Ripken v. Ballard
Filed 10/3/13 Ripken v. Ballard CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
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>
MADELYN M. RIPKEN et al., Plaintiffs and Respondents, v. LOIS BALLARD, Defendant and Appellant. | C070158 (Super. Ct. No. CV011803) |
After the
trial court found defendant Lois Ballard had disobeyed a 2002 judgment
restraining her and her agents from trespassing, blocking, or putting debris on
the neighboring property of plaintiffs Madelyn M. Ripken, Ryan D. Ripken and
Susan J. Ripken (the Ripkens), it ordered Ballard to pay the Ripkens’ attorney
fees and costs (Code Civ. Proc.,
name="_ftnref1" title="">[1]
§ 1218, subd. (a)).
In this pro
se appeal, Ballard contends the court erred in awarding attorney fees because
the Ripkens failed to “provide[] competent evidence†to support their
claim. We disagree and affirm.
BACKGROUND
Ballard and
the Ripkens own property on West Highway 12 in Lodi. In 2000, the Ripkens filed an action for
declaratory relief and to quiet title to a shared driveway easement across
their property. They alleged that
Ballard and her agents and/or representatives, who operate an auto and RV
repair business on their property, park vehicles and leave car parts and other
materials on the driveway and on the adjacent property.
Ballard
cross-complained to quiet title in the easement herself and sought to enjoin
the Ripkens from limiting her use of the easement. Her son, Rocky Ballard (Rocky), submitted a
declaration in support of Ballard’s application for a
Following a
jury trial, the trial court entered judgment in the Ripkens’ favor (the
judgment). The court declared that
Ballard has no legal interest in any portion of the Ripkens’ property and
permanently enjoined Ballard and “her agents, servants, employees, successors
in interest, representatives . . . including but not limited to
Rocky,†from “trespassing on, blocking; parking cars, vehicles, forklifts or
any other items on; driving on; placing any items or debris on; using for
ingress or egress; damaging, damaging fencing on . . . or in any way
interfering with Ripkens’ quiet use and enjoyment†of their property. The trial court expressly retained
jurisdiction to enforce the judgment.
Ballard
and/or the other enjoined persons failed to comply with the terms of the
judgment and, in November 2010, the Ripkens filed an ex parte application for
an order to show cause why Ballard
should not be held in contempt for violating the judgment and related permanent
injunction. The application was
supported by declarations of Nancy Ripken and her counsel that, although
Ballard and Rocky are aware of the judgment and capable of complying with it,
Ballard and other persons acting on her behalf, including Rocky, Ballard’s
grandson, and her tenant were violating the judgment by blocking, trespassing
on, parking cars on, placing debris on, and damaging the fence and gate on the
Ripkens’ property. Nancy Ripken’s
supporting declaration included photographs of the alleged violations, and an
invoice showing what she paid to install the now-damaged fence between the two
properties. The application sought to
recover damages for repair of the fence, plus attorney fees.
The trial
court granted the Ripkens’ ex parte application, and ordered Ballard and Rocky
to appear at an arraignment and show cause why they should not be held in
contempt for violating the judgment.
A court
trial was conducted on the order to show cause regarding contempt. All parties were represented by counsel. Ballard denied violating the judgment, and
Rocky denied he was bound by it. The
trial lasted one day. Nancy Ripken,
Ballard and her grandson, Mark, testified.
After the
court issued its tentative decision in the Ripkens’ favor, awarding damages and
reasonable attorney fees, the Ripkens filed a
fees of $25,811, together with a motion for attorney fees in that amount
pursuant to section 1218, subdivision (a).
The motion was supported by two declarations of the Ripkens’ attorney
Jennifer A. Scott, in which she identified all attorneys and paralegals who
worked on the matter, and described their training and experience, the tasks
they performed, the hours they worked and their respective billable rates. Ballard opposed the motion.
The court
conducted a hearing on the Ripkens’ motion for attorney fees, at which the only
issue was the amount of fees sought. The
Ripkens’ attorney argued the time spent was reasonable in light of the fact
that the Ripkens had the burden of proof in the contempt proceeding, prepared
all exhibits for submission, drafted (subsequently rejected) settlement
documents and stipulated judgments, and participated in two separate
arraignment hearings conducted for Ballard and Rocky. Ballard’s counsel disputed that the hours
spent were reasonable because the trial was simple and short and no substantial
amount of time was spent communicating with opposing counsel or as a result of
continuances. The court indicated it
would review the Ripkens’ attorneys’ billing records in camera prior to ruling but
the record does not indicate whether it did so.
The trial
court awarded the Ripkens the attorney fees they requested and included the
award in its statement of decision and judgment.
DISCUSSION
Willful
failure to comply with an order of the court constitutes contempt. (In re
Rubin (2001) 25 Cal.4th 1176, 1179.)
A trial court may punish contempt under section 1218 if it finds: (1) a valid court order, (2) the alleged
contemnor’s knowledge of the order, and (3) noncompliance. (Moss
v. Superior Court (1998) 17 Cal.4th 396, 428; Code Civ. Proc.,
§ 1209, subd. (a)(5).) To encourage
parties to prosecute contempt proceedings and to indirectly encourage all
parties to abide by the terms of court orders, section 1218 authorizes trial
courts to award complainants attorney fees and costs for initiating and
prosecuting contempt proceedings. (
145 Cal.App.4th 1, 10; see also Rickley
v. Goodfriend (2012) 207 Cal.App.4th 1528, 1537-1538 [because
respondents “simply disregarded the judgment entered against them,†if an
attorney-client relationship is proved to exist, plaintiff’s request for
attorney fees should be granted].)
Ballard
does not dispute that an award of attorney fees was proper under section 1218;
she contends only that the amount was not reasonable.
Challenges
to the amount of attorney fees awarded is generally reviewed under an abuse of
discretion standard. (
(2011) 195 Cal.App.4th 373, 378.)
“The ‘experienced trial judge is the best judge of the value of
professional services rendered in his court.’ â€
(Serrano v. Priest (1977)
20 Cal.3d 25, 49.)
“[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
Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The lodestar figure may then be adjusted,
based on consideration of factors specific to the case, in order to fix the fee
at the fair market value for the legal services provided. [Citation.]â€
(Ibid.)
Ballard
complains that, because she “ha[s] no time records to review,†it was
impossible to determine if the Ripkens’ attorney submitted “duplicative
billings.†She made this exact argument
in the trial court, and the Ripkens’ counsel responded by submitting a
supplemental declaration stating that “my office did not ‘double bill’ in these
proceedings†and the Ripkens do not seek to recover the hours spent by a second
attorney attending various hearings, but only to recover the second attorney’s
time spent assisting at trial.
It is not
necessary to provide detailed billing statements or timesheets to support an
award of attorney fees under the lodestar method. Declarations of counsel setting forth the
reasonable hourly rate, the number of hours worked, and the tasks performed are
sufficient. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224,
254; Steiny & Co. v. California
Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.) Thus, Ballard cannot challenge the fee award
by asserting the Ripkens failed to show with time records their entitlement to
attorney fees.
DISPOSITION
The order
awarding attorney fees is affirmed. The
Ripkens shall recover their costs on appeal.
(Cal. Rules of Court, rule 8.278 (a)(1), (2).)
ROBIE , J.
We concur:
RAYE , P. J.
NICHOLSON , J.
name="_ftn1" title="">[1]
Unspecified statutory references
are to the Code of Civil Procedure.
