Opinion
D069634
10-25-2017
JOHN A. DELISI, Plaintiff and Respondent, v. ALLAN WAGNER, Defendant and Appellant. ALLAN WAGNER, Cross-complainant and Appellant, v. JOHN A. DELISI et al., Cross-defendants and Respondents.
Allan Wagner, in pro. per., for Defendant, Cross-complainant and Appellant. Hamilton & Associates, Ben-Thomas Hamilton and Kristine Stcynske for Plaintiff and Respondent. Pettit Kohn Ingrassia & Lutz and Douglas A. Pettit for Cross-defendant and Respondent John A. Delisi. Su Barry for Cross-defendant and Respondent Brandon Smith.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on October 25, 2017, be modified as follows:
1. On page 20, in the last sentence that precedes footnote 14, replace the phrase "to the trial court" with the phrase "in support of Delisi's initial burden" so that the last sentence that precedes footnote 14 now reads as follows:
This is the entirety of Delisi's presentation in support of Delisi's initial burden on the issue of acceleration of monthly payments not yet due.
2. On page 20, after footnote 14, and before the new paragraph at the top of page 21, add the following new paragraph:
In a petition for rehearing, Delisi raises an argument that he acknowledges he failed to raise in his merits brief on appeal; we consider it nonetheless. Directing our attention to an argument that he raised in his reply brief in the trial court (and, thus, cannot be considered part of Delisi's initial burden on summary judgment), Delisi contends that he is entitled to "the remaining balance" on the Contract for Legal Services ($31,147.17), because any other result "would be absurd and waste judicial resources." However, neither an alleged absurdity nor an alleged expenditure of judicial resources is a legal basis on which to accelerate a balance due where, as here, the terms of the parties' contract provide for monthly payments of $200 and do not contain an acceleration clause in the event of a breach or nonpayment by Wagner. " 'We do not have the power to create for the parties a contract that they did not make and cannot insert language that one party now wishes were there.' " (Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1324.) Any absurdity or waste of judicial resources that results from the inability to accelerate the full balance owed on this record—i.e., where, because of disputed material facts, Delisi cannot establish as a matter of law that Wagner repudiated the Contract for Legal Services—can be attributed to Delisi's failure to have included in the Contract for Legal Services an acceleration clause in the event of a breach or nonpayment by Wagner.
3. On page 21, at the end of the first full paragraph after the word "year" and before the next new paragraph add the following sentence:
Indeed, in his petition for rehearing, by quoting the statement from Gold Mining & Water Co. v. Swinerton, supra, at page 28, that " 'repudiation is ordinarily a question of fact,' " Delisi essentially
concedes that he is not entitled to summary judgment based on Wagner's alleged repudiation of the Contract for Legal Services.
There is no change in the judgment.
The petition for rehearing filed by John A. Delisi is denied.
HUFFMAN, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-000117668-CU-BC-CTL) APPEALS from a judgment, two postjudgment orders, and an amended judgment of the Superior Court of San Diego County, Joel R. Wohlfiel, Judge. Judgment (Appeal 1), and postjudgment orders (Appeals 2 & 3) reversed and remanded with instructions, and amended judgment (Appeal 4) affirmed in part and appeal dismissed in part. Allan Wagner, in pro. per., for Defendant, Cross-complainant and Appellant. Hamilton & Associates, Ben-Thomas Hamilton and Kristine Stcynske for Plaintiff and Respondent. Pettit Kohn Ingrassia & Lutz and Douglas A. Pettit for Cross-defendant and Respondent John A. Delisi. Su Barry for Cross-defendant and Respondent Brandon Smith.
In the lawsuit underlying this appeal, attorney John A. Delisi filed a complaint against his former client, Allan Wagner, for breach of contract and a common count for services rendered. Delisi sought attorney fees and costs allegedly due from a retention in which Delisi represented Wagner in his contested dissolution of marriage proceedings (Dissolution Action) with his former wife, Yoshie Wagner (Yoshie). In a third amended cross-complaint (TAC-C), Wagner named as cross-defendants Delisi and Brandon Smith, who had been Yoshie's attorney in the Dissolution Action. Wagner alleged causes of action against Delisi for breach of contract and negligence and against Delisi and Smith for "misconduct, willful concealment," "abuse of attorney-client fiduciary relationship," "violations of rules of court, duties," and "collusion with opposing counsel."
The superior court granted two motions for summary judgment in favor of Delisi and against Wagner — one on Delisi's complaint, and one on Wagner's TAC-C. Determining Delisi to be the prevailing party on both the complaint and the TAC-C, the court also awarded Delisi contractual attorney fees pursuant to an attorney fee provision in the Delisi-Wagner attorney-client engagement agreement.
As to Smith, the trial court granted a special motion to strike all of the causes of action that Wagner alleged against Smith in the TAC-C. The court based its ruling on California's anti-SLAPP statute, Code of Civil Procedure section 425.16, after ruling both that Wagner's causes of action arose from Smith's constitutional right of petition in connection with a public issue (i.e., the Dissolution Action) and that Wagner did not demonstrate a probability of prevailing on the claims. In later proceedings, the court awarded Smith attorney fees under the anti-SLAPP statute.
" 'SLAPP' is an acronym for 'strategic lawsuit against public participation.' " (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1.)
Further undesignated statutory references are to the Code of Civil Procedure.
The record on appeal contains only the superior court's tentative ruling that preceded the hearing at which the court granted Smith's motion for attorney's fees under the anti-SLAPP statute. On our own motion, we have augmented the record on appeal to include the court's signed minute order dated November 13, 2015, confirming the tentative ruling and granting the motion. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
The record on appeal in this case is a difficult one — i.e., one with no recognition of the "one final judgment" rule. Based on the titles of documents, the record contains no fewer than three judgments, four amended judgments, and four notices of appeal. For purposes of the final judgment rule, we will determine that the litigation between Delisi and Wagner was concluded by one of the documents entitled a judgment and that the litigation between Wagner and Smith was concluded by a minute order. Based on those rulings, we will also determine that the record contains four additional appealable rulings: three postjudgment appealable orders granting attorney fees — one in favor of Delisi on his complaint, one in favor of Delisi on Wagner's TAC-C and one in favor of Smith on Wagner's TAC-C; and one amended judgment awarding Smith a specified amount of statutory costs. In this appeal, we are particularly mindful that the " 'substance and effect' " of the trial court's ruling, not the label on the document in the record, determines whether it is appealable. (Dana Point, supra, 51 Cal.4th at p. 5, quoting Griset, supra, 25 Cal.4th at p. 698.)
