Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC072416. Leon Kaplan, Judge.
Law Offices of Henry N. Jannol, Henry N. Jannol, Tracey P. Hom for Defendant and Appellant.
Kurosaki & Parker, H. Craig Parker, Glenn M. Kurosaki for Defendant and Appellant.
BOREN, P.J.
Plaintiff Johnson Marble Machinery, Inc. (JMM) was awarded contractual damages and attorney fees following a court trial. On appeal, defendant Hootan Ataian challenges (1) the sufficiency of the evidence supporting the trial court’s decision and (2) the amount of attorney fees awarded by the court. We affirm.
FACTS
JMM manufactures 14-foot-long bridge saws that are used to cut marble and granite. In February 2005, Ataian came to JMM’s office to discuss purchasing a bridge saw for his stone-cutting business. JMM’s administrative manager showed Ataian the bridge saw manufacturing process and gave him a product brochure. The brochure lists as options a remote control device and a hydraulic tilting table. JMM also sells various accessories such as dollies.
JMM’s manager quoted Ataian a price of $39,950, plus sales tax. Ataian wanted JMM to include a remote control at no extra charge, but the manager told Ataian that the remote would cost an extra $1,400. However, JMM was willing to give Ataian a free slab rack valued at $1,495 and a free hydraulic tilting table. Ataian indicated that he did not want the remote control if he had to pay extra for it.
Ataian signed a contract to purchase a bridge saw from JMM, and gave the administrative manager a deposit of $15,000 toward the purchase price of $39,950 plus tax, for a total of $43,046.13. Under the “options” section of the purchase contract was listed only a hydraulic table, not a remote control. The JMM manager reviewed with Ataian the printed contractual terms and conditions, including pre-installation requirements such as the electrical wiring needs for the bridge saw. Ataian stated that he understood the purchase contract as a whole, and its terms and conditions. Ataian signed a document acknowledging his receipt of a copy of the contract terms and conditions.
JMM uses a “machine installation final checklist” every time it installs one of its machines. The installer checks off each item to ensure (1) that the installation is complete, and (2) that the buyer or machine operator is trained to use the equipment. It normally takes about three days to install a bridge saw. The installation JMM did for Ataian took one and half weeks because (among other things) he failed to provide proper electrical power for the machine.
JMM’s installer testified that the bridge saw Ataian purchased was problem free when the installation was completed in March 2005: he used the saw to cut a marble slab with Ataian’s employee, who was being trained to use the machine. The installer filled out the “final checklist” and Ataian’s employee signed it. Ataian was not present when the installation was completed. The very next day, the installer returned to Ataian’s shop to help Ataian and his employee remove a saw blade that they had broken by running it into posts at the edge of the cutting table. Ataian did not complain about the machine’s operation.
Once the bridge saw was installed at Ataian’s business, he was required by the purchase agreement to remit the balance of the price ($24,950) to JMM. Instead, Ataian provided a cashier’s check for $20,000, but only after JMM’s installer intentionally disabled the saw by removing the electronic relay. In addition, Ataian owes JMM the sales tax on the bridge saw, and $1,930 (plus tax) for accessories that he agreed to purchase. Ataian never paid the full amount he owes.
JMM’s administrative manager and its accounting manager testified that Ataian made no written or oral complaints about the bridge saw until after JMM filed this lawsuit to collect on Ataian’s debt. The administrative manager testified that until the lawsuit was filed, on June 2, 2005, “there hadn’t been any notice to us that there was anything wrong with the machine.” JMM sent a service manager to Ataian’s shop in July 2005. By then, Ataian had had several parts replaced on the bridge saw.
The installer—who also did repairs for Ataian as an independent contractor—informed Ataian that all repair work would be done for free by JMM, under the warranty, if Ataian paid JMM what he owed on his contract. The purchase contract states that the full balance must be paid for Ataian to receive warranty service and repairs. During numerous visits to Ataian’s shop, the installer always observed people working with the bridge saw and “a regular production” going on. The saw “definitely had been used” because there were cut marks from the blade on the table top.
