Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. CIV 453781
McGuiness, P.J.
At the time of this litigation, plaintiffs Vecane Sossikian and his wife, Teresa Sossikian, leased property, pursuant to a written lease agreement, from the property owners, Christopher Ennis, Angela Ennis, Timothy Ennis, Thomas Ennis, Theodore Ennis, Paul Cooke, Debbie Cooke, as successor in interest to William Cooke, and Vicki Ann Le Mieux. The leased property was used for the operation of a gas station business that was owned by plaintiff Geneva Chevron Partners (Geneva), a partnership of which Vecane Sossikian is a general and managing partner.
William Cooke, a named defendant, died after the entry of the amended judgment. At the request of the parties, this court granted a motion to substitute Debbie Cooke, as successor in interest pursuant to Code of Civil Procedure section 377.10 et seq. We directed that the docket should reflect that Debbie Cooke, is substituted in place of William Cooke as an appellant in docket number A119693 and as a respondent in docket number A119694.
After the trial in this matter, in September 2008, the gas station business was sold and the lease was assigned to the new buyer.
This litigation was filed after Vecane Sossikian asked the property owners to consent to an assignment of the lease to a prospective purchaser of the gas station business. Three of the owners, Angela Ennis, Timothy Ennis, and Vicki Ann Le Mieux, consented to the assignment but the other five owners (hereinafter referred to as the Ennis/Cooke group) refused to consent to the assignment. After a trial, the jury found the Ennis/Cooke group had unreasonably withheld consent to the assignment, thereby breaching the lease. Geneva was awarded damages in the sum of $43,184.20. Because the jury found the Sossikians, as individuals, had not been harmed by the breach, they were not awarded any damages. In an amended judgment after the verdict, the court granted plaintiffs’ request for a declaration that the 6th addendum to the lease was valid. The court also awarded Geneva the sum of $142,690.75, for attorney fees.
These consolidated appeals are from the amended judgment and the order awarding attorney fees to Geneva, as well as post-judgment orders denying the parties’ respective motions for judgment notwithstanding the verdict (JNOV) and partial JNOV, or partial new trials. The parties raise various contentions, none of which warrants reversal or modification. According, we affirm.
On March 6, 2008, we consolidated the parties’ appeals from the amended judgment and post-judgment orders relating to the judgment (A119693 and A119694) for the purposes of briefing, oral argument, if any, and decision. On December 17, 2008, the Ennis/Cooke group also moved to consolidate, for oral argument and decision, the parties’ appeals from the post-judgment order awarding attorney fees to Geneva (A122487) with the previously consolidated appeals. On December 19, 2008, we deferred consideration of the motion until this time. We now grant the motion, and all appeals are consolidated for oral argument and decision. On our own motion, and for the reasons stated in footnote one, ante, we direct that the docket shall reflect that Debbie Cooke, as successor in interest to decedent William Cooke pursuant to Code of Civil Procedure section 377.10 et seq., is substituted in place of William Cooke as an appellant and respondent in docket number A122487.
Defendants Angela Ennis, Timothy Ennis, and Vicki Ann Le Mieux, are listed as appellants in the notice of appeal in A119693, and defendants Timothy Ennis and Vicki Ann Le Mieux are listed as appellants in the notice of appeal in A122487. However, no opening briefs have been filed on behalf of these named appellants. Accordingly, we dismiss the appeals of defendants Angela Ennis, Timothy Ennis, and Vicki Ann Le Mieux in A119693, and we dismiss the appeals of defendants Timothy Ennis and Vicki Ann Le Mieux in A122487. (See Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 244.) Because the order denying plaintiffs’ motion for a partial new trial is brought up for review on plaintiffs’ appeal from the amended judgment (Code Civ. Proc., § 906), and is not separately appealable, we dismiss their separate appeal in A119693 and review the order on the appeal from the amended judgment. (See Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 689, fn. 1.) Finally, plaintiffs have informed us that their appeal in A119693 from a post judgment order denying their motion to vacate or modify the judgment has been rendered moot by subsequent proceedings. Accordingly, we dismiss their appeal from that order in A119693.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the undisputed documents in the parties’ joint appendix in A119693 and A119694, the Ennis/Cooke group’s appendix in A122487, and the evidence presented at trial; any disputed testimony is construed in the light most favorable to the prevailing party at trial. Because the parties share family surnames, where appropriate, we will refer to them by their first names for clarity.
In 1981, Albert V. Cooke and his wife Margaret Cooke leased property located in San Francisco to Wickland Oil Stations. The written lease was expressly conditioned on the lessee’s use of the premises “for the purposes of conducting a service station for the sale of gasoline, oil and other similar articles, and for the purpose of servicing automobiles and other motor vehicles and for the retail sales of articles customarily sold at service stations,” and “for no other purpose without first obtain[ing] the written consent of [the lessor].” The lease also contained an assignment and subletting clause (hereinafter referred to as the anti-assignment clause) that prohibited the lessee from assigning or subletting in whole or in part the lease unless the lessee got prior written consent of the lessor, “provided, however, that such consent by the [lessor] shall not unreasonably be withheld;” and “neither this lease nor any interest herein shall be assignable or transferable by operation of law.” The lease was binding and enforceable by the parties and their respective heirs, executors, administrators, successors and assigns, subject to the restrictions imposed on assignment by the lessee.
In 1989, Vecane Sossikian and his then partner, Keet Nerhan, together with Teresa Sossikian, agreed to accept the assignment of the lease and agreed to an addendum to the lease. By the time of the 1989 assignment, Albert V. Cooke had died, and Margaret Cooke and her daughter Angela Ennis, as trustees of the Albert V. Cooke Testamentary Trust, succeeded to Albert’s interest. The lease assignment and the addendum to the lease were signed by Vecane Sossikian, Teresa Sossikian, and Keet Nerhan, as assignees to the lease assignment and lessees to the addendum; John A. Wickland and Daniel E. Hall signed as assignors on behalf of Wickland Oil Stations; and Margaret Cooke and Angela Ennis, as trustees of the Albert V. Cooke Testamentary Trust, and Margaret Cooke, individually, signed as lessors.
In 1992, the Sossikians, Nerhan, and Angela Ennis entered into a 2nd Addendum, which modified the base lease term. This addendum was signed by the Sossikians and Nerhan. Angela Ennis signed on behalf of herself and her mother, as trustees of Albert V. Cooke Testamentary Trust and Margaret Cooke, individually. In 1993, Margaret Cooke died, and Angela Ennis became the property manager of the leased premises.
