Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, Ct. No. 04CC00096 David C. Velasquez, Judge.
Law Office of Jaime Jasso and Jaime Jasso for Claimants and Appellants.
Morrison & Foerster, Paul T. Friedman, Lawrence R. Katzin and Miriam A. Vogel for Defendants and Respondents.
No appearance for Plaintiffs.
OPINION
RYLAARSDAM, ACTING P. J.
Claimants, eight businesses, appeal from a ruling on a postjudgment motion for equitable relief concerning their efforts to obtain benefits under a class action settlement. They contend the evidence fails to support the trial court’s factual findings, plus the court erred both in interpreting and applying the terms of the class settlement and in denying their attorney fees request. Finding no error, we shall affirm the order.
FACTS AND PROCEDURAL BACKGROUND
1. Background
Plaintiffs Tim Runner, the owner of a sole proprietorship, and a corporation named Bay Area Floor Machine Sales and Service, sued defendants United Parcel Service, Inc. (Delaware), United Parcel Service, Inc. (Ohio), United Parcel Service, Inc. (New York), and United Parcel Service of America (collectively UPS). Plaintiffs asserted several causes of action challenging the rates charged by UPS for deliveries. In part, plaintiffs alleged UPS improperly charged the higher rates applicable to residential deliveries when making deliveries to commercial locations. The evidence indicated the surcharge varied between $1.00 and $9.00.
2. Settlement Terms
In April 2008, the parties filed a Stipulation of Settlement with the superior court. In it, they agreed the court could conditionally certify two classes of shippers, one entitled the “‘Contract Settlement Class, ’” and the second entitled the “‘Declaratory Relief Settlement Class.’” This appeal concerns the rights and duties of members in the former category.
The Contract Settlement Class generally consisted of “shippers in the United States who tendered a package to UPS for delivery to a location in the United States from January 1, 1998 to the date of the Conditional Order approving certification, ” which occurred on May 6, 2008, “where the shipper was assessed a Residential Surcharge or a Residential Adjustment in connection with the delivery.” The settlement agreement defined “‘Residential Surcharge’” and “‘Residential Adjustment’” to mean “the incrementally higher transportation charge” imposed by UPS either before or after making a delivery to an address it concluded was “a residential location....”
For Contract Settlement Class Members, the settlement created three tiers of relief. The First Tier consisted of a $4 million fund of automatic credits to be distributed to “current account holders as of the Effective Date, ” later determined to be January 12, 2009, “that had a Residential Adjustment during the Adjustment Period, ” i.e., between January 1, 2006 and May 6, 2008. This fund was further divided into three equal amounts to be distributed “on an equal basis per account” depending on an account holder’s cumulative number of Residential Adjustments.
In addition, UPS agreed to “establish a Claims Made Class Fund in the amount of $2.25 million from which Contract Settlement Class Members w[ould] be eligible to receive vouchers for payment of UPS services” that would be valid for one year. This fund consisted of two alternative subcategories, one entitled “Second Tier, ” described as the documentation tier, and the other named “Third Tier, ” described as the verification tier.
Class members seeking Second Tier vouchers had to timely prepare and submit “a Claim Form, executed under penalty of perjury, ” that identified each delivery a member asserted was erroneously assessed a Residential Surcharge or Adjustment. A copy of the claim form was attached to the settlement. Second tier claimants also needed to “submit Documentation for each delivery identified, ” which “persuasively establishes that a delivery address was not a residence at the time of delivery.” Examples of persuasive documentation listed in the claim form included “a statement signed by either you” or “by a person who worked at the delivery address” that “includes specific facts showing..., at the time of the delivery, the delivery address was not a residence and had an entrance open to the public, ” or “photographs (including video and satellite images) of the delivery address” establishing the same requirements.
Alternatively, class members could request vouchers for Third Tier benefits. This method required class members to timely complete a claim form “executed under penalty of perjury, stating the number of deliveries that were assessed a Residential Adjustment or Residential Surcharge in error as to which they have not previously received a Credit Adjustment.” Recovery under this tier was limited “to a maximum of ten deliveries, ” for which a class member would “be provided with vouchers for payment of UPS services in the amount of $1.00.”
The settlement also called for the creation of a Residential Adjustment Credit Fund, consisting of “[f]unds remaining in the Claims Made Class Fund after issuance of the Second Tier and Third Tier vouchers, if any, plus the value of issued-but-expired vouchers....” This fund would be “used exclusively to issue account credits to customers who raise complaints to UPS about Residential Adjustments or Residential Surcharges until such funds are exhausted, subject to UPS’s sole discretion as when to issue credits....”