At trial, Ataian testified that he used the saw himself for several weeks after the installation. Later, he hired an employee to use the machine. He described various problems he has had with the bridge saw: the hydraulic table does not tilt, the table is crooked, the laser does not work, and the arm that holds the saw blade broke. However, he did not offer to return the saw to JMM or write a letter demanding that the machine be fixed.
PROCEDURAL HISTORY
JMM sued Ataian for breach of contract and on common counts. Ataian cross-complained for breach of contract, breach of warranty, and on common counts. A court trial was conducted over the course of four days, in June 2006.
The court rendered a 13-page statement of decision. The court found that Ataian agreed in writing to pay $39,950 for the bridge saw, plus sales tax of $3,096. He also agreed in writing to purchase accessories for $1,930, plus sales tax of $149. The remote control was not included in the parties’ agreement. The court found that the saw was properly and completely assembled and installed at Ataian’s business. Ataian and his employees used the saw, and subsequently caused repairs and modifications to be made to it.
The court found that Ataian legally accepted the saw by failing to seasonably reject it. As a result, he must pay at the contract rate. He did not communicate in writing any dissatisfaction with the product until after he was sued. JMM was not obliged to perform any warranty repairs or service on the saw it sold to Ataian because Ataian failed to pay for the saw in full, which was a condition of receiving service.
As damages, the court awarded JMM $10,125, which included the unpaid balance of the purchase price for the saw ($4,950), the unpaid accessories, and sales tax. The court gave nothing to Ataian on his cross-complaint. The court awarded attorney fees to JMM, as the prevailing party in the action. Judgment was entered in favor of JMM.
JMM requested attorney fees of $51,085. Ataian opposed the amount of fees on the grounds that it was “incongruous with the net recovery.” Ataian asked that the fee award be limited to $10,000. The court awarded JMM attorney fees of $43,285. Ataian appeals from the judgment and from the postjudgment award of attorney fees.
DISCUSSION
1. Sufficiency of the Evidence
Ataian challenges the sufficiency of the evidence supporting the judgment. The judgment is appealable. (Code Civ. Proc., § 904.1, subd. (a)(1).) In a court trial, the trial court “is the sole arbiter of the facts,” and our review of its factual findings is limited. (Navarro v. Perron (2004) 122 Cal.App.4th 797, 803.) Those findings ““‘are not erroneous if supported by substantial evidence”’” (Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th 1261, 1269), regardless of whether the evidence is contradicted or uncontradicted. (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784.) Substantial evidence has “‘ponderable legal significance’” and “‘is reasonable, credible and of solid value.’” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) The testimony of a single witness may suffice to constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) It is “‘the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’” (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.) “Where [a] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.)
First, Ataian contends that “the court’s finding that the bridge saw was properly installed and the installation was complete was not supported by the evidence.” He observes that he did not sign the final installation checklist filled out by the installer; JMM did not send anyone to inspect the saw; Ataian did not receive any training or a remote control device; he left telephone messages saying that the saw was not properly installed; and the saw never worked properly. As a result of these failings, Ataian reasons, there is no substantial evidence of completion and he owed no payment under the purchase contract.
Substantial evidence supports the finding that the bridge saw was properly installed. JMM’s installer testified that he put together the saw at Ataian’s business over the course of a week and a half, he trained Ataian’s employee on the use of the machine, and the installer and Ataian’s employee together cut a marble slab as a test run. The installer testified that the saw was problem free when the installation was completed. Further, he witnessed “a regular production” of stone countertops at Ataian’s shop, cut with JMM’s bridge saw. The trial court was entitled to credit the installer’s testimony regarding the completeness of the bridge saw installation and Ataian’s use of the machine in his business.
The trial court disbelieved Ataian’s testimony that he had no employees.
