Daria v. Level Studios



Filed 2/5/15 Daria v. Level Studios CA2/6


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX


HALEY DARIA,

Plaintiff and Appellant,

v.

LEVEL STUDIOS, INC., et al.,

Defendants and Respondents.

2d Civil No. B249801
(Super. Ct. No. SB1341441)
(Santa Barbara County)


Level Studios, Inc. (Level) and Thomas Adamski (collectively "respondents") are the prevailing parties in an action brought by Haley Daria. The trial court determined, inter alia, that Daria's claims were precluded by an earlier settlement agreement. Respondents moved for an award of attorney fees based on a provision in the agreement entitling the prevailing party to fees in any dispute arising under it. (See Civ. Code, § 1717.)[1] The trial court granted the motion.
Daria contends the trial court erroneously relied upon a "materially altered" version of the settlement agreement. This argument was not raised in the trial court; therefore, we do not consider it on appeal. (See Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) We reject her other contentions and affirm.
FACTS AND PROCEDURAL BACKGROUND
Daria owned stock in Level's predecessor, Web Associates, Inc. ("Web Associates"). When Web Associates informed its stockholders that it was considering a merger with WA Associates, LLC, Daria objected. In 2007, Web Associates and Daria resolved her concerns about the merger through a comprehensive Terms of Settlement Agreement and Release. The settlement agreement included a section 1542 waiver by Daria of all known and unknown claims against Web Associates and its officers, directors and successors in interest, including respondents. It also provided that "[i]n any dispute arising under this Agreement, the prevailing party shall be entitled to attorneys' fees and costs, including all expenses reasonably necessary and actually incurred by the prevailing party."
Subsequently, Daria sued respondents and others for fraud, conversion and related claims relating to the merger. After successfully demurring to certain causes of action, respondents moved for summary judgment on the remaining claims. The trial court granted the motion, concluding the claims were released under the settlement agreement. Daria appealed the judgment, which we affirmed. (Daria v. Level Studios, Inc. (July 24, 2014, B243554) [nonpub. opn.].)
As the prevailing parties, respondents moved for an award of attorney fees under section 1717. Following a hearing on November 14, 2012, the trial court granted the motion and amended the judgment to award respondents $254,886 in fees. Daria appeals.
DISCUSSION
"[T]he party prevailing on the contract" is entitled to recover reasonable attorney fees if the contract "specifically provides" for such recovery. (§ 1717, subd. (a); see Code Civ. Proc., § 1033.5, subd. (a)(10)(A).) A trial court's determination of whether a party is entitled to an award of attorney fees, and the calculation of such a fee award, are both reviewed for abuse of discretion. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 315.)
Daria contends the trial court abused its discretion by awarding attorney fees based on the fee clause in the settlement agreement. As in her previous appeal, Daria's briefs do not comply with the rules of appellate procedure. For the most part, they reargue the merits of that appeal and raise a number of disjointed, unintelligible arguments unrelated to the fee award. Daria also fails to provide an adequate record for our review. Her four-volume appendix is largely irrelevant, as it does not include the motion, her opposition or a reporter's transcript of the hearing. The only documents particularly germane to this appeal are the declaration of respondents' counsel filed in support of the motion, the exhibits attached to the declaration, including the settlement agreement, the court's tentative decision to grant the motion (which we discovered in the clerk's file) and the amended judgment.[2]
Daria contends the copy of the settlement agreement provided with the motion, which is attached as Exhibit A to this opinion, is a "materially altered" version of the actual agreement. She acknowledges signing the agreement, but claims that before signing it, she modified it to include additional terms. Daria asserts respondents "whited out" those additional terms and provided her, and later the trial court, with the altered version. She does not have a copy of the unaltered version and claims respondents have refused to produce it.
It is appellant's burden to affirmatively demonstrate error. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132-133; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) That Daria is self-represented does not change this burden. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 129-130.) Although she claims the trial court improperly based the fee award on a "materially altered" version of the agreement, nothing in the record before us suggests that she objected to the version provided with the motion or that she submitted evidence to demonstrate the purported alteration. The issue is not mentioned in the trial court's four-page tentative ruling, and neither Daria's opposition to the motion nor the hearing transcript is available for review. Absent any indication the issue was raised in connection with the motion, we deem it forfeited on appeal. (See SCI Calif. Funeral Services, Inc. (2012) 203 Cal.App.4th 549, 563-565; Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726 [failure to object to evidence admitted by the trial court forfeits on appeal the argument such evidence was inadmissible]; Hepner v. Franchise Tax Bd., supra, 52 Cal.App.4th at p. 1486 ["Points not raised in the trial court will not be considered on appeal"].)
The trial court's tentative ruling reflects that Daria opposed the motion on four grounds: (1) it was premature; (2) the settlement agreement was "rescinded" by the court; (3) an insurance carrier was responsible for respondents' defense costs; and (4) there was incompetent proof of the amount of fees incurred. The court properly rejected these arguments. The motion was appropriately filed following entry of judgment. (§ 1717, subd. (b)(1).) There was no evidence of any rescission of the agreement, and it is well settled that a prevailing party may recover attorney fees regardless of whether they are being paid by an insurance carrier. (Lolley v. Campbell (2002) 28 Cal.4th 367, 373; Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1410.) As to reasonableness of the fees, the court remarked: "As set forth in Exhibit F, [counsel] spent a total of 1112.9 hours for a total fee of $254,886[], yielding an average rate of $229.03 per hour. The court agrees with defendants that the rates charged by defendants' counsel are reasonable. The court is very familiar with this litigation. The action has been tenaciously litigated by Daria, which necessarily caused defendants to incur substantial fees in defense of the action. Daria presents no evidence that the amount of fees claimed is unreasonable." To the extent Daria challenges these findings, she has failed to demonstrate error.
DISPOSITION
The amended judgment awarding attorney fees to respondents is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED.




PERREN, J.


We concur:



GILBERT, P. J.



YEGAN, J.


















EXHIBIT A


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Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________

Haley Daria, in pro. per., for Plaintiff and Appellant.
Kaufman Dolowich, Voluck & Gonzo, LLP, Kathleen M. Hurly, Gabriel Rubin for Defendants and Respondents.


[1]All statutory references are to the Civil Code unless otherwise stated.
[2]After filing her notice of appeal, Daria filed a series of motions and requests for judicial notice in an attempt to augment the record with documents she claims evidence a fraud upon the trial court. We denied the requests, with one exception. We granted her request to take judicial notice of the record in her earlier appeal (No. B243554). Our review of that extensive record does not disclose any additional documents relating to the motion for attorney fees.