739, 742 [ 17 Cal.Rptr.3d 420 ].) *61 Our responsibility here, of course, is to interpret the contract that these parties agreed to—not to mechanistically decide the issue based on whether we consider the fee provision to be broad or narrow in a general sense.
discussed Cited as authority (rule) LTL Commercial v. Hammer IRP LTL Assoc. CA2/2
Cal. Ct. App. · 2016 · confidence medium
In Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 711-712 (Exxess Electronixx), the court held that a civil defendant was not entitled to contractual attorney’s fees under a provision applying when “‘any Party . . . brings an action or proceeding to enforce the terms’” of that contract when that defendant raised the contract’s “as is” clause as a defense to the plaintiff’s tort claims; the court reasoned that it could not “equate raising a ‘defense’ with bringing an ‘action’ or ‘proceeding.’” Gil v. Mansano (2004) 121 Cal.App.4th 739, 742-…
discussed Cited as authority (rule) Kern Health Systems v. Allied Management Group Investigation Unit CA2/7s
Cal. Ct. App. · 2016 · confidence medium
(Patel v. Liebermensch (2008) 45 Cal.4th 344, 348, fn. 1 [“[w]hether a contract is certain enough to be enforced is a question of law for the court”]; Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 [“[i]f the parties do not present extrinsic evidence to interpret the attorney fee provision of a contract, the appellate court determines de novo whether the contractual attorney fee 6 Section 1717, subdivision (a), provides: “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 …
discussed Cited as authority (rule) Ins. Co. of the West v. United Security Bank CA5
Cal. Ct. App. · 2016 · confidence medium
(Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 (Gil).) A broadly phrased attorney fee provision may support an award to the prevailing party on a tort cause of action, if the party seeking fees has prevailed within the meaning of the provision and if the type of claim is within the scope of the provision.
discussed Cited as authority (rule) 511 S. Park View, Inc. v. Tsantis
Cal. App. Dep’t Super. Ct. · 2015 · confidence medium
(Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 [ 17 Cal.Rptr.3d 420 ]; see Santisas v. Goodin (1998) 17 Cal.4th 599, 608 [ 71 Cal.Rptr.2d 830 , 951 P.2d 399 ].) “ ‘The Supreme Court has synthesized the applicable contract interpretation principles in the attorney fee clause context thusly; “ ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. [Citation.] Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citation.] The “clear and explicit” mea…
discussed Cited as authority (rule) Mountain Air v. Sundowner Towers (2×)
Cal. Ct. App. · 2014 · confidence medium
The majority has defeated, not enforced, the 16 overall meaning of the release.” (Gil, supra, 121 Cal.App.4th at p. 746 (dis. opn. of Armstrong, J.).)10 Justice Armstrong went on to detail different meanings and scopes ascribed to the word “action” in statutes and case law, concluding that “ ‘action’ is not limited and precise, but general and inclusive.” ( Gil, supra, 121 Cal.App.4th at pp. 746-747 (dis. opn. of Armstrong, J.).) He continued: “In an everyday sense, ‘action’ includes both an answer and an affirmative defense, for the simple reason that the two are in many w…
discussed Cited as authority (rule) Yan Sui v. 2176 Pacific Homeowners Associ
9th Cir. · 2014 · signal: cf. · confidence medium
Mgmt., 143 Cal.App.4th 1360 , 50 Cal.Rptr.3d 40, 56-57 (2006) (explaining that the “relevant question” to entitlement of fees “is whether the action is to enforce the rights and obligations of the parties under ... the CC & R’s”); cf. Gil v. Mansano, 121 Cal.App.4th 739 , 17 Cal.Rptr.3d 420, 424-25 (2004) (explaining that “actions to enforce” is narrow statutory language).
discussed Cited as authority (rule) Sierra Industries West v. Hosseinioum CA1/4
Cal. Ct. App. · 2014 · confidence medium
(Ibid.; see also Loube, supra, 64 Cal.App.4th at p. 429 [if “ ‘legal action or arbitration is necessary to enforce the terms of this Agreement’ ” does not include tort claims]); McKenzie v. Kaiser–Aetna (1976) 55 Cal.App.3d 84, 89 [“an action for negligent misrepresentation is not an action to enforce the provisions of a contract”]; Gil v. Mansano (2004) 121 Cal.App.4th 739, 742-743 (Gil) [“In the event an action is brought to enforce the terms of [an agreement],” such action does not include tort claims].) Here, the language of the prevailing-party attorney fees provision wa…
discussed Cited as authority (rule) Yamtob v. Alon CA2/5
Cal. Ct. App. · 2013 · confidence medium
(Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 (Mansano); Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 880 .) We may decide an appeal based on a clerk’s transcript alone if we find “an error which is manifest on the face of the record and which requires reversal.” (Cooper v. County of Los Angeles (1975) 49 Cal.App.3d 34, 40 .) The issue of the award of costs, however, does require a reporter’s transcript or suitable substitute such as a settled statement for effective appellate review.
