Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV078080
Mihara, J.
Plaintiffs Andre R. Walewski, Gregg von Thaden, Rick Knauf, and Junction/Dado Investors, LLC appeal from the trial court’s order awarding contractual attorney’s fees to defendants Houston Williams, Al Anzoategui, and Bobbi Ali after plaintiffs voluntarily dismissed their complaint without prejudice. Plaintiffs raise three issues on appeal: (1) Anzoategui’s and Ali’s joinder in Williams’s fee motion was procedurally improper and untimely; (2) the trial court erred in awarding prevailing party attorney’s fees pursuant to Code of Civil Procedure section 1021, given Civil Code section 1717, subdivision (b)(2)’s directive that there shall be no prevailing party when an action is voluntarily dismissed; and (3) the trial court improperly awarded Williams fees he had not incurred. We affirm the order.
I. Background
This dispute about attorney’s fees arises out of litigation over the sale of a commercial building that was the sole asset of a limited liability company. Five days before the sale closed, minority members of the company sued the managing members, alleging breach of contract and breach of statutory and common law fiduciary duties. The complaint prayed for imposition of a constructive trust on the sale proceeds, appointment of a receiver, an accounting, declaratory and injunctive relief, and damages.
Together with their complaint, plaintiffs filed ex parte applications for emergency prejudgment relief: issuance of an attachment, appointment of a receiver, and imposition of a temporary protective order prohibiting disbursement of the sale proceeds to defendants. The trial court issued the temporary protective order but dissolved it several weeks later after denying plaintiffs’ other applications. Some months after that, plaintiffs voluntarily dismissed their case without prejudice. The dismissal was entered in the clerk’s register on November 19, 2007.
The company’s operating agreement contained an attorneys’ fees provision stating that “[i]n the event that any dispute between the Company and the Members or among the Members should result in litigation or arbitration, the prevailing party in such dispute shall be entitled to recover from the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including without limitation, reasonable attorneys’ fees and expenses.” On January 18, 2008, Williams moved to recover his attorney’s fees pursuant to Code of Civil Procedure section 1032, subdivision (a)(4). On February 21, 2008, Anzoategui and Ali (collectively, Anzoategui) filed a joinder in Williams’s motion. At a hearing four days later, plaintiffs objected to the joinder and the trial court continued the hearing to permit further briefing.
The matter was heard and submitted on April 4, 2008. On April 8, 2008, the court entered its order granting the motions in part. The court found “that Defendants are the ‘prevailing parties’ in the ‘ordinary or popular sense’ as pr[e]scribed in Santisas v. Goodin (1998) 17 Cal.4th 599, 609.” The court ruled that the attorney’s fees provision relied upon “is broad enough to support this claim, non-contractual claims were at issue, Plaintiffs failed to achieve their goals, and Defendants achieved theirs. Coupled with the commonality of the issues presented, Defendants are entitled to their reasonable attorney’s fees and costs.” After deducting inappropriate charges, the court awarded $22,867 in fees and costs to Williams and $10,093.30 in fees and costs to Anzoategui. Plaintiffs filed a timely notice of appeal from the trial court’s order.
Anzoategui and Ali are not parties to this appeal.
II. Discussion
A. Anzoategui’s Joinder
Plaintiffs argue that the trial court erred in awarding $10,093.30 in attorney’s fees to Anzoategui because his February 21, 2008 joinder in Williams’s fees motion was procedurally improper and untimely. Citing Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1725 (Russell), they contend that Anzoategui should have served and filed a formal notice of motion and that he should have done so no later than “60 days after notice of entry of the dismissal, which was January 17, 2008.” We disagree.
Plaintiffs claim they opposed the joinder on two additional grounds: that Anzoategui was “not entitled to any legal fees [and] such fees had not been properly proven.” We reject those arguments for two reasons: because plaintiffs do not develop them further, and because the record does not support the claim that they were raised below. Arguments raised for the first time on appeal are generally deemed forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293 & fn. 2.)
