Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. Nos. BC202071, BC227683, Paul Gutman, Judge.
Robert B. Corsun for Plaintiffs and Appellants and for Defendants, Cross-defendants and Appellants Surya Gupta and Surya Gupta LLC.
Pitre & Teunisse and Patricia A. Teunisse for Defendants and Appellants and for Plaintiffs, Cross-defendants and Appellants Gilbert and Eva Shue.
Parker, Milliken, Clark, O’Hara & Samuelian, Claire D. Johnson, Gregory M. Salvato and Michael B. Mellema for Inteveners and Respondents and for Defendants, Cross-complainants and Respondents Etiwanda 21.69, Gin L. Fong, Connie K. Fong, Eugene M. Chan, Henry Wong, Sr., Henry Wong, Jr. and Frank Wong.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In 2004, Gilbert and Eva Shue and Surya Gupta appealed from a trial court judgment after a jury trial in which both parties unsuccessfully claimed to have received, by assignment, the general partner’s interest in Etiwanda 21.69, a real estate limited partnership. We affirmed the majority of the judgment, but reversed a portion of the judgment favoring the Shues, directing the trial court to vacate that portion and enter judgment for Gupta instead. Because we reversed part of the judgment, we reversed the trial court’s determination that the Etiwanda 21.69 partners were the prevailing parties, and the award to them of attorney fees and costs. We directed the trial court to find anew which, if any, of the parties was the prevailing party, to specify which contract or contracts were the basis of the fee award, to allocate (if necessary) the fees between contract and noncontract claims, and to ensure that any fee award was not excessive. On remand, the trial court entered a new order granting attorney fees of $265,490 and costs of $9,616.60 in favor of Etiwanda 21.69 and its general and limited partners, against the Shues and Gupta jointly and severally. The Shues and Gupta filed this timely appeal. We affirm the fee award.
BACKGROUND
We described in full this extended litigation in our earlier unpublished opinion. (Gupta v. Shue (August 5, 2004, B151259) [nonpub. opn.].) For the purpose of this appeal of the fee award on remand, we provide an abbreviated summary below.
I. The limited partnerships
In the 1970’s and 1980’s, Robert L. Arcinage formed a number of real estate limited partnerships through his corporation, Robert L. Arcinage, Inc. (Arcinage Inc.). These limited partnerships included Rancho Cucamonga 7.16 (Rancho Cucamonga), formed in 1979, and Etiwanda 21.69 (Etiwanda), created in January 1985. Arcinage Inc. was the general partner of Etiwanda and Rancho Cucamonga, and held a 75 percent limited partnership interest in Rancho Cucamonga. The limited partners of Etiwanda (as is relevant to this appeal) were Gin L. and Connie K. Fong, Eugene Chan, M.D., Surya Gupta (as agent for the Noori Mehta Trust), and Henry Wong, Sr., Henry Wong, Jr., and Frank Wong. The identity of the partners (other than Arcinage Inc.) of Rancho Cucamonga is unclear from the record.
The partnership agreements for both Rancho Cucamonga and Etiwanda entitled the general partner (Arcinage Inc., at the outset) to a distribution of 20 percent of the net proceeds of any sale of the partnership property, after return of the capital contributions of the limited partners and the payment of partnership expenses. The agreements provided that the limited partners could remove the general partner by majority vote, after which the general partner was entitled to only 10 percent of the net proceeds of sale. A general partner removed for “fraud, mismanagement, misconduct or other good cause” was entitled to no distribution at all. The partnership agreements expressly prohibited the general partner from unilaterally assigning its interest: “The General Partner shall not assign, pledge, encumber, sell or otherwise dispose of its interest as General Partner in the Partnership or enter into any agreement as a result of which any person, firm or corporation shall have a Partnership interest with it in the Partnership.” The agreements could be amended only by a majority vote of the limited partners.
