Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC253376, Joseph Kalin, Judge. Modified and affirmed.
Nick A. Alden for Plaintiff and Appellant.
Wesierski & Zurek, Ronald Zurek and Paul J. Lip man for Defendants and Respondents.
EPSTEIN, P. J.
Dolores Vinci appeals from judgment against her in this action for trespass against her former landlords. She also challenges the award of fees and costs. We modify the award of attorney fees and affirm the judgment as modified.
FACTUAL AND PROCEDURAL SUMMARY
We take our factual statement in part from our earlier decision in case No. B178573, filed October 12, 2005.
Appellant rented an apartment in the City of Los Angeles from respondents Robert and Sharlene Pollyea, beginning in October 1996. The lease provided that “[a]fter expiration of the lease period, this AGREEMENT is automatically renewed from month-to-month but may be terminated by either party giving to the other a thirty (30) day written notice of intention to terminate.”
At the time she leased the apartment, appellant operated a store where she sold candles and body products. After the roof of her store collapsed, appellant asked respondents if she could keep some merchandise in the apartment temporarily while she tried to relocate the store. Respondents gave her permission to do so. This was in July 1998.
In February 2001, respondents served appellant with a 20-day notice to perform or quit, stating that appellant’s use of the apartment to operate her business violated her rental agreement, which was for residential use only. The notice demanded that appellant remove the stored merchandise from the premises and restore it to residential use. In subsequent correspondence, respondents informed appellant that upon the expiration of her lease, respondents would change the terms of the tenancy to expressly prohibit use of the premises for any purpose other than a residence. They served her with a 30-day notice with these changed terms on June 1, 2001.
On June 29, appellant brought suit against respondents, alleging various causes of action arising from respondents’ actions in seeking to evict her from the apartment (L.A. Super. Ct. No. BC253376, Vinci I).
On July 2, 2001, respondents served appellant with a three-day notice to quit, demanding that she cease using the premises for business and that she remove the equipment, supplies and inventory (L.A. Super. Ct. No. 01U14877). Appellant answered, asserting as affirmative defenses retaliation, discrimination, and violation of the Los Angeles rent control ordinance. At the unlawful detainer trial, respondents introduced photographs of the inside of appellant’s apartment to prove that she was using the premises for business. On August 15, 2001, the court entered judgment for respondents and against appellant for possession of the premises. That judgment is final.
Two weeks later, appellant filed a first amended complaint in Vinci I, adding causes of action for trespass based on respondents’ entry into appellant’s apartment to photograph its contents, and for bad faith denial of contract. Respondents demurred on all causes of action except trespass. The court sustained the demurrer without leave to amend with respect to the contract causes of action, and overruled the demurrer on causes of action for housing discrimination and civil rights violation. Appellant later sought to add causes of action for breach of the covenant of good faith and fair dealing, wrongful eviction, violation of the rent stabilization ordinance, abuse of process, and negligent and intentional infliction of emotional distress. The court denied the motion as untimely and on the merits. On its own motion, the court reconsidered its order on demurrer, and sustained the demurrer to causes of action for discrimination and civil rights violation, without leave to amend. This left only the trespass action, which was transferred to a limited jurisdiction department.
Appellant filed a new action against respondents (L.A. Super. Ct. No. BC273858, Vinci II), asserting the same causes of action she had tried to add to her complaint in Vinci I. The trespass cause of action was consolidated into that case. The parties filed competing motions for summary judgment, which were denied. The case proceeded to trial, and the court entered judgment for respondents based on the litigation privilege defense.
Appellant appealed. In an unpublished decision in case No. B178573, we found no error in the court’s orders sustaining demurrers without leave to amend in Vinci I. We concluded that all causes of action in Vinci II other than trespass were barred, some by the litigation privilege, others by collateral estoppel based on the unlawful detainer judgment. We reversed the judgment solely as to the cause of action for trespass.
The case was remanded for trial. Respondents moved in limine to preclude appellant from presenting evidence of damages from the eviction, since the only cause of action being tried was trespass. The court granted the motion, limiting evidence of damages to the trespass itself and any emotional distress caused by the trespass. The jury found respondent Robert Pollyea had trespassed into appellant’s apartment, but found that the trespass caused her no actual harm and awarded her no damages. This is a timely appeal from the ensuing judgment
DISCUSSION
I
Appellant claims the trial court violated the law of the case doctrine by precluding her from presenting evidence of her economic damages. She misunderstands our decision in No. B178573, and hence the law of the case flowing from that decision. Our conclusion that the trespass cause of action was not barred by collateral estoppel or the litigation privilege does not mean appellant was entitled to re litigate issues finally decided in the unlawful detainer.
