Opinion
D070198
06-23-2017
LILLIAN ALEXANDER, Plaintiff and Respondent, v. MARKET STREET APARTMENTS, LLC, Defendant and Respondent.
Kevin C. Young for Plaintiff and Respondent. Van Susteren Law Group and Adam Van Susteren for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2013-00074063-CU-OE-CTL ) APPEAL from a postjudgment order of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed. Kevin C. Young for Plaintiff and Respondent. Van Susteren Law Group and Adam Van Susteren for Defendant and Appellant.
After Lillian Alexander accepted a statutory offer to compromise (Code Civ. Proc., § 998) in the amount of $9,980 and judgment was entered, she moved for attorney fees. The superior court awarded her $93,270. Market Street Apartments, LLC (Market Street) appeals the attorney fee order, contending: (1) Alexander has not shown she prevailed on any cause of action authorizing an award of attorney fees; (2) the superior court erred in awarding attorney fees incurred after the statutory offer to compromise was made; (3) Alexander is not entitled to attorney fees that are attributable to time spent on her husband's claims; (4) section 1033, subdivision (b) prohibits the award of any attorney fees in this case; and (5) the trial court abused its discretion in awarding attorney fees without considering Alexander's lack of success and failure to make a demand.
Statutory references are to the Code of Civil Procedure unless otherwise specified.
We conclude Market Street forfeited its claim that the superior court could not award any fees incurred after the statutory offer to compromise was made. As to the remaining claims, we determine they lack merit. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Market Street hired Alexander and her husband, Robert, to be resident managers of certain apartments located in San Diego County. Alexander and Robert believed they were going to be paid $8 per hour to be the on-site managers, but that the full market value of their rental unit ($970 per month) would be credited against their monthly pay. They were employed from August 31, 2012 through February 12, 2013 when Market Street terminated their employment.
Market Street did not pay Alexander and Robert. Consequently, Alexander and Robert brought suit in San Diego Superior Court, alleging six causes of action: (1) failure to pay wages; (2) failure to pay overtime wages; (3) waiting time penalties; (4) wrongful termination in violation of public policy; (5) violation of Labor Code section 1182.8; and (6) violation of Labor Code section 226.
Market Street answered the complaint and began discovery. It served 10 sets of written discovery on Alexander and Robert, including general form interrogatories, 162 special interrogatories, 30 requests for admissions, and 70 requests for production of documents. In addition, Market Street noticed the videotaped depositions of Alexander and Robert, which included additional requests for production for 15 categories of documents.
Alexander and Robert responded to the written discovery and produced 698 pages of documents. Market Street took depositions of both plaintiffs. Alexander and Robert produced 91 pages of documents at their depositions.
After engaging in significant discovery, Market Street filed a petition to compel arbitration almost six months after it filed its answer. The superior court denied the petition. Market Street appealed the order. This court affirmed the order denying Market Street's petition. (See Alexander v. Market Street Apartments, LLC (May 19, 2015, D066382) [nonpub. opn.].)
Following its unsuccessful appeal, Market Street served Alexander and Robert with an additional 54 special interrogatories, 117 requests for admission; another request for production covering 16 categories of documents; and two more sets of form interrogatories. Market Street also served three subpoenas for production of documents on third parties.
Market Street additionally brought a motion to consolidate the instant action with a former tenant's action against Market Street for the improper retention of a security deposit. The superior court denied that motion. Then Market Street moved to disqualify counsel representing Alexander and Robert. The superior court denied that motion as well.
