Opinion
A144469
03-30-2017
JANE YOON, Plaintiff and Respondent, v. DENA THALER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG08-419996)
Defendant Dena Thaler prevailed over plaintiff Jane Yoon in litigation involving contract and tort claims. The contract at issue included an attorneys' fee provision, and the only issues in this appeal are Thaler's contentions that the trial court's awards of fees and costs are too low. Thaler requested $265,274 in attorneys' fees, mostly for the defense of Thaler in cases that had been consolidated with Yoon's, and $16,557 in costs, including deposition transcripts of plaintiffs in those other cases. The trial court awarded Thaler $41,280 in fees and $4,325 in costs. We conclude that Thaler has not shown that the trial court abused its discretion in awarding fees or costs, and therefore we will affirm.
Separately, Yoon appealed the trial court's judgment on the merits in favor of Thaler, which included the finding that Thaler was the prevailing party as to Yoon and entitled to "an award of costs and attorney's fees as allowed by law." We affirmed the judgment between Yoon and Thaler in our opinion in case No. A143287, filed this day.
FACTUAL AND PROCEDURAL BACKGROUND
Although the only parties to this appeal are plaintiff/respondent Yoon and defendant/appellant Thaler, the claims Yoon asserted against Thaler in the underlying litigation were part of a lawsuit by Yoon that included other defendants, and Yoon's lawsuit was consolidated with cases in which Thaler, and others, were defendants. We describe the underlying case in some detail, drawing on the trial court's Statement of Decision.
We include the modifications set forth in the trial court's Errata and Amendments.
In 2008, Yoon contracted with now-defunct California Trust Deeds, Inc. (CTD) to process and conduct non-judicial foreclosures to collect debts owed to Yoon that had been secured by deeds of trust. After CTD sent the debtor notices of default, the debtor sent CTD $214,773.16, which CTD deposited in its checking account. But Sidney Gladney (Gladney), an officer of CTD, paid only $125,000 to Yoon, who was owed an additional $89,773.16.
Yoon filed a verified complaint in 2009, naming CTD and Gladney as defendants. Although the original complaint identified Thaler as CTD's attorney, who negotiated with Yoon's attorney in connection with Yoon's demands for the $89,773.16 deficiency, it asserted no claims against her. The operative Fifth Amended Complaint, filed in 2013, names not only CTD and Gladney as defendants, but also Thaler, who was CTD's retained counsel, and Michael Thaler (Michael) and Herb Leibowitz (Leibowitz), who were CTD's founders. Michael was eventually dismissed from the case because Yoon failed to timely serve him. CTD was added in the Fifth Amended Complaint as a party plaintiff against Thaler for legal malpractice, breach of fiduciary relationship, and breach of contract.
CTD was founded in 1981. At that time Thaler was married to Michael. Thaler was retained counsel for CTD from its founding through the time of its dealings with Yoon.
Yoon sought judgment for $89,773.16 against CTD and against Gladney, Thaler, and Leibowitz based on an alter ego theory of liability. She also sought liability against CTD, Gladney and Thaler for breach of fiduciary relationship, conversion and breach of contract; against CTD and Gladney for fraud in the inducement; against Gladney for interference with contract; against Gladney and Thaler for conspiracy; against Leibowitz for negligent hiring; and against CTD, Gladney, Thaler and Leibowitz for violating Penal Code section 496, subdivision (a), which prohibits the knowing buying, selling, receipt or concealment of stolen property.
Under Penal Code section 496, subdivision (c), a person who has been injured by a violation of subdivision (a), "may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees." The court declined to find that the civil enhancement for receiving stolen property applied to Gladney, Leibowitz, or Thaler.
Yoon's case was consolidated with six other actions, five of which settled, leaving Yoon's and one other (which did not name Thaler as a defendant) for trial. In Yoon's case, defaults were entered against CTD and Gladney, and the case proceeded to trial only against Leibowitz and Thaler. The trial court ruled that Gladney and CTD were alter egos; and that CTD and Gladney were not liable to Yoon for breach of fiduciary relationship, but were liable to her for conversion, fraudulent inducement, and breach of contract. The trial court also ruled that Gladney was liable to Yoon for interference with contract, conspiracy to commit intentional fraud, and intentional fraud; that Leibowitz and CTD were alter egos; and that Leibowitz was liable to CTD and to Yoon for the negligent hiring, retention and supervision of Gladney, and for the negligent entrustment of fiscal responsibility to him.