The testimony supported a finding that Ataian was not present when the installer finished his work, but that an employee of Ataian’s signed the installation checklist. Regardless of who signed the checklist, the machine was operable, because only one day after the installation was completed, the installer had to return to Ataian’s shop to help Ataian and his employee replace a broken saw blade. At that time, Ataian voiced no complaints about the machine’s operation. The testimony from JMM’s employees is that Ataian did not complain about the machine until after he was sued for the money he owed for it. With respect to the remote control, evidence supports the finding that JMM informed Ataian that this was an option, and Ataian indicated that he did not want the remote control if he had to pay extra for it.
Second, Ataian asserts that “the court’s finding that the warranty was not in effect due to the failure of Ataian to make the final payment is not supported by the evidence.” Ataian quotes language in the purchase contract, which states that “Buyer agrees that in the event that any payment is late or delinquent, that the seller shall not perform any warranty, repair or service on said machine or equipment pursuant to this contract until payment is made in full. The installation technician and buyer will confirm the correct operation of the machinery and all final payments are due at the time of completion.” Ataian relies on his own testimony to establish that the machine was not properly installed or functioning, claiming that, “[t]here was no contrary evidence” rebutting his testimony.
As discussed above, there is substantial evidence that the machine was properly installed and functional. JMM’s installer rebutted Ataian’s claims by testifying that “every feature and function” of the bridge saw worked, when the installation was completed. Specifically, the cutting table was smooth, the machine operated normally and properly, the laser light worked and was aligned with the saw blade, the bridge movement and electrical controls all worked, and the tilt table operated properly.
The trial court, as the exclusive judge of credibility, believed the installer’s testimony that the machine was problem free. It did not believe Ataian’s testimony that the machine was not properly installed. The court concluded that “the preponderance of the evidence established that the saw was properly and completely assembled and installed at Defendant’s premises.” We cannot disturb a factual determination arising from the trial court’s assessment of witness credibility. In addition, the court found, Ataian’s partial payment of the amount owed, his usage, repair, and modification of the machine, and the passage of time, established that JMM completed the installation of the bridge saw. In light of the court’s determination that the saw was properly installed, and the undisputed evidence that Ataian failed to timely pay for the saw after it was installed, JMM’s contractual obligation to provide service and repairs under the warranty did not attach.
Third, Ataian argues that “The court’s finding that the bridge saw was accepted pursuant to the Commercial Code is not supported by the evidence.” The law provides that “the buyer must, within a reasonable time after he or she discovers or should have discovered any breach, notify the seller of breach.” (Comm. Code, § 2607, subd. (3)(A).) “The burden is on the buyer to establish any breach with respect to the goods accepted.” (Comm. Code, § 2607, subd. (4).) Further, the buyer must reject goods “within a reasonable time after their delivery or tender”; the rejection is ineffective “unless the buyer seasonably notifies the seller.” (Comm. Code, § 2602, subd. (1).)
The trial court expressly indicated that it believed two JMM employees, who testified that Ataian made no complaints about the bridge saw until after he was sued for payment. The court, as the sole arbiter of witness credibility, did not believe Ataian’s testimony that he orally complained that the saw was not functioning. The court also believed the testimony of JMM’s installer, who stated that he visited Ataian’s shop on several occasions. During his visits, the JMM bridge saw was being used to fabricate countertops. The regular usage of the machine is inconsistent with the notion that Ataian rejected the goods. Finally, Ataian admitted that he hired a repairman to make alterations and repairs to the machine. If a buyer makes repairs and alterations to equipment without the seller’s consent, this is “inconsistent with title remaining in respondent. The trial court could, therefore, reasonably conclude that appellant accepted the equipment.” (Mardikian v. Parador Mining Co. (1961) 192 Cal.App.2d 747, 750.)
Substantial evidence supports the conclusion that Ataian accepted the bridge saw. Ataian used the bridge saw in his business, right from the first day it was installed. But he decided not to pay for it in full because he perceived some flaws in the machine. The problem is, the parties’ contract clearly states that no service or repairs would be made by JMM unless the price for the saw was paid in full. If Ataian believed that the machine was defective, he had to stop using it and promptly demand that JMM take back the machine and refund his money. In his testimony, Ataian admitted that he never tried to return the saw. By electing to retain and use the machine, Ataian was obliged to pay the balance due to activate the warranty, in order to receive service to correct any perceived flaws. Ataian wanted full service without paying full price. This was not an option under the parties’ agreement.
