Opinion
G048812
06-07-2018
MICHAEL D. KINSMAN, as Trustee, etc., Plaintiff, Cross-defendant and Respondent, v. MICHAEL RODARTE et al., Defendants, Cross-complainants and Appellants.
Law Offices of William J. Kopeny and William J. Kopeny; Quinn Law and Stephane Quinn for Defendants, Cross-complainants and Appellants. Newmeyer & Dillion, Charles S. Krolikowski and Ben P. Ammerman for Plaintiff, Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2010-00374689) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael Brenner, Judge. (Retired judge of the Orange Super.Ct. assigned by the Chief Justice, pursuant to art. VI, § 6 of the Cal.Const.) Affirmed. Law Offices of William J. Kopeny and William J. Kopeny; Quinn Law and Stephane Quinn for Defendants, Cross-complainants and Appellants. Newmeyer & Dillion, Charles S. Krolikowski and Ben P. Ammerman for Plaintiff, Cross-defendant and Respondent.
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This is an appeal from a trial court's judgment concerning an order of attorney fees following a jury trial. The underlying facts and procedural background are more fully described in a companion opinion being filed today (G048106).
Based on the record before us, we find no errors and affirm.
I
ADDITIONAL FACTS AND PROCEDURAL BACKGROUND
Jeffrey P. Rhoades filed a complaint against Michael Rodarte claiming private nuisance, intentional interference with prospective economic advantage (IIPEA), civil harassment, and violations of covenants, conditions, and restrictions (CC&Rs). Rodarte filed a cross-complaint.
As in the companion case (G048106), there were other nominal parties designated in the initial lawsuit and they continue to be involved in this appeal (e.g., the Jeffrey P. Rhoades Living Trust). But we will simply refer to the parties as either Rhoades or Rodarte. On May 10, 2018, the attorney for Rhoades filed a Notice of Change of Trustee; we have modified the caption accordingly.
A jury found in favor of Rhoades and rejected Rodarte's cross-claims. The jury awarded Rhoades $784,208 in damages. Rhoades later filed a motion for the recovery of $438,571.56 in contractual attorney fees. (Civil Code, § 1717, subd. (a).) Rodarte filed an opposition to the motion. In part, Rodarte argued that the fee award should "be limited to those fees associated with [Rhoades'] single claim for violation of the CC&Rs and the award for fees should otherwise be proportionately reduced."
Further undesignated statutory references will be to the Civil Code. --------
On June 4, 2013, the trial court filed an order granting Rhoades' motion for attorney fees "only in the amount of 363,571.56." Rodarte filed an appeal.
II
DISCUSSION
Generally, "each party to a lawsuit ordinarily pays its own attorney fees." (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751.) However, an award of attorney fees can be provided for by contract: "In any action on a contract, where the contract specifically provides that attorney's fees . . . shall be awarded . . . then the party who is determined to be the party prevailing on the contract . . . shall be entitled to reasonable attorney's fees . . . ." (§ 1717, subd. (a).) The legality of an attorney fees award is reviewed de novo, while the propriety or amount of the award is reviewed for an abuse of discretion. (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.)
In this case, Rhoades filed a motion for the recovery of attorney fees based on a provision for such fees in the CC&Rs: "Any judgment rendered in any action or proceeding pursuant to this Declaration shall include a sum for attorneys' fees in such amount as the court . . . may deem reasonable, in favor of the prevailing party . . . ." Because the CC&Rs contained an attorney fees provision, and Rhoades was plainly the prevailing party in the underlying action, an award of attorney fees to Rhoades was legally permitted. Rodarte does not dispute this. However, Rodarte argues that "the trial court erred in awarding [Rhoades] $363,571.56 in attorney's fees for the tort and contract claims, and not restricting the award to the violation of the CC&Rs claim, the only contract claim."
Here, Rhoades requested $438,571.56 in attorney fees and the trial court awarded attorney fees "only in the amount of 363,571.56." Based on this record we cannot find error because we do not know the reason (or reasons) why the trial court lowered the requested award. Indeed, it is possible that the court restricted the attorney fees only to the CC&R claim, which would moot Rodarte's argument.
Because Rodarte failed to provide an adequate record (such as a transcript of the proceedings or a settled statement), we must resolve this appeal against him. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 ["It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error"].)
In any event, even if we were to address the merits of Rodarte's argument, we would uphold the trial court's ruling. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [all presumptions and intendments are indulged to support the trial court's judgment on matters as to which record is silent].)
Here, as discussed more fully in the companion case (G048106), Rodarte violated the CC&Rs on his vacant property, which was across the street from Rhoades' home. The CC&Rs provide that "any violation of this Declaration is a nuisance." Rodarte's CC&R violations were also part of Rhoades' IIPEA claim related to the sale of his home. Thus, we must presume that the trial court found that Rhoades' tort causes of action (nuisance, harassment, and IIPEA) were "'"inextricably intertwined"'" with the contractual CC&R violations "making it 'impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units.'" (See Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.)
Based on this record, we do not find that the trial court committed any errors of law; neither do we find that the court abused its discretion.
III
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Respondent.
MOORE, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.