Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV237667
RIVERA, J.
Cross-complainants (the Patels) appeal from the court’s order granting the motion of respondents Jakela, Inc., and Daniel O. Davis, Inc., (individually Jakela, Inc., and Davis, Inc.; collectively, Jakela) for attorney fees. They contend that the court erred in granting attorney fees under title 42 United States Code section 1988(b) because they were not afforded the 21 day “ ‘safe harbor’ ” period of Code of Civil Procedure section 128.7, subdivision (c)(1) in which to withdraw their cross-complaint. We affirm and remand the matter to the trial court for a determination of the amount of attorney fees and costs to be awarded on appeal.
Cross-complainants are Raman D. Patel, individually and as trustee of the Raman D. and Jashu R. Patel Family Trust, Raman D. and Jashu R. Patel Residual Trust and Raman D. and Jashu R. Patel Survivor’s Trust, and as general partner of the JAS 4 RAY PROPERTIES, L.P., Rita Patel, David Stafford, and Prita Patel.
Unless otherwise indicated, statutory references are to the Code of Civil Procedure.
I. FACTUAL BACKGROUND
The underlying litigation in this case involves the City of Santa Rosa’s (City) action under the red light abatement law (Pen. Code, § 11225 et seq.) to shut down the Llano Motel owned and operated by cross-complainants. Following the filing of the complaint against the Patels, the City and the Patels entered into a stipulation and order for a preliminary injunction which included provisions for the Patels to hire a licensed contractor within 30 days to demolish, remove and dispose of the Llano Motel, to obtain all necessary permits and licenses within 45 days, and to complete the demolition in a timely manner, but no later than 30 days after obtaining the permits and licenses. The stipulation further provided that if the Patels failed to obtain the necessary permits and licenses or failed to commence and complete the work, the City was authorized to perform the demolition and all costs and expenses incurred by the City would be recoverable in the litigation.
The Patels failed to take steps to demolish the building. Consequently, the City filed an order to show cause why the Patels should not be found to be in contempt of the court’s order. The Patels substituted counsel and appealed the stipulation and preliminary injunction. The trial court stayed the preliminary injunction order pending the resolution of the appeal. This court dismissed the appeal. (City of Santa Rosa v. Patel (July 31, 2006, A114060) [nonpub. order].) The City thereafter refiled its order to show cause why the Patels should not be held in contempt for violating the preliminary injunction. Following a hearing on January 25, 2007, the court ruled that the stipulation and preliminary injunction was still in effect and that the Patels were required to demolish the motel or the City had the power to do it.
In or about February 2007, the City hired Davis, Inc., as the contractor to demolish the motel. Davis, Inc., in turn, hired Jakela, Inc., to complete the asbestos abatement on the property. Demolition was completed.
The City thereafter proceeded with its litigation against the Patels by filing a first amended complaint for injunctive relief under the red light abatement law, and alleging nuisance and unlawful business practices. The Patels answered the first amended complaint and filed a cross-complaint for damages, injunctive and declaratory relief against the City and numerous City officials and employees, and Jakela alleging violation of their civil rights under title 42 United States Code section 1983 on May 4, 2007. Upon review of the cross-complaint, counsel for Jakela wrote to counsel for the Patels to request that they dismiss Jakela from the action, noting that the claim against it was frivolous because a cause of action under title 42 United States Code section 1983 can only be brought against a public entity, that the Patels had not obtained leave of court to file the cross-complaint as required by Code of Civil Procedure section 428.50, subdivision (c), and that there was a court order allowing the demolition work on the property.
As Jakela’s counsel received no response to his letter, Jakela filed a demurrer, a motion to strike the first cause of action, and a motion to sever the cross-complaint as it pertained to Jakela. In response to the motions, the Patels filed a removal of the action to federal court, contending that they could not enforce their civil rights claims under title 42 United States Code section 1983 in state court.
