Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC362692, Rita Miller, Judge.
Dykema Gossett and Fredrick S. Levin for Defendants and Appellants.
No appearance for Plaintiffs and Respondents.
SUZUKAWA, J.
Defendants and appellants Fiona Clare Zahedi (Fiona) and Convent Limited (Convent) appeal the denial of their motion under English law for prevailing party attorney fees. We conclude that the trial court did not abuse its discretion in denying defendants’ fee motion, and thus we affirm.
For the sake of clarity, we refer to the individual parties by their first names, with no disrespect intended.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Adel Zahedi (Adel) and Alexander Zahedi (Alexander) are brothers. Fiona was the wife of Adel and Alexander’s father, Mohsen Zahedi (Mohsen), who is now deceased. Convent is a company of which Fiona is a director and controlling shareholder.
In 1995, Adel and Fiona signed a document entitled “The Adel Zahedi Personal Settlement” (the Settlement). The Settlement identified Adel as the settlor, and Adel and Fiona (a resident of England) as the original trustees. It provided that five properties, located in England, Germany, and the United States, were owned by Adel, but that title to them currently was vested in Mohsen. Those properties were to be transferred from Adel to the trustees “upon demand.” Further, “[a]ll income gains and the net proceeds of sale of any of the Properties shall be held upon the trusts of this Settlement,” and the trustees “shall pay the net income of the Trust Fund after discharging all expenses to [Adel and Alexander] in equal shares during their lives or to the survivor of them during his life.” The Settlement was “established under the laws of England and Wales” and “the construction of every provision of this Settlement shall be determined according to the laws of England and Wales.”
In November 2006, Adel, individually and as trustee of the Settlement, and Alexander, individually, filed a complaint against Fiona and Convent in Los Angeles Superior Court. It alleged that the trust owned the five properties identified in the Settlement, but that Fiona had sold the properties and transferred the proceeds of the sales to Convent. It asserted seven causes of action against Fiona and/or Convent: (1) breach of written trust agreement; (2) breach of fiduciary duty; (3) constructive fraud; (4) fraudulent transfer; (5) conspiracy; (6) conversion; and (7) quiet title.
Fiona and Convent moved for summary judgment, asserting that none of the properties referenced in the complaint had been transferred into the trust. Accordingly, under California law the trust was invalid because there was no trust property.
The trial court granted summary judgment for defendants. It found that the undisputed facts established that no property had been transferred into the trust and, thus, no trust was created and no fiduciary duties arose.
After judgment was entered, defendants filed a motion for attorney fees against Adel. Defendants contended that (1) pursuant to its express terms, the Settlement was governed by English law, and (2) under English law, defendants were entitled to recover their attorney fees as the prevailing parties. Accordingly, they urged the court to award them attorney fees of $510,843.70. However, although defendants sought attorney fees under English law, they did not cite the court to any provisions of English law, nor did they seek judicial notice of relevant statutes or cases.
The court denied the fees motion. At the motion hearing, it said that it was denying fees, in part, because the applicability of English law was being raised for the first time post-judgment. It explained: “[F]rom the time the complaint was filed until the granting of summary judgment against Adel Zahedi, English law was never raised.... The motion for summary judgment that the defendants brought cited 22 California cases and 6 California statutes, and there were no references to English law. All substantive issues were determined under California law. Nowhere in the motion did defendants say that California law was only being relied on because it was the same as English law. In addition and very importantly, I can’t conclude that California law and English law are identical now because nobody has compared for me California and English law on the substantive issues in this case and really nobody has even given me details of the English law on the issue before me now. So I think it would be unjust to award attorneys’ fees pursuant to English law under these circumstances.”
Further, the court said, defendants had not provided the court with any citations to English law governing awards of attorney fees: “Even if I were inclined to award attorneys’ fees pursuant to English law, there are other problems. The defendant hasn’t provided this court with any English law regarding an award of attorneys’ fees[.] Although lawyers generally know the English rule regarding attorneys’ fees mean[s] the fees are recoverable by the prevailing party, specifics of how such an award [is] determined are not so generally known and defendants failed to provide the court with the law or standard used under English law to award fees to a prevailing party. For instance, I don’t know if the English have a fee schedule prescribing how many pounds, what rate for any particular type of case or motion.... For all I know, English court[s] may exclude reimbursement for attorneys’ fees in certain types of cases. I don’t know that. So that’s a problem.”
On appeal, defendants contend that the trial court “denied Appellants’ fee motion based on its hypothesis that Appellants failed to submit to the court applicable English fee schedules.” We do not agree. Although the trial court alluded to the possible relevance of a fee schedule, it is clear that the court’s ruling was based on defendants’ failure to provide the court “with any English law regarding an award of attorneys’ fees,” not defendants’ failure to address fee schedules.
Finally, the court said, it could not determine from the materials submitted if the fees sought were reasonable. It explained: “The defense has chosen to just give me numbers of hours multiplied by rates of attorneys without trying to tie them to any particular services. So for all I know, the defense spent an unreasonable amount of time on particular tasks, and I can’t tell. So I can’t make a determination that any of this is reasonable.”
Notice of entry of the order denying attorney fees was served on August 25, 2008. Defendants timely appealed.
DISCUSSION
Defendants assert that under English law, “‘the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.’” The trial court “plainly failed” to apply this law, defendants urge, and thus abused its discretion.
