Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court No. 05CC05122 of Orange County, Derek W. Hunt, Judge.
Robert J. Wheeler for Plaintiffs and Appellants.
Klinedinst PC, Kevin J. Gramling and G. Dale Britton, for Defendants and Respondents.
OPINION
BEDSWORTH, ACTING P. J.
Price Griffith and Leah Griffith (collectively, Griffith) appeal from a postjudgment order that awarded attorney fees and costs to Nguyen Nguyen and Kimberly Orlando (collectively, Nguyen) as the prevailing parties in this contract and tort action. Griffith argues fees should be limited to the contract claim, the amount awarded was excessive, and one item of costs should be stricken. We disagree and affirm.
FACTS
In 2004, Griffith purchased a condominium in Huntington Beach from Nguyen. The contract of sale included the following fee clause: “In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller . . . .”
After Griffith took possession, he discovered the unit had mold, water damage, and termites. The instant action followed. The complaint set out causes of action for breach of contract, negligence, negligent misrepresentation, fraud, and rescission for fraud. After a five-day bench trial, the court found for the defense on all claims.
Nguyen moved for attorney fees ($60,657.50) and filed a memorandum of costs ($6,700.69). The notice of motion stated fees were requested under the contract (“this litigation arose out of a contract containing an attorney fee provision”) and by judicial estoppel based on Griffith’s request for fees in the complaint. An accompanying memorandum of points and authorities argued Nguyen was the prevailing party in an action involving a contract under Civil Code section 1717, and the parties’ fee agreement was broad enough to include the tort claims. A supporting declaration from counsel set out his education, experience, and billing rate. He said his usual rate was $250 per hour, but he had charged Nguyen $200 per hour because he did not have insurance. The rate for “minor work” performed on the case by associates, law clerks, and paralegals was $150, $125, and $150 per hour, respectively. Counsel opined that the rates charged were equal to, or less than, those of comparable firms in Orange County for attorneys, law clerks, and paralegals of like experience. Copies of detailed billing statements were attached.
In opposition, Griffith argued the fee clause did not include tort claims, judicial estoppel did not apply, and the fee sought was unreasonable. A memorandum of points and authorities challenged the entire sum billed by law clerks and paralegals ($4,592.50) both because their rates exceeded the standard rate in the county, and for want of setting forth their qualifications. No supporting declaration was offered to provide factual support for the rate claim. The memorandum also disputed enumerated items as excessive ($8,252.50) without explaining why, and others as duplicative ($1,480). Griffith filed a motion to tax costs that disputed most of the items requested on the basis that no supporting documents were submitted.
At a hearing on the motions, the trial judge inquired about the request for court reporter fees, among others, in the memorandum of costs (item 12). Counsel for Nguyen said the item was for having a court reporter present during trial and he had paid the bill but did not have it with him and did not know if he could submit it. The following colloquy ensued: [The court, addressing counsel for Griffith] “He’s entitled to that, isn’t he?” [Answer] “Yes.” [The court] “Well, tell you what, we will take his word for it. He’s a member of the bar.” [Counsel for Griffith] “Okay.” [The court] “So I will not tax that.” A minute order awarded fees of $52,763 and granted the motion to tax all disputed costs save for court reporter fees. No explanation was provided.
I
Griffith argues fees on the tort claims were waived because the motion relied on Civil Code section 1717 rather than the statutes allowing recovery of fees as costs of litigation. (Code Civ. Proc., §§ 1032, 1033.5.) He is mistaken.
He is also late; the argument was not made below.
Civil Code section 1717, which provides that a fee provision in a contract is reciprocal, applies only to contract claims: “If an action asserts both contract and tort or other noncontract claims, [Civil Code] section 1717 applies only to attorney fees incurred to litigate the contract claims. [Citation.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 615.) But if a contract fee clause is sufficiently broad, the prevailing party may recover fees incurred to litigate tort claims as well, quite apart from Civil Code section 1717. (Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1340-1341 [fees recoverable on tort claims where contract provided prevailing party was entitled to fees in “a lawsuit or other legal proceeding” arising from the agreement].)
Fees authorized by contract, but beyond the ambit of Civil Code section 1717, are recoverable by motion for litigation costs. A prevailing party is entitled to costs (Code Civ. Proc., § 1032, subd. (b)), which include attorney fees authorized by contract. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A).) The procedure to claim such fees is “either upon a noticed motion or upon entry of a default judgment.” (Code Civ. Proc., § 1033.5, subd. (c) (5).)