On August 1, 1993, Vecane Sossikian and Armen Moshkounian formed a new partnership, Geneva, for the purpose of leasing equipment necessary for the retail sale of gasoline and other petroleum products in addition to the sale of retail food, snacks, beverages and sundries from retail gasoline locations. The partnership agreement provided that the partners were to sign, file, and publish appropriate fictitious business name statements under which the partnership would do business. Vecane Sossikian was designated the managing partner with the power to control the partnership’s business. At trial, Vecane testified that he had called Angela Ennis and told her he had a new partner, and she did not raise any objection at that time. Vecane did not think it was necessary to add the name of his new partner or the name of partnership to the written lease; he “was the business” in that he made all the business decisions for the partnership. Although Vecane never signed a document formally transferring his interest in the lease to Geneva, it was his understanding that Geneva had an interest in the lease because it was operating the business at the premises, it was paying the rent, and it “is the tenant.”
Over the ensuing years, Geneva operated the gas station using various fictitious business names depending on the type of gas sold at the station. At the time of the trial, Geneva was doing business under the name of Geneva EconoGas. Neither the Sossikians nor Moshkounian ever personally paid the rent on the leased premises. The rent was always paid by checks drawn on accounts in the name of the fictitious business names under which the partnership was doing business, including Geneva Exxon, Geneva Beacon, and Geneva EconoGas.
Nerhan’s name remained on the lease during the transition period between his withdrawal from the partnership with Vecane and the year following the formation of Geneva. At the end of July 1994, a 3rd Addendum, signed by the Sossikians, Nerhan, and Angela Ennis, terminated Nerhan’s obligations under the lease.
In or about 1994 or 1995, Angela, as trustee of the Albert V. Cooke Testamentary trust and the Margaret V. Cooke 1987 Trust, distributed the interest in the leased property to herself, individually, and seven family trust beneficiaries: Christopher Ennis, Timothy Ennis, Thomas Ennis, Theodore Ennis, William Cooke, Paul Cooke, and Vicki Ann Le Mieux. The eight owners entered into a “real property co-ownership agreement.” Angela was designated as the managing co-owner, and authorized to act as agent for all the owners to enter into contracts, in her sole discretion, regarding the lease and rental of the property. Angela acted on behalf of the owners by executing lease addenda in 1994, 1998, 2000, and even 2005, although the owners’ agreement expired on December 31, 2004.
The 4th Addendum was a letter dated June 16, 1998. The letter was signed by Vecane Sossikian on a signature line above “Vic Sossikian” and “Geneva Exxon” in the signature block. Angela Ennis signed “Angela Ennis” and “Property Manager” in the signature block. The 5th Addendum, effective May 1, 2000, was agreed to between Angela Ennis, as lessor, and the Sossikians, as lessees. Effective September 1, 2005, a 6th Addendum was signed by Angela Ennis, as lessor, and the Sossikians as lessees. This addendum was accompanied by a note to Vecane Sossikian from Angela Ennis, in which she stated “Please send me a signed copy. Everyone’s agreeable.”
The 6th addendum confirmed that the last option to extend the lease term would expire on December 31, 2013, and the rent as of January 1, 2005, was $5,017.76 and derived from the initial rent amount, plus an annual increase based upon the San Francisco Consumer Price Index. Starting January 1, 2006, the rent calculation was changed to: “the current rent of $5017.76 PLUS an additional $500, PLUS an annual increase of 3% calculated January 1 of each year.” The addendum also granted the Sossikians three additional five-year options, which permitted the Sossikians to extend the lease term through 2028. At trial, Vecane Sossikian testified that there was nothing restricting his ability to exercise the options at any time to extend the lease through 2028. And, Christopher Ennis confirmed that as long as the Sossikians were not in breach of the lease, the owners could not prevent the extension of the lease through 2028.
In late October or early November 2005, Vecane Sossikian accepted an offer from John Ha and his wife Ting Yang to purchase the gas station for $1.2 million. Ha and Yang planned to operate the gas station through a corporation called Alphaco, of which Ha was president and Yang was CEO. Alphaco would be the named lessee accepting assignment of the lease. Alphaco would pay $575,000 in cash, and it would borrow $625,000, at an interest rate of 7 percent per year, from Vecane and his partner, individually. Ha and Yang offered certain rental units they owned personally as collateral for the purchase money loans to be provided by Vecane and his partner. Realtor Herminé Boyadjian, who was handling the sale, informed Vecane that Ha and Yang had enough equity in their rental properties to secure the loans.
Vecane informed Angela that he had secured a buyer for the business and requested that she consent to the transfer of the lease. On December 3, 2005, Angela informed Vecane that the owners’ property agreement had expired on December 31, 2004, but Angela assured Vecane that there would be no problem with a transfer because all the owners could sign another agreement.
On December 12, 2005, Boyadjian sent a letter to all the owners requesting them to sign both a “7th Addendum To Lease/Consent/Certificate,” and a “Memorandum of Lease. The proposed 7th Addendum, between the eight property owners, and Alphaco, provided that the parties agreed “that the Lease and its ADDENDUMS TO LEASE are hereby modified and added to as follows: [¶] In the event of any taking of the leased premises by condemnation or voluntary transfer to the condemning authority under threat of condemnation, each party shall be entitled to the portion of any award representing the value of its interest. [¶] The term of the Lease is extended through December 31, 2018. [¶] In addition, Lessor hereby consents to the assignment of the Lease to Alphaco, and certifies the following to Alphaco: [¶]... [¶] 3. The current term of the Lease expires on December 31, 2018, subject to the lessee’s successive options to extend the term through December 31, 2023, and through December 31, 2028.” The monthly rent payable under the lease would be as listed in a chart of monthly rental amounts for each year from 2006 through 2018, and then “[i]f options(s) exercised,” for 2019 through 2028. The memorandum of lease was a confirmation that the owners had leased the premises to Alphaco, and that Alphaco leased the premises for the term and upon all the terms, covenants and conditions contained in the existing lease as amended by the existing addenda, through and including the 7th Addendum.
