Filed 2/5/18 Duncan v. Nathan CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE


JENNY DUNCAN, et al.,
Plaintiffs and Appellants,
v.
RAND NATHAN, et al.,
Defendants and Respondents.

A147468

(San Francisco County
Super. Ct. No. CGC-14-541544)


In this landlord-tenant dispute, plaintiffs Jenny Duncan and Jennifer Smith (Plaintiffs) appeal following a jury trial and several postverdict orders. We reverse and remand two attorney fee orders, and otherwise affirm.
FACTUAL BACKGROUND
In December 2012, Plaintiffs rented the upstairs unit in a duplex building. Defendant Rand Nathan owned the building and lived in the downstairs unit. Defendant Eileen Burke signed the lease as the “Landlord/Manager.”
For the first 18 months of the tenancy, according to a July 2014 email from Plaintiffs, Plaintiffs and Nathan “had an amicable co-existence for the most part . . . .” In June 2014, this relationship began to break down, apparently over tensions involving Nathan’s attempt to repair some of Plaintiffs’ kitchen appliances. Plaintiffs informed Burke of their frustration with his after-hours repair work, and Burke asked Nathan to respect Plaintiffs’ space and privacy. According to a July email from Plaintiffs to Burke, this phone call made Nathan “very angry” and “caused a severe backlash against us.” Plaintiffs heard Nathan yelling, “ ‘Fuck you’ (over and over and over) . . . . [a]nd ‘this is MY house, I have lived here for 67 years, we will see who leaves’ ‘I will burn the fucking house down around you’ ‘BITCH’ over and over . . . .” Plaintiffs stated they were “frightened and do not feel safe in our own home, especially since he has keys.” In August, Plaintiffs heard Nathan yelling, “ ‘go to hell, bitch’, . . . ‘move out’, ‘I hate you’, ‘no apologies accepted this time’, ‘I’ve had days to plan my attack.’ ” During a phone call later that night, Nathan told Plaintiffs, “ ‘I am going to make it very unpleasant for you to live here, you will want to move.’ ” Plaintiffs moved out the following day.
Burke later informed Plaintiffs: “You gave your 30 day notice, as required by the lease, on August 21, 2014, you owe rent through September 20, 2014, which you have not paid.” Burke deducted this amount from Plaintiffs’ security deposit.
PROCEDURAL BACKGROUND
On September 8, 2014, Plaintiffs filed the instant lawsuit. The complaint asserted causes of action against Burke and Nathan for negligence, breach of the covenant of quiet enjoyment, violations of the San Francisco rent ordinance, constructive eviction, and intentional infliction of emotional distress. Plaintiffs sought general and punitive damages.
In August 2015, Nathan, who had been in propia persona, retained the law firm Steven A. MacDonald & Partners, P.C. (MacDonald Firm). In September, on the eve of trial, following settlement discussions presided over by the trial court, Plaintiffs settled with Nathan for $12,500 each, with attorney fees and costs to be determined by the court. Following this settlement, the MacDonald Firm substituted as counsel for Burke, who had previously been representing herself.
The case proceeded to trial against Burke. After Plaintiffs’ case-in-chief, Burke moved for nonsuit and the trial court granted the motion as to the intentional infliction of emotional distress claim and punitive damages. The jury found that Burke was negligent and her negligence caused harm to Duncan, but not to Smith. The jury found Duncan, Smith, and Nathan were also negligent, and attributed the responsibility as follows: 5 percent to Burke, 10 percent to Duncan, 10 percent to Smith, and 75 percent to Nathan. The jury found Plaintiffs suffered no emotional damages or future economic damages, but found Duncan suffered past economic damages of $2,153.03—the amount that Burke deducted from the security deposit. The jury found for Burke on all other claims.
Following the verdict, Burke filed motions for judgment notwithstanding the verdict on the negligence claim and for attorney fees. Plaintiffs filed motions to disqualify the MacDonald Firm and for attorney fees against Nathan. The trial court granted both of Burke’s motions; denied Plaintiffs’ motion to disqualify; and awarded Plaintiffs attorney fees, although it substantially reduced their requested award.
