Opinion
A126307
08-05-2011
BONNIE KIRCHER, Plaintiff and Respondent, v. ADELAIDE KIRCHER, Individually and as Executor, etc., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County
Super. Ct. No. CV082412)
Defendant Adelaide Kircher appeals the trial court's orders awarding attorney fees and costs to plaintiff Bonnie Kircher. Having carefully considered the contentions raised by the parties on this matter, we conclude the trial court's orders must be affirmed.
Because the parties share a common surname, we shall respectfully refer to them by their first names in order to avoid any confusion.
FACTS AND PROCEDURAL BACKGROUND
The parties are fully familiar with the undisputed facts in the underlying lawsuit as summarized in our prior opinion in this case (see Kircher v. Kircher (2010) 189 Cal. App.4th 1105 (Kircher I)),which we hereby incorporate by reference. We recapitulate and supplement the facts set forth in Kircher I only insofar as it is necessary to resolve the issues before us.
A. Kircher I
Bonnie is Vincent Kircher's (Vincent) former spouse. Following their separation, Vincent and Bonnie entered a Marital Settlement Agreement in 1976, which they modified in 1987 (jointly, "modified MSA"). Under the modified MSA, Vincent agreed to pay Bonnie continuing spousal support payments in the amount of $2,000 per month and to pay for several other benefits, including health insurance. (Kircher I, supra, 189 Cal.App.4th at p. 1108.)
Adelaide and Vincent married in 1998. During the course of their marriage, Vincent transferred certain real property from his sole ownership to himself and Adelaide as joint tenants. Adelaide and Vincent remained married until Vincent's death in January 2005. During his lifetime, Vincent met all of his support obligations to Bonnie under the modified MSA. In April 2008, Adelaide terminated Bonnie's monthly support payments but continued to pay her health insurance. (Kircher I, supra, 189 Cal.App.4th at pp. 1109-1110.)
Subsequently, Bonnie sued Adelaide personally, and in her capacity as the executor of the will of Vincent Kircher, asserting that Adelaide was obligated to continue to comply with the terms of the modified MSA. (Kircher I, supra, 189 Cal.App.4th at p. 1110.) The trial court entered judgment in favor of Bonnie, and we affirmed in Kircher I. In Kircher I, we first held that the modified MSA constitutes a written agreement, within the meaning of Family Code section 4337, that "Vincent would support Bonnie until her death." (Kircher I, slip op. at p. 8.) Second, pursuant to Probate Code section 13550 et seq., we held that Adelaide, as Vincent's surviving spouse, was personally liable for the debts of her deceased husband, up to the fair market value of the property she held in joint tenancy with Vincent during their marriage. (Kircher I, supra, 189 Cal.App.4th at p. 1114.)
Further statutory references are to the Probate Code unless otherwise noted.
B. Costs and Attorney Fees
In the Statement of Decision (SOD) announcing the judgment at issue in Kircher I, the trial court granted Bonnie's request for attorney fees " pursuant to paragraphs 15 and 16 of the [MSA] . . . and pursuant to Probate Code Section 9354(c)." The court found that Adelaide's defense of Bonnie's action on the rejected Creditor's Claim was unreasonable and ordered that Bonnie "file a timely cost bill after judgment per Civil Code section 1717, Probate Code Section 9354(c), [and] CCP Section 1032, . . . which will include attorneys' fees and all other recoverable costs."
Subsequently, and while Kircher I was pending, Bonnie filed a Memorandum of Costs claiming a total of $5,916.83. Bonnie also filed a motion for attorney fees, seeking attorney fees under section 9345, subdivision (c), and as the prevailing party pursuant to Civil Code section 1717. Bonnie claimed $58,755 as reasonable attorney fees through May 18, 2009.