An appeal lies only from a final judgment that terminates the superior court proceedings by completely disposing of the matter in controversy between the parties. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697 (Griset); Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 (Dana Point) ["A judgment is the final determination of the rights of the parties . . . ' " 'when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.' " ' "]; see pt. II.A., post.)
Wagner filed notices of appeal in which he attempted to appeal from the following four documents in the record on appeal: (1) a January 15, 2016 order granting Delisi's motion for summary judgment on Delisi's complaint (Appeal 1); (2) a May 13, 2016 order granting Delisi's motion for attorney fees on Delisi's complaint (Appeal 3); (3) a February 26, 2016 order granting Delisi's motion for attorney fees on Wagner's TAC-C (Appeal 2); and (4) an August 18, 2016 second amended judgment following orders striking Wagner's TAC-C as to Smith and awarding Smith attorney fees under the anti-SLAPP statute, and including Smith's unopposed statutory costs (Appeal 4).
With regard to Delisi, we first will conclude that the February 26, 2016 judgment (February 2016 Judgment) on Delisi's complaint is the final judgment between Delisi and Wagner, since it finally resolved all claims between those two parties. In Appeal 1, we will deem Wagner's appeal from the January 15, 2016 order granting Delisi's motion for summary judgment on his complaint to be an appeal from the later February 2016 Judgment. We will then reverse the judgment, because Delisi did not meet his initial burden of producing evidence of a prima facie showing that there are no triable issues of material fact as to the amount of damages to which he was entitled. Appeal 2 and Appeal 3 were taken from appealable postjudgment orders awarding Delisi prevailing party contractual attorney fees, but since we will be reversing the judgment, we must also reverse the postjudgment orders (without reaching their merits).
With regard to Smith, we will first conclude that we lack jurisdiction to review the anti-SLAPP issues Wagner raises in Appeal 4, because the trial court's orders striking the TAC-C and awarding Smith fees were appealable orders, yet he failed to appeal from either one. We will then decide that we have jurisdiction to consider the amount of statutory costs awarded in the amended judgment under consideration in Appeal 4. In reaching the merits, we will affirm the amended judgment, because Wagner raises no issue or argument as to the amount of statutory costs.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Introduction
The difficulties with the record on appeal, introduced ante, have been exacerbated by the appellate briefing — on behalf of all three parties — that failed to follow basic appellate procedure: "Statements of fact that are not supported by references to the record are disregarded by the reviewing court." (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947 (McOwen), citing Cal. Rules of Court, rule 8.204(a)(1)(C).) To the extent that a party's argument is thereafter unsupported by sufficient facts, we deem the argument to be forfeited. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 28.)
In both the trial and appellate courts, Delisi and Smith have been represented by counsel, and Wagner has been representing himself. Although Wagner has done a commendable job, he is not entitled to special treatment. The procedural rules apply the same to self-represented parties as to parties represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444 [self-represented parties "entitled to the same, but no greater, consideration than other litigants and attorneys"].)
In particular, we remind the parties that record references to a separate statement or response thereto — without a citation to where in the appellate record the court can find the supporting evidence — are not statements of fact; they are "mere assertion[s]." (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1024.) Even though appellate courts " 'cannot be expected to search through a voluminous record to discover evidence on a point raised [by a party] when his brief makes no reference to the pages where the evidence on the point can be found in the record' " (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1458), in the present appeal, where a party has cited to a separate statement or a response thereto, we have tried to locate the evidence in the record. Where unsuccessful, we have had no choice but to disregard the party's proffered statement of fact. (McOwen, supra, 153 Cal.App.4th at p. 947.) B. Background
The clerk's transcript contains 2,672 pages, and one party lodged 214 pages that contain 16 selected exhibits; yet the parties have failed to provide many other exhibits referenced elsewhere in the record, despite available procedures under California Rules of Court, rule 8.224, and a courtesy call from the appellate court clerk's office regarding submission of trial court exhibits.
By written agreement dated in March 2008 (Contract for Legal Services), Wagner retained Delisi to represent him (Wagner) in the Dissolution Action. In part, the Contract for Legal Services provides that Wagner will pay an initial retainer and that the legal services provided will be "charged against this retainer" by Delisi. By way of an addendum of the same date, Wagner and Delisi agreed to monthly "[i]nstallment amounts" of $200. In their briefing, Wagner and Delisi treat the addendum as part of the Contract for Legal Services, and we will do the same.
In July 2012, Delisi prepared a notice of withdrawal of his representation of Wagner, filed it with the family court, and served it on Wagner.
For another year and a half, Wagner continued making installment payments. After February 2014, however, Wagner ceased paying Delisi, by which time Wagner had paid Delisi $33,145.44, and Delisi claimed Wagner still owed him $31,147.17. In June 2014, Delisi sued Wagner for $31,147.17, alleging two causes action — breach of contract and, alternatively, a common count for work, labor, services and materials rendered.
In response, Wagner filed a cross-complaint against Delisi, asserting one cause of action for general negligence and seeking damages of $71,275 as a result of Delisi's representation of Wagner in the Dissolution Action. As relevant to any issue in this appeal, the operative pleading is a May 2015 third amended cross-complaint (previously identified as the TAC-C), in which Wagner named as cross-defendants both attorneys in the Dissolution Action — his attorney, Delisi, and Yoshie's attorney, Smith. Seeking damages of $88,275, Wagner alleged causes of action against Delisi for breach of contract and negligence and against Delisi and Smith for "misconduct, willful concealment," "abuse of attorney-client fiduciary relationship," "violations of rules of court, duties," and "collusion with opposing counsel." (Capitalization omitted.)