DISCUSSION
I. Trial Court Bias
A. Background
Judgment on all matters, including attorney fees, issued in December 2015. Plaintiffs filed a notice of appeal on January 15, 2016, and an amended notice of appeal on January 26.
On January 28, Plaintiffs filed a motion to vacate the judgment on the ground that the trial court was biased. The motion contended the trial court—the same bench officer who presided over the pretrial settlement discussions—was “upset and angered over the failure to reach settlement” and, in its rulings during and after trial, “was punishing the Plaintiffs for not having settled this case.” Plaintiffs’ counsel filed a verified statement pursuant to Code of Civil Procedure section 170.3 objecting to the bench officer presiding over the motion to vacate. The trial court denied the motion to vacate, finding it lacked jurisdiction over the matter due to the pending appeal. The trial court struck Plaintiffs’ counsel’s verified statement as defective, untimely, and lacking sufficient grounds. In the alternative, the court submitted its own verified statement in opposition, denying bias against Plaintiffs.
B. Plaintiffs’ Motion to Vacate
The trial court’s conclusion that it lacked jurisdiction to hear Plaintiffs’ motion to vacate during the pendency of the appeal was correct. “The trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending.” (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.)
Plaintiffs argue a different bench officer should have decided the bias issue (see § 170.3, subd. (c)(5)) but they raise no challenge to the grounds on which the trial court struck their counsel’s verified statement. The contention is therefore unavailing. (See Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1272 [“[O]nce the trial judge properly struck Crawford’s statement of disqualification [as untimely and lacking legal grounds for disqualification], the trial judge’s substantive affidavit [in response] became irrelevant. There was nothing for an independent judge to review.”].)
Moreover, although the parties’ briefs do not discuss this issue, the trial court’s ruling on the motion to vacate was not identified in Plaintiffs’ notices of appeal (which were filed before Plaintiffs even filed the underlying motion) and is therefore not properly before us. (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173 [“ ‘ “[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.” ’ ”].) And to the extent Plaintiffs moved for disqualification under section 170.3, the sole method of review is by writ of mandate. (§ 170.3, subd. (d).)
C. Due Process
Plaintiffs suggest we should nonetheless review the record to determine if the trial court was biased. We reject the challenge.
Because Plaintiffs did not file a prejudgment motion under section 170.3, our review is solely to determine whether any trial court bias deprived Plaintiffs of due process. (See People v. Freeman (2010) 47 Cal.4th 993, 1000.) “[T]he due process clause should not be routinely invoked as a ground for judicial disqualification. Rather, it is the exceptional case presenting extreme facts where a due process violation will be found.” (Id. at p. 1005.)
First, by failing to raise the objection below (until after the appealed-from judgment), Plaintiffs forfeited the issue. (People v. Pearson (2013) 56 Cal.4th 393, 447 [“because defense counsel did not complain or otherwise object during trial that the evidentiary rulings discussed below reflected judicial bias, defendant forfeited the claim on appeal”].) Second, the only record citations provided by Plaintiffs are to the declarations and verified statement submitted in connection with their motion to vacate. These records were not before the trial court at the time the appealed-from judgment issued, and therefore are not properly before us on this appeal. (In re N.S. (2016) 245 Cal.App.4th 53, 58 [“ ‘ “an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration” ’ ”].) Third, the purported incidents relied on by Plaintiffs do not reveal a due process violation. Plaintiffs’ brief claims the trial court: “yelled and ran from the room” when Burke “talked directly to the Plaintiffs in an effort to undermine the relationship between Plaintiffs’ counsel and their clients”; at an unidentified time, criticized Plaintiffs and stated Plaintiffs “seek to prove a point”; “[t]hroughout trial . . . continued to make comments related to these points and pressured the parties to settle the case”; and “was regularly seen” talking to Burke outside the presence of Plaintiffs and their counsel. These do not constitute the type of “extreme facts” giving rise to a due process violation. Plaintiffs also assert that adverse rulings on evidence, jury instructions, and postverdict motions are evidence of bias. Plaintiffs have appealed these rulings and our review fails to reveal evidence of bias.