The parties agreed “UPS shall, in good faith, administer the process of receiving, handling, processing, and paying claims through Tilghman & Co., P.C. (‘Administrator’), ” with “Class Counsel” authorized “to inquire... respecting any aspect of implementation of the settlement, including but not limited to the settlement administration process and the treatment of individual Contract Settlement Class Member’s claims....” “The Administrator” had “the right to reject any claims deemed to be fraudulent, insufficient, or incomplete, and any such determination shall be final, subject to” giving class members “a 45-day period to cure defective or incomplete claims, ” and requiring “Counsel for the Parties [to] first attempt to resolve any disputes concerning rejected claims informally between themselves” before a claim could be “submitted to the Court for determination.”
The settlement contained provisions requiring court approval and notice to class members and allowing them an opportunity to object to its terms or request exclusion from it. The parties agreed “Class Counsel” could seek attorney fees and costs. But the settlement also provided “Class Counsel agree[d]... not [to] seek any additional fees or costs from UPS in connection with the settlement of the Action, ” and “UPS shall not be liable for any additional fees or expenses of Plaintiffs or any Settlement Class Member in connection with the Action.”
3. Approval and Administration of the Settlement
On May 6, 2008, the trial court granted preliminary approval of the settlement. The order provided dates for class members to either request exclusion from the settlement or to file opposition to it. Claimants neither filed objections to the settlement, nor sought exclusion from it. The court issued its final approval of the settlement on September 10 and entered judgment November 8. No appeal was filed and the judgment became final on January 12, 2009.
According to declarations submitted by UPS, through June 2009 it had issued First Tier credits exceeding $4,005,000. By August, the Administrator reported receiving approximately 200 claim forms, approving 31 Second Tier claims, totaling $6,504.70, and mailing 26 Third Tier claimants vouchers totaling $227. In addition, the Administrator had mailed over 170 cure notices to claimants. UPS also reported it had issued $2.5 million in credits under the Residential Adjustment Credit Fund.
4. Claimants’ Motion
In July 2009, claimants filed a motion for equitable relief, including a request for nearly $50,000 in attorney fees and costs, alleging UPS had breached the settlement in several respects.
The motion alleged seven claimants timely filed Second Tier claims exceeding $730,000 but the Administrator denied them “on the basis that the documentation submitted was not persuasive.” An eighth claimant, a company named Uttermost, sought $145,578.24 in vouchers, alleging it “had searched diligently for its bills and then requested... copies from UPS, ” but UPS “failed to provide” them. Claimants also argued UPS breached the settlement by refusing to informally resolve the dispute over their Second Tier claims, denying them relief under the Residential Adjustment Credit Fund, and retaining credits for its own benefit.
Claimants requested the court order the following relief: (1) UPS “provide vouchers” to each of them in the amount listed in the motion; (2) “other class member’s claims be re-assessed under the correct burden of proof contained in the [a]greement and awarded a voucher if deemed valid, or provided a voucher under the Residential Adjustment Credit Fund”; (3) any “remaining credits in the Residential Adjustment Credit Fund be left available to... UPS class member[s] that locate[] their bills from January 1, 1998 through December 31, 2005 and submit[] complaints for such residential overcharges for the next twelve months”; (4) in the event “there are any remaining credits at the end of twelve months, [c]laimants... and the original plaintiffs receive the balance of the credits in proportion to their original claims”; (5) “an accounting of the Residential Adjustment Credit Fund to ensure that UPS does not use those credits for its current liabilities to UPS customers”; and (6) “UPS reimburse [c]laimants for the additional court costs and attorney[] fees associated with this request....”
To support their adequate “documentation” contention, claimants filed compact discs containing claim forms signed by their attorney along with spreadsheets listing thousands of entries for deliveries they claimed UPS erroneously added a residential surcharge or adjustment. Next to each entry appeared a statement identifying the nature of a claimant’s business, the commercial nature of its customer base, plus comments such as “UPS has credited this address in future bill credit requests, ” or “our customers informed us that at the time of delivery it was a public business with a door open to the public or other public address, ” along with references to websites such as Zillow.com with an assertion the websites “have confirmed that these are businesses....”