1. The Noticed Motion Requirement
Ordinarily, contractual attorney’s fees must be sought by noticed motion. (Code Civ. Proc., § 1033.5, subd. (c)(5); Cal. Rules of Court, rule 3.1702; see Santisas v. Goodin (1998) 17 Cal.4th 599, 618 (Santisas).) But a joinder in another party’s motion will satisfy the noticed-motion requirement where the joinder specifies what relief the joining party seeks and presents admissible evidence to support that request. (See Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-661.) Here, Anzoategui’s joinder specified the relief sought and included supporting declarations substantiating the time worked on his behalf and the amount of fees incurred. His joinder was, in all respects except in name, a motion. We conclude that the joinder satisfied rule 3.1702’s noticed-motion requirement.
Unless otherwise noted, all further rule references are to the California Rules of Court.
Russell does not compel a different conclusion. There, the prevailing parties claimed contractual attorney’s fees in their memorandum of costs, without filing any motion. (Russell, supra,19 Cal.App.4that p. 1720.) The court held that contractual attorney’s fees must be claimed by noticed motion, “not by the mere filing of a memorandum of costs.” (Id. at pp. 1723-1724) Because Russell does not address the procedural propriety of a party’s joinder in a timely-filed motion for attorney’s fees, it is inapposite.
2. Timeliness
A joinder is timely if it is served and filed within the time for noticing the particular motion at issue. (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1176-1177 [joinder in motion for attorney’s fees].) Rule 3.1702 governs the timing of contractual attorney’s fee motions seeking fees incurred in the trial court. Rule 3.1702(b)(1) provides that a notice of motion claiming those fees must be served and filed “within the time for filing a notice of appeal under rules 8.104 and 8.108.”
Our analysis of the timeliness of Anzoategui’s joinder begins with Code of Civil Procedure section 581, which governs the dismissal of actions. A party requests entry of voluntary dismissal by submitting Judicial Council forms, form CIV-110 to the clerk. (See Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425 (Sanabria).) Dismissal is effective when entered in the clerk’s register. (Code Civ. Proc., § 581d.) “The party requesting dismissal is required to serve and file notice of entry of dismissal.” (Sanabria,at p. 426; rule 3.1390.)
The time for filing a motion for attorney’s fees begins to run when the dismissed party is served with notice of entry of dismissal. (Sanabria, supra,92 Cal.App.4th at p. 427.) The fees motion must be filed on or before “60 days after the party filing [it] serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by a proof of service.” (Rules 8.104(a)(2), 3.1702(b)(1).) If notice of entry of dismissal is not served, the fees motion must be filed on or before “180 days after entry of judgment.” (Rules 8.104(a)(3), 3.1702(b)(1).)
As Sanabria explains, “[a]lthough a voluntary dismissal is generally not appealable, it is nevertheless effectively a ‘judgment’ within the meaning of California Rules of Court, rule 2(a).” (Sanabria, supra, 92 Cal.App.4th at p. 427 [construing predecessor to rule 8.104].)
Here, the record fails to show when or even if plaintiffs served notice of entry of dismissal, although there is evidence that they had not done so as of January 18, 2008, when Williams filed his motion for attorney’s fees. There is no notice of entry of dismissal in the record plaintiffs provided. The record contains a proof of service showing that the form request for dismissal was served on November 16, 2007. It also contains a file-stamped copy of the request for dismissal reflecting that the clerk entered the dismissal in the register on November 19, 2007, but there is no proof of service reflecting that the clerk or plaintiffs served a file-stamped copy on any defendant.