With respect to Thaler, the court found that she "certainly knew of Gladney's misappropriation of funds from other CTD clients," that she made representations to "induce Yoon into believing that CTD was a credible non-judicial foreclosure trustee that Yoon could safely trust," and that she knew that "Yoon's money if received by CTD would be put at risk." But the court concluded there was no alter ego relationship between Thaler and CTD, and declined to find any contract or confidential or fiduciary relationship between Thaler and Yoon that Thaler could have breached. The court found no liability on Thaler's part for conversion, or for negligence in hiring, retaining or supervising Gladney.
The court "generally [found] Thaler . . . subject to liability to CTD . . . for legal malpractice, breach of fiduciary relationship, and breach of [the oral] contract [between CTD and Thaler]." The court found that Thaler had no contract with CTD that was intended to benefit Yoon as a third party. The court found that Thaler owed a fiduciary duty to CTD and breached it, and that the breach constituted professional negligence/legal malpractice, which was subject to a one-year limitations period that had run by the time CTD's claims against Thaler were added to the case. The court concluded that therefore Thaler was not liable to CTD for breach of fiduciary relationship or legal malpractice.
Judgment was entered for Yoon against Gladney, Leibowitz and CTD jointly and severally for actual damages of $89,773.16 plus prejudgment interest. The court awarded no damages to Yoon against Thaler, who was designated the prevailing party entitled to recover costs and attorneys' fees from Yoon. The court awarded no damages to CTD as involuntary plaintiff against Thaler, and awarded Thaler costs and attorneys' fees from CTD.
Thaler filed a motion for attorneys' fees and a memorandum of costs, which we discuss further below.
DISCUSSION
A. Attorneys' Fees
1. Thaler's Motion for Fees
After the trial court found that she was the prevailing party against Yoon, Thaler filed a motion seeking $265,274 in attorneys' fees from Yoon pursuant to Civil Code section 1717, subdivision (a). Thaler argued she was entitled to fees because Yoon had unsuccessfully sought to have her held liable on the theory that Thaler and CTD were alter egos, and Yoon had sought attorneys' fees from Thaler based on the contract between Yoon and CTD, which had an attorneys' fee provision. Thaler requested $199,964 for legal work by Manning & Kass, Ellrod, Ramirez, Trester LLP (the Manning firm) that was billed to Thaler's insurance company at $149,973, and $65,310 for legal work by Richard Phelps, a lawyer apparently not affiliated with the Manning firm, which had been billed to Thaler.
Further unspecified statutory references are to the Civil Code.
The Manning firm defended Thaler in three of the consolidated cases, but not in Yoon's case. Thaler argued to the trial court, "[w]hile an argument could be made for all of these fees [Thaler] is only asking that [Yoon] compensate her for the fees starting when [Yoon] sued [Thaler] in May of 2010 up until the other cases settled at the end of August 2013." The amount billed by the Manning firm for services during that period, and paid by Thaler's insurer, was $149,973. Thaler requested that Yoon pay $199,964, "[b]ased on a market rate of $300 per hour."
The highest rate charged by the Manning firm for attorneys was about $195 per hour. Thaler submitted a declaration in which attorney Phelps states that his own rate of $300 per hour, which, based on his familiarity with hourly rates charged in the Bay Area is "the low end of reasonable rates for this type of work for experienced litigators."
Attorney Phelps defended both Thaler and Michael in Yoon's case and in other consolidated cases. He billed Thaler $37,100 for defending against claims brought against her by Yoon and by another plaintiff in one of the consolidated cases. He also billed $8,520 as Thaler's share of the fees for depositions; $6,630 for post-trial fees though June 2014; $12,900 or $12,960 for post-trial fees from August 2014 through October 2014; and he estimated additional fees of $1,740 for further work on the fee motion. Thaler says these amounts add up to $65,310.
We calculate $66,890 using $12,900, and $66,950 using $12,960.