After over two years of litigation, Market Street served a statutory offer to compromise on Alexander in which Market street offered "to have judgment entered against itself in favor of [Alexander] for [$9,980] for all causes of action[.]" The offer explicitly stated that if Alexander accepted the offer, Alexander "may file a motion for attorneys' fees." Alexander accepted the statutory offer to compromise. However, after Alexander accepted the offer, Market Street and Alexander disagreed regarding the content of the ensuing judgment. Market Street argued that the judgment must allocate the amount of judgment among the various causes of action. Alexander countered that the judgment should reflect the terms of the statutory offer, which did not allocate the offered amount among the different causes of action, but instead, offered a lump sum "for all causes of action." The superior court ultimately agreed with Alexander and entered judgment in favor of Alexander and against Market Street on all causes of action consistent with the language of the statutory offer to compromise.
Alexander subsequently filed a motion for attorney fees, seeking a total of $96,180 for 320.6 hours of work at $300 per hour. These fees included matters in superior court as well as Market Street's appeal of the order denying the petition to compel arbitration. Market Street opposed the motion, arguing: (1) the court should not award any fees because Alexander had not proven she prevailed on a cause of action that entitled her to attorney fees; (2) section 1033, subdivision (b) prohibited the award of fees in this matter; (3) the amount of fees should be denied or substantially reduced because Alexander was seeking fees on behalf of Robert who was yet to be determined a prevailing party; and (4) a proper lodestar calculation requires little or no attorney fee award.
After considering the pleadings and evidence submitted as well as entertaining oral argument, the superior court granted in part Alexander's motion for attorney fees. In doing so, the court rejected Market's Street's argument that Alexander had to prove she prevailed on a cause of action that entitled her to attorney fees. Instead, the court found that the accepted statutory offer to compromise was sufficient to establish Alexander as a prevailing party entitled to attorney fees. In addition, the court determined that section 1033, subdivision (b) was not applicable because it only applied to limited civil actions. The court also concluded that the claims of Alexander and Robert were "identical and completely intertwined." As such, the court determined that most of the fees incurred should not be allocated. Nevertheless, the court reduced the requested fees by 9.7 hours for work completed after Alexander accepted the statutory offer to compromise as well as for work attributable solely to Robert (e.g., his claim for unemployment benefits). The court thus awarded Alexander a total of $93,270 for her attorney fees.
Market Street timely appealed.
DISCUSSION
I
STANDARD OF REVIEW
Market Street's challenges to the order awarding Alexander attorney fees can be divided into two categories. The first type involves Alexander's entitlement to fees as a threshold matter. Here, Market Street argues Alexander was not entitled to attorney fees because she has not shown that she prevailed on her claim for unpaid wages. Market Street also maintains that section 1033, subdivision (b) prohibits the award of attorney fees on the record before us. We address these threshold entitlement arguments under a de novo standard of review. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213 (Whitley).)
Market Street's other arguments concern the amount of the attorney fees awarded. For this kind of challenge, our normal standard of review is abuse of discretion. (Whitley, supra, 50 Cal.4th at p. 1213.) If the superior court made factual determinations, we review " 'the ruling according to the substantial evidence rule. The trial court's resolution of the factual issue must be affirmed if it is supported by substantial evidence. [Citation.] We look at the evidence in support of the trial court's finding, resolve all conflicts in favor of the respondent and indulge in all legitimate and reasonable inferences to uphold the finding.' " (Carpenter & Zuckerman v. Cohen (2011) 195 Cal.App.4th 373, 378.)
" 'The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
II
ALEXANDER'S ENTITLEMENT TO ATTORNEY FEES
Market Street insists Alexander is not entitled to attorney fees for two reasons. First, it contends Alexander has not shown she prevailed on any cause of action authorizing an award of attorney fees. Second, Market Street asserts that section 1300, subdivision (b) prohibits an award of attorney fees here. We reject both contentions.
A. Alexander is the Prevailing Party
Market Street asserts Alexander has not offered any evidence that she obtained a judgment for wages. Without such evidence, Market Street insists any order awarding Alexander attorney fees is improper. We disagree.
