Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. V 0205665
SIMONS, J.
Defendants/appellants, husband and wife, Mehdi Mohammadian and Fereshteh Mohammadian appeal a judgment following court trial in favor of plaintiff/respondent DCM Construction and Services, Inc., by and through its assignee of judgment, Robert B. Jacobs, in respondent’s action for breach of contract and foreclosure of mechanic’s lien, and on appellants’ cross-action for breach of contract, negligence, contractual indemnity, cancellation of instrument, misrepresentation and civil conspiracy. Appellants contend the court erred in concluding that respondent did not breach the parties’ contract, awarding respondent a judgment of foreclosure and awarding respondent unreasonable attorney fees. We affirm.
Solely for clarity and with no disrespect intended, we refer to appellants individually by their first names.
While this court on October 10, 2008, denied Jacobs’s request to be substituted in as respondent of record, the assignee of a legal right may continue to pursue that right in the name of the assignor. (See generally 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, §§ 262-264, pp. 337-342.)
In April 2003, prior to trial, the court ordered severed: (1) the sixth, seventh and eighth causes of action in appellants’ first amended and operative cross-complaint against respondent and Neff Rental, Inc. (Neff); (2) any cross-complaint by Neff against appellants or respondent; and (3) any cross-complaint filed by respondent against Neff. Trial ensued on respondent’s second amended and operative complaint against appellants and on the first through fifth causes of action of appellants’ cross-complaint against respondent.
Respondent’s motion to dismiss the appeal and request for judicial notice, filed October 6, 2008, is denied. Respondent’s request for judicial notice, received December 16, 2008, is deemed filed and is denied.
We state the facts in the light most favorable to the trial court’s decision, resolving all conflicts and indulging all reasonable inferences to support the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, abrogated on another ground as stated in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 100.) To the extent the trial court’s findings of fact are not challenged on appeal, we accept the facts set forth in its statement of decision. (See City of Merced v. American Motorists Ins. Co. (2005) 126 Cal.App.4th 1316, 1322-1323.)
Preliminarily, we note both parties’ appellate briefs have violated California Rules of Court, rule 8.204(a)(1)(C). Appellants’ briefs contain numerous misstatements, misrepresentations and/or omissions of the evidence presented at trial, and both parties’ briefs contain numerous factual statements unsupported by any citation to the appellate record. Any facts which do not accurately cite to the record or for which there are no citations to the record will be disregarded.
All further rule references are to the California Rules of Court.
Respondent is a licensed general engineering contractor, specializing in service station construction. Its president is Jeffrey Deakin. At trial, the court confirmed Deakin as an expert in the field of retrofit and underground construction relating to petroleum and petroleum products.
Appellants own a Cal Gas service station (hereafter, Cal Gas or the project) in San Lorenzo, which they purchased in 1990. Mehdi manages the service station. Mehdi, a licensed civil engineer and general contractor, has been involved in construction since 1964. However, except for work done at Cal Gas, he has not been involved in activities relating to service station construction.
Although Cal Gas was up to code, appellants decided to upgrade it by replacing its entire underground system, except for the three underground storage tanks. Robert Weston, senior hazardous material specialist for ACEHD, suggested to Mehdi that respondent could do the job. In early December 2000, respondent and Mehdi began negotiating a contract for the upgrade. As of trial, Deakin had done approximately 1, 000 service station projects over the course of 27 years. Of those, more than 15 involved complete gas station retrofits, and several were very similar to the project.
In 2000, the Alameda County Environmental Health Department (ACEHD) suggested that contamination at Cal Gas might stem from the existing system. Therefore, Mehdi decided to “change everything” to make sure the equipment was installed correctly.
The Contract
The contract went through several revisions prior to its execution. On January 30, 2001, respondent and Mehdi entered into a written contract drafted by respondent pursuant to which respondent was to retrofit three underground storage tanks, piping, and fuel islands at Cal Gas. The first two pages of the contract contained an “outline” of the “Scope of Work” which states, in part: “[Respondent] will assist with requirements of the Upgrade of the existing system and provide single-line drawings for client approval before submitting the plans to the required agencies and prior to the start of new construction.” It also provided that respondent would “excavate the tank tops of the [underground storage tanks] at the pump end for installation of the new piping sumps” and, after the existing system was uncovered, inspected and found to meet the requirements for approval of an upgrade, respondent would “install all necessary components to meet the current requirements and provide a turn-key system” which included various specified items. It also excluded respondent from paying for permits.
The contract contained 19 provisions under the heading “Terms and Conditions.” The “Scope of Work” provision provides, in part: “The scope of work (and related plans and specifications) may not be modified or amended, unless the changes are first agreed to in writing by [Mehdi] and respondent.”
The “Site Conditions” provision specified that respondent would “not be responsible for unanticipated and/or unforeseen site conditions, including subsurface utilities, piping, and facilities. In the event additional costs are incurred as a result of such unanticipated and/or unforeseen site conditions, [appellants] shall pay all such costs.”
The contract specified $48,669 as the “total upgrade cost, ” and noted that respondent had received a down payment of $10,000 on January 30, 2001.
The contract provided that work must commence within 30 days of execution of the contract. It also provided: “Upon receiving the approved plans paid for by others, [respondent] will start the project within [five] working days.” A handwritten notation signed by Deakin and initialed by Mehdi stated, “Project to be completed in [four] weeks or [one] week after delivery of dispenser.” Time was of the essence.
A prior version of the contract stated “Upon receiving the approved permits paid for by owner, [respondent] will start the project within [five] working days.” (Italics added.) Mehdi was never advised that this quoted sentence was modified in the final contract executed by the parties.
Respondent was to perform the work in accordance with industry standards and, if within 30 days after completion the parties determined there was substantial and material error in respondent’s performance as a result of reasonable and customary professional practices not having been met, respondent would “take such corrective action as may reasonably be necessary, within the original scope of work, to substantially remedy the error.”
The “Insurance” provision stated: “[Respondent] shall procure and maintain, at its expense, during the term of this Agreement, insurance, including policies covering: Worker’s Compensation; Employer’s Liability; Automobile Liability and Commercial General Liability. [Respondent] shall provide client with insurance certificates showing limits of insurance for coverage[s] listed above.” A handwritten notation initialed by Deakin and Mehdi stated, “Client to be named as additional insured.”
The “Independent Contractor” provision stated, in part: “[Respondent] is, and shall perform this Agreement as, an[] independent contractor and shall have and maintain complete control over its employees, agents and operations. Neither [respondent] nor anyone employed by [respondent] shall be, represent, act, purport to act, or be deemed to be the agent, representative, employee or servant of Client.”
The “Litigation” provision stated: “If any legal action or any arbitration o[r] other proceeding is brought for the enforcement of this agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with these terms and conditions o[f] the Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney[] fees and other costs and expenses incurred in that action or proceeding.”
Single-Line Drawings
On February 1, 2001, Deakin met with Weston and submitted to him an “Application for Underground Storage Tank Installation” regarding the Cal Gas retrofit. Attached to the application were two single-line drawings respondent prepared for the project. According to Deakin, the fire and health departments have always accepted his single-line drawings. Deakin explained that single-line drawings are common in the industry regarding service station retrofits, particularly for smaller independent service stations. According to Weston, it is not uncommon for ACEHD to receive a single-line drawing, such as that submitted by Deakin, in conjunction with a proposed service station retrofit. Weston explained that small, independent gas stations use single-line drawings as installation plans, rather than “engineer stamp” plans, to save money. Although ACEHD “expects” to receive single-line drawings in two views-a “plan view” and a side view-showing generally how the connections are being made and the system is being built, single-line drawings such as that submitted by Deakin are acceptable to ACEHD. Weston approved respondent’s application subject to several conditions. Mehdi never received a copy of respondent’s single-line drawings.
The application submitted to ACEHD expressly stated, “The owner or operator must acknowledge this responsibility for workplan submittal by signature and date below.” Weston conceded that he added Mehdi’s name to the application in order to establish the fact of Mehdi’s ownership of Cal Gas.
