Cote v. Finley

Filed 7/20/07 Cote v. Finley CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellants Lincoln and LaTonya Finley appeal an award of attorney fees and costs granted by the trial court after this court affirmed permanent injunctions entered against them precluding violence or threats of violence. (Hanson-Briggs Law Group v. Finley (June 27, 2006, A110200, A110263, A110270) [nonpub. opn.] (hereafter Hanson-Briggs.) Because the trial court did not abuse its vast discretion in awarding attorney fees and costs, we affirm.

I.
Factual and Procedural
Background

The procedural and factual background of the ongoing dispute among the parties was set forth in detail in our previous Hanson-Briggs opinion, and may be very briefly reviewed here. The Finleys and respondent Raymond Cot were involved in a number of real estate transactions, in which Cot later accused the Finleys of defrauding him out of several thousand dollars. Cot ultimately hired Christopher Hanson (an attorney with Hanson-Briggs Law Group), and, on October 29, 2004, filed a lawsuit against the Finleys and others for fraud and other causes of action. (Cot v. Realty World Unlimited Real Estate et al. (Super. Ct. Alameda County, 2004, No. 04-182798) (Realty World lawsuit[1]).)

Before the Realty World lawsuit was filed, the Finleys, Cot, and Hanson were involved in a few hostile interactions, as later alleged in petitions for antiharassment injunctions. In the first incident, the Finleys arrived uninvited at the Hanson-Briggs Law Groups offices while Cot, Hanson, and his real estate broker were discussing property that was the subject of legal action with the Finleys. Mr. Finley screamed at Cot, who was intimidated. Hanson considered calling the police, but was eventually able to persuade Mr. Finley to leave on his own. In the second incident, Mrs. Finley called Cot and told him that their dispute would end with [Cot] lying in a pool of blood,  a threat that Cot took seriously because he believed the Finleys to be violent people. In the third incident, the Finleys followed Hanson in their car after a court hearing, cutting him off, screaming at him, and making threatening hand gestures at him.

Cot, Hanson, and Hanson-Briggs Law Group filed petitions for injunctions against the Finleys prohibiting violence or threats of violence under antiharassment statutes. (Code Civ. Proc.,  527.6, 527.8.)[2] The trial court granted three of them: the first protected Hanson-Briggs Law Group from Mr. Finley, the second protected Cot from Mrs. Finley, and the third protected Cot from Mr. Finley. In Hanson-Briggs, this court affirmed the granting of the three permanent injunctions. This court also denied a motion for attorney fees, without prejudice to renewing the motion in the trial court. (This court did not, as the Finleys claim, award attorney fees.)

Following remittitur, Cot filed a motion for attorney fees and costs pursuant to section 527.6, subdivision (i). He sought $45,200.80 in fees and $1,922.21 in costs. In support of the motion, Cot submitted detailed billing statements. Portions of the billing statements were redacted to exclude attorney expenses and costs that were unrelated to seeking antiharassment injunctions. For those redacted portions, the total amount billed was visible, but the description of services rendered was not. The Finleys opposed the motion. A hearing was scheduled on the motion; however, no transcript of the hearing appears in the record on appeal.

The trial court granted Cots motion in part. The trial courts order stated: The moving papers set out the hours invested in the matter by attorneys for the moving party and reasonable rates for the services rendered. Unrelated time, or time of Mr. Hanson on self-representation, has been excluded. Based on this showing, if a fee award to the prevailing party was mandatory, the full amount of the request would be granted. [] However, an award of fees pursuant to [section 527.6, subdivision (i)] is discretionary, and in the vast majority of cases such as this fees are not awarded. In reviewing this matter, the court has attempted to assess what portion of the fees incurred may be said to be related to what might normally be expected in a case such as this and what portion might be attributable to the vexatious aspects of it. [] Under all the circumstances, the court concludes that an award of $30,000.00 is appropriate against appellants. The Finleys timely appealed. On March 28, 2007, this court denied Cots motion to dismiss the appeal based on the argument that the Finleys appealed from a nonappealable order. (Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal.App.4th 693, 706 [attorney fees award separately appealable as an order after judgment].)

II.
Discussion

Cot filed petitions against the Finleys pursuant to section 527.6, which sets forth a procedure for a person who has suffered violence or credible threats of violence to seek an injunction prohibiting harassment. Section 527.6, subdivision (i) provides that [t]he prevailing party in any action brought under this section may be awarded court costs and attorneys fees, if any. (See also Byers v. Cathcart (1997) 57 Cal.App.4th 805, 812.) Authorization for the recovery of attorney fees includes authorization for recovery of attorney fees incurred on appeal. (Id. at p. 813.) The Finleys apparently do not challenge the legal basis for awarding fees, or argue that Cot was not the prevailing party under the relevant statute. ( 527.6, subd. (i).) The Finleys challenge the amount of attorney fees awarded, which we review for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096; Elster v. Friedman (1989) 211 Cal.App.3d 1439, 1443 [trial courts determination of attorney fees pursuant to section 527.6 upheld absent a manifest abuse of discretion].)

In attacking the award of attorney fees in this case, the Finleys devote much of their opening brief to arguing the merits of the underlying injunctions against them, as well as the merits of other legal action between the parties. For example, they claim that there were several false statements in Cots declaration supporting the petitions for injunctions. Having already affirmed the injunctions against the Finleys, however, we need not revisit them. (Hanson-Briggs, supra, A110200, A110263, A110270.)

