Opinion
B183504
12-1-2006
INDIAN RIDGE CREST GARDENS, Plaintiff and Appellant, v. CITY OF RANCHO PALOS VERDES et al., Defendants and Respondents.
ORourke & Fong and Marina Manoukian for Plaintiff and Appellant. Thomas & Thomas, Andrew J. Thomas and J. Michael Echevarria for Defendants and Respondents.
INTRODUCTION
This is the second appeal in this case. In the first appeal, plaintiff Indian Ridge Crest Gardens appealed from a judgment in favor of defendants City of Rancho Palos Verdes (City), Rancho Palos Verdes Redevelopment Agency (Agency), Carol Lynch and Douglas Stern. The judgment came after the trial court granted defendants special motions to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute. Plaintiff challenged the granting of the motion as to its cause of action for breach of contract against the City and Agency only. This court agreed that the trial court erred and reversed the judgment as to the breach of contract cause of action. (Indian Ridge Crest Gardens v. City of Rancho Palos Verdes (Jul. 29, 2004, B165089) [nonpub. opn.].)
Strategic Lawsuit Against Public Participation.
The trial court then sustained without leave to amend a demurrer to the breach of contract cause of action filed by the City and Agency. The court entered an amended judgment in favor of all defendants. The judgment contained an award of attorneys fees in favor of defendants, which included fees incurred in connection with the anti-SLAPP motion.
On appeal, plaintiff challenges the sustaining of defendants demurrer without leave to amend. It also claims the attorneys fees awarded were unreasonable. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Inasmuch as both the prior and instant appeals are based upon plaintiffs amended complaint, our discussion of the factual and procedural background of this case is taken to a large extent from the prior opinion. The facts are those alleged in the amended complaint, which are deemed to be true for the purpose of ruling on a demurrer. (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 719.)
" Plaintiffs Complaint
"Plaintiff filed its complaint against the City, the Agency, Carol Lynch (Lynch), an employee of the City and/or Agency, and City Council members Douglas Stern (Stern) and Peter Gardiner (Gardiner). . . . The complaint contained causes of action for breach of contract, fraud, negligent misrepresentation, rescission and restitution, and violation of civil rights.
Although not alleged in the complaint, Lynch is the City Attorney for the City and has been at all relevant times.
"Plaintiff alleged that in September 1999, it entered into an agreement with Palos Verdes 2 to purchase unimproved real property at Crestridge and Crenshaw in the City. Plaintiff intended to develop the property. Before the purchase was completed, the Agency contacted plaintiff about assuming plaintiffs right to purchase the property in order to develop affordable housing on the site. Plaintiff agreed to allow the Agency to assume plaintiffs rights on condition that the Agency enter into an Exclusive Negotiating Agreement (ENA) with plaintiff and afford plaintiff the option to purchase the property from the Agency should the housing development project not be completed.
"Plaintiff and the Agency entered into the ENA in February 2000. It described the Agencys assumption of plaintiffs right to purchase the property, plaintiffs right to repurchase the property if the housing development project did not move forward, and the negotiation between the parties of a Disposition and Development Agreement (DDA) with respect to the housing development project. The term of the ENA was February 1, 2000 through October 1, 2000, with a three-month option to extend. The ENA required that the Agency negotiate in good faith with plaintiff.
Specifically, the first ENA required the Agency to "negotiate in good faith with the Developer with respect to a DDA." (Par. 3.) It further provided: "The Developer and the Agency understand and agree that neither party is obligated to enter into any DDA; however, Developer and the Agency shall negotiate in good faith with respect to the DDA for the Property." (Par. 10.) Finally, the first ENA provided that the parties assumed the risk of entering into the agreement, and the Agency would not be responsible for plaintiffs damages. (Par. 15.)
"During the negotiation period, the City and the Agency hampered negotiations in a number of ways, including changing the requirements of the housing development project, failing to provide zoning approvals, and failing to provide loan commitments, in contravention of the ENA. On October 1, 2000, with no DDA in place due to the delays caused by the Citys and Agencys actions, plaintiff requested a three-month extension of the ENA. The City and Agency refused to grant the extension.