After respondent submitted an application for plan review, including the single-line drawings, to the Alameda County Fire Department (fire department), the fire department’s deputy fire marshal, Robert Bohman, contacted Deakin. According to Bohman, the single-line drawings lacked some of the detail the fire department “liked to see.” However, after Bohman and Deakin met and went over Deakin’s submittal, Bohman had sufficient information and detail regarding the project to enable him to proceed based on the application and drawings Deakin had previously submitted. At that point Bohman felt confident that the work would be done correctly.
Respondent submitted an application to the Bay Area Air Quality Management District (BAAQMD) for installation of a new vapor recovery system and other equipment for the project. A single-line drawing was attached to the application. According to Scott Owen, BAAQMD’s supervising engineer, many of the applications received by BAAQMD contain drawings “extremely similar” to Deakin’s. On February 27, 2001, BAAQMD issued respondent a permit regarding the Cal Gas retrofit.
The single-line drawing attached to the BAAQMD application differed from that submitted with the ACEHD application; however, there is no evidence explaining the differences between the drawings.
Slope
On February 5, 2001, respondent began work on the project. At the commencement of the upgrade, Cal Gas was fully functioning and up to code.
The petroleum industry standards established by the Petroleum Equipment Institute require that all underground pipes have at least a one-eighth inch slope downward in the direction of the tanks per lateral foot. Such a slope is almost flat. The requisite slope helps to prevent leakage and ensure early leak detection.
On February 27, 2001, BAAQMD issued respondent a permit regarding the Cal Gas retrofit. The permit required that all vapor recovery piping possess this minimum one-eighth inch downward slope.
On March 9, 2001, after visiting the project site, Mehdi sent respondent a letter expressing concern that respondent had laid the piping with too much unnecessary crossing and, therefore, not enough minimum slope. Mehdi reminded respondent of the one-eighth inch slope requirement and offered to assist respondent with a plan for the piping. On March 14, Mehdi faxed respondent a letter stating, “All of the gas pipelines including the lateral and vapor recovery lines should have Minimum required slope. No reverse slope is acceptable. Furthermore, once again you should not backfill till I control the slope of all of the piping and allow the backfill.”
The same day, respondent informed Mehdi in writing that on March 15, 2001, final testing of the underground piping system would take place, witnessed by Weston. Upon Weston’s approval, backfill of the excavated area would begin. On the morning of March 16, respondent would be ready to have Mehdi verify the slope of the new piping system. Then, following approval from ACEHD and verification of positive slope back to the tanks, respondent would complete the backfilling. Respondent’s letter also stated that, on Mehdi’s site visit, the parties needed to resolve the issue of removal and installation of new “manway lids” and noted that, since the fire department had approved the Cal Gas retrofit application, Mehdi should pay the fire department permit fee.
Mehdi did not attend the March 15, 2001 testing, but arrived at the project site on March 16. Weston inspected and tested the piping on March 15 or 16. He noted that one or two of the laterals did not have positive slope but accepted Deakin’s assurances that the final adjustments would be made later.
On March 17, 2001, Mehdi informed respondent that the previous day he had surveyed the slope of respondent’s piping. Based on his survey, Mehdi concluded the requisite minimum slope had not been maintained in many sections of the gas lines, especially the vapor recovery lines. He said that by ignoring the minimum slope requirement, respondent’s work was not acceptable for approval. Mehdi included a proposed written plan for less pipe crossing. Mehdi also said he refused to pay the fire department permit fee because he had not seen respondent’s permit application. On March 19, respondent accused Mehdi of delaying the project “on issues you are unfamiliar with.” On March 20, Mehdi again told respondent not to backfill until the minimum slope was attained. He also said he would arrange for BAAQMD to inspect the project. On March 22, respondent responded that Mehdi’s drawings actually verified the slope on all the main pipe runs. It also stated that if agreement on slope was not soon reached, respondent would bring in a third party surveyor to confirm the slope and test the vapor recovery system in compliance with BAAQMD requirements. Respondent again stated that removal and installation of new manway lids was necessary for completion of the vapor recovery line, and that Mehdi needed to pay for the fire department permit.
Respondent hired land surveyor Matthew Chapman to check the elevation of some of the exposed piping that was laid out at the project site. According to Deakin, it was not necessary for Chapman to verify the slope of the piping, because the lines were not set at their final grades ready to receive concrete. Chapman’s survey was intended to provide evidence that proper slope was obtainable. Thus, when respondent would go back and set the final grade, the lines could be adjusted to a proper location. Respondent supplied Chapman with the target elevations for the pipes and, on March 22, 2001, Chapman checked the elevations. Most of the elevations were good, and a few were a little bit off. From the elevation readings and the distance between the points where the elevation readings are taken, it is possible to calculate the amount of slope.
After respondent had covered up the piping, it hired a third party, Scott Co. of California (Scott Co.), to perform a ST-27 dynamic backflow pressure test. At the time of the test, respondent had completed all but the last connection of the vapor recovery line. Usually, the test is performed on a completed system 10 days after start-up to detect physical blockage in a pipe. Respondent had the test performed to attempt to verify to Mehdi the slope of the piping. After advising Mehdi that the test results showed no blockage, Mehdi was still dissatisfied.
Thereafter, Deakin personally began the final setting of the lines prior to pouring the concrete. The process involved crawling along the entire length of piping and checking the elevation levels. Adjustments were made by removing or adding pea gravel until the pipe settled at the correct level. This backfilling process is done at the same time the slope is confirmed.
On March 26, 2001, Mehdi demanded that respondent stop the backfilling, remove the rebar and complete the piping for the vapor recovery line “to be ready for control of slope of all the pipeline, and inspection by [BAAQMD].” On March 27, respondent responded that BAAQMD merely required the requisite slope verified by the ST-27 test after startup. It also informed Mehdi that, to date, respondent had passed every inspection regarding the project required by all known regulatory agencies. The same day Mehdi responded that BAAQMD would inspect the completed piping system. He also stated that respondent was to do no backfilling or install any rebar until it submitted to Mehdi the “plans” required under the parties’ contract. Finally, he stated that before respondent would be allowed to backfill, “all of the system [would] be controlled to be sure that we have maintain the Minimum requirement base of permits.”
In a March 29, 2001 letter to respondent, Mehdi stated: “This is to inform you that you have abandoned the job and during [the] last three weeks you have not performed even two hours of positive work.” It also stated respondent had failed to submit the contractually required plans to Mehdi, complete the job on time, complete more than 20 percent of the job satisfactorily, complete the vapor recovery line, and return equipment respondent had removed from the jobsite. In the letter, Mehdi threatened to take legal action against respondent. In a March 30 letter, respondent answered as follows: First, it could not complete the vapor recovery line without installing new manway lids, an issue Mehdi repeatedly ignored. Second, it had submitted the requisite plans to him on January 30 and those documents were executed by him and approved by all regulatory agencies. Third, it had met all requirements by having third party verification of the slope of the new piping system. Fourth, a discrepancy between the new components and the manufacturer’s requirements and Mehdi’s failure to pay supplier Shields Harper had caused delay. Fifth, respondent was 80 percent complete on the project. Sixth, Mehdi was responsible for the unnecessary delays in completing the project due to Mehdi’s ignorance regarding the contract and standard construction procedures, the additional work required outside the contract, and Mehdi’s failure to procure remaining equipment and materials. Respondent provided a list of unresolved issues and their estimated costs. Respondent’s letter concluded: “You have left [respondent] with no options other than for [it] to demobilize from your site and take its own appropriate legal action against you to finalize these matters.” In a March 31, 2001 letter, Mehdi told respondent to remove the rebar, expose all of the pipelines and complete the vapor recovery lines to make it possible to control the vapor system and control the minimum slope requirement.
On April 3, 2001, respondent requested that Mehdi meet Deakin at the project site to discuss completion of the project.