In response, Adelaide filed a motion to tax costs, challenging certain cost items as unauthorized by statute or unreasonable. Additionally, Adelaide opposed Bonnie's motion for attorney fees. In her opposition motion, Adelaide sought clarification of the basis for the trial court's award of attorney fees: "Defendant asks the Court to make clear in its ruling on this motion that the contract claim on the MSA applies only to the claim against the estate. Adelaide was never a party to the MSA. The claim against her is purely statutory, based on Probate Code § 13551, not on the contract." Adelaide also argued that a negative multiplier of 0.7 was warranted, that Bonnie's counsel should not be allowed a rate increase from $300 per hour to $400 per hour midway through the proceedings, and that certain entries in counsel's time sheets should be struck in their entirety.
Bonnie filed a reply to Adelaide's motion in opposition to attorney fees, asserting that since May 2009, there had been a "significant increase in the attorneys time and fees . . . in this matter." In total, Bonnie requested an additional $21,360 in attorney fees for the period covering May 18, 2009 to July 14, 2009.
On July 22, 2009, the trial court issued a minute order granting Bonnie's motion for attorney fees in the sum of $58,755 against Adelaide "both individually and as executor of the Will of Vincent L. Kircher." The trial court also awarded costs in the full amount claimed, $5,916.83. On August 11, 2009, Adelaide filed a notice of appeal from the trial court's order granting attorney fees.
On August 12, 2009, the trial court issued an order granting Adelaide's motion to tax costs in part. The trial ruled that $82.50 associated with the service of deposition subpoenas was not reasonably necessary and struck that amount. The court denied Adelaide's motion to tax the remaining items. On August 13, 2009, Adelaide filed a notice of appeal from the trial court's order denying her motion to tax costs.
In this appeal, we review the trial court orders challenged in both notices of appeal lodged in this case.
DISCUSSION
Adelaide challenges the trial court's award of costs and attorney fees to Bonnie on two grounds. First, Adelaide contends that as a matter of law, she is not personally liable for costs and fees. Second, Adelaide contends on several grounds that the amount awarded in costs and attorney fees was unreasonable. We address these contentions in turn.
A. Adelaide's Personal Liability Under the Probate Code for Costs and Fees
Adelaide contends that the trial court erroneously awarded attorney fees to Bonnie on the basis of its finding that Adelaide's defense against Bonnie's claim was unreasonable, within the meaning of section 9354. We agree. In Kircher I, the issue presented—whether real property held by Vincent and Adelaide as joint tenants before Vincent died fell within the intended scope of sections 13550 and 13551—involved a novel question of statutory interpretation. Although we ultimately rejected Adelaide's position, we cannot find that her argument was unreasonable. (Cf. Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 927 [construing an attorney fee provision in Probate Code section 17211 that awards fees to a beneficiary who contests the trustee's account if a trustee's opposition is "without reasonable cause," and concluding that an award of fees is appropriate only if " 'no reasonable attorney would have believed that the opposition had any merit' "].)
Section 9354 provides in pertinent part: "The prevailing party in the action [on a creditor's claim] shall be awarded court costs and, if the court determines that the prosecution or defense of the action against the prevailing party was unreasonable, the prevailing party shall be awarded reasonable litigation expenses, including attorney's fees." (§ 9354, subd. (c).)
However, our conclusion that Bonnie is not entitled to attorney fees under section 9354 does not resolve the issue of Adelaide's personal liability for attorney fees. Bonnie also argues that section 13554 provides an independent basis to affirm the trial court's award of attorney fees against Adelaide personally. According to Bonnie, a finding of Adelaide's personal liability for Vincent's debt, pursuant to section 13550, invokes attorney fees under section 13554. Bonnie's contention has merit.