Alexander accepted Market Street's statutory offer to compromise. By doing so, she received $9,980; thus, she was a plaintiff who achieved a net monetary recovery. The superior court found her to be the prevailing party. (§ 1032, subd. (a)(4).) We agree, and Market Street does not argue otherwise. "[A] party who secures a recovery by accepting a section 998 offer is entitled to costs and fees unless excluded by the offer." (Engle v. Copenbarger & Copenbarger (2007) 157 Cal.App.4th 165, 169.) "The rule is that a section 998 offer to compromise excludes fees only if it says so expressly. It is a bright-line rule: The only question is does the offer address fees or not?" (Ibid.)
Here, the statutory offer to compromise did not exclude fees. To the contrary, it acknowledged: "If accepted, [Alexander's] counsel may file a motion for attorneys' fees." Thus, it appears, simply based on the language of the offer, Market Street anticipated Alexander would be able to seek her attorney fees if she accepted the section 998 offer.
And Market Street had good reason to believe Alexander could seek her attorney fees. Alexander brought a cause of action for failure to pay wages. "In any action brought for the nonpayment of wages . . . the court shall award reasonable attorney's fees and costs to the prevailing party." (Lab. Code, § 218.5, subd. (a).) In addition, Alexander alleged a cause of action under Labor Code section 226 for failure to provide wage and hour statements. Under subdivision (e)(1) of that statute, a successful plaintiff is entitled to her attorney fees. In fact, Market Street does not dispute that Alexander was entitled to attorney fees based on her causes of action. Instead, relying on Cifuentes v. Costco Wholesale Corp. (2015) 238 Cal.App.4th 65 (Cifuentes), Market Street insists Alexander only was entitled to fees if the judgment indicated what portion of the $9,980 compensated Alexander for her wages claim. We are not persuaded.
In Cifuentes, a jury awarded a former Costco employee judgment in the form of past and future lost wages. When Costco paid the judgment to the plaintiff, it withheld payroll taxes ($116,150.84 out of the $301,378 judgment). The plaintiff said the judgment was not satisfied. (Cifuentes, supra, 238 Cal.App.4th at pp. 68-69.) In determining the judgment was satisfied, the appellate court stated:
"When Costco paid the judgment, it had two alternatives. It could follow Lisec[] and risk liability to the IRS and other taxing authorities for the amount of tax it failed to withhold plus penalties. Or it could follow the prevailing federal view and risk a judicial declaration that the judgment is not satisfied. We conclude it chose correctly. Costco's potential exposure for failing to withhold the payroll taxes outweighed the inconvenience to Cifuentes of seeking a refund for the excess withholding." (Cifuentes, supra, at p. 77.)
In Lisec v. United Airlines, Inc. (1992) 10 Cal.App.4th 1500, the appellate court determined that an employer is not required to withhold payroll taxes from an award of lost wages to a former employee. (Id. at p. 1507.)
The court further determined that the plaintiff's remedy was to seek refunds for any excess withholding, not further damages from Costco. (Cifuentes, supra, 238 Cal.App.4th at p. 79.)
Cifuentes, supra, 238 Cal.App.4th 65 is not instructive here. That case did not involve a statutory offer to compromise. Nor did that case address the issue of attorney fees. Cifuentes indicates there is a split in California case law whether an employer should withhold payroll taxes from an award of lost wages to a former employee. (Compare Cifuentes, supra, 238 Cal.App.4th at pp. 77-79 with Lisec v. United Airlines, Inc., supra, 10 Cal.App.4th at p. 1507.) Although the court's reasoning in Cifuentes appears to represent the trending primary rule in California, that case has no application in finding that Alexander was not the prevailing party in the instant matter.
Here, the section 998 offer provided for a judgment to be entered in favor of Alexander against Market Street in the amount of $9,980 for all causes of action. The offer did not differentiate among the causes of action. It did not earmark a portion of the amount to be paid for wages. The ensuing judgment the court entered mirrored the language of the section 998 offer and did not apportion the total amount of the judgment among the causes of action. Because Alexander was entitled to attorney fees under statute and she was the prevailing party, there is no additional requirement that she indicate what portion of the judgment was for her wage claim before she may recover attorney fees. To add such a condition, would allow Market Street to unfairly benefit from the ambiguity of its own statutory offer to compromise. California law does not countenance such a result. (See Berg v. Darden (2004) 120 Cal.App.4th 721, 727 ["[A] section 998 offer is construed strictly in favor of the party sought to be subjected to its operation."].)
