Mountain Air v. Sundowner Towers

Filed 11/20/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

MOUNTAIN AIR ENTERPRISES, LLC,

Plaintiff and Respondent,

A138306

v. SUNDOWNER TOWERS, LLC et al., (Marin County Super. Ct. No. CIV081957) Defendants and Appellants.

Plaintiff Mountain Air Enterprises, LLC (Mountain Air) sued defendants Sundowner Towers, LLC (Sundowner), Bijan Madjlessi and Glenn Larsen for breach of a contract to purchase real estate. As affirmative defenses, defendants alleged that 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 favor of defendants on both defenses. When defendants moved for an award of attorney fees, the trial court denied the motion, holding that because of illegality the attorney fees clause in the initial contract could have no effect and that the attorney fees clause in the option agreement did not encompass defendants’ affirmative defense. Defendants appeal from the trial court’s denial of their motion to award attorney fees, contending that they are entitled to fees…