"On December 19, 2000, plaintiff appeared at an Agency meeting. Plaintiff understood it would be given a second ENA containing the same terms as the original ENA, but with a new expiration date. At the meeting, plaintiff was presented with a second ENA, which varied from the original ENA in several crucial respects. For example, it did not include an option to repurchase the property should the housing development project not move forward, and it did not contain a good faith clause. Plaintiff was informed that the second ENA was not open for negotiation; plaintiff could take it or leave it. In order not to lose its substantial investment in the project, plaintiff took it. The second ENA was in effect from December 19, 2000, through June 1, 2001 and contained a three-month option to extend. It was extended to September 1, 2001.
Although plaintiff alleged that the second ENA did not contain a good faith clause, the second ENA, like the first ENA, required the Agency to negotiate in good faith with respect to a DDA (par. 2), provided that neither party was obligated to enter into a DDA (par. 9), and provided that the parties assumed the risk of entering into the agreement and the Agency would not be responsible for plaintiffs damages (par. 14).
"Due to concerns from the community, particularly surrounding homeowners, plaintiff requested that the housing development project be modified, to provide for the construction of condominiums rather than apartments. These modifications were discussed on August 21, 2001. At that time, the City and Agency terminated all negotiations with plaintiff.
"To the extent possible, plaintiff performed all of its obligations under the ENAs. Any failure of plaintiff to perform its obligations under the ENAs was caused by the actions of defendants, which impeded plaintiffs performance.
"Defendants never actually intended to go forward with the housing development project. Rather, defendants intended to maintain the Citys exclusionary zoning policy with respect to multifamily dwellings. They also intended to induce plaintiff to part with the right to purchase the property. By failing to negotiate with plaintiff and carry out the terms of the ENAs in good faith, and by terminating negotiations on August 21, 2001, defendants breached the ENAs.
"Unaware that defendants never intended to go forward with the housing development project, plaintiff expended in excess of $200,000 in reliance on their representations. Its expenditures included commissioning an Environmental Impact Report, obtaining engineering and soils reports, preparing three sets of architectural and engineering plans, and applying for approvals from various City departments." (Indian Ridge Crest Gardens v. City of Rancho Palos Verdes, supra, at pp. 2-4.)
Defendants Demurrer
Defendants demurred on three grounds: (1) Plaintiff was not entitled to damages for lost profits under the ENA, since the ENA did not guarantee a DDA; (2) plaintiff could not state a cause of action against the City, in that it was not a party to the ENA; and (3) plaintiff could not recover its out-of-pocket expenses under the ENA pursuant to the clause, which precludes imposition of such liability. The assumption of the risk clause provides: "Each of the parties hereto assumes the risk of entering into this Agreement. In no event will Agency be responsible for Developers loss of profits or for any special, indirect, consequential or incidental damages, however caused, even if Agency has been advised of the possibility of such damages."
In sustaining the demurrer without leave to amend, the trial court first noted that the contract at issue was the second ENA, which superseded the first ENA. It "included by agreement of the parties an explicit disclaimer of any opportunity to sue for reliance or other damages under the contract. [¶] So while I think the plaintiff might otherwise have been able to plead a claim for breach of contract for the alleged lack of good faith . . . , the parties by contract have cut off the opportunity to collect on those kinds of claims."
The court added that, had the parties negotiated in good faith, even if they did not enter into a DDA, there would have been no breach of the contract. The assumption of the risk and limitation of damages provision would have no relevance unless the purpose of the provision was to apply to situations such as the instant one, where there was bad faith negotiation or other breach of the contract.
DISCUSSION
Whether Plaintiff Can Recover Damages for Breach of the ENA
A contract to negotiate an agreement is valid and enforceable. (Copeland v. Baskin Robbins U.S.A. (2002) 96 Cal.App.4th 1251, 1257.) In general, if parties enter into such a contract and, "despite their good faith efforts, [they] fail to reach ultimate agreement on the terms at issue the contract to negotiate is deemed performed and the parties are discharged from their obligations. Failure to agree is not, itself, a breach of the contract to negotiate. A party will be liable only if a failure to reach ultimate agreement resulted from a breach of that partys obligation to negotiate or to negotiate in good faith." (Id. at p. 1257, fns. omitted.)
Damages for breach of a contract to negotiate are those suffered by the plaintiff in relying on the defendant to negotiate in good faith, such as the plaintiffs out-of-pocket expenses in conducting negotiations. (Copeland v. Baskin Robbins U.S.A., supra, 96 Cal.App.4th at pp. 1262-1263.) There is no recovery for lost profits, in that there is no way of knowing whether good faith negotiations would have resulted in an agreement and, if so, the terms of that agreement. (Id. at p. 1263.)