2. The Trial Court’s Attorney Fee Award
Ataian contends that the trial court abused its discretion in awarding attorney fees of $43,285. The award was $7,800 less than the amount JMM requested in its motion. In an action on a contract, where the contract specially provides for an award of attorney fees and costs, the prevailing party is entitled to recover its reasonable attorney fees, in addition to other costs, which are fixed by the court. (Civ. Code, § 1717, subd. (a).) Ataian does not deny that JMM is the prevailing party in a suit on a contract that provides for an award of attorney fees. Ataian contests only the amount of the award.
The trial court “has broad authority to determine the amount of a reasonable fee.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “‘The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong”—meaning that it abused its discretion.’” (Ibid.) To begin, the court considers “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Ibid.) The resulting figure “may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) The court may consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed, the attention given, success or failure, and other circumstances. (Id. at p. 1096.)
JMM’s counsel declares that he has 30 years of legal experience. He charged JMM between $175 and $225 per hour, which is less than his usual hourly rate of $275. An hourly rate of $225 or less for an experienced lawyer in Los Angeles is reasonable for this community. Counsel prepared the summons and complaint, requests for admission, interrogatories, a request for production, and responded to discovery propounded by Ataian; he attended four depositions, status conferences, and two mediation attempts, and prepared trial briefs. Numerous letters were written seeking further responses to discovery. Counsel came to court on four consecutive days to participate in the trial and judgment, and prepared the 13-page statement of decision.
At the hearing on JMM’s motion for attorney fees, the court expressed concern about some of counsel’s charges, such as 12.5 hours to prepare the statement of decision, and 13.7 hours to prepare a meet-and-confer letter. Presumably, these charges were reduced by the court when it awarded $7,800 less than counsel requested. Using an average fee of $200 per hour, the court cut 39 hours of work from counsel’s bill when it reduced the fee award from $51,000 to $43,000. Clearly, the trial court examined the billing statement closely and rejected charges that it found excessive. We cannot say that a $40,000 bill that encompassed pretrial discovery, multiple mediations, and a trial is clearly wrong, or that it “shocks the conscience and suggests passion and prejudice influenced the determination.” (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507.)
Ataian objects that the attorney fee award is four times higher than the damages award. An award of attorney fees need not be proportionate to the damages award. In one case, for example, the Supreme Court accepted an attorney fee award of $245,456, even though the damages were only $33,350. (Riverside v. Rivera (1986) 477 U.S. 561, 564-565.) In Boyd v. Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 380-381, the court found no abuse of discretion in the trial court’s award of $38,730 in attorney fees on a net recovery of $21,699. Finally, in an unlawful detainer action brought in municipal court, the court approved an attorney fee award of $75,000 after a jury awarded $6,166 in damages. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 650-651, 657.) In short, the prevailing party cannot be denied the full measure of the attorney fees it incurred merely because the fees significantly exceed the damages award.
3. Attorney Fees on Appeal
A contract that contains an attorney fee clause “embraces an allowance for legal services rendered upon appeal as well as during trial.” (Leaf v. Phil Rauch, Inc. (1975) 47 Cal.App.3d 371, 379.) The trial court may determine the reasonable amount of attorney fees for the appeal. (Ibid.; Vitek, Inc. v. Alvarado Ice Palace, Inc. (1973) 34 Cal.App.3d 586, 595.)
DISPOSITION
The judgment is affirmed, and the cause is remanded with directions to the trial court to determine a reasonable attorney fee for services performed on appeal and add such fee to the principal amount of the judgment. Respondent may recover its costs on appeal from appellant.
We concur: DOI TODD, J., ASHMANN-GERST, J.