Arcinage Inc., however, proceeded to assign its partnership interests to a number of different parties, eventually including Gupta and the Shues. In 1986 and again in 1994, Arcinage Inc. gave Oak Glen R-Vee, Ltd. (Oak Glen) a security interest in its limited partnership interest in Rancho Cucamonga (and another limited partnership) to secure a promissory note which eventually totaled $282,357. A trust deed recorded in San Bernardino in 1994 listed partnership property as security for the debt, and a UCC-1 financing statement filed with the Secretary of State listed the limited partnership interests.
In 1992, Arcinage Inc. owed Gupta more than $1 million. Arcinage Inc. settled the debt for $300,000, specifying in an agreement that it had general partnership interests in Etiwanda and Rancho Cucamonga, as well as a limited partnership interest in Rancho Cucamonga. Arcinage Inc. would pay Gupta with money received from the sale of the partnerships. Arcinage Inc. and Arcinage also executed an assignment giving Gupta a security interest in the partnership interests. Gupta filed a UCC-1 financing statement in 1998, listing his security interest in the partnership.
The Shues had loaned Arcinage money in the early 1980’s. In 1983, Arcinage, in his capacity as president of Arcinage Inc., executed a note promising to pay the Shues $40,000 plus interest of 15 percent, secured by a deed of trust against property owned by Rancho Cucamonga. In 1992, the Shues obtained a judgment against Arcinage for $159,971.97, but were unable to execute the judgment. Arcinage Inc. filed a voluntary petition for bankruptcy under Chapter 11 of the Bankruptcy Code in 1995. As of May 1996, the outstanding balance on the Shues’ promissory note was $255,368 in principal and interest. The Shues negotiated with Arcinage Inc. and after the bankruptcy court dismissed the petition, executed a settlement agreement which transferred Arcinage Inc.’s general partnership interest in Etiwanda, and its general and limited partnership interests in Rancho Cucamonga, to the Shues (1996 Settlement Agreement), pursuant to an assignment.
In 1998, with the sale of the partnership property pending, the Shues requested that the trust deed in favor of Oak Glen be removed, pointing out to Oak Glen that Arcinage Inc. did not, and never had, an ownership interest in the real property described in the deed. Oak Glen reconveyed the estate it purportedly held under the deed of trust, noting that it continued to hold a secured interest in Arcinage Inc.’s limited partnership interest in Rancho Cucamonga.
A year earlier in 1997, the Etiwanda limited partners had unanimously voted to remove Arcinage Inc. as general partner, electing Gin L. Fong as general partner and Gupta as cogeneral partner. The limited partners subsequently removed Gupta as cogeneral partner in 1999, after Gupta attempted to transfer partnership property and force dissolution of Etiwanda. Gupta subsequently purchased Oak Glen’s secured interest in Rancho Cucamonga for $30,000, filing a UCC-2 statement.
II. The litigation by Gupta and the Shues and the trial court judgment
Gupta filed suit in December 1998 in Los Angeles County against Arcinage and his wife, Arcinage Inc., the Shues, and others. His first cause of action sought a judicial determination that his rights and interest in Rancho Cucamonga and Etiwanda was superior to other secured and unsecured claims against the limited partnerships. His second cause of action sought cancellation of the 1983 deed of trust against the Rancho Cucamonga property, which Arcinage Inc. had executed in favor of the Shues to secure the promissory note.
The Shues then filed a complaint in August 1999 in San Bernardino County against Etiwanda, the limited partners of Etiwanda and Gupta. Etiwanda and some of its limited partners filed a cross-complaint, and Gupta filed another cross-complaint. Etiwanda and its limited partners, the Fongs and the Wongs (collectively Interveners), successfully moved to intervene in the Gupta action, and the Shue action was eventually transferred to Los Angeles County, where the trial court consolidated the two cases.