The trial court thus correctly noted that, absent the assumption of the risk and limitation of damages clause, plaintiff might have been able to recover reliance damages for the failure to negotiate in good faith. The question thus becomes whether the assumption of the risk and limitation of damages clause is valid and enforceable.
In claiming that the assumption of the risk and limitation of damages clause is invalid and unenforceable, plaintiff relies on Civil Code section 1668 (section 1668), which provides: "All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, are against the policy of the law." The scope of section 1668 was addressed in Health Net of California, Inc. v. Department of Health Services (2003) 113 Cal.App.4th 224 (Health Net).
Health Net involved a contract between the Department of Health Services (DHS) and a contractor, in which the parties agreed that any remedies for their noncompliance with the law or implied covenants in the contract "shall not include money damages, but may include equitable remedies such as injunctive relief or specific performance." (Health Net, supra, 113 Cal.App.4th at p. 229, italics omitted.) The contractor sued DHS over certain of its practices, seeking damages for breach of contract as well as injunctive and mandamus relief. (Id. at p. 230.) While the trial court granted a writ of mandamus, it denied damages based on the limitation of damages provision in the contract. (Id. at pp. 230-232.)
On appeal, the court stated that section 1668 does not "invalidate all contracts that seek to exempt a party from responsibility for any violation of law, including any common law or contractual violation; otherwise, there would be no need for the statute to separately identify fraud or willful injury, in addition to any `violation of law, as prohibited objects of an exculpation. Further, `[d]espite its purported application to "[a]ll contracts," section 1668 does not bar either contractual indemnity or insurance, notwithstanding that (aside from semantics) the practical effect of both is an "exempt[ion]" from liability for negligence. [Citation.]" (Health Net, supra, 113 Cal.App.4th at p. 233.)
In attempting to determine which contracts are subject to section 1668, courts "`have consistently held that the exculpatory provision may stand only if it does not involve "the public interest." . . . ." (Health Net, supra, 113 Cal.App.4th at p. 233.) They also have held that "`a party [cannot] contract away liability for his fraudulent or intentional acts or for his negligent violations of statutory law, regardless of whether the public interest is affected. [Citations.]" (Id. at p. 234, italics omitted.) The prohibition against exculpatory provisions has been extended from violations of statutory law to violations of regulatory law. (Id. at pp. 234-235.)
The lawsuit in Health Net alleged violations of statutory and regulatory law. The court thus held that the exculpatory clause in the contract violated section 1668. (Health Net, supra, 113 Cal.App.4th at p. 235.) It also held that the exculpatory clause affected the public interest, in that it affected public access to medical services, again resulting in a violation of section 1668. (Id. at pp. 238-239.)
Plaintiff cites Health Net and Klein v. Asgrow Seed Co. (1966) 246 Cal.App.2d 87 in support of its contention that the assumption of the risk and limitation of damages clause is invalid and unenforceable. In Klein, the defendant provided an express warranty as to the nature of seed it was selling but knew its warranty was false at the time it sold the seed. (Id. at pp. 100-101.) Selling mislabeled seed violates public policy as expressed in the Agricultural Code. The defendants purported limitation of liability thus was void under section 1668. (Ibid.)
Plaintiff points to no statute, regulation or specific public policy that the assumption of the risk and limitation of damages clause violates. Health Net and Klein therefore do not mandate the conclusion that the clause is void and unenforceable.
Plaintiff also relies on this courts statement in Farnham v. Superior Court (1997) 60 Cal.App.4th 69 at page 71 that "contractual releases of future liability for fraud and other intentional wrongs are invariably invalidated." As Farnham makes clear, however, not all releases of liability for future intentional wrongdoing are void under section 1668. In Farnham this court upheld a contract provision waiving the right to sue corporate officers, directors and employees for damages for their wrongful acts, where the contract provided a remedy of arbitration against the corporation. (Id. at pp. 77-78.)
In reaching this conclusion, this court noted that "`no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party." (Farnham v. Superior Court, supra, 60 Cal.App.4th at pp. 77-78, quoting from Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 101.) Additionally, "commercial entities are entitled to contract to limit the liability of one to the other or otherwise to allocate the risk of doing business." (Farnham, supra, at p. 78.)
