Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 08CECG03507, Donald S. Black, Judge.
Baker, Manock & Jensen, Charles K. Manock, Craig A. Houghton and Christopher D. Bell for Defendants and Appellants.
Chielpegian Law Offices, Elliott D. Chielpegian, Mark E. Chielpegian and Lee S.W. Cobb for Plaintiff and Respondent.
OPINION
LEVY, J.
In the underlying action, respondent, Marvin R. Salwasser, administrator with will annexed of the Estate of Walter Salwasser, filed a complaint against appellants, George Salwasser and Charlotte Salwasser, to enforce a promissory note. Appellants admitted that they had executed the note and that payment had been demanded. Nevertheless, appellants vigorously defended the action. According to appellants, no amount was presently due. Eventually, respondent prevailed on a summary judgment motion and judgment was entered in his favor for the balance due on the note. Thereafter, respondent was awarded $106,480 in attorney fees.
Appellants do not contest respondent’s right to contractual attorney fees. Rather, this appeal challenges the amount of the award. Appellants argue that an award of over $106,000 on a simple case to collect $115,000 is grossly disproportionate and unreasonable.
As discussed below, the trial court did not abuse its discretion in making this award. Appellants litigated tenaciously and, by doing so, required respondent’s counsel to spend additional time prosecuting the action. Therefore, the order will be affirmed.
BACKGROUND
In 2001, appellants executed a note promising to pay Walter or Lillian Salwasser the amount of $200,000 with interest at 5 percent per annum, no later than January 17, 2003. This note included an attorney fees clause. Lillian Salwasser died in September 2006 and Walter Salwasser died in March 2007.
Respondent made a demand for payment of the note in October 2008. Thereafter, respondent filed a complaint seeking payment of the outstanding principal balance plus accrued interest and attorney fees. In their answer, appellants admitted that the note was genuine, that they executed the note, and that respondent had made a demand for payment. However, appellants denied that any amount was presently due.
Respondent initiated discovery with interrogatories, requests for production of documents, and requests for admissions. Respondent also attempted to schedule appellants’ depositions.
In responding to the special interrogatories, appellants set forth their position on repayment of the note. Appellants stated that they had repaid $85,000. In support of their claim that no other amount was currently due, appellants explained that they had reached an agreement with family members that no further interest would accrue on the note and that the note would be paid upon the distribution of the estate of Walter and Lillian Salwasser. Appellants later specified that these family members were respondent’s brothers, George, Gary and Denis, i.e., three of Walter and Lillian’s four sons.
Respondent found appellants’ discovery responses to be deficient and evasive and responded by initiating the meet and confer process multiple times. This led to appellants repeatedly supplementing their responses. Further, appellants did not cooperate in the setting of their depositions. Appellants selected dates for their depositions but either cancelled or failed to appear on three occasions. When appellants depositions were scheduled for a fourth time, respondent noticed a motion to compel to be heard a few days later in case appellants again failed to appear. The depositions went ahead as scheduled on September 22-23, 2009, and respondent dropped the motion to compel.
On November 6, 2009, respondent filed and served a motion for summary judgment, with a hearing set for January 21, 2010. Respondent knew that at this stage in the litigation he could not prevail on the issue of whether the alleged modification had occurred. Accordingly, respondent moved for summary judgment on the ground that no one had authority to act for Walter or Lillian with respect to the alleged modification. In response, George Salwasser submitted a declaration stating that, at the time the alleged modification occurred, Denis Salwasser represented that he had the authority to act as the agent for Walter Salwasser under a power of attorney since Walter Salwasser was incompetent. This was the first time that appellants made this claim. Appellants then noticed depositions for respondent and two third party witnesses for dates after the scheduled January 21 hearing and requested a continuance.
Following a hearing on February 23, 2010, the trial court granted summary judgment in respondent’s favor. The trial court ruled that appellants had not raised a triable issue of fact as to whether any durable power of attorney existed or as to whether the loan was modified.
Respondent then filed a motion for attorney fees and costs claiming $116,445 in attorney fees. The trial court granted the motion but made adjustments resulting in an attorney fees award of $106,480. The court explained that it had considered all relevant factors and found that excessive time was spent on several tasks. These tasks included the analysis of the answer and preparation of discovery; the analysis of discovery responses and the drafting of the meet and confer letters; and the preparation for and attendance at appellants’ depositions. The court therefore reduced the hours accordingly. As to the amount of the award, the court noted that appellants “tenaciously litigated this action, despite the lack of any evidence of a durable power of attorney, which was essential to the defense” and thus could not complain about the time necessarily spent by respondent in response.
DISCUSSION
Appellants contend the trial court abused its discretion in awarding $106,480 in attorney fees in “this straight-forward case for enforcement of a promissory note with a principal amount due and owing of $115,000.00.” According to appellants, respondent was awarded fees that were not reasonably spent to achieve the result he obtained in that the issue was relatively simple and was framed early in the litigation, the prosecution of the case did not require a high degree of skill, and the fees were grossly out of proportion to the amount in controversy.