discussed Cited as authority (rule) Brown Bark III v. Haver
Cal. Ct. App. · 2013 · confidence medium
(Santisas, supra, 17 Cal.4th at p. 615 ; Gil v. Mansano (2004) 121 Cal.App.4th 739, 742-743 (Gil).) The parties to a contract are free to agree that one 9 or more of them shall recover their attorney fees if they prevail on a tort or other noncontract claim, but the right to recover those fees depends solely on the contractual language.
discussed Cited as authority (rule) Brown Bark III v. Haver CA4/3
Cal. Ct. App. · 2013 · confidence medium
(Santisas, supra, 17 Cal.4th at p. 615 ; Gil v. Mansano (2004) 121 Cal.App.4th 739, 742-743 [ 17 Cal.Rptr.3d 420 ] (Gil).) The parties to a contract are free to agree that one or more of them shall recover their attorney fees if they prevail on a tort or other noncontract claim, but the right to recover those fees depends solely on the contractual language.
discussed Cited as authority (rule) Carmel v. Pacific Med. Towers Assn. CA4/3
Cal. Ct. App. · 2013 · confidence medium
(See Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 [“A tort claim does not enforce a contract,” and therefore does not implicate attorney fee provisions triggered by enforcement actions].) Consequently, Carmel’s tort claims and voluntary dismissal provided no basis to obtain attorney fees under section 1354 for 2 enforcement of an owners association agreement.
discussed Cited as authority (rule) Windsor Pacific LLC v. Samwood Co. (2×)
Cal. Ct. App. · 2013 · confidence medium
(Id. at pp. 743-744, citing Exxess, supra, 64 Cal.App.4th at p. 712 .) The majority in Gil also quoted the discussion in Exxess, supra, 64 Cal.App.4th at page 712 , footnote 15, distinguishing an “action” from a “defense.” (Gil, supra, 121 Cal.App.4th at p. 744.) 6 As in Exxess, the majority in Gil also noted that the attorney fee clause at issue was very narrowly drawn.
discussed Cited as authority (rule) In re: Daryl J. Rogers Monica E. Rogers
9th Cir. BAP · 2011 · confidence medium
California courts 10 have held that contractual language providing for fees in any 11 action arising from, or relating to, the contract is broad enough 12 to encompass recovery of attorney’s fees for tort actions. 13 Scientists, 951 P.2d at 405 ; Xuereb, 5 Cal. Rptr. 2d at 157; Gil 14 v. Mansano, 17 Cal. Rptr. 3d 420, 423 (Cal. Ct. App. 2004). 15 The bankruptcy court appeared to recognize that Patterson, 16 as prevailing party, could be entitled to attorney's fees for his 17 tort action against Rogers based on the broad language of the 18 Purchase Agreement.
discussed Cited as authority (rule) Binns v. WESTMINSTER MEMORIAL PARK
Cal. Ct. App. · 2009 · confidence medium
But for the existence of this cemetery contract, the law would not recognize any duty owed to Plaintiff, and Plaintiff would have no right to recover on any theory of liability." (9) "A tort claim does not enforce a contract. [Citation.] Where a contract authorizes an award of attorney fees in an action to enforce any provision of the contract, tort claims are not covered." ( Gil v. Mansano (2004) 121 Cal.App.4th 739, 743-744 [ 17 Cal.Rptr.3d 420 ].) Moreover, a tort action "arising out of a contact is not . . . an action `on a contract' within the meaning of [Civil Code section 1717]." ( Stou…
discussed Cited "see" Chhatrala Investments, LLC v. Elajou Investment Group, L.P. CA4/1
Cal. Ct. App. · 2021 · signal: accord · confidence high
Under any reasonable interpretation of the attorneys’ fee provision, we cannot equate raising a ‘defense’ with bringing an ‘action’ or ‘proceeding.’ By asserting a defense [to the plaintiff’s claims, the broker] did not bring an action or proceeding to enforce the lease or to declare rights under it.” (Id. at p. 712, italics added; accord Gil v. Mansano (2004) 121 Cal.App.4th 739, 741 (Gil).) Several years later, another Court of Appeal reached a different conclusion in interpreting a similar attorney fees provision.
discussed Cited "see" Orien v. Lutz
Cal. Ct. App. · 2017 · signal: see · confidence high
(Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 702-703, 709-711 (Exxess); see Gil v. Mansano (2004) 121 Cal.App.4th 739, 745 (Gil) [tort claim not “action to enforce” an agreement such to bring it within attorney fee provision].) 8 7 The circumstances would be different had defendants themselves invoked the settlement agreement and claimed plaintiff had waived her right to partition by executing it; in that case, plaintiff could rely on paragraph 11.1 to counter this argument, and likely would be in a stronger position to seek attorney fees were she to prevail. 8 We r…
discussed Cited "see" Orien v. Lutz (2×)