We do not agree. Defendants, as the parties seeking an award of attorney fees, had the burden of establishing their entitlement to such an award. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320 [“As the moving party, the prevailing defendant seeking fees and costs ‘“bear[s] the burden of establishing entitlement to an award”’”]; Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020 [as the parties seeking fees and costs, defendants “‘bear[] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates’”].) At a minimum, this required them to provide support for their contentions “with pertinent legal authority.” (Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 44.) They did not do so. In fact, as we have said, defendants’ briefing in the trial court did not contain a single citation to English law. Instead, defendants relied entirely on two cases from American jurisdictions. The first, Douglas v. Los Angeles Herald-Examiner (1975) 50 Cal.App.3d 449, is a California Court of Appeal decision that references the “English rule” only in dicta. The second, Csaky v. Meyer (S.D.N.Y. 1995) 1995 WL 494574, *2, is an unpublished district court case. Neither case cited any English legal authority, and neither gave the trial court any guidance as to how attorney fee awards are calculated under English law.
Defendants’ entire discussion in the trial court of attorney fees under English law was as follows: “‘Under the so-called “English Rule,” there is a strong presumption in favor of payment of the prevailing party’s attorneys’ fees by the loser.’ Csaky v. Meyer, 1995 WL 494574, *2 (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 245, 247 n. 18 (1975)). ‘[T]he English rule... normally allows the prevailing party to recover attorneys fees.’ Douglas v. Los Angeles Herald-Examiner, 50 Cal.App.3d 449, 467 (1975). Against Adel, Defendants are clearly the prevailing parties, having obtained a judgment against him in which Adel took nothing.”
A case cited by defendants is further authority for the proposition that the trial court lacked the information necessary to grant defendants’ fee request. It states: “Although the Court thus concludes that English law governs the award of attorneys’ fees in this case, it should be noted that contrary to plaintiff’s apparent assertion, such awards to the prevailing party are not a matter of course but rest to some extent in the discretion of the court.... Therefore, neither the fact nor the amount of any award can be determined at this time.” (Cutler v. Bank of America Nat’l Trust & Sav. Asso. (N.D.Cal. 1977) 441 F.Supp. 863, 866.)
While the trial court was authorized to take judicial notice of “[t]he law of... foreign nations and public entities in foreign nations” (Evid. Code, §§ 452, subd. (f), 453, subd. (b)), it could do so only if “a party requests it” and “[f]urnishes the court with sufficient information to enable it to take judicial notice of the matter” (Evid. Code, § 453). If the law of a foreign nation “is applicable and such law cannot be determined” (i.e., because “the parties have not provided the court with sufficient information to make such determination” [Assem. Com. on Judiciary com., 29B pt. 1 West’s Ann. Evid. Code (1995 ed.) foll. § 311, p. 65]), the court may either “[a]pply the law of this state if the court can do so consistently with the Constitution of the United States and the Constitution of this state” or “[d]ismiss the action without prejudice” (Evid. Code, § 311). Accordingly, because defendants neither asked the trial court to take judicial notice of English law nor furnished the court with information sufficient to allow it to do so, the trial court was well within its discretion in concluding that defendants had not established their entitlement to attorney fees under English law. (See In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 509 [declining to take judicial notice of Pakistani legal standards for enforcing foreign custody decrees because mother “has submitted insufficient evidence to enable us to determine with confidence either the procedure or the substantive rules Pakistan would employ”].)
Defendants contend that under section 311 of the Evidence Code, the trial court was not authorized to refuse to apply English law without first offering them the opportunity to provide additional information about the content of that law. According to defendants, “if the Court was concerned that Appellants[] had failed to provide an applicable schedule of fees, the trial court should have allowed Appellants the opportunity to provide that schedule.” Not so. While the official comments to section 311 state that the court “may” grant parties additional time to provide it with adequate information about foreign law, nothing suggests that the court must do so.
Defendants attempt to correct their insufficient showing in the trial court by requesting that we take judicial notice on appeal of relevant portions of the English Civil Procedures Rules. We have granted defendants’ request and judicially noticed the materials submitted. However, “[h]aving taken judicial notice of such a matter, the reviewing court may or may not apply it in the particular case on appeal. The effect to be given to matters judicially noticed on appeal, where the question has not been raised below, depends on factors that are not evidentiary in character and are not mentioned in this code. For example, the appellate court is required to notice the matters of law mentioned in Section 451, but it may hold that an error which the appellant has ‘invited’ is not reversible error or that points not urged in the trial court may not be advanced on appeal, and refuse, therefore, to apply the law to the pending case. These principles do not mean that the appellate court does not take judicial notice of the applicable law; they merely mean that, for reasons of policy governing appellate review, the appellate court may refuse to apply the law to the case before it.” (Cal. Law Revision Com. com., 29B pt. 1 West’s Ann. Evid. Code (1995 ed.) foll. § 459, p. 540.)
In the instant case, defendants have failed to offer a good reason—or, indeed, any reason—why the documents that they have sought to have judicially noticed should be considered for the first time on appeal. Accordingly, we decline to consider them. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [“While the reviewing court may take judicial notice of matters not before the trial court, it need not do so. [Citation.] We decline to do so here, as the State Bar puts forth no reason for its failure to request the trial court and Court of Appeal to take judicial notice of the eight cartons of materials comprising the record of the arbitration it now asks this court to review.”].)
Although we review the trial court’s ruling regarding attorney fees de novo (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175), our task is to determine whether defendants demonstrated to the trial court that they were entitled to recover such fees. (C.f. World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1569, fn. 7.) Because defendants did not do so, there is no basis for reversal.
Because we have concluded that defendants’ failure to cite English law was an adequate basis on which to deny their motion for fees, we do not consider defendants’ other assertions of error.
DISPOSITION
The order denying appellants’ motion for attorney fees is affirmed.
We concur: EPSTEIN, P.J., WILLHITE, J.