On July 24, 2007, the federal district court remanded the matter to the trial court, finding that the Patels had not shown their rights could not be enforced by the state courts. The federal district court subsequently imposed sanctions on the Patels’ counsel, finding that his actions in removing the action to federal court exceeded objective unreasonableness and rose to the level of bad faith.
On November 19, 2007, the court granted Jakela’s motion to strike the cross-complaint on the ground that the Patels had failed to seek leave of court to file the cross-complaint.
Jakela thereafter filed a motion for attorney fees under title 42 United States Code section 1988(b). On April 16, 2008, the trial court granted the motion, finding that it had “now heard all of the evidence in the lengthy red light abatement court trial. Without any doubt, the court has received evidence showing that the cross-complaint filed against Davis[, Inc.,] and Jakela[, Inc.,] was frivolous, unreasonable, and groundless. The full trial record demonstrates that the Patels agreed to the demolition of the motel. Davis[, Inc.,] and Jakela[, Inc.,] are the prevailing parties on the merits of the cross-complaint; the dismissal in favor of these cross-defendants was involuntary, and it reflected much more than a mere procedural defect.” The court granted the fee request of $9,649, finding that the fees requested were reasonable.
II. DISCUSSION
The Patels contend that the trial court erred in granting attorney fees under title 42 United States Code section 1988(b) because the cross-complaint was not frivolous or objectively unreasonable. They further argue that even if the cross-complaint was frivolous, they were entitled to the 21-day “ ‘safe harbor’ ” period under the provisions of Code of Civil Procedure section 128.7, subdivision (c)(1).
We review the court’s award of attorney fees pursuant to title 42 United States Code section 1988(b) under the abuse of discretion standard. (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 418.) Under title 42 United States Code section 1988(b), reasonable attorney fees are awardable in the court’s discretion to the prevailing party, other than the United States, as a part of costs. (See County of Butte v. Bach (1985) 172 Cal.App.3d 848, 869 & fn. 10 (County of Butte).) “While an award to a prevailing plaintiff is routine, an award to a prevailing defendant may only be allowed where the trial court finds ‘ “that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” ’ [Citations.]” (Id. at p. 869.)
Here, the trial court found that the Patels’ cross-complaint was “frivolous, unreasonable, and groundless.” The court’s findings were based on the record which amply demonstrated defense counsel timely informed counsel for the Patels both in writing and by telephone that the cross-complaint required leave of court under Code of Civil Procedure section 428.50, subdivision (c), that the cause of action against Jakela for violation of civil rights claim could not be brought against it because it was not a public entity, and that there was a court order allowing the demolition of the property.
The Patels argue that the trial court erred because it “revisited” Judge Owen’s earlier ruling on the demurrer. Thus, they argue that the court lacked jurisdiction to overturn, enjoin or declare void another court’s order, citing People v. Gonzalez (1996) 12 Cal.4th 804, 815. The Patels’ argument misses the mark. The court at no point reconsidered Judge Owen’s earlier ruling. The court, in ruling on the attorney fees motion, stated the factual and procedural history of the case and simply reiterated that Judge Owen had ruled the demurrer to the cross-complaint was moot in light of the fact he granted Jakela’s motion to strike the cross-complaint.
The Patels’ reliance on Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 is misplaced. There, the court explained that in determining whether an action was frivolous in a Title VII case, the court must “resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” (Christiansburg, at pp. 421-422.) In this case, there was no “post hoc reasoning.” Rather, the court had the benefit of Judge Owen’s ruling that granted Jakela’s motion to strike the cross-complaint because it was filed without leave of court. In ruling on the fee motion under title 42 United States Code section 1988(b), however, the court was required to determine whether the Patels’ cross-complaint was frivolous, unreasonable, or without foundation. (See County of Butte, supra, 172 Cal.App.3d at p. 869.) The Patels’ argument that the court erroneously considered the evidence adduced at trial in ruling on the fee motion is feckless. To the contrary, the court, in reviewing the record, sought to determine whether there was any basis at all for the cross-complaint. Having heard the trial of the action, the court, in ruling on the fee motion, was not reconsidering the merits of the cross-complaint but simply indicating the trial record demonstrated the Patels agreed to the demolition and hence the cross-complaint alleging Jakela demolished the motel without consent was groundless.
