Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super.Ct.No. RIC428221 Stephen D. Cunnison, Judge. Affirmed.
Jackson, DeMarco, Tidus & Peckenpaugh, Michael L. Tidus, Alene M. Taber, and Kathryn M. Casey for Real Parties in Interest and Appellants.
No appearance for Defendants and Respondents.
Ward & Ward, Alexandra S. Ward; Remy, Thomas, Moose & Manley, Whitman F. Manley, Tiffany K. Wright, and Amy R. Higuera for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Defendants and respondents City Council of Moreno Valley and City of Moreno Valley (collectively, City) approved a proposal by real parties in interest and appellants Empire Homes II, LLC and Empire Homes, Inc. (collectively, Empire) to subdivide certain property into residential lots. Plaintiff and respondent Vincent Monaco (Monaco), an adjacent landowner, successfully petitioned the superior court for a writ of mandate compelling the City to set aside such approval and requiring Empire and the City to suspend all activity on the project until they complied with the California Environmental Quality Act (CEQA). Thereafter, on Monaco’s motion, the court awarded Monaco $131,810.89 in attorney fees pursuant to the private attorney general statute, Code of Civil Procedure section 1021.5 (section 1021.5). Empire appeals that award. For the reasons that follow, we will affirm the order.
Section 1021.5 provides, in relevant part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”
II. FACTUAL AND PROCEDURAL SUMMARY
Empire applied to the City for approval of a tentative tract map to subdivide approximately 76 acres into residential lots. The subject property is adjacent to approximately 18 acres of vacant land owned by Monaco. The City’s planning commission adopted a negative declaration concerning the project based upon the finding that the project “will not have a significant effect on the environment.” Thereafter, the City approved the tentative tract map for the project, ratified the negative declaration, and directed the filing of a notice of determination.
Monaco filed a petition for writ of mandate in the superior court challenging the City’s approval of the project and the adoption of the negative declaration. Monaco alleged that the City ignored substantial evidence in the administrative record that the project may have significant impacts on the environment, and that an environmental impact report (EIR) was required. Monaco further alleged that he was bringing the action “as a private attorney general pursuant to Code of Civil Procedure section 1021.5, and any other applicable legal theory, to enforce important rights affecting the public interest.”
Following a hearing, the superior court issued a tentative decision to grant the petition and issue a writ of mandate commanding the City to set aside its approval of the project, including the mitigated negative declaration. Among other findings and conclusions, the court determined: (1) Monaco was not seeking relief to obtain a competitive advantage; “Although competitive interests may be involved, Monaco has adequately demonstrated his standing as a neighboring property owner attempting to enforce a public duty”; (2) the evidence in the administrative record of significant flooding impacts does not support the City’s finding of no significant environmental impact; (3) there is substantial evidence in the administrative record to support a fair argument that “the project will have significant adverse effects on the environment with respect to flooding”; (4) evidence regarding the effect of grading are sufficient to support a fair argument that “the project will have a substantial impact on soils and erosion”; and (5) the recognition by city council members that the project would destroy visually significant rock outcroppings supports a fair argument that “the project would have a substantial impact on aesthetic resources.”
The court stated that the tentative decision shall be the statement of decision unless a “party proposes issues not covered” in the tentative decision within 10 days of service. (Italics omitted.) No one proposed any further issues to be decided; nor did any party object to the decision or otherwise request changes to the tentative decision. The tentative decision became the statement of decision and was incorporated into the judgment. Neither the City nor Empire appealed from the judgment.
The City thereafter filed a return to the peremptory writ stating that it had rescinded the approval of the tentative tract map for the project and the negative declaration.
Monaco filed a motion to recover $263,621.79 in attorney fees pursuant to section 1021.5. The motion was opposed by the City and Empire. Empire argued that Monaco’s lawsuit was not brought to benefit the public, but rather to force Empire to pay for and construct drainage and flood control improvements that would benefit Monaco’s property. Monaco asserted that he “is simply a property owner, who is concerned about the project’s potential to cause flooding – to his property and others – just as many other members of the public were concerned.”
Following a hearing on the motion, the court awarded Monaco $131,810.89 in fees. The court did not make any express factual findings in connection with the fee motion, and no party requested that it do so.
Empire appeals from the order granting the motion for fees.
Where relevant, additional facts will be discussed below.