Although Wagner entitled the pleading a second amended cross-complaint, the record confirms that the document is, in fact, a third amended cross-complaint.
The parties and trial court treated Delisi's complaint against Wagner, Wagner's TAC-C against Delisi, and Wagner's TAC-C against Smith as if each were an independent action. For purposes of describing the trial court proceedings, we will do the same, rather than presenting a chronology of the events.
1. Appeal 1 and Appeal 3 Arise from Delisi's Complaint Against Wagner
In January 2016, the trial court filed an order granting Delisi's motion for summary judgment on Delisi's complaint against Wagner. In February 2016, the court filed a document entitled "Judgment on Plaintiff John Delisi's Complaint" (previously identified as the February 2016 Judgment). (Some capitalization omitted.) By this judgment, the court ruled that Wagner owed Delisi $31,147.17, plus interest (from the date on which Wagner ceased making payments to Delisi), deemed Delisi to be the prevailing party, and awarded Delisi attorney fees and costs in amounts to be determined.
By notice filed in January 2016, Wagner appealed from the January 2016 order granting summary judgment, commencing what we have identified previously as Appeal 1. Wagner did not appeal from the related February 2016 Judgment.
In May 2016, the trial court filed an order granting Delisi's motion for attorney fees incurred in prosecuting the complaint (Complaint Attorney Fee Order). The court awarded Delisi $51,482.50 pursuant to the attorney fee provision in the Contract for Legal Services and Civil Code section 1717. On the same date, the court filed a document entitled "Amended Judgment on Plaintiff John A. Delisi's Complaint" (some capitalization omitted), which repeats verbatim the substantive ruling from the February 2016 Judgment and adds the specific amounts of the awards of attorney fees ($51,482.50) and costs ($2,336.30), as well as the total ($84,965.97), which includes the previously awarded damages ($31,147.17).
The Contract for Legal Services provides in part: "If suit is filed or mediation initiated to enforce the collection of fees or costs in this case, the losing party shall pay reasonable attorney's fees and court costs."
Civil Code section 1717 provides in 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 . . . shall be entitled to reasonable attorney's fees in addition to other costs." (Id., subd. (a).)
By notice filed in May 2016, Wagner appealed from the Complaint Attorney Fee Order, commencing what we have identified previously as Appeal 3. Wagner did not appeal from the amended judgment on Delisi's complaint.
2. Appeal 2 Arises from Wagner's TAC-C Against Delisi
In September 2015, the trial court filed an order granting Delisi's motion for summary judgment on Wagner's TAC-C against Delisi. The court ruled that section 340.6's one-year statute of limitations barred each of Wagner's claims against Delisi. More specifically, the court ruled that, by July 2012 when the Delisi-Wagner attorney-client relationship ended (based on the date Delisi had served Wagner with the notice of withdrawal as attorney of record in the Dissolution Action), Wagner knew of the facts underlying his claims in the TAC-C, yet Wagner did not file his original claim against Delisi until almost two years later in June 2014 (i.e., the original cross-complaint).
In part, section 340.6 provides: "An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission . . . ." (Id., subd. (a).)
In October 2015, the court filed a document entitled, "Judgment on Delisi's Motion for Summary Judgment . . . as to Wagner's [TAC-C]." (Some capitalization omitted.) In this document, the court ruled in part as follows: that Wagner is not entitled to recover anything on his TAC-C; that judgment is entered in favor of Delisi and against Wagner on the TAC-C; that Delisi is the prevailing party on the TAC-C; and that Delisi is entitled to recover prevailing party costs in an "amount . . . to be determined."
In February 2016, the trial court filed an order granting Delisi's motion for attorney fees on Wagner's TAC-C (TAC-C Attorney Fee Order). Delisi had requested attorney fees under Civil Code section 1717 based on the attorney fee provision in the Contract for Legal Services (see fn. 7, ante), and the court awarded Delisi $19,353.
In March 2016, Wagner appealed from the TAC-C Attorney Fee Order, commencing what we have identified previously as Appeal 2.
3. Appeal 4 Arises from Wagner's TAC-C Against Smith
In August 2015, the trial court granted Smith's anti-SLAPP motion to strike the TAC-C. The court determined both that Smith met his burden of establishing that Wagner's claims arose from activity protected under the anti-SLAPP statute and that Wagner did not meet his responsive burden of establishing a probability of prevailing on his claims. (See § 425.16, subd. (b)(1).) Approximately three months later, the court granted Smith's motion for prevailing party attorney fees under the anti-SLAPP statute, awarding Smith $13,100. (See § 425.16, subd. (c)(1).)
In August 2016, the court filed a "[Second] Amended Judgment" (TAC-C Second Amended Judgment), which repeats verbatim the court's prior two orders from the anti-SLAPP proceedings (both striking the TAC-C as to Smith and awarding Smith attorney fees) and awards Smith $503.10 in prevailing party statutory costs.
Wagner appealed from the TAC-C Second Amended Judgment, commencing what we have identified previously as Appeal 4. Wagner did not appeal from either of the two orders from the anti-SLAPP proceedings.
II.
DISCUSSION
Summarizing part I., ante, Wagner appealed twice from rulings related to Delisi's complaint and twice from rulings related to Wagner's TAC-C: Related to the complaint, Appeal 1 is Wagner's appeal from an order granting Delisi's motion for summary judgment on the complaint (Feb. 2016), and Appeal 3 is from the Complaint Attorney Fee Order (May 2016); related to the TAC-C, Appeal 2 is from the TAC-C Attorney Fee Order (Mar. 2016), and Appeal 4 is from the TAC-C Second Amended Judgment (Aug. 2016). For each of the four notices of appeal, we will first determine whether appellate jurisdiction exists and, if so, whether Wagner (as the appellant in each appeal) has met his burden of establishing entitlement to relief on appeal. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham) [because a judgment or order is " 'presumed correct,' " on appeal the appellant has the burden of establishing reversible error].)