As we explained in No. B178573, the unlawful detainer action was based on appellant’s violation of the provision, added to her rental agreement effective July 1, 2001, that “THE PREMISES MUST BE USED AS A RESIDENCE ONLY. THE MAIL ORDER BUSINESS, STORAGE, BLENDING OF CUSTOM FRAGRANCES, AND DISPLAY OF MERCHANDISE IS A COMMERCIAL USE AND NOT A ‘HOME OCCUPATION.’ [¶] ALL EQUIPMENT, INVENTORY, SUPPLIES, AND DISPLAYS MUST BE REMOVED.” The court considered and rejected appellant’s affirmative defense that she had respondents’ permission to conduct a home business after July 1, 2001, and that respondents wrongfully evicted her in order to evade the Los Angeles Rent Stabilization Ordinance.
In our decision in No. B178573, we held that under the doctrine of collateral estoppel, the final judgment in that case precludes appellant from litigating these issues again, or from seeking damages resulting from the eviction. The doctrine of law of the case bars re litigation of the issue. (See Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.) Yet that is precisely what appellant sought to do. When asked in discovery what economic damages she claimed were caused by the trespass, appellant listed moving expenses, storage expenses, and loss of business income. Asked to state facts to support her claim that the trespass caused these damages, appellant stated: “But for Defendants’ trespass, rearrangement of the merchandise and taking distorted pictures, I would not have incurred those damages.”
These expenses all resulted from appellant having to move from the property after the unlawful detainer judgment; they did not result from the trespass. The photographs taken by respondent during his alleged trespass were introduced into evidence at the unlawful detainer trial, over the objection of appellant. The unlawful detainer judgment was not appealed, and the admission of evidence at the unlawful detainer trial cannot now become the vehicle to seek all damages resulting from that judgment. The unlawful detainer judgment finally decided that appellant’s lease prohibited her from conducting a business from her apartment, and that she violated that provision, resulting in judgment for possession of the apartment. The trial court properly limited appellant to presenting evidence of the damages from the trespass itself, not the damages from the eviction.
Appellant’s position is that during the trespass, respondent rearranged the merchandise in her apartment before taking the photographs so that the property looked like a warehouse, and that he took distorted pictures, zooming in on bottles to make them look larger than they are. Because of this conduct, she claims, she was evicted and suffered extensive economic damages, which she seeks to recover in this trespass action.
Even if we were to credit this assertion, we still find no error in the court’s exclusion of the photographs. There is no civil remedy in damages against a witness who commits perjury or presents false evidence in a separate action. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 9-10.) It is the concern for the finality of adjudication that provides the rationale for denying a tort remedy for the presentation of false evidence or the suppression of evidence. (Id. at p. 10.) Thus, even if respondent submitted misleading photographs in the unlawful detainer action, appellant cannot seek tort damages for that false evidence. That is precisely what she tried to do by asserting the harm she suffered from her eviction as damages in this trespass action.
Neither the validity of the unlawful detainer nor the damages flowing from it were at issue in this trespass action. The trial court properly limited appellant’s claim of damages to emotional distress she suffered from the time of the trespass to the time of the eviction. The photographs taken by respondent had virtually no probative value on that issue, since appellant did not know of their existence until the unlawful detainer trial. The court did not abuse its discretion in excluding the photographs or in precluding appellant from testifying about economic damages which were not recoverable in this action.
II
Appellant claims the court erred in denying her motion for a new trial because, after the jury found respondent had trespassed on her property, it failed to award even nominal damages. “It is true that an action for trespass will support an award of nominal damages where actual damages are not shown. (Allen v. McMillion (1978) 82 Cal.App.3d 211, 219.) However, nominal damages need not be awarded where no actual loss has occurred. (Fields v. Napa Milling Co. (1958) 164 Cal.App.2d 442, 448.) ‘Failure to return a verdict for nominal damages is not in general ground for reversing a judgment or granting a new trial.’ (Gray v. Southern Pacific Co. (1937) 21 Cal.App.2d 240, 247.)” (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) The jury in this case found no actual damages, and thus nominal damages were not required.
More importantly, appellant did not seek nominal damages in either the jury instructions or the verdict form. CACI No. 2000 addresses the requirements for a trespass claim, including the requirement that the plaintiff prove that he or she “was [actually] harmed;” and that defendant’s “[entry/conduct] was a substantial factor in causing [name of plaintiff]’s harm.” The directions for use explain: “If plaintiff is seeking nominal damages as an alternative to actual damages, insert the following paragraph about element 4: [¶] “If you find all of the above, then the law assumes that [name of plaintiff] has been harmed and [name of plaintiff] is entitled to a nominal sum such as one dollar. [Name of plaintiff] is entitled to additional damages if [name of plaintiff] proves the following:” The use note then addresses the portions of the instruction to be used if a plaintiff is seeking nominal damages only.