“It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error.” (Maria P. v. Riles (1987)43 Cal.3d 1281, 1295.) Failure to provide an adequate record on an issue requires that it be resolved against the appellant. (Id. at pp. 1295-1296.) In the absence of an affirmative demonstration that the record supports the claim of error, we must presume that the trial court did not err. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564-565 (Denham).) “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.... [Citations.]’ ” (Id. at p. 564.) Thus, we must presume that plaintiffs failed to serve notice of entry of the November 19, 2008 dismissal. It follows that Anzoategui’s joinder, filed 94 days after entry of dismissal, was well within the 180 day time frame of rules 8.104(a)(3) and 3.1702(b)(1). We conclude that the joinder was procedurally proper and timely filed.
B. Civil Code Section 1717, Olen, and Santisas
Plaintiffs characterize the principal issue on appeal as “whether attorneys [sic] fees were legally available to a defendant on contract-based claims and interrelated fiduciary duty tort claims arising out of the same facts when voluntarily dismissed.” Relying on International Industries, Inc. v. Olen (1978) 21 Cal.3d 218 (Olen), plaintiffs argue that the trial court improperly circumvented Civil Code section 1717, subdivision (b)(2) and ignored important policy considerations when it awarded defendants prevailing party attorney’s fees under Code of Civil Procedure section 1021. As we understand plaintiffs’ argument, if a voluntarily-dismissed action contains intertwined contract and noncontract claims arising out of the same set of facts, the noncontract claims should, as a matter of policy, be treated as contract claims. This would make all claims in a mixed action subject to Civil Code section 1717, subdivision (b)(2) and preclude a dismissed defendant’s recovery of attorney’s fees. We reject plaintiffs’ argument.
Our conclusion is compelled by the California Supreme Court’s decision in Santisas. In that action alleging both contract and tort claims, the court resolved conflicting Court of Appeal decisions awarding or declining to award contractual attorney’s fees in voluntary dismissal cases. It did so by squarely rejecting the position plaintiffs urge us to adopt here. (Santisas, supra,17 Cal.4th at pp. 605, 622, fn. 9.) Santisas thus provides the framework for our analysis.
1. Standard of Review
“The determination of the legal basis for an award of attorney fees is a question of law which we review de novo. [Citation.]” (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 424, disapproved on other grounds in Santisas, supra,17 Cal.4th at p. 614, fn. 8.) But where, as here, the underlying facts are disputed, the trial court has discretion to determine which party is the prevailing party entitled to attorney’s fees. (Santisas, supra,17 Cal.4th at p. 622; Silver v. Boatwright Home Inspection, Inc. (2002) 97 Cal.App.4th 443, 446, 448-449 (Silver).) The trial court also has broad discretion to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096 (Drexler).) In exercising that discretion, the court may apportion fees to particular claims, or it may determine that the claims are so inextricably intertwined that it would be “impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units.” (Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 227; Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130 (Reynolds).) “Discretionary decisions are subject to an abuse of discretion standard of review.... ‘ “Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” ’ ” (Silver, supra,97 Cal.App.4th at p. 449, quoting Denham, supra,2 Cal.3d at p. 566.)
2. The Cost Statutes
It is undisputed that as “defendant[s] in whose favor a dismissal is entered,” Williams and Anzoategui are “prevailing part[ies]” under the cost statutes, entitled as a matter of right to recover their costs. (Code Civ. Proc., §§ 1021, 1032, subds. (a)(4) & (b).) It is likewise undisputed that the attorney’s fees provision in the company’s operating agreement provides a valid basis for defendants’ recovery of fees as costs. (Santisas, supra,17 Cal.4th at p. 606; Code Civ. Proc., §§ 1032, 1033.5, subd. (a)(10).) Finally, it is undisputed that the fees provision is broad enough to encompass all of the claims plaintiffs alleged.