"The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by . . . section 904.1." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
Appellate courts have jurisdiction over direct appeals, like the present ones, only following an appealable order or judgment. (Griset, supra, 25 Cal.4th at p. 696.) Appealability is based on the " 'substance and effect' " of the trial court's ruling, not the label on the document being reviewed. (Dana Point, supra, 51 Cal.4th at p. 5, quoting from Griset, at p. 698.) As particularly applicable here — i.e., with a record that contains no fewer than three judgments and four amended judgments — when determining appealability, "no effect can or should be given to such a label if the judgment does not in fact conclude matters between the parties." (Jackson v. Wells Fargo Bank (1997) 54 Cal.App.4th 240, 244.) Conversely, even a seemingly nonappealable order may be a final judgment (and thus appealable) if its legal effect is, in fact, to finally determine the rights of the parties to the litigation with nothing further for judicial consideration. (Bank of California v. Thornton-Blue Pacific, Inc. (1997) 53 Cal.App.4th 841, 845, 846 & fn. 2.)
"The right to appeal is wholly statutory." (Dana Point, supra, 51 Cal.4th at p. 5, citing § 904.1.) At least three statutory provisions are potentially applicable to Wagner's four notices of appeal here.
First, under section 904.1, subdivision (a)(1), subject to exceptions inapplicable here (see fn. 10, post), an appeal may be taken only from "a judgment" of the superior court. The judgment contemplated by this statute is " ' "one final judgment in an action, . . . which in effect ends the suit in the court in which it was entered, and finally determines the rights of the parties in relation to the matter in controversy." ' " (Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701-702 (Bank of America).) " 'A judgment is final "when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined." ' " (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304 (Sullivan); accord, Dana Point, supra, 51 Cal.4th at p. 5; see § 577 ["A judgment is the final determination of the rights of the parties in an action or proceeding."].) The intent of this statute is to codify the " ' "final judgment rule," ' " part of our common law, by which " ' "a[ppellate] review of intermediate rulings should await the final disposition of the case" ' in order to avoid ' "piecemeal disposition and multiple appeals in a single action." ' " (In re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1342; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 96, pp. 158-159; but see Code Civ. Proc., § 579 [where there are several defendants, the trial court has the discretion to "render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper"].) " '[W]here anything further in the nature of judicial action on the part of the court is essential to a final determination of the right of the parties, the decree is interlocutory[,]' " and, thus, not appealable. (Olson v. Cory (1983) 35 Cal.3d 390, 399 (Olson).)
Although inapplicable here, there are exceptions to the final judgment rule. For example, even where issues remain to be determined, a direct appeal may be taken when the order or judgment is final and "collateral" to the general subject of the litigation (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶¶ 2:77 - 2:88.2, pp. 2-54 to 2-66 [collected cases]), or when, in a multiparty case, an order or judgment leaves no issue to be determined as to a specific party with issues remaining as to other parties (id. at ¶¶ 2:91 - 2:105.1, pp. 2-66 to 2-70 [collected cases]).
Second, under section 904.1, subdivision (a)(2), an appeal may be taken from a final order "made after a judgment made appealable by [section 904.1, subdivision (a)(1)]," discussed in the preceding paragraph.
Finally, under section 904.1, subdivision (a)(13), an appeal may be taken from a final order "granting . . . a special motion to strike under Section 425.16." Consistently, section 425.16, subdivision (i) provides that "[a]n order granting . . . a special motion to strike shall be appealable under Section 904.1." A. Wagner's Appeals as to Delisi
Wagner noticed three appeals that involve rulings in favor of Delisi — two based on Delisi's complaint, and one based on Wagner's TAC-C. As the starting point, we must first determine whether there is a final judgment — i.e., whether there is a document that " ' "in effect ends the suit" ' " between, and " ' "finally determines the rights of[, Delisi and Wagner] in relation to the matter in controversy." ' " (Bank of America, supra, 20 Cal.2d at pp. 701-702; accord, Dana Point, supra, 51 Cal.4th at p. 5; Sullivan, supra, 15 Cal.4th at p. 304.)
For purposes of determining appealability, the final judgment between Delisi and Wagner is the February 2016 Judgment (namely, the judgment on Delisi's complaint) based on the following analysis: The October 2015 judgment on the TAC-C resolved all of the issues and claims that Wagner asserted against Delisi; and the February 2016 Judgment resolved all of the issues and claims that Delisi asserted against Wagner. Thus, as of the filing of the February 2016 Judgment, the rights of Delisi and Wagner were fully and finally determined.
To the extent Wagner properly appealed from the February 2016 Judgment (which we discuss at pt. II.B.1.a., post), he has properly placed before us the rulings contained in the February 2016 Judgment, as well as all nonappealable orders that preceded the February 2016 Judgment and that "involve[] the merits or necessarily affect[] the judgment . . . or which substantially affect[] the rights of a party." (§ 906; see Bakewell v. Bakewell (1942) 21 Cal.2d 224, 227 ["On appeal from the final judgment the rulings and decision of the court on all the issues are reviewable."]; see also Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1189 (Thompson) [orders that precede summary judgment reviewable in appeal from final judgment].)
For this reason, Delisi is wrong in suggesting that we lack jurisdiction to review the summary judgment in his favor on Wagner's TAC-C. Since the trial court's rulings on this summary judgment (in Sept. and Oct. 2015) precede the final judgment (in Feb. 2016), the rulings on this summary judgment are not appealable (Olson, supra, 35 Cal.3d at p. 399), but may be reviewed on an appeal from the final judgment (Thompson, supra, 11 Cal.App.5th at p. 1189).