The trial court granted the Interveners’ motion for nonsuit on Gupta’s first cause of action, concluding that Arcinage Inc.’s 1992 assignment to Gupta of the general partnership interest in Etiwanda was invalid as a matter of law. After trial and four days of deliberation, the jury returned a special verdict with 17 findings on January 8, 2001. The jury found:
The trial court also granted an oral motion for nonsuit on a cross-complaint by the Arcinages and Arcinage Inc.
(1) Arcinage Inc., as general partner of Etiwanda, breached the partnership agreement, injuring the limited partners in the amount of $9,162 plus interest.
(2) Arcinage Inc., and through the corporation, Arcinage, breached a fiduciary duty to the limited partners, resulting in damages of $95,872.
(3) The limited partners validly removed Arcinage Inc. as the general partner of Etiwanda pursuant to the partnership agreement’s provision for removal for “fraud, misconduct, mismanagement or other good cause.”
(4) The Shues did not become general partners of Etiwanda based on the assignment.
(5) The Shues were not liable for intentional interference with the partnership agreement between the general and limited partners of Etiwanda.
(6) An implied-in-law contract existed between the Shues and the Etiwanda partners, entitling the Shues to $14,000 for their services.
(7) Etiwanda never authorized Gupta LLC to sign grant deeds distributing partnership property.
(8) Gupta LLC, as cogeneral partner of Etiwanda, breached the partnership agreement with the general partners, damaging the Interveners.
(9) Gupta LLC also breached its fiduciary duty to the limited partners and to cogeneral partner Fong, damaging the Interveners (who, however, sustained no monetary damages).
(10) Gupta was the alter ego of Gupta LLC and personally liable for its obligations, and was also individually liable for breaching the company’s fiduciary duty to Interveners.
(11) The Etiwanda partnership agreement was never amended to require a vote of 75 percent of the limited partners to remove the general partner.
(12) Gupta LLC was validly removed as Etiwanda’s cogeneral partner for “fraud, misconduct, mismanagement or other good cause” within the meaning of the partnership agreement.
(13) The 1983 trust deed Arcinage Inc. gave the Shues against the general property interest in Rancho Cucamonga and recorded against the partnership’s real property should be cancelled.
(14) Gupta did not obtain from Arcinage Inc. a security interest in its general and limited partnership rights to receive proceeds from the sale of Rancho Cucamonga’s assets.
(15) The Shues obtained an absolute assignment of Arcinage Inc.’s interest as a general and limited partner in Rancho Cucamonga, intended as a security interest. Gupta did not perfect his security interest before the Shues perfected theirs or before the assignment became effective, and the Shues did not know of Gupta’s security interest when Arcinage Inc. assigned its Rancho Cucamonga partnership interests to the Shues.
(16) Arcinage Inc. granted Oak Glen a security interest in the limited partnership interest in Rancho Cucamonga. Oak Glen perfected its security interest before Arcinage Inc. assigned the same limited partnership interest to the Shues. The Shues had no knowledge of the preexisting Oak Glen security interest when they took the assignment, and the reconveyance of Oak Glen’s trust deed extinguished all the security interest held by Oak Glen. Oak Glen assigned this security interest to Gupta for value.
(17) Interveners did not breach their fiduciary duty to Gupta LLC.
The trial court entered judgment on April 9, 2001. In the Gupta action, judgment was entered against Gupta and in favor of Chan and the Shues; in the complaint in intervention, Fong was declared the sole general partner of Etiwanda, and neither Gupta nor the Shues had any interest in or claim to the sale of partnership property. The court declared that the Etiwanda partnership agreement was not amended to change the voting requirements; Etiwanda was not dissolved; and the 1999 grant deeds Gupta recorded were rescinded.
