In Brittalia Ventures v. Stuke Nursery Co., Inc. (2007) 153 Cal.App.4th 17, 21-22, the plaintiff sued for breach of express and implied warranties in connection with the purchase of 14,000 walnut trees from the defendant.
The plaintiff argued the parties' contract consisted only of a written purchase proposal and the plaintiff's check. (Id. at p. 22.)
The defendant contended the contract also included a series of invoices and receipts containing standard, preprinted warranty disclaimers. (Id. at pp. 20-22.)
The plaintiff prevailed at trial, and was awarded attorney fees. (Id. at pp. 22-23.)
The appellate court reversed the attorney fees award because the plaintiff had not sued the defendant under a contract containing an attorney fees provision. (Id. at p. 29.)
The written purchase proposal on which the plaintiff sued did not contain an attorney fees provision; the attorney fees provision was included in the invoices and receipts, on which the defendant had relied, and which the plaintiff had successfully proven were not a part of the contract. (Id. at p. 31.)
The appellate court concluded Civil Code section 1717's mutuality of remedy for contractual attorney fees claims did not apply.
"The plaintiff cannot be allowed to win on its contract action by championing one contract without an attorney fee provision, and then turn around and ask for attorney fees as prevailing party based on a different contract, with an attorney fee provision, that the plaintiff had to defeat to secure its victory. . . . 'Section 1717 . . . only comes into play where a contract specifically provides for attorney fees. "The primary purpose of . . . section 1717 is to ensure mutuality of remedy for attorney fee claims under contractual attorney fee provisions."
It cannot be bootstrapped to provide for attorney fees for breach of a contract that has no attorney fees provision.'" (Brittalia Ventures v. Stuke Nursery Co., Inc., supra, 153 Cal.App.4th at p. 31.)
In sum, a walnut farmer purchased walnut trees from the defendant. Approximately two years after the delivery of the trees, a latent defect (a disease) in the trees was discovered. (Id. at pp. 21-22.)
The farmer subsequently notified the seller of the problem and brought an action for breach of the implied warranty of merchantability under the California Uniform Commercial Code. (153 Cal.App.4th at p. 22.)
A jury found in the farmer's favor and the Court of Appeal affirmed. (Id. at pp. 22-23, 32.)