Baker v. Tramutola

Filed 3/6/06 Baker v. Tramutola CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Michael M. Anello, Judge. Affirmed.

In an earlier appeal, this court affirmed a judgment against Oral A. Baker, through his guardian ad litem Michael Baker, M.D., and Ardith E. Baker, cotrustees of the Baker Family Trust, on their complaint against Michael Tramutola and Mary Tramutola, and on the Tramutolas' cross-complaint, arising from a dispute over the boundary between the couples' mobilehome lots. In this appeal, the Bakers challenge the legal basis for and amount of attorney fees the trial court awarded the Tramutolas in a postjudgment order. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The Bakers and the Tramutolas own adjoining lots at the Solamar Mobile Estates (Solamar) in Carlsbad, which is a common interest development. Both the Solamar Homeowners' Association, Inc. (HOA) and the Tramutolas had surveys conducted that showed the Bakers' fence and other improvements encroached on the Tramutolas' property. When the Bakers refused the Tramutolas' request to remove the improvements, the Tramutolas resorted to self-help and removed the improvements themselves.

A lawsuit ensued, with the Bakers suing the Tramutolas for injunctive relief, property damage, trespass and intentional and negligent infliction of emotional distress, and to quiet title and enforce Solamar's covenant, conditions and restrictions (CC&R's), and the Tramutolas cross-complaining against the Bakers to quiet title. At trial, the Tramutolas presented evidence that their survey and Solamar's survey showed the Bakers' fence and a portion of their driveway encroached on the Tramutolas' property. The Bakers argued the surveys were immaterial, because the CC&R's controlled, and the encroachment was "minor" within the meaning of section 8.15 of the CC&R's, and the Tramutolas violated section 7.10 of the CC&R's by removing the Bakers' improvements without obtaining written permission from the HOA.

The jury returned special verdicts, finding the Bakers' fence and driveway encroached on the Tramutolas' property, and the encroachments were not "minor" within the meaning of the CC&R's; the Tramutolas did not trespass on the Bakers' property or violate the CC&R's by removing the improvements without permission from the HOA; and the Tramutolas' conduct was not outrageous. The trial court then determined the true boundary between the couples' properties is as represented by the Tramutolas' survey. It found in favor of them and against the Bakers on their respective quiet title claims, subject to a limited easement or encroachment right in the Bakers' favor because they had used the area as a driveway and parking space for many years. The court also concurred in the jury's findings that the Tramutolas did not violate section 7.10 of the CC&R's by removing the Bakers' improvements without obtaining written permission from the HOA, and the encroachments were not "minor" within the meaning of section 8.15 of the CC&R's.

The Bakers appealed, and this court affirmed the judgment. (Baker v. Tramutola (Oct. 31, 2005, D045480) [nonpub. opn.].)

The Tramutolas moved for costs of $2,783, and attorney fees of $76,135.99 under a provision in the CC&R's and the reciprocity provision of Civil Code section 1717. The court awarded costs of $2,454.79 and attorney fees of $43,952.

DISCUSSION

I

Grounds for Attorney Fees Award

"[R]ecoverable litigation costs . . . include attorney fees, but only when the party entitled to costs has a legal basis, independent of the cost statutes and grounded in an agreement, statute, or other law, upon which to claim recovery of attorney fees." (Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Code Civ. Proc., §§ 1032, subd. (a)(4) & (b); 1033.5, subd. (a)(10); Civ. Code, § 1717, subd. (a).) The determination of the legal basis for an attorney fees award is a question of law we review de novo. (Braude v. Automobile Club of Southern Cal. (1986) 178 Cal.App.3d 994, 1013-1014.)

The court awarded fees under section 8.6 of the CC&R's, which the parties agree provides:

"The owners, or any of them . . . shall be entitled to bring legal action for damages against any owner who shall default in the performance of any of the provisions of this declaration, the by-laws or rules and regulations promulgated by the board for the protection of the project . . . . Further, said persons shall be entitled to enjoin any violation of said documents, rules and regulations and shall further be entitled to prosecute any other legal or equitable action that may be necessary to protect the project. If any owner . . . shall deem it necessary to initiate any legal or equitable action for the protection of the project, against any owner, and [he or she] shall be the prevailing party in said action, then said person shall be entitled to reasonable attorneys' fees and costs of said action from said owner for expenses incurred in bringing or initiating said action."

The Bakers contend that because this case arose from a boundary dispute, it was not for the "protection of the project," and thus section 8.6 of the CC&R's is inapplicable. The Bakers, however, develop no argument and cite no supporting legal authority. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) The trial court found that claims under the CC&R's, such as the Bakers' action, are for the "protection of the project" within the meaning of section 8.6 of the CC&R's, which also states the rules and regulations that apply to Solamar are for "protection of the project." The Bakers present nothing to persuade us otherwise.

Additionally, the Bakers contend that under section 8.6 of the CC&R's, only the initiator of a legal action is entitled to attorney fees as Civil Code section 1717's reciprocity provision does not apply to the CC&R's.^[1] Without including any discussion of the case, the Bakers cite Huntington Landmark Adult Community Assoc. v. Ross (1989) 213 Cal.App.3d 1012 as being sufficiently analogous to lend support to their contention. Huntington, however, rejected the argument the Bakers raise here and held a " '[p]rovision for attorney fees in a declaration of restrictions constituting a binding equitable servitude is a "contract" within the meaning of Civil Code section 1717.' " (Id. at p. 1024, citing Mackinder v. OSCA Development Co. (1984) 151 Cal.App.3d 728, 738.) Civil Code section 1354, which applies to common interest developments, provides the "covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development." (Civ. Code, § 1354, subd. (a), italics added.)