2. Yoon's Opposition
Yoon opposed Thaler's fee motion on various grounds. She argued that the trial court should award Thaler nothing because Thaler is "a prevailing nonsignatory found to have aided & abetted CTD and [Gladney] who, in turn, were found to have breached their fiduciary duty to [Yoon]." Yoon argued in the alternative that the court should award Thaler no more than one-ninth of the amount requested, on the grounds that because Thaler's entitlement to fees was based on contract, Thaler should recover only for her defense of Yoon's single contract cause of action and not for her defense of Yoon's eight causes of action that sounded in tort. She also argued that the court should award Thaler no more than one-ninetieth of the amount requested, the result of apportioning the fees between Yoon and CTD (reducing one-ninth by half, yielding one-eighteenth) and also among the five cases in which Thaler was named as a defendant (requiring Yoon to pay no more than one-fifth of one-eighteenth—i.e., one-ninetieth—of Thaler's fees).
3. Hearing and Order
The trial court issued a tentative ruling awarding Thaler $38,040 instead of the $265,274 she requested. Thaler contested the ruling. At the hearing, her attorney Phelps argued that he and the other lawyers did more work than was documented and that Yoon should be ordered to pay all of the fees that Thaler requested, including Thaler's fees for the defense of cases other than Yoon's, reasoning that Yoon's counsel had essentially conceded that all the cases were intertwined when she justified a request for a continuance after other plaintiffs settled by testifying that she needed time to catch up because she had been following the lead of those other plaintiffs.
The record does not appear to include the tentative ruling itself, but includes a description of the ruling.
The trial court responded, "I remember this case very well. [¶] . . . [¶] And . . . it's my opinion that Ms. Thaler—she avoided liability by the skin of her teeth on a technicality statute of limitations issues. Definitely she was involved. Definitely she knew what was going on. Insofar as the malpractice claims, the alter ego claims, there was a lot of smoke. I believe there was some fire there. But unfortunately— [¶] . . . [¶] . . . that was not proven. [¶] In the interest of justice, I am not going to have Ms. Yoon pay your attorney's fees in the amount of $265,000 as requested. I don't think that's fair; and I don't believe that that's what the legislature intended. [¶] . . . [¶] And so I looked at the fees that were claimed from the beginning to the end by you. There were a number of parties that were in this case. And so even case management, my recollection is that there were many times I think I almost held [Yoon's counsel] in contempt a few times for failing to appear. [¶] . . . [¶] A lot of the case management conferences that you billed for were filled with other counsel. I remember . . . when Mr. Gladney was being investigated. Ms. Thaler was being investigated by the district attorney; you spent a lot of time talking about that, getting discovery from the district attorney. [¶] So a lot of those case management conferences were filled with . . . those kinds of issues. And a lot of time was taken up not so much by Ms. Yoon and anything that you had to do with regard to her case against Ms. Thaler, but by all of the other counsel, including yourself. [¶] . . . [¶] This case was filled with a lot of emotion. There was a lot of zealous advocacy that was going on; and I certainly understand that. But you were fighting hard for [Thaler], but I don't think that Ms. Yoon should be responsible for all of that. Especially when this was a consolidated action involving a number of parties."
Later in the hearing, Phelps said, "I'm not asking you to give the full [$]200,000; I'm asking you to reconsider your apportionment. [¶] Because I think it's very clear that I, you know, had a billing with Ms. Thaler for about [$]65,000 which was parceled out from what I did for Michael Thaler; that's what I did for her. And there's a lot of stuff in there that I didn't bill for, if you look at other people's bills. And all I would ask is that she be given reasonable attorney's fees for all she went through and all the things she was accused of and they had no basis to even bring. [¶] . . . [T]hey brought those causes of action on that we had to deal with when they had no facts to support. They had no probable cause to sue [Dena Thaler] for negligent hiring. Not one. Not an ounce. And even after it came out that she didn't do it and you held that she didn't do it, they didn't stop after the depos were clear, the evidence was clear, [Dena Thaler] had nothing to do with that. They still argued to the Court and argued again. [¶] So there were elements of their, I would say, inequitable attacks that caused this case to be longer and deeper and more expensive than it should have been. And on that basis, I would ask that you at least give us the [$]65,000 that I spent. [¶] But there was all the other time that was spent, too, protecting, as it was, with these intertwined cases. So I just ask you to reconsider the apportionment that you did, Your Honor."
