Opinion
G030413.
11-21-2003
MACERICH BRISTOL ASSOCIATES, Plaintiff and Respondent, v. LAWRENCE W. ZARRILLI et al., Defendants and Appellants.
Law Offices of Stephen M. McNamara and Stephen M. McNamara for Defendant and Appellant Lawrence W. Zarrilli. Zwierlein & Associates and Robert F. Zwierlein for Defendant and Appellent Stephen Barker. Sherwood and Hardgrove, Kenneth M. Hardgrove and Peter J. Krupinsky for Plaintiff and Respondent.
Lawrence W. Zarrilli and Stephen Barker appeal from a judgment following a court trial finding them liable as an assigning tenant and a guarantor, respectively, for rent owed after breach of a commercial lease. Zarrilli argues the judgment must be reversed because he should have received notice his assignee was not paying rent. Both appellants contend the trial court erred in rejecting their argument the landlord, MaceRich Bristol Associates (MaceRich), failed to make a reasonable effort to mitigate damages by finding a new tenant. Appellants also contend the amount of attorney fees awarded to MaceRich constitutes an abuse of discretion. None of these contentions has merit, and we therefore affirm.
I
FACTS AND PROCEDURAL BACKGROUND
In accordance with the proper standard of review, we set forth the facts "in the manner most favorable to respondent[], resolving all evidentiary conflicts in [its] favor." (Kotler v. Alma Lodge (1998) 63 Cal.App.4th 1381, 1383, fn. 1; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2002) ¶ 8:74, p. 8-31.)
MaceRich is the owner and lessor of the retail space comprising the strip mall known as Bristol Center, located just north of South Coast Plaza. Beginning in 1972, Zarrilli operated a veterinary clinic in one of the Bristol Center units. The unit (the Premises) totaled about 1,600 square feet in size.
In late 1992, in the course of negotiating a new lease, Zarrilli wrote a letter to MaceRich stating: "Business has declined at [the] location. I have gone from a 3-man veterinary practice in the late seventies and early eighties to a 1-man practice in the late eighties and early nineties. I contribute [sic] this decline to the demographics of the area and to the general decline in the economy. [¶] I also request that any increase in rent be limited for the first five years to $1.57 per square foot. . . . Due to the fact that the veterinary practice has declined and is not showing any signs of a recovery, any higher rate would be most difficult to afford." Notwithstanding these concerns, Zarrilli agreed in May 1993 to an eight-year lease at a base rent of $2 per square foot, which would be adjusted annually based on the Consumer Price Index.
Article XII of the lease provided that it could be assigned. Section 12.5 of that article specifically stated: "Any Transfer pursuant to this Article XII shall not relieve Tenant or any Guarantor of its obligations under the terms of this lease." In March 1996, Zarrilli assigned to Community Pet Care, Inc. (CPC) "all of [his] right, title and interest in and to the Lease as of the date hereof . . . ." The assignment read, in relevant part: "Assignor [Zarrilli] acknowledges and agrees that this Agreement shall not in any way release or be construed to release Assignor from any of its obligations (whether past, present or future) to pay all of the Rent under the Lease and to fully perform and observe all of the other terms, covenants and conditions required of Tenant under the Lease; and that Assignor shall remain liable for the full performance and observance of all the terms, covenants and conditions required of Tenant under the Lease through the remainder of the Term."
To secure MaceRichs consent to the assignment, CPCs principals, including appellant Barker, signed a personal guaranty promising all obligations under the lease would be performed, including payment of rent.
CPC failed to generate the revenues necessary to pay its overhead. Barker, in his words, had to "personally pay in money every month in order to cover the short fall." CPC and a successor entity formed by Barker, South Coast Veterinary Clinic, Inc., were often one to two months behind in payment of rent. This chronic tardiness led MaceRich to file an unlawful detainer action, in which it recovered the Premises in late July 1998. MaceRich finally found a tenant, a tuxedo rental shop, willing to sign a new lease in July 2001.