Only Angela Ennis, Timothy Ennis, and Vicki Ann le Mieux agreed to the assignment and signed the 7th Addendum. The Ennis/Cooke group did not consent to the assignment and did not sign the 7th Addendum. At trial, Vecane Sossikian testified it was his understanding the 7th Addendum had not been finalized because the Ennis/Cooke group did not want a lease extension through 2028, even though that had been agreed to in the existing 6th Addendum. As a consequence of the Ennis/Cooke group’s refusal to consent to the assignment, the prospective sale to Alphaco fell through.
On January 19, 2007, the Sossikians filed the operative second amended complaint, which included a request for a declaration that the 6th Addendum to the lease was valid and a cause of action for breach of contract based upon the Ennis/Cooke group’s refusal to consent to the lease assignment. Although Geneva was not a named plaintiff, the complaint alleged that Vecane Sossikian was a general partner of “Geneva Chevron Partners/Geneva EconoGas,” identified as “the general partnership that owns and operates a gas station on the Property.” On July 11, 2007, the day before trial testimony began, the court granted the Sossikians’ request to add Geneva as a named plaintiff. On the same day, plaintiffs and the Ennis/Cooke group stipulated that the 6th Addendum was a valid addendum to the lease, thereby resolving the declaratory relief cause of action.
A jury trial then proceeded on plaintiffs’ cause of action for breach of contract against the Ennis/Cooke group. The jury heard testimony from Vecane Sossikian, Teresa Sossikian, Armen Moshkounian, Angela Ennis, the Ennis/Cooke group members, an attorney representing Vecane Sossikian, Herminé Boyadjian, John Ha and his counsel, Eric Risberg (plaintiff’s expert “in the area of appraisal of the fair market value of gas stations” and this gas station in particular), a real estate broker, and Mark Newton (the Ennis/Cooke group’s expert in “business valuation”).
Plaintiffs’ position at trial was that the Ennis/Cooke group had breached the lease by unreasonably refusing to consent to the assignment in a timely fashion before Alphaco withdrew its offer to purchase the business. Plaintiffs argued that (1) the proposed written assignment, in the form of a 7th Addendum to the lease, reiterated the terms of the 6th Addendum, (2) any modifications in the 7th Addendum were not factors in the Ennis/Cooke group’s decision to refuse to consent to the assignment, (3) the Ennis/Cooke group’s real objection was to the previously agreed-to length of the lease term through 2028, and (4) the Ennis/Cooke group improperly attempted to obtain a better bargain by asking Alphaco to agree to a shorter lease term than provided for in the 6th Addendum, as well as other new provisions.
The Ennis/Cooke group’s position at trial was that after they learned they were bound by the 6th Addendum, which had been signed by Angela as their agent, they no longer objected to the assignment on the ground that the lease could be extended through the year 2028. Rather, they contended they had refused to consent to the assignment because of Alphaco’s unknown financial status, and because the 7th Addendum, as written, contained terms that modified the existing lease and addenda, including changing the expiration of the base lease term, revising the lease provision regarding the disposition of any condemnation award, and changing the rent payment provisions of the lease.
The jury found, in relevant part, that Geneva and the Sossikians had entered into a lease agreement with the Ennis/Cooke group, and that the Ennis/Cooke group had breached the lease by unreasonably refusing to consent to the assignment to facilitate the sale to Alphaco. The jury also found that Geneva was harmed by the breach, and was entitled to damages in the sum of $43,184.20. However, the jury found that the Sossikians had not be harmed by the breach, and accordingly, no damages were awarded to them. After the jury verdict, the court found in favor of plaintiffs on their first cause of action for declaratory relief. In an amended judgment, the court included its ruling declaring that the 6th Addendum was valid. The court denied the parties’ respective post judgment motions, and Geneva was awarded attorney fees in the sum of $142,690.75.
DISCUSSION
I. Sufficiency of Evidence and Trial Court Instructions on Breach of Contract Cause of Action
The Ennis/Cooke group argue that the judgment should be reversed because the evidence conclusively established they could have refused to consent to the assignment on the grounds of Alphaco’s financial instability and the lease revisions to the lease included in the 7th Addendum. Having sufficient reasons to reject the assignment outright, their attempts to negotiate different terms as conditions to consenting to the assignment, including limiting the lessee’s ability to extend the lease term to 2023, were immaterial to the issue of whether their consent to the assignment was unreasonably withheld. According to the Ennis/Cooke group, even if their primary goal was to shorten the lease term, there existed an objective, commercially reasonable basis for withholding consent, and therefore, none of their subjective concerns established that they had unreasonably withheld consent to the assignment.
The Ennis/Cooke group’s arguments ignore our limited power of review. As an appellate court, “[o]ur authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the [jury’s] findings and decision, resolving every conflict in favor of the judgment. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) “We emphasize the test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. If this ‘substantial evidence’ is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld. As a general rule, therefore, we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing. [Citations.] In short, even if the judgment... is against the weight of the evidence, we are bound to uphold it so long as the record is free from prejudicial error and the judgment is supported by evidence which is ‘substantial,’ that is, of ‘ “ponderable legal significance,” ’ ‘ “reasonable in nature, credible, and of solid value....” ’ [Citations.]” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.) “If such substantial evidence be found, it is of no consequence that the [trier of fact] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)
As the trial court commented in denying the Ennis/Cooke group’s motions for JNOV or a partial new trial on the issue of liability, the jury could have based its verdict on evidence presented that the Ennis/Cooke group refused to consent to the assignment because they objected to the extended option lease term through 2028 established in the 6th Addendum, and a reasonable inference could be drawn that the Ennis/Cooke group did not reject the assignment based on Alphaco’s financial irresponsibility or instability or the lease revisions in the 7th Addendum. The jury was also free to reject the Ennis/Cooke group’s evidence in support of their argument that they were never given the option of simply consenting to an assignment, and were asked only to agree to lease the property to Alphaco under the purportedly less favorable terms of the 7th Addendum. The Ennis/Cooke group’s reliance on evidence that would lead to different conclusions is misplaced. “It is well settled that the trier of fact may accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted. [Citations.] As [the court] said in Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 777, ‘the jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony and inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material. [Citations.]’ ” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.)
The Ennis/Cooke group’s reliance on John Hogan Enterprises, Inc. v. Kellogg (1986) 187 Cal.App.3d 589, is misplaced. In that case, the appellate court found, as a matter of law, that the lessor’s rejection of an assignment of the lease was commercially reasonable where the prospective assignee admitted that if the assignment were approved, the lessor would receive less rent than had been paid by the current tenant. (Id. at p. 593.) In this case, there were no admissions or other conclusive evidence that required to jury to find, or the trial court to decide as a matter of law, that Alphaco’s financial status was a commercially reasonable basis for rejecting the assignment.
