Levy v. Rubin, Palache

Filed 6/20/07 Levy v. Rubin, Palache CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Rubin, Palache & Associates and its individual partners Michael Rubin and Michael Palache (RPA) appeal the trial courts ruling that concluded they were not prevailing parties and denied them attorney fees and costs. We find no abuse of discretion and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In November 1999, appellants former employee, Brian Levy, filed a complaint asserting several causes of action against RPA and his subsequent employer, Rubin, Palache, Miller & Associates (RPMA). Although Levy recovered a judgment against RPMA, he did not succeed on any cause of action against RPA. RPA also filed a cross-complaint for declaratory relief against Levy and RPMA, seeking a declaration that Levy owed RPA approximately $14,600 when he left his employment with the partnership. The court denied the cross-claims and concluded: As both sides were partly successful in defeating the affirmative claims of the other, the Court concludes that there is no prevailing party as between Levy and the RPA Defendants and Cross-Complainants. ^[1] RPA timely appealed. No respondents brief has been filed, despite the parties stipulation to allow respondent 60 additional days for that purpose.

DISCUSSION

California Rules of Court, rule 8.200(a)(2) requires that [e]ach respondent must serve and file a respondents brief. If no respondents brief is filed after service of notice by our court clerk, the court will decide the appeal on the record, the opening brief, and any oral argument by the appellant. (Rule 8.220(a)(2).) (See In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 626.) Respondent was served with the notice required by the rules, but has filed no brief. In these circumstances, the judgment is not automatically reversed. (In re Bryce C. (1995) 12 Cal.4th 226, 232.) Instead, we  examine the record on the basis of appellants brief and . . . reverse only if prejudicial error is found. [Citations.] . . . . Because of the general presumptions favoring the judgment, many can and should be affirmed even absent a brief or other appearance by the respondent. (Id. at p. 233; accord, Conservatorship of Pamela J. (2005) 133 Cal.App.4th 807, 815-816; see also Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226-227 [although respondent filed no brief, the burden remained on appellant to demonstrate error].)

RPA argues that it should have been determined to be the prevailing party, and that it was entitled to attorney fees under the provisions of the Labor Code.^[2] But no cause of action was asserted against RPA under the Labor Code, and RPA cites no authority to support its claim that section 218.5 would have authorized attorney fees in these circumstances.^[3] Nor has RPA shown that the trial court abused its discretion in finding there was no prevailing party as between RPA and Levy.^[4] (See Hunt v. Fahnestock (1990) 220 Cal.App.3d 628, 633 [trial court has broad discretion in determining prevailing party for purpose of awarding attorney fees under Civ. Code,  1717]; Nasser v. Superior Court (1984) 156 Cal.App.3d 52, 59-60 [trial court did not abuse its discretion in concluding neither party prevailed].)

The court found that both Levy and RPA were successful in defeating each others affirmative claims, and concluded that neither qualified as a prevailing party. In its order directing preparation of the judgment, the court reiterated its finding that as between [Levy and RPA], neither shall be deemed the prevailing party for the purposes of determining entitlement to costs pursuant to Labor Code  218.5, or otherwise. The court also stated: As noted in the Statement of Decision filed herein on May 20, 2005, Plaintiffs First [cause of action] in the [operative complaint] did not seek Labor Code penalties against RPA. Having successfully distanced itself from RPMA in the overall findings of the Statement of Decision, it would ill behoove RPA to suggest it was the subject of the causes of action as to which plaintiff was the prevailing party.^[5]

Appellants brief cites only a single case, Santisas v. Goodin (1998) 17 Cal.4th 599, for the proposition that [t]he general rule is that the results that are achieved determine who is the prevailing party. That case did not involve Labor Code section 218.5. Instead, the court applied ordinary rules of contract interpretation to determine whether the seller defendants were prevailing parties within the meaning of a contractual attorney fees provision, after plaintiffs voluntarily dismissed their action with prejudice. (Santisas, supra, at pp. 608-609.) In Santisas, the trial court awarded fees to defendants as the prevailing party. (Id. at p. 604.) Here, by contrast, the court concluded that each party was partially successful in defeating the other, and therefore neither party prevailed. Appellants have not shown the courts conclusion was an abuse of discretion.

DISPOSITION

The judgment is affirmed.

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Siggins, J.

We concur:

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McGuiness, P.J.

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Parrilli, J.

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^[1] A judgment in favor of Levy and a postjudgment order awarding him attorney fees and costs against RPMA is the subject of a separate pending appeal.

^[2] Labor Code section 218.5 provides, in relevant part: In any action brought for the nonpayment of wages . . . the court shall award reasonable attorneys fees and costs to the prevailing party if any party to the action requests attorneys fees and costs upon the initiation of the action.

^[3]RPA does not assert any other statutory or contractual basis that would support an award of attorney fees.

^[4] In fact, appellants opening brief does not even state the applicable standard of review, much less show that application of that standard should lead to reversal of the trial courts finding.

^[5] The fact that the complaints prayer for relief did not specify which forms of relief were sought against which defendant(s) is not determinative, because RPA was not named as a defendant in the causes of action for violation of the Labor Code. Nor is it significant, for these purposes, that RPAs answer sought unspecified attorney fees and costs.