II. Attorney Disqualification
Plaintiffs argue the trial court erred in denying their postverdict motion to disqualify the MacDonald Firm from representing both Burke and Nathan. They contend the representation was improper because there was an actual conflict between Burke and Nathan. Defendants argue Plaintiffs lack standing to challenge the representation, and we agree.
“A ‘standing’ requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356 (Great Lakes).) A “non-client must meet stringent standing requirements, that is, harm arising from a legally cognizable interest which is concrete and particularized, not hypothetical.” (Id. at p. 1358.)
Plaintiffs do not claim any current or previous attorney-client relationship with the MacDonald Firm. Instead, they contend they have standing because “any decision could be challenged by Nathan since the representation was improper.” Even assuming such an interest could be sufficient for standing purposes, in this case the contention is entirely speculative. In fact, it is extremely unlikely, considering that Plaintiffs’ disqualification motion was made after a jury verdict overwhelmingly in Burke’s favor and, therefore, to Nathan’s advantage to the extent he might be liable for any judgment against Burke. Plaintiffs’ asserted interest is insufficient to confer standing. (Great Lakes, supra, 186 Cal.App.4th at p. 1359 [“a highly speculative and tactical interest does not meet the standing requirements”].) The cases cited by Plaintiffs involving movants with concrete and particularized interests are inapposite. (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1201–1202, 1205, 1207 [in custody dispute, mother had standing to disqualify father’s attorney where attorney was the paternal grandfather of the child at issue and there was a significant danger the attorney had relevant confidential information about mother, due to the attorney’s previous representation of mother’s father in his divorce proceedings and previous employment of mother’s stepmother]; Meza v. H. Muehlstein & Co., Inc. (2009) 176 Cal.App.4th 969, 973, 980–981 [defendants had standing to disqualify the plaintiff’s attorney, who previously represented another defendant, because of their “interest in protecting confidential attorney work product disclosed to [the attorney] during the time he participated in joint defense efforts”]; Woods v. Superior Court (1983) 149 Cal.App.3d 931, 935, 937 [“when the attorney of an ongoing corporation owned by wife and husband also undertakes to act as counsel for husband . . . in a divorce action,” wife may disqualify husband’s counsel].)
III. Excluded Evidence
Plaintiffs contend the trial court erred in excluding two witnesses from testifying. We affirm.
A. Bonnie Knight
1. Background
Plaintiffs sought to present the testimony of Bonnie Knight and a 2011 email from Knight to Burke. In 2011, Knight rented the unit subsequently rented by Plaintiffs, and she moved out after three days. In the email, Knight relayed to Burke several incidents involving Nathan, including that he told her he wished he had gone to Vietnam because “ ‘I like guns and I like to kill people’ ”; told her “ ‘I know when you’re home and I know when you’re not home’ ”; he “verbally attacked” and “shook his arm at” one of Knight’s visitors because he claimed she had slammed the gate; and he was “beet red, very intense, screaming and shrieking” during a conversation with Knight about whether her visitors were slamming the front gate and whether he had to keep his dog on a leash.
Burke filed an in limine motion to exclude this evidence under Evidence Code section 352, arguing it was “unrelated to the current case and would essentially create a trial within a trial.” The trial court granted the motion, finding the evidence was only “of marginal relevance” yet would require “trying a case within a case.”
2. Analysis
Plaintiffs argue the trial court abused its discretion in excluding this evidence because it was highly relevant to their theory that Burke failed to warn Plaintiffs about Nathan before they rented the unit. In support of this legal theory, Plaintiffs rely on authority about a landlord’s duty to warn tenants about and protect them from dangerous conditions on the property. However, all of the authority cited by Plaintiffs involve conditions creating a substantial risk of, and ultimately causing, physical injury. (Rowland v. Christian (1968) 69 Cal.2d 108, 110–111 [dangerous condition was cracked faucet handle which broke in the plaintiff’s hands, severing tendons and a nerve]; Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1132 [dangerous condition was “vicious[]” dog who had previously attacked and injured someone, who attacked and severely injured the plaintiff]; Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 508 [same]; Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 611–612 [dangerous condition was water leak which resulted in a wet floor on which the plaintiff slipped and fell]; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 671, 679 [dangerous condition was risk of violent crime at the location where the plaintiff was raped]; Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, 896–897 [dangerous condition was “low, open, unprotected window” which the two-year-old plaintiff fell out of].)
