Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. CV150863
RUSHING, P.J.
This appeal arises out of appellant Augeas Corporation’s (Augeas) lawsuit against its former employees, Ashley Anelcha Hague Krupski, Rhett Frantz, James Allen, Nathaniel Allen, Sean Maple and Joe Mangine, for starting and/or working at a competing business called Allterra Environmental (Allterra) that ultimately, lured clients away from Augeas. Augeas alleged a number of causes of action against defendants, including misappropriation of trade secrets belonging to Augeas, and unfair business practices. The case proceeded to court trial, resulting in a complete defense verdict. Following the trial, defendants sought reimbursement of attorney fees under Civil Code section 3426.4, based on their argument that Augeas maintained its action for misappropriation of trade secrets against defendants in bad faith. The trial court granted defendants’ motion, and ordered Augeas to pay $100,000 in attorney fees.
In these two consolidated appeals, Augeas seeks reversal of the judgment entered in favor of defendants, and the trial court’s grant of their motion for attorney fees in the amount of $100,000.
Statement of the Facts and Case
Augeas is an environmental remediation corporation, specializing in leaky underground fuel tanks, and has offices in Santa Barbara and Santa Cruz. The type of remediation performed by Augeas is funded by California’s Underground Storage Tank Cleanup Fund (USTCF), which provides up to $1.5 million per site. Because of the nature of the governmental oversight on USTCF projects, environmental remediation contractors, such as Augeas, must make public the identity and location of its clients, and the specific work it is doing for them. Client information is available to the public through these required, public filings.
James Allen worked for Augeas from January of 1999 until February of 2004, and served as the lead project manager for the Santa Cruz office.
Shortly after leaving Augeas in February 2004, James Allen formed a partnership with Jonathon Lear called Allterra that would perform environmental services similar to Augeas. Lear is a registered geologist, and his credentials were required to run an environmental remediation company. After forming Allterra, Greg Nolan joined Jonathon Allen and Lear as a partner. In July 2004, Allterra incorporated.
Jonathan Lear, Greg Nolan and others are the subject of another almost identical lawsuit filed by Augeas. In that case, Augeas added another defendant, named Bob Brown as a “doe” defendant who was an employee of Augeas client WSO. Brown filed a motion for summary judgment that that trial court granted. Brown also filed a motion for attorney fees under Civil Code, section 3426.4, seeking reimbursement of fees in the amount of $194,990.25 for Augeas’s bad faith in bringing and maintaining an action for misappropriation of trade secrets against Brown. The trial court granted the motion and ordered payment of the attorney fees in full. That case is before this court on appeal in case numbers H031275 and H032082.
Following the formation of Allterra, James Allen made contact with two of Augeas’s existing clients. They were Steve Lopes of Western States Oil (WSO), and Walt Ancewicz.
When James Allen called Lopes at WSO, he announced his new business. Lopes, in turn, invited James Allen to come to WSO and leave some business cards so WSO could pass them around. When James Allen went to WSO to drop off the business cards, WSO invited him to bid on a job located at 498 South 4th Street in San Jose. In addition to Allterra, Augeas was also asked to bid on the 4th Street work, and another environmental contractor, Weber Hayes bid as well.
WSO accepted the Allterra bid for the 4th Street environmental work, because it was the least expensive of the three bids. At the time WSO accepted Allterra’s bid for the 4th Street work, it also asked Allterra to do some additional work, including some sampling, and the creation of a Spill Prevention Plan. Following this additional work in September 2004, WSO replaced Augeas with Allterra for all of its environmental remediation work. Allterra did not request that WSO terminate Augeas, or that it be replaced to complete WSO’s environmental remediation work.
In addition to WSO, the second Augeas client that James Allen contacted following his formation of Allterra was Walt Ancewiz, whom James Allen had met through his employment at Augeas. James Allen called Ancewiz and announced Allterra, and Ancewiz in turn, invited James Allen to send him a letter outlining his new business venture. Following the letter, there was no further communication between Ancewiz and James Allen.