The next day, April 4, 2001, Mehdi and Deakin met at the project site. At that point the laterals were covered with pea gravel and rebar. Deakin refused Mehdi’s request to remove the pea gravel and expose the pipes so Mehdi could check to see if they had the requisite slope. Had Deakin complied, he would have had to start over from the point of Weston’s inspection and reset all the lines and replace the rebar, a four- or five-day process. Mehdi offered respondent no extra compensation to comply with his request and Deakin thought there was no reason to redo work that was satisfactory. At that point, Deakin believed that his company had been terminated from the project and thought he had no choice other than to remove his tools and materials and leave the job site. Later the same day, Mehdi’s attorney faxed a letter to respondent stating that due to respondent’s failure to prepare the plans pursuant to the contract and timely complete the work, Mehdi had the right to immediately terminate the contract. Respondent was given the choice of immediately delivering to Mehdi the plans approved by the government agencies, resuming work within 24 hours and finishing the job promptly, or awaiting a court action for damages. Deakin rejected both options.
On April 5, 2001, Mehdi informed respondent that he had removed rebar and exposed part of the plumbing work respondent had performed and discovered numerous “mistakes.” Mehdi stated that he asked Scott Co. to correct respondent’s mistakes and complete the job. However, Mehdi’s letter encouraged respondent to “ask... Scott Co. or anybody else to help you and to begin [to complete the project] A.S.A.P.” On April 6, Mehdi wrote to Scott Co. and encouraged it to immediately arrange a crew for correction and completion of the project.
On April 9, 2001, Weston arrived at the project site. He checked the levels of the laterals and found some negative slopes which did not match Chapman’s March 22 survey data. Weston also observed some secondary pipes which were not acceptable and was surprised that the electrical conduit had passed inspection. Weston found that between the time of his March 15 inspection and his April 9 site visit, the condition of the job was “significantly different, ” and some things had been moved and were out of position. The site was “very vulnerable” and in a state of “temporary support” because the concrete had not yet been poured.
On April 10, 2001, Mehdi again wrote to respondent stating that respondent had breached the contract and encouraging respondent to complete the job. On April 19, appellants’ counsel wrote to respondent’s counsel stating that respondent did not have an enforceable contract or right to complete the job and requesting that respondent return all of the construction plans and permits to the jobsite. On April 23, Mehdi wrote to Scott Co. clarifying that respondent no longer had a valid contract to complete the work and arranging for Scott Co. to do so.
On May 11, 2001, respondent filed a complaint against Mehdi for breach of contract. In July, respondent recorded a mechanic’s lien against the property claiming $47,545.55 remained due and owing to respondent.
On September 3, 2002, respondent filed its second amended and operative complaint against appellants alleging breach of contract, indebitatus assumpsit, quantum meruit, and foreclosure of its mechanic’s lien. On September 11, appellants filed their first amended and operative cross-complaint against respondent alleging breach of contract, negligence, slander of title, cancellation of instrument, and misrepresentation.
The month-long trial began in May 2003. The parties’ dispute regarding the slope of the piping was a major issue at trial. Weston testified that after Mehdi expressed concern that respondent was not installing the lines with an adequate amount of slope, Weston went to the job site and visually checked the piping and laterals respondent had installed. There was pea gravel present but the backfilling had not been completed and the concrete had not yet been poured. When Weston expressed concern to Deakin that there was insufficient slope in two laterals, Deakin assured Weston that during the final backfilling and rebar work prior to laying the concrete, all of the sloping would be made appropriate. Weston explained that the final backfilling part of the construction process is done with bare hands to position the gravel backfill and set the pipe in it to achieve the correct slope. Weston opined that Deakin could adjust the slope during the backfill process to ensure the proper slope.
Deakin also testified that after the piping is installed in the pea gravel, but before the project is resurfaced, the pea gravel can move and change the elevations of the piping. Thus, the final setting of the pipes to the correct slope is the last thing that should be done before the final backfill and resurfacing.
Bill McCarthy, an employee of Scott Co., testified that the slope of the piping should be checked throughout installation. He explained that after the pipe is laid in the pea gravel the slope should be checked. He also said it is standard industry practice to recheck the slope before backfilling is completed. McCarthy explained that this is the “single most important” time to check the slope because that’s when it becomes “locked” in place.
Trial Court’s Decision
On April 12, 2004, the court issued its written “Decision, ” concluding that Mehdi terminated the parties’ contract without justification, respondent had not breached the contract at the time of the termination, and appellants’ fraud cause of action lacked merit. The court made the following findings:
Pursuant to the contract, respondent was to construct the project as an independent contractor with complete control over its employees, agents and operations. Mehdi interfered with respondent’s authority and attempted to take control of the construction activities on the project. Mehdi’s demands for assurance and interference with the project compromised the completion date.
Prior to excavation, respondent could not have determined the configuration of the manway lid covers because the manway covers were surrounded by pea gravel and the potential effects of their removal precluded determination prior to excavation. The issues surrounding the purchase and installation of the manway lid covers further extended the completion date.
However, the court found that Deakin’s March 6, 2001 change order calling for new four-hole manway lids was unnecessary and, therefore, properly rejected by Mehdi.
Although respondent failed to supply Mehdi with the single-line drawings, Mehdi’s continued working with respondent “acted as an acceptance of th[o]se inadequacies, and the violation was de minimus as the plans or drawings were acceptable to the regulatory agencies.”
On April 4, 2001, Mehdi demanded that Deakin expose the pipes and confirm their slope; Deakin refused, after advising Mehdi of his intent to achieve the proper minimum slope immediately prior to backfilling. Deakin and “other credible witnesses” concluded that the minimum slope is finally achieved by a series of adjustments made immediately before backfilling. Thereafter, Mehdi terminated the contract. The April 4 termination was not justified since at that point Weston found the pipes in compliance with ACEHD’s criteria and Deakin was constructing the project in conformance with the requirements of the fire department, building inspection department, and ACEHD. In addition, Deakin had initiated the necessary permit processes and passed all inspections.
The court determined that respondent has no liability to appellants either for the costs to complete the project or for any lost sales or profits. At the time respondent left the job, the project was between 60 and 65 percent completed. Based on the contract price of $48,669, after deducting appellants’ down payment of $10,000, respondent is due $21,634.85 plus interest from April 4, 2001. “The fact that the job was worth more and that Deakin underbid it does not result in increased recovery.”
The court concluded that respondent was the prevailing party and, therefore, entitled to contractual attorney fees and costs.
An amendment to the court’s decision also concluded: “[Respondent] has established the necessary elements to sustain its cause of action for foreclosure of mechanics lien. [Respondent] is therefore entitled to an order of foreclosure such that... Cal Gas...” will be sold at a foreclosure sale. The court found that appellants are each personally liable for the judgment, and stated that if the sale of the property results in proceeds that are insufficient to pay the $21,634.85 awarded to respondent, a deficiency judgment shall be entered against appellants for the balance due.
Postjudgment Orders
On December 16, 2004, the court awarded respondent $184,000 in attorney fees. The attorney fee order stated that the amount awarded did not include any costs claimed by, or awardable to, respondent.
On January 25, 2005, the court denied appellants’ motion to vacate the judgment or, in the alternative, for a new trial.
On February 14, 2005, appellants filed a timely notice of appeal from the orders denying appellants’ motion to vacate or for new trial and awarding respondent attorney fees.
DISCUSSION
I. Respondent Did Not Breach the Contract as to Plans
Appellants contend respondent breached the contract by failing to prepare “plans” for the project. They also argue that respondent failed to provide them with its single-line drawings and failed to follow any plans or drawings in carrying out its construction work.
The contract included the following references to plans: The “Scope of Work” provision of the contract stated that respondent would “provide single-line drawings for client approval before submitting the plans to the required agencies and prior to the start of new construction.” (Italics added.) That provision also stated that respondent would provide “all necessary electrical work as required by the Approved Installation Plans, power to be obtained at the nearest electrical supply as shown on preliminary plans by [respondent].” (Italics added.) Another provision of the contract stated, “The scope of work (and related plans and specifications) may not be modified or amended, unless the changes are first agreed to in writing by [Mehdi] and [respondent].” (Italics added.) The contract also stated: “These terms and conditions, the Agreement (including its attachments, plans, and specifications) constitute the full and complete agreement of the parties and may only be amended, added to, superseded, or waived in a writing signed by both parties.” (Italics added.)