The term of the lease originally signed by Zarrilli, assigned to CPC, and guaranteed by Barker ran through March 15, 2001. MaceRich instituted this action to recover the rent owed through that period. Zarrilli and Barker contended that by leaving the Premises vacant for three years, MaceRich failed to mitigate its damages, but the trial court concluded MaceRich acted reasonably in its attempts to relet the property. As to mitigation, the court specifically noted: "The defendants had the burden of proof on that issue, and they failed to show that the totality of the actions of MaceRich were not reasonable. [¶] Individually, they took issue with certain things. But the court found that the test is not where in the continuum of reasonable conduct does one end up, but only are you within it. You can be barely reasonable, marginally reasonable, moderately reasonable, quintessentially reasonable. You dont have to be anywhere but reasonable. And what MaceRich did was reasonable with regard to the Premises."
The testimony at trial showed MaceRichs efforts to find a tenant for the Premises included employing a leasing manager and offering brokers a commission as high as $4 a square foot to locate a tenant. Mary Paquins efforts as MaceRichs leasing manager from November 1998 to September 2000 were typical. She worked 40 to 60 hours per week at two of MaceRichs properties, spending 15 to 20 percent of her time on the Bristol Center vacancies and, on average, at least one hour per day on the Premises. She fielded 20 to 30 calls per month regarding the Premises, cold-called promising potential tenants, promoted the Premises at 15 leasing conventions widely-attended by prospective shopping center tenants, and networked with tenant brokers by, among other things, preparing and distributing a brochure for the center. Paquin sought a monthly base rent for the Premises between $2.25 and $2.50 per square foot, even though Zarrilli and Barkers expert testified the monthly fair rental value was actually $2.50 to $3 per square foot. MaceRichs expert testified Paquins efforts, as well as those of the leasing managers who preceded and followed her, compared favorably to those of typical commercial real estate brokers.
The Bristol Center experienced significant tenant turnover during the period the Premises were vacant, including the loss of the Vons grocery store that had been the anchor tenant since the early 1970s. The Vons location remained empty for almost 15 months from February 1999 until a Staples office supply store replaced it in May 2000. Vacancy periods in the center ranged from two and one-half months to a vacancy at the time of trial that was going on two years three months. It was not uncommon for any particular space to sit vacant for more than a year, and seven different units within the three years before trial had been vacant for 11 months or more.
MaceRichs leasing managers showed the Premises to numerous potential tenants, but the clients who made lease proposals either could not see them through or changed their plans. For instance, Cash Plus, a check cashing service center, made offers of up to $2.25 per month per square foot in the fall of 1998, but had to abort its plans when the city of Santa Ana refused to grant any more conditional use permits for this type of business. MaceRich also conducted negotiations with a computer software and game retailer named FuncoLand, Inc., resulting in an offer in June 1999 that included a base rent of $2.25 per month per square foot with annual adjustments based on the Consumer Price Index, plus a "percentage rent" of 4% of annual sales over $1 million. But FuncoLand later changed its plans and took retail space in the Irvine Marketplace. Similarly, discussions with Interstate Batteries appeared promising in September 2000, but stalled when the company informed Paquin it could not go forward, only to have negotiations resume in January 2001, and then end conclusively when Interstate Batteries changed its expansion plans.
Likewise, prospects looked good in November 2000 when MaceRich and D. Dental agreed to lease terms of $2.35 per month per square foot, only to have the deal fall through when D. Dental could not secure financing. And in February 2001, Aqua Dental withdrew its offer of $2.30 per month per square foot when it learned city parking restrictions would prevent it from leasing the premises. In the midst of these failed offers, MaceRichs leasing managers also attempted to interest nationally-known retailers such as Info USA, KB Toys, and Athletes Foot, as well as several dental offices and medical offices, but these efforts were unsuccessful.
Following the trial courts determination Zarrilli and Barker were liable for the rent due under the lease through its termination in March 2001, the court considered the issue of attorney fees. Based on an hourly rate of $175 per hour claimed by MaceRichs attorney for preparation and litigation of the six-day trial, the court awarded $122,342.50 in attorney fees. The court explained that, "while it might surprise people who are not frequently involved in litigation, it did not strike me as out of line and, in fact, struck me as a reasonable result which frequently occur[s]." The court further noted the nature of the case required a great deal of time, stating: "You were my most time-intensive case, in terms of research, cases read, studied, going back and forth checking these things out."
Zarrilli and Barker now appeal both the substantive judgment of the court and the amount of attorney fees.
II
DISCUSSION
1. Zarrilli Was Not Entitled to Notice of Default
Zarrilli contends MaceRich could not collect rent from him because it failed to notify him his assignee defaulted. According to Zarrilli, the assignment and the lease required such notice and, in any event, one of MaceRichs agents orally promised him he would be given notice. These arguments are without merit.
