PERLUSS, P. J.
Ara Karamanoukian appeals from the judgment entered after the trial court granted a motion for summary adjudication in favor of Victoria Akopyan in this action for breach of contract and declaratory relief. We reverse.
In July 2006 Karamanoukian and his business partner, Alan Baronian, purchased a majority interest in a corporation that operates an adult daycare center from Akopyan, its sole shareholder. Immediately after the purchase a dispute arose between Karamanoukian and Baronian, on one hand, and Akopyan and her then-boyfriend Hovik Krboyan, on the other hand. In August 2006 Akopyan filed an action against Karamanoukian, Baronian and others; Karamanoukian and Baronian filed a cross-complaint against Akopyan and Krboyan.
In February 2008 the parties settled the action. The settlement agreement did not require the payment of money at that time. Rather, because the parties believed McGuire Woods LLP, the law firm representing Karamanoukian and Baronian in connection with the stock purchase, had committed misconduct that provoked the underlying dispute, the settlement agreement provided Karamanoukian and Baronian (or either one of them alone) would pursue a legal malpractice action against McGuire Woods and share half of any recovery with Akopyan.
The settlement agreement also provided Karamanoukian would pay Akopyan $100,000 if the malpractice action was not "initiated or prosecuted" to judgment, settlement or award unless one of four exceptions were met: "(1) after diligent search, no attorney can be found to take on the [m]alpractice [a]ction; (2) the prosecuting attorney, after initiating the [m]alpractice [a]ction, elects to withdraw from the action; (3) this Agreement is not fully executed until after the statute of limitations has expired; or (4) Hovik Krboyan fails to pay his share of the costs/fees associated with the [m]alpractice [a]ction."
The malpractice action was not filed before the statute of limitations on the claims had expired. On June 9, 2009 Akopyan filed a complaint for breach of contract and declaratory relief against Karamanoukian, alleging he was required to pay her $100,000 because he had failed to timely initiate the malpractice action.
In September 2010 Akopyan moved in the alternative for summary judgment or summary adjudication. In October 2010 Karamanoukian filed a cross-motion for summary judgment or summary adjudication, arguing he was excused from paying the $100,000 because Krboyan had refused to pay his share of the retainer fee required to initiate the malpractice action.
In a declaration filed in support of his motion, Karamanoukian explained he had consulted with four attorneys before finding one who would take the case. Although Art Kalantarian had agreed to represent Karamanoukian, he required a $50,000 retainer and execution of an engagement agreement by both Karamanoukian and Krboyan. Karamanoukian called Krboyan five or six times in an attempt to collect Krboyan's 50 percent share of the retainer and obtain his signature, but Krboyan never answered the telephone or attempted to call Karamanoukian back. Because Karamanoukian could not reach Krboyan and the statute of limitation was going to expire soon, Karamanoukian's attorney sent a letter to Ali Taheripour, the attorney who had represented Krboyan in the underlying action, and Lawrence House, counsel for Akopyan, requesting they contact Krboyan.
The letter dated June 25, 2008 stated, "This letter is to inform you that Mr. Karamanoukian has been trying to contact Mr. Krboyan for the past three to four weeks regarding the payment and retention of an attorney to commence the [a]nticipated [m]alpractice [a]ction. However, as of the date of this letter, Mr. Krboyan has not returned any of Mr. Karamanoukian's phone calls. [¶] Accordingly, we are requesting that one of you contact Mr. Krboyan and inform him that the retainer agreement and payment must be received by Mr. Karamanoukian in a sufficient amount of time to allow the complaint to be filed before the expiration of the statute of limitations. . . . By our estimation, the controlling statute of limitations will expire on July 5, 2008. Therefore, Mr. Krboyan will most likely need to pay his half of the $50,000 retainer and sign the fee agreement by no later than June 30, 2008." In his declaration, Karamanoukian stated Krboyan called him a few days after the letter was sent and said he did not know Kalantarian and would not sign the engagement agreement or pay any share of the retainer.
In opposition to Karamanoukian's motion, Akopyan argued the settlement agreement only required Krboyan to pay 50 percent of legal fees billed to him by an attorney after the fees had been incurred, not to advance any portion of fees required to initiate the action, which, she contended, was Karamanoukian's obligation. Akopyan further argued, supported by declarations from Krboyan and Taheripour, that Krboyan had never received any telephone calls from Karamanoukian; Krboyan had not been told about the June 25, 2008 letter to Taheripour because Taheripour no longer represented Krboyan and did not know how to contact him; Krboyan did not speak to Karamanoukian after the letter had been sent; and it was suspicious that Karamanoukian had failed to attach the proposed engagement agreement from Kalantarian to his moving papers or produce it in discovery.
After a hearing on February 9, 2011 the trial court denied Akopyan's motion for summary judgment but granted summary adjudication in favor of Akopyan on the cause of action for breach of contract.
With respect to the claim for declaratory relief, the court treated Karamanoukian's motion as a motion for judgment on the pleadings and granted it. The court found the claim did not present a controversy for which declaratory relief could be issued because there was no continuing obligation between the parties.
A motion for summary judgment or summary adjudication is properly granted only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment or summary adjudication de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) We view the evidence in the light most favorable to the opposing party, liberally construing the opposing party's evidence and strictly scrutinizing the moving party's. (O'Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
Absent conflicting extrinsic evidence, the interpretation of a written contract is a question of law. (City of Hope Nat. Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) The fundamental goal of contract interpretation is to give effect to the mutual intention of the parties as it existed at the time they entered into the contract. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264; Parsons, at p. 865; see also Civ. Code, § 1636.) That intent is interpreted according to objective, rather than subjective, criteria. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1126.) When the contract is clear and explicit, the parties' intent is determined solely by reference to the language of the agreement. (Civ. Code, §§ 1638 ["language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity"]; 1639 ["[w]hen a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible"].)