Here, a governmental entity and a commercial entity contracted to assume the risk of entering into the ENA. Both parties knew, upon entering into the ENA, that there was no guarantee that they would subsequently enter into a DDA, thus, any expenditures in reliance on the ENA might be in vain. While the ENA precluded an award of damages under the agreement, it gave the parties the right to bring an action to enforce the terms of the ENA, with the prevailing party recovering costs and attorneys fees (par. 16). The ENA thus provided a remedy for a party who believed the other was not negotiating in good faith.
The parties were both sophisticated, they contracted to assume certain risks of doing business with one another, and they agreed to preclude liability for damages under the contract. Under these circumstances, we conclude that no public policy precludes enforcement of the assumption of the risk and limitation of damages clause. It therefore is valid and enforceable. (Farnham v. Superior Court, supra, 60 Cal.App.4th at pp. 77-78.)
Plaintiff next claims that the assumption of the risk and limitation of damages clause is invalid as a liquidated damages clause, in that it was not a reasonable estimate of fair compensation for any loss the parties might sustain as a result of a breach of the ENA. (Civ. Code, § 1671.) The clause is not a liquidated damages clause, however, in that it does not liquidate damages for breach of contract but precludes an award of damages for breach of contract. (See 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 503, pp. 553-554.) Plaintiffs claim thus is without merit.
Plaintiff further asserts that defendants cannot enforce the terms of a contract which they breached, citing Civil Code section 1439. This section provides that "[b]efore any party to an obligation can require another party to perform any act under it, he must fulfill all conditions precedent thereto imposed upon himself . . . ." Inasmuch as defendants are not seeking to require plaintiff to perform any act under the ENA, the section is inapposite.
Plaintiff additionally claims that the assumption of the risk clause does not protect defendant against liability for damages due to its breach. Plaintiff argues that the clause is vague, in that it does not specify what risk plaintiff assumes, and it therefore must be interpreted against defendants, as the drafters of the ENA (Civ. Code, § 1654; Rainer Credit Co. v. Western Alliance Corp. (1985) 171 Cal.App.3d 255, 263-264), to provide that the only risk plaintiffs assumed was the risk that the parties would not enter into a DDA.
The assumption of the risk clause cannot be interpreted in a vacuum. Interpreting the assumption of the risk and limitation of damages clause as a whole, in the context of the entire ENA (Civ. Code, § 1641; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 526), it is clear that the risk assumed not only "loss of profits" but also "special, indirect, consequential or incidental damages, however caused," due to the failure to enter into a DDA. Plaintiffs claim therefore is without merit.
Plaintiff finally argues that if defendants are exempt from liability for damages, then the ENA is without consideration and void. In order for a contract to be valid, it must be supported by consideration (Civ. Code, § 1550), i.e., legal obligations on the part of both parties (Scottsdale Ins. Co. v. Essex Ins. Co. (2002) 98 Cal.App.4th 86, 94-95). In this case, the ENA imposed a legal obligation on defendants—the obligation to negotiate exclusively with plaintiff in good faith during the period in which the ENA was effective. The ENA also provided that plaintiff could bring a legal action to enforce the provisions of the ENA, even though it could not bring an action for damages for breach. Inasmuch as defendants assumed enforceable legal obligations under the ENA, the contract was not illusory and void for lack of consideration. (Ibid.)
Whether the City Is a Proper Party to This Action
As plaintiff acknowledges, the City was not a party to the ENA. Plaintiff argues, however, that it should have been permitted to amend its complaint to allege a cause of action against the City for intentional interference with economic or contractual relations.
The elements of a cause of action for interference with economic or contractual relations traditionally have been defined as: (1) A valid contract, or an economic relationship with the probability of future economic benefit to plaintiff, between plaintiff and a third party; (2) defendants knowledge of the contract or economic relationship; (3) defendants intentional acts designed to induce a breach or disruption of the contractual or economic relationship; (4) actual breach or disruption of the relationship; and (5) resulting damage. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 and fn. 2.) It is also required, however, that the defendants intentional acts be "wrongful `by some measure beyond the fact of the interference itself." (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393.)
Plaintiff bears the burden of showing that the trial court erred in sustaining defendants demurrer or abused its discretion in denying leave to amend. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459; Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020.) To show abuse of discretion, plaintiff must show in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) This showing may be made either in the trial court or on appeal. (Careau & Co., supra, at p. 1386.)