Section 13554 provides in pertinent part: "Except as otherwise provided in this chapter, any debt described in Section 13550 may be enforced against the surviving spouse in the same manner as it could have been enforced against the deceased spouse if the deceased spouse had not died." (§ 13554, subd. (a) [italics added].) In this case, if Bonnie had sued Vincent to enforce a debt under the MSA during his lifetime, she would have been entitled, as the prevailing party, to attorney fees and costs under the fee provisions set forth in the MSA. Accordingly, because Bonnie would have been entitled to attorney fees in a successful action to enforce a debt under the MSA against Vincent, if he had not died, then, under the broad enforcement language of section 13554, Bonnie is entitled to attorney fees here in her successful action to enforce a debt under the MSA against Adelaide as surviving spouse.
However, at oral argument, Adelaide's counsel urged us to reject Bonnie's argument for attorney fees under section 13554 because Bonnie did not raise that theory before the trial court and the trial court did not award fees on the basis of section 13554. Whereas, as a general principle of law, a party may not present a new theory of liability for the first time on appeal, an appellate court may entertain such a theory if "the argument presented for the first time on appeal involves only a question of law determinable from a factual situation already present in the record. (Citation.)" (Fields v. Blue Shield of California (1985) 163 Cal.App.3d 570, 585.) Here, all the relevant facts pertinent to the legal issue of attorney fees were fully presented to the trial court, therefore Bonnie's section 13554 argument "falls within the exception to the general rule a party may not for the first time on appeal offer an additional basis for recovery. (Citation.)" (Ibid.)
In sum, we agree with Bonnie's contention that Adelaide, as the surviving spouse, is personally liable for attorney fees under the enforcement mechanisms of section 13554. Accordingly, we conclude the trial court did not err by awarding attorney fees against Adelaide in her personal capacity.
We reject the legal contention presented by Adelaide's counsel at oral argument that an award of attorney's fees under the broad enforcement language of section 13554 would conflict with the attorney fees provision set forth in section 9354, subdivision (c). Having reviewed the operative statutes, we find no conflict between them. Sections 13551 and 13554 specifically address the subject of a surviving spouse's liability for the debts of a deceased spouse and the manner of enforcement of such debts. Section 9354, subdivision (c), on the other hand, addresses the circumstances under which a prevailing party on a creditor's claim shall be awarded attorney fees. We discern no conflict between the two statutes in either statutory language or purpose.
As we noted in Kircher I, Adelaide is personally liable for Vincent's debts, including attorney's fees, up to the fair market value of the property she held in joint tenancy with Vincent during their marriage.
B. The Amount of the Award
1. Attorney Fees
Adelaide also challenges the reasonableness of the fees award. The first step in determining the amount of a reasonable attorney fee authorized by contract is to calculate the lodestar figure. (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774-775.) "The lodestar figure is calculated using the reasonable rate for comparable legal services in the local community for noncontingent litigation of the same type, multiplied by the reasonable number of hours spent on the case. (Citations.)" (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242-1243.)
The trial court may adjust the lodestar figure upwards or downwards by the application of a multiplier after considering other factors concerning the lawsuit. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134.) Among the factors the trial court may consider in deciding whether to apply a multiplier are "(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award." (Id. at p. 1132.) A trial court's award of attorney fees under the lodestar adjustment method is reviewed on appeal for abuse of discretion. (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1512.)
Adelaide first contends that the hourly rates used to calculate the lodestar ($300 per hour for attorney services between June 15, 2005 and March 31, 2009, and $400 per hour thereafter), are too high, and that the court should have applied a flat rate of $300 per hour for all services. This contention is without merit.
Bonnie's counsel submitted a declaration stating that he is a founding partner in his law firm with 35 years experience in practice of family law and probate, and that the rates billed are commensurate with his experience and expertise in the legal community. A declaration of counsel is sufficient evidence of the market rates charged in the legal community (see Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 902-903), especially when evaluated in the light of the trial court's own knowledge and expertise regarding the value of legal services prevailing in the community. (See Ketchum v. Moses, supra, 24 Cal.4th 1122, 1132 ["The ' "experienced trial judge is the best judge of the value of professional services rendered in his court, and . . . it will not be disturbed unless the appellate court is convinced that it is clearly wrong." ' (Citation.)"].) Adelaide has failed to demonstrate an abuse of discretion on this point.
