Fink v. Moreno, Becerra & Guerrero

Filed 6/26/08 Fink v. Moreno, Becerra & Guerrero CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a post-judgment order of the Superior Court of Los Angeles County, Rita Miller, Judge. Affirmed.

David Fink, in pro. per., for Plaintiff and Appellant.

Gordon & Rees, Gary J. Lorch, Yaron M. Tilles and Aaron P. Rudin for Defendants and Respondents.

_______________________________________

In this appeal, plaintiff David Fink (plaintiff) challenges an award of attorneys fees made in favor of defendants Moreno, Becerra & Guerrero, Inc., Moreno, Becerra, Guerrero & Casillas, Inc., Moreno, Becerra & Casillas, Inc., Danilo J. Becerra, Gregory W. Moreno and Michael A Guerrero (defendants). The award of fees was made because the defendants are the prevailing parties in this suit,^[1]the suit is based in part on a cause of action for breach of contract, and there is a provision in the contract for an award of fees to the prevailing party in a suit brought to enforce the contract. The contract is a retainer agreement for legal representation, plaintiff is the client, and the defendants are the attorneys he hired to represent him.^[2]

The several issues raised by plaintiff in this appeal are without merit because they are not supported by the law governing awards of attorneys fees, or because the appellate record does not support plaintiffs contentions. We will therefore affirm the order for fees and costs.

BACKGROUND OF THE CASE

The award of attorneys fees to defendants was made after the trial court sustained, without leave to amend, a demurrer to plaintiffs third amended complaint and filed a judgment of dismissal. Thereafter, defendants filed a memorandum of costs, which included a claim for attorneys fees. The cost memo indicated a specific amount of fees sought but also indicated that attorneys fees would be sought by noticed motion. Plaintiff filed a motion to tax costs and defendants filed opposition to the motion, however plaintiff did not include the opposition in the clerks transcript.

Plaintiffs motion to tax costs was granted in part. The court ruled that the attorneys fees claimed on the memorandum of costs would be disallowed without prejudice to defendants filing a motion for attorneys fees. The court also disallowed a portion of defendants claim for service of process and ruled that defendants could recover $5,859.72 as costs at that point in time.

Defendants then filed a motion for contractual attorneys fees and plaintiff filed opposition. The reporters transcript indicates that defendants filed reply papers but plaintiff did not include those in the appellate record. The motion was heard on April 4, 2007, and at that time the court went over in some detail the lengthy tentative ruling that it had prepared for the hearing. The court indicated defendants had not presented sufficient evidence to support their motion and it gave them an opportunity to file supplemental papers, and gave plaintiff time to respond. The court indicated that after plaintiff filed his response, the motion for attorneys fees would stand submitted. Plaintiff did not include, in the appellate record, the defendants supplemental papers, nor his response to them.

On May 10, 2007, the court issued an order on submitted matter, awarding defendants $95,165 as the reasonable attorneys fees and costs. The minute order states that the court apportioned the fees and costs so as to eliminate recovery on the tortious interference claims and . . . made adjustments to reflect the amount of reasonable attorneys fees and costs.^[3]

On June 26, 2007, the court filed a judgment for award of attorneys fees and costs in which it decreed that defendants shall recover the sum of $101,024.72, which sum includes the two prior awards. Thereafter, plaintiff filed this timely appeal.

DISCUSSION

1. Standard of Review

The legal basis of an award of attorneys fees is a question of law on which we exercise our independent judgment. Once it is determined that a party is entitled to attorneys fees, the amount of fees awarded is left to the trial courts sound discretion because it is the trial judge who is in the best position to evaluate the legal services rendered by the attorneys. The party challenging the award must demonstrate there is no legal basis for it or the amount awarded is a clear abuse of discretion. (Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677; Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522-524.)

2. The Doctrine of Judicial Estoppel Does Not Preclude
an Award of Attorneys Fees to Defendants

Plaintiff asserts defendants should be judicially estopped from claiming attorneys fees as costs of suit because at various times while the case was pending in the trial court defendants asserted that the subject retainer agreement does not contain an attorneys fees provision. Specifically, plaintiff asserts that defendants filed three motions to strike in which they made that assertion.

Courts will not apply the doctrine of judicial estoppel unless the party who has relied on inconsistent litigation positions was successful in asserting the first position. Here, the trial court ruled judicial estoppel does not apply to defendants claim for attorneys fees because [a]lthough defendants made arguments regarding the prayer for attorney fees, the court never ruled on those arguments. The court cited People ex rel. Sneddon v. Torch Energy Services, Inc. (2002) 102 Cal.App.4th 181, 189.) By referencing the prayer for attorneys fees, the court apparently meant the prayer in the original complaint and/or the various amended complaints filed by plaintiff in this case.^[4]