Here, the motion gave reasonable notice of the basis for the fee claim, so it was adequate. The accompanying memorandum of points and authorities, referred to in the notice of motion, made it clear Nguyen claimed fees to defend against both contract and tort claims. The memorandum argued “this fee provision is . . . broad enough to encompass fees incurred in defense of the tort claims alleged in this action,” and it discussed authorities supporting the position. Nor is there any doubt Griffith understood the issue. His opposing memorandum of points and authorities argued “the attorney fee provision in the real estate does not encompass tort claims,” and the point was buttressed with his own authorities. While a notice of motion must state the grounds upon which it will be made (Code Civ. Proc., § 1010), documents referred to in the notice may be considered in assessing its adequacy, and it is sufficient if opposing counsel is fairly advised of the issues to be raised. (Tarman v. Sherwin (1961) 189 Cal.App.2d 49, 52.) The motion gave sufficient notice of the basis upon which fees were claimed.
II
Taking a different tack, Griffith contends tort fees were improper because those claims did not arise out of the contract of sale. He reasons the tort claims alleged nondisclosure of mold and other problems, but the duty to disclose arose under a real estate transfer disclosure statement, that accompanied the contract of sale, not the contract itself. He therefore reasons the tort claims did not arise from the contract. That is more of a stretch than we can make.
There is no doubt the tort claims arose out of the parties’ contract. The disclosure statement was required only because of the sale (Civ. Code, § 1102.3 [transferor of real property must deliver to prospective transferee written disclosure statement prior to transfer of title].) The statement set out the seller’s representations as to the condition of the property that was the subject of the contract of sale, and it said the seller was disclosing the information which “prospective [b]uyers may rely on.” And, of course, it was only after Griffith acquired the property – under the contract – that he sued. So the tort claims (negligent nondisclosure, fraudulent and negligent misrepresentation in not disclosing certain conditions) arose out of the contract of sale, and Nguyen was entitled to recover fees for prevailing on them.
Griffith argues the cases relied by Nguyen below are distinguishable because they contained differently worded fee clauses. But no analysis is offered, not even the language of provisions in question. We deem the point waived for failure to support it with reasoned legal argument.
In light of our conclusion Nguyen was entitled to fees under the contract, we do not reach Griffith’s argument the award cannot be sustained on a theory of judicial estoppel.
III
We consider together the amount of the fee award and the memorandum of costs. On the former, Griffith argues the trial judge abused his discretion when he did not explain the calculation or respond to Griffith’s objections to various items. We disagree.
Nothing suggests the fee award was unreasonable. A statement of decision is not required on a motion generally, or on a fee motion in particular. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294.) It is also appellant’s burden to affirmatively show error, since an order or judgment of the lower court is presumed correct. (Jacques Interiors v. Petrak (1987) 188 Cal.App.3d 1363, 1369.) That burden has not been met.
The trial judge awarded Nguyen $52,763 out of $60,657.50 requested, cutting $7,894.50. That looks like more of a cut than Griffith deserved. A substantial portion of the objection was that rates were excessive (the entire $4,592.50 for law clerks and paralegals and $8,252.50 of attorney time), but no evidence was offered to back up the argument. On the other hand, the motion itself was supported by a declaration from Nguyen’s counsel that said the rates charged were in line with those of comparable firms in the county. The other objection was that some billing entries were duplicative ($1,480). In making the cut that he did, the trial judge must have accepted the excessive rate argument in part, even though he would have been justified in rejecting it out of hand for lack of supporting evidence. If anything, then, Griffith got more of a reduction than the record would suggest he was entitled to. There was no abuse of discretion in setting the fee award.
As to costs, Griffith argues it was error not to strike court reporter fees (item 12, $1,125). Not so. The contention overlooks Griffith’s agreement to this item at argument on his motion to tax costs. The court said it thought Nguyen was entitled to the item, then said to Griffith’s counsel “isn’t he?” Griffith replied “yes.” End of story.
Since Nguyen’s fee motion gave sufficient notice of the grounds upon which it was based, defense of the tort claims was within the ambit of the fee clause, and no error is shown in fixing fees or costs, the order appealed from is affirmed. Nguyen is entitled to costs on appeal.
WE CONCUR: FYBEL, J., IKOLA, J.