Opinion
B225816
11-22-2011
JACQUELINE PACE, Plaintiff, Cross-defendant, and Appellant, v. MICHAEL OROZCO et al., Defendants, Cross-complainants, and Appellants.
Sabaitis • O'Callaghan, Michael T. O'Callaghan, and Mark J. Furuya for Plaintiff, Cross-defendant, and Appellant. McNamara & Associates and Thomas F. McNamara for Defendants, Cross-complainants, and Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GC042488)
APPEALS from a judgment of the Superior Court of Los Angeles County, John P. Doyle, Judge. Affirmed.
Sabaitis • O'Callaghan, Michael T. O'Callaghan, and Mark J. Furuya for Plaintiff, Cross-defendant, and Appellant.
McNamara & Associates and Thomas F. McNamara for Defendants, Cross-complainants, and Appellants.
INTRODUCTION
This appeal and cross-appeal involve a dispute between a landlord and her residential tenants. The landlord appeals from the judgment entered after a court trial, which awarded her a modest monetary recovery but denied her any award of contractual attorney fees. She contends the trial court abused its discretion by deciding the issue of attorney fees without giving her the opportunity to file a noticed motion in support of her claim for such fees, and by determining she was not the prevailing party. We conclude that by failing to file a noticed motion, the landlord forfeited the right to appeal from the denial of attorney fees; the trial court in no way prevented her from filing the statutorily required motion.
The tenants cross-appeal from the judgment, contending that the record demonstrates that in awarding damages to the landlord, the trial court failed to weigh the evidence presented. We conclude the record in fact demonstrates that the trial court properly weighed the evidence. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 1997, Jacqueline Pace as landlord and Michael and Michelle Orozco (collectively the Orozcos) as tenants entered into a lease agreement for a single-family residence. The lease contained a provision requiring that actual attorney fees and costs be awarded to the prevailing party in litigation arising out of the lease.
In May 2008, Pace filed an unlawful detainer action. The Orozcos vacated the premises shortly thereafter, rendering moot the unlawful detainer action. However, in June 2008, the Orozcos filed a cross-complaint stating causes of action for breach of warranty of habitability, breach of contract, invasion of privacy, intentional and negligent infliction of emotional distress, retaliatory eviction, private nuisance, and breach of the covenant of good faith and fair dealing. The Orozcos alleged that Pace failed to maintain the premises in habitable condition and increased the rent in violation of the lease agreement.
In March 2009, Pace filed a complaint against the Orozcos for breach of contract, unjust enrichment, and declaratory relief, arising out of Pace's claims for unpaid rent and for damage to the property beyond normal wear and tear. Pace later amended her complaint to include causes of action for negligent and intentional infliction of emotional distress.
The two cases were consolidated in July 2009. The Orozcos dismissed with prejudice their causes of action for intentional and negligent infliction of emotional distress. Pace also dismissed these causes of action from her complaint.
A bench trial was held over several days in February 2010. Thereafter, the court issued a statement of decision on April 2, 2010. The court found that the Orozcos had failed to support their claims for recovery in any of their causes of action. It also found that the Orozcos had breached the lease, and awarded Pace damages of $3,912.50.
The court concluded the statement of decision as follows: "The Court indicates its preliminary view that its determinations herein — comprising mixed results that yielded only a modest recovery for plaintiff — do not necessarily identify a prevailing party for purposes of awarding attorneys' fees pursuant to the attorneys' fees provision in the subject lease. Accordingly, in the interests of justice in this particular case under the circumstances, and in the exercise of the Court's discretion, each side shall bear its own attorneys' fees and costs." (Italics added.)
Pace filed objections to the statement of decision in which she argued she was the prevailing party and was therefore entitled to an award of attorney fees and costs; she also argued she should recover additional damages. The Orozcos also filed objections to the statement of decision, arguing that they were entitled to recover various damages from Pace.
The court held a hearing regarding the proposed statement of decision and judgment on April 27, 2010. The record on appeal does not include the reporter's transcript or the minute order for that date, but it appears that Pace and her counsel did not appear at the hearing. On May 7, 2010, the court entered judgment, awarding Pace $4,658.55 in damages (including prejudgment interest) on her complaint, and finding in favor of Pace on the Orozcos' cross-complaint. The court also ordered the parties to bear their own attorney fees and costs.
Pace filed a notice of appeal from the judgment, and the Orozcos filed a notice of cross-appeal.