UPS opposed the motion. It denied previously acknowledging the commercial nature of the claimants’ customers, and presented evidence that random checks of Zillow.com and similar websites showed many of the addresses cited by claimants as businesses were actually residences. In a letter rejecting the claim forms and granting time to cure the defects, the Administrator noted a “random Google Maps []search turned up only two delivery addresses as to which [claimants’] claims might have merit....” Class counsel suggested allowing claimants to employ “‘sampling, ’” whereby their attorney would “research only some small number of delivery addresses for each [c]laimant and... extrapolate[]” a ratio to be applied to a claimant’s “entire data[]set” or giving claimants additional time to cure the deficiencies in their claim forms. But UPS rejected these proposals because they would amount to applying different criteria than that applied to other class members.
The trial court granted claimants permission to file supplemental forms for Third Tier benefits, but otherwise denied their motion. First, it found the settlement use of the term “‘persuasively’” suggested the parties intended to employ a preponderance of the evidence burden of proof and claimants did not satisfy it, noting “proof that one’s client is a business does not necessarily negate the inference that the destination of the particular shipment was not a residence inasmuch as [a] business may be conducted out of a home.” Second, it rejected claimants’ assertions UPS acted in “bad faith... concerning the... informal resolution provisions” and its “administration of [either] the settlement arising from [the] handling of customer requests for billing statements” or the Residential Adjustment Credit Fund. Third, the court found the remaining contentions were “untimely” objections to the fairness of the class settlement and denied them on that basis. Finally, the court denied the attorney fee request, noting “there is no attorney[] fees provision in the stipulated agreement... for enforcing the terms of the [a]greement, ” and claimants “are not entitled to fees under” Code of Civil Procedure section 1021.5.
DISCUSSION
1. Evidentiary Arguments
On appeal, claimants repeat their assertions that UPS acted in bad faith in a number of respects concerning administration of the settlement and in its treatment of class members. However, their opening brief summarizes only the evidence presented in support of their motion. We conclude they have waived these arguments.
“Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court’s ruling is based on oral testimony or declarations. [Citation.]” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479, fn. omitted; Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, fn. 3 [“that the trial court’s findings were based on declarations and other written evidence does not lessen the deference due those findings”].) Thus, the applicable standard of review is “‘[w]hen a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
Furthermore, “‘[i]t is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) As a result, an “appellant has the burden to demonstrate there is no substantial evidence to support the findings under attack. [Citation.]” (North American Capacity Ins. Co. v. Claremont Liability Ins. Co. (2009) 177 Cal.App.4th 272, 285.)
Because claimants have failed to comply with the foregoing principles, “the present case is a prime candidate for application of the rule that failure to present a full and fair summary of the evidence supporting the judgment effects a ‘waive[r]’ of any challenge to the sufficiency of the evidence. [Citation.]” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 739.)
2. Second Tier Benefits
Claimants challenge the trial court’s conclusion they failed to present sufficient proof to justify receiving Second Tier benefits under the class settlement. They argue the settlement did not limit the type of documentation needed to “persuasively” establish entitlement to recovery. In addition, they contend the claim forms signed by their attorney as their “representative” with the attached “common witness statements” satisfied the persuasive documentation requirement. We disagree.
“[T]he interpretation of a settlement agreement is governed by the same principles applicable to any other contractual agreement [citation]....” (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165.) “The interpretation of a written instrument... is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect.... Accordingly, ‘An appellate court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence [citations], where there is no conflict in the evidence [citations], or a determination has been made upon incompetent evidence [citation].’ [Citations.]” (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.)
The settlement defined the term “‘[d]ocumentation’” in language identical to that appearing in the claim form, a copy of which was attached to the settlement agreement and approved by the trial court. Both the settlement and the exemplar form attached to it stated the necessary “documentation” for Second Tier vouchers needed to “persuasively establish[] that a delivery address was not a residence at the time of delivery.” Class members were also provided with descriptions of satisfactory documentation, such as “a statement signed by you” or “by a person who worked at the delivery address” that “includes specific facts showing..., at the time of the delivery, the delivery address was not a residence and had an entrance open to the public, ” or “photographs (including video and satellite images) of the delivery address” establishing the same requirements.
The claim forms filed by claimants were signed by their attorney. While counsel may be the claimants’ legal representative, it is clear the person executing a statement documenting a class member’s right to Second Tier benefits needed to have some personal knowledge of the facts stated. There is no showing counsel satisfied this requirement. Furthermore, a statement documenting the erroneous imposition of a Residential Surcharge or Residential Adjustment needed to contain “specific facts showing..., at the time of the delivery, the delivery address was not a residence and had an entrance open to the public....” (Italics added.) Claimants’ use of statements containing boilerplate language parroting the requirements of the claim form did not satisfy this requirement. In addition, UPS submitted evidence their assertions concerning the commercial nature of the deliveries were, at least to some degree, inaccurate.