III. ANALYSIS
A. Trial Court’s Consideration of Certain Evidence
Empire contends the trial court erred in considering certain evidence submitted by Monaco in connection with the fee motion. In particular, it points to declarations by Monaco and Joseph Bonadiman, a civil engineer, submitted with Monaco’s reply papers, and to two maps accompanying Monaco’s declaration that were not part of the administrative record. In his declaration, Monaco stated that he had learned of a plan by Empire “to bypass or circumvent [Riverside County’s] master storm drain plan [that] was not disclosed in any of the public hearings.” Monaco also authenticated certain documents, created after the City’s approval of the project, reflecting Empire’s proposed drainage plan. In Mr. Bonadiman’s declaration, the engineer opined that the new plans “do not adhere to the Moreno Area Drainage Plan.” He further stated that a proper EIR covering drainage matters would be important to owners of approximately 1,500 acres, 17 acres of which is Monaco’s property.
Empire filed written objections to the declarations. The court did not rule on the objections.
Monaco contends that Empire did not request a ruling on the objections at the hearing and therefore failed to preserve this issue for appeal. We agree. The failure to request a ruling on written evidentiary objections waives the objections and forfeits the issue for appeal. (Flatley v. Mauro (2006) 39 Cal.4th 299, 306-307, fn. 4; Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 712-713.)
Empire insists that it “pressed the trial court during the... hearing about its objections to the declarations.” It refers us to the following portion of its counsel’s argument at the hearing: “They [Monaco] have the burden to show that they’re entitled to fees. The issue that [Monaco’s counsel] is raising about the Moreno Beach flood control was never an issue before this Court. It was never an issue in the writ of mandate. It was never an issue they brought up in the complaint. [¶] As you know, we filed objections to Bonadiman’s declaration on the fact that it was hearsay and it was irrelevant and it never was an issue before the Court. [¶] Your Honor, what the issues are—and I hate to bring you back to the [Corona Family Limited Partnership v. City of Temecula (Feb. 8, 2005, E034810) [nonpub. opn.]] case, but remember in the Corona case the issue was identical having to do with a 100-year flood....” The passing reference to the filing of objections during the course of arguing the merits of the motion cannot reasonably be characterized as a request for a ruling on the objections. There is no further mention of the objections during the hearing. Accordingly, Empire has forfeited its argument that the challenged evidence was improperly considered.
Moreover, even if the admissibility of the evidence was preserved for appeal and we assume that the court relied upon the evidence, Empire has failed to show that the court abused its discretion in considering the evidence. Empire contends that because the declarations were filed with Monaco’s reply papers, Empire was denied “the opportunity to test the veracity of Monaco’s statements in his declaration.” The declarations were filed on November 7, 2007—eight days before the November 15, 2007, scheduled hearing date. On November 13, 2007, Empire filed a sur-reply, responding to Monaco’s reply papers. It filed its written objections to the declarations the following day, one day before the scheduled hearing date. In the objections, Empire requested a continuance “to allow Empire Homes the opportunity to prepare a supplemental brief to fully respond to the new information set forth in the [d]eclarations.” The following day—the date of the scheduled hearing—the hearing was continued for three weeks to December 5, 2007. Empire did not, however, file any additional response with the court or take a further deposition of Monaco prior to the December 5, 2007, hearing. In light of the continuance, it appears from our record that Empire was given an opportunity to respond more fully to the new declarations, but declined to do so.
The trial court’s docket sheet indicates that the hearing on the fee motion scheduled for November 15, 2007, was continued and was subsequently held on December 5, 2007. The appellant’s appendix, however, does not include either the minutes reflecting that continuance or the notice of the continuance filed on the same day. Our record does not reflect the reason for the continuance.
Empire also argues that the two maps attached to Monaco’s declaration should not have been considered because they were stricken from the administrative record in the writ proceeding. Moreover, Empire argues that Monaco should have been judicially estopped from relying on them in the fee motion because they were stricken from the record upon Monaco’s motion. We reject these arguments.
Because the administrative record does not include the documents that were stricken, we cannot verify that the maps relied upon by Monaco were in fact among the documents that were stricken from the record. However, Monaco does not dispute this assertion in his brief.
The maps were stricken from the administrative record for purposes of the writ of mandate proceeding because they were prepared after the City’s approval of the negative declaration and were therefore irrelevant to Monaco’s challenge to that proceeding. (See, e.g., Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 706.) The issues arising from the fee motion, however, are not the same as the issues presented in the writ proceeding. While the writ proceeding was concerned with whether there was substantial evidence to support the City’s decision to approve the project, the fee motion raised the question (among others) of whether Monaco’s action resulted in a significant benefit to the general public or a large class of persons. (§ 1021.5.) The first issue concerned the validity of the City’s approval based upon the evidence before the City at the time the decision was made; the second concerned the effect of setting aside that decision. Evidence regarding plans for the property developed after the court’s ruling, which were therefore irrelevant to the first issue, may well be relevant to the second issue. Therefore, the fact that the challenged maps were stricken from the administrative record as irrelevant to the writ proceeding does not necessarily preclude consideration of the maps in connection with the fee motion.
