Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04CC09003, Kirk H. Nakamura, Judge.
Felger & Associates, Warren P. Felger and Jennifer D. Reisz for Plaintiff and Appellant.
Barry, Gardner & Kincannon, Jeffrey B. Gardner and Laura J. Petrie for Defendant and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiff Optimal Water, Inc. appeals from a judgment awarding attorney fees and nonstatutory costs under Corporations Code section 317, subdivision (d) (all further statutory references are to this code unless otherwise indicated) in favor of defendant Eric R. Robbins. Section 317 provides for the indemnification of agents of corporations in legal proceedings. Optimal argues that former employee Robbins’s conduct precludes him from being indemnified for fees and costs incurred in successfully defending a suit instituted by Optimal charging various torts he allegedly committed during his employment. Robbins argues that because he was an agent of Optimal and was successful on the merits, he is entitled to indemnity. We agree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Optimal sued Robbins, its former CEO, alleging causes of action for breach of fiduciary duty, conversion, fraud, concealment, negligence, misappropriation of trade secrets, unfair competition, breach of confidence, and interference with contractual and prospective economic relations. Robbins cross-complained against Optimal for breach of contract, implied breach of contract [sic], unpaid wages, claim and delivery, constructive trust, intentional and negligent misrepresentation, fraud, accounting, and declaratory relief. The case was tried to a jury, which returned a special verdict in favor of Robbins except on one cause of action where it determined that Robbins converted Optimal’s personal property with a value of $3,000 and did so with malice, oppression, or fraud. The breach of fiduciary duty and unfair competition claims against Robbins were tried to the court, which ruled in favor of Robbins. With respect to the cross-complaint, the special verdict determined that Optimal owed Robbins $58,925 in unpaid wages it had willfully failed to pay. The judgment was based on the verdict and the court’s statement of decision and awarded $3,000 with interest to Optimal and $58,925 plus penalties of $19,039, both with interest, to Robbins.
Robbins moved for an award of attorney fees in the amount of $329,880 and costs of $49,998 pursuant to section 317, Optimal’s bylaws, Civil Code section 3426.4, and Labor Code section 218.5. The court granted the motion, awarding Robbins statutory costs of $29,772, $8,041 in costs and $130,512 attorney fees pursuant to section 317, and $3,600 in attorney fees pursuant to Labor Code section 218.5.
Although Optimal purports to detail the facts underlying the dispute, it failed to provide a reporter’s transcript. We therefore do not know what transpired during the trial. In Optimal’s original opening brief, its statement of facts was devoid of record references. After we ordered it to file a new brief with appropriate record references, it provided references to documents in the trial court file included in the appellant’s appendix. However, except for evidence filed in connection with the motion for fees and cost, allegations in pleadings, motions, and points and authorities do not necessarily reflect the evidence the court considered. We therefore decline to consider the purported factual background Optimal offered in its brief except as relating to the motion.
The evidence in support of the motion is contained in declarations of Jeffrey Gardner, Robbins’s lawyer, and Robbins. The evidence in opposition consists of the declaration of Jennifer D. Reisz, one of Optimal’s lawyers. The three declarations pertain solely to the propriety of the amounts claimed and do not deal with the conduct of the parties underlying the litigation.
DISCUSSION
1. Standard of Review
The parties disagree as to the standard of review, Optimal urging de novo review while Robbins argues we review the court’s order under a substantial evidence standard. To the extent the trial court’s ruling was based on its interpretation of the evidence, we defer to its factual determinations if supported by substantial evidence, but conduct a de novo review of the meaning and application of the statute. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)
2. The Statute and the Corporate Bylaws
Section 317, subdivision (d) provides: “To the extent that an agent of a corporation has been successful on the merits in defense of any proceeding referred to in subdivision (b) or (c) or in defense of any claim, issue, or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith.”
Section 317, subdivision (b) deals with actions other than by the principal/corporation so does not apply to this case. Subdvision (c) states: “A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was an agent of the corporation, against expenses actually and reasonably incurred by that person in connection with the defense or settlement of the action if the person acted in good faith, in a manner the person believed to be in the best interests of the corporation and its shareholders.” (§ 317, subd. (c).)
Optimal’s bylaws provide: “[T]o the extent that an agent of the corporation has been successful on the merits in defense of any proceeding referred to in [other portions of the bylaws] or defense of any claim, issue or matters therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith.”
3. Optimal’s Arguments
Optimal’s appeal is limited to the order awarding fees and costs under section 317, subdivision (d). It attacks the award on the ground that the litigation was based on Robbins’s bad faith conduct. This in turn rests upon allegations that (1) Robbins did not act to promote Optimal’s corporate interest; (2) he is not entitled to indemnification by his status as a corporate director alone; (3) the verdict on the conversion cause of action affirmatively establishes his motive for personal gain; and (4) Optimal sued him for activities unrelated to his responsibilities as an Optimal officer and director.
To the extent that any of these arguments are based upon the implied assertion there is insufficient evidence for the trial court’s decision, the arguments are waived by appellant’s failure to provide us with a reporter’s transcript of the trial. (Aguilar v. Avis Rent A Car System (1999) 21 Cal.4th 121, 132.) The evidence filed in connection with the motion for fees and costs under section 317 does not support the allegation that Robbins failed to promote Optimal’s corporate interest. The statement in Optimal’s opening brief that “Robbins presented no evidence to the trial court to support any contention that his actions promoted Optimal’s interests . . .” must be disregarded absent a reporter’s transcript of the trial. Optimal relies solely on a reference to the
verdict determining that Robbins converted personal property; this is thus a mere repetition of the third argument discussed below.
The second argument, that Robbins is not entitled to indemnification by his status as a corporate director alone, is a non sequitur. Although not entirely clear, it seems to be predicated on a contention that the evidence demonstrated that at all times Robbins only acted in his own interest. Again, there is no record reference in connection with this claim and in the absence of a reporter’s transcript cannot be supported.
The third argument, the verdict on the conversion cause of action affirmatively establishes a motive for personal gain, cannot be gainsaid but this applies to only one out of many causes of action. That Robbins did not act on behalf of the corporation when he converted the property does not establish conclusively that he never acted for the corporation.
The fourth argument, that Optimal sued Robbins for activities unrelated to his responsibilities as an Optimal officer and director, is belied by a review of the complaint. All of the causes of action, with the possible exception of the one for conversion, are intricately interwoven in the agency/principal relationship between Robbins and Optimal. In the language of section 317, Robbins was sued “by reason of the fact that [he] is or was an agent of the corporation.”
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs and attorney fees on appeal. The trial court shall determine the amount of attorney fees to be awarded.
WE CONCUR: BEDSWORTH, J., MOORE, J.