3. Attorney’s Fees Awards in Voluntary Dismissal Cases
Because attorney’s fees authorized solely by contract were historically considered damages, a litigant had to plead and prove the contractual provision to recover fees. (Genis v. Krasne (1956) 47 Cal.2d 241, 246.) Since voluntarily dismissed defendants had no opportunity to do so, contractual attorney’s fees could not be recovered in voluntary dismissal cases. (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 190 (Chinn), citing Olen, supra,21 Cal.3d at p. 223.) That changed with the 1968 enactment of Civil Code section 1717 because fees awarded under section 1717 were held to be in the nature of costs. (System Inv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 162-164; see Olen, at p. 223.) In 1978, however, the California Supreme Court held that parties in voluntary dismissal cases subject to Civil Code section 1717 should bear their own attorney’s fees. (Olen,at p. 225.) The Olen court gave two reasons for that holding. First, Civil Code section 1717’s then-definition of “ ‘prevailing party’ ” (“ ‘the party in whose favor final judgment is rendered’ ”) did not include those voluntarily dismissed. (Olen,at p. 225.) Second, by “[b]uilding a reciprocal right to attorney fees into contracts, and prohibiting its waiver, [] section [1717] reflects legislative intent that equitable considerations must prevail over both the bargaining power of the parties and the technical rules of contractual constructions.” (Olen,at p. 224.) Facing a choice between (1) adopting an automatic right-to-recovery rule, (2) requiring case-by-case application of equitable considerations, or (3) continuing the former rule denying fees in spite of agreement, the Olen court rejected the first choice as inequitable and the second as overly burdensome on the judicial system. (Olen,at pp. 223, 225.) The court opted to continue the former rule. (Olen,at p. 225.)
In 1981, the Legislature codified the Olen holding in Civil Code section 1717, subdivision (b)(2), which states that “[w]here an action has been voluntarily dismissed..., there shall be no prevailing party for purposes of this section.” (Stats. 1981, ch. 888, § 1, p. 3400.)
Olen was an action to recover rent due under a sublease. (Olen, supra, 21 Cal.3d at p. 220 & fn. 1.) Read narrowly, it did not address the right to recover contractual attorney’s fees incurred in cases asserting solely noncontract claims or mixed contract and noncontract claims. (Santisas, supra,17 Cal.4th at pp. 620-621.) But some appellate courts read Olen as establishing a broad rule barring contractual attorney’s fee awards in all voluntary dismissal cases. (See, e.g., Ryder v. Peterson (1996) 51 Cal.App.4th 1056, 1061 (Ryder), disapproved in Santisas, supra, 17 Cal.4th at 614, fn. 8, and Jue v. Patton (1995) 33 Cal.App.4th 456, 460-461 (Jue), disapproved in Santisas, supra,17 Cal.4th at 614, fn. 8.) The California Supreme Court granted review to resolve the conflict. In 1998, the courtheld that in voluntary dismissal cases involving only noncontract claims, or mixed contract and noncontract claims, the bar of Civil Code section 1717, subdivision (b)(2) applies only to the contract claims. (Santisas,at p. 617.) “When a plaintiff files a complaint containing causes of action within the scope of section 1717 (that is, causes of action sounding in contract and based on a contract containing an attorney fee provision), and the plaintiff thereafter dismisses the action, section 1717 bars the defendant from recovering attorney fees incurred in defending those causes of action, even though the contract on its own terms authorizes recovery of those fees. [¶] This bar, however, applies only to causes of action that are based on the contract and are therefore within the scope of section 1717. If the voluntarily dismissed action also asserts causes of action that do not sound in contract, those causes of action are not covered by section 1717, and the attorney fee provision, depending upon its wording, may afford the defendant a contractual right, not affected by section 1717, to recover attorney fees incurred in litigating those causes of action. Similarly, if a plaintiff voluntarily dismisses an action asserting only tort claims (which are beyond the scope of section 1717), and the defendant, relying on the terms of a contractual attorney fee provision, seeks recovery of all attorney fees incurred in defending the action, the plaintiff could not successfully invoke section 1717 as a bar to such recovery.” (Santisas,at p. 617.)