The Ennis/Cooke group also challenges certain jury instructions. They contend one sentence in Special Jury Instruction No. 5 (SJI5) misstated the law in that the jury was told a landlord’s desire for a better bargain than originally contracted for was not a reasonable ground for refusing to consent to the assignment. According to the Ennis/Cooke group, there were two commercially reasonable objections to the assignment that would have justified their outright refusal to consent to the assignment. However, the sentence in the instruction given told the jury that the Ennis/Cooke group, by trying to negotiate an assignment that addressed their concerns about the potential length of the lease, acted in a manner “that was per se unreasonable – an absolute standard” that the Legislature rejected in Civil Code section 1995.260. That statutory provision provides that when a lease contains a consent restriction to assignment but provides no standard for giving or withholding consent, the restriction “shall be construed to include an implied standard that the landlord’s consent may not be unreasonably withheld. Whether the landlord’s consent has been unreasonably withheld in a particular case is a question of fact on which the tenant has the burden of proof.” (Civ. Code, § 1995.260.) We conclude that the Ennis/Cooke group’s argument fails.
The jury was instructed as follows: “Plaintiffs have the burden of proving facts that show that the [d]efendants’ consent to assign the lease was unreasonably withheld. When a lease requires prior consent of the landlord for assignment such as the Lease in this case, such consent may be withheld only when the landlord has a commercially reasonable objection to the assignment. A landlord may reasonably object to an assignment on the bases of the proposed assignee’s financial irresponsibility or instability, or inability to fulfill the terms of the lease. A landlord’s personal preferences, taste, inconvenience or desire for higher rent or a better bargain than originally contracted for are not reasonabl[e] [sic] commercial grounds. The standard is one of reasonableness, conduct of a reasonably prudent person in the landlord’s position exercising reasonable commercial responsibility. In deciding whether defendants’ refusal to consent to the assignment was reasonable or unreasonable, you must decide whether a reasonable person in the landlord’s position would have refused to assign the Lease based on the objections Defendants had to the assignment.” (Italics added.) The Ennis/Cooke group object only to the italicized sentence.
“[T]here is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ [Citation.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580; see Cal. Const., art. VI, § 13; People v. Anderson (2007) 152 Cal.App.4th 919, 927.) The Ennis/Cooke group has not shown prejudicial error.
“ ‘It is well established in California that the correctness of jury instructions is to be determined from the entire [instruction] of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citation.]” (People v. Wade (1995) 39 Cal.App.4th 1487, 1491.) When read in context, SJI5 was consistent with the statutory requirement that whether a landlord has reasonably refused to consent to an assignment is a question of fact for the jury. The challenged sentence, together with the immediately preceding sentence, describes types of objections that may be found to be reasonable or unreasonable. Thus, the jury was told that “[a] landlord may reasonably object to an assignment on the bases of the proposed assignee’s financial irresponsibility or instability or inability to fulfill the terms of the lease,” while “[a] landlord’s personal preferences, taste, inconvenience or desire for higher rent or a better bargain than originally contracted for are not reasonabl[e] commercial grounds.” The court then told the jury that they were to determine whether a reasonable person in the Ennis/Cooke group’s position would have refused to assign the lease based on the objections they had to the assignment, without indicating whether the objections fell within the examples previously given by the court or that all objections must be found to be reasonable. Although somewhat awkwardly worded, the instruction was sufficient to permit the jury to properly determine whether the Ennis/Cooke group had reasonably refused to consent to the assignment. The jury was not instructed that they had to find all of the Ennis/Cooke group’s objections reasonable in order to find that the Ennis/Cooke group had reasonably refused to consent to the assignment. Additionally, the jury was expressly instructed that “[w]hether the landlord’s consent has been unreasonably withheld in a particular case is a question of fact on which the tenant has the burden of proof,” and, consistent with the Ennis/Cooke group’s arguments, the jury was told that “[i]f the Defendants had reasonable commercial objections to a proposed lease assignment, they did not breach the lease by continuing to negotiating or even requiring a new lease be entered into.” Consequently, we conclude the use of SJI5 does not warrant reversal of the judgment.
We are also not persuaded by the Ennis/Cooke group’s challenge to Special Jury Instruction No. 8 (SJI8), regarding the Sossikians’ liability after an assignment. Without objection by Ennis-Cooke, the jury was told: “An assignment does not release the original tenant’s obligations even though the landlord consents to an assignment. Nor does the assignee’s assumption of the obligations under the lease affect the liability of the tenant to the landlord. The original tenant remains responsible under the lease despite an assignment.” The Ennis/Cooke group argues that SJI8 is “a misstatement of the law applicable to the facts of this case,” which warrants reversal. We disagree.
SJI8 correctly states the general rule that when a lease is assigned, the tenant remains bound by the original terms of the lease. (Meredith v. Dardarian (1978) 83 Cal.App.3d 248, 254-255.) The instruction was responsive to the evidence submitted by plaintiffs that despite an assignment of the lease to Alphaco, if there was a failure to perform or pay rent, the Sossikians would remain liable to the owners under the lease and its addenda through 2028. The Ennis/Cooke group’s reliance on other evidence indicating the Sossikians sought to limit their liability after the assignment is misplaced because the jury was free to accept plaintiffs’ evidence supporting the position that they would remain liable under the lease even after the assignment.
The Ennis/Cooke group’s real challenge to SJI8 is not that the instruction is an incorrect statement of law but that it fails to address their argument that their signing of the 7th Addendum would have relieved the Sossikians of liability under the lease because the 7th Addendum contained significant changes to the lease. However, it was the Ennis/Cooke group’s obligation to request an appropriate instruction clarifying or modifying the otherwise correct statement of the law. In their reply brief, the Ennis/Cooke group argues that “under Code of Civil Procedure section 647, the giving of an instruction is ‘deemed excepted to’ and can be asserted as error on appeal without the necessity of a timely objection at trial.” However, notwithstanding Code of Civil Procedure section 647, “[w]here... ‘the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.’ ” (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 520.) In the absence of an objection to SJI8, or a request for a clarifying or modifying instruction, the Ennis/Cooke group has forfeited the right to appellate review of this issue.