Regarding the attorney fees award, the Finleys first claim that the billing statements submitted to the trial court contained services never rendered, as well as fees for the self-representation of Cots attorney. They claim that the trial court went beyond [the] scope of [its] judicial duties when it excluded attorney fees for self-representation, as opposed to denying attorney fees altogether. It appears that the Finleys are mistaken about the role that the trial court played in awarding attorney fees. The trial court specifically noted that Cots moving papers had excluded unrelated time, or time on self-representation.[3] Taking into account the nature of the litigation and the  vexatious aspects of it,  the trial court awarded Cot less than what he had asked for, something it was entitled to do in light of its broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.)

The Finleys also point to the trial courts statement that in the vast majority of cases such as this [brought under section 527.6] fees are not awarded. They claim that this case should not have been an exception to the rule set forth in the trial courts order; however, they do not offer any factual or legal basis to demonstrate that the trial court abused its discretion.

The Finleys repeatedly accuse Cots counsel of professional misconduct. They point to no factual basis for this assertion, other than their unsubstantiated claims that Cot and his attorneys have, for example, submitted supposedly false statements and declarations to the trial court. Absent any evidence of professional misconduct, the Finleys fail to show that the trial court abused its discretion. Likewise, the Finleys claim that Cots attorney had a conflict of interest in his representation of Cot; however, they point to no evidence of such a conflict, other than their own unsupported accusations.

The Finleys also state that Cot and his attorney not only submitted fees dating back from August 24, 2004, this billing statement was also submitted to the insurance company in the breach of contract/warranty case in Christopher Hansons Settlement conference statement as part of Christopher Hanson (Hanson-Briggs Law Group) lawsuit against Realty World, et[]al. A review of the billing statements submitted to the trial court in this case show that the first entries for which Cot sought attorney fees were in early December 2004. Cot was billed for the research and drafting of the injunction petitions, which were filed on March 24, 2005. Although the billing statements submitted to the trial court included entries dating back to August 24, 2004, the portions describing services before December were redacted, because they were unrelated to the proceedings for injunctive relief. (Ante, fn. 3.) Whatever statements were submitted to the trial court in the Realty World lawsuit, the record on appeal in this case shows that the billing statements submitted to the trial court reflected work done on the antiharassment injunctions.

The Finleys argue that the billing statements contained unrelated and unearned fees, but they do not direct the court to any specific improper billing entry. Again, the trial court specifically found that unrelated time had been excluded from the billing statements. An employee of the law firm that performed work for Cot submitted a declaration to the trial court stating that Cot had been billed for services rendered, and that he had made payments for each of the billings sent to him. Appellants claim that the billing statements reflected [i]mproper billing practices or padding hourly billing, without directing us to any evidence that was the case. Again, the Finleys are apparently mistaken about the purpose of redacting the billing statements that were submitted to the trial court. (Ante, fn. 3.) Cot did not claim that counsel completed work totaling $124,286.86 on the injunctions, as the Finleys claim. Instead, Cot submitted billing statements that showed amounts billed for work on other matters, but did not seek reimbursement for those fees in this case.

Likewise, there is nothing inconsistent about the fact that Cots original antiharassment petition against Mr. Finley alone sought $1,590 in attorney fees and costs, but he later sought more than $47,000 against both Finleys. The original fee request appears to have been an estimate; the subsequent request for attorney fees that is the subject of this appeal came after a hearing in the trial court on the petitions, as well as consolidated appeals before this court. There is certainly no evidence that the request for attorney fees violated the Finleys due process rights, as they claim.

The Finleys also complain about the participation of Thomas Eastridge in this litigation, claiming that Eastridge declares before the courts of the State of California that he is the attorney of record, even though no stipulation or consent of the parties [was] filed for substitution. Eastridge submitted a declaration in support of Cots motion for attorney fees that indicated he works for a different law firm than Hanson, and that he worked on this matter in the trial court proceedings, as well as when the Finleys appealed the granting of injunctions against them. Of course, there is no prohibition against a party hiring attorneys from two different law firms to represent him in an action, and the record reveals no impropriety in connection with Eastridges representation of Cot.

In attacking the costs that Cot sought, the Finleys point to section 527.6, subdivision (p), which provides that [t]here is no filing fee for a petition that alleges that a person has inflicted or threatened violence against the petitioner. Of the $1,922.12 in costs that Cot sought, $1,258 of that total was a charge dated April 1, 2005, for Petition of employer for Injunction, Superior Court receipts #153601, 153604, 153605, 153606. Although it is unclear why the trial court would charge Cot to file antiharassment petitions, there is no evidence that he did not, in fact, incur those charges. In light of the fact that the trial court awarded Cot about $13,200 less than what he originally sought, the Finleys fail to demonstrate that the trial court awarded Cot any costs that were erroneously incurred.

In short, we find no manifest abuse of discretion in the trial courts award of attorney fees and costs. (Elster v. Friedman, supra, 211 Cal.App.3d at p. 1443.)

III.
Disposition

The order granting attorney fees is affirmed. Respondent shall recover his costs on appeal.

_________________________

Sepulveda, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Rivera, J.

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[1] Appellants appealed an order in the Realty World lawsuit, and that appeal was dismissed by motion July 9, 2007. (A117332.)

[2] All statutory references are to the Code of Civil Procedure.

[3] The Finleys argue that Judge Carvill indicated that he had excluded what he called unrelated time of Christopher Hanson on self-representation. That determination would have been impossible since 90% percent [sic] of the billing statement was dating back from August 2004 and blacked out. This is an apparent reference to the redacted portions of the billing statements, for which Cot did not seek attorney fees.