The Interveners were awarded $95,872 against Arcinage and Arcinage Inc. for breach of fiduciary duty as the Etiwanda general partner, plus $9,162 for breach of the partnership agreement. In the Shue action, judgment was entered for the defendants on the Shues’ claim of an interest in Etiwanda under the assignment from Arcinage, although judgment was entered for the Shues for $14,000 on their implied-in-law contract claim. On the cross-complaint filed by Etiwanda, the Fongs, the Wongs and Chan, judgment was entered in their favor, and on the cross-complaint filed by Gupta, judgment was entered in favor of the defendants. The trial court denied postjudgment motions by Gupta and the Shues for judgment notwithstanding the verdict and for a new trial.
The court awarded Etiwanda, the Fongs, the Wongs and Chan $302,220.50 in prevailing party attorney fees against the Shues, Gupta, Gupta LLC, Arcinage, and Arcinage Inc., jointly and severally. An amended judgment added costs.
III. The appeal and remand
The Shues and Gupta appealed. We affirmed the trial court, except that we held that Gupta did establish that the reconveyance by Oak Glen did not extinguish his interest in Arcinage Inc.’s limited partnership interest in Rancho Cucamonga (reversing Finding 16). Because we reversed a portion of the judgment, we reversed the finding that the Interveners were prevailing parties and the order awarding attorneys fees. In our prior nonpublished opinion, we directed: “On remand, the trial court is to consider anew the interveners’ motion for attorney’s fees. The trial court is first to determine who the prevailing party or parties on the contract are, if any. The court’s ruling should contain a detailed finding as to why there is or is not a prevailing party. In the event the court determines there is a prevailing party and that an award of attorney’s fees is appropriate, the court is to specify the contract or contracts upon which its award of attorney’s fees is based. When awarding attorney’s fees, the court is to allocate attorney’s fees between contract and non-contract claims or explain why such allocation is not required. Finally, the trial court is to consider carefully the amount of fees requested in relationship to the relief gained so as to ensure that any award of fees is not excessive.” (Fn. omitted.)
On remand, the trial court issued a 22-page ruling finding that the Interveners were the prevailing party on the partnership agreement and the 1996 Settlement Agreement, both of which contained attorney fees clauses, and awarding reasonable attorney fees and costs jointly and severally against the Shues, Gupta, Arcinage Inc. and Arcinage. The amount of fees awarded in a judgment on February 8, 2007, was $265,490.00, with costs of $9,616.60. The Shues appealed and Gupta cross-appealed.
Arcinage and Arcinage Inc. do not appeal from the fee award on remand.
DISCUSSION
I. The Shues’ action was “on the contract,” so that the attorney fees clauses in the Etiwanda partnership agreement and in the 1996 Settlement Agreement apply.
On appeal, we determine the legal basis for an award of attorney fees de novo as a question of law. (Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677.)
The Shues argue that neither the Etiwanda limited partnership agreement nor the 1996 Settlement Agreement entitles Interveners to recover attorney fees from them. The Shues argue that they were not parties to the partnership agreement and that although they were parties to the 1996 Settlement Agreement, the Interveners were not. They claim that the lawsuit centered on the partnership agreement, and that because they were not signatories, and because the Interveners did not prevail on a “contract” cause of action, each party should bear its own costs.
Each party to a lawsuit pays its own attorney fees except where a statute or contract provides otherwise. (Code Civ. Proc., § 1021.) Civil Code section 1717, subdivision (a) provides: “[i]n 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.”
This section clearly applies to those signing the contract with an attorney fee provision. It also applies to nonsigning defendants who are “‘sued on the contract as if [they] were a party to it, when a plaintiff would clearly be entitled to attorney’s fees should he prevail in enforcing the contractual obligation against the defendant.’” (Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 450, quoting Reynolds Metal Co. v. Alperson (1979) 25 Cal.3d 124, 128.) Further, nonsigning plaintiffs (such as the Shues) are liable for attorney fees if “’the party would have been liable for the fees of the opposing party if the opposing party had prevailed.’” (Dell Merk, Inc. v. Franzia, supra, 132 Cal.App.4th at p. 451.) In other words, if the action is brought or defended “on the contract” containing the attorney fees provision, the prevailing party is entitled to fees even if he or she did not sign the contract, as long as the losing party would have been able to recover fees if it had won the case.