1. Appeal 1: Wagner's Appeal from the January 2015 Order Granting Delisi's Motion for Summary Judgment on Delisi's Complaint
a. Jurisdiction
In Appeal 1, Wagner appeals from the superior court's order granting Delisi's motion for summary judgment on his complaint. However, no direct appeal lies from an order granting summary judgment. (Thompson, supra, 11 Cal.App.5th at p. 1189.) Appellate jurisdiction over such an order may be obtained in an appeal from the judgment that follows the order. (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288; see § 437c, subd. (m)(1) [a "summary judgment . . . is an appealable judgment"].) Nonetheless, where (as here) "the order is followed by a judgment, the appellate court may deem the premature notice of appeal to have been filed after the entry of judgment." (Mukthar, at p. 288; accord, Taylor v. Trimble (2017) 13 Cal.App.5th 934, 939 ["We have discretion to treat an appeal from an order granting summary judgment as an appeal filed after the entry of judgment . . . ."]; see Cal. Rules of Court, rule 8.104(d).)
Wagner's notice states that Wagner is appealing from a "[j]udgment after an order granting a summary judgment motion." However, Wagner's notice — filed January 25, 2016, a full month before the February 2016 Judgment — expressly identifies the date of entry of the appealable judgment or order as "Jan[.] 15, 2016," which is the date of the filing of the order granting summary judgment, not the later February 2016 Judgment.
Rule 8.104(d) is entitled "Premature notice of appeal" and provides in full: "(1) A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment. [¶] (2) The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment."
In the present appeal, the ends of justice are best served if we deem Wagner's notice of appeal of the order granting summary judgment to have been from the later judgment. Delisi is not prejudiced, since he does not contend that Wagner appealed from a nonappealable order, and Delisi responded to the merits of Wagner's argument that the trial court erred in granting summary judgment on Delisi's complaint.
For all purposes, therefore, the final judgment in this action between Delisi and Wagner is the February 2016 Judgment, and we deem Wagner to have properly appealed from it. We now turn to the summary judgment on Delisi's complaint, which contains causes of action for breach of contract and a common count for services rendered.
b. Analysis
i. Summary Judgment Standards
We review de novo the summary judgment rulings in this appeal. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) Therefore, as a practical matter, " ' "we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." ' " (Swigart v. Bruno (2017) 13 Cal.App.5th 529, 536 (Swigart).) In so doing, we consider all of the admissible evidence and reasonable inferences therefrom in a light most favorable to Wagner, as the opposing party. (Aguilar, at p. 843.)
A plaintiff like Delisi is entitled to a summary judgment on the basis "that there is no defense to the action" (§ 437c, subd. (a)) only where the court is able to determine from the evidence presented "that there is no triable issue as to any material fact and that the [plaintiff] is entitled to a judgment as a matter of law" (id., subd. (c)). Such a plaintiff has the ultimate burden of persuasion that there is no defense, and the plaintiff can meet this burden by proving each element of the cause of action. (Id., subd. (p)(1); Aguilar, supra, 25 Cal.4th at pp. 850, 853.)
As the moving party, the plaintiff bears the initial burden of production of evidence to make a prima facie showing that there are no triable issues of material fact as to each element of the cause of action at issue. (Aguilar, supra, 25 Cal.4th at p. 850.) If the plaintiff meets this burden, then the burden of production of evidence shifts to the defendant to establish the existence of a triable issue of material fact. (Ibid.) For purposes of analyzing each respective party's burden of production, there is a triable issue of material fact "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the [opposing party] in accordance with the applicable standard of proof." (Ibid.)
Applying these concepts in our de novo review, we first must determine whether Delisi's initial showing establishes an entitlement to judgment in his favor on his complaint; if so, we then determine whether Wagner's responsive showing establishes a triable issue of material fact. (See Swigart, supra, 13 Cal.App.5th at p. 536.)
ii. The Trial Court Erred in Granting Summary Judgment on Delisi's Complaint
Damages are an element of both Delisi's first cause of action for breach of contract (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821; 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 515, pp. 648-649) and Delisi's second cause of action for a common count based on services rendered (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460; 4 Witkin, supra, § 562, p. 690). For purposes of summary judgment (as at trial), a plaintiff must " 'show[] both the fact and the amount of damages.' " (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239 [breach of contract claim].) As we will explain, the trial court erred in granting summary judgment on Delisi's complaint, because there are triable issues of material fact with regard to the amount of Delisi's alleged damages.
As the moving party plaintiff, Delisi was required to make a prima facie showing that there are no triable issues of material fact as to this element of the causes of action in his complaint. (Aguilar, supra, 25 Cal.4th at p. 850.) Delisi submitted evidence of the following: the Contract for Legal Services; copies of his invoices (that contained detailed descriptions of services, time spent, hourly rates, and costs advanced); and the total amounts of fees and costs that he billed ($64,292.61), that Wagner paid ($33,145.44), and that Wagner still owed ($31,147.17). Delisi acknowledged that the Contract for Legal Services only required Wagner to pay monthly installments (of $200), but argued that the entire unpaid balance (of $31,147.17) was due, as follows: "Wagner's failure to cooperate with Mr. Delisi during Mr. Delisi's representation of [Wagner] constitutes an anticipatory breach of the contract, thereby accelerating Wagner's contractual payments to Mr. Delisi." (Some capitalization omitted.) This is the entirety of Delisi's presentation to the trial court on the issue of acceleration of monthly payments not yet due.
While lacking in legal authority or analysis, Delisi's argument confirms Delisi's understanding of his agreement with Wagner regarding monthly installment payments.
Even if we assume that Wagner's alleged failure to cooperate would support an actual breach of the Contract for Legal Services as a matter of law, at the time of the alleged breach Delisi had not suffered any monetary damages since there is no evidence that Wagner was in default of the provision by which Wagner was obligated to make a monthly payment of $200 (regardless of the total balance due). Moreover, Wagner's alleged noncooperation is not uncontradicted evidence that Wagner intended to repudiate the contract. An anticipatory repudiation would have required that Wagner communicate "a positive statement to [Delisi] indicating that [Wagner] will not or cannot substantially perform his contractual duties" (Gold Mining & Water Co. v. Swinerton (1943) 23 Cal.2d 19, 29), yet the record does not support any such "positive statement." To the contrary, Delisi testified that even after Delisi withdrew from representing Wagner in July 2012 (which was after the alleged noncooperation), Wagner continued making the required monthly payments until some unspecified time the following year.