II. Geneva’s Standing to Enforce The Written Lease
The Ennis/Cooke group presents several arguments in support of their claim that Geneva lacked standing to recover damages on the ground that it was not a named party in the written lease agreement or its addenda. We conclude none of the arguments requires reversal.
We reject initially the Ennis/Cooke group’s argument that the “sudden addition of Geneva Chevron Partners as a plaintiff at the start of the trial was contested,” as was the notion that Geneva was somehow a party to the written lease. The Ennis/Cooke group does not cite to any portion of the record that supports its argument. Our review of the record indicates that on July 23, 2007, before the jury began its deliberations, the Ennis/Cooke group’s counsel “put on the record” that they had previously moved for judgment on the pleadings, challenging the Sossikians’ right as individuals to recover damages for the loss of the sale of the business. In denying the motion for judgment on the pleadings, the court ruled that the motion did not lie because a request for damages was not a separate cause of action subject to dismissal. The court, however, ruled that damages for the loss of the sale of the business could be recovered only by Geneva, the owner of the business, and not the Sossikians, as individuals, and the jury was so instructed without objection by the Ennis/Cooke group. Contrary to the Ennis/Cooke group’s contention, their challenge to the Sossikians’ ability to recover damages for the loss of the sale of the business did not put at issue Geneva’s standing to enforce the written lease agreement.
We also reject the Ennis/Cooke group’s argument that they can challenge on appeal plaintiffs’ reliance on an implied-in-fact contract theory as a question of law that can be decided on undisputed facts. A reviewing court may decline to exercise its discretion whether to consider a new theory raising a question of law. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316-1317.) “ ‘[I]f the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal. [Citations.]’ [Citation.]” (Adelson v. Hertz Rent-A-Car (1982) 133 Cal.App.3d 221, 225-226.) Related to this doctrine “is the doctrine of theory of trial: ‘Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal.’ [Citation.]” (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1118.)
At the request of plaintiffs and without objection by the Ennis/Cooke group, the trial court instructed the jury on Geneva’s right to recover damages as follows: “Even though it is not a named party to the written lease agreement, Plaintiff Geneva Chevron Partners contends that it has entered into a contract for the lease of the [Property] with [defendants]. [¶] In deciding whether a contract was created, you should consider the conduct and relationship of the parties to the contract as well as all the circumstances of the case. [¶] Contracts can be created by the conduct of the parties to the contract, without spoken or written words. Contracts created by conduct are just as valid as contracts formed with words. [¶] Conduct will create a contract if the conduct of both parties is intentional and each knows, or has reason to know, that the other party will interpret the conduct as an agreement to enter into a contract.” “Plaintiff Geneva Chevron Partners is not named as a party in the Lease. It is not necessary for Geneva Chevron Partners to be named in the Lease in order to collect damages in this case. In order to determine if Geneva Chevron Partners may collect damages under a contract you must consider whether Geneva Chevron Partners and the owners of the property formed a landlord-tenant relationship through their conduct.”
Even assuming the issue was properly before us, we are not persuaded by the Ennis/Cooke group’s challenge to plaintiffs’ reliance on an implied-in-fact contract theory. Relying on Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, 613, and Falkowski v. Imation Corp. (2005) 132 Cal.App.4th 499, 517-518, the Ennis/Cooke group argue that the implied-in-fact contract theory espoused by Geneva fails because it violates the basic black letter law that “ ‘[t]here cannot be a valid express contract and an implied contract, each embracing the same subject matter, existing at the same time. [Citations.]’ ” The Ennis/Cooke group, however, misstate the law regarding express and implied contracts. The rule of law is: “ ‘ “There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results.” [Citation.]’ [Citations.]” (Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 806; italics added.) At trial, both the Sossikians and Geneva sought enforcement of the written lease provision requiring the lessors to not unreasonably refuse to consent to an assignment of the lease. There was no attempt to enforce both an express and implied contract that would require the jury to reach different results on the breach of contract claim.
Additionally, we reject the Ennis/Cooke group’s argument, raised for the first time on appeal, that the anti-assignment clause of the written lease prohibits Geneva from seeking to enforce the written lease as a matter of law. To the extent the matter was raised at trial, the record shows that even after Geneva commenced operating the business, the Sossikians, the named lessees, remained individually liable to perform all the obligations under the lease. “It has generally been held that when there is a technical change of ownership of the lessee or the legal form of its business which does not affect the rights of the landlord, there is no violation of an antiassignment clause.” (Airport Plaza, Inc. v. Blanchard (1987) 188 Cal.App.3d 1594, 1602; see R-Ranch Markets #2, Inc. v. Old Stone Bank (1993) 16 Cal.App.4th 1323, 1330; see also Trubowitch v. Riverbank Canning Co. (1947) 30 Cal.2d 335, 344-345 [“It is established... that a covenant against assignment in a lease is not broken by changes in the firm of the lessee incident to the admission of a new partner or the withdrawal of an old partner or by the dissolution of a partnership and transfer of the rights under the lease with all other assets of the partnership to one of the partners [citations];... and that if an assignment results merely from a change in the legal form of ownership of a business, its validity depends upon whether it affects the interests of the parties protected by the nonassignability of the contract”].)
Contrary to the Ennis/Cooke group’s contention, whether the anti-assignment clause precludes a nonsignatory, such as Geneva, from enforcing the written lease entered into by its agent, “definitely contemplates a factual situation, the consequences of which are open to controversy. A clear question of fact exists as to what was intended by this agreement.” (Adelson v. Hertz Rent-A-Car, supra, 133 Cal.App.3d at p. 226.) The Ennis/Cooke group does not cite to any evidence establishing, as a matter of law, that their rights were or would be adversely affected by the addition of Geneva as a party to the written lease. At no time did the Ennis/Cooke group seek a ruling either from the court or the jury that Geneva lacked standing to enforce the written lease because of the anti-assignment clause, and nothing precluded the Ennis/Cooke group from requesting such a ruling. Having failed to request the ruling, the Ennis/Cooke group have forfeited their right to raise the issue of Geneva’s standing based on the anti-assignment clause, and no exception to the forfeiture rule applies.
III. Award of Damages to Geneva.
Geneva raises several challenges to the jury’s award of damages in its favor, none of which is meritorious.
Geneva sought to recover $1,171,733 in damages on its breach of contract claim, calculated as follows: (1) $800,000, representing the loss of the sale of the business (the difference between the contract price of $1.2 million, and $400,000, the fair market value of the gas station business, as testified to by its expert witness Eric Risberg); and (2) $371,733, representing the principal amounts of loans, together with interest, which moneys were used to pay the expenses of the business after the breach of the contract and through the first day of the trial.