In addition to James Allen, other employees also left Augeas around the same time. Joe Mangine began working for Augeas in November 1999, and quit in April 2004. In November 2004, Mangine briefly worked for Allterra part time for one to two months, until he found full time work elsewhere. Nathaniel Allen worked for Augeas from August 2002, until he quit in April 2004. After leaving Augeas, Nathaniel went to work with his brother, James Allen at Allterra. Ashley Krupski worked for Augeas from May 2003 until she was fired in May 2004. After being fired by Augeas, Krupski went to work at Allterra as its bookkeeper. Sean Maple worked for Augeas from July 2003 until July 2004 when he was fired. Unlike the other Augeas employees, Maple never worked for Allterra.
Augeas filed a lawsuit against these former employees, alleging the following 13 causes of action: (1) deceit; (2) breach of fiduciary duty; (3)breach of duty of loyalty; (4) trade libel; (5) defamation; (6) intentional interference with contract; (7) intentional interference with prospective economic advantage; (8) misappropriation of trade secrets; (9) unfair competition; (10) constructive trust; (11) accounting; (12) fraud; and (13) conversion.
The gravamen of Augeas’s complaint is that its former employees, Krupski, Frantz, James Allen and Nathaniel Allen, Maple and Mangine conspired to leave Augeas, create the competing business, Allterra, and lure clients away from Augeas.
The case proceeded to court trial in July 2006, and at the close of Augeas’s case, defendants Mangine and Maple, both appearing in pro per, moved for judgment in their favor, which the court granted.
Following the close of the remaining defendants’ case, the court found in favor of defendants as to all causes of action. The court made the following findings, as stated in its amended statement of decision filed November 30, 2006: (1) no trade secrets were misappropriated, because Augeas offered no evidence “regarding any proprietary data or information that would constitute a potential trade secret,” and offered no evidence that it “attempted to keep any of its information confidential;” (2) “Allterra and the other defendants engaged in no conduct that was unlawful, fraudulent or unfair and nothing done was likely to mislead the public in any way;” (3) no claim for interference with contractual relationships or prospective business relationships was proven at trial; (4) defendants did not convert any of Augeas’s property; (5) defendants are not liable for concealment, fraud or deceit; (6) defendants did not breach any duty of loyalty to Augeas; and (7) defendants did not make any defamatory or libelous statements about Augeas.
Following the court’s entry of judgment in favor of defendants Krupski, James and Nathaniel Allen and Allterra moved for an award of attorney fees pursuant to Civil Code section 3426.4. The court awarded attorney fees in the amount of $100,000.
Augeas filed timely notices of appeal as to the judgment and the award of attorney fees.
Discussion
The two consolidated appeals in this case relate to the trial court’s entry of a complete defense judgment following court trial, and its grant of defendants’ motion for attorney fees in the amount of $100,000.
Judgment Following Court Trial
Augeas asserts the trial court erred in entering judgment in favor of defendants following court trial.
Contrary to Augeas’s assertion that we review the trial court’s findings de novo, our concern on appeal is whether the judgment is supported by substantial evidence. “Our consideration of the issue whether the judgment was supported by substantial evidence is governed by the well-established standard of review applicable to any claim that a judgment or finding is not supported by the evidence in the record. Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) Nevertheless, the record provides persuasive evidence in supporting the trial court’s decision.
Misappropriation of Trade Secrets
Augeas alleged in its complaint that defendants took client information, and used that information to solicit business in the competing Allterra endeavor. Augeas asserts the client information was a protected trade secret, and that that defendants misappropriated the secret.
A trade secret is defined by Civil Code section 3426.1, subdivision (d) as information that: “(1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
Thus, matters of public knowledge or of general knowledge in an industry cannot constitute a trade secret. (Aetna Bldg. Maintenance Co. v. West (1952) 39 Cal.2d 198, 206.) For this reason, a list of customers or, by a parity of reasoning, a list of suppliers, cannot constitute a trade secret or confidential information where the products in question are sold in an open, competitive market. (Continental Car-Na-Var Corp. v. Moseley (1944) 24 Cal.2d 104.)