In People ex rel. Sneddon v. Torch Energy Services, Inc., supra, 102 Cal.App.4th at p. 189, the court explained that [j]udicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. (Italics added; accord Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) Thus, besides showing that the party against whom the doctrine is asserted previously took an inconsistent position, the person who asserts judicial estoppel must also show that the first position was adopted by the first tribunal in some manner such as by rendering a favorable judgment. (Ibid; accord Aguilar v. Lerner, supra, 32 Cal.4th at p. 986 [where the court stated that a party asserting judicial estoppel must show that the party adopting different positions was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true].)^[5]

Despite these very clear directives from the courts in People ex. rel. Sneddon and Aguilar that the party asserting inconsistent positions must have been successful in its asserting its earlier position, indeed, despite plaintiffs own citation to Aguilar in his appellate briefs, and despite the trial courts observation in this case that it never ruled on defendants motions to strike from plaintiffs prayer his claim for attorneys fees, plaintiff continues to assert the applicability of the doctrine of judicial estoppel to this case. Plaintiff cites to Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171 and observes that the Aguilar court quotedJackson.

However, the part of Jackson that the Aguilar court quoted is not the part of Jackson upon which plaintiff relies in this appeal. What the Aguilar court quoted from Jackson was Jacksons statement of the elements of the doctrine of judicial estoppel, which as noted in footnote 5 ante, includes that the party who asserts inconsistent positions was successful in that the tribunal adopted the earlier position or accepted it as true. (Aguilar v. Lerner, supra, 32 Cal.4th at pp. 986‑987, quoting from Jackson v. County of Los Angeles, supra, 60 Cal.App.4th at p. 183.) In contrast, plaintiff relies on language in a footnote in Jackson where the court observed that [u]nder the majority view, the party sought to be estopped must have been successful in asserting the earlier position. [Citations.] If the earlier position was not adopted by the tribunal, there is no danger of inconsistent results and thus no impairment of the judicial process. [Citations.] Nevertheless, judicial estoppel is an equitable doctrine. [Citations.] Consequently, we cannot rule out the possibility that, in a future case, circumstances may warrant application of the doctrine even if the earlier position was not adopted by the tribunal. [Citation.] (Jackson, supra, 60 Cal.App.4th at pp. 183‑184, fn. 8, italics added.)

Plaintiffs appellate position that judicial estoppel applies in this case is not supported by his reliance on this italicized language in footnote 8 in Jackson. In adopting Jacksons statement of the elements of judicial estoppel, the Supreme Court of California in Aguilar adopted the requirement that a partys earlier inconsistent position must have been successful. For that reason alone, it is of no importance to this appeal how the federal courts or courts in other states handle the issue of the elements of judicial estoppel. Therefore, like the trial court, we find that judicial estoppel does not preclude defendants from asserting a right to contractual attorneys fees.

3. Plaintiffs In Propria Persona Status Does Not Preclude an
Award of Attorneys Fees to Defendants

Plaintiff has represented himself in this case. Based on that self-representation status, he contends that Civil Code section 1717, which provides for reciprocal contractual attorneys fees, cannot apply in this case to permit an award of fees to defendants. Plaintiff is wrong.

Section 1717 states in relevant part: In any action on a contract, where the contract specifically provides that attorneys 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 attorneys fees in addition to other costs.

Section 1717 states that reasonable attorneys fees are to be fixed by the court, and shall be an element of the costs of suit. Code of Civil Procedure section 1032 provides that [e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding, and section 1032 defines prevailing party as, among others, a defendant in whose favor a dismissal is entered. Defendants were the prevailing parties in this case. Their demurrer to plaintiffs third amended complaint was sustained without leave to amend and this suit was dismissed.

Despite defendants position as the prevailing parties, plaintiff argues that defendants are not entitled to attorneys fees because the California Supreme Court held in Trope v. Katz (1995) 11 Cal.4th 274 that attorneys who represent themselves in a lawsuit are on the same footing as litigants of other occupations who represent themselves and are not entitled to contractual attorneys fees as a prevailing party under section 1717. Thus, plaintiffs argument goes, since section 1717 was intended to provide for reciprocity/mutuality of remedy in contractual provisions for attorneys fees, and since plaintiff could not have recovered attorneys fees if he had been the prevailing party in this suit since he represented himself, then defendants cannot recover fees either even though they were represented by attorneys in this case.

Plaintiffs argument ignores the two bases of the Supreme Courts decision in Trope. There, the court noted that section 1717 speaks of attorneys fees that are incurred for the purpose of enforcing the contract, and further noted that incurring attorneys fees means that one pays, or becomes liable to pay, fees in exchange for legal representation, something which does not happen when one represents ones self.^[6] The court also noted that litigants who represent themselves but who are not attorneys cannot recover attorneys fees under section 1717 when they are the prevailing party in a suit on a contract, and thus, since section 1717 was designed to effect mutuality of remedy, permitting pro se attorneys to recover attorneys fees under section 1717 would conflict with the purpose of section 1717. Neither of those considerations, however, are present with respect to defendants in this case. Defendants have been represented by attorneys, and their attorneys demonstrated to the trial court that defendants are being charged attorneys fees for the representation given to them.