Such an assumption is not borne out by the record. In the trial court, Wagner denied that he failed to cooperate and presented evidence and argument in support of his position. Given the parties' conflicting positions on cooperation, summary judgment cannot be based on an argument that requires uncontradicted evidence of Wagner's noncooperation.
Delisi argued to the trial court that Wagner further breached the Legal Services Agreement by failing to make the requisite monthly payments commencing in or around 2013, although Delisi does not directly argue that this further breach is evidence of an anticipatory repudiation of the contract. In support of his position, Delisi relied on his testimony that "in 2013" Wagner's payments first "became sporadic." By that point in time, however, Delisi had withdrawn from representing Wagner, terminating all of Delisi's obligations under the Contract for Legal Services. Stated differently, by that point in time, the Contract for Legal Services had become a unilateral contract requiring only performance (i.e., monthly payments) by Wagner. (Minor v. Minor (1960) 184 Cal.App.2d 118, 122 [an original bilateral becomes unilateral by one party's complete performance].) As a matter of law, our Supreme Court has directed that the doctrine of anticipatory breach does not apply to a unilateral contract. (Cobb v. Pacific Mutual Life Ins. Co. (1935) 4 Cal.2d 565, 573 (Cobb).) "It is well established in California law that, in the absence of an acceleration clause, a contract made unilateral by one party's complete performance renders the doctrine of anticipatory breach inapt." (Maudlin v. Pacific Decision Sciences Corp. (2006) 137 Cal.App.4th 1001, 1018, citing Cobb, at p. 571 (Maudlin); accord, Diamond v. University of Southern California (1970) 11 Cal.App.3d 49, 53; Minor, at p. 122.) The reasoning behind such a rule is that "in unilateral contracts the injured party has already performed, and he or she does not suffer any unreasonable loss by merely waiting until the time of counterperformance before bringing suit. (See 23 Williston 4th, § 63:28; 17A Am.Jur.2d (2004 ed.), Contracts § 720.)" (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts § 867, pp. 954-955.)
"While this rule has been criticized (see, e.g., Harris v. Time, Inc. [(1987)] 191 Cal.App.3d [449,] 457-458), we are bound by our Supreme Court's holding in Cobb. (Auto Equity Sales, Inc. v. Superior Court [(1962)] 57 Cal.2d [450,] 455.)" (Maudlin, supra, 137 Cal.App.4th at p. 1018.)
For these reasons, Delisi did not establish that Wagner's alleged anticipatory breach of the Contract for Legal Services — whether based on Wagner's initial noncooperation or later nonpayment — entitled Delisi to accelerate the balance due under the contract. Thus, because Delisi did not meet his initial burden of producing evidence of a prima facie showing that there are no triable issues of material facts as to Delisi's entitlement to damages of $31,147.17 — an element of each of Delisi's causes of action — the burden never shifted to Wagner to establish the existence of a triable issue of fact as to the amount of damages. (Aguilar, supra, 25 Cal.4th at p. 850.)
On appeal, Delisi does not attempt to argue that he established the amount of damages as a matter of law, as required for summary judgment. Instead, he relies on the evidence he submitted in support of his motion that supports an award of damages of $31,147.17 and argues merely the substantiality of the evidence: "Based on the substantial evidence test, this Court is not entitled to reweigh the evidence. This Court must only take into account the inferences which might reasonably have been thought by the trial court to lead to that decision." (Italics added.) In so doing, Delisi does not consider the procedural standards to be applied to summary judgment motions, including specifically the burden-shifting requirements. The substantial evidence test only applies "where the appealed ruling turns on the trial court's determination of disputed fact issues." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 8:33, p. 8-19, italics added; accord, id. at ¶ 8:43, p. 8-22 [substantial evidence rule used to review "the trial court's resolution of any disputed fact question"].) Having advocated a standard of review that applies only to disputed factual issues, Delisi essentially concedes that the requirements for granting summary judgment were not met.
To the contrary, as introduced ante, in reviewing the summary judgment in favor of Delisi, we review all admissible evidence and inferences therefrom "in the light most favorable to the opposing party" — namely, Wagner. (Aguilar, supra, 25 Cal.4th at p. 843.)
Elsewhere in his brief, Delisi tells us that, in Wagner's response to Delisi's separate statement, Wagner did not dispute Delisi's fact that Delisi " 'suffered damages . . . of $31,147.17." We read the record differently. In Delisi's separate statement, the proffered undisputed fact is, in part: "At no point did Wagner ever dispute the amounts charged on Mr. Delisi's invoices or what was owed to Mr. Delisi." (Some capitalization omitted.) In Wagner's separate statement, the response is, in part: Delisi claims "amounts greater than the sum of any delinquent monthly payments at the time. In Exhibit 11 Delisi first states there is a default of $600 for three delinquent monthly payments, yet claims 'the entire amount owing on your account, $32,747.17, is due in full.' There is no acceleration clause in the [Contract for Legal Services]. [Citation to record.]"
Since Delisi did not meet his initial burden of producing evidence of a prima facie showing that there are no triable issues of material fact as to his entitlement to damages of $31,147.17, the trial court erred in granting Delisi's motion for summary judgment as to the complaint. Accordingly, we reverse the February 2016 Judgment.
With regard to the other elements of both causes of action, we express no opinion as to whether Delisi met his initial burden or whether Wagner had or met a responsive burden.