B. Section 1033, Subdivision (b)
Market Street next argues that section 1033, subdivision (b) prohibits the award of any attorney fees to Alexander when she recovered less than the statutory minimum necessary to qualify as an unlimited civil case. We are not persuaded.
"We independently review questions of statutory construction. [Citation.] In doing so, 'it is well settled that we must look first to the words of the statute, "because they generally provide the most reliable indicator of legislative intent." [Citation.] If the statutory language is clear and unambiguous our inquiry ends. "If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs." [Citations.] In reading statutes, we are mindful that words are to be given their plain and commonsense meaning. [Citation.] . . . Only when the statute's language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.' " (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1250.) In addition, " '[i]f possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose[;]' [citation] 'a construction making some words surplusage is to be avoided.' " (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.)
The statute at issue provides:
"(b) When a prevailing plaintiff in a limited civil case recovers less than the amount prescribed by law as the maximum limitation upon the jurisdiction of the small claims court, the following shall apply:
(1) When the party could have brought the action in the small claims division but did not do so, the court may, in its discretion, allow or
deny costs to the prevailing party, or may allow costs in part in any amount as it deems proper.
(2) When the party could not have brought the action in the small claims court, costs and necessary disbursements shall be limited to the actual cost of the filing fee, the actual cost of service of process, and, when otherwise specifically allowed by law, reasonable attorneys' fees. However, those costs shall only be awarded to the plaintiff if the court is satisfied that prior to the commencement of the action, the plaintiff informed the defendant in writing of the intended legal action against the defendant and that legal action could result in a judgment against the defendant that would include the costs and necessary disbursements allowed by this paragraph." (§ 1033, subd. (b)(1) & (2).)
Market Street claims that the statute is "confusing," but insists its "intent is crystal clear." Market Street then proceeds to claim our high court has explained the intent of this statute as follows: "[T]he purpose of the provision was 'to force plaintiffs to bring their cases in the inferior courts wherever possible, and to penalize them if they do not do so.' " (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 983, citing Shotwell v. Bloom (1943) 60 Cal.App.2d 303, 316.) Nevertheless, Chavez is of limited help to Market Street here. In that case, the court was interpreting section 1033, subdivision (a) not subdivision (b). (See Chavez, supra, at pp. 982-984.) Although in a general sense, the Supreme Court's explanation of the purpose of section 1033, subdivision (a) could apply to all of section 1033, there is nothing in the Chavez opinion that involved the interpretation of section 1033, subdivision (b). Specifically, the court did not even hint that section 1033, subdivision (b) applies to unlimited civil actions.
Likewise, Market Street's reliance on Valentino v. Elliott Sav-On Gas, Inc. (1998) 201 Cal.App.3d 692 is not helpful here. That case concerned a superior court's order refusing the plaintiff costs under the former section 1032, subdivision (d). Valentino did not involve an attorney fee award. (See Valentino, supra, at pp. 701-702.)
Nevertheless, Market Street urges this court to interpret that subdivision to apply to cases filed as unlimited civil cases where the plaintiff recovers less than the amount in the small claims court jurisdiction. The subdivision on which Market Street relies (§ 1033, subd. (b)) explicitly applies only to a prevailing party in a limited civil case. (See § 1033, subd. (b) ["When a prevailing plaintiff in a limited civil case recovers less than the amount prescribed by law as the maximum limitation upon the jurisdiction of the small claims court . . . ."; italics added].) Thus, by the subdivision's express terms, it does not apply to unlimited civil actions. We cannot add or strike language in a statute to expand its application. (See Burden v. Snowden (1992) 2 Cal.4th 556, 562 ["Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history."].) The subdivision says what it says. It does not mention unlimited civil actions. We do not and cannot read that term into the statute. Had the Legislature intended section 1033, subdivision (b) to apply to unlimited civil actions, it would have written it that way. It did not. It is not the province of this court to rewrite the statute. Accordingly, we determine that section 1033, subdivision (b) does not apply to unlimited civil cases.