Next, Adelaide contends the trial court should have applied a negative multiplier of 0.7 to the lodestar amount, asserting that a negative multiplier was justified by the poor quality of counsel's legal work, the simplicity of the legal issues and the lack of contingent risk. The three instances of "poor quality" legal work cited by Adelaide, even if accepted as such, are not so egregious that the trial court was required to apply a negative multiplier. (See Ketchum v. Moses, supra, 24 Cal.4th at p. 1138 [noting that "the trial court is not required to [apply a multiplier] to the basic lodestar figure for contingent risk, exceptional skill, or other factors"].) Moreover, the legal issues in this case, as we previously noted, were far from simple and the outcome far from certain. In sum, Adelaide has failed to demonstrate the trial court abused its discretion by failing to apply a negative multiplier to the lodestar.
Finally, Adelaide asserts that fees totaling $970, associated with certain specific entries in counsel's billing records, should be disallowed. Adelaide asked the trial court to strike the same items in her opposition to Bonnie's motion for attorney fees filed below, and the trial court declined to do so. Adelaide fails to demonstrate either legal error or abuse of discretion by the trial court on this point. (Sporn v. Home Depot U.S.A., Inc. (2005) 126 Cal.App.4th 1294, 1303 [noting that contentions on appeal are forfeited by a party who fails to support them with reasoned argument and citations to legal authority].)
In this part of the discussion, all further statutory references are to the Code of Civil Procedure.
Whereas Adelaide does not dispute that as the prevailing party Bonnie was statutorily entitled to an award of costs (see section 1032, subd. (b)), she asserts that the trial court erred by allowing $3,600 in costs (air fares and hotel expenses) incurred by Bonnie and her daughter traveling from Florida to attend trial. Adelaide fails to demonstrate either legal error or an abuse of discretion on this point.
Section 1033.5, subdivision (a), expressly identifies certain items allowable as costs under section 1032. Adelaide contends that because the only travel costs allowable under section 1033.5, subdivision (a), are "travel expenses to attend depositions" (§ 1033.5, subd. (a)(3)), all other travel costs are precluded "by negative implication." We disagree.
No negative implication is required to determine whether a cost item is precluded under section 1033.5, because subdivision (b) specifically identifies those items which "are not allowable as costs . . . ." (§ 1033.5, subd. (b).) Moreover, even if an item is not specifically identified in section 1033.5, subdivision (a) as an allowable cost, "it may be awarded in the trial court's discretion under section 1033.5, subdivision (c)(4), provided it satisfies the further requirement of section 1033.5, subdivision (c)(2), that it was reasonably necessary to the conduct of the litigation." (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1558 [italic added].) Here, we find no abuse of discretion in the trial court's implied finding that travel and hotel costs incurred by Bonnie and her daughter in attending trial were "reasonably necessary to the conduct of the litigation"(Ibid.)
Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, cited as controlling by Adelaide, is patently distinguishable. There, the appellate court disallowed $1,680.21 for "Local Travel Expenses," which were unrelated to depositions and included parking fees, cab fares and "mileage/parking" fees for attorneys and paralegals. (Id. at 775.) The court noted that the "only travel expenses authorized by section 1033.5 are those to attend depositions" and found that "[r]outine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation." (Id. at pp. 775-776.) The Ladas court's ruling that routine expenses for local travel by attorneys were not reasonably necessary to the conduct of the litigation does not preclude the trial court's finding here that the expenses for plaintiff and her daughter to travel to trial from out of state were reasonably necessary for the conduct of the litigation.
"[S]tate trial courts have a duty to determine whether a cost is reasonable in need and amount. However, absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty. (Citation.)" (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548-1549.)
DISPOSITION
The trial court's attorney fee order and cost order are affirmed.
Jenkins, J. We concur: Pollak, Acting P. J. Siggins, J.