The Santisas court did not make contractual attorney’s fees automatically recoverable in mixed or noncontract cases. Instead, it adopted a rule giving trial courts discretion to determine which party was the prevailing party entitled to attorney’s fees. “[U]pon fresh consideration of the matter, we are of the view that the practical difficulties associated with contractual attorney fee cost determinations in voluntary pretrial dismissal cases are not as great as suggested by the majority in Olen.... The Olen majority soundly reasoned that attorney fees should not be awarded automatically to parties in whose favor a voluntary dismissal has been entered. In particular, it seems inaccurate to characterize the defendant as the ‘prevailing party’ if the plaintiff dismissed the action only after obtaining, by means of settlement or otherwise, all or most of the requested relief, or if the plaintiff dismissed for reasons, such as the defendant's insolvency, that have nothing to do with the probability of success on the merits. The Olen majority also soundly reasoned that scarce judicial resources should not be used to try the merits of voluntarily dismissed actions merely to determine which party would or should have prevailed had the action not been dismissed. But we do not agree that the only remaining alternative is an inflexible rule denying contractual attorney fees as costs in all voluntary pretrial dismissal cases. Rather, a court may determine whether there is a prevailing party, and if so which party meets that definition, by examining the terms of the contract at issue, including any contractual definition of the term ‘prevailing party’ and any contractual provision governing payment of attorney fees in the event of dismissal. If, as here, the contract allows the prevailing party to recover attorney fees but does not define ‘prevailing party’ or expressly either authorize or bar recovery of attorney fees in the event an action is dismissed, a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise.” (Santisas, supra,17 Cal.4th at pp. 621-622.)
4. Analysis
a. Mixed Nature of Plaintiffs’ Claims
In the trial court, plaintiffs consistently characterized their action as asserting both contract and tort claims, and in their applications for prejudgment relief, they insisted that they had not by seeking an attachment waived their tort claims and elected to proceed in contract. In this court as well, plaintiffs describe the case as asserting “overlapping claims” and “contract-based claims and interrelated fiduciary duty tort claims.” Confusingly, however, they then argue for the first time in their reply brief on appeal that their fiduciary duty claims are not really tort but instead contract claims subject to Civil Code section 1717. As defendants correctly point out, we need not address theories raised for the first time on appeal. (In re S.B., supra, 32 Cal.4th at p. 1293 & fn. 2.)
In a slightly different argument, plaintiffs assert that Santisas requires application of Civil Code section 1717 to all claims once it is determined that at least one claim is “on a contract,” since California courts liberally construe that term. Santisas requires nothing of the sort, as our discussion of that case makes clear, and the other cases plaintiffs cite, which apply Civil Code section 1717 to effect mutuality of remedy, do not support their argument.
b. Prevailing Party
The contractual attorney’s fees provision in the operating agreement does not define prevailing party, and we have not been referred to extrinsic evidence indicating that the parties ascribed any particular meaning to that term. In these circumstances, the trial court has discretion “to determine whether there is a prevailing party, and if so which party meets that definition....” (Santisas, supra, 17 Cal.4th at p. 622.) “[A] court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise.” (Id. at pp. 609, 622.) Here, the trial court determined that defendants were the prevailing parties.
Plaintiffs criticize that determination as unreasonable, arguing that they dismissed their action because defendants were insolvent—a reason Olen and Santisas suggested might weigh against awarding fees to defendants. We see no abuse of discretion. The record reflects that plaintiffs’ primary litigation objective was to prevent the disbursement of funds from the sale of the building; it further reflects that plaintiffs considered the case lost when their applications for emergency prejudgment relief were denied. While plaintiffs may have had insolvency concerns, they conceded that they “didn’t know definitively” whether defendants were, in fact, insolvent. Moreover, the fact that plaintiffs filed a new action against defendants on the day the attorney’s fees motion was heard supports an inference that any concerns they might have had about insolvency were unfounded. On the facts presented, the trial court could reasonably have concluded that plaintiffs dismissed their first case because they failed to achieve their litigation objectives.