2. Appeal 2 and Appeal 3: Wagner's Appeals from Orders Granting Delisi's Motions for Contractual Attorney Fees
Footnote 7, ante, contains the provision in the Contract for Legal Services that provides for recovery of prevailing party attorney fees and some of the language of Civil Code section 1717 that allows for the enforcement of such a provision. Pursuant to this provision and statute, in separate proceedings months apart, the trial court determined Delisi to be the prevailing party on the complaint and on the TAC-C and awarded him attorney fees as to each. Wagner timely appealed from each. We have previously identified the ruling related to the complaint as the Complaint Attorney Fee Order and the appeal therefrom as Appeal 3 and the ruling related to the TAC-C as the TAC-C Attorney Fee Order and the appeal therefrom as Appeal 2.
a. Jurisdiction
Wagner noticed his appeals from both attorney fee orders after the trial court filed the February 2016 Judgment — i.e., the final judgment as to Delisi and Wagner (see pt. II.A., ante). Thus, both the Complaint Attorney Fee Order and the TAC-C Attorney Fee Order are appealable orders under section 904.1, subdivision (a)(1), which allows for an appeal from a final postjudgment order.
b. Analysis
"In light of our conclusion that the judgment must be reversed . . . , it no longer can be said that [Delisi is] the prevailing part[y]. Accordingly, we must reverse the award[s] of fees [to Delisi] . . . , and thus need not address [Wagner's] contention that the award[s were] erroneous . . . ." (Gilman v. Dalby (2009) 176 Cal.App.4th 606, 620 [reversal in part of summary judgment]; accord, Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1105 ["since the dismissal of the action must be reversed, the order awarding Client [contractual] attorney fees . . . cannot stand"]; Southern Pacific Transportation Co. v. Mendez Trucking, Inc. (1998) 66 Cal.App.4th 691, 696 ["Since we reverse the judgment below, respondent is no longer the prevailing party, and thus not entitled to attorney fees pursuant to Civil Code section 1717."]; Department of Industrial Relations v. Nielsen Construction Co. (1996) 51 Cal.App.4th 1016, 1031 ["In light of our reversal of the summary judgment, the order awarding attorney fees is also reversed."].)
Accordingly, because both of the orders awarding Delisi attorney fees were based on Delisi's status as the prevailing party pursuant to the February 2016 Judgment that has now been reversed (see pt. II.A.1.b.ii., ante), we also reverse the Complaint Attorney Fee Order (Appeal 3) and the TAC-C Attorney Fee Order (Appeal 2). B. Wagner's Appeal as to Smith
For the guidance of the parties and the trial court on remand, we note that for purposes of awarding contractual attorney fees, a court should not determine separately a prevailing party on the complaint and a prevailing party on the cross-complaint. Rather, where (as here) the claims in a complaint and cross-complaint arise under the same contract, Civil Code section 1717, subdivision (b)(1) requires that the trial court determine "the party who recovered a greater relief in the action on the contract" (ibid., italics added). (Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 539.) Thus, "in any given lawsuit there can only be one prevailing party on a single contract for the purposes of an entitlement to attorney fees." (Id. at p. 531; accord, id. at p. 543 ["each contract . . . supports only one fee award in a given lawsuit"].) For this reason, our Supreme Court has directed that the "prevailing party determination is to be made by comparing the parties' relative degrees of success 'upon final resolution of the contract claims.' " (DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 971, italics added.)
Wagner noticed one appeal that involves rulings in favor of Smith — namely, an appeal of the TAC-C Second Amended Judgment. The TAC-C Second Amended Judgment directed in part as follows: that Wagner "take nothing" against Smith on the TAC-C; that judgment "is entered in favor of" Smith and against Wagner on the TAC-C; that Smith "is entitled to recover [contractual] attorney's fees . . . in the amount of $13,100.00" from Wagner; and that Smith "is entitled to recover prevailing party [statutory] costs . . . in the amount of $503.10" from Wagner.
The court filed the TAC-C Second Amended Judgment in August 2016. Twelve and nine and months prior to the filing of the TAC-C Second Amended Judgment, respectively, the trial court had filed orders under the anti-SLAPP statute (1) granting Smith's motion to strike the TAC-C (§ 425.16, subd. (b)(1)), and (2) granting Smith's related motion for prevailing party attorney fees in the amount of $13,100 (§ 425.16, subd. (c)(1)). In fact, the August 2016 TAC-C Second Amended Judgment quotes verbatim from the August 2015 order striking the TAC-C and from the November 2015 order awarding fees prior to the specific rulings set forth in the immediately preceding paragraph.
In December 2015 — i.e., in the interim between the filings of the two orders and the TAC-C Second Amended Judgment — the trial court filed a judgment and a first amended judgment. The judgment incorporated by attachment the August 2015 order striking the TAC-C under the anti-SLAPP statute and directed in part as follows: that Wagner takes nothing against Smith on the TAC-C; that judgment is entered in favor of Smith and against Wagner on the TAC-C; and that Delisi is the prevailing party and entitled to recover both contractual attorney fees and statutory costs in amounts "to be determined." The first amended judgment quoted verbatim from the August 2015 order striking the TAC-C and from the November 2015 order awarding fees and directed in part as follows: that Wagner takes nothing against Smith on the TAC-C; that judgment is entered in favor of Smith and against Wagner on the TAC-C; and that Delisi is the prevailing party and entitled to recover both contractual attorney fees in the amount of $13,100 and statutory costs in an amount "to be determined." Wagner did not appeal from the judgment or the first amended judgment.
In September 2016, Wagner timely appealed from the TAC-C Second Amended Judgment. Wagner did not appeal from either the August 2015 order striking the TAC-C or the November 2015 order awarding fees — both of which contain final rulings under the anti-SLAPP statute.
1. Jurisdiction
An order granting a special motion to strike under the anti-SLAPP statute is appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13); Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 250-251; Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247 (Maughan) [order granting anti-SLAPP motion "final when made, and thus appealable"].) An order awarding attorney fees following a successful anti-SLAPP motion is appealable as an "order after an appealable order." (Ellis Law Group, at p. 251; see § 904.1, subd. (a)(2).)