It is undisputed that the only plans prepared and submitted by respondent to the required agencies were Deakin’s single-line drawings.
A. Appellants Failed to Establish That the Single-Line Drawings Did Not Meet the Permitting Agencies’ Requirements
Appellants contend that the single-line drawings submitted by respondent to the regulatory agencies responsible for issuing permits for the project did not meet the requirements of the regulatory agencies for plans. The issue is a question of fact reviewable for substantial evidence.
With no explanation, appellants conclusorily assert that single-line drawings did not meet the requirements of the contract. Because they do not present any substantive analysis or argument or citation of legal authority challenging the trial court’s implied conclusion that the single-line drawings provided by respondent met the terms of the contract, they have waived such claim on appeal. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; Bayside Auto & Truck Sales, Inc. v. Department of Transportation (1993) 21 Cal.App.4th 561, 571; People v. Ham (1970) 7 Cal.App.3d 768, 783, disapproved on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) In any case, the contract expressly stated that respondent would provide single-line drawings. As we discuss in part I.B. below, substantial evidence was presented that respondent and the regulatory agencies accepted the single-line drawings as plans in approving the project, and the drawings met the industry standard.
The substantial evidence standard of review applies to all express and implied findings of fact made by the court, and the prevailing party, here respondent, receives the benefit of all reasonable inferences that may be drawn from the evidence in its favor. (See SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462; Estate of Carter (2003) 111 Cal.App.4th 1139, 1154.) All conflicts in the evidence must be resolved in favor of the court’s findings and judgment, and we defer to the trial court on all questions of witness credibility. (See Kahn v. Department of Motor Vehicles (1993) 16 Cal.App.4th 159, 168-169; Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1024-1025, overruled on another ground in Shamblin v. Brattain (1988) 44 Cal.3d 474, 479, fn. 4.) Thus, where there is substantial evidence in support of the trial court’s decision, we have no power to substitute our deductions. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 429-430 & fn. 5.)
Appellants note that the ACEHD permit application requires that the “[d]rawings and submissions” must be drawn to scale and the scale “is to be at least 1/4 inch to the foot, ” and must “show location of tanks and all associated piping.” Although Deakin testified that respondent’s single-line drawings are drawn to less than the required scale, the application bears a check mark next to the scale requirement. Deakin said he did not know who made the check marks on the application that he submitted to Weston. The short answer to appellants’ contention is that ACEHD’s approval of respondent’s application for the project was at least an implied approval of the acceptability of the single-line drawings attached to the ACEHD application, despite the fact that they were not drawn to the requisite scale.
Appellants also note that BAAQMD’s Owen testified that respondent’s single-line drawings did not have vapor lines or manifolding of the vent lines. However, appellants cite no evidence that, as a result, the drawings did not meet BAAQMD requirements. In fact, Owen testified that if a proposed plan does not have specific detail requiring a plan review, BAAQMD does not require that plans be submitted in conjunction with a permit application. And, Owen did not think BAAQMD had required that drawings or plans be submitted in connection with the project.
Appellants also cite testimony by Bohman that respondent’s single-line drawings were not “completely adequate” for fire permit purposes because they lacked some details the fire department likes to see regarding items such as set back distances. However, appellants fail to note that because the single-line drawings lacked certain details, Bohman met with Deakin and reviewed the scope of the project and permit submittal. After that meeting, Bohman had sufficient information and detail regarding the project to proceed on the basis of the information Deakin had previously submitted.
B. The Single-Line Drawings Met the Industry Standard
Citing the Petroleum Equipment Institute, Recommended Practices for Installation of Underground Liquid Storage Systems (4th ed. 2000) (PEI manual), appellants contend that respondent’s single-line drawings did not meet the industry standard for plans. Page 1, section 1.5 of the PEI manual states, in part: “The plans should describe the property, identify the size and location of the tanks, indicate the liquids to be stored, and provide the location of the dispensers and piping. Plans should also specify the materials of construction, piping dimensions, location of electrical service components, and the dimensions and locations of vents, observation wells, vapor recovery systems, and gauges or monitoring systems.”
Whether respondent’s single-line drawings met the industry standard is a question of fact reviewable for substantial evidence. Appellants provide no evidence establishing that the cited section of the PEI manual is the sole and controlling industry standard. Deakin explained that single-line drawings are most common in the industry for service station retrofits, particularly for smaller independent service stations. Weston testified small, independent gas stations use single-line drawings as installation plans, rather than “engineer stamp” plans, to save money. This testimony, together with the evidence that the drawings were accepted by the regulatory agencies, supports the court’s implied finding that the drawings met the industry standard.
C. Respondent’s Failure to Supply Mehdi with the Single-Line Drawings Was Not a Material Breach of Contract
Appellants argue that respondent’s failure to supply Mehdi with the single-line drawings constituted a breach of contract. Substantial evidence supports the trial court’s finding that respondent failed to supply Mehdi with the single-line drawings prior to the commencement of construction as required by the contract. However, Deakin testified that there were copies of the drawings on the project site every day. Moreover, as the court concluded, Mehdi’s continued working with respondent constituted an acceptance of this “inadequac[y]” and any breach was de minimus because the drawings were acceptable to the regulatory agencies. Consequently, no material breach of contract is demonstrated.
In a related claim, appellants contend they were not obligated to pay for the fire department permit because the condition precedent of providing Mehdi with the plans for approval prior to submission to the fire department was not met. Because this argument is raised for the first time in appellants’ reply brief, it is waived. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 9:78.2, p. 9-26.)
D. Respondent Did Not Fail to Perform Work Based On Plans
Appellants contend respondent breached the contract by failing to perform the work based on plans. In support they cite only Deakin’s deposition testimony “I may play with fittings and pipe in the trenches to see how they best lay [out], but other than that, I don’t prepare any drawing to do that.” Appellants’ argument borders on frivolous. Deakin testified that once the piping and existing tank had been uncovered, there was no need for a drawing showing the exact layout of the piping to be installed because without such a drawing he was able to utilize industry standards in installing the pipes and the layout was open to inspection.
II. Any Contractual Ambiguity Is Immaterial
Appellants contend the final version of the contract executed by Mehdi and Deakin is ambiguous as to which party will pay for plans. They argue that the ambiguity was the result of Deakin’s mistake in drafting the contract, and therefore the contract should be revised to read as the parties intended; that is, that Mehdi would pay for permits and respondent would pay for plans.
The short answer to appellants’ contention is that any error due to contractual ambiguity is immaterial and caused appellants no harm. Respondent agrees that the contract should be interpreted to require appellants to pay for the permits. As to plans, appellants cite no evidence establishing that respondent ever received any plans regarding the project from others or obligated appellants to pay for any plans.
III. Slope
Appellants concede that the court properly found that the requisite one-eighth inch minimum slope was achievable at the project. However, they contend that respondent breached the contract in failing to install the piping and laterals in accordance with the minimum slope requirement. The issue is a question of fact reviewable for substantial evidence.
We conclude substantial evidence supports the court’s implied conclusion that respondent did not breach the contract by installing the piping with an incorrect slope. Weston, Deakin, and McCarthy all testified that the final slope of the piping should be determined during the final backfilling, just prior to the concrete resurfacing. Westin testified that in his March 15 or 16, 2001 inspection, only one or two lateral pipes appeared to have an improper slope. Weston accepted Deakin’s assurances that Deakin would correct the slope of those laterals prior to final backfilling and concrete resurfacing. On April 9, four days after Mehdi removed pea gravel and rebar, Weston reinspected the piping and found the jobsite significantly changed from his March 15 or 16 inspection. Weston stated that because the concrete had not yet been poured, the site was “very vulnerable” and in a state of “temporary support.” Weston also said that things that he had inspected on March 15 or 16 had been moved.
Based on this evidence the court could reasonably conclude that, as of Weston’s March 15 or 16 inspection, respondent had properly installed the piping with the requisite slope and the few sloping inaccuracies found would be corrected. The court could also reasonably conclude that any problems with slope found by Westin on his April 9 inspection were not caused by respondent.