Plaintiffs also argue that defendants cannot be said to have prevailed where the case against them was dismissed without prejudice. A dismissal without prejudice, plaintiffs maintain, is not a final adjudication, since it does not preclude them from reasserting the dismissed claims in a new action. This argument lacks merit. The prevailing party determination turns on the extent to which each party achieved its litigation objectives. Whether the dismissal was with or without prejudice is irrelevant. (See, e.g., Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1065-1066 [defendant voluntarily dismissed without prejudice awarded contractual attorney’s fees].) We conclude that the trial court did not abuse its discretion in determining that defendants were the prevailing parties.
c. Apportionment
Plaintiffs do not dispute the reasonableness of the fees the trial court awarded. They argue instead that the trial court abused its discretion in failing to explicitly allocate fees between the contract and noncontract claims. Without citation to the record, plaintiffs contend that there was “no rational reason” to allocate “everything” to the tort claims since little if any work was done on those claims. We disagree.
The Santisas court expressly declined to decide how fees incurred litigating issues common to tort and contract claims should be allocated. (Santisas, supra,17 Cal.4th at p. 623.) But the court’s citation to Reynolds, supra,25 Cal.3d at pp. 129-130 is instructive. In Reynolds, the court held that while a party should not be permitted to increase his recovery of contractual attorney’s fees by joining a claim in which fees are recoverable with one in which they are not, neither should the fact of joinder dilute a party’s right to recover fees. (Id. at p. 129.) Therefore, the court concluded, “[a]ll expenses incurred with respect to the alter ego issue—common to both the note and the general line consignment agreement—qualify for award.” (Id. at p. 130.) The court further held that fees need not be apportioned when incurred for representation on an issue common to a claim in which fees are recoverable and one in which they are not allowed. (Id. at pp. 129-130.) This rule has been widely followed. (See, e.g., Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 580.)
Here, plaintiffs themselves consistently characterized their claims as “interrelated” and “overlapping.” Indeed, they conceded in their reply brief that there were no tort claims not intertwined with the contract claims. Defendants acknowledged that they were not entitled to recover $4,297.50 in fees incurred solely in connection with the contract claim against PNS, and they identified and excluded those fees. The trial court excluded an additional $7,000. Plaintiffs have never identified any particular expense item that they contend defendants incurred solely in connection with the contract claims and improperly sought to recover, and their argument that little if any work was done on the tort claims finds no support in the record. Under these circumstances, the trial court’s conclusion that the commonality of the issues made it impossible to apportion fees was entirely reasonable. No abuse of discretion appears.
C. Plaintiffs’ Contention That Williams Did Not Incur the Fees Awarded
Plaintiffs contend that the trial court improperly awarded attorney’s fees to Williams based on invoices addressed not to him but instead to PNS. Plaintiffs’ position, asserted without citation to the record, is factually untenable. While it is true that the inside address on many of the invoices reads “Pacific Network Supply,” the conclusion to be drawn from that is at best ambiguous where other invoices are addressed to Williams at his home, and those that were sent to his office are conspicuously marked “PERSONAL AND CONFIDENTIAL” and “Attn: Houston Williams.”
Plaintiffs’ argument ignores the declaration of counsel that Williams submitted in support of his motion for attorney’s fees. The declaration states that Williams “incurred $22,867 defending this lawsuit” and “will incur $2,950 bringing this motion.” It goes on to explain that “[t]he attached invoices identify a total of $27,164.50 in fees. I reviewed the invoices and identified $4,297.50 in fees incurred by PNS and excluded these fees from those sought by Mr. Williams in this motion. I drew a box around the fees related to PNS, and this notation is reflected on the attached invoices.”
The declaration thus resolves any ambiguity occasioned by the address on the invoices, as the trial court could reasonably have concluded. No abuse of discretion occurred. (Drexler, supra,22 Cal.4th at p. 1096.)
III. Disposition
The order awarding attorney’s fees to defendants is affirmed.
WE CONCUR: Rushing, P. J., Premo, J.