Drawing on language in the trial court's Statement of Decision on the merits and its tentative ruling on fees, Yoon's counsel argued that it would be unfair to require Yoon to pay any of Thaler's attorney's fees, because the court found that "Thaler knew of and aided and abetted with the embezzlement of funds . . . in a way [not] shielded by attorney-client privilege."
The court took the motion under submission at the hearing, and about 10 days later issued an order awarding Thaler $41,280 for attorneys' fees. The court ruled that Yoon's argument that Thaler should not recover any attorneys' fees was untimely, because Yoon had not moved for reconsideration of the judgment that Thaler was entitled to fees, and in any event lacked merit. With regard to the amount of fees, the court explained its ruling as follows: "The court concludes that the fees provision in the CTD/Yoon contract is not the sort of broadly worded clause that entitles a prevailing party in a lawsuit to recover attorney's fees incurred to litigate tort causes of action. . . . [¶] Accordingly, the question arises whether Thaler . . . can . . . recover fees incurred with regard to the tort causes of action on a theory that the claims were inextricably intertwined from a litigation perspective . . . . [¶] The court concludes, based on its familiarity with the trial, that Yoon's tort and breach of contract causes of action were inextricably intertwined in light of common factual, evidentiary, and legal issues, and that it is not practicable to segregate Dena Thaler's attorneys' fees between the tort and contract causes of action. [¶] . . . [T]he court nonetheless concludes that it would be inequitable to compel Yoon to bear the entire burden of Thaler's attorney's fees in the amount of $265,274. Such an outcome would be contrary to the interest of justice for two reasons.
"The first reason is the court's findings that Thaler knew of and aided and abetted Defendant Gladney's embezzlement of funds from CTD customers, in a way not shielded by the attorney-client privilege. Those findings did not lead to liability on Thaler's part only because of the statute of limitations and because CTD was not her alter ego. The other reason it would be inequitable to award the full amount sought is that, although it is not practicable to segregate Thaler's fees and allocate them separately to work on Yoon's one successful contract cause of action and her eight failed tort causes of action, nonetheless, some of the work done was certainly done only because of the latter causes of action, which are not within the scope of the parties' attorneys' fees clause. In the typical case in which it is not possible to segregate and allocate fees between causes of action, the party owing fees must bear the burden of paying for all fees. In this case, however, given the equities noted above, the court concludes that the interest of justice demands that Yoon not bear the entirety of that burden.
No one contends that Yoon's contract claim was successful. It is undisputed that Thaler's entitlement to fees in this case rests entirely on her successful defense of Yoon's contract claim. "[O]ne successful" appears to be a typographical or transcription error for "unsuccessful."
"On the other hand, the court is persuaded by Thaler's arguments at the hearing on this motion that Yoon lacked a reasonable basis for some of the causes of action in her complaint and either should never have asserted them or should have withdrawn them before trial, and that Yoon must bear the burden of Thaler's fees incurred with regard to those causes of action.
"Accordingly, based on a review of the declaration of Thaler's counsel and her attorneys' timesheets, the court concludes that the above-noted equitable and practical circumstances warrant a reduction of Thaler's recovery of attorneys' fees, on equitable grounds and in the interest of justice, from the $265,274 sought to $41,280." Thaler filed a motion for reconsideration, which was denied.
4. Arguments on Appeal
On appeal, Thaler argues that the trial court's "massive reduction from the $265,274 to $41,280" is an abuse of discretion. She argues that the trial court erred by failing to conduct a lodestar analysis to determine the number of hours reasonably expended by counsel and the reasonable rate for the work. She complains that the trial court cited no case law to justify its reduction, and argues that it is "an abuse of discretion per se" to reduce fees to less than 20 percent of the actual expenses in a case where a contract allows attorneys' fees. She suggests that the trial court's award improperly takes into account the finding that Thaler aided and abetted Gladney, and penalizes Thaler for a successful defense on the basis of the statute of limitations. She also argues that the trial court's finding that Thaler aided and abetted Gladney is "unfair and prejudicial" because Yoon did not plead a cause of action for aiding and abetting, nor did she argue it, and therefore Thaler had no opportunity to conduct discovery, cross-examine witnesses, or argue the issue. And she argues that the trial court's findings of aiding and abetting are not supported by substantial evidence.