Interpretation of the assignment and the lease, as written documents, is a question of law. (Western Digital Corp. v. Superior Court (1998) 60 Cal.App.4th 1471, 1482.) Whether a document is ambiguous is also subject to de novo review. (Appleton v. Waessil (1994) 27 Cal.App.4th 551, 554-555.) Except in the case of ambiguity, the admission of parol evidence to vary, add to, or alter the terms of a written agreement is prohibited. (Ibid.; see Cross v. Thiele (1921) 51 Cal.App. 780, 784 (Cross) [upholding exclusion of conversation between lessee and lessor as nothing "but an attempt to vary the terms of the lease . . ."].) We begin our analysis with the assignment.
By assigning his interest in the lease, Zarrilli became a guarantor for the assignee. (Cross, supra, 51 Cal.App. at p. 783; accord Sun Realty Co. v. Rosenstein (1930) 107 Cal.App. 484, 487.) A guarantor "is not entitled to notice of the tenants default unless there is an express provision in the guaranty requiring notice, or the guarantor is unable to discover the tenants default by the exercise of reasonable diligence." (7 Miller & Starr, Cal. Real Estate (3rd ed. 2001) § 19:85, p. 175, fns. omitted.) The assignment makes no provision for notice to Zarrilli, but instead expressly provides the "address for notices shall be the address of the Demised Premises and 7151 Warner Avenue, Suite E-129, Huntington Beach . . . ," the latter address being the assignees business address. Nothing about this language is ambiguous: notice is to be sent to the Premises and to the assignee, not the assignor. Because the assignment was not ambiguous, Zarrillis attempt to vary its terms with parol evidence that MaceRich promised to notify him of the assignees default must be rejected.
While an assignment may make the original lessee a surety for the assignee, the assignor remains the primary obligor under the lease. (De Hart v. Allen (1945) 26 Cal.2d 829, 832.) We discuss below whether the lease required notice to Zarrilli.
Moreover, the evidence did not show Zarrilli, as the guarantor, was unable to discover the tenants default by the exercise of reasonable diligence. (7 Miller & Starr, Cal. Real Estate, supra, § 19:85, p. 175.) Zarilli admitted he knew CPC had missed several rent payments and acknowledged he "was made aware" CPC was evicted soon after it happened. These facts demonstrate Zarrilli had actual notice of CPCs financial straits. Actual notice precludes any claim formal notice was required under the assignment to compensate for an inability to discover the tenants default. (Ibid.)
Zarrilli also argues he was entitled to formal notice under the terms of the lease, which provided for three days notice to the "Tenant" before the landlord could take any action on failure to pay rent. (Lease, § 18.1(i).) Because he was the original tenant under the lease, Zarrilli insists he remained entitled to such notice even after assignment. But by definition a "tenant" is one entitled to possession. (Blacks Law Dict. (7th ed. 1999) p. 1478, col. 2.) The implication of Zarrillis argument is that as the named "Tenant" he remained entitled to all the "Tenants" rights after assignment, including possession, which conceptually makes no sense. (See Kendall v. Ernest Pastana, Inc. (1985) 40 Cal.3d 488, 492, fn. 2 ["an assignment transfers the lessees entire interest in the property . . ."], italics added; Johnson v. County of Fresno (2003) 111 Cal.App.4th 1087, 1096 ["An assignment carries with it all the rights of the assignor"], italics added.) We will not construe the lease in a manner that renders it absurd. (See Civ. Code, § 1638.) Significantly, the lease did not limit the tenancy to Zarrilli as a right personal to him. To the contrary, it expressly provided for assignment. (Lease, art. XII.) In sum, Zarrilli assigned away his right to possession and, with it, the "Tenants" right to notice under the terms of the lease.
Finally, Zarrilli seizes on two default provisions in the lease that expressly define the term "Tenant" to include "any Guarantor and/or assignee of Tenants interest in this lease . . . ." (Lease, § 18.1(D).) Because these provisions expressly include assignees in the definition of "Tenant," Zarrilli concludes, by negative implication, the meaning of "Tenant" in the eight other default provisions (including failure to pay rent) does not include assignees. Hence, in the case of failure to pay rent, only the original tenant (Zarrilli) and not the assignee is entitled to notice of default. This argument loses its luster upon careful review of the two provisions in question.