Here, the challenged maps were offered to show that Empire’s postapproval plans for storm drain facilities were inconsistent with the Riverside County Flood Control District’s plans to control flooding. Now that the trial court has ordered precluded approval of the project without further environmental review, these inconsistencies will (if the project is renewed) presumably be brought to light and the public properly informed. The trial court could have thus reasonably concluded that the maps were relevant to determining whether Monaco’s action conferred a benefit to the public. Accordingly, if the court considered the challenged declarations and maps, it did not abuse its discretion in doing so.
B. The Court’s Application of the Burden of Proof
Monaco, as the party moving for an award of attorney fees under section 1021.5, had the burden to prove each of the factors set forth in the statute. (See Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 246-247; Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72, 80-81.) Empire contends that the court erred by improperly shifting the burden of proof on the fee motion in this case. The record does not support the argument.
At the conclusion of the hearing on the motion, the court stated: “[T]he motion for nonstatutory costs is denied. The motion for fees is granted. Fees are granted in the amount of $175,747.86, reduced to 75 percent of that number. That’s the... negative multiplier. So it’s 75 percent of 175 and change.” The court did not state its reasons for the decision. Nor did the court explain its decision in its subsequent minute order or its formal written order. Nevertheless, although the court is required to apply the proper legal standards in reaching its decision, neither the statute nor judicial precedent requires the court to set forth its reasons. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294-1296; cf. Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1272-1273 [Fourth Dist., Div. Two].) Moreover, Empire never asked the court to state its findings or conclusions or requested a clarification of its order. (See Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1342-1343 [court initially denied motion for fees without explanation; then set forth its reasons after party sought “clarification”].) Under these circumstances, all intendments and presumptions are indulged to support the court’s order. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We thus presume that the court correctly placed the burden of proof on Monaco unless the record affirmatively shows otherwise. It is Empire’s burden on appeal to show such error. (See Walling v. Kimball (1941) 17 Cal.2d 364, 373; Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 89.)
Empire filed an objection to the court’s written order on two grounds: (1) the award of statutory costs is inconsistent with the court’s prior minute order, and (2) Empire was not served with a copy of the proposed order prior to entry. Empire did not object to the order on the ground that the court failed to state the factual or legal bases for the award or that it improperly shifted the burden of proof.
Empire refers us to the following colloquy between its counsel and the court at the hearing on the motion:
“[EMPIRE’S COUNSEL]: Your Honor, in your order granting the writ of mandate, you did not order that an EIR be prepared. You simply ordered that the parties go back and perform an environmental analysis. And in fact, you even recognized at the hearing that that could be a mitigating negative declaration. [¶] Now, the only case law on this point that says that there is a vindication of a public right is when the court explicitly orders an EIR be prepared. And Monaco never presented, nor is there any case law that says that a ruling that a possibly mitigated [negative declaration] or a ruling in absence of saying an EIR is required is sufficient for vindication of a public right. [¶] The second thing that has to be found
“THE COURT: Is there any case law that says the contrary? That it does not confer a public benefit?”
According to Empire, the court’s inquiry as to contrary case law “alone highlights the trial court’s probable application of the wrong burden of proof....” We disagree. Empire’s counsel pointed out that the case law supporting Monaco’s argument is distinguishable (i.e., because the case law involved cases where an EIR was ordered), and that there is no case law holding that a public right is vindicated when the court’s order is merely to “go back and perform an environmental analysis”; the court then inquired, in essence, as to whether there was any case that held that such an order does not vindicate a public right. If such case law existed, it would certainly aid the court regardless of who had the burden of proof on the issue. We do not interpret the court’s inquiry as to the existence of pertinent case law as an indication that it misunderstood the burden of proof on the motion.
Empire also points to a statement by Monaco’s counsel during the hearing that “the respondents have not met their burden to show any pecuniary gain whatsoever as a result of this litigation.” Empire’s counsel promptly responded: “First of all, we don’t have a burden to show there is a pecuniary interest. They have the burden to show that they’re entitled to fees.” As Empire points out, the statement by Monaco’s counsel regarding the burden of proof is incorrect. It was, however, a statement by Monaco’s counsel, not the court. Moreover, the incorrect statement was quickly addressed by Empire’s counsel. There is no reason to believe that the court accepted or adopted the incorrect statement by Monaco’s counsel and rejected Empire’s counsel’s response.