Appellant and respondent both requested Instruction No. 2000, based on CACI No. 2000, without provision for an award of nominal damages. (The verdict form also made no provision for nominal damages.) By requesting the instruction the court gave and not requesting additional instructions, appellant forfeited the right to argue on appeal that the jury was not properly instructed on the question of nominal damages. (Met calf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130.) Having failed to seek nominal damages by proposing complete and comprehensive instruction on the issue, appellant cannot be heard to complain that the jury failed to make that award. (Id. at pp. 1130-1131.)
Appellant also is unable to show prejudice from the failure to award nominal damages. A judgment is erroneous in failing to grant nominal damages “if nominal damages would carry costs or determine some question of permanent right.” (Staples v. Hoefke, supra, 189 Cal.App.3d at p. 1406.) “Where there is no absolute entitlement to costs, the failure to award nominal damages is not reversible error.” (Ibid.) As we shall explain, with or without an award of nominal damages, appellant was not entitled to an award of fees and costs. Thus the failure to award nominal damages was not prejudicial.
III
Paragraph 28 of the parties’ lease provides: “ATTORNEYS’ FEES. If any legal action or proceeding be brought by either party to this AGREEMENT, the prevailing party shall be reimbursed for all reasonable attorneys’ fees and costs in addition to other damages awarded.” Appellant claims respondents are not entitled to their attorneys’ fees because the only cause of action that went to trial was for trespass, which was not an action on the contract. But the fee provision in the lease is not limited to actions on the contract, it includes “any legal action or proceeding” brought by either party to the agreement. The trespass cause of action is included within the broad language of the provision. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 608; Xuereb v. Marcus & Milli chap, Inc. (1992) 3 Cal.App.4th 1338, 1341.)
This is also appellant’s interpretation of the fee provision; in her new trial motion, she argued that if she were awarded nominal damages for the trespass, she would be entitled to attorney’s fees and costs.
Appellant next claims respondents were not the prevailing parties because the jury found in her favor on her claim for trespass. In determining the prevailing party for purposes of the cost statutes, the court should consider the litigation objectives of the parties, and determine which party succeeded in achieving those objectives. (Santisas v. Goodin, supra, 17 Cal.4th at p. 609.) Appellant sought more than $1 million in damages on her cause of action for trespass. The jury found she suffered no damages as a result of the trespass. Even if she had been awarded nominal damages, she would not have achieved her litigation objective of a substantial monetary recovery.
Respondents sought to prevent appellant from obtaining relief in the litigation, and they succeeded. Ten of appellant’s 11 causes of action were dismissed before trial. The sole surviving cause of action for trespass was dismissed as to Sharlene Pollyea, and appellant was awarded nothing against Robert. Thus, she did not accomplish her litigation objective, and respondents succeeded in theirs. They are the prevailing parties for purposes of the cost statutes.
Respondents also were entitled to fees and costs pursuant to Code of Civil Procedure section 998, having made two statutory offers to compromise, one in March 2004 for $1,001, the other in February 2007 for waiver of costs or fees. Appellant failed to obtain a judgment more favorable than either offer.
Appellant claims respondents should not have been awarded costs and fees incurred in this court. She argues with respect to her petition for writ of mandate (No. B164452) she was entitled to costs because she was the prevailing party. As to the appeal from the judgment in No. B178573, she points out that we ordered the parties to bear their own costs on appeal. She also claims that even if respondents were entitled to fees and costs on that appeal, their motion was untimely because it was filed more than 40 days after the remittitur had issued. (See Cal. Rules of Court, rule 8.278.)
Appellant sought and obtained a writ of mandate reinstating an order granting a Code of Civil Procedure section 170.6 motion and reassigning the action to a different judge.
“In cases where Civil Code section 1717’s definition of ‘prevailing party’ applies, the identification of the party entitled to a fee award must be determined by the final result of the litigation, i.e., after conclusion of the appeal if an appeal is taken. [Citations.] [¶] Thus, for example, if a litigant successfully obtains reversal on appeal of an unfavorable summary judgment on a contract cause of action, he or she cannot collect an award of attorney fees under Civil Code section 1717 until the case has been remanded, tried on the merits and reviewed on appeal, if an appeal is taken, because the party ultimately prevailing on the cause of action cannot be known with certainty until the case is at an end. If the successful appellant loses on the merits after trial, he or she will not be entitled to section 1717 attorney fees for the appeal because he or she ultimately was not the prevailing party with respect to the contract cause of action.” (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 928.) Our order requiring each side to bear its own costs on appeal had no bearing on the entitlement to attorney fees under section 1717; based on the ultimate result in the action, respondents were the prevailing parties and were entitled to recover attorney fees, including the attorney fees in this court. (Ibid.)
As to the question of timeliness, rule 3.1702 of the California Rules of Court governs claims for statutory attorney fees and claims for attorney fees provided for by contract. Under subdivision (b), “A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court—including attorney’s fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108.” Judgment was entered on March 13, 2007, and respondents brought their motion for attorney fees on March 23, 2007. The motion was timely.