Over the objection of the Ennis/Cooke group, the court qualified plaintiffs’ expert Eric Risberg, a real estate broker and certified general appraiser, as an expert in the area of the appraisal of the fair market value of the gas station. Risberg testified that at the approximate time of the breach, the fair market value of the gas station was $400,000; he claimed that his testimony at his deposition of a valuation of $200,000 to $300,000 was based upon a mathematical error that had been discovered by the Ennis/Cooke group’s expert. Risberg also testified regarding the information that he used to value the business, and why he had not considered certain criticisms made by the opposing expert in valuing the business.
The Ennis/Cooke group’s expert Mark Newton, a certified public accountant, was qualified as an expert in “business valuation.” After reviewing the documents in Risberg’s files and Risberg’s deposition testimony, Newton concluded he would not be able to reach any conclusion as to the value of the gas station based on that information. Newton also concluded Risberg could not have appropriately reached his conclusion as to the value of the business. According to Newton, there was insufficient information in Risberg’s deposition that would allow Newton to reach a conclusion as to the value of the business. Newton explained what type of information he would need to value the business that was not in Risberg’s file and was not referenced in Risberg’s deposition. According to Newton, a market analysis should be based on actual sales of comparable properties, and Risberg’s analysis was based on “just five comparable properties,” and the use of the prices that the properties were listed for sale. Newton specified some places where experts could obtain actual sales data, and opined that Risberg had indicated some sort of a general analysis in his deposition testimony but nothing from a purely objective or statistical approach, and there were no statistical analyses in Risberg’s documents. In addressing the large drop in value of the gas station from October 2005 through March 2006, the witness opined that Risberg had relied upon articles about the business, but as a business valuation expert, Newton would not have relied upon those articles by themselves. On cross-examination, Newton testified he had not previously valued a gas station, that he did not value the Sossikians’ business, and he did not know whether Risberg’s valuation would have been different if Risberg had revalued the business taking Newton’s suggestions into consideration.
The jury was instructed, in relevant part, that: “To recover damages for any harm, [plaintiffs] must prove: [¶] 1. That the harm was likely to arise in the ordinary course of events from the breach of the contract; or [¶] 2. That when the contract was made, both parties could have reasonably foreseen the harm as the probable result of the breach.” The jury was also told that plaintiffs had to “prove the amount of the damages suffered by them according to the following instructions. They do not have to prove the exact amount of damages. You must not speculate or guess in awarding damages;” “Damages must be certain. If you decide that any Defendant breached a contract and the Plaintiffs are entitled to damages, you may not award damages for a breach of contract if the claimed damages are not clearly ascertainable in both their nature and origin;” and “Damages for breach of contract should, insofar as possible, place plaintiffs in the same position they would have been in had the contract been performed.”
As to Geneva’s claimed damages, the jury was instructed in Special Jury Instruction No. 15 (SJI15): “Geneva Chevron Partners claims damages for the loss of the sale of the gas station to Alphaco, Inc., and for the money that it claims that it had to borrow to cover business expenses after the sale of the business fell through.” In Special Instruction No. 17 (SJI17), the jury was instructed, in pertinent part: “If you determine that Geneva Chevron Partners is entitled to damages for the loss of the sale of the gas station, those damages are calculated by taking the difference between the contract price of $1,200,000 and what you determine was the fair market value of the gas station business at the time Defendants... breached the contract.” In the verdict form, the jurors were not asked to identify separate classes of damages.
In support of its post judgment motions for partial JNOV or a partial new trial on damages, Geneva submitted declarations from several jurors indicating that ten jurors agreed Geneva was entitled to recover as damages the sum of $43,184.20, which represented the amount of rent the jurors believed plaintiffs had paid to the Ennis/Cooke group for a period of seven months in 2006 and nine months in 2007. One of the jurors prepared a written note explaining how they calculated the damages.
In denying Geneva’s motions, the trial court stated, in pertinent part: “The jury received evidence from Mr. Newton that Mr. Risberg’s opinion was not credible. [¶] Considering the evidence in a light most favorable to Defendants, a reasonable inference could be drawn that the Risberg opinion was not credible and thus there was no credible evidence on the issue of the loss of value of the gas station on the date of breach.” “[T]he jury affidavits do not state that the jury refused to consider and obey Special Instruction No. 17. The jurors state only that they awarded Geneva damages based upon the amount of rent that Geneva was obligated to pay after the breach of contract. [¶] Nothing in the instructions prevented the jury from awarding such consequential damages. Nothing in the juror affidavits demonstrates that the jury rejected the court’s special instruction no. 17. A reasonable inference can be drawn that the jury simply did not find Plaintiff’s evidence of loss of value credible and thus determined that they had no evidence to support the loss of value claim. [¶] The jury clearly received evidence on the amount of rent paid by Geneva. Nothing in the record supports Plaintiffs’ contention that the verdict was against the law [citation]. As to the argument that the damages were inadequate [citation] the court has considered and reweighed all of the evidence and it cannot say that the jury clearly should have reached a different verdict. [Citation.]”
On appeal, Geneva renews its argument that the jury should have awarded it the sum of $800,000 for the loss of the sale of the business, contending that Risberg’s uncontradicted expert testimony provided the jury with the fair market value of the business at the time of the breach $400,000. However, Geneva ignores the fact that the jury was free to reject Risberg’s testimony even if uncontradicted. The testimony of an expert is only conclusive “to the extent that it may not be contradicted by the testimony of a nonexpert witness.” (Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 95.) Expert testimony “is not conclusive in the sense that it must be accepted as true.” (Id.) It “is really an argument of an expert to the [trier of fact], and is valuable only in regard to the proof of the facts and the validity of the reasons advanced for the conclusions. [Citation.] The weight to be given to the opinion of an expert depends on the reasons he [or she] assigns to support that opinion. [Citations.]” (People v. Martin (1948) 87 Cal.App.2d 581, 584.) Thus, even assuming Risberg’s testimony was not contradicted and not inherently improbable, the jury was not required to accept it.