"[T]he small claims court has jurisdiction in an action brought by a natural person, if the amount of the demand does not exceed ten thousand dollars ($10,000) . . . ." (§ 116.221.)
Market Street also suggests that this case actually was a limited, not unlimited civil case. However, it never made any motion in the superior court to reclassify this matter as a limited civil case. To the extent Market Street argued in its opposition to Alexander's motion for attorney fees that the instant matter should be considered a limited civil action, the superior court rejected that argument. Market Street does not explain on appeal why the court's determination was in error. As such, it has forfeited this argument here. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 (Nelson).)
It is not clear in the record that Market Street explicitly made that argument in its opposition to Alexander's motion for attorney fees. Instead, it appears Market Street argued the case could have been filed as a limited civil action, but did not ask the court to reclassify it. Market Street made the limited civil action argument within the context of contending that section 1033, subdivision (b) should prohibit Alexander's recovery of attorney fees.
On appeal, Market Street claims the instant matter should be classified as a limited civil action based on the amount of the accepted section 998 offer. The fact that Alexander settled this matter for less than $10,000 does not compel us to characterize this matter as limited. To the contrary, Market Street clearly never approached this matter as if it was a limited civil case. It engaged in extensive written discovery, conducted videotaped depositions of both plaintiffs, petitioned the court to compel arbitration, appealed the court's order denying arbitration, and then proceeded to engage in more discovery. Ultimately, Alexander accepted Market Street's statutory offer to compromise. And the matter was litigated over two years and included an additional plaintiff who is not a party to this appeal. Against this backdrop, it appears that Alexander and Robert appropriately filed this action as an unlimited civil action.
III
THE ATTORNEY FEES AWARD
Having determined that Alexander was entitled to her attorney fees, we next turn to Market Street's arguments that the court abused its discretion regarding the amount of fees it awarded. To this end, Market Street contends: (1) Alexander was not entitled to any fees incurred after it made the statutory offer to compromise; (2) the superior court did not properly apportion Alexander's attorney fees from her husband's; and (3) the court, in awarding Alexander fees, did not consider Alexander's lack of success or failure to make a settlement demand. We reject these contentions.
A. Fees Incurred After Market Street Served the Section 998 Offer
Market Street contends that Alexander was not entitled to any fees incurred after it made the statutory offer to compromise. Thus, it was error for the superior court to award any such fees.
Alexander maintains that Market Street forfeited this argument by not raising it below. In its reply brief, Market Street acknowledges that it did not make this argument in superior court, but asserts "this issue is not an impermissible new legal theory, just an entirely permissible new and better argument within the same legal theory." Further, Market Street characterizes its assertion here as a continuation of the argument it made to the superior court that the fees requested by Alexander must be apportioned between tasks for Alexander and tasks for Robert. In other words, Market Street appears to contend that all fees incurred after it served the statutory offer to compromise could only be attributable to the representation of Robert.
Market Street further asks this court to recognize that it had less than one week to oppose Alexander's motion for attorney fees so we should expect "better arguments" on appeal. Market Street therefore claims that it has "presented [this court] with a simple legal question, are any of the 100.3 hours Alexander's attorney spent after receiving Market Street's § 998 offer awardable?"