In her respondent's brief, Yoon's primary argument is that Thaler should not be awarded any fees at all, because the trial court erred in ruling that Thaler was the prevailing party. But Yoon has not filed a cross-appeal of the trial court's fee and costs orders, and is therefore not entitled to seek affirmative relief in this proceeding. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2016) ¶ 8:195, p. 8-159.) Yoon also argues very briefly, and without citations to the record or discussion of how her cited authorities apply to the facts here, that the trial court did not abuse its discretion by awarding a fraction of the requested attorneys' fees.
5. Analysis
We review the trial court's determination of a reasonable attorney fee under section 1717 for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095 (PLCM); see also Calvo Fisher & Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 620 (Calvo Fisher) [deferential review of the amount of attorneys' fees awarded].) "[S]ection 1717 provides that '[r]easonable attorney's fees shall be fixed by the court.' . . . [T]his requirement reflects the legislative purpose 'to establish uniform treatment of fee recoveries in actions on contracts containing attorney fee provisions.' (Santisas v. Goodin[ (1998)] 17 Cal.4th [599,] 616.) Consistent with that purpose, the trial court has broad authority to determine the amount of a reasonable fee," consistent with equitable principles. (PLCM, supra, 22 Cal.4th at pp. 1094-1095.) " 'The trial court makes its determination after consideration of a number of factors including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.' " (Id. at p. 1096, quoting Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)
"A ruling that constitutes an abuse of discretion has been described as one that is 'so irrational or arbitrary that no reasonable person could agree with it.' " (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) "We are required to uphold [a discretionary] ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32, citing Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329. "[O]ur colleagues in Division Four have observed that 'the only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or so small that it shocks the conscience and suggests that passion and prejudice influenced the determination.' " (Calvo Fisher, supra, 234 Cal.App.4th at p. 620, quoting Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) Here, we conclude that the amount of the award does not shock the conscience and the trial court reached a correct result.
"[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate." (PLCM, supra, 22 Cal.4th at p. 1095.) "The reasonable hourly rate is that prevailing in the community for similar work." (Ibid.) Thaler complains that the trial court's ruling on her fee motion "demonstrates NO 'loadstar' [sic] analysis," and that the trial court "made no attempt to do a 'loadstar' [sic] analysis." But Thaler points to no authority suggesting that the court must show its work in its order. In any event, the record reflects that the trial court viewed $265,274 to be "the lodestar amount established by [Thaler's] counsel's declaration."
We turn now to adjustments to the lodestar amount. The record here reflects that Thaler sought to have Yoon pay $199,964 in fees to a firm that did not actually defend Thaler against Yoon's claims. Thaler's entitlement to fees from Yoon rested entirely on Yoon's contract claim against her, on which she prevailed. Accordingly, it would be appropriate to reduce the lodestar by $199,964, on the grounds that it would be inequitable to order Yoon to pay fees that were not incurred in defending against her claims. Thaler argues that she is entitled to fees for work defending claims in the cases that were consolidated with Yoon's, on the theory that those cases were inextricably intertwined with Yoon's. Thaler contends that the trial court found the consolidated cases to be inextricably intertwined, but the portions of the record that she cites do not support her contention.
Thaler also sought $65,310 for fees billed by attorney Phelps for defending her in Yoon's case and one other. The trial court stated it had reviewed the fees that Thaler claimed for Phelps from the beginning to the end of the case, and noted that some of Phelps's work for which Thaler sought to recover fees was not attributable to Yoon's case. The trial court concluded that it would not be practicable to segregate Thaler's fees between the contract cause of action and the tort causes of action, but concluded that some of the work that was done "was certainly done only because of the [tort] causes of action, which are not within the scope of the attorneys' fees clause." It is well established that among the "circumstances in the case" (PLCM, supra, 22 Cal.4th at p. 1096) considered by the court in exercising its discretion is that an attorneys' fee provision in a contract may authorize fees for some causes of action but not others. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130; Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1084; see P.M. Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55, 68-69 [when tort and contract claims are "interrelated and require[ ] presentation of virtually identical evidence," trial court can properly apply a percentage reduction to the total amount of attorneys' fees].) We conclude that in the circumstances here, the trial court could reasonably require Yoon to pay $41,280 of the fees that Thaler incurred.