Claimants argue the trial court erred by requiring that they establish their right to Second Tier benefits by a preponderance of the evidence. They assert “courts have recognized that settlement class[]action claimants’ burden of proof for damages is low.” We disagree. Evidence Code section 115 declares, “Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” This burden has been recognized as “[t]he default standard of proof in civil cases....” (Conservatorship of Wendland (2001) 26 Cal.4th 519, 546.) Here, claim forms filed to receive Second Tier vouchers needed to “ persuasively establish[]” a delivery for which UPS added a Residential Surcharge or Residential Adjustment was a commercial location.
In support of this argument claimants cite Cundiff v. Verizon California, Inc. (2008) 167 Cal.App.4th 718. Cundiff does not support this contention. There, in dicta, discussing class members’ right to recover benefits, the court noted “‘individual class members are afforded an opportunity to collect their individual shares by proving their particular damages, usually according to a lowered standard of proof.’” (Id. at p. 729.) Nothing in Cundiff suggests a lower standard of proof uniformly applies to claims in all class action settlements or that the persuasive documentation requirement employed here was intended to establish a lower proof burden.
Finally, claimants argue UPS “fabricated” the “persuasively establish” standard, making it so “highly burdensome” (bold and underlining omitted) that satisfying this burden “outweighed the cost effectiveness of the claim itself....” First, UPS did not fabricate new requirements after the settlement was approved. The persuasive documentation requirement was expressly included in the settlement between plaintiffs and UPS and approved by the court. The settlement also attached a copy of the form and declared “[t]he Claim Form shall be in the form, and contain the content, ” as the attached document. Second, an assertion that compliance was too burdensome simply amounts to an attack on the merits of the settlement agreement and claimants failed to timely object to or opt out of it.
3. The Residential Credit Adjustment Fund
Section 3 of the settlement, which provides for issuing credits and vouchers to Contract Settlement Class Members, states: “Funds remaining in the Claims Made Class Fund after issuance of the Second Tier and Third Tier vouchers, if any, plus the value of issued-but-expired vouchers, if any, shall be placed in a ‘Residential Adjustment Credit Fund’ to be used exclusively to issue account credits to customers who raise complaints to UPS about Residential Adjustments or Residential Surcharges until such funds are exhausted, subject to UPS’s sole discretion as when to issue credits from such Residential Adjustment Credit Fund. Nothing in the Settlement shall excuse UPS from providing customers with credits for Residential Adjustments or Residential Surcharges after the Residential Adjustment Credit Fund is exhausted, to the extent that such adjustments are appropriate and/or required by the agreements between UPS and its customers.”
Claimants’ motion sought an accounting of the Residential Adjustment Credit Fund, plus orders that “remaining credits in the... Fund be left available to... UPS class member[s] that locate[] their bills from January 1, 1998 through December 31, 2005 and submit[] complaints for such residential overcharges for the next twelve months, ” and, if “there are any remaining credits at the end of twelve months, ” for distribution to themselves and “the original plaintiffs.” In denying relief, the trial court noted “the provision about customers who make complaints appears to be acting prospectively....” It also placed “great weight on the provision[]” granting UPS “‘sole discretion as to when to issue credits, ’” finding it “suggests... that as long as UPS has in place some procedures by which it can reasonably make a decision to grant or deny relief under that section and such provisions are rationally based to accomplish the purposes of the settlement..., there is no breach, and certainly no showing of bad faith....”
On appeal, claimants argue “only Contract Settlement Class Members” are “entitled to [the Fund’s] benefits..., ” and the “credit” received “should... equal” the unpaid benefits sought under the Claims Made Class Fund. Consequently, they contend, “the lower court’s decision to give the [Fund] to UPS to pay UPS’s future liabilities for nonsettlement class members’ injuries is a violation of the terms of the court’s original order approving the settlement and the terms of the Agreement.”
We conclude the trial court properly interpreted the language of the Residential Adjustment Credit Fund. Unlike the Claims Made Class Fund’s Second and Third Tiers, which authorized “Contract Settlement Class Members” to “seek recovery” for “packages shipped before” the January 1, 2006 to May 6, 2008 “Adjustment Period, ” the Residential Adjustment Credit Fund authorizes UPS “to issue account credits to customers who raise complaints to UPS about Residential Adjustment or Residential Surcharges....” Thus, the Second and Third Tiers apply to past shipping activities by class members, while the Residential Adjustment Credit Fund applies prospectively to “customers who raise complaints” concerning UPS’s imposition of Residential Surcharges or Residential Adjustments.