We are somewhat perplexed by Market Street's explanation regarding its argument that Alexander may not recover any attorney fees after it served her with the statutory offer to compromise. On the one hand, Market Street insists it is not a new argument, but simply an improved argument that Alexander's fees must be apportioned between the work her attorneys performed representing her as opposed to representing her husband. To the extent that Market Street merely is restating its apportionment argument, we will address that issue below. However, Market Street's argument seems to be more than an apportionment argument. It appears to be contending that it would not be reasonable for the superior court to award any fees incurred after it made the section 998 offer. This is a factual argument based on the evidence produced to the superior court. It is different than arguing that the fees must be apportioned. As Market Street concedes it did not make this argument to the superior court, we find this new factual argument forfeited. (See City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685 ["Contentions or theories raised for the first time on appeal are not entitled to consideration."].)
On the other hand, Market Street characterizes its argument as presenting a "simple legal question." Alternatively stated, Market Street asserts that, as a matter of law, a plaintiff cannot recover any attorney fees incurred after a section 998 offer is served. However, it provides no authority to support its position. Our independent research uncovered no case law supporting Market Street's contention. Section 998 does not so limit a plaintiff's recovery of attorney fees. And Market Street does not offer any compelling argument that we should create its requested new rule. As such, with this foundation in mind, we do not find the superior court abused its discretion in awarding some fees that were incurred after Market Street served its statutory offer to compromise.
In support of its argument, Market Street cites to two California Supreme Court cases. The first addressed a situation where the plaintiff recovered less at trial than what was offered in the subject section 998 offer it rejected. (See Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1106-1107.) The second case decrees where a plaintiff makes two successive section 998 offers and the defendant fails to obtain a judgment more favorable than either offer, the plaintiff may recover expert fees incurred from the date of the first offer. (See Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1017.) Neither case stands for the proposition that a court cannot award any attorney fees incurred by a plaintiff after the date she received a section 998 offer that she ultimately accepted.
B. Apportionment
It is within the superior court's discretion to allocate awards of attorney fees. The recognized barrier to segregation for purposes of calculating fee awards is the existence of inextricably intertwined issues making it impracticable, if not impossible, to separate the multitude of conjoined activities into compensable and noncompensable fees. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.)
Market Street argues the superior court's failure to apportion fees between work performed for Alexander as opposed to work performed on behalf of Robert rendered the attorney award "inherently unreasonable." In support, Market Street cites Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265 (Heppler).
In Heppler, the appellate court found the trial court abused its discretion in failing to allocate fees. The plaintiffs sued a contractor, who cross-complained against four subcontractors, for construction defects. The trial court awarded plaintiffs all their requested attorney fees against one subcontractor, Martin, pursuant to a contract provision. The Court of Appeal found error, noting: "Martin's part of the case could have been tried in considerably less time than seven weeks had the trial not taken up issues that involved the other nonsettling subcontractors. It strikes us as eminently unfair to tag Martin with all of plaintiffs' attorney fees for the entire seven-week trial. [¶] . . . [¶] Not all the issues involving Martin's case were integrally associated with the other issues in the case; at the very least, some of them could have been severed and isolated for purposes of the attorney fees award." (Heppler, supra, 73 Cal.App.4th at p. 1297.)
In Heppler, a clear line of demarcation existed between the compensable and noncompensable causes of action. In that case, the attorney fees expended in pursuing the other subcontractors fell outside the compensable contract-based attorney fees. (Heppler, supra, 73 Cal.App.4th at pp. 1297-1298.) Here, there is no such distinct boundary. We agree with the superior court that the claims asserted by Alexander and Robert were "identical and completely intertwined." Plaintiffs Alexander and Robert alleged the same six causes of action against Market Street. They lived together and jointly managed the subject apartments. Alexander and Robert claimed to be Market Street's employees, entitled to the same pay.