IV. Other Substantial And Material Defects
Appellants assert numerous alleged construction defects by respondent that appellants state are substantial and material. However, the short answer to appellants’ contention is that they cite no evidence establishing that these asserted defects are alone or in combination substantial and material so as to constitute a breach of contract. Moreover, they have failed to establish that respondent would have failed to remedy the asserted problems had Mehdi not terminated the contract.
V. Failure to Cure
Next, appellants contend that despite Mehdi’s numerous requests that respondent correct deficiencies in its work, respondent willfully and intentionally refused to do so, justifying rescission of the contract. In support, they cite Mehdi’s letters to respondent dated March 9, 14, 17, 20 and 21, 2001.
Appellants rely on Bonadelle Construction Co. v. Hernandez (1959) 169 Cal.App.2d 396, 399 (Bonadelle) in arguing that “[a] partial failure of consideration resulting from the wilful failure of plaintiff to perform a material part of the contract is sufficient to justify defendants’ rescission. [Citations.]” In Bonadelle, the defendants agreed to purchase a house and the plaintiff seller agreed the house would be constructed in accordance with Veterans Administration (VA) requirements. (Id. at p. 397.) After the exterior stucco coat had been applied, the defendants noted that it was blotched and streaky and notified the plaintiff that the condition of the house was unsatisfactory and unacceptable. Although the plaintiff repeatedly insisted it would correct the problem after the defendants took possession, the plaintiff thereafter refused to do so. After the defendants orally rescinded the contract, the plaintiff sued for breach of contract. (Id. at pp. 397-398.) The Court of Appeal upheld the trial court’s determination that the plaintiff’s willful and intentional failure to perform according to the specifications and VA requirements after notice of the defective condition justified the defendants’ rescission. (Id. at pp. 398-399.)
Bonadelle is distinguishable. In that case, the stucco work had been completed at the time the defendants complained to the plaintiff that the work was unsatisfactory and unacceptable. There was no dispute as to whether the work was defective and the plaintiff’s refusal to correct the defective work was determined to be willful and intentional. Here, the evidence established that the major work of which Mehdi complained was in process at the time Mehdi demanded it be corrected. In particular, as we noted above, substantial evidence was presented that the proper slope of the piping would be attained just prior to backfilling. However, Mehdi terminated the contract prior to respondent’s completion thereof. As to any of the other alleged defects that may have been completed by respondent at the time Mehdi terminated the contract, appellants have not established that these defects are alone or in combination substantial and material so as to constitute a breach of contract.
VI. There Was Substantial Evidence That Mehdi Interfered With Respondent’s Work
Next, appellants argue that the trial court erred in “finding that Mehdi’s conduct of inspecting the work and demanding that defects be cured constituted ‘interference.’ ” Appellants misstate the court’s statement of decision. The court found that Mehdi interfered with respondent’s authority as an independent contractor by “attempt[ing] to take control of the construction activities on the project.”
As previously noted, the parties’ contract stated, in relevant part: “[Respondent] is, and shall perform this Agreement as, an[] independent contractor and shall have and maintain complete control over its employees, agents and operations. Neither [respondent] nor anyone employed by [respondent] shall be, represent, act, purport to act, or be deemed to be the agent, representative, employee or servant of Client.”
“An independent contractor is one who renders service in the course of an independent employment or occupation, following his employer’s desires only as to the results of the work, and not as to the means whereby it is to be accomplished. [Citations.] The general supervisory right to control the work so as to [e]nsure its satisfactory completion in accordance with the terms of the contract does not make the hirer of the independent contractor liable for the latter’s negligent acts in performing the details of the work. [Citation.]” (McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788 (McDonald).) “[T]he owner may retain a broad general power of supervision and control as to the results of the work so as to [e]nsure satisfactory performance of the independent contract-including the right to inspect [citation], the right to stop the work [citation], the right to make suggestions or recommendations as to details of the work [citation], the right to prescribe alterations or deviations in the work [citation]-without changing the relationship from that of owner and independent contractor or the duties arising from that relationship.” (Id. at p. 790.)
“ ‘... The chief consideration which determines one to be an independent contractor is the fact that the employer has no right of control as to the mode of doing the work contracted for.’ [Citations.]” (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 21, p. 60.)
Pursuant to McDonald, appellants argue that Mehdi had the right to make inspections, keep account of the general progress of the work, inform respondent when satisfactory results were not achieved and stop work if the results of respondent’s work were not satisfactory. Moreover, appellants argue that Mehdi’s “mere insistence that [respondent] cure the defects in its work did not constitute interference with the contract.” They assert there is no evidence that Mehdi interfered with or directed respondent in its independent operations or took control of the project. Respondent appears to concede that appellants had the right to inspect respondent’s work but not to control it.
Deakin, Weston, and McCarthy testified that the final slope of the piping should be determined during the final backfilling just prior to the concrete resurfacing. Weston testified that upon his March 15 or 16, 2001 inspection, only one or two laterals appeared to have an improper slope. Weston accepted Deakin’s assurances that Deakin would correct the slope of those laterals prior to the final backfilling and concrete resurfacing, and approved the project. In his March 14 letter, Mehdi insisted that Deakin not do any backfilling until Mehdi “control[led] the slope of all piping and allow[ed] the backfill.” Thereafter, Mehdi repeatedly insisted that Deakin not backfill until the requisite minimum slope was attained. On March 26, after Deakin had begun the final setting of the lines and backfilling, Mehdi demanded that respondent stop the backfilling and remove the rebar. This evidence alone supports the court’s finding that Mehdi attempted to control respondent’s construction activities and thereby breached the independent contractor provision in the contract.
VII. The Issue of Weston’s Negligence Is Speculative
Appellants next contend that Weston’s negligent or inadequate inspection does not relieve respondent of its contractual duties to perform work free from defects and in accordance with the permit requirements. They argue that the trial court “was apparently under the erroneous belief that simply because [respondent] claimed that... Weston, purportedly gave his approval as to the project that meant the project was done correctly and [respondent] had satisfied [its] duty of care.”
We reject appellants’ claim of error. Appellants’ assertions regarding the trial court’s “belief” are merely speculative and unsupported by the record before us.
VIII. Substantial Evidence Supports the Trial Court’s Finding That Mehdi Caused Delay
Appellants assert that the trial court’s finding that Mehdi’s conduct caused the delay in the contract’s completion deadline is unsupported by substantial evidence. They argue that the evidence establishes that respondent caused the delay in completion of the project. Once again, we conclude substantial evidence supports the trial court’s finding.
The contract provided that the project was to be completed in four weeks, and, since work on the project began on February 5, 2001, the estimated completion date was March 5. Deakin testified that soil sampling required by Weston was unforeseen and caused a five-day delay in the project, extending the completion date to March 10. Mehdi also delayed the completion date by refusing to pay for the fire department permits. On March 22, respondent explained to Mehdi that until he paid for the fire department permits, respondent would not know whether the fire department had attached any special conditions for completion of the project. In addition, from March 14 through April 4, Mehdi interfered with respondent’s construction by demanding that respondent not backfill, attempting to control the slope issue, and demanding that respondent uncover the piping already installed. The court could reasonably conclude that such interference contributed to the project’s delayed completion date.
IX. Substantial Evidence Supports the Trial Court’s Finding That Mehdi Terminated the Contract
Appellants’ next claim of error is less than clear. In their opening brief they title their claim of error “[RESPONDENT] ABANDONED THE CONTRACT, ” but appear to assert that the trial court erred in concluding that Mehdi terminated the contract without justification, instead contending that respondent abandoned the project on April 4, 2001. However, appellants fail to support this claim with any legal authority regarding abandonment of contract or establishing why the court erred in concluding that Mehdi terminated the contract unjustifiably. Consequently, their claim of error is forfeited. (Rule 8.204(a)(1)(B); Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 (Dabney) [we do not consider any argument unsupported by authority].)
The legal authority cited by appellants does not address contract abandonment; it addresses substantial performance. (See Lowy v. United Pacific Ins. Co. (1967) 67 Cal.2d 87; Tolstoy Constr. Co. v. Minter (1978) 78 Cal.App.3d 665.)