Section 8.6 of the CC&R's and Civil Code section 1717 provide the basis for an award of attorney fees to the Tramutolas, who unquestionably prevailed on the complaint and cross-complaint. Further, there is a statutory basis for fees as subdivision (c) of Civil Code section 1354 provides, "In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs."

II

Reasonableness of the Award

"The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. [Citation.] The court may also consider whether the amount requested is based upon unnecessary or duplicative work." (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) "The 'experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.' " (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)

The Bakers contend the $300 hourly rates of the Tramutolas' initial attorney, Richard Macgurn, and succeeding attorney, Gregory Kane, are excessive and "$200 per hour is at the high end of 'reasonable.' " "The reasonable hourly rate is that prevailing in the community for similar work." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

Macgurn submitted a declaration that stated the "fees charged represent a reasonable hourly rate for the services provided by an attorney of my experience." Kane submitted a declaration that stated, "I am a member of the American Board of Trial Advocates and have tried well over fifty trials. I have been practicing law in San Diego since 1980. I have handled numerous cases involving disputes over real property, including issues of adverse possession, prescriptive easements, trespass as well as other issues." The declaration also stated, "I concur with the opinion of Richard Macgurn, my predecessor counsel, reasonable fees for the services rendered are $300.00 per hour for my services."^[2]

The Bakers' attorney, Stephen Modafferi, of Fitzsimmons & Associates, submitted a declaration that stated that firm "has specialized in law concerning mobilehome parks for some twenty years. My current billing rate as a 20-plus year practicing attorney is $200.00 per hour, which is reasonable for a case of this type." The Bakers, however, submitted no evidence establishing that $300 per hour is not within the range charged by other attorneys in the community with similar experience.

Additionally, the Bakers assert "Kane's firm should be reimbursed, if at all, in accordance with the insurance defense 'panel rates' charged by [his] firm. Neither [the Tramutolas] nor their counsel should be permitted to reap a windfall of unearned fees." The Bakers, however, cite no supporting authority for that proposition, and thus we may treat it as waived or meritless. (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.)

In any event, in PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th 1084, the court rejected an argument similar to the Bakers', that "awarding fees to in-house counsel based on prevailing market rates for attorney services . . . 'most likely constitutes an unjustified windfall.' " (Id. at p. 1097.) The court held that "[r]equiring 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 unwarranted burden and bad public policy.' " (Id. at p. 1098.) The court here acted within its discretion by relying on objective standards instead of the amounts Kane may have charged the Tramutolas' insurer.

Additionally, the Bakers, without any citation to the record, complain that Kane's "initial fee demand was not supported by detailed billing accounts," and the court "ordered that supplemental papers be filed by [Kane]." The Bakers, however, develop no particular argument concerning this issue and show no resulting prejudice.

The Bakers also assert the fee award is excessive because the CC&R's do not apply to their tort causes of action against the Tramutolas, and those claims "were obviously not for the protection of the project." "If an action asserts both contract and tort or other noncontract claims, [Civil Code] section 1717 applies only to attorney fees incurred to litigate the contract claims." (Santisas v. Goodin, supra, 17 Cal.4th 599, 615.) The Bakers ignore, however, that fee apportionment is within the trial court's discretion, and no apportionment is required when contract and tort claims are " ' "inextricably intertwined," ' [citation], making it 'impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units.' " (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.) The court here properly declined to apportion fees because the Bakers' claims for personal injury and property damage were dependent on their claim the Tramutolas violated the CC&R's.

The Bakers also assert they were the prevailing parties at the temporary restraining order and preliminary injunction stages, and thus the Tramutolas should not be awarded any fees incurred on those issues. They also submit that "[t]o the extent that there is no record of decision before this court from which to examine the trial court's exercise of judicial discretion, the attorney's fees and costs award should be overturned." We decline to consider these matters, as again, the Bakers cite no supporting authority. It is not this court's duty to develop a party's arguments. Rather, we are entitled to the assistance of counsel.

The court reduced the Tramutolas' attorney fees request by $32,183.99 based on excessive time spent on some tasks, such as conferences among attorneys, correspondence to and from attorneys, review of files and documents, preparation of discovery responses and preparation of opposition to motions for judgment notwithstanding the verdict and new trial. The court also deleted time spent on insurance coverage issues and the first appeal, since it was then pending in this court. The Bakers have not shown the award of $43,952 constitutes abuse of discretion.

III

Attorney Fees on Appeal

The Tramutolas seek attorney fees incurred in this appeal and the earlier appeal.

" '[I]t is established that fees, if recoverable at all--pursuant to either statute or [the] parties' agreement--are available for services at trial and on appeal.' " (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927; Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) The Tramutolas are the prevailing parties in both appeals, and thus they are entitled to contractual and statutory fees. "Although this court has the power to fix attorney fees on appeal, the better practice is to have the trial court determine such fees." (Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 498.)

DISPOSITION

The order is affirmed. The matter is remanded to the trial court for its determination of the amount of an attorney fees award to the Tramutolas for the two appeals. The Tramutolas are also entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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^[1] Civil Code section 1717, subdivision (a) provides in part: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs."

^[2] The Bakers complain that "Kane's billing rate is not supported by the declaration of . . . Macgurn as to . . . [Kane's] own rates," and "[t]o the extent that . . . Macgurn's statement is included in . . . Kane's declaration, it is objected to as hearsay." Kane's declaration sufficiently supports his billing rate, and it does not rely on Macgurn's declaration. Rather, Kane's declaration states that his and Macgurn's opinions regarding the reasonableness of $300 per hour are the same. Hearsay is not involved.