“‘California courts liberally construe the term “‘“on a contract”’” as used within section 1717. [Citation.] As long as the action “involve[s]” a contract it is “‘on [the] contract’” within the meaning of section 1717. [Citations].’” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894, quoting Dell Merk, Inc. v. Franzia, supra, 132 Cal.App.4th at p. 455.) The Shues’ 1999 complaint, filed in San Bernardino County and later consolidated with Gupta’s action in Los Angeles, repeatedly refers to the 1996 Settlement Agreement and the Etiwanda partnership agreement. The Shues attached the 1996 Settlement Agreement as exhibit A, the purported assignment of the general partnership pursuant to the settlement as exhibit B, and the Etiwanda partnership agreement as exhibit C. These were the only exhibits. The Shues argued that, based on the limited partnership agreement, they had an “implied-in-law contract... derived from the terms of the aforementioned limited partnership agreement at Exhibit ‘C’ which contains an attorney’s fees provisions in the event a lawsuit is brought to enforce the terms of that agreement,” and requested attorney fees “pursuant to the limited partnership agreement at paragraph 29.” Given these facts, the Shues’ action was “on the contract[s]”—both the 1996 Settlement Agreement and the Etiwanda partnership agreement—for the purpose of section 1717.
The mere fact that the Shues claimed fees under the partnership agreement does not estop them from disputing that their prevailing opponents are entitled to fees. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC, supra, 162 Cal.App.4th at pp. 897–899 [rejecting estoppel as basis for awarding fees against losing nonsignatories].)
II. Civil Code Section 1717 applies to the Shues.
When the action is “on the contract,” section 1717 “ensure[s] mutuality of remedy for attorney fee claims,” and “a plaintiff is liable for contractual attorney fees where ‘a defendant sued on a contract with a provision awarding attorney fees to the prevailing party defends by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of that contract.’” (Exarhos v. Exarhos (2008) 159 Cal.App.4th 898, 903.) In addition, “‘“[w]here a nonsignatory plaintiff sues a signatory defendant in an action on a contract and the signatory defendant prevails, the signatory defendant is entitled to attorney fees only if the nonsignatory plaintiff would have been entitled to its fees if the plaintiff had prevailed.” [Citation.]’” (Ibid. at pp. 903–904.) The Shues were nonsignatory plaintiffs and the Interveners were signatory defendants in the Shues’ action. The Shues are liable for attorney fees if, had they had prevailed in their argument that they held the general partnership interest in Etiwanda through the assignment by Arcinage, they could have recovered attorney fees against the Interveners.
The Shues could have recovered attorney fees under each contract had they prevailed against the Interveners. If they had won their argument that they held the general partnership interest in Etiwanda, they could have recovered their fees under the Etiwanda partnership agreement, which provided “In any dispute between the Partners, whether or not resulting in litigation, the prevailing party shall be entitled to recover from the other party all reasonable costs, including, but not limited to, reasonable attorneys’ fees.” Although the Shues were not signatories to the partnership agreement, their lawsuit alleged that they became the general partner through the assignment by Arcinage Inc., making the controversy in effect a “dispute between the Partners” because the Shues “stepped into [Arcinage Inc.’s] shoes as a matter of law.” (California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 605 [prevailing party entitled to claim attorney fees against assignee of rights in contract including attorney fees provision].)
The Shues were also entitled to fees under the 1996 Settlement Agreement signed by the Shues, Chan, and Arcinage (personally and as Arcinage Inc.), which provided “In the event that suit is brought to enforce or interpret any of the provisions of this Settlement Agreement and Mutual General Release, each of the prevailing Parties shall be entitled to recover their attorneys’ fees, expenses, and costs of suits actually incurred.” The Shues were a “Party” to the 1996 Settlement Agreement; they brought suit to enforce the Agreement; under the clear terms of the agreement, if they had prevailed, they could have recovered their attorney fees and, conversely, they could be held liable for fees if they did not prevail.