"California follows a 'one shot' rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited." (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.) Thus, an appellate court lacks "the power to 'review any decision or order from which an appeal might have been taken' but was not." (Ibid., quoting § 906; see 9 Witkin, Cal. Procedure, supra, Appeal, § 89, p. 152 ["An appealable order from which no appeal was taken cannot be reviewed on an appeal from the final judgment."].) "If the ruling is appealable, the aggrieved party must appeal or the right to contest it is lost." (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 967; accord, Maughan, supra, 143 Cal.App.4th at p. 1247.)
The facts in Maughan are similar to those here. In February, the trial court filed an order granting the defendant's anti-SLAPP motion; in April, the trial court filed an order granting the defendant's motion for attorney fees under the anti-SLAPP statute; on the same date in April, the trial court filed a judgment that "recapitulated the court's earlier order granting [the defendant]'s anti-SLAPP motion and order granting [the defendant]'s separate motion for attorney fees and costs in the amount of $23,000 under the anti-SLAPP statute" and concluded by ordering that the plaintiffs take nothing, that the complaint is dismissed, and that the defendant is awarded attorney fees and costs. (Maughan, supra, 143 Cal.App.4th at pp. 1245-1246.) In June, the plaintiff appealed from the April judgment, but not from either the February order striking the complaint or the April order awarding $23,000 in attorney fees and costs to the defendant. (Id. at p. 1246.) Under these facts, the Maughan court lacked jurisdiction to consider the plaintiff's challenge to the order striking the complaint: "[B]ecause . . . the order on the anti-SLAPP motion is itself appealable, we are foreclosed from reviewing that order on appeal from the judgment." (Id. at p. 1247.)
Applying these authorities to Wagner's appeal from the TAC-C Second Amended Judgment, we conclude that, by not appealing from the orders striking the TAC-C and awarding attorney fees under the anti-SLAPP statute, Wagner forfeited appellate review of — and we lack jurisdiction to consider — any issues pertaining to the grant of Smith's special motion to strike the TAC-C or the grant of Smith's related motion to award attorney fees under the anti-SLAPP statute. Accordingly, we dismiss Wagner's appeal of the TAC-C Second Amended Judgment to the extent it purports to seek review of issues pertaining to the striking of the TAC-C or the award of attorney fees under the anti-SLAPP statute.
In addition to those issues, however, the TAC-C Second Amended Judgment also awarded statutory costs of $503.10. As we explain, we have jurisdiction to consider on appeal issues related to the award of these costs.
In Torres v. City of San Diego (2007) 154 Cal.App.4th 214 (Torres), the plaintiffs obtained summary judgment, and the judgment contained blank spaces for later entry of attorney fees and costs for the plaintiffs. (Torres, at pp. 219-220.) The defendant did not timely file its notice of appeal, and we dismissed the untimely appeal from the judgment based on a lack of jurisdiction. (Id. at p. 220.) The trial court later issued an order awarding attorney fees and costs to the plaintiffs, the court amended the judgment to include the award of fees and costs, and the defendant timely appealed from the order. (Id. at p. 221.) We dismissed the second appeal "to the extent it purports to appeal issues pertaining to the summary judgment" (id. at p. 227), because those issues were reviewable only from the (original) judgment. The award of attorney fees and costs, even when added to the judgment, "did not amend the [original] judgment in any substantive way" that might have allowed for appellate review. (Torres, at p. 222; accord, Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1163 ["there is no substantial modification to a judgment when it is merely amended to add costs, attorney fees and interest"].) We then proceeded to consider the merits of (and, ultimately, to affirm) the order awarding the plaintiffs their fees and costs. (Torres, at pp. 224-227.)
At the time of the filing of the judgment, the trial court had not yet been presented with a specific request by the plaintiffs for their attorney fees and costs. (Torres, supra, 154 Cal.App.4th at p. 220.)
On this basis, Torres is further support for our earlier conclusion that we lack jurisdiction to consider Wagner's arguments related to the striking of the TAC-C or the award of attorney fees under the anti-SLAPP statute. (See Maughan, supra, 143 Cal.App.4th at p. 1247.)
As in Torres, therefore, we have jurisdiction to consider the statutory costs that were included in the TAC-C Second Amended Judgment.
2. Analysis
As we introduced ante, the TAC-C Second Amended Judgment is " 'presumed correct,' " and Wagner (as the appellant) has the burden of establishing reversible error. (Denham, supra, 2 Cal.3d at p. 564.) "For this reason, our review is limited to contentions adequately raised in [Wagner]'s briefs." (Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027, 1033 (Rodriguez).)
However, because Wagner does not mention the $503.10 in statutory costs in his briefing on appeal, he forfeited appellate review of any issue or argument as to these costs. (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 586, fn. 5; Rodriguez, supra, 246 Cal.App.4th at p. 1033; see Behr v. Redmond (2011) 193 Cal.App.4th 517, 538 [failure to brief issue "constitutes a waiver or abandonment of the issue on appeal"].) We therefore affirm the award of $503.10 in statutory costs contained in the TAC-C Second Amended Judgment.
DISPOSITION
The February 2016 Judgment (filed Feb. 26, 2016) is reversed and remanded with instructions that the trial court vacate its January 15, 2016 minute order granting Delisi's motion for summary judgment on the complaint and file an order denying the motion. The TAC-C Attorney Fee Order (filed Feb. 26, 2016) and the Complaint Attorney Fee Order (filed May 13, 2016) are reversed and remanded with instructions to file orders denying both of Delisi's motions for attorney fees. Wagner is entitled to recover his appellate costs from Delisi in Wagner's appeals of the February 2016 order granting summary judgment on Delisi's complaint (which we deemed to be an appeal from the February 2016 Judgment), the TAC-C Attorney Fee Order, and the Complaint Attorney Fee Order.
Wagner's appeal of the TAC-C Second Amended Judgment (filed Aug. 18, 2016) is dismissed to the extent it purports to seek review of issues pertaining to the striking of the TAC-C or the award of attorney fees — both under the anti-SLAPP statute, section 425.16. The award of $503.10 in statutory costs in the TAC-C Second Amended Judgment (filed Aug. 18, 2016) is affirmed. Smith is entitled to recover his appellate costs from Wagner.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.