Because Empire has failed to affirmatively show that the court improperly shifted the burden of proof on the motion, we reject this argument.
C. Sufficiency of the Evidence
Monaco contends that Empire has waived its substantial evidence argument by setting forth in its opening brief only the facts favorable to Empire instead of all the material evidence. (See, e.g., Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Although Monaco’s point is well taken, we will address the merits of Empire’s argument.
Empire contends that the evidence is insufficient to support an award of fees in this case. We disagree.
An “award of attorney fees is proper under section 1021.5 if ‘(1) plaintiffs’ action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons” and (3) “the necessity and financial burden of private enforcement are such as to make the award appropriate.”’ [Citation.]” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317-318, fn. omitted.) “The decision whether to award attorney fees under... section 1021.5 rests initially with the trial court.” (County of Colusa v. California Wildlife Conservation Bd., supra, 145 Cal.App.4th at p. 647.) “Section 1021.5 codifies the courts’ ‘traditional equitable discretion’ concerning attorney fees [citation], and within the statutory parameters courts retain considerable discretion.” (Vasquez v. State of California (2008) 45 Cal.4th 243, 251.) “A reviewing court ‘will uphold the trial court’s decision to award attorney fees under section 1021.5, unless the court has abused its discretion.’ [Citation.]” (Ibid.) A trial court “abuses its discretion ‘“where no reasonable basis for the action is shown. [Citation.]”’ [Citations.] Where, as here, the court was not asked to, and did not make findings on substantial factual issues, we must infer all findings necessary to support the judgment and proceed to examine the record to determine if they are based on substantial evidence.” (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 110 (Beach Colony II).)
A threshold requirement for a fee award under section 1021.5 is that the party seeking fees must be “‘a successful party against one or more opposing parties in any action.’” (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 647.) Here, there is no dispute that Monaco was a successful party for purposes of section 1021.5.
The first prong of section 1021.5—the enforcement of an important right affecting the public interest—“requires a determination of ‘the “strength” or “societal importance” of the right involved.’ [Citation.] That right may be constitutional or statutory, but it must be ‘“an important right affecting the public interest”’ [citation]—it ‘cannot involve trivial or peripheral public policies.’ [Citation.] Where, as here, the right vindicated is conferred by statute, ‘courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.’ [Citation.]” (Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148.)
Monaco brought this action to compel the City to set aside its adoption of the negative declaration as a violation of CEQA. Courts have repeatedly held that actions brought to enforce compliance with CEQA involve important rights affecting the public interest for purposes of section 1021.5. (See, e.g., San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 754 [Fourth Dist., Div. Two]; City of Carmel-By-The-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 254.) Here, the trial court expressly found that the writ of mandate sought by Monaco was warranted because the administrative record supported “a fair argument that the project will have significant adverse effects on the environment with respect to flooding,” as well as a “substantial impact on soils and erosion” and “aesthetic resources.” Because the City was required to address these adverse impacts and to comply with CEQA before Empire could proceed further with the project, the court could have reasonably concluded that Monaco’s action effectively enforced important public rights and achieved the fundamental legislative goals of CEQA.
Under the second prong, the moving party must show that “‘“a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons”....’” (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 318.) The benefit “need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” (Woodland Hills Residential Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939.) “Of course, the public always has a significant interest in seeing that legal strictures are properly enforced and thus, in a real sense, the public always derives a ‘benefit’ when illegal private or public conduct is rectified. Both the statutory language (‘significant benefit’) and prior case law, however, indicate that the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation. We believe rather that the Legislature contemplated that in adjudicating a motion for attorney fees under section 1021.5, a trial court would determine the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” (Id. at pp. 939-940; see also Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 634-635.)