Cal. Ct. App. 5th · 2017 · signal: see · confidence high
Co. v. Loo (1996) 46 Cal.App.4th 1794 , 1799, 54 Cal.Rptr.2d 541 ; Thompson v. Miller (2003) 112 Cal.App.4th 327 , 336-337, 4 Cal.Rptr.3d 905 .) In contrast, when an attorney fee provision is limited to actions "to enforce the terms [of the agreement] or declare rights hereunder," courts have found this language too narrow to encompass noncontractual claims. ( Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698 , 702-703, 709-711, 75 Cal.Rptr.2d 376 ( Exxess ); see Gil v. Mansano (2004) 121 Cal.App.4th 739 , 745, 17 Cal.Rptr.3d 420 ( Gil ) [tort claim not "action to enforce" an …
discussed Cited "see" Mountain Air Enters., LLC v. Sundowner Towers, LLC (2×)
Cal. · 2017 · signal: see · confidence high
As discussed further below, Windsor Pacific rejected the contrary holdings of Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698 , 75 Cal.Rptr.2d 376 ( Exxess ) and Gil v. Mansano (2004) 121 Cal.App.4th 739 , 17 Cal.Rptr.3d 420 ( Gil ), to conclude: "To the extent that either Exxess or Gil suggests, or can be read to support the proposition, that the word 'action' does not encompass a defense, we disagree." ( Windsor Pacific , supra , 213 Cal.App.4th at p. 276 , 152 Cal.Rptr.3d 518 ; see Gil , supra , 121 Cal.App.4th at p. 747 , 17 Cal.Rptr.3d 420 (dis. opn. of Armstrong, J.).)…
discussed Cited "see" Mitsui O.S.K. Lines, Ltd. v. Seamaster Logistics, Inc. (2×)
9th Cir. · 2015 · signal: see · confidence high
See Gil v. Mansano, 121 Cal.App.4th 739 , 17 Cal.Rptr.3d 420 , 425 n. 3 (2004), as modified (Aug. 24, 2004).
discussed Cited "see" Acosta v. Kerrigan
Cal. Ct. App. · 2007 · signal: see · confidence high
See Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 [ 7 Cal.Rptr.3d 420 ] (“If the parties do not present extrinsic evidence to interpret the attorney fee provision of the contract, the appellate court determines de novo whether the contractual attorney fee provision entitles the prevailing party to attorney fees”).
discussed Cited "see" Circle Star Center Associates, L.P. v. Liberate Technologies (2×)
Cal. Ct. App. · 2007 · signal: see · confidence high
Even if a contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible.” (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912 [ 75 Cal.Rptr.2d 573 ]; see Southern Pacific Transportation Co. v. Santa Fe Pacific Pipelines, Inc. (1999) 74 Cal.App.4th 1232, 1240-1241 [ 88 Cal.Rptr.2d 777 ].) While intent is to be inferred solely from the written provisions of the contract “ ““ if possible' ” ’ ” (Gil v. Mansano (2004) 121 Cal.App.4th 739, …
discussed Cited "see, e.g." Thomas v. Lin CA2/2
Cal. Ct. App. · 2020 · signal: see also · confidence medium
(See Black’s Law Dict. (9th ed. 2009) p. 219, col. 1 [defining “bring an action” as “[t]o sue; institute legal proceedings”]; id. at p. 482, col. 2 [defining “affirmative defense” as “[a] defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s . . . claim, even if all the allegations in the complaint are true”].) “[W]hile an affirmative defense is a ‘real part of any action’ [citation], it does not, in and of itself, constitute an ‘action’ for purposes of recovering attorney fees.” (Mountain Air, supra, 3 Cal.5th at p. 753 ; see…
cited Cited "see, e.g." Cardinal v. Lupo
N.D. Cal. · 2020 · signal: see, e.g. · confidence low
See, e.g., Gil v. Mansano, 121 Cal. App. 4th 739 , 742–44 (2004). 18 1.
cited Cited "see, e.g." Cardinal v. Lupo
N.D. Cal. · 2020 · signal: see, e.g. · confidence low
See, e.g., Gil v. Mansano, 121 Cal. App. 4th 739 , 742–44 (2004).
discussed Cited "see, e.g." Rosendo Gonzalez v. Debra Johnson (2×)
9th Cir. · 2019 · signal: see also · confidence medium
Roberts v. Packard, Packard & Johnson, 159 Cal. Rptr. 3d 180, 186 (Ct. App. 2013); see also Gil v. Mansano, 17 Cal. Rptr. 3d 420, 424 (Ct. App. 2004). “[S]teps taken during pending litigation are not an ‘action’ within the meaning of section 1717.” Roberts, 159 Cal. Rptr. 3d at 186 (holding that under the “plain meaning of section 1717 . . . a petition to compel arbitration filed in a pending lawsuit is not an ‘action’”); see also Gil, 17 Cal. Rptr. 3d at 423–24 (explaining that while “a defense to a tort action based on a provision of the contract may have the effect of en…
Retrieving the full opinion text from the archive…
AVI GIL, Plaintiff and Appellant,
v.
MONET MANSANO, Defendant and Respondent
B165668.
California Court of Appeal.
Aug 24, 2004.
17 Cal. Rptr. 3d 420
AVI GIL, Plaintiff and Appellant, v. MONET MANSANO, Defendant and Respondent., Counsel, Law Offices of Gerald Krupp and Gerald Krupp for Plaintiff and Appellant., Wolf, Rifkin, Shapiro & Schulman and Matthew J. Hafey for Defendant and Respondent.
Grignon, Armstrong.
Cited by 62 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 89%
Citer courts: Court of Appeals of Georgia (2)

