Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 03CC00179 of Orange County, Stephen J. Sundvold, Judge.
Mazda Butler, Mark N. Mazda and Mark J. Butler for Plaintiff and Appellant.
Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, Terry W. Bird, Ekwan E. Rhow, Sharon Ben-Shahar and Thomas R. Freeman for Defendants and Respondents.
OPINION
RYLAARSDAM, ACTING P. J.
As set out in the opinion in the related case (V3I v. Western Digital Corporation (Sept. 29, 2010, G040832) [nonpub. opn.]), which we file concurrently, we affirm a judgment in favor of defendants Western Digital Corporation, Keen Personal Media, Inc., Russell M. Krapf, and Frank Paulson. In this case plaintiff V3I appeals from attorney fees and certain costs awarded to defendants. It claims the motion for fees was untimely, Keen incurred no fees, and the award to Western is too high. It also asserts the court abused its discretion in awarding expert witness fees. We are not persuaded by any of these arguments and affirm the judgment. Defendants filed a motion to consolidate the two appeals, which we deny.
FACTS AND PROCEDURAL HISTORY
The substantive facts underlying this action are set out in the opinion in G040832 and we incorporate them by reference to the extent relevant. We set out only additional information relevant to the issues in this opinion.
Judgment in defendants’ favor was entered in June 2008, including that defendants were entitled to costs, although no amount was included. Plaintiff filed a motion for new trial and two JNOV motions, which were denied. Plaintiff filed its first appeal. The judgment was amended in September to award almost $289,000 in costs to defendants and in November to award them almost $1.6 million in attorney fees. Plaintiff then filed the current appeal from the award of fees and costs.
DISCUSSION
1. Timeliness of Attorney Fee Motion
Relying on the date notice of entry of judgment was served, June 18, plaintiff contends the motion for attorney fees was untimely because not filed until August 18, 61 days thereafter. (Cal. Rules of Court, 3.1702(b)(1) [unless time extended motion must be filed within normal time for filing notice of appeal].) This is incorrect for several reasons, including that the 60th day, August 17, fell on a Sunday, thereby extending the time to file the motion. (Cal. Rules of Court, rule 1.10(b) [time to file motion if due date falls on Sunday]; Code Civ. Proc., §12a, subd. (a).) We need not discuss the other reasons why this argument fails, including that plaintiff failed to assert this in the trial court, thereby waiving it. (In re Marriage of King (2000) 80 Cal.App.4th 92, 117.)
2. Keen’s Attorney Fees
Plaintiff claims that because Keen was defunct before the lawsuit was even filed, it never incurred or paid attorney fees and therefore is not entitled to recover any. This argument has no merit.
Exhibit 24 provides that in an action to enforce its terms, the prevailing party is entitled to recover reasonable attorney fees. Civil Code section 1717, subdivision (a) states that where a contract contains such a provision, the party who is determined to be prevailing is entitled to such fees. The section says nothing about payment of fees. It requires only that fees be “incurred.” (Ibid.) “‘[I]ncur’” means “to ‘become liable’ for.” (Trope v. Katz (1995) 11 Cal.4th 274, 280.)
As set out in defendants’ attorney fee motion, for the duration of the action Keen was represented by its lawyers, who billed over $1.6 million. Thus, attorney fees were incurred by Keen. The fact Keen had no money to pay its lawyers does not bar the award of fees. “‘[A]ttorney fees are incurred by a litigant “if they are incurred in [its] behalf, even though [it] does not pay them.”’ [Citation.]” (Lolley v. Campbell (2002) 28 Cal.4th 367, 373.) And plaintiff acknowledges that Keen would otherwise be entitled to fees under Civil Code section 1717.
3. Western’s Attorney Fees
Plaintiff challenges the award of attorney fees to Western, claiming that the only basis of the award is the oral contract that incorporated the attorney fees provisions of Exhibit 24 and Western was only added to that cause of action after completion of virtually all testimony when plaintiff made a motion to amend to conform to proof. Therefore, plaintiff continues, Western may recover only fees incurred from that day forward and because Western did not segregate out fees for that time period it cannot recover at all.
As defendants explain, however, attorney fees for services performed before a complaint is filed may be recovered if they were reasonably necessary to defend against the action. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 654-656 [fees proper for services necessarily rendered on previously dismissed cases]; see also La Mesa-Spring Valley School Dist. v. Otsuka (1962) 57 Cal.2d 309, 317 [in context of former Code Civ. Proc., § 1255a “no sound reason why the trial court should exclude these prior services in determining a reasonable fee.... It would be ridiculous to require the attorney to repeat formally all of this work after the complaint is filed...”].)