Market Street contends Robert and Alexander's claims were not identical. For example, it asserts that Robert "sought wages for his labor cleaning and repairing the property" while "Alexander sought wages for her time and labor in collecting rent checks, handling internet postings, and other administrative tasks." Market Street, however, does not cite to the record to support its position. Nor does it indicate where it made this argument to the superior court. It is the appellant's duty to support arguments in his or her briefs by references to the record on appeal, including citations to specific pages in the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) "Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' " (Nelson, supra, 172 Cal.App.4th at p. 862.) "We are not bound to develop appellants' arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) Here, it appears Market Street did not argue to the superior court that the basis for Alexander's claims differed from Robert's claims. Therefore, we find this argument waived.
Instead, in arguing the fees should be apportioned, Market Street took issue with the fact that Alexander's attorney's billing records appeared to lump all discovery tasks together and did not differentiate between the two plaintiffs in regard to discovery. The superior court rejected this argument, observing "it is reasonable to presume that discovery involving Robert Alexander (such as his deposition) would equally benefit and impact both Plaintiffs." The court reached this conclusion based on its finding that the claims asserted by Alexander and Robert were "identical and completely intertwined." Market Street now takes issue with this finding, but has not supported its position with citations to the record or relevant authority. As such, it has waived this challenge. (Nelson, supra, 172 Cal.App.4th at p. 862; In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)
Market Street additionally maintains that the superior court only should have awarded Alexander her pro rata share of her attorney fees because Robert was still actively litigating against Market Street. In support of its positon, Market Street relies on Kahn v. The Dewey Group (2015) 240 Cal.App.4th 227 (Kahn). However, Kahn does not help Market Street's argument. That case stands for the proposition that when defendants make a joint section 998 offer, in evaluating a defendant's later motion for an enhanced cost award under section 998, it is necessary to view the plaintiff's cumulative recovery against all defendants for purposes of deciding whether the plaintiff obtained a more favorable judgment. (Kahn, supra, at p. 242.) The court's holding in Kahn thus does not lead us to conclude that the superior court erred here in failing to pro rate Alexander's requested attorney fees.
Moreover, Market Street's reliance on Kahn, supra, 240 Cal.App.4th 227 is further misplaced because Robert's litigation against Market Street has been resolved. Per a separate statutory offer to compromise, judgment was entered in favor of Robert against Market Street in the amount of $30,000. The judgment did not provide for Robert to receive any attorney fees. As such, there is no concern that Robert will recover attorney fees for the same work that supports the award to Alexander.
In addition, we note that the superior court did not award certain fees to Alexander that were incurred after she accepted the section 998 offer as well as fees related to Robert's unemployment claim.
For these reasons, we conclude the superior court did not abuse its discretion in failing to apportion or pro rate Alexander's requested fees.
C. Alexander's Alleged Lack of Success and Failure to Make a Demand
Market Street finally contends the superior court abused its discretion in awarding Alexander attorney fees because it did not consider her lack of success in the litigation as well as her failure to make a demand. In support of its position, Market Street claims the instant action "involves the same exact issue" as EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770 (EnPalm). We disagree.
In EnPalm, the appellants obtained a judgment in a real estate fraud and breach of contract action, and as prevailing parties, moved for $116,000 in contractual attorney fees. (EnPalm, supra, 162 Cal.App.4th at pp. 772-773.) The appellants' fee request, as the Court of Appeal noted, "did not include a calculation based on their lawyers' time and hourly rates (the lodestar) and did not include attorney timesheets." (Id. at p. 773.) Despite this, the trial court applied its familiarity with the case and lodestar principles to reach a reasonable attorney fee of $50,000, which it reduced to $5,000 because one of the appellants intentionally lied under oath about various material matters. (Ibid.) The trial court ruled that the action could have been resolved in its early stages had the witness been more forthcoming as to the true facts, and specifically found " 'the vast majority of the time incurred by the Teitler Defendants' counsel was not reasonably incurred.' " (Ibid.) On appeal, the appellants argued the trial court erred by reducing their attorney fees as punishment for litigation misconduct. The appellate court noted that the appellants did not support their position "by way of argument, discussion, analysis, or citation to the record." (Id. at p. 775.) The appellate court thus deemed the appellant's challenge waived and did not address the merits. (Ibid.)