Lead Opinion

Opinion

GRIGNON, Acting P. J.

INTRODUCTION

Three individuals engaged in a business venture together. Two of the individuals purchased the third individual’s share of the business. All three entered into a written purchase agreement and a separate written release. The release included an attorney fee provision applicable to an action brought to enforce the release. One of the two remaining owners sued the other for fraud, and the defendant asserted the release as an affirmative defense. The defendant prevailed on summary judgment and was awarded attorney fees pursuant to the attorney fee provision in the release. In the published portion of this opinion, we conclude the assertion of a contractual defense to a tort action is not an “action brought to enforce the contract” and, therefore, the prevailing party is not entitled to an attorney fee award. In the unpublished portion of the opinion, we address the remaining contentions. We reverse the attorney fee award and otherwise affirm the judgment.

[*742] FACTS AND PROCEDURAL BACKGROUND

DISCUSSION

I.-III.*

IV. Attorney Fee Award

The parties in this case signed a release that included the following attorney fee provision: "In the event action is brought to enforce the terms of this [Release], the prevailing party shall be paid his reasonable attorney[] fees and costs incurred therein." Plaintiff sued defendant for fraud, a tort. Defendant asserted the release as an affirmative defense. The trial court entered summary judgment in favor of defendant based on the release and awarded defendant attorney fees pursuant to the attorney fee provision of the release. We have affirmed the summary judgment in favor of defendant. Thus, defendant is the prevailing party for purposes of attorney fees and costs. We must, therefore, determine whether the attorney fee provision in the release entitles defendant to attorney fees in this case. We conclude it does not.