Additionally, the jury could reasonably find that Risberg’s opinion testimony was called into question by the testimony of Newton, the Ennis/Cooke group’s expert. Given that Risberg’s opinion testimony was based, in part, on the information he produced at his disposition, the jury could consider Newton’s criticisms of that information. We are not persuaded by plaintiffs’ reliance on Newton’s testimony that he did not know whether a different valuation would have resulted if Risberg had revalued the business after considering Newton’s criticisms. The crux of Newton’s testimony was that no valid valuation could be formed if Risberg relied on the information revealed in his files and at his deposition; and Risberg did not testify he relied on other information not reflected in his files or his deposition testimony except for the one mathematical correction he made to his valuation after he read Newton’s deposition testimony. Although Risberg responded to Newton’s other criticisms at trial, the jury was free to reject the proffered explanations.
More importantly, any discussion of the jury’s consideration of Risberg’s testimony is misplaced. Even assuming that Risberg’s testimony was credited by the jurors, they were under no obligation to award damages for the loss of the sale of the business. Consistent with the court’s instructions, it was for the jury to determine if the requested damages were warranted and, if so, any amount to be awarded.
Geneva also argues it is entitled to a new trial on damages because the jury devised their own legally unsupported method for measuring damages based on the rent paid by Geneva to the Ennis/Cooke group between the time of the breach and the time of the trial. Geneva argues that the jury’s method ignored the law it was required to follow as set forth SJI17, which described how it was to calculate damages if it determined Geneva was entitled to recover damages for the loss of the sale of the gas station. We disagree.
Geneva’s argument is based on the incorrect premise that if the jury found there was a breach of the lease, it was required, as a matter of law, to award damages for the loss of the sale of the gas station. Although SJI17, was labeled “Measure of Damages for Unreasonable Refusal to Assign Lease,” the instruction merely told the jury how to compute damages for the loss of the sale if they determined Geneva was entitled to damages for the loss of the sale of the gas station. If the jury found such an award was not warranted, SJI17 was inapplicable and did not have to be considered by the jury. The jurors’ declarations do not mention SJI17 or the evidence submitted on the loss of sale damages issue. Nor do the jurors assert they determined Geneva was entitled to recover for the loss of the sale of the business but they decided to disregard SJI17 in calculating the damages for that loss. In the absence of any indication to the contrary, it appears the jurors determined Geneva was not entitled to recover damages for the loss of the sale of the business. Having made such determination, the jury was free to look to the court’s other instructions in determining the amount of damages to be awarded for the breach of the lease. There was nothing in the instructions that precluded the jury from awarding a portion of the rent paid from the date of the breach until the month of trial as damages for the unreasonable refusal to consent to the assignment. The jurors were told they could award as damages the moneys the partners had to borrow to pay business expenses from the breach until the trial. The only evidence admitted at trial of the actual amounts of those business expenses were the monthly rent checks paid by plaintiffs from the breach until the trial. Thus, plaintiffs’ challenge based on SJI17 fails.
Plaintiffs also argue that assuming the jury’s award of damages as reimbursement of rent paid to the Ennis/Cooke group was proper, the judgment should be amended to provide that plaintiffs are required to pay only a prorated percentage of the rent to the three owners who had consented to the assignment and only for the remainder of their tenancy. Plaintiffs note they requested the court to so amend the judgment, but the court refused to do so, and they ask this court to correct what they perceive to be an error. However, plaintiffs did not seek to recover for future damages that might accrue after the trial. Plaintiffs cite no authority, and we have found none, that supports their argument that the judgment may now be modified to provide for future damages based on jurors’ post-trial declarations as to how damages were computed, which future damages are not reflected in the lump sum general verdict for damages. Consequently, we deny plaintiffs’ request to modify the damages awarded by the jury.
We conclude our discussion by noting that “[i]t is the rule that an appellate court has no power to interfere with the jury’s verdict awarding damages except when the facts before it suggest passion, prejudice or corruption, or where the uncontradicted evidence demonstrates that the award is insufficient as a matter of law [citation].... ‘An appellate court is authorized to disturb a judgment on the ground of inadequacy of damages only where the amount of the award is supported by no substantial evidence in the record and the verdict is a clear abuse of the jury’s discretion.’ Moreover, when the trial judge denied plaintiff's motion for a new trial [s]he stated that [s]he had evaluated the evidence and concluded that the damages awarded by the jury were not inadequate. It is also the rule that a trial court’s order denying a new trial on the ground of insufficiency of the evidence will not be disturbed on appeal in the absence of an abuse of discretion [citations].” (Sherwood v. Rossini (1968) 264 Cal.App.2d 926, 931-932.) We see no abuse of discretion in this case.
IV. Jury’s Failure to Award Damages to Sossikians
The Sossikians argue that the judgment should be reversed with instructions to the trial court to enter damages for them in the amount of $32,427.23, or in the alternative, a new trial should be granted because the evidence was undisputed and conclusively established that the Ennis/Cooke group’s refusal to assign the lease caused the Sossikians to lose the aforenoted sum, which represented the interest they would have earned on the purchase money loans to be made to Alphaco. They argue that at the time the lease was entered into between the parties, it was foreseeable that at some point the gas station could be sold, and that because the sale price would be substantial, the sellers would offer financing to a prospective buyer. We conclude that the Sossikians’ arguments are unavailing. As explained by the trial court in denying the Sossikians’ motions for JNOV and a new trial, whether it was foreseeable there would be seller financing for any prospective purchase of the gas station business was a question to be resolved by the jury, and not to be decided as a matter of law.
We also reject the Sossikians’ argument that because the jury found that the Ennis/Cooke group breached their obligations under the lease, at a minimum the judgment should be reversed with a direction to the trial court to enter judgment for an award of nominal damages. The Sossikians did not seek nominal damages in the jury instructions or the verdict form, nor did they seek such relief after the verdict or in any of their post judgment motions. Consequently, they cannot be heard to complain that either the jury failed to award such damages (see Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131), or the court failed to grant such relief (see In re Cheryl E. (1984) 161 Cal.App.3d 587, 603).