We are not persuaded by Thaler's contention, unsupported by any case authority, that the trial court should have cited case law to justify its reduction of the fee request. Nor do we agree with Thaler's argument that an award of less than 20 percent of the total amount spent on attorney's fees is an abuse of discretion per se. Thaler's argument relies on Hadley v. Krepel (1985) 167 Cal.App.3d 677 (Hadley) and Deane Gardenhome Association v. Denktas (1993) 13 Cal.App.4th 1394 (Deane). Neither case stands for the proposition that an award of less than 20 percent of the fees incurred is an abuse of discretion per se. In Hadley the trial court awarded the defendant, a prevailing party entitled to fees and costs under section 1717, less than 20 percent of his actual fees and costs. (Hadley, supra, 167 Cal.App.3d at pp. 681, 683.) The Court of Appeal remanded for a new hearing to determine the reasonable value of fees and costs because, on the record before it, the Court of Appeal could not conceive of any explanation for the small award other than "the trial judge's unrealistic view of what constitutes a reasonable value for legal services. An award of attorney's fees and costs must be measured by the economics of the times. Currently, lawyers' minimum hourly rates far exceed their predecessors'. In days past the sum of $3,000 may have been sufficient to defend a lawsuit of this nature; today it is not." (Id. at pp. 686-687.) Deane stands for the proposition that it is not reasonable for a trial court to award "zero" as a reasonable amount of attorneys' fees under section 1717 to a prevailing party when the other party has documented its own demand of several thousand dollars in fees before trial. (Deane, supra, 13 Cal.App.4th at p. 1399.)
Although the trial court awarded Thaler less than 20 percent of the total fees she requested, the court awarded her more than 60 percent of the fees requested for attorney Phelps, who, unlike the other attorneys for whom fees were requested, defended Thaler against Yoon's claims.
Thaler's remaining arguments concern the trial court's finding that Thaler aided and abetted Gladney's embezzlement of funds from CTD and the trial court's reliance on that finding in its reasoning. At the fee hearing and in its order, the trial court gave two reasons for reducing the lodestar. First, because Thaler had aided and abetted Gladney but escaped liability only "because of the statute of limitations and because CTD was not her alter ego," and second, because although the contract and tort claims were intertwined, it was clear to the trial court that some of the work for which Phelps billed was "done only because of the [tort] causes of action." By itself, this second reason justifies the reduction in the lodestar. And, in any event, we review the trial court's result and not its reasoning. Even if we agreed with Thaler that the trial court improperly concluded that a successful statute of limitations defense somehow defeated Thaler's status as a prevailing party and therefore in itself justified a reduction in the lodestar (see RTC Mortgage Trust v. Shlens (1998) 62 Cal.App.4th 304, 327-328 [valid defense of contract claim does not support denial of attorneys' fees under section 1717]), such error would be harmless, because there are independent reasons for reducing the lodestar, as we discussed above. Consequently, we need not reach Thaler's arguments about aiding and abetting.
In sum, we conclude that Thaler has not shown that the trial court abused its discretion in its award of attorneys' fees. B. Costs
1. Additional factual and procedural background
In her memorandum of costs, Thaler requested $16,557, comprising $240 in filing and motion fees, $150 in jury fees, $12,177 in deposition costs, $65 in witness fees, and $3,925 in court reporter fees. Yoon filed a motion to tax costs, arguing that no costs should be awarded to Thaler because she "escaped liability on a technicality," and that if costs were awarded at all, certain costs should be reduced or struck and any costs should be apportioned among the plaintiffs who named Thaler as a defendant. Thaler opposed the motion on the merits, but withdrew her request for court reporter fees.
The underlying case was tried before the court, without a jury.