III. The trial court did not abuse its discretion in finding that Interveners are the prevailing parties on the contract causes of action.
The trial court has wide discretion in determining which party has prevailed for the purpose of awarding attorney fees, and it also has the power to determine that neither party prevailed. (Roden v. AmerisourceBergen Corp. (2007) 155 Cal.App.4th 1548, 1578.) “[I]n deciding whether there is a ‘party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by ‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.’” (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.) The Shues argue that it was an abuse of discretion for the trial court to conclude that the Interveners were the prevailing parties. Gupta does not make this argument.
The trial court on remand characterized the primary issue in the consolidated actions as “who was the General Partner... of Etiwanda 21.69, a limited partnership.” The Shues claimed to be the general partners through assignment; they lost that claim. They claimed they became general partners through the acquiescence of the limited partners; they also lost that claim. They did receive $14,000 on their claim in quantum meruit for their services to the limited partnership, but the court noted that “the general partnership interest is likely to be of significantly greater value.... [¶] Although... the Shues prevailed on other issues, the determination of who owns the general partnership interest in the Etiwanda partnership under the Etiwanda partnership agreement, a contract with an attorneys fees provision, involved all parties to this litigation and the Intervenors were successful as against all of them. [¶] The Intervenors are also the prevailing parties under the 1996 [Settlement Agreement] as against the Shues who based their claim to ownership of the general partnership interest on the assignment in that agreement.”
It was not an abuse of discretion to conclude that the Interveners, rather than the Shues, were the prevailing parties. The court compared the relief the Shues received to the demands made in their complaint and their objectives in the litigation, concluding that the $14,000 received in quantum meruit damages paled in comparison to what the Shues would have received had they been successful in their claim to be, through the assignment by Arcinage and Arcinage Inc., Etiwanda’s general partner. Although Code of Civil Procedure section 1032, subdivision (a)(4) states that “‘[p]revailing party’ includes the party with a net monetary recovery,” the Shues’ receipt of a monetary recovery does not necessarily entitle them to prevailing party status. “‘Nothing in the statute limits the court’s inquiry solely to net monetary recovery; to do so would be to ignore, among others, the problems presented by contract-derived claims against multiple parties and net recoveries which were actually Pyrrhic victories.’” (Roden v. AmerisourceBergen Corp., supra, 155 Cal.App.4th at p. 1580.) While the Interveners did not receive a “‘simple, unqualified win’” (Hsu v. Abbara, supra, 9 Cal.4th at p. 876), they did successfully oppose the Shues’ claim to be Etiwanda’s general partner, achieving the main objective of their intervention. The trial court was “‘free to consider all factors which may reasonably be considered to indicate success in the litigation.’” (Roden v. AmerisourceBergen Corp., supra, 155 Cal.App.4th at p. 1580.) Its conclusion that the major issue in the litigation was the identity of the general partner of Etiwanda, and that the Shues’ failure to be declared the general partner outweighed their success on a small recovery in quantum meruit, was within the trial court’s discretion.
The Shues also claim that the Interveners “injected” the majority of issues into the litigation, but the Shues’ complaint was “on the contract” as were the defenses and counterclaims raised by the other parties. The Shues’ complaint named as defendants the Interveners (Etiwanda, the Fongs and the Wongs) as well as Gupta. The Shues cannot complain that they should not be liable for fees because named defendants raised related issues and defenses that expanded the litigation.
IV. The trial court was not required specifically to allocate fees between the contract and non-contract causes of action.
The Shues argue that the trial court should have held them liable only for fees related to “any alleged action on the Etiwanda 21.69 partnership agreement.” They point to this court’s direction that on remand the trial court should allocate fees between causes of action, and claim the court did not comply. Our actual direction, however, was “the court is to allocate attorney’s fees between contract and non-contract claims or explain why such allocation is not required” (italics added).