“[T]he general rule is that the failure to award nominal damages is not alone ground for reversal of a judgment or for a new trial [citations]....” (Sweet v. Johnson (1959) 169 Cal.App.2d 630, 633.) The Sossikians rely on an exception to the general rule, arguing that reversal is warranted because a judgment for nominal damages would entitle them to costs as a matter of right. We disagree. A “[p]revailing party,” which includes the party with a net monetary recovery, is as a matter of right entitled to recover costs in any action “except as otherwise expressly provided by statute.” (Code Civ. Proc., § 1032, subd. (a)(4), (b); italics added.) One statutory exception to a prevailing party’s right to recover costs is expressly provided in Code of Civil Procedure section 1033. That statute allows a trial court in its discretion to deny costs when a prevailing plaintiff recovers a judgment in an unlimited civil case that could have been rendered in a limited civil case, such as a judgment for nominal damages for breach of contract. (Code Civ. Proc., § 1033, subd. (a); see Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, 330-331; Haworth v. Lira (1991) 232 Cal.App.3d 1362, 1371; Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406; Sweet v. Johnson, supra, 169 Cal.App.2d at p. 634.) The cases cited by plaintiffs in their reply brief (Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139, 1151, disapproved on other grounds in Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 775-776, fn. 6; Michell v. Olick (1996) 49 Cal.App.4th 1194, 1199), do not discuss Code of Civil Procedure section 1033, are factually distinguishable, and do not warrant remanding the matter for the entry of an award of nominal damages in favor of the Sossikians.
Code of Civil Procedure, section 1033, subdivision (a), reads, in pertinent part: “Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case... where the prevailing party recovers a judgment that could have been rendered in a limited civil case.”
V. Award of Attorney Fees to Geneva
Geneva was awarded the sum of $142,690.75 as attorney fees after the court found that the jury had determined Geneva was a party to the written lease, and therefore, Geneva was entitled to recover attorney fees under the lease. In computing the fee, the court applied the lodestar method, concluding that with some minor exceptions, plaintiffs’ total request for fees in the sum of about $240,000 was reasonable. Because Geneva and the Sossikians were prevailing parties on the declaratory relief cause of action, the court awarded the sum of approximately $44,700, which represented all fees incurred on that cause of action until November 27, 2006, the date when the complaint was amended to include the breach of contract cause of action. However, the court limited the award of fees for the period after November 27, 2006, to the sum of $97,930.75, which represented one-half of the fees incurred after that date, to reflect that only Geneva, and not the Sossikians, prevailed on the breach of contract cause of action. The court then concluded that the total award of $142,690.75, was reasonable given the amount of work involved in the case, the significant time spent on the declaratory relief cause of action, and the award remaining, excluding the fees awarded for the declaratory relief cause of action before November 27, 2006, represented about twice the damages actually recovered by Geneva. In a later order filed June 2, 2008, the court ruled that it had not apportioned fees between the causes of action on which Geneva prevailed because there was no request to do so in Geneva’s moving papers or at the hearing on the matter.
Both Geneva and the Ennis/Cooke group challenge the court’s award of attorney fees to Geneva. We conclude that none of their contentions is meritorious.
We disagree with the Ennis/Cooke group’s argument that Geneva is not entitled to attorney fees as a prevailing party under the written lease because Geneva was not a party to the written lease. “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).) “California courts ‘liberally construe “on a contract” to extend to any action “[a]s long as an action ‘involves’ a contract and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit....” [Citation]’ [Citations.]” (California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 605 [appellate court awarded contractual attorney fees against nonsignatory plaintiff who did not mention contract in complaint].) “[I]n cases involving nonsignatories to a contract with an attorney fee provision,... [a] party is entitled to recover its attorney fees pursuant to a contractual provision only when the party would have been liable for the fees of the opposing party if the opposing party had prevailed.” (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 382.) Although Geneva relied upon an implied-in-fact contract theory, the court appropriately determined that the jury found Geneva was a party to the written lease. As commented by the court, “in parsing the verdict form that, in fact, the jury did decide that Geneva Chevron Partners was a party to this lease. And... paragraph three of the jury verdict form, did Christopher Ennis and the other [defendants] unreasonably refuse to consent to the assignment of the lease, to which the jury answered yes, could only pertain to the written lease.” As a party to the lease, Geneva would have been liable to pay costs and attorney fees to the Ennis/Cooke group if it was not successful in proving the Ennis/Cooke group had breached the lease. (See Steve Schmidt & Co. v. Berry (1986) 183 Cal.App.3d 1299, 1315-1317.) Therefore, as the prevailing party, Geneva was entitled to an award of reasonable attorney fees against the Ennis/Cooke group. Also, because we are affirming the amended judgment in favor of Geneva, the Ennis/Cooke group’s alternative argument that the attorney fee award should be reversed if the amended judgment is reversed is moot.
We also disagree with Geneva’s argument that the trial court abused its discretion when it awarded Geneva only half of the attorney’s fees incurred after November 27, 2006, rather than apportioning the fees in relation to the minimal amount of time purportedly spent on the issues on which the Sossikians lost. In determining that Geneva was entitled to an award of only half of the fees incurred after November 27, 2006, the court commented that regardless of the plaintiffs’ confidential arrangement for the payment of fees, it was reasonable to presume that Geneva was responsible for one-half of the fees, and that the Sossikians, as a couple, were responsible for the other half. Because the Sossikians had not prevailed on their breach of contract claim, the court determined that if the fees were not cut in half, the Sossikians would essentially be getting “a free ride.” The court wanted its award to clearly reflect that the Ennis/Cooke group members were not “paying” for the Sossikians’ fees, and that to award Geneva more than one-half of the fees would raise the appearance that a party who came in at the eleventh hour was able to recover fees for work that was done when it was not a party to the litigation. Contrary to Geneva’s contention, the trial court was not required to accept its counsel’s allocation of $2,750 (10 hours at $275/hour) as the amount of fees to be attributed to the Sossikians’ breach of contract claim and the amount to be deducted from any award to Geneva. Even after the reduction, the court’s award of fees for work incurred after November 27, 2006, was more than twice the amount Geneva recovered in damages. On this record, we cannot conclude that the court abused its discretion or otherwise rendered an award that was unreasonable or inadequate.
DISPOSITION
The amended judgment, the orders denying the motions for judgment notwithstanding the verdict and partial judgment notwithstanding the verdict, and the order awarding attorney fees to Geneva are affirmed. Plaintiffs’ appeal from a post judgment order denying their motion to vacate or modify the judgment, and their separate appeal from the order denying their motion for a partial new trial, are dismissed.
In A119693 and A119694, the appeals by defendants Angela G. Ennis, Timothy John Ennis, and Vicki Ann Le Mieux are dismissed. In A122748, the appeals by defendants Timothy John Ennis and Vicki Ann Le Mieux are dismissed.
The parties shall bear their own costs on these appeals.
We concur: Siggins, J., Jenkins, J.