The trial court published a tentative ruling, granting the motion to tax in part and denying it in part. The tentative ruling was contested, and affirmed after argument at the hearing. The trial court ruled that Yoon's arguments for denying costs entirely and her arguments for apportioning the costs lacked merit. The trial court struck the jury fees and court reporter fees, but allowed the filing and motion fees ($240) and witness fees ($65), and awarded $4,325 of the requested $12,177 in deposition costs. The court "reviewed the list of depositions in light of its familiarity with the facts, issues, and witnesses relevant to Dena Thaler's defense of the causes of action Yoon asserted against her." On that basis, the court denied all costs for the depositions of Stephen Kramer ($2,420), Ellison Berg ($1,429), Eric Rheinheimer ($1,314), Sherman Kassof ($262), and MaryFrances Truebridge ($816), who were plaintiffs in other actions that were consolidated with Yoon's by the superior court, and denied half the costs for the depositions of Thaler ($1,153) and Michael Sullivan, an expert ($458). The court allowed deposition costs only for the depositions of Leibowitz ($1,167), his son Albert, who was affiliated with CTD ($472), Elizabeth Whitehouse, a bookkeeper for CTD ($420), Yoon ($603), Michael Thaler ($1,417), and half the costs of the depositions of Thaler and Sullivan.
The amounts requested for the Thaler and Sullivan depositions were $2,306 and $916, respectively.
On appeal, Thaler asks us to reverse the trial court's ruling with respect to the depositions of Kramer, Berg, Rheinheimer and Kassof, and to award Thaler an additional $5,420 for deposition costs. Thaler does not contest the trial court's denial of costs for the deposition of MaryFrances Truebridge, who was a plaintiff in the case that was consolidated with Yoon's for trial but who did not sue Thaler, nor does Thaler contest the trial court's denial of half the costs for her own deposition or Sullivan's. Thaler contends that the depositions of Kramer, Berg, Rheinheimer and Kassof "were essential to a proper defense," because "[t]hey were each potential witnesses at any trial and they had axes to grind and aggressive attorneys." Thaler's sole support for this contention is a declaration by her attorney, who states that the consolidated case "was aggressively prosecuted," and that his firm performed services for Thaler "in response to a highly coordinated, organized and collective number of plaintiffs' attorneys who were highly effective in collaborating and combining their efforts and resources against the defendants."
We calculate $5,425.
Yoon's respondent's brief is silent as to the trial court's award of costs.
2. Analysis
"Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion." (Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 774.) "The trial court's exercise of discretion in granting or denying a motion to tax costs will not be disturbed if substantial evidence supports its decision." (Jewell v. Bank of America (1990) 220 Cal.App.3d 934, 941.) We will not disturb the trial court's ruling unless it is "clearly wrong." (El Dorado Meat Company v. Yosemite Meat and Locker Service, Inc. (2007) 150 Cal.App.4th 612, 617 (internal quotation marks omitted).)
An "order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We do not presume error, and therefore it is the appellant's responsibility "to support claims of error with meaningful argument and citation to authority." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Furthermore, we presume that the record contains evidence to sustain the court's rulings, and when an appellant challenges an order that is reviewed for substantial evidence, the appellant must demonstrate that there is no substantial evidence to support the ruling, and must fairly set forth, discuss and analyze all the evidence on that point, not just the evidence that supports her position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Schmidlin v City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738.)
Thaler has not met her burden. She cites no case or other authority to support her argument that the court abused its discretion in awarding costs. She does not discuss evidence that supports the trial court's ruling, and, worse, she mischaracterizes one of the trial court's findings in an attempt to support her argument. Thus, she cites the trial court's January 2, 2015 order on fees to argue that "[t]he trial court found that the consolidated cases were inextricably intertwined and that it was not practicable to segregate the fees," and claims that this finding should apply to deposition costs. The argument rests on a false premise, because the cited order contains no such finding about the consolidated cases. The trial court found only that "Yoon's tort and breach of contract causes of action were inextricably intertwined in light of common factual, evidentiary, and legal issues."
Thaler gives us no basis to reverse the trial court's order on costs, and consequently we will affirm it.
DISPOSITION
The trial court's orders are affirmed. Yoon shall recover her costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.