The words in a contract are to be understood "in their ordinary and popular sense" (Civ. Code, § 1644), and the "whole of [the] contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code, § 1641.) An interpretation that renders part of the instrument surplusage should be avoided. (City of El Cajon v. El Cajon Police Officers' Assn. (1996) 49 Cal.App.4th 64, 71.) Finally, "[a] contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties." (Civ. Code, § 1643; see Bill Signs Trucking, LLC v. Signs Family Limited Partnership (2007) 157 Cal.App.4th 1515, 1521 ["`[i]nterpretation of a contract "must be fair and reasonable, not leading to absurd conclusions"'"].)
Akopyan contends the parties intended Krboyan pay 50 percent of litigation fees and expenses that had been incurred, not share the cost of any deposit or retainer required to initiate the action, and argues this intention is made clear by the absence in the settlement agreement of an express requirement that Krboyan advance costs. Instead, the agreement provides "any attorney(s) engaged for the purpose of prosecuting the [a]nticipated [m]alpractice [a]ction shall be instructed to [] bill the parties accordingly." To be sure, the settlement agreement is silent on how the parties are to proceed under the circumstances that actually occurred. Nevertheless, reading the contract as a whole, it is unreasonable to conclude the parties did not intend Krboyan would be responsible for 50 percent of a retainer required to initiate the action. Even if they did not contemplate this precise situation, such an implied term is required to make the contract reasonable in light of the general intent gleaned from the express provisions. As such, it is properly considered part of the parties' agreement. (See Civ. Code, §§ 1655 ["[s]tipulations which are necessary to make a contract reasonable . . . are implied, in respect to matters concerning which the contract manifests no contrary intention"], 1656 [necessary incidents implied including covenant of good faith and fair dealing].)
The settlement agreement expressly placed the responsibility on Karamanoukian to do all the work associated with initiating and maintaining the malpractice action—that is, to find an attorney willing to take the case and to participate in the prosecution—while limiting his financial exposure to $25,000 in fees and costs. To ensure his financial exposure would be limited, the agreement provided "[T]he first $50,000 . . . in fees and/or costs of bringing and prosecuting the anticipated malpractice action shall be born[e] equally 50/50" by Krboyan and Karamanoukian and Krboyan would be "solely responsible" for paying any "fees and/or costs of bringing and prosecuting" the matter in excess of $50,000 (italics added). Just as this operative provision does not expressly address an advance of fees, it also does not expressly limit the obligation to pay fees to those for services already rendered or costs actually incurred.
Moreover, to interpret the contract to exclude a requirement Krboyan share in the payment of a retainer would ignore the repeated use of the word "bring," one of the definitions of which is to "initiate (legal action) against someone." (Oxford Dictionaries Online <http://www. oxforddictionaries. com (as of June 25, 2012); see Merriam-Webster Online <http:// www. merriam-webster. com (as of June 25, 2012).) A retainer is simply "[a]n advance payment of fees for work that the lawyer will perform in the future" (see Black's Law Dict. (9th ed. 2009) p. 1430), often required before an attorney will file an action on behalf of a new client or do any work whatsoever. Akopyan's focus on the additional requirement that "[a]ny attorney(s) engaged . . . shall be instructed to bill the parties accordingly" is misplaced because that provision presupposes an attorney has been engaged. Here, Kalantarian would not take the case—that is, the action could not be initiated—unless and until the retainer fee was paid
Akopyan finally argues, even if Karamanoukian's interpretation of the settlement agreement is correct, he was not excused from paying her the $100,000 penalty—and the judgment in her favor should be affirmed—because there was no evidence Krboyan was aware of Karamanoukian's attempts to contact him before the statute of limitations on the malpractice claim had expired. That argument is belied by the record: Karamanoukian presented a declaration asserting he had spoken with Krboyan a few days after the June 25, 2008 letter was sent by his counsel and Krboyan refused to pay his share of the retainer. That evidence is sufficient to defeat Akopyan's motion.
For his part, Karamanoukian contends not only did the trial court err in granting Akopyan's motion for summary adjudication of the breach of contract cause of action but also it improperly denied his own motion directed to that claim. But Karamanoukian's evidence regarding his conversation with Krboyan was contradicted by Krboyan's declaration stating the conversation did not occur. That factual dispute may not be material if the June 25, 2008 letter from Karamanoukian's attorney to Krboyan's former attorney, which no one disagrees was, in fact, sent and received, was sufficient notice to Krboyan under principles of agency. (See Civ. Code, §§ 2317 [ostensible authority], 2355 [means of termination of agency].) However, neither party has addressed this issue on appeal, and we are unable to determine whether additional evidence relating to it exists or if the parties had an adequate opportunity to present the evidence or conduct discovery on the issue. (Cf. Code Civ. Proc., § 437c, subd. (m)(2).) Accordingly, it must be resolved in the first instance in the trial court, either by further motion practice or at trial. (See generally Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 ["[a]lthough our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in [appellant's] brief"]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
The judgment is reversed, and the matter remanded for further proceedings not inconsistent with this opinion. Karamanoukian is to recover his costs on appeal.
WOODS, J. and JACKSON, J., concurs.