Both provisions contemplate the tenant remaining in possession of the premises. Clause viii of section 18.1 provides default occurs: "[I]f Tenant or any affiliate of Tenant fails to perform or observe any of the covenants, agreements, provisions or conditions of any other lease or leases between Landlord (or any affiliate of Landlord) and Tenant (or any affiliate of Tenant) which is not cured within the applicable cure period . . . ." (Italics added.) Default occurs under the second provision, clause ix: "if Tenant makes any assignment for the benefit of creditors or files a voluntary petition in bankruptcy or is adjudicated a bankrupt by any court or takes the benefit of any bankruptcy or insolvency statute or is dissolved (voluntarily or involuntarily) or if a receiver or trustee for Tenant and/or its property is appointed . . . ."
These provisions do not aid Zarrilli. They provide added protection to the Landlord in the event of the Tenants bankruptcy, insolvency, or breach of a lease by someone guaranteeing the Tenants lease. Their expanded definition of "Tenant" as including assignees is expressly limited to the events of default described in clauses viii and ix. (Lease, § 18.1(D).) Notably, the clauses do not provide for notice to the affected creditor-assignees and guarantors. The omission makes perfect sense: those persons are not in possession of the premises. Far from an oversight, the silence regarding notice to creditors and guarantors harmonizes with the lease provisions that uniformly provide for notice only to the "Tenant." (See, e.g., Lease, §§ 18.1(i) [notice regarding failure to pay rent]; 18.1(C) [notice regarding termination].)
In sum, assignees standing in the shoes of the tenant — in other words, in possession — are entitled to notice. Zarrillis construction would preclude notice to the assignee in possession and require notice to a former tenant no longer in possession. This does not comport with the purposeful exclusion in clauses viii and ix of notice to out-of-possession assignees and guarantors. In construing the lease, all its provisions must "`be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other [citation] . . . ." (Mitchell v. Exhibition Foods, Inc. (1986) 184 Cal.App.3d 1033, 1041.) Because the lease, when read carefully, required notice to Zarrillis successors in possession and not to Zarrilli, we reject Zarrillis argument and his attempt to vary the lease terms with parol evidence.
Additionally, we note Zarrillis reliance on parol evidence must fail for another reason: the trial court concluded his testimony regarding MaceRichs alleged promise of notice was not credible. The court noted it had "reviewed the testimony of Doctor Zarrilli and did not find any evidence sufficient to carry the burden of proof, that burden of proof being a preponderance of the evidence that there was negotiated and agreed between the parties that he would, in fact, get notice." Credibility determinations belong solely to the trial court and not a reviewing court. (See, e.g., Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926 ["All issues of credibility are . . . within the province of the trier of fact"].) Hence, even if Zarrillis parol evidence had been admitted, it would not have carried the day.
2. MaceRich Reasonably Mitigated Damages
A. Waiver
Before addressing Zarrillis and Barkers argument that MaceRich failed to reasonably mitigate damages by promptly finding a new tenant, we note their opening briefs read as if they were the prevailing parties below. The statement of facts in each recites only evidence favorable to its partisan position. On pain of waiver, however, the established rules of appellate practice require that, "`[w]hen appellants challenge the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence. [Citation.] Failure to do so amounts to waiver of the alleged error and we may presume that the record contains evidence to sustain every finding of fact. [Citation.]" (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, § 8:70, p. 8-30 ["while there is room for subtle argument through the manner in which appellant states the facts, all of the material evidence must be summarized fairly, including evidence damaging to appellant"].)
The requirement to cite all material facts applies even when the standard of review is de novo and not substantial evidence. Both appellants acknowledge that, in Zarrillis words, "[u]nder normal circumstances, whether an injured party acted reasonably to mitigate damages is a question of fact reviewed under the `substantial evidence test." (See Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460 (Brandon).) Citing Green v. Smith (1968) 261 Cal.App.2d 392 (Green), they argue the proper standard of review is de novo and not substantial evidence "when," as stated by Zarrilli, "there is no dispute about the activities undertaken by the injured party (such as in the case here)[.]" Citing Mole-Richardson Co. v. Franchise Tax Board (1990) 220 Cal.App.3d 889, 894), Zarrilli claims that "where `decisive facts are undisputed the appellate court is `confronted with questions of law and not bound by findings of the trial court." As we discuss below, the proper standard is substantial evidence. But even if the standard were de novo, counsels duty of candor requires presentation of the whole picture regarding facts claimed to be "decisive." (Rules of Prof. Conduct, rule 5-200.) Otherwise, as here, an appellant could simply present its view of the facts, ignore evidence favorable to the respondent, and call its version of events "decisive."
