Thrifty Payless, Inc. v. Rajkovich

Full title: THRIFTY PAYLESS, INC., Plaintiff and Respondent, v. GARRETT A. RAJKOVICH…

Court: California Court of Appeals, Sixth District

Date published: Oct 26, 2007

No. H031062 (Cal. Ct. App. Oct. 26, 2007)

Opinion

THRIFTY PAYLESS, INC., Plaintiff and Respondent, v. GARRETT A. RAJKOVICH et al., Defendants and Appellants. H031062 California Court of Appeal, Sixth District October 26, 2007

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Santa Clara County Super.Ct.No. CV034651

Duffy, J.

After a court trial, plaintiff Thrifty Payless, Inc. was the beneficiary of declaratory and injunctive relief, which in essence enforced against the landlord certain provisions of a commercial lease under which plaintiff, doing business as Rite-Aid,¹ operates a drug store in Hacienda Gardens Shopping Center located in San Jose. Defendants² appealed from the judgment, which appeal is separately pending before this court.³ In the instant appeal, Hacienda Gardens appeals from a post-judgment order determining that Rite-Aid was the prevailing party under the lease and awarding it contractual attorney fees under Civil Code section 1717. Having today affirmed the underlying judgment in the separate appeal from that judgment, we now affirm the order determining Rite-Aid to be the prevailing party in the action and awarding it attorney fees of $127,000.

1 For ease of reference, we will refer to plaintiff/respondent as Rite-Aid.

2 For ease of reference, we will refer to defendants/appellants collectively as Hacienda Gardens.

3 Thrifty Payless, Inc. v. Rajkovich et al. (H030681, app. pending, argued October 4, 2007).

STATEMENT OF THE CASE

Rite-Aid filed this action seeking declaratory and injunctive relief, as well as damages, arising out of asserted breaches of the commercial lease between it and Hacienda Gardens. The long-term lease governs Rite-Aid’s possession of premises in which it operates a drug store in Hacienda Gardens Shopping Center in San Jose. The dispute focused on a plan of proposed redevelopment for the center. The plan as proposed violated certain terms of the Rite-Aid lease respecting building in common areas of the center without Rite-Aid’s consent and reducing the center’s floor area parking below the 2:1 ratio provided in the lease.⁴ Rite-Aid sought to enjoin redevelopment of the shopping center in ways that violated its lease.

4 For a more complete recitation of the underlying facts and procedure, which are abbreviated here, see our opinion in Thrifty Payless, Inc. v. Rajkovich et al. (H030681, app. pending, argued October 4, 2007) filed this day.

Following a bench trial, the court issued its statement of decision and entered judgment in Rite-Aid’s favor. The court granted declaratory relief and granted most of the requested injunctive relief but determined that Rite-Aid was not entitled to damages for breach of contract. Hacienda Gardens appealed from the judgment. Rite-Aid filed a memorandum of costs and a motion seeking to be declared the prevailing party under the lease and to fix an award of contractual attorney fees in the amount of $143,596.50.

Hacienda Gardens opposed the motion, contending that Rite-Aid was not the prevailing party since it did not entirely succeed in the litigation and had only achieved a mixed result. It also opposed the request for attorney fees, contending that claimed fees were excessive.

After a hearing on the motion, the court determined that Rite-Aid was indeed the prevailing party on the contract under Civil Code section 1717 and awarded reasonable fees to Rite-Aid in the amount of $127,000. Hacienda Gardens timely appealed from the order, which is separately appealable as an order made after an appealable judgment under Code of Civil Procedure section 904.1, subdivision (a)(2). (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582, fn. 3.)

ANALYSIS

Although it challenged Rite-Aid’s prevailing party status and the amount of fees requested below, Hacienda Gardens abandons these claims on appeal, asserting only that because the underlying judgment in the related appeal should be reversed, so too should the order determining Rite-Aid to be the prevailing party and awarding attorney fees. But we have today affirmed the judgment in the related appeal. Because the only claim on appeal here is that an order awarding attorney fees should fall with a reversal of the judgment on which it is based (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1105), and we have affirmed the underlying judgment in the related appeal, we accordingly likewise affirm the post-judgment order determining Rite-Aid to be the prevailing party and awarding attorney fees in the amount of $127,000.

DISPOSITION

The order is affirmed.

WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.