Relying on Code of Civil Procedure section 384 and case law applying it, claimants argue “the residue funds in a class action settlement should be used to promote the objectives of the underlying... action.” They describe “the residue” at issue in this case as what “remains after [Second and Third Tier] benefits are paid, ” and urge this balance be distributed “‘to those class members who have sufficient interest in obtaining recovery and can produce the documentation necessary to file individual claims.’”
Code of Civil Procedure section 384, subdivision (b) states, in part, “prior to the entry of any judgment in a class action..., the court shall determine the total amount that will be payable to all class members, if all class members are paid the amount to which they are entitled pursuant to the judgment, ” and after receiving a report of “the total amount that was actually paid to the class members, ” it “shall amend the judgment to direct the defendant to pay the sum of the unpaid residue, plus interest..., to nonprofit organizations or foundations to support projects that will benefit the class or similarly situated persons, or that promote the law consistent with the objectives and purposes of the underlying cause of action....”
But, as UPS notes, the settlement in this class action did not create an “unpaid residue.” Cundiff v. Verizon California, Inc., supra, 167 Cal.App.4th 718 defined that phrase as used in Code of Civil Procedure section 384 to mean “[t]he difference between the ‘total amount... payable to all class members’ and ‘the total amount that was actually paid to the class members, ’....” (Cundiff v. Verizon California, Inc., supra, 167 Cal.App.4th at p. 727.) Cundiff involved a class action settlement where the defendant agreed to make payments to class members if they filed claims declaring they were customers who had unknowingly paid unauthorized rental equipment charges. Two years after the settlement there remained over $400,000 in checks issued by the defendant that had never been cashed or were returned to it as undeliverable. The appellate court agreed with the plaintiff that Code of Civil Procedure section 384 required the judgment be amended to direct the unclaimed funds be paid to certain designated charities rather than allow this sum revert to the defendant.
Alternatively, In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706 involved a class action settlement that authorized the issuance of vouchers to class members and further provided two-thirds of the face value of any unclaimed vouchers would be distributed to schools with the remaining one-third retained by the defendant. The appellate court upheld this distribution of the settlement funds, rejecting a claim it violated Code of Civil Procedure section 384. “[Code of Civil Procedure section 384, s]ubdivision (a) expresses an intent... ‘to ensure that the unpaid residuals in class action litigation are distributed, to the extent possible, in a manner designed either to further the purposes of the underlying causes of action, or to promote justice for all Californians.’ Under our interpretation, ... [Code of Civil Procedure] section 384, subdivision (b) does not apply to a judgment approving a settlement agreement that includes its own provisions for distribution of any unpaid residue.” (In re Microsoft I-V Cases, supra, 135 Cal.App.4th at p. 722.)
This case is analogous to In re Microsoft I-V Cases, supra, 135 Cal.App.4th 706. First Tier credits amounting to over $4 million were automatically distributed to “Contract Settlement Class Members who are current account holders as of” January 12, 2009, “that had a Residential Adjustment” between January 1, 2006 and May 6, 2008. UPS also established a $2.25 million fund for the Second (documentation) and Third (verification) Tiers, and issued vouchers under these Tiers.
To the extent the funds for the Second and Third Tiers were not claimed or used by class members, they were placed in the Residential Adjustment Credit Fund “to issue account credits to customers who raise complaints... until such funds are exhausted....” In an August 2009 declaration filed in opposition to claimants’ motion, a UPS employee summarized the company’s issuance of credits under the Residential Adjustment Credit Fund: “Although the starting balance of the... [f]und is not yet known (because the voucher process is not yet complete), my group is tracking the amount of account credits issued to customers who raised concerns about residential charges made in error. From... January 12, 2009... through June 30, 2009, UPS has issued approximately $2.5 million in such credits.” Thus, the amount of the Residential Adjustment Credit Fund distributed actually exceeded the total of the original Claims Made Class Fund. Clearly, the distribution of class settlement funds in this case comported with the legislative intent underlying Code of Civil Procedure section 384.