Waiver is particularly appropriate here because the "decisive" facts cited by appellants are by no means undisputed. Two brief examples suffice to show appellants one-sided characterization of the record. Throughout their opening briefs, both appellants repeatedly stress that while Paquin stated "`the first thing" and "`the most important thing" a landlord should do when obtaining possession of a space is to put a "For Lease" sign up in the window, she did not do so until at least January 1999. But the record shows Paquin also testified: "I think the first sign that you need to have is one thats visible from the street and easy to get the primary information [such] as the phone number and then the contact name." When asked to clarify the importance of a window sign, she testified, "I dont think its as important as having the main sign on the center, but it is helpful." The large, "Space Available" sign on Bristol Street was more important in her view because, "[i]n most cases, people driving down the street are going to see the main sign. They are not going to see the sign in the window."
The second example concerns MaceRichs decision not to take the Premises to "vanilla shell" until almost two years after CPCs eviction. "Vanilla shell" means simply to remove existing fixtures, even ones that might interest a prospective tenant, and present the rental unit as a whitewashed, empty space. On appeal, Zarrilli claims the court found it "unreasonable to wait two years to do the shell . . . ." An express conclusion that a key aspect of MaceRichs approach to reletting the Premises was "unreasonable" would be significant indeed. But the court made no such finding. It merely stated, in addressing damages, that it would not be "reasonable" to allow MaceRich to recoup both the $35,000 cost to build the "vanilla shell" and the rent due thereafter, given that the six months of "remaining lease amounts were less than the cost to build it out . . . ." Nowhere did the court state or imply MaceRichs timing of the shell was "unreasonable."
Although a finding of waiver is warranted, we briefly discuss the substantial evidence supporting the decision to prevent any misconception the judgment was unfounded.
B. Substantial Evidence Supports the Judgment
Substantial evidence is the appropriate standard of review because the "decisive" facts cited by appellants were at odds with evidence favoring MaceRich. For instance, weighing Paquins testimony regarding the importance of a "For Sale" sign on the premises versus one on the street required the court to judge her credibility and act as a fact-finder. The de novo standard articulated inGreen applies only when the facts are not subject to dispute. (Green, supra, 261 Cal.App.2d at p. 398.) Here, as in Brandon, the issue of whether a partys mitigation efforts were reasonable in light of other alleged ways to "more effectively" mitigate damages is one of fact. (Brandon, supra, 226 Cal.App.3d at p. 460.)
Reasonableness is the touchstone for evaluating mitigation efforts. "The standard by which the reasonableness of the injured partys efforts is to be measured is not as high as the standard required in other areas of law. [Citations.] It is sufficient if he acts reasonably and with due diligence, in good faith. [Citations.]" (Green, supra, 261 Cal.App.2d at p. 397.) "The fact that reasonable measures other than the one taken would have avoided damage is not, in and of itself, proof of the fact that the one taken, though unsuccessful, was unreasonable. [Citation.] `If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen. [Citation.]" (Ibid.)
Appellants chief tactic below and on appeal is to complain that MaceRich took one approach to mitigation rather than another. But none of the five specific alternatives proposed by appellants, however prudent, demonstrate that MaceRichs efforts were unreasonable. First, while appellants suggest the failure to place a "For Lease" sign in the Premises window was decisive evidence against MaceRich, the trial court could conclude the large "Space Available" sign on Bristol Street was reasonable, given that it helped generate 20-30 inquiries a week. Second, while appellants make much of the two-year period before the Premises were put in a "vanilla shell," there was evidence commercial tenants could look past an "as-is" space to visualize their own plans and often preferred the option of reusing existing fixtures. Third, though appellants complain MaceRich did not actively market the Premises to veterinarians, the court could conclude this decision was reasonable in light of Zarrillis acknowledged decline in business and CPCs default.