Here, Augeas asserts its client list was a trade secret, and that defendants misappropriated that information when they left the company. However, the evidence produced at trial did not establish that Augeas’s client lists were trade secrets. By the nature of the work Augeas’s work, and the requirement that it file reports with public agencies that contain client information and a description of Augeas’s services, all client information was available to the public. Indeed, there is no evidence that Augeas attempted to maintain any secrecy of the client information, because it could not—all information was required to be filed, and available online, by anyone, at anytime, without password protection. Simply put, there is nothing secret about who Augeas’s clients were, or what work Augeas did for them. Because its clients were a matter of public knowledge, Augeas cannot claim that the client list is a trade secret. In addition, because there was nothing secret about the client list, the client list was not subject any misappropriation on defendants’ part.
Our review of the record reveals that there is substantial evidence to support the trial court’s finding that Augeas could not establish that its client list was a trade secret, and therefore, defendant’s use of client information was not a misappropriation.
Unfair Business Practices
Augeas alleged that Allterra engaged in unfair business practices in violation of Business & Professions Code, section 17200, because Allterra did not have the required licensed individuals working with it to meet the standards for environmental remediation service providers.
The record before us contains substantial evidence to support the trial court’s finding that “Allterra and other defendants engaged in no conduct that was unlawful, fraudulent or unfair and nothing done was likely to mislead the public in any way.” Specifically, the record shows that Jonathon Lear, who was an original partner in Allterra, was a licensed geologist as required by law, and reviewed and supervised all of Allterra’s work.
Moreover, the only evidence produced by Augeas in support of its unfair business practices claim was the testimony of its Vice President, Keith McVicker. “Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine. The trier of fact’s determination will be interfered with on appeal only when it appears that the witness’ testimony is inherently so improbable as to be unworthy of belief. [Citation.]” (Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877.) Impliedly, the court below found McVicker not to be credible witnesses. On review, an appellate court may not reweigh witnesses’ credibility and substitute its determination. (See Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1076.)
Our review of the record reveals that there is substantial evidence to support the trial court’s finding defendants did not engage in unfair business practices in violation of Business & Professions Code, section 17200.
Intentional Interference with Contract and Prospective Economic Advantage
Augeas alleged in its complaint that defendants used Augeas’s client information to induce some clients to breach their existing contracts with Augeas for service and to interfere with Augeas’s prospective business.
“The elements which a plaintiff must plead and [prove in order to prevail on a] cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.’ [Citation.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.)
“To prevail on a cause of action for intentional interference with prospective economic advantage in California, a plaintiff must plead and prove (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) the defendant’s intentional acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the defendant's acts.” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1152, fn. 6.) “The elements of the tort of interference with prospective economic advantage do not require a plaintiff to allege that the defendant acted with the specific intent, or purpose, of disrupting the plaintiff's prospective economic advantage.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1155.)
“[A] plaintiff seeking to recover for interference with prospective economic advantage must also plead and prove that the defendant engaged in an independently wrongful act in disrupting the relationship.” (Reeves v. Hanlon, supra, 33 Cal.4th at p. 1152 ; see also Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at pp. 1154-1159; Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393.) An act “is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at p. 1159, fn. omitted.)
Here, there was no evidence produced at trial that defendants induced any of Augeas’s clients to breach existing contracts with Augeas, or interfered in any way with Augeas’s prospective business. In particular, with regard to Augeas’s relationship with WSO in which Augeas asserts defendants interfered, there was no evidence that defendants intentionally did anything to induce WSO to terminate its existing business relationship with Augeas. Additionally, WSO’s act of offering James Allen and Allterra all of the work it was originally doing with Augeas, and James’s acceptance of that offer did not constitute James’s intentional act interfering with Augeas’s contract. Indeed, it was WSO that came to James Allen to offer work, and James Allen was free to accept the offer.
The evidence produced at trial does not support Augeas’s claim that defendants intentionally interfered with its contracts, or interfered with Augeas’s prospective economic advantage.
Conversion
Augeas alleged that defendant James Allen and Joe Mangine are liable for converting Augeas property including a company-owned car, and computer software.
“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff’s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of the property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.” (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543-544.)
With regard to James Allen, Augeas argued that his use of a company-owned car to drive to a job interview with another company amounted to conversion of the car. The primary problem with Augeas’s argument, however, is that it could not establish at trial that it placed any limits or restrictions on James Allen’s use of the car, specifically providing that James Allen could use the car in personal pursuits. In addition, Augeas could not show any interference with its ownership or right to the car by James Allen’s personal use.