Monaco argues that the persons enjoying the benefits of the litigation are the citizens of the City of Moreno Valley. Not only will people in Moreno Valley benefit by requiring compliance with CEQA with respect to this project, but, Monaco argues, they will benefit because of the “likelihood that [his] litigation will improve the City’s review of future projects under CEQA.” (See, e.g., Beach Colony II, supra, 166 Cal.App.3d at p. 112.) The court’s findings regarding the City’s review of the project indicate that the City’s residents would indeed be well served by a more careful consideration of, at least, its own staff reports that describe potential flooding impacts of projects. In the judgment, the court pointed out that the City’s conclusion that the project would have “Less Than Significant Impact” regarding flooding was inconsistent with and belied by its own staff reports that warned of flooding problems caused by the project and called for substantial improvements to be constructed to protect against flooding. At a minimum, the residents of Moreno Valley who use the streets that are reportedly at risk of flooding would benefit from the scrutiny that would come from further review of the project. In addition, Monaco asserts that the public benefited because “Empire was prevented from building out its project and creating or exacerbating flooding and drainage issues that would effect [sic] over 1,500 acres of land....” This assertion is supported by Mr. Bonadiman’s declaration. Such evidence and the court’s prior unchallenged findings are sufficient to support the court’s implicit finding that Monaco satisfied his burden on the second prong.
Under the third prong, Monaco must show that the necessity and financial burden of private enforcement are such as to make the award appropriate. (§ 1021.5; Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 318.) This prong has two parts: (1) the necessity of private enforcement and (2) the financial burden of private enforcement. Here, the necessity for private enforcement is clear from the fact that the action was brought against the government agency that approved the project. (See Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 941; Kern River Public Access Com. v. City of Bakersfield (1985) 170 Cal.App.3d 1205, 1226 [when city fails to enforce law, private suits are the only practical way to effectuate the policy]; State Water Resources Control Bd. Cases (2008) 161 Cal.App.4th 304, 313 [where suit is brought against governmental agencies and officials, the necessity of private enforcement is obvious].)
In determining whether the financial burden of private enforcement is such as to make the award appropriate, courts consider whether the cost of the claimant’s legal victory transcends his personal interest, that is, whether “‘the necessity for pursing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” [Citation.]’” (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 941; see also Beach Colony II, supra, 166 Cal.App.3d at p. 113.) Here, Monaco incurred attorney fees in excess of $175,000. He contends that his personal stake in the matter “was minimal and would not justify the expense of the litigation.” Although Monaco owns property adjacent to the project property, it does not appear from the record that he would necessarily benefit financially from the granting of the writ of mandate or by further review of the project’s environmental impacts. Indeed, in the writ proceeding, the court expressly rejected Empire’s argument that Monaco brought the action as a competitor developer to force Empire to build drainage facilities that would benefit Monaco. The court found that while “competitive interests may be involved, Monaco has adequately demonstrated his standing as a neighboring property owner attempting to enforce a public duty.” Empire did not challenge this determination.
Empire argues that Monaco “must quantify the benefit it personally received and compare its benefit to its litigation costs.” It relies upon Beach Colony II, supra, 166 Cal.App.3d 106, for this assertion. In Beach Colony II, a real estate partnership that desired to build condominiums successfully challenged a development condition imposed by the California Coastal Commission. (Id. at p. 109.) The trial court awarded the partnership a portion of its attorney fees pursuant to section 1021.5, and the Court of Appeal reversed. (Id. at pp. 110, 115.) The Court of Appeal explained that the partnership failed “to compare its litigation costs to the immediate economic benefit it personally received from judicially establishing its right to restore its property, or to the commercial economic gain it anticipates from the renewed ability to build its housing development.” (Id. at p. 113.) The partnership “ignore[d] the fact that the benefits it obtained are immediately and directly translated into monetary terms. The public benefits are not likely to result in any economic benefit to more than a few persons, even in the future.” (Ibid.)
In contrast to the direct pecuniary benefit received by the partnership in Beach Colony II, there does not appear to be any direct or immediate economic benefit to Monaco from the granting of the writ of mandate in this case. As Empire points out, the only immediate and direct effect of the writ was to have the City set aside its approval of the project. There is nothing in the record to indicate that stopping the project benefits Monaco economically in any way. It is possible that if Empire renews its efforts to seek approval of the project and, following compliance with CEQA, Empire is required to construct additional improvements to prevent flooding, then such improvements might benefit Monaco individually as well as benefit others. Such benefit, however, is entirely speculative and, unlike the situation in Beach Colony II, cannot be quantified at this time. Beach Colony II is thus distinguishable on this point.
Because Monaco obtained no direct or immediate economic benefit as a result of the litigation and any possible future economic benefit was speculative, the trial court could reasonably conclude that the burden on Monaco was out of proportion to his individual stake in the matter.
For the foregoing reasons, we find that the trial court did not abuse its discretion in awarding attorney fees to Monaco.
IV. DISPOSITION
The order appealed from is affirmed. Monaco shall recover his costs on appeal.
We concur: Ramirez P.J., Miller J.