DISCUSSION
I. The Appeal: A Noticed Motion for Attorney Fees Is Required
Pace contends on appeal that the court's denial of attorney fees was erroneous because she was not afforded the opportunity to file a noticed motion seeking such fees. She cites California Rules of Court, rule 3.1702, which states: "A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court—including attorney's fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108." (Rule 3.1702(b)(1).) Pace argues that "[n]either the California Code of Civil Procedure nor the California Rules of Court provide[s] for court discretion to grant attorney's fees for a prevailing party without the aforementioned motions." She contends that the trial court's statement of decision prevented her from presenting arguments in favor of awarding her attorney fees, such as why she was a prevailing party. According to Pace, the trial court circumvented the proper procedure by which she could have requested attorney fees and costs, i.e., by way of a noticed, posttrial motion.
We agree with Pace's contention that a trial court's award or denial of contractual attorney fees must be based on a properly filed motion seeking such fees. We disagree, however, with Pace's contention that the trial court prevented her from filing such a motion. Indeed, we conclude that Pace forfeited the opportunity to be awarded attorney fees because she made no attempt to file a noticed motion for attorney fees after judgment was entered.
Code of Civil Procedure section 1033.5, subdivision (a)(10) provides that attorney fees are allowable as costs under section 1032 when authorized by contract (subd. (a)(10)(A)), statute (subd. (a)(10)(B)), or law (subd. (a)(10)(C)). Section 1033.5, subdivision (c)(5) provides that attorney fees as costs allowable pursuant to statute (subd. (a)(10)(B)) may be fixed upon noticed motion, at the time a statement of decision is rendered, upon application made concurrently with a claim for other costs, or upon entry of default judgment. However, attorney fees as costs allowable pursuant to contract (subd. (a)(10)(A)) "shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties." (Id., § 1033.5, subd. (c)(5).)
Of relevance here are the Legislature's comments accompanying its 1990 amendments to Code of Civil Procedure section 1033.5: "'The Legislature finds and declares that there is great uncertainty as to the procedure to be followed in awarding attorney's fees where entitlement thereto is provided by contract to the prevailing party. It is the intent of the Legislature in enacting this act to confirm that these attorney's fees are costs which are to be awarded only upon noticed motion, except where the parties stipulate otherwise or judgment is entered by default. It is further the intent of the Legislature to vest the Judicial Council with the discretion provided in Section 1034 of the Code of Civil Procedure to adopt procedural guidelines establishing the time for the hearing of these motions . . . .' (Stats. 1990, ch. 804, § 2.)" (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 371, italics added [untimely motion for attorney fees resulted in reversal of attorney fee award on appeal].)
Thus, a noticed motion is a prerequisite to an award of attorney fees. In Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924 (Hydratec), plaintiff (Hydratec) filed three separate lawsuits against various entities, including defendant AFM. The proceedings in the three cases were consolidated, and a court trial was held. The trial court issued a written tentative decision, which was to become the statement of decision if no party requested a statement of decision. No request was made, and plaintiff's counsel thereafter furnished the court with three separate judgments, one for each of the matters tried. Each of the proposed judgments provided that the parties would bear their own costs and attorney fees. The trial court signed and filed the judgments, and AFM then filed a notice of appeal. On appeal, AFM contended that it had been the prevailing party in two of the three matters and was entitled to an award of costs and attorney fees pertaining to those matters (pursuant to a contractual attorney fee provision). (Id. at pp. 926-927.) The appellate court concluded, however, that "AFM's failure to file a cost bill and a claim for fees operated to waive its right to costs and fees." (Id. at p. 927.)
After the briefs were filed, we sent a letter to the parties requesting that they address Hydratec.
The appellate court noted that the California Rules of Court, former rules 870(a)(1) and 870.2, required a prevailing party to serve and file a memorandum of costs, as well as a notice of motion to claim attorney fees pursuant to contract, within one of the applicable alternative time limits set out in those rules. (Hydratec, supra, 223 Cal.App.3d at p. 928.) The court observed that if a trial court entered judgment and neglected to award costs, the party entitled to claim them could request that the court correct the judgment. The appropriate procedure would be for that party to file a cost bill. (Ibid.) "Once a bill is presented, any subsequent failure of the court to act on it may be remedied by 'appropriate motion in the trial court or, if necessary, by a writ of mandate in the appellate courts.'" (Ibid., citing Williams v. Santa Maria Joint Union High Sch. Dist. (1967) 252 Cal.App.2d 1010, 1014, fn. 5.) The court continued: "However, the fact an incorrect cost allocation may be rectified does not mean the aggrieved party may wait and raise the issue for the first time on appeal. To the contrary, if the claimant fails to present a cost bill, a waiver of the right to costs results. The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory. [Citation.]" (Hydratec, supra, at pp. 928-929.) The court found that AFM's failure to file a cost bill was fatal to its claim for costs. (Ibid.)