"Except as attorney[] fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . . ." (Code Civ. Proc., § 1021.) "In any action on a contract, where the contract specifically provides that attorney~] 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[] fees in addition to other costs." (Civ. Code, § 1717, subd. (a).) "Where a contract provides for attorney[] fees . . . that provision shall be construed as applying to the entire contract. . . ." (Ibid.)

"If a cause of action is `on a contract,' and the contract provides that the prevailing party shall recover attorney[] fees incurred to enforce the contract, then attorney[] fees must be awarded on the contract claim in accordance with Civil Code section 1717." (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 706 [75 Cal.Rptr.2d 376].) "Civil Code section[*743] 1717 does not apply to tort claims; it determines which party, if any, is entitled to attomey[] fees on a contract claim only. [Citations.] As to tort claims, the question of whether to award attomey[] fees turns on the language of the contractual attomey[] fee provision, i.e., whether the party seeking fees has ‘prevailed’ within the meaning of the provision and whether the type of claim is within the scope of the provision. [Citation.] This distinction between contract and tort claims flows from the fact that a tort claim is not ‘on a contract’ and is therefore outside the ambit of section 1717.” (Id. at p. 708.) Nevertheless, a broadly phrased contractual attorney fee provision may support an award to the prevailing party in a tort action. “ ‘ “[P]arties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract.” ’ ” (Ibid.)

The court must determine whether the contract provides for attorney fees in a tort action under the procedural posture of the particular case. “ ‘To answer this question, we apply the ordinary rules of contract interpretation. “Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. . . . Such intent is to be inferred, if possible, solely from the written provisions of the contract. . . . The ‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a special meaning is given to them by usage’ . . ., controls judicial interpretation. . . . Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. . . .” ’ [Citation.]” (Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 709.) If the parties do not present extrinsic evidence to interpret the attorney fee provision of a contract, the appellate court determines de novo whether the contractual attorney fee provision entitles the prevailing party to attorney fees. (Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 880 [26 Cal.Rptr.2d 439]; Thompson v. Miller (2003) 112 Cal.App.4th 327, 334-335 [4 Cal.Rptr.3d 905].)

A tort claim does not enforce a contract. (Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 709.) Where a contract authorizes an award of attorney fees in an action to enforce any provision of the contract, tort claims are not covered. (Santisas v. Goodin (1998) 17 Cal.4th 599, 622, & fn. 9 [71 Cal.Rptr.2d 830, 951 P.2d 399]; Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 709.) A defense to a tort action may be based on a provision of a contract. Where a contract authorizes an award of attorney fees in an action to enforce any provision of the contract, a defense to a tort action based on a provision of the contract may have the effect of enforcing the provisions of the contract. (Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 712.)[*744] However, the assertion of a defense does not constitute the bringing of an action to accomplish that goal. (Ibid.; Plemon v. Nelson (1983) 148 Cal.App.3d 720, 724-725 [196 Cal.Rptr. 190].)[3] Raising a defense may not be equated with bringing an action. (Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 712.) The language “brings an action to enforce the contract” is quite narrow. (See, e.g., ibid.)

“An ‘action’ is ‘a lawsuit brought in a court; a formal complaint within the jurisdiction of a court of law[;] . . . [a]n ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.’ (Black’s Law Diet. (6th ed. 1990) p. 28, col. 1; accord, Code Civ. Proc., §§ 20-22.) ... In contrast, a ‘defense’ is ‘[t]hat which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks[; ... it is a] response to the claims of the other party, setting forth reasons why the claims should not be granted.’ (Black’s Law Diet., supra, p. 419, col. 2, italics added.)” (Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 712, fn. 15, some italics omitted.)