Further, the Patels’ reliance on Branson v. Nott (9th Cir. 1995) 62 F.3d 287 is of no import. The Branson court held that where the district court lacked subject matter jurisdiction over plaintiff’s title 42 United States Code section 1983 claim, it also lacked power to award fees under title 42 United States Code section 1988(b). (Branson, at pp. 292 293.) Branson has no application here where there is no question that the court had subject matter jurisdiction.
Relying on Goodstone v. Southwest Airlines Co. (1998) 63 Cal.App.4th 406 (Goodstone), the Patels also contend that even if the cross-complaint was frivolous, they were entitled to the 21-day safe harbor provisions of section 128.7, subdivision (c)(1) to permit them to withdraw the cross-complaint before a motion for sanctions was filed. Section 128.7, subdivision (b) provides for an award of sanctions for a party’s filing of a pleading, motion, or other similar paper that has no merit or is being presented for an improper purpose. Subdivision (c)(1) of the statute contains a safe harbor provision that requires the party seeking sanctions to serve the opposing party a notice of motion, specifying the offending document and affording the party a 21-day safe harbor period within which to correct or withdraw the offending document. (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698.) “ ‘The purpose of the safe harbor provisions is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. [Citation.] This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleading as well as the sanctions request.’ ” (Id. at p. 699.)
The Goodstone court recognized that section 128.7 was adopted as part of an effort to bring California’s sanctions practice into line with the Federal Rules of Civil Procedure (28 U.S.C.), and hence the court looked to federal court decisions in interpreting section 128.7. (Goodstone, supra, 63 Cal.App.4th at pp. 419-422.) The case is of no relevance here where we are considering an award of fees under title 42 United States Code section 1988(b), not sanctions, and where the statute expressly provides that the court may allow reasonable attorney fees as a part of costs (ibid.).
Finally, the Patels argue that the fees awarded are excessive. They assert that there was no evidence introduced regarding a preexisting fee agreement which might have aided in determining whether the fees were reasonable (see Blanchard v. Bergeron (1989) 489 U.S. 87, 92-93) and that the award should be limited to counsel’s work on the motion to strike the cross-complaint. We disagree.
An award of attorney fees rests within the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion, for example, where the amount of the award is “so large or small that it shocks the conscience and suggests passion and prejudice influenced the determination.” (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507 (Niederer).) In making its determination, the trial court considers a number of factors including “the necessity for and the nature of the litigation, the amount involved, and the success or failure of the attorney’s efforts, including the amount of recovery.” (Kanner v. Globe Bottling Co. (1969) 273 Cal.App.2d 559, 569.) Based on a consideration of various factors, the trial court may rely on its own expertise and knowledge to calculate reasonable attorney fees. (Niederer, supra, 189 Cal.App.3d at p. 1507.) The court is not limited to the affidavits submitted by the attorney (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 625) and may award attorney fees in excess of the hourly calculation provided by the attorney (City of Oakland v. Oakland Raiders (1988) 203 Cal.App.3d 78, 85).
The trial court awarded fees of $9,649, finding that the hourly rate charged and the hours expended by counsel were both reasonable. Counsel for Jakela provided ample documentation of the work performed and the fees billed. There is no indication the fees were inflated or unusually large or represented work that was unnecessary to the litigation. In short, the award was reasonable; there was no abuse of discretion.
Jakela, Inc., and Davis, Inc., request fees on appeal. Having prevailed on appeal, they are entitled to their attorney fees and costs on appeal, and we remand this matter to the trial court for a determination of the amount of the award. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 637-639 [fees recoverable pursuant to statute or agreement embrace fees for defending fee award on appeal].)
III. DISPOSITION
The order is affirmed. The matter is remanded to the trial court for a determination of the amount of attorney fees and costs to be awarded on appeal.
We concur: RUVOLO, P.J., REARDON, J.