Moreover, with regard to Augeas’s allegation that Joe Mangine converted software on a company-owned computer, Augeas could not establish at trial that it actually owned or had a right to use the software on the computer. In addition, like the car, Augeas placed no restrictions on Mangine’s use of the software at any time.
Our review of the record reveals that there is substantial evidence to support the trial court’s finding that neither James Allen, nor Joe Mangine converted any of Augeas’s property.
Concealment, Fraud and Deceit
Augeas alleged that defendants were liable for concealment, fraud and deceit in connection with the creation of Allterra and the resultant loss of business to Augeas.
Concealment is a species of fraud or deceit. (See Civ. Code, §§ 1710, subd. (3), 1572, subd. (3); Lovejoy v. AT & T Corp. (2004) 119 Cal.App.4th 151, 158 (Lovejoy).) “[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613; Lovejoy, supra, 119 Cal.App.4th at pp. 157-158.)
At trial, while Augeas established that both Nathaniel Allen and Ashley Krupski knew about James Allen’s creation of Allterra in March 2004, Augeas did not establish that their failure to notify Augeas of that fact was concealment. In particular, Augeas did not establish that Nathaniel Allen or Ashley Krupski had any duty to report what its former employee, James Allen, was doing in his business endeavors.
The record demonstrates that there is substantial evidence to support the trial court’s conclusion that defendants are not liable for concealment, fraud or deceit.
Breach of Fiduciary Duty and Duty of Loyalty
At trial, Augeas alleged defendants breached their duty of loyalty and their fiduciary duty by starting Alterra using information from their employment at Augeas. The trial court found that defendants owed no fiduciary duty to Augeas, because none of them were officers or directors of the company. The trial court also found defendants did not breach their duty of loyalty to Augeas by starting a competing business.
The elements of a cause of action for breach of a duty of loyalty, by analogy to a claim for breach of fiduciary duty, are as follows: (1) the existence of a relationship giving rise to a duty of loyalty; (2) one or more breaches of that duty; and (3) damage proximately caused by that breach. (See Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1102.)
An employee does not breach his duty of loyalty by preparing to compete with his employer. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 414; Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 41; Bancroft-Whitney Co. v. Glen (1966) 64 Cal.2d 327, 346; 19 Williston on Contracts (4th ed. May 2008) § 54:27, fn. omitted [“Employees whose contracts are terminable at will have a right to terminate their employment for the purpose of competing with their employer, and may plan and prepare to create a competitive enterprise prior to their termination, without revealing their plans to their employer, so long as they do so on their own time and with their own resources”].)
Here, James Allen’s action of starting Allterra, and other defendants’ actions of leaving Augeas and working for Allterra, does not constitute a breach of their duty of loyalty to Augeas. The law does not prevent employees from looking for alternative employment while currently employed, nor does if prevent employees from preparing to compete with their current employees.
The record supports the trial court’s finding that defendants did not breach a fiduciary duty or duty of loyalty to Augeas.
Conclusion on Trial Court’s Judgment
Our review of the record reveals that there is substantial evidence to support the trial court’s determination on the causes of action asserted against defendants. We therefore affirm the judgment entered by the trial court in favor of the defendants.
Motion for Attorney Fees
Following the court trial, defendants filed a motion for attorney fees in the amount of $114,317.85 under Civil Code section 3426.4, based on his assertion that Augeas brought the action against them for misappropriation of trade secrets in bad faith. The trial court awarded defendants fees in the amount of $100,000.00 under section 3426.4.
All further unspecified statutory references are to the Civil Code.
“Attorney fees are allowable as costs to a prevailing party when authorized by statute. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10)(B).)” (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921.) The statutory fee award at issue here was made pursuant to section 3426.4, which is part of the California Uniform Trade Secrets Act, and section 1717.
Section 3426.4 provides in pertinent part as follows: “If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorney’s fees and costs to the prevailing party.”