In its initial ruling on January 19, 2006, the trial court did not explain why it did not allocate the fee award between causes of action. On April 13, 2006, in its ruling on the Shues’ motion for clarification, the court added: “While it is correct that the Court did not allocate fees between contract and non-contract claims, the Shues’ claims, that is,... their first and second causes of action, were for partnership dissolution and declaratory relief and were both, therefore, based on contract.... [¶] Consequently, since the Shues’ claims were ‘based on contract,’ there were no non-contract claims, hence, there was no need to allocate.” The trial court complied with the instructions on remand; the question remains whether the court erred in not allocating the fees.
“Where a cause of action based on the contract providing for attorney’s fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney’s fees under section 1717 only as they relate to the contract action.... [¶]... Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d 124, 129–130, citations omitted.) “‘Apportionment of a fee award between fees incurred on a contract cause of action and those incurred on other causes of action is within the trial court’s discretion.... ’” (Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1083.) Where common issues are raised between the contract cause of action and another claim, it is not an abuse of discretion to award attorney fees for both. (Id. at p. 1084.) If the trial court “could reasonably find that [the] various claims were ‘“inextricably intertwined”’ [citation], making it ‘impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units’ [citation],” apportionment is not required. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.)
Here, the trial court reasonably concluded that all the Shues’ claims were based on contract, that is, on the Etiwanda partnership agreement, the 1996 Settlement Agreement, and the assignment under which the Shues claimed to be the owners of the general partnership interest in Etiwanda. The Shues argue that fees should not have been awarded for work on the Interveners’ causes of action against them for interference with contract (alleging that the Shues interfered with the sale of the property and interfered with the partnership agreement), breach of contract (also alleging that by filing their complaint the Shues caused the buyer of the property not to close the transaction), and breach of fiduciary duty (as purported assignees of the general partnership interest), claims upon which the Shues prevailed. But these claims are closely intertwined with the issue of the Shues’ entitlement to the general partnership of Etiwanda, and as we stated before the ownership of the general partnership interest was the overarching issue in the litigation and the prize sought by the Shues. The Shues prevailed on these secondary claims by the Interveners only because the Shues lost their claim to the general partnership. The court did not abuse its discretion in not apportioning the fees between the various claims.
We note that the attorney fees clause in the Etiwanda partnership agreement provides for fees to the prevailing party “[i]n any dispute between the Partners” (italics added). This broadly-worded clause does not limit fees to contract causes of action, to actions based on the partnership agreement, or even to litigation. “Fees may be awarded for noncontractual issues where the fee provision is broad enough to cover those claims.” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1365.) The broad language of the attorney fees clause is further support for our conclusion that it was within the trial court’s discretion to make an award that does not apportion fees between contract and noncontract causes of action. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 608 [if contractual 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”]; Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270, 1277 [language providing for fees “‘in connection with this Agreement’” was broad enough to cover tort as well as contract claims in fee award under section 1717].)
V. The amount of fees awarded was not an abuse of discretion.
The Shues characterize the award as “absurdly excessive” and complain that the trial court did not use a “lodestar” approach in its calculation of the amount. We will not set aside the amount of fees awarded by the trial court “‘absent an affirmative showing of abuse of discretion in that the award is “manifestly excessive in the circumstances.”’” (Cruz v. Ayromloo, supra, 155 Cal.App.4th at p. 1274.)
A “lodestar” calculation consists of the reasonable hours spent on the litigation multiplied by the hourly rate for private attorneys prevailing in the community. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1323–1324.) While the lodestar approach is the usual method of determining a reasonable attorney fee, the court is not required to provide a statement of decision detailing the application of the lodestar, “or otherwise detail its fealty to the law, which we presume.” (Id. at p. 1323.) It is sufficient if the record shows that the court considered the reasonable number of hours multiplied by a reasonable rate. (Id. at p. 1324.)