There are no analogous facts here. In the instant matter, in support of her motion for attorney fees, Alexander submitted time sheets and requested fees based on an hourly rate. No such evidence was offered in EnPalm. In this case, unlike the court in EnPalm, the superior court did not make a finding that Alexander misrepresented material facts that prevented an earlier resolution of this matter. Further, in EnPalm, the appellate court found most of the appellants' arguments waived on appeal. In short, EnPalm, supra, 162 Cal.App.4th 770 is not instructive here.
Despite these stark differences, Market Street insists Alexander's failure to provide specific calculations of her alleged damages is equivalent to one of the appellants misrepresenting the "true facts" in EnPalm, supra, 162 Cal.App.4th 770. It is not. Additionally, the record reflects that Alexander and Robert made at least two settlement demands in this action.
Further, we are not persuaded by Market Street's argument that Chavez, supra, 47 Cal.4th 970 and Dorsey v. Superior Court (2015) 241 Cal.App.4th 583 (Dorsey) warrant a different result here. In Chavez, our high court determined that in considering a motion for attorney fees, the court must look both to FEHA policies and, where appropriate, section 1033, subdivision (a)'s policy of promoting efficiency in litigation. (Chavez, supra, at pp. 986-988.) The court therefore found the superior court did not abuse its discretion in denying the plaintiff its attorney fees "in light of plaintiff's minimal success and grossly inflated attorney fee request[.]" (Id. at p. 976.)
Fair Employment and Housing Act (Gov. Code, §12900 et seq.). --------
Here, Alexander did not make a FEHA claim and the superior court did not find that Alexander's requested attorney fees were "grossly inflated." Additionally, Market Street does not claim that the superior court did not properly exercise its discretion under section 1033, subdivision (a). Thus, although Chavez, supra, 47 Cal.4th 970 provides an example of a superior court properly exercising its discretion to deny a request for attorney fees under section 1033, subdivision (a), neither the facts nor the law of that case lead us to conclude the superior court abused its discretion here.
Like Chavez, supra, 47 Cal.4th 970, Dorsey, is no help to Market Street. In that case, we concluded that the statutory cap on attorney fees per section 116.780, subdivision (c) for a small claims appeal overrode a contractual attorney fee provision in a lease. (Dorsey, supra, 241 Cal.App.4th at pp. 598-599, 602.) As the instant matter does not involve a small claims appeal or the applicability of section 116.780, subdivision (c), Dorsey is not germane.
Here, Market Street made the decision to aggressively litigate this matter. It served a substantial amount of written discovery, took the videotape depositions of the two plaintiffs, filed a petition to compel arbitration, appealed the order denying that petition, engaged in additional written discovery, and ultimately made a section 998 offer that Alexander accepted. That offer specifically stated that Alexander could seek her attorney fees. Although we acknowledge the amount of the judgment was slightly less than $10,000 and we understand that Market Street was frustrated by Alexander's attorney's refusal to provide a detailed breakdown of the two settlement demands, this is simply not near enough to persuade us that the superior court abused its discretion in awarding fees here.
In summary, "[a]n award of attorney fees is committed to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. [Citation.] 'The appellate court should interfere only if it finds that, under all the evidence viewed most favorably in support of the trial court's decision, no judge could reasonably have made the challenged order.' [Citation.]" (City of Oakland v. McCullough (1996) 46 Cal.App.4th 1, 9.) We will reverse an award of attorney fees as excessive only where there has been a manifest abuse of discretion. (EnPalm, supra, 162 Cal.App.4th at p. 774.) On the record before us, Market Street failed in its burden to establish that the superior court abused its discretion. (See Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 128.)
DISPOSITION
The order is affirmed. Alexander is awarded her costs on appeal.
HUFFMAN, Acting P. J. WE CONCUR:
HALLER, J.
AARON, J.