Broad language in a contractual attorney fee provision may support a broader interpretation. (Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 712.) Thus, for example, an attorney fee provision applicable to “any dispute under the agreement” is sufficiently broad to include the assertion of a contractual defense to fraud and breach of fiduciary duty causes of action. (Thompson v. Miller, supra, 112 Cal.App.4th at pp. 335-337.) Such an attorney fee provision is not limited to an action brought to enforce the agreement. Other broad language has also been interpreted broadly to include tort actions. (Santisas v. Goodin, supra, 17 Cal.4th at p. 607 [“arising out of the execution of the agreement”]; Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1799 [54 Cal.Rptr.2d 541] [“ ‘relating to the demised premises’ ”]; Moallem v. Coldwell Banker Com. Group, Inc. (1994) 25 Cal.App.4th 1827, 1831 [31 Cal.Rptr.2d 253] [“ ‘relating to’ the contract”]; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342 [5 Cal.Rptr.2d 154] [“to which ‘this Agreement gives rise’ ”].)

A similar analysis applies to the construction of statutes authorizing an award of attorney fees. Broad statutory language authorizes attorney fee awards where the statute is used defensively. (Palmer v. Agee (1978) 87[*745] Cal.App.3d 377, 386-387 [150 Cal.Rptr. 841] [“ Tn any action arising out of Sections 789.5 to 789.11, inclusive, the prevailing party shall be entitled to reasonable attorney[] fees and costs,’ ” citing Civ. Code, former § 789.12].) Narrow statutory language limited to “actions to enforce” does not authorize attorney fee awards where the statute is used defensively. (Civ. Code, § 1354, subd. (f) [“In any action ... to enforce the governing documents [of a common interest development], the prevailing party shall be awarded reasonable attorney[] fees and costs”]; cf. Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472, 476-477 [64 Cal.Rptr.2d 81].)

In this case, the attorney fee provision in the release is very narrowly drawn. It requires action brought to enforce the terms of the release. Plaintiff did not bring an action on the release; he sued in tort for fraud. Thus, the mutuality and reciprocity provisions of Civil Code section 1717 are inapplicable. The fraud action is certainly not an action to enforce the release. Neither is the assertion of the affirmative defense of release an action brought to enforce the release. Accordingly, no action was brought by either party to enforce the terms of the release and defendant may not recover attorney fees as the prevailing party in the fraud action.

We sympathize with defendant’s position, but we are not permitted to rewrite the narrowly drawn attorney fee provision in the release. Had the attorney fee provision in the release been intended to apply to defensive use of the release, it could have so provided. For example, the attorney fee provision may have read: “ Tn the event any party to this Agreement brings suit to enforce any provision of this Agreement, or is required to defend any action the defense to which is any provision of this Agreement, the unsuccessful party agrees to pay the successful party such court costs and attorney[] fees as the court deems just.’ ” (Share v. Casiano Bel-Air Homeowners Assn. (1989) 215 Cal.App.3d 515, 521 [263 Cal.Rptr. 753].) The provision could have been made applicable to any action (1) in which the release was raised, (2) in which a party asserted his or her rights under the release, or (3) involving the release. Instead, the attorney fee provision was made applicable only where action was brought to enforce the release. No such action was brought in this case.[4]

The attorney fee award must be reversed.

[*746] DISPOSITION

The award of attorney fees in the amount of $50,000 to defendant is reversed. In all other respects, the judgment is affirmed. The parties are to bear their own costs on appeal.

Mosk, J., concurred.

See *See ante, page 739.

3

These cases are to be distinguished from cases in which there is an action on the contract, and the issue is one of apportionment of fees between the action on the contract and related tort actions. (Siligo v. Castellucci, supra, 21 Cal.App.4th at p. 879; IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal.App.3d 451, 463 [185 Cal.Rptr. 341]; Wagner v. Benson (1980) 101 Cal.App.3d 27, 37 [161 Cal.Rptr. 516].)

4

Defendant argues that the absence of the article “an” before “action” requires a different result. He argues that any action taken to enforce the provisions of the release, including assertion of the release as an affirmative defense in a fraud action, falls within the ambit of the provision. We are not persuaded by this argument. It takes the word “action” out of context. The attorney fee provision applies to “action brought to enforce the terms” of the release. This language contemplates the bringing of a court action.

Dissent

ARMSTRONG, J.

I respectfully dissent.

As the majority notes, the laws of contract interpretation direct us to base an interpretation on the ordinary use of words (Lloyd’s Underwriters v. Craig & Rush, Inc. (1994) 26 Cal.App.4th 1194, 1197-1198 [32 Cal.Rptr.2d 144]) and to avoid an interpretation which makes the contract unusual or extraordinary. (Sayble v. Feinman (1978) 76 Cal.App.3d 509, 513 [142 Cal.Rptr. 895].) I believe that by taking a magnifying glass to the word “action” and ascribing a technical meaning to that word, the majority has violated the rules it cites.