“ ‘ “Termination” occurs when either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach. On “termination” all obligations which are still executory on both sides are discharged but any right based on prior breach or performance survives.’ [Citations.]” (1 Witkin, Summary of Cal. Law, supra, Contracts, § 925, p. 1022.) The trial court found that Mehdi terminated the contract on April 4, 2001, after Deakin refused his demand to uncover the pipes. The trial court found that, at the time of the termination, Deakin was constructing the project in conformance with the requirements of the fire department, building inspection department, and ACEHD, and had initiated the necessary permit processes and passed all inspections. Thus, the trial court concluded that Mehdi’s contract termination was not justified. Substantial evidence supports the trial court’s findings and conclusion.
X. Respondent’s Failure to Name Mehdi as an Additional Insured
Next, appellants contend that respondent breached the contract by not naming Mehdi as an additional insured. Respondent concedes that it failed to name appellants as additional insureds, but argues the error was harmless since appellants suffered no resulting damage. Appellants argue, “[Respondent’s] intentional failure to name Mehdi as an additional insured placed a risk upon the owner, which the owner specifically advised he was not willing to assume. If [appellants] had been named as an additional insured, pursuant to [respondent’s] umbrella Commercial General Liability policy, [respondent’s] insurance carrier, Everest, would have provided them coverage for the property damages they experienced as a result of [respondent’s] defective construction.” Appellants summarily assert that the trial court “failed to address [respondent’s] failure to name Mehdi as an additional insured in its decision.” Assuming this is an assertion that the court erred in failing to address this issue in its decision, we refuse to consider the claim because appellants have failed to support it with any citation of legal authority or citation to the appellate record. (Rule 8.204(a)(1)(B); Dabney, supra, 104 Cal.App.4th at p. 384.) Moreover, we reject appellants’ claim as conclusory, speculative, and factually unsupported. Appellants fail to point to any specific language in the Everest policy establishing their entitlement to coverage had Mehdi been named as an additional insured.
For similar reasons, we reject appellants’ claim that respondent made fraudulent misrepresentations about its tender of coverage to Everest. Appellants assert that despite respondent’s denials of tender to Everest, Everest accepted respondent’s tender and paid respondent some amount in settlement. The apparent thrust of appellants’ argument is that since Everest paid money to respondent, Everest would have paid money to appellants had Mehdi been named as additional insureds. Once again, on the basis of the record before us, the argument is conclusory, speculative, and factually unsupported. No error is shown.
We assume that appellants’ claim is that the court erred in finding that respondent did not commit fraud as to its tender of coverage to Everest.
XI. Mechanic’s Lien
Appellants next contend respondent violated Civil Code sections 3123 and 3118 by willfully overstating the amount of its mechanic’s lien. The mechanic’s lien filed by respondent was in the amount of $47,545.55. Appellants appear to hold respondent additionally responsible for the $6,838.85 mechanic’s lien filed by Neff. Thus, appellants argue that the $54,384.40 amount of the combined liens was “grossly overstated” because it was more than the total contract price of $48,669 minus the $10,000 down payment. Appellants also argue that respondent’s lien was significantly more than the amount due respondent based on the value of its actual performance, which appellants assert is $13,184.50 minus the $10,000 down payment.
Civil Code section 3123 provides, in relevant part:
Civil Code section 3118 provides: “Any person who shall willfully include in his claim of lien labor, services, equipment, or materials not furnished for the property described in such claim shall thereby forfeit his lien.”
However, as we noted above, all claims by and against Neff were ordered severed. Consequently, we do not consider the amount of Neff’s lien or any assertions regarding that lien.
Absent a finding of intent to defraud, mistakes and errors, including those as to the amount due, in a claim for a mechanic’s lien will not invalidate the lien. (Callahan v. Chatsworth Park, Inc. (1962) 204 Cal.App.2d 597, 608-609 (Callahan) [interpreting the predecessor statute to section 3118].) The existence of fraud presents a question of fact. (Callahan, at p. 609.) The elements of fraud are “ ‘ “ ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity...; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” ’ ” (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 806-807.)
Here, respondent filed its lien in an amount slightly less than the contract price. Appellants have presented no evidence establishing that respondent claimed that amount with knowledge that it was false or with the intent to defraud appellants. For the same reasons we reject appellants’ assertion that respondent’s mechanic’s lien was barred by “the doctrine of ‘unclean hands’ because it was a misuse of statutory remedies.”
We also reject appellants’ conclusory argument that “[t]he judgment received from [respondent’s] counsel on September 2, 2004, misrepresented the foreclosure process and added procedures not codified, and thus violated... Code of Civil Procedure section 7290.030.” Appellants fail to cite to the record in support of this claim or error and there is no section 7290.030 in the Code of Civil Procedure.
Finally, we reject appellants’ claim that the court erred “when it disregarded the laws governing mechanics’ liens by ordering that Cal Gas be sold at foreclosure sale. The law allows for a foreclosure sale if, and only if, the final judgment cannot be satisfied; it further erred in allowing the mechanic’s lien to attach to [appellants’] personal assets and personal residence.” Appellants did not raise this claim below and have failed to cite any legal authority for the claim in their appellate brief. Consequently, the claim is waived.
XII. Appellants Have Failed to Demonstrate the Trial Court’s Ruling Regarding Fraud Was Erroneous
Next, appellants contend the court’s determination that the fraud cause of action in their cross-complaint is without merit is erroneous and contrary to substantial evidence. They allege numerous separate instances of fraud. Once again appellant’s failure to cite any legal authority in support of their fraud claim constitutes a forfeiture of their claim on appeal. In any case, on the merits, we conclude the fraud claim was properly rejected by the court.
As we noted above, in reviewing the record for substantial evidence we must resolve all conflicts in the evidence and all conflicting inferences in favor of the trial court’s findings and judgment. Here, the trial court impliedly found that appellants failed to meet their burden of establishing their fraud claim. Because we must resolve all conflicts in the evidence in favor of the judgment, appellants cannot merely point to some evidence in the record and argue that it provides substantial evidence of fraud. In order to successfully assert that the court’s ruling on the fraud claim is unsupported by substantial evidence, they would have to argue that there is undisputed evidence establishing respondent’s fraud and the evidence yields only one reasonable inference; that respondent committed fraud. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 376-377, pp. 434-436.) Appellants have failed to establish that the evidence they refer to is capable of only one inference, and therefore fail to demonstrate that the court erred in rejecting the fraud claim. Moreover, appellants’ failure to cite any legal authority in support of their fraud claim constitutes a forfeiture of the fraud claim on appeal.
XIII. Discovery
Appellants contend the trial court “ignored [respondent’s] discovery abuse.” However, the only evidentiary ruling they complain of was the trial court’s sustaining of respondent’s foundational objection to Mehdi’s testimony regarding a particular photograph. Consequently, we confine our review to that evidentiary ruling.
On the last day of trial, during further direct examination of Mehdi, respondent’s counsel stated, that morning, Deakin had found some photographs regarding the project that had not previously been “introduced” in discovery. He stated that he had previously had copies of these photographs but the copies were of poor quality. Counsel stated he would not try to introduce the photographs into evidence but would make the photographs available to appellants’ counsel. Thereafter, the trial court admitted into evidence, as exhibit 107, a group of photographs. Subsequently, in looking at one of the photographs in exhibit 107, Mehdi stated, “I don’t know what date it is. But as far as there is no wiring there, I am definitely sure it was during the course of construction which they depicted not me. If we have all of the photos, the photo was evidence of wrongdoing of [respondent] on the lateral.” At that point, the trial court sustained respondent’s counsel’s objection that Mehdi’s testimony lacked foundation.
The parties have agreed that exhibit 107 is missing and, on October 23, 2009, we denied appellants’ motion to correct the record to include it.
The trial court’s ruling on respondent’s counsel’s lack-of-foundation objection is reviewed for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 207.) To the extent the trial court interpreted Mehdi’s statement, “if we have all the photographs, ” as creating a mere inference that respondent had withheld discovery, the trial court could reasonably sustain the objection based on appellants’ lack of evidence of any discovery abuse. Even assuming the trial court’s ruling was error, appellants fail to assert or demonstrate any prejudice therefrom.