As noted in the leading case, Gemini, the Uniform Trade Secrets Act “does not define ‘bad faith’ as used in section 3426.4….” (Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1261 (Gemini).) Until Gemini was decided, there was “no reported California case interpreting the term.” (Ibid.; see also, 13 Witkin, Summary of Cal. Law (10th ed., 2005) Equity, § 91, p. 389.) In defining bad faith for purposes of section 3426.4, the Gemini court discussed and ultimately adopted the reasoning of a federal case, Stilwell. (Gemini, supra, 95 Cal.App.4th pp. 1261-1262, discussing Stilwell Development, Inc. v. Chen (C.D.Cal. Apr. 25, 1989, No. CV86 4487 GHK) 1989 U.S. Dist. Lexis 5971 (Stilwell).)
After thoroughly analyzing the issue, the Gemini court concluded “that ‘bad faith’ for purposes of section 3426.4 requires objective speciousness of the plaintiff’s claim, as opposed to frivolousness, and its subjective bad faith in bringing or maintaining the claim.” (Gemini, supra, 95 Cal.App.4th at p. 1262.) This court has expressed agreement with that conclusion. (Yield Dynamics, Inc. v. TEA Systems Corporation (2007) 154 Cal.App.4th 547, 578 (Yield).)
Generally speaking, an appellate court reviews a fee order deferentially, for an abuse of discretion. “A request for an award of attorney fees is entrusted to the trial court’s discretion and will not be overturned in the absence of a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Yield, supra, 154 Cal.App.4th at p. 577.)
The same deferential abuse of discretion standard applies to fee awards made pursuant to section 3426.4. “An award of attorney fees for bad faith constitutes a sanction [citation], and the trial court has broad discretion in ruling on sanctions motions.” (Gemini, supra, 95 Cal.App.4th at p. 1262.) We will not disturb the trial court’s exercise of discretion, as long as “ ‘some evidence exists in support of the factual findings,’ ” and the decision does not exceed “ ‘the bounds of reason.’ ” (Ibid.)
Based on our review of this record we find sufficient evidence to support both prongs of the bad faith test. (Gemini, supra, 95 Cal.App.4th at p. 1262.)
“An objectively specious claim is defined as one without substance in reality.” That definition is derived from the Stilwell case. (Stilwell, supra, 1989 U.S. Dist. LEXIS 5971 at p. *9 [to warrant an award of fees under section 3426.4, “the claim must have been without substance in reality, if not frivolous”].)
In this case, the record supports a finding that Augeas’s claims against defendants were objectively specious. Augeas produced no evidence that it had any trade secrets, because by the nature of its business all identifying client information was open and available to the public. In addition, Augeas produced nothing to demonstrate that defendants ever possessed any secret information, or misappropriated it in any way.
In addition to the record supporting a finding of objective bad faith, it also demonstrates subjective bad faith, which “ ‘ “means simply that the action or tactic is being pursued for an improper motive.” ’ ” (Gemini, supra, 95 Cal.App.4th at p. 1263.) The plaintiff’s “subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence.” (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 932; accord, Gemini at p. 1263; Yield, supra, 154 Cal.App.4th at p. 578.) “While the deterrent purpose of § 3426.4 requires subjective misconduct, the speciousness of the claim is some evidence upon which the court could rely in its assessment of subjective misconduct.” (Stilwell, supra, 1989 U.S. Dist. LEXIS 5971 at p. *12.)
In this case, we find no basis for reversing the trial court’s implicit finding of subjective bad faith. Bad faith may be inferred from the objective speciousness of appellant’s claim. (Stilwell, supra, 1989 U.S. Dist. LEXIS 5971 at p. *12.) There is no evidence in the record to support any of Augeas’s claims against defendants, as evidenced by the complete defense verdict following court trial. (Cf. Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 872 [“the record reveals nothing to support a finding of subjective bad faith” given the “convincing evidence on both sides,” and the fact that “two jurors voted to award [plaintiff] damages”].)
Conclusion on Defendants’ Motion for Attorney Fees
The record supports the court’s factual determination that Augeas brought and maintained its trade secret claim against defendants in bad faith. Both prongs of the bad faith test are satisfied here. Objectively, the claim is specious. Subjectively, it was brought for an improper motive. Given the well-supported finding of bad faith, the trial court did not abuse its discretion in awarding attorney fees as a sanction under section 3426.4.
Disposition
The judgment is affirmed, and the trial court’s order that Augeas pay $100,000 in attorney fees is affirmed.
WE CONCUR: PREMO, J., ELIA, J.