The majority impliedly finds that the parties intended that “action” bear a technical meaning and that they knowingly agreed to only a “narrowly drawn” fee provision. I see no basis for that implied finding. The fee provision in the release seems to be an ordinary one, in which the parties add teeth to their commitment to release all claims by providing that if there is litigation on those claims in violation of the release, the loser pays the winner’s fees. In this case, there was litigation in violation of the release, which means, in my view, that fees should have been awarded. The majority has defeated; not enforced, the overall meaning of the release.

It may be that, as the majority writes, “action” has a technical meaning which includes a filing but not an answer, but that is not the only meaning which the law ascribes to the term. “[U]se of the term ‘action’ does not in all contexts refer to the technical meaning of the term as defined in the Code of Civil Procedure.” (Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1460 [240 Cal.Rptr. 1] [term “action” in Code Civ. Proc., § 1021.5, encompassed administrative proceedings which preceded filing of a writ].) Another court has observed that “An action is not limited to the complaint but refers to the entire judicial proceeding at least through judgment and is generally considered synonymous with ‘suit.’ (Palmer v. Agee (1978) 87 Cal.App.3d 377, 387 [150 Cal.Rptr. 841].) Action is not the same as cause of action.” (Nassif v. Municipal Court (1989) 214 Cal.App.3d 1294,1298 [263 Cal.Rptr. 195] [“action” for purposes of Code Civ. Proc., § 583.310].) “ ‘Generally an action is defined as a proceeding wherein one asserts a right or seeks redress for a wrong. ([Code Civ. Proc.,] § 22.) An[*747] action is usually deemed to commence upon the filing of a complaint ([Code Civ. Proc.,] §§ 350 & 411.10) and remains pending until the judgment is final. ([Code Civ. Proc.,] § 1049.) . . .’ [Citation.]” (Sunkyong Trading (H.K.) Ltd. v. Superior Court (1992) 9 Cal.App.4th 282, 288-289 [11 Cal.Rptr.2d 504] [“action” under Code Civ. Proc., § 170.6].) These cases teach us that, like many words, “action” is not limited and precise, but general and inclusive. “How the party achieves the goal of enforcing the right in question is not determinative of the right to an award of attorney fees .. . . The impact of the litigation is.” (In re Head (1986) 42 Cal.3d 223, 228-229 [228 Cal.Rptr. 184, 721 P.2d 65] [Code Civ. Proc., § 1021.5 fees available to prevailing party in habeas corpus proceedings].)

In an everyday sense, “action” includes both an answer and an affirmative defense, for the simple reason that the two are in many ways alike. The defendant has the burden of proof on the affirmative defense just as the plaintiff does on a complaint. The rules which relate to pleading a cause of action in a complaint also apply to pleading an affirmative defense in an answer. Because there is no replication in California, affording a plaintiff a chance to deny the allegations of affirmative defense, they are deemed controverted. If the defendant prevails on the release defense, it will only be because the court has “enforced” the release. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 1008-1010, pp. 461-465.) Thus, an equitable right of action may properly be asserted as an equitable defense “in an action involving the same subject-matter brought ... by the plaintiff. The party relying upon such equitable defense must, however, plead it with the same fullness and particularity as is required in cases involving like subjects of inquiry in suits in equity. . . . He then becomes an actor with respect to the matters alleged by him. . . . [Citations.]” (Swasey v. Adair (1891) 88 Cal. 179, 181-182 [25 P. 1119], italics added.) Raising a release as an affirmative defense is legally the same as bringing an “action” to enforce it. The defendant becomes an actor.

Neither party asserts that the language of the release is ambiguous, and we thus do not have the benefit (or burden) of extrinsic evidence. However, I believe I may confidently state that it is not within the imagination of mortal lawyers to draft an attorney fee clause which provides for fees if the winner filed, but not if the winner defended, and that if lawyers ever managed to agree on such an unusual arrangement, they would document that agreement with elaborate care.

On August 24, 2004, the opinion was modified to read as printed above.