XIV. Attorney Fees Were Properly Awarded
Finally, appellants challenge the trial court’s award of $184,000 in attorney fees to respondent on a number of grounds. First, they contend that respondent was entitled to recover fees only for enforcement of the contract; it was not entitled to fees for pursuing its noncontract-based claims or for defending against appellants’ cross-complaint. They also contend respondent was not entitled to attorney fees for appellants’ cross-complaint against Neff or in seeking insurance coverage. Second, they argue that respondent’s attorney fee award was disproportionate to its damages award. Third, they argue the court erroneously awarded respondent fees for the $12,000 in interest charged to respondent and for costs including stamps, photocopies, and telephone charges. Finally, they assert that the fees respondent sought for preparing its attorney fee and cost memoranda, meetings and phone calls between respondent and counsel prior to the action being filed, telephone conferences, and document review, and for “unrecoverable items” were excessive.
A. The Contractual Attorney Fee Clause
As we noted above, the parties’ contract contained the following attorney fee provision: “If any legal action or any arbitration o[r] other proceeding is brought for the enforcement of this agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with these terms and conditions o[f] the Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney[] fees and other costs and expenses incurred in that action or proceeding.”
B. Attorney Fees Sought By Respondent
Pursuant to Civil Code section 1717, respondent initially sought $222,085.74 in attorney fees for charges including hourly attorney and paralegal fees, photocopy charges, postage, investigative fees, and messenger and courier fees, necessary to enforce respondent’s contractual claims and defend against appellants’ claims against respondent. The declaration of respondent’s counsel, Robert B. Jacobs, sought fees from April 2001 through September 21, 2004. Jacobs stated that his hourly rate had periodically increased from $205.00 in 2001 to $275.00 in 2004. Included in the attorney fees sought were amounts charged to respondent for photocopies, facsimile transmissions, postage, and messenger and courier services. Jacobs also included an amount reflecting 10 percent interest charged to respondent on the unpaid balance of respondent’s account with Jacobs. Following various objections by appellants, respondent reduced its attorney fee request to $217,051.04. Subsequently, the court, with no explanation, awarded respondent $184,000 in attorney fees.
Nearly 175 pages of billings were attached to respondent’s attorney fee motion.
C. Standard of Review
Attorney fees incurred in prosecuting or defending an action may be recovered as costs only when they are authorized by statute or contract. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10).) The determination of the legal basis for an attorney fee award is a question of law that this court reviews de novo. (City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 399.) Where the relevant facts are not in dispute, we examine the applicable statutes and contractual provisions to determine whether respondent was entitled to fees. (Exxess Electronics v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 705.)
As to the amount of fees awarded, our review is highly deferential to the views of the trial court because trial courts possess “broad authority” to determine what is a reasonable fee award. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group); see Children’s Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777 (Bontá).) The trial court’s order is presumed correct on appeal, and appellants have the burden of rebutting that presumption by demonstrating an abuse of discretion. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.) Thus, the trial court’s judgment regarding the amount of fees awarded will not be set aside unless the reviewing court is convinced that the trial court’s award is “clearly wrong” (Serrano v. Priest (1977) 20 Cal.3d 25, 49), or “manifestly excessive in the circumstances” (Bontá, at p. 782).
D. Civil Code Section 1717
Pursuant to Code of Civil Procedure section 1021, parties have a right to enter into agreements for the award of attorney fees in litigation. (Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342.) Where, as here, there is a contractual attorney fee clause, attorney fees must be awarded on the contract claim in accordance with Civil Code section 1717 (hereafter section 1717). (Gil v. Mansano (2004) 121 Cal.App.4th 739, 742 (Gil).)
Section 1717, subdivision (a), provides in relevant part: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”
Section 1717 ensures mutuality of remedy regarding contractual attorney fees. (Santisas v. Goodin (1998) 17 Cal.4th 599, 610 (Santisas).) To ensure mutuality of remedy, “the statute generally must apply in favor of the party prevailing on a contract claim whenever that party would have been liable under the contract for attorney fees had the other party prevailed.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 870-871.)
By its terms, section 1717 applies only to contract claims. (§ 1717, subd. (a).) However, a contractual attorney fee clause may be broad enough to cover tort as well as contract causes of action. (Hasler v. Howard (2005) 130 Cal.App.4th 1168, 1171.) “If a contractual attorney fee provision is phrased broadly enough, ... it may support an award of attorney fees to the prevailing party in an action alleging both contract and tort claims....” (Santisas, supra, 17 Cal.4th at p. 608.)
E. The Attorney Fee Clause and Tort Causes of Action
Appellants first argue that based on the parties’ “narrowly-tailored” attorney fee clause, respondent may only recover attorney fees incurred in enforcing and interpreting the contract. Appellants assert, “Thus all fees incurred in prosecuting its claims for Indebitatus Assumpsit, Quantum Meruit, Foreclosure of Mechanic’s Lien, and those fees incurred in defending against claims of Negligence, Slander of Title, Cancellation of Instrument and Civil Conspiracy, Fraud or Indemnity [contained in appellants’ cross-complaint] are not recoverable since these were not incurred in enforcing or interpreting the contract.” Appellants’ claim of error fails.
First, the attorney fee provision is far from narrowly tailored to enforcement and interpretation of the parties’ contract. It provides for the recovery of reasonable attorney fees, costs and expenses incurred “In any legal action or any arbitration o[r] other proceeding is brought for the enforcement of this agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with these terms and conditions o[f] the Agreement.” (Italics added.) The provision expressly provides for attorney fees incurred because of a “misrepresentation” in connection with the parties’ contract. In addition, numerous courts have held that language such as this encompasses tort claims. (See Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270, 1273, fn. 3 [attorney fee clause in the lease provided, “ ‘If civil action is instituted in connection with this Agreement, the prevailing party shall be entitled to recover court costs and any reasonable attorney’s fees.’ ” (Italics added.)]; see also Santisas, supra, 17 Cal.4th at p. 603 [“ ‘legal action... arising out of the execution of this agreement’ ”]; see also id. at p. 608; Lerner v. Ward (1993) 13 Cal.App.4th 155, 158-159 [“ ‘... any action or proceeding arising out of this agreement...’ ”].) Consequently, the attorney fee clause here is broad enough to encompass the tort causes of action alleged in appellants’ cross-complaint against respondent.
Gil, supra, 121 Cal.App.4th at pages 742, 743-744 [provision for attorney fee award “ ‘[i]n the event action is brought to enforce the terms of this [Release]...’ ” was inapplicable where release raised as defense to fraud cause of action; raising of defense not equivalent to bringing action to enforce release], which appellants cite in support of their argument, is inapposite because that case involved a more narrowly-tailored attorney fee provision than the one at issue here.
Second, Jacobs’s declaration in support of the attorney fee motion expressly stated that because attorney fees are not recoverable on respondent’s mechanic’s lien claim, Jacobs had deleted all entries attributable to the mechanic’s lien claim. Respondent’s reply points and authorities memorandum stated that “there was no additional work to prepare for or to try the causes of action for [Q]uantum Meruit or Indebitatus Assumpsit than was already being done for the causes of action for breach of contract.” Appellants filed no declarations below in opposition to the attorney fee motion, and, on appeal, point to nothing in the record establishing that respondent sought fees attributable to the mechanic’s lien claim or claims for quantum meruit or indebitatus assumpsit. The attorney fee order is presumed correct and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Appellants’ failure to do so requires that we resolve this issue against them. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
F. Appellants Waived Their Claim Regarding Fees Involving Insurance
Appellants contend respondent was improperly awarded fees incurred in seeking insurance coverage. Citing section 1717, they argue that such fees are not recoverable because they were not incurred in the enforcement or interpretation of the contract. Appellants’ claim fails because once again, they fail to point to anything in the record establishing that respondent sought fees for services incurred in seeking insurance coverage. Although they assert that respondent’s billings contain more than 44 entries related to insurance coverage, they do not cite to any of the billings or memoranda submitted by respondent in support of its attorney fee motion. Instead, appellants cite to a supplemental declaration submitted by Mehdi in support of appellants’ motion to vacate the judgment or for new trial. Again, based on appellants’ failure to demonstrate error by citing to evidence in the record, we resolve this issue against them.
