I concur.
Civil Code section 1717, subdivision (a), provides that “[i]n 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 prevailing on the contract . . . shall be entitled to reasonable attorney’s fees in addition to other costs.” I agree that the parties did not “specifically provided” for fees under these circumstances because of the “final judgment” language in the attorney fees clause.
Witkin states, “There is only one final judgment, the last or ultimate judgment which determines the rights of the parties.” (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 7, p. 544.) The exception is “where separate and independent relief is sought by or against different parties.” (Ibid.) This exception does not apply here. There can also be an “interlocutory judgment or order”—“a provisional determination of some or all issues in the cause.” (7 Wikin, supra, § 12, p. 548.) That situation likewise is not applicable to this matter. Thus, I agree that the attorney fees clause should be interpreted to apply to the one final judgment in this case.
Had the attorney fees clause been interpreted more broadly so as to cover the situation here, there might be an issue whether such a clause would “conflict with the requirements of section 1717.” (Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 436 [132 Cal.Rptr.2d 362]; see M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456, 470 [3 Cal.Rptr.3d 563] [language supporting the position of interveners].) To what extent the parties can, in effect, contract in connection with attorney fees to have multiple prevailing parties for different proceedings within an action is an issue we need not reach. (Cf. Santisas v. Goodin (1998) 17 Cal.4th 599, 614-617 [71 Cal.Rptr.2d 830, 951 P.2d 399] [“we must look to section 1717 to determine whether the seller defendants are ‘parties] prevailing on the contract’ ”]; Presley of Southern California v. Whelan (1983) 146 Cal.App.3d 959, 961-962 [196 Cal.Rptr. 1] [denying plaintiff interim fee award in connection with successful appeal of defense summary judgment that did not dispose of action, and opining that fees on appeal could not be used to offset defendant’s fee award if defendant ultimately prevailed]; Bank of Idaho v. Pine Avenue Associates (1982) 137 Cal.App.3d 5, 15-16 [186 Cal.Rptr. 695] [denying plaintiff fee award for successful interim appeal but suggesting that *433fees on appeal could be used to offset defendant’s fee award if defendant ultimately prevailed]; Snyder v. Marcus & Millichap (1996) 46 Cal.App.4th 1099, 1103-1104 [54 Cal.Rptr.2d 268] [party that prevailed on partial appeal, thereby reducing amount of judgment, not the prevailing party in lawsuit and therefore not entitled to fees or offset for fees for prior appeal].)
A petition for a rehearing was denied February 20, 2007, and respondents’ petition for review by the Supreme Court was denied May 9, 2007, S150956.