The trial court had before it detailed records of the hours worked and billed by the Interveners’ attorneys and the fees paid by the Interveners, which totaled more than $398,000. In its ruling, the court concluded that this amount was excessive because there was “no evidentiary support for the necessity of or benefit from the presence of two attorneys billing at hourly rates in excess of $300.00 at every hearing and every day of the 18-day trial. Secondly, the asserted complexity of this case provides no justification for attorneys fees for both attorneys.... In sum, this court finds that a reasonable fee for all services rendered by all of Intervenor’s counsel is $265,490.00 plus costs in the amount of $51,552.92.” In cutting the amount requested by approximately one-third, the trial court exercised its discretion to determine a reasonable number of hours spent on the litigation. (See El Escorial Owners’ Assn. v. DLC Plastering, Inc., supra, 154 Cal.App.4th at pp. 1366–1367 [“A court may substantially reduce fees where multiple counsel represent a party leading to a duplication of effort.”].)
Further, although the trial court did not specify the exact hourly fee, it impliedly found that the rates “in excess of $300.00” were reasonable. The Shues do not challenge this billing rate on appeal. “The court’s comment on the rate, combined with the specific number of compensable hours it identified, demonstrates the court applied the lodestar method. [Appellant’s] contrary claim is unsupported by the evidence.” (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1324 .)
Further, the Shues do not indicate why the amount is “absurdly excessive.” The court considered the nature of the litigation and reduced the fees requested in spite of the complex nature of the claims. The amount awarded was not an abuse of discretion.
VI. The trial court did not abuse its discretion in awarding joint and several attorney fees.
The Shues and Gupta both argue that the trial court erred in imposing joint and several liability on them for attorney fees. Our remand order did not require that the trial court apportion the fees between the parties. The trial court had discretion whether to apportion costs. (Acosta v. SI Corp., supra, 129 Cal.App.4th 1370, 1375.) It was not an abuse of discretion to make a joint and several fee award.
We reject the Shues’ argument that the Interveners were required to file separate requests for fees apportioned between the nonprevailing parties. A prevailing defendant is not required to apportion costs among losing plaintiffs or file separate requests as to each. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1378–1379.)
The Shues and Gupta do not suggest a specific method to apportion fees between them. Instead, they simply argue that the court should have allocated fees between them based on their disparate interests in the litigation. As noted above, the parties’ claims in this litigation were closely interrelated, and while there were issues particular to individual parties, the overriding question (and the reason the Shues and Gupta initiated this litigation) was the identity of the general partner of Etiwanda. While the trial court had the authority to attempt to apportion fees, it was not required to do so in the first instance.
VII. The trial court judgment after remand is consistent with the special verdict.
Gupta also argues that the trial court judgment after remand was not in conformity with the jury’s special verdict on his first amended complaint. He points to a portion of the April 11, 2006 modified judgment following remand. The trial court, however, further modified the judgment in its judgment after remand filed February 8, 2007. That judgment properly reflected that Gupta did not prevail on his first cause of action for declaratory relief against Chan, or on his request for a declaration of rights to interest in the Rancho Cucamonga or Etiwanda partnership through Arcinage or Arcinage Inc. The judgment also correctly states that, as this court found in the first appeal (reversing item 16 of the Special Verdict), the security interests of Oak Glen R-Vee were not extinguished by the reconveyance and satisfaction. We see no error in the judgment after remand.
VIII. Fees on appeal
The Interveners request their attorney fees on appeal. Because we determine that the Shues’ and Gupta’s arguments are without merit, we conclude that the Interveners are entitled to their fees and costs on appeal. We remand to the trial court for a determination of the amount of fees due.
DISPOSITION
The judgment on remand awarding attorney fees is affirmed. The Interveners are entitled to their costs and fees on appeal, to be determined by the trial court on remand.
We concur: MALLANO, P. J., ROTHSCHILD, J.