In neither the trial court nor this court, when given the opportunity, has plaintiff shown what facts it could allege to establish wrongful conduct on the part of the City, beyond the mere interference with the ENA. (Della Penna v. Toyota Motor Sales, U.S.A., Inc., supra, 11 Cal.4th at p. 393.) Accordingly, plaintiff has not met its burden of establishing abuse of discretion in the trial courts denial of leave to amend as to the City. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 349; Careau & Co. v. Security Pacific Business Credit, Inc., supra, 222 Cal.App.3d at p. 1388.)
Attorneys Fees
Where a contract provides for an award of attorneys fees in an action on the contract, the trial court is authorized to award reasonable attorneys fees to the prevailing party. (Civ. Code, § 1717, subd. (a).) The trial court has wide discretion in fixing an award of attorneys fees, and we will reverse an award only where there has been a manifest abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) "`The "experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong"[]—meaning that it has abused its discretion." (Ibid.)
In fixing attorneys fees, the court "ordinarily begins with the `lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. `California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys fee award." (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) The court may then adjust the lodestar figure based upon factors specific to the case before it, including "`the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." (Id. at pp. 1095-1096.)
The trial court originally awarded defendants $95,799.78 in attorneys fees pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16, subd. (c)). In the previous appeal, plaintiffs main challenge to this award was that it included fees incurred in preparing for trial, rather than only those incurred in connection with defendants demurrers and motions to strike. Plaintiff also claimed some of the work for which attorneys fees were awarded was duplicative. This court rejected these challenges to the attorneys fee award. The trial court was directed to recalculate the award, however, based on the reversal of the breach of contract cause of action. (Indian Ridge Crest Gardens v. City of Rancho Palos Verdes, supra, at pp. 14-15.)
Defendants then filed two attorneys fees motions. In Motion No. 1, defendants sought a reduction in the previous award of 10 to 15 percent to comply with the mandate of the previous opinion. In Motion No. 2, the Agency sought to recover about 90 percent of the eliminated fees pursuant to their contractual attorneys fees provision (the remaining 10 percent was for fees incurred on behalf of the City, with whom plaintiff had no contract). It also sought attorneys fees and costs incurred in connection with the previous appeal, the demurrer and the attorneys fees motions.
Specifically, in Motion No. 1 defendants sought a reduction in attorneys fees awarded of $9,579.98 (10 percent) to $14,178.36 (14.8 percent), for a total award of $86,199.80 to $81,621.41. In Motion No. 2, the Agency sought 90 percent of the reduction amount, or $8,621.98 to $12,760.52. It sought 90 percent of the $77,063.39 incurred in connection with the appeal, or $69,357.05. It sought 90 percent of the $12,536.55 incurred in connection with the demurrer, or $11,282.90. Finally, it sought $10,500 incurred in connection with the attorneys fees motions. The total award sought was thus $185,961.73 to $185,521.88.
The trial courts tentative ruling on Motion No. 1 was to reduce the previous award "by a full 20 percent, which is to err on the side of caution as to how much time of the total effort the contract claim itself would take. And that would reduce that fee award to a net of $76,639.82." It was not convinced by any argument to the contrary concerning how much time was spent in relation to each of the defendants and causes of action and decided "to stay with my tentative to cut it 20 percent, subject to ruling on the second motion."
In connection with Motion No. 2, the trial court stated its tentative: "I would be inclined to award what was sought. The hourly rate in this day and age seems reasonable, the specialty nature of the skill, justifies the fee; the pursuit as respondents of the defense of the prior order on appeal, albeit unsuccessful, is recompensable on the theory articulated in the moving partys briefs: We lost the battle but we won the war." The court stated that the Agency would get back 90 percent of the 20 percent it cut the previous award. It also was inclined to award 90 percent of the other amounts incurred. The total new amount to be awarded, by the courts calculations, was $ 108,383.39.
The court added that the reason "why I would accept the 90 percent ratio . . . is that these efforts all were and would have been needed by the [Agency] in order to accomplish its purposes, whether or not the City was brought along so that on a but-for analysis, they would have had to be incurred even if the City wasnt a party and the City couldnt have been a party unless there was a suit under the contract. Because that is the core argument here that there was a breach of contract."
Plaintiffs counsel then argued that it was "shocking that the Court is not taking the time to look at these fees to see whether theyre reasonable, because the burden is on the defendant to prove that it is." For example, on the appeal, plaintiffs counsel did the administrative work, produced both the opening and closing briefs, and prevailed, but defendants counsel billed twice as much as she did. She asked how the trial court could, under those circumstances, consider the amount charged to be reasonable.