This supplemental declaration does not cite to any billings submitted by respondent in support of its attorney fee motion.
G. Attorney Fee Claim Regarding Neff
Next, appellants conclusorily argue that respondent was not entitled to attorney fees for appellants’ cross-complaint against Neff. However, due to appellants’ failure to provide any analysis or citation of legal authority in support of their claim, it is forfeited. (See Rule 8.204(a)(1)(B); Dabney, supra, 104 Cal.App.4th at p. 384.)
In any case, appellants argue that respondent’s billing statements have more than 50 entries starting from September 17, 2002, related to Neff, although appellants cite to only one such entry dated April 3, 2003. The April 3 entry for 4.9 hours by Jacobs states: “Continue review cases cited by [Neff] in its reply. Telephone conference with... Deakin. Continue prepare for hearing on setting aside default of [Neff]. Appear at hearing in Hayward on motion of [Neff] to set aside default. Prepare order after hearing. Letter to [appellants’ counsel, ] David Saenz and Jeff Widman.” However, in its reply points and authorities in support of its fee motion, respondent expressly requested that $1,225 in fees previously sought for the April 3, 2003 billing regarding Neff be deducted from its attorney fee request. We are entitled to presume that the attorney fee order reflects this deduction. No error is shown.
Appellants’ failure to identify the other 49 alleged unrecoverable billing entries waives any claim as to those unidentified billing entries.
H. Attorney Fee Claim Regarding Interest
Appellants next contend that more than $12,000 in interest accruing on respondent’s account with its counsel is not a recoverable item of attorney fees. Similarly, without citation to any billings submitted by respondent, appellants argue that respondent was improperly awarded its “out-of-pocket expenses” for items including stamps, photocopies, and telephone charges. However, appellants have waived this claim by failing to point to any billings submitted by respondent in support of its attorney fee motion that establish respondent sought $12,000 in fees to cover such interest or out-of-pocket expenses. Again, based on appellants’ failure to demonstrate error by citing to evidence in the record, we resolve this issue against them.
I. The Attorney Fee Award Is Not Unreasonable
Appellants make several arguments as to why respondent’s attorney fee award was unreasonable and, therefore, an abuse of discretion. We address these arguments seriatim.
1. Lodestar Analysis of Reasonableness of Attorney Fees
The starting point for the fee setting inquiry is a determination of the “lodestar, ” the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group, supra, 22 Cal.4th at p. 1095.) Generally, the lodestar figure is established based upon the evidence presented by the fee applicant, and such evidence is sufficient if it consists of declarations from counsel and billing records setting forth the hourly rates charged, the hours expended and the services performed. (Id. at p. 1096.) The lodestar figure may then be adjusted based on case-specific factors including, “ ‘the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ ” (Ibid.) Once a documented fee claim is presented, the burden shifts to the opposing party to present specific objections to either the hours claimed or the rates charged by counsel. (Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. 2008) §§ 12.14A, 12.34, pp. 336-337, 368.4.) Mere assertions that the claimed fees are unreasonable or excessive are not sufficient; the objections must be supported by evidence. (See Avikian v. WTC Financial Corp. (2002) 98 Cal.App.4th 1108, 1119.)
2. The Amount of the Fee Award Does Not Establish an Abuse of Discretion
Appellants argue that the $184,000 attorney fee award is disproportionate to respondent’s $21,634.85 damage award and, therefore, is an abuse of discretion. They assert that in light of respondent’s original claim of more than $75,000 in damages, the court should reduce respondent’s attorney fee award.
Appellant’s reliance on Davidson v. Davidson (1970) 5 Cal.App.3d 51 (Davidson) is misplaced. In Davidson, a marital case, the court found the attorney fees awarded pendente lite to the wife were excessive, in part, because no proper showing had been made as to the nature and extent of legal services reasonably required by her to prosecute her action. In addition, she had recently been awarded a large amount of fees and no showing was made as to her need for another large attorney fee award pendente lite. (Id. at p. 53.) The court concluded that the fee award to the wife appeared to be predicated solely on the husband’s ability to pay. (Ibid.)
Appellants cite no authority that an abuse of discretion is established merely because the attorney fee award is much greater than the compensatory damage award. In fact, comparable awards have been upheld. (See PLCM Group, supra, 22 Cal.4th at p. 1090 [$61,050 fee award affirmed upon $10,320 in damages].) Although the “amount involved” is a relevant factor, it does not alone dictate the amount of a permissible attorney fee award.
3. The Fees Incurred to Request Fees Were Not Unreasonable
Appellants assert that the fees incurred by respondent in preparing its requests for attorney fees and costs were unreasonable. They argue that after the court declared respondent the prevailing party on April 15, 2004, respondent’s counsel expended in excess of 50 hours preparing its motion for attorney fees and memorandum of costs. Rather than provide any evidence establishing or analysis explaining why the 50 hours expended by respondent’s counsel was necessarily unreasonable, appellants merely argue that “it appears” that respondent “sought to pad the amount of the fees claimed, hoping that it would leave enough after amounts were reduced to satisfy it, which is what ultimately occurred.”
Once again, appellants’ claim lacks merit. Jacobs’s declaration contains detailed invoices establishing the billable hours expended following April 15, 2004. Appellants presented no declaration in opposition and have not established that the billable hours incurred by respondent were excessive or otherwise unreasonable.
4. Appellants’ Miscellaneous Unreasonableness Claims Lack Merit
Appellants conclusorily argue that the following attorney services incurred by respondent were unreasonable: (1) 16.9 hours resulting in bills of $3,700 for meetings and telephone calls prior to the complaint being filed, and (2) 16.5 hours in telephone conferences, document review, and preparation for Mehdi’s deposition. Appellants cite only to their opposition points and authorities memorandum and not to any of respondent’s billing records. Moreover, they do not explain or demonstrate why these amounts are unreasonable.
Appellants also contend that despite Jacobs’s declaration stating his hourly rate increased from $205 at the start of the case to $275, respondent’s “first invoice shows a billing on May 9, 2001 for $225 per hour.” Jacobs’s declaration states that his hourly rate “when this matter started” was $205 an hour. His attached billing data established an hourly rate of $205 in April 2001 for services provided to respondent.
Lastly, appellants assert that this court should deny respondent’s request for attorney fees “altogether” because “throughout this litigation” respondent and its attorneys “engaged in unprofessional and unethical actions” which “substantially damaged” appellants. Once again, this one sentence claim of error fails because it is unsupported by legal authority, citation to the appellate record, and analysis.
XV. The Court Did Not Err in Denying Appellants’ Motion to Vacate or in the Alternative for New Trial
Finally, appellants contend the court abused its discretion in denying their motion to vacate the judgment, or in the alternative, motion for new trial because the judgment was not supported by substantial evidence and was in contradiction of the law and well established contract principles.
Contrary to appellants’ assertion, the denial of a motion to vacate and a motion for new trial are both reviewed for abuse of discretion. (County of Alameda v. Mosier (1984) 154 Cal.App.3d 757, 760 [motion to vacate judgment]; Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387 [motion for new trial].) Based on this standard and our review of the record, appellants have failed to demonstrate any abuse of discretion.
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
We concur. JONES, P.J., BRUINIERS, J.
“(a) The liens provided for in this chapter shall be direct liens, and shall be for the reasonable value of the labor, services, equipment, or materials furnished or for the price agreed upon by the claimant and the person with whom he or she contracted, whichever is less. The lien shall not be limited in amount by the price stated in the contract as defined in Section 3088, except as provided in Sections 3235 and 3236 and in subdivision (c) of this section.
“(b) This section does not preclude the claimant from including in the lien any amount due for labor, services, equipment, or materials furnished based on a written modification of the contract or as a result of the rescission, abandonment, or breach of the contract. However, in the event of rescission, abandonment, or breach of the contract, the amount of the lien may not exceed the reasonable value of the labor, services, equipment, and materials furnished by the claimant.”