In determining what constitutes a reasonable attorney fee, courts should consider a number of factors including the nature of the litigation, its difficulty, the amount involved, the skill employed, the success of the attorney’s efforts, the attention given, and other circumstances in the case. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) However, while an attorney fee award should ordinarily include compensation for all hours reasonably spent, inefficient or duplicative efforts will not be compensated. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)
The amount of an attorney fee award is left to the sound discretion of the trial court. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p.1095.) The experienced trial judge is the best judge of the value of professional services rendered in his or her court. Accordingly, while the judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that the trial court abused its discretion. (Ibid.)
The concept of abuse of discretion is not easily susceptible to precise definition. It has been enunciated in terms of whether the trial court exceeded the bounds of reason or was arbitrary or irrational. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1249.) In the context of an attorney fee award, reversal is proper only if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination. (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) An appellate court is neither authorized nor warranted in substituting its judgment for the trial court and thus a decision will not be reversed merely because reasonable people might disagree. (Maughan v. Google Technology, Inc., supra, 143 Cal.App.4th at p. 1249.)
Appellants first argue that this was a simple case centered on a single issue and that respondent had adequate information to bring a summary judgment motion as of January 2009. However, appellants refused to cooperate with discovery requests and thus, delayed respondent’s filing of a summary judgment motion. When the motion for summary judgment was filed, appellants defended it based on an alleged power of attorney that was neither previously disclosed nor supported with evidence. Accordingly, appellants complicated what might have otherwise been a simple action. “ ‘A defendant “ ‘cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.’ ” ’ ” (Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 114.)
Appellants also attack certain time billed as being unnecessary and not reasonably spent. According to appellants, respondent’s attorney billed $25,000 of unnecessary attorney time spent reviewing discovery responses, propounding needless discovery, conducting legal research and holding interoffice conferences between January 2009 and September 2009. Appellants further object to respondent spending $18,000 to prepare a motion for summary judgment, $10,000 to prepare the reply brief, and $5,500 to prepare an ex parte application to shorten time in which to hear respondent’s motion to compel appellants’ depositions. According to appellants, these fees were excessive and unnecessary in light of the simplicity of the case. Further, appellants note, the reply brief included evidence that was held inadmissible and the application to shorten time was denied.
However, the trial court already reduced certain of these hours. Further, an attack need not be successful for compensation to be warranted. (Akins v. Enterprise Rent-A-Car Co., supra, 79 Cal.App.4th at p. 1133.) Moreover, respondent submitted detailed billing records from his attorney and appellants do not attempt to establish that any specific item of fees was not reasonably incurred by respondent. Rather, they simply argue that the overall fees were too high. Therefore, appellants have not met their burden to establish that the trial court abused its discretion in that the award was “ ‘manifestly excessive in the circumstances.’ ” (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1509.)
Appellants further contend that respondent’s counsel spent excessive time preparing for and taking their depositions. Again, appellants do not point to any specific billing entries. Further, the trial court already reduced these fees considerably.
Finally, appellants argue that the attorney fees were grossly out of proportion to the amount in controversy and therefore were unreasonable. However, while the amount in controversy is relevant to the amount of attorney fees to be awarded, it is not controlling. It is merely one of many factors a court should consider in calculating the award. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096; Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1508.)
Here, the trial court acknowledged the parameters of its discretion and considered the factors that are relevant to an attorney fee award. The court analyzed the itemized statement of work performed by respondent’s counsel and, based on its experience in relevant private practice and on the bench, deducted what the court determined to be excessive time spent on certain tasks. The court considered that the amount of attorney fees requested exceeded the possible recovery in the action but nevertheless concluded that the fees awarded were reasonable under the circumstances. As noted by the court, the appellants tenaciously litigated the action, despite the lack of any evidence to support their defense. Thus, the court concluded that appellants could not complain about the time necessarily spent by respondent in response. Under these circumstances, we cannot conclude that the attorney fees award shocks the conscience or suggests that passion and prejudice had a part in it. Accordingly, the attorney fee award will be affirmed.
Respondent also seeks an award of attorney fees on appeal. The provision in the promissory note for attorney fees also encompasses attorney fees on appeal. (Mackinder v. OSCA Development Co. (1984) 151 Cal.App.3d 728, 739.) Thus, we grant respondent’s request. Although this court possesses the power to fix attorney fees on appeal, the better practice is to remand the cause to the trial court to determine the appropriate amount of such fees. (Akins v. Enterprise Rent-A-Car Co., supra, 79 Cal.App.4th at p. 1134.).
DISPOSITION
The attorney fees order is affirmed. Respondent shall recover his costs and attorney fees on appeal, the amount of which is to be determined by the trial court.
WE CONCUR: WISEMAN, Acting P.J., GOMES, J.