Claimants argue the Residential Adjustment Credit Fund grants UPS discretion as to “when to issue credits, ” but not to whom the credits must be issued and that, to the extent there is any ambiguity in the settlement’s language it must be construed against UPS. The settlement unambiguously states the unused funds and vouchers from the Second and Third Tiers are “to be used exclusively to issue account credits to customers who raise complaints to UPS about Residential Adjustment[s] or Residential Surcharges....” Furthermore, the settlement expressly provides “[e]ach of the [p]arties has cooperated in the drafting and preparation of this [s]tipulation and has been advised by counsel regarding the terms, effect, and consequences of the [s]tipulation, ” and “in any construction to be made of this [s]tipulation, this [s]tipulation shall not be construed as having been drafted solely by any one or more of the [p]arties.”
Another argument by claimants is lack of notice, claiming that if “future UPS customers [are] beneficiaries under the [Residential Adjustment Credit Fund] provision..., [we] would have to find that these non-class members were entitled to timely... notice of their benefits so that they could timely object....” Since the creation of the Residential Adjustment Credit Fund is to provide a then-existing customer with a credit if the customer complains about incurring a Residential Surcharge or Residential Adjustment, we fail to see how this settlement provision could harm their interests.
Finally, claimants assert that since “there was nothing in the [settlement] requiring UPS to stop this incorrect billing practice, ” the trial court effectively allowed the funds in the Residential Adjustment Credit Fund to revert to UPS, noting “it is undisputed that UPS charged and collected more than $2.5 million... for these same billing errors from post-settlement customers....” This argument ignores the fact that UPS did not acknowledge engaging in improper billing practices. The settlement expressly states “UPS disputes the claims alleged... and... does not admit any liability or wrongdoing whatsoever.” Nor was there any reversion. The credits were issued to customers who complained. To the extent UPS issued such credits, it reduced or eliminated any Residential Surcharge or Residential Adjustment made by it. Any benefit achieved by UPS was in maintaining good relations with its customers.
Therefore, we conclude the trial court properly rejected claimants’ effort to seek benefits under the Residential Adjustment Credit Fund.
4. Attorney Fees
Finally, claimants attack the trial court’s denial of their request for attorney fees in prosecuting the motion for equitable relief. This contention also lacks merit.
Claimants are correct in arguing the trial court erred by finding their right to attorney fees waived by the class settlement. The waiver of fees “in connection with the settlement of the Action” applied only to “Class Counsel, ” and the settlement expressly identified “Class Counsel” to mean plaintiffs’ legal representatives.
But “[e]xcept as attorney[] fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties....” (Code Civ. Proc., § 1021.) This statute “[e]mbodie[s]... the ‘American rule’... that except as provided by statute or agreement, the parties to litigation must pay their own attorney fees.” (Essex Ins. Co. v. Five Star Dye House, Inc. (2006) 38 Cal.4th 1252, 1257.) Nothing in the settlement authorizes a recovery of attorney fees except by “Class Counsel” “in connection with... approval of [the] stipulation of settlement....”
To support a fee recovery, claimants cite Code of Civil Procedure section 1021.5. It declares, “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 significant benefit... has been conferred on the general public or a large class of persons, ... the necessity and financial burden of private enforcement... are such as to make the award appropriate, and... such fees should not in the interest of justice be paid out of the recovery....” “Generally, whether a party has met the statutory requirements for an award of attorney fees is best decided by the trial court, whose decision we review for abuse of discretion. [Citation.]” (Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2010) 187 Cal.App.4th 376, 381.)
First, we doubt claimants qualified as a successful party on their postjudgment motion. While “[a] favorable final judgment is not necessary[, ] the critical fact is the impact of the action. [Citation.] [Parties] may be considered successful if they succeed on any significant issue in the litigation that achieves some of the benefit they sought in bringing suit. [Citation.] But, there must be some qualitative selectivity because [Code of Civil Procedure] section 1021.5 specifically refers to litigation that vindicates ‘important’ rights. It does not encompass the enforcement of ‘any’ or ‘all... rights. [Citation.] Thus, in determining whether a party is successful, the court must critically analyze the surrounding circumstances of the litigation and pragmatically assess the gains achieved by the action. [Citation.]” (Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection, supra, 187 Cal.App.4th at pp. 381-382.)
Claimants succeeded only to the extent the trial court granted the seven businesses who timely filed Second Tier claims an extension of time to file claims for Third Tier vouchers. That was not part of the relief they sought. Furthermore, claimants’ “success” is hardly an example of “an important right affecting the public interest” that has been “conferred on the general public or a large class of persons....” (Code Civ. Proc., § 1021.5.) Therefore, we conclude the trial court properly exercised its discretion in denying claimants’ attorney fees request.
DISPOSITION
The postjudgment order is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: MOORE, J., ARONSON, J.