As relevant here, the Hydratec court also held that "[t]he same treatment must be given to AFM's failure to request an award of its attorney fees against Hydratec." (Hydratec, supra, 223 Cal.App.3d at p. 929.) The court reasoned that fees to which a party is entitled under Civil Code section 1717 are treated as an item of costs (see Code Civ. Proc., § 1033.5, subds. (a)(10) & (c)(5)), and as then applicable, California Rules of Court, rule 870.2 required a motion to claim attorney fees under Civil Code section 1717 be filed within the same time limits as were prescribed in rule 870 for the filing of memoranda of costs. "Since AFM did not comply with the provisions of either rule 870 or 870.2, it waived its right to secure an award of fees pursuant to the two alternatives open to it under Code of Civil Procedure section 1033.5, subdivision (c)(5)." (Hydratec, supra, at p. 929.)
While the Hydratec court referred to a "waiver" of AFM's right to challenge the denial of attorney fees on appeal, we note that the loss of a right based on failure to timely assert it is more accurately described as a "forfeiture."
As now applicable, California Rules of Court, rule 3.1702(b)(1) provides that "A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case." The parties may stipulate to extend that time within the limits prescribed in rule 3.1702(b)(2).
The same is true in the case before us. Because Pace did not file a notice of motion for attorney fees within the time specified in California Rules of Court, rule 3.1702, she has forfeited her right to claim error on appeal. She was required by statute to file a noticed motion, and she failed to do so. The fact the trial court entered a judgment specifying that the parties were to bear their own attorney fees and costs did not preclude Pace from filing her motion. As stated by the court in Hydratec, "AFM's assertion that the filing of a cost bill or motion for fees would have been a 'useless act,' since the judgment did not award it costs or fees, is simply wrong. This is precisely what the law required AFM to do." (Hydratec, supra, 223 Cal.App.3d at p. 929.)
We are aware of the existence of Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, in which this court reversed the trial court's denial of attorney fees and costs, in part because the trial court did not give adequate consideration to all of the factors bearing on its exercise of discretion in deciding whether to allow costs and fees. (Id. at
p. 1815.) In that case, the trial court had indicated that it would consider costs and attorney fees at a later date, in the form of a cost bill. However, when drafting its statement of intended decision and prior to the time that a cost bill would have been presented, the court declined to award costs and fees to either party. Thereafter, the court signed the statement of decision, apparently without a hearing on the objections. On appeal, the court found that "[w]ithout the amount and nature of costs and fees incurred, the court did not have all factors before it upon which exercise of its discretion must be based." (Id. at p. 1817.) Without this information it could not be determined whether there had been a miscarriage of justice, and the court therefore "conclude[d] that the court abused its discretion in ruling on the issue of attorney fees and costs without having before it all of the evidence necessary to make a reasoned decision." (Ibid.) While the circumstances of Dorman were similar to those present here, the legal issues under consideration were different. To wit, the respondent did not argue forfeiture. The Dorman court did not consider the statutory mandate of Code of Civil Procedure section 1033.5, subdivision (c)(5) requiring that an award of attorney fees as costs allowable pursuant to contract "shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties." The Dorman court determined that the trial court abused its discretion in denying attorney fees, but because the issue was not presented to it, the court did so without first determining whether the appellant had forfeited his right to claim entitlement to such fees on appeal. In focusing in the matter now before us on whether the lack of a noticed motion for attorney fees should be charged to the party claiming entitlement to fees or to the trial court, we decide that it was incumbent upon appellant to follow the statutorily prescribed procedure. Pace's forfeiture of her right to attorney fees by her inaction in the trial court is wholly dispositive of her alleged entitlement to such fees. It is therefore unnecessary for us to consider the other arguments advanced by Pace in support of her position on the subject. (See Hydratec, supra, 223 Cal.App.3d at p. 929.)
II. The Cross-appeal: The Trial Court Weighed the Evidence Regarding Wear and Tear
Pace sought to recover, among other damages, the cost of repairs necessitated by the Orozcos' damage to the rental property beyond ordinary wear and tear. She asserted that the Orozcos breached the rental contract by failing to restore the rental house to the condition it was in at the time the tenancy began in 1997. In the end, the court concluded that the Orozcos breached the lease in a manner that supported a modest award of damages, finding that "[Pace's] recovery is properly limited to breaches arising in connection with the security deposit and in connection with defendants' duty upon vacating the premises to leave the house in substantially the condition in which they found it."
The lease agreement specified that "No alterations or improvements shall be made by resident without the consent of management. . . . Resident shall be liable for any repairs necessary during or after residency to restore premises to the original condition."