The mutuality of remedy intended by section 1717 is the right to recover, as a prevailing party in an action on a contract, fees incurred in that position. Since plaintiff would have been entitled to contractual attorneys fees under section 1717 if he (1) had been represented by an attorney in this case, (2) had been liable to pay for that representation, and (3) had been the prevailing party, then defendants are entitled to attorneys fees under section 1717 since they were represented by attorneys, they are being charged for that legal representation, and they are the prevailing parties.

Plaintiffs reliance on Sessions Payroll Management, Inc. v. Noble Construction Co., supra, 84 Cal.App.4th 671 is misplaced since that case involved the question under what circumstances a defendant who is a signatory to a contract with an attorneys fee provision can recover attorneys fees when it prevails in a suit brought by a plaintiff who is a third party beneficiary rather than a signatory to that contract. This court held the answer is that the plaintiff could only recover fees as a prevailing party if the contracting parties intended it to be entitled to fees, and since there was no such intent in that case, the prevailing defendant/signatory to the contract could not recover fees against the plaintiff as a prevailing party. In the instant case, plaintiff, when quoting from our holding in that case, gave a false description of that holding by leaving out the word nonsignatory that we used to describe the plaintiff therein.

4. Plaintiff Has Not Demonstrated That the Trial Court Failed to Consider
the Extent to Which Defendants Alleged Misconduct Contributed
to the Amount of Attorneys Fees Defendants Incurred

Plaintiff sets out several areas in which he claims defendants committed misconduct in the trial court, and he argues that (a) such misconduct contributed to the amount of their attorneys fees and (b) the trial court never considered that contribution when it determined what reasonable attorneys fees should be. The appellate record is inadequate to support any portion of plaintiffs argument because the record does not contain the papers filed by defendants and plaintiff in response to the trial courts tentative ruling; nor does it contain two other sets of papers filed by defendants concerning attorneys fees. Thus, we cannot review the papers which the trial court had when it decided the amount of attorneys fees. Moreover, the courts May 10, 2007 minute order states that it made adjustments to arrive at an amount of reasonable attorneys fees.

It is the responsibility of the person challenging a judgment or an order to provide the reviewing court with an adequate record. As noted above, the amount of fees awarded to a party is left to the sound discretion of the trial court because it is the trial judge who is in the best position to evaluate the legal services rendered by the attorneys, and the party challenging the award must demonstrate that the amount awarded is a clear abuse of discretion. Such demonstration includes providing an adequate record on appeal.

Further, any issues relating to the procedural or substantive merits of the demurrers or the discovery matters in the instant case (as opposed to their impact on the amount of attorneys fees incurred by defendants) were, or should have been, addressed in the prior appeal in this matter (B196118) and they are not an issue in this appeal.

DISPOSITION

The post-judgment order from which plaintiff has appealed is affirmed. Costs on appeal to defendants.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P.J.

We Concur:

KITCHING, J.

ALDRICH, J.

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^[1] In a prior unpublished opinion in this case (B196118), we determined that the trial court properly sustained demurrers to plaintiffs third amended complaint without leave to amend, and further determined that the discovery issues raised by plaintiff in that prior appeal did not provide cause for reversing the judgment of dismissal.

^[2] The retainer agreement signed by plaintiff and defendants contains the following provision: If suit is filed to enforce the terms of this agreement, the prevailing party shall pay [sic] all reasonable cost and disbursements incurred, including reasonable attorneys fees.

^[3] By tortious interference claims, the trial court apparently had reference to plaintiffs cause of action for interference with prospective advantage.

^[4] It is irrelevant that at the time defendants filed their motions to strike (which according to the trial courts tentative ruling included arguments that plaintiffs prayer for attorneys fees should be stricken), they also filed demurrers and their demurrers were sustained. The trial court specifically stated, in its tentative ruling on defendants motion for attorneys fees, that the motions to strike were not ruled on.

Moreover even if, as asserted by plaintiff in his appellate brief, the trial court in ruling on the demurrer to plaintiffs second amended complaint, suggested to plaintiff that he might want to leave out of his third amended complaint some things to which defendants objected in their motion to strike portions of the second amended complaint, that is not the equivalent of actually ruling on the motion to strike. Further, plaintiff does not indicate that the trial court was specifically referring to an assertion by defendants that the prayer for attorneys fees should be stricken. Plaintiff just states that the trial court indicated to him that he might want to leave some things out of his next amended complaint.

^[5] The Aguilar court listed five elements of judicial estoppel:  (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.  (Aguilar v. Lerner, supra, 32 Cal.4th at pp. 986-987.)

^[6] In Lolley v. Campbell (2002) 28 Cal.4th 367, 373, the court recognized that a party may incur attorneys fees, and thus be entitled to an award of fees, even if that party is not personally liable for their payment, such as when the partys attorney is paid by a governmental or charitable entity or has agreed to represent the party without charge. In those cases, the fees are incurred on behalf of the party even if he is not responsible to pay them. That is different from a party who represents himself and thereby incurs no fees.