Appellant also argues that respondents’ attorney fees should have been based on the rate their insurance carrier actually paid, rather than the hourly rate stated in the motion for costs. She quotes Trope v. Katz (1995) 11 Cal.4th 274, 280: “To ‘incur’ a fee, of course, is to ‘become liable’ for it (Webster’s New Internat. Dict. (3d ed. 1961) p. 1146), i.e., to become obligated to pay it.” The court continued: “It follows that an attorney litigating in propria persona cannot be said to ‘incur’ compensation for his time and his lost business opportunities.” (Ibid.) But in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, the court explained that “[t]he question of how to measure attorney fees was not raised in Trope, which expressly involved only the ‘narrow issue’ whether pro se attorney litigants could recover attorney fees.” (22 Cal.4th at p. 1097.)
The Supreme Court directly addressed the question of how to measure fees for purposes of section 1717 in the PLCM case. The prevailing party in that case utilized in-house counsel, but the trial court based the award of fees on the number of hours expended by counsel, multiplied by the prevailing market rate for comparable legal services in the city where counsel was located (the lodestar approach). The appellant argued the fee should instead have been based on a precise calculation of the actual salary, costs, and overhead of in-house counsel (the cost-plus approach). The Supreme Court disagreed. The court noted that “the fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.’ [Citations.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) Even where the representation is by in-house counsel, a court may properly base an award on the number of hours expended multiplied by the prevailing market rate for comparable legal services in the area. (Id. at p. 1096.) “Requiring trial courts in all instances to determine reasonable attorney fees based on actual costs and overhead rather than an objective standard of reasonableness, i.e., the prevailing market value of comparable legal services, is neither appropriate nor practical; it ‘would be an unwarranted burden and bad public policy.’ (Shaffer v. Superior Court [(1995) 33 Cal.App.4th 993,] 1003.)” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1098.)
Just as in PLCM, the court in this case utilized the lodestar approach, The court was not required to base its fee award on the actual contract between the insurer and counsel, but could value the services based on the hours reasonably expended and the prevailing market rate for the services. We find no error in this method.
Appellant is, however, entitled to a reduction in the fees awarded for the period between January 2002 and August 2004, since fees for that period already had been determined by the court after judgment was entered in Vinci II. Respondents had asked for $90,225 in attorney fees, reflecting 328.2 hours of work at a rate of $275 per hour. This was for the period from January 9, 2002 to August 11, 2004. The court reduced the award to $44,179 (a reduction of $46,046). The reduction was within the court’s “broad authority to determine the amount of a reasonable fee.” (PLCM, supra, 22 Cal.4th at p. 1095; see Stern west Corp. v. Ash (1986) 183 Cal.App.3d 74, 77 [after the trial court has performed the lodestar calculations, it shall consider whether, under all the circumstances of the case, the amount calculated is more than a reasonable amount; if so, it shall reduce the section 1717 award to a reasonable figure].) Respondents did not challenge the reduced award in the appeal from that judgment.
After remand and trial, respondents sought fees for the period beginning January 9, 2002 through November 16, 2005 at the rate of $275 per hour, and from January 3, 2006 through March 14, 2007 at the rate of $300 per hour. The court awarded $157,940, the full amount of fees requested.
Appellant claims, and we agree, that to the extent the motion sought unreduced fees for the period of the original fee award in Vinci II, it is an untimely request for reconsideration, without any showing of new facts or law. (See Code Civ. Proc., § 1008.) Respondents assert that when a case is remanded, the question of attorney fees must await the ultimate judgment, at which point the trial court can determine the prevailing party and award reasonable fees. We agree that the question of prevailing party was not finally determined when we remanded the cause for trial. But there had been a determination of reasonable attorney fees for the services rendered to respondents up to the time of the judgment in Vinci II, based on an evaluation of the professional services and other circumstances in the case. “‘The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’—meaning that it abused its discretion. [Citations].)” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) That evaluation having been made, and the requested fees reduced by $46,046 for work during the period from January 9, 2002 to August 11, 2004, it was improper for the trial court to revisit that portion of the fee award after remand. The $157,940 in attorney fees must be reduced by $46,046, and the judgment modified to award respondents $111,894 in attorney fees.
IV
Appellant’s final claim is that the trial court erred in dismissing Sharlene Pollyea after opening statement. The only cause of action being tried was trespass, and appellant’s counsel stated no facts during opening statement and made no offer of proof to the court that Sharlene participated in the trespass, or was even present during the trespass. On this record, the court properly dismissed her from the action.
DISPOSITION
We direct the trial court to modify the judgment with respect to attorney fees, and we affirm the judgment as modified. Respondents to have their costs on appeal.
We concur: WILLHITE, J., MANELLA, J.