Fourth, while appellants fault MaceRich for not specifically targeting the "ethnically diverse" population north of the center, and insinuate racism was the cause, the evidence revealed MaceRich posted its availability signs for all to see, sought out tenants at leasing conventions and from brokers without regard to background, responded professionally to the 20-30 inquiries per week — from whatever source, and entertained all lease proposals without discrimination. The court could conclude these efforts were reasonable and not tainted by racism.
Finally, while appellants claim MaceRich took an unreasonably tough negotiating stance, particularly with FuncoLand, the evidence demonstrated MaceRich sought and received fair market value for the Premises. The trial court could conclude this approach was reasonable since FuncoLand acceded to the terms proposed by MaceRich. Indeed, according to appellants own expert, the rate per square foot at which MaceRich was willing to lease to FuncoLand was less than fair market value. Although FuncoLand ultimately took space in the Irvine Marketplace instead of Bristol Center, appellants failed to show FuncoLand lost interest because of MaceRichs alleged hard-bargaining.
In sum, substantial evidence supports the courts conclusion that MaceRichs efforts were reasonable. Those efforts resulted in 20-30 inquiries per week and multiple proposals to lease the Premises. Though each proposal made before July 2001 fell through, independent circumstances such as city permit requirements, financing, or a change in a potential tenants business plan were to blame. Substantial evidence supported the trial courts judgment, and we decline appellants implicit invitation to reweigh the evidence.
3. The Attorney Fees Award Amount Was Not an Abuse of Discretion
Barker and Zarrilli contend they spent "less than half of what Mace[R]ich spent" on attorney fees, and because the fees "were only slightly less than the award," the court necessarily abused its discretion. The amount of an attorney fees award rests within the sound discretion of the trial court. (PCLM Group v. Drexler (2000) 22 Cal.4th 1084, 1095) An attorney fee award approaching the damages amount does not necessarily establish an abuse of discretion. (See California Housing Finance Agency v. E.R. Fairway Associates I (1995) 37 Cal.App.4th 1508, 1514 ["an award of attorney fees exceed[ing] the net amount of the judgment does not alone constitute an abuse of discretion"], italics added.) As one court aptly observed, "[A]n experienced trial judge is in a much better position than an appellate court to assess the value of the legal services rendered in his or her court, and the amount of a fee awarded by such a judge will therefore not be set aside on appeal absent a showing that it is manifestly excessive in the circumstances." (Childrens Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 782.) Here, the trial court identified this matter as its "most time-intensive" case, necessitating substantial independent legal research and significant preparation "going back and forth checking" the record. The court expressly determined the fee amount was not "out of line" for the six-day trial, but rather "a reasonable result." No basis exists for us to second-guess this determination.
Zarrilli raises several additional challenges to the attorney fees award. He contends the court abused its discretion by including paralegal costs in the award. But it is well-established that "`necessary support services for attorneys, e.g., secretarial and paralegal services, are includable within an award of attorney fees. [Citation.]" (City of Oakland v. McCullough (1996) 46 Cal.App.4th 1, 6.) Zarrilli contests fees for MaceRichs summary judgment motion because it was unsuccessful, but Civil Code section 1717 contemplates an award to the "party prevailing . . . in the action," rather than piecemeal apportionment of fees for motions within the action. (Id. at subd. (b)(1), italics added.) Similarly, Zarrillis request for apportionment of fees expended only in relation to him and not the other defendants is without merit. The central issue of the lawsuit — mitigation of damages — was raised by all defendants, including Zarrilli; the fact that he raised additional issues such as notice does not entitle him to a reduced share of fees.
Finally, Zarrilli contends that pervasive redactions on alleged grounds of attorney-client privilege and attorney work product "made it nearly impossible to determine if fees were `reasonably incurred." The trial court made no reductions on this ground, implicitly rejecting Zarrillis argument. Zarrilli nonetheless "asks that the matter be remanded for disclosure of the redacted portions and a determination whether those fees are reasonable." But Zarrilli opposed MaceRichs offer below to produce unredacted copies for in camera review. Judicial estoppel prevents Zarrilli from playing fast and loose with the courts by taking one position at trial and another on appeal. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181-183.) Appellants challenges to the attorney fee amount are without merit.
III
DISPOSITION
The judgment of the trial court is affirmed. Respondent is entitled to its costs on appeal. (Cal. Rules of Court, rule 27.)
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.