The trial court responded, "Well, because they spent the time, in fact, at least they represent they spent the time in fact, and theres no reason to believe theyre lying about it." The court added that it had taken the time to read the parties papers, but it would "be disposed actually to whack 10 percent off of everything and that would cut it to $97,545.05." The trial court ultimately awarded defendants $76,639.82 in attorneys fees on the anti-SLAPP motion (80 percent of the original award) and $97,545.05 for the appeal and subsequent work.
Plaintiff first contends the trial court abused its discretion in awarding attorneys fees on Motion No. 2, in that it "did absolutely no lodestar calculation" and "arbitrarily reduced the requested attorneys fees by 10 percent only after counsel for [plaintiff] strenuously objected to the award of attorneys fees without a determination of their reasonableness."
First, we note that a lodestar calculation is not required, rather, it is the manner in which the courts calculation of attorneys fees "ordinarily begins." (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) Here, the trial court did not do a lodestar calculation but, in essence, accepted defendants calculations as the lodestar figure, noting that the hourly rate seemed reasonable and "the specialty nature of the skill, justifies the fee." Despite finding the amount requested reasonable under the circumstances, the trial court reduced that amount 10 percent in response to defense objections. We conclude the trial court did not err in its calculation of reasonable attorneys fees and did not abuse its discretion in reducing that fee 10 percent thereafter. (Id. at pp. 1095-1096.)
Plaintiff next challenges the trial courts 90-10 percent split of attorneys fees between the Agency and the City, claiming the fees should have been split 50-50. According to plaintiff, "Logic dictates that if an attorney represents two clients in the same matter and provides the same services, . . . the fees should be divided evenly between the two parties."
In an action where some of the claims raised are based on the contract containing the attorneys fee provision and some are not, attorneys fees may be awarded, and the trial court may apportion the fees to award those incurred in connection with that contract. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1179-1180; see also Santisas v. Goodin (1998) 17 Cal.4th 599, 615.) However, the trial court need not apportion attorneys fees where the various claims for relief are so intertwined as to make it impracticable to separate the attorneys time spent on the claims, or where the attorneys time is spent on issues common to the various claims. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.) We review the trial courts decision as to apportionment for abuse of discretion. (Abdallah, supra, at p. 1111.)
These rules can be applied to the instant case. Since there were common issues as to both the Agency and the City, the trial court was not required to apportion attorneys fees equally between them. Rather, it had the discretion to conclude that the attorneys "efforts all were and would have been needed by the [Agency] in order to accomplish its purposes, whether or not the City was brought along," so the Agency was entitled to recover attorneys fees for those efforts. (Abdallah v. United Savings Bank, supra, 43 Cal.App.4th at p. 1111.)
Plaintiff next asserts that the Agencys inclusion of $3,138.39 in expenses in its request for attorneys fees on appeal was erroneous, in that this court ordered the parties to bear their own costs on appeal. Costs recoverable on appeal are limited to those amounts specified in rule 27(c) of the California Rules of Court. Plaintiff makes no showing that the expenses contained in the Agencys attorneys fees request included costs which, under rule 27(c), this court allocated to defendants. Accordingly plaintiff has failed to show error. (Cal. Rules of Court, rule 14(a); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.)
Plaintiff further asserts that the Agencys fees claimed on appeal were "outrageously unreasonable," in that the Agency claimed it spent twice as many hours on the appeal as plaintiff did, yet plaintiff was the appealing party and was successful on appeal. In our view, it is not per se unreasonable for a respondent to spend twice as much time on an appeal as an appellant, and plaintiff cites no authority to the contrary. As discussed above, there are a number of factors to be considered in determining reasonableness. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at pp. 1095-1096.) In the absence of a showing that the specific amounts charged were unreasonable, we find no abuse of discretion in the trial courts approval of the fees requested for the appeal. (Id. at p. 1095.)
Our response to plaintiffs similar assertion that the attorneys fees awarded for work on the demurrer were unreasonable is the same. In the absence of a showing that the time claimed to have been spent on the demurrer was unreasonable, the fact that the Agency spent about twice as much time on it as plaintiff does not establish an abuse of discretion in the award. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.)
As to the fees awarded for time spent on the attorneys fees motion, plaintiff simply claims that 21 hours would have been a reasonable amount of time to spend on the motion, and the 35 hours spent was not. Again, plaintiff has not established an abuse of discretion in the award. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.)
The judgment is affirmed.
We concur:
MALLANO, Acting P. J.
VOGEL, J.