Here, as discussed below, the various causes of action litigated in the action were so intertwined as to make it difficult if not impossible to segregate the work done on each. Thus the time spent preparing to defend against the other causes of action ultimately proved necessary to defend against the breach of oral contract claim. Moreover, as defendants point out, had it not been prepared, when plaintiff made its last minute motion to amend to conform to proof, defendants would have asked to suspend the trial to reopen discovery. Alternatively they could have opposed the motion on the basis of insufficient time to defend. The court did not err in awarding fees for attorney services rendered before the motion to amend to add Western to the breach of oral contract cause of action.
4. Segregation of Fees
Plaintiff also contests the award of attorney fees on the ground that defendants could recover them only pursuant to Exhibit 24 and not any of the other eight causes of action litigated because none provided for any award of fees. It claims much of the time the lawyers expended was on the noncontract issues and thus fees for those matters should have been segregated out and excluded from the award. We are not persuaded.
“‘“Attorneys fees need not be apportioned between distinct causes of action where plaintiff’s various claims involve a common core of facts or are based on related legal theories.” [Citation.] Apportionment is not required when the issues in the fee and nonfee claims are so inextricably intertwined that it would be impractical or impossible to separate the attorney’s time into compensable and noncompensable units.’ [Citation.]” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 417, fn. omitted.)
Here, although based on different legal theories, all of plaintiff’s claims were interrelated. As described in the companion opinion, the four causes of action that remained when trial began were for securities and common law fraud, breach of the Western agreement, and breach of the partly written, partly oral agreement comprised of the Exhibit 24 agreement between plaintiff and Keen and Keen’s alleged oral promises. There were four other counts against some or all of the defendants who are parties to this appeal: promissory estoppel based on the alleged oral promises; rescission of Exhibit 24 and the amendment to the Western agreement; and breach of the covenant of good faith and fair dealing regarding the Series B stock.
All of the causes of action, with the possible exception of the breach of the Western contract counts, directly arose out of the oral contract based on Exhibit 24 and the two alleged oral promises and the June 30 letter informing plaintiff of the conversion of receivables into Keen stock. The two causes of action based on the Western contract were tied to the others by virtue of the controversy over the validity of the amendment to that contract, allegedly executed at the same time and under the same circumstances as Exhibit 24. The record shows it was reasonable for the court to find all of the claims were so intertwined as to make it impossible to separate them for purposes of determining the amount attorney fees and thus it did not abuse its discretion in making the award. (PM Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55, 68-69.)
5. Expert Witness Costs
Plaintiff also takes exception to the almost $164,000 in costs awarded for defendants’ expert witness fees for two reasons: none of the witnesses testified and the amounts were not reasonable. These arguments are not well taken.
Defendants were entitled to recover costs pursuant to Code of Civil Procedure section 998 because plaintiff rejected a May 2004 offer by defendants to settle by paying it $200,000. As a result plaintiff was required to pay defendants’ costs, which in the court’s discretion, could include “costs of the services of expert witnesses, ... actually incurred and reasonably necessary in either, or both, preparation for trial or... during trial... of the case by the defendant[s].” (Code Civ. Proc., § 998, subd. (c)(1), italics added.) Thus, the statute itself provides expert witness fees may be recovered whether or not the witness testifies.
The court has broad discretion in determining the reasonable amount of expert witness fees. (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 605.) Defendants set out ample evidence, both in their opposition to plaintiff’s motion to tax costs and in their brief, of the necessity for each of their three experts, the work undertaken, and their billing statements. The topics covered by the experts were stock valuation, specifically the value of the Series B-1 stock about which plaintiff had alleged the price was fraudulent, the conditions of the capital market during Keen’s startup period, to prove why Keen failed, and damages, to rebut plaintiff’s claimed amount.
Plaintiff failed to rebut that evidence, its argument on this issue comprised of only one page. It argues that the fees were “beyond the pale.” In contrast to the detailed explanation of the work of the experts provided by defendants, as to two of the three witnesses plaintiff cursorily pans their efforts, as to one stating he merely thought “about a topic for 5-10 minutes and stat[ed] an opinion” and as to another claims he “review[ed] some Keen financial documents and [came] up with some opinions.” This is not sufficient to demonstrate the court abused its discretion in calculating the proper amount of the award.
DISPOSITION
The motion to consolidate this appeal with G040832 is denied. The judgment is affirmed. Respondents are entitled to attorney fees and costs on appeal.
WE CONCUR: MOORE, J., ARONSON, J.