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In their cross-appeal, the Orozcos contend "that the trial court committed reversible error [and] abus[ed] its discretion by failing to consider and weigh the actual evidence presented to the court, i.e., the individual items of alleged damage claimed by Pace." In support of this contention, the Orozcos point to various statements made by the trial court in its statement of decision. However, we conclude that the record demonstrates the court properly examined the relevant evidence. While the Orozcos contend that certain statements made by the trial court show that it failed to consider the evidence, placing those statements in context with other things said by the court demonstrates that the court fully considered the evidence and did not abuse its discretion.
Pace sought $8,910 in damages for repairs she claimed were necessitated by the Orozcos' use of the premises beyond normal wear and tear, less the security deposit of $2,770. The court observed that "its essential task is to evaluate the maintenance and repair issues for the purpose of arriving as best it can at what might be characterized as a final judicial accounting of the competing repair and maintenance claims." The court noted that it had "voluminous" evidence before it with regard to the condition of the house at various times during the tenancy, including at the time of its termination. Similarly, the court said that "a wealth of trial exhibits and trial testimony are before the Court, complemented by settlement conference briefs, Trial Briefs, Post-Trial Briefs, and some amount of oral argument by counsel. Obviously, this small mountain of evidence is not capable of being sorted out by the Court with absolute precision, right down to the last allegedly malfunctioning or worn out kitchen fixture. Accordingly, the Court — while bearing in mind as much of the minutiae as is practicable — will undertake a somewhat categorical approach to reaching its determinations here." (Italics added.) The court continued: "This calculation is not a perfect science and does not realistically lend itself to an item-by-item analysis of all the many repair items, but the Court is nonetheless comfortable in finding — while a recovery by plaintiff in some amount for restoration of the house is appropriate — that this recovery properly should be in an amount somewhat less than the full amount sought by plaintiff, $8,910." The court further observed: "[T]he evidence presented at trial was not entirely complete or otherwise sufficient on either side to establish with absolute precision the propriety of the myriad of maintenance and repair efforts that were undertaken. Here, based on careful consideration of the trial testimony of witnesses percipient to repair and restoration issues and based on a careful review of the voluminous trial exhibits relevant to these repair and restoration issues, the Court finds in the exercise of its discretion that a set-off in the amount of 25% is appropriate to be 'charged' against the $8,910 which plaintiff seeks for 'repairs [and] damages beyond normal wear and tear.'" (Italics added.) Thus, Pace was awarded $6,682.50 in damages for repairs necessitated by the Orozcos' use of the premises beyond normal wear and tear, minus the security deposit of $2,770, for a total of $3,912.50.
Taken as a whole, the court's comments, and particularly those set forth in italics above, demonstrate clearly that it performed the factfinding function it was required to do. It examined the voluminous evidence presented by the parties, and while it was not feasible to account precisely for each dollar spent, the court reached a reasoned conclusion that the state of the evidence supported a specific recovery in favor of Pace. Nothing more was required.
The substantial evidence rule allows an appellate court to make presumptions in support of a trial court's ruling where the record is silent. "However, where . . . a respondent argues for affirmance based on substantial evidence, the record must show the court actually performed the factfinding function. Where the record demonstrates the trial judge did not weigh the evidence, the presumption of correctness is overcome. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 ['When the record clearly demonstrates what the trial court did, we will not presume it did something different'].) As stated in Estate of Larson (1980) 106 Cal.App.3d 560, 567, 'The [substantial evidence] rule thus operates only where it can be presumed that the court has performed its function of weighing the evidence. If analysis of the record suggests the contrary, the rule should not be invoked.'" (Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1477-1478 [record demonstrated trial court never engaged in process of weighing evidence relevant to alleged breach of contract because trial court erroneously concluded appellant was collaterally estopped from litigating breach of contract issue].) Likewise, however, where the record demonstrates, as it does here, that the trial court performed its function of weighing the evidence, we will not presume something different. The trial court did all it was required to do, and made all of the findings and conclusions that were necessary to resolve the issues presented by the parties. (Cf. Beebe v. Richards (1953) 115 Cal.App.2d 589, 592 [judgment reversed where trial court made no findings and reached no conclusions with regard to counterclaims].)
The Orozcos contend on appeal only that the trial court failed to weigh the evidence; they do not argue with any of the required specificity that the evidence was insufficient to support the court's findings. Because we conclude that the record makes clear that the trial court weighed the relevant evidence, we therefore conclude that affirmance of the judgment is warranted.
DISPOSITION
The judgment is affirmed in full. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
EPSTEIN, P. J.
WILLHITE, J.