This authority is inapposite because Nathan did not physically injure Knight or Plaintiffs. Plaintiffs cite no authority that landlords have a duty to warn tenants of a risk of verbal harassment. Plaintiffs also cite no authority that courts generally equate verbal harassment with physical violence. (Cf. Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 596 [neighbor’s “course of harassment, verbal insults and annoyances” constituted “an insufficient showing here to put [the property owners] on notice of [the neighbor’s] propensity for violence”]; Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1221 [mobilehome owner’s awareness that certain tenants were gang members, harassed a neighbor and her children “by causing a pit bull to growl at them,” and “whistled and hooted” at another neighbor “making her somewhat fearful,” did not render the subsequent “shoot-out” between those tenants and a rival gang highly foreseeable].) Plaintiffs thus fail to demonstrate the viability of the legal theory to which they claim the excluded evidence was primarily relevant. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘We are not bound to develop appellants’ argument for them.’ ”].)
To the extent Plaintiffs argue the evidence was also relevant to their theory that Burke should have intervened earlier in the dispute between Plaintiffs and Nathan, they fail to demonstrate prejudice from any error. Plaintiffs claim but for the exclusion of this evidence, the jury would likely have awarded them damages for emotional distress and apportioned a higher percentage of the liability to Burke. Plaintiffs fail to provide any explanation why evidence of a former tenant’s experience would have impacted the jury’s assessment of whether Plaintiffs suffered emotional damages. Absent increased damages, no change in the jury’s apportionment of liability for the approximately $2,000 in damages would have impacted the amount Burke was liable for because, as we will discuss in Part VI, post, she was entitled to offset any amount up to the amount of Plaintiffs’ $25,000 settlement with Nathan.
B. Ana Garcia
Plaintiffs also sought to present the testimony of Ana Garcia. According to a July 2014 email from Plaintiffs to Burke, Duncan witnessed Nathan “yelling at our cleaning lady [Garcia] and her 9 year old daughter a few weeks ago for slamming the front gate. He yelled at them repeatedly and they ran to their car.” Defendants moved in limine to exclude her testimony under Evidence Code section 352. The trial court ruled that Duncan could testify about what she witnessed of this incident, but Garcia could not testify.
Plaintiffs contend the exclusion of this evidence was an abuse of discretion. We find any error harmless. Plaintiffs were permitted to testify about the same incident that Garcia would have testified to, and they have identified no aspect of Garcia’s testimony that would be different. Plaintiffs suggest the testimony of a third party would have added credibility to their testimony about the harms caused by Nathan’s behavior. But there is no indication the jury did not find Plaintiffs’ testimony about Nathan’s behavior credible; in fact, the jury allocated 75 percent of the fault for Plaintiffs’ damages to Nathan. Plaintiffs identify nothing in Garcia’s testimony that would have influenced the jury’s decision regarding the amount of Plaintiffs’ damages. It is not reasonably probable that Garcia’s cumulative testimony about a single incident involving Nathan would have resulted in an outcome more favorable to Plaintiffs in their claims against Burke.
IV. Jury Instructions
Plaintiffs argue the trial court erred by (1) failing to instruct the jury on constructive notice regarding dangerous conditions on property, a landlord’s duty to warn of unsafe conditions, a landlord’s duty to inspect, agency and vicarious liability, and Plaintiffs’ ability to remain in the unit absent a just cause for eviction; (2) failing to include Nathan in one of the instructions on the San Francisco rent ordinance; and (3) providing an irrelevant and incomplete instruction on permissible owner evictions.
“ ‘ “ ‘In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.’ ” ’ ” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130–1131.) “ ‘Where, as here, “the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.” [Citations.]’ [Citation.] Plaintiff’s failure to request any different instructions means he may not argue on appeal the trial court should have instructed differently.” (Id. at p. 1131.)
Plaintiffs have failed to demonstrate they requested the omitted instructions or objected to the eviction instruction and have therefore forfeited these challenges. After the jury verdict, Plaintiffs filed a document captioned, “Plaintiffs’ Proposed But Refused Jury Instructions.” (Capitalization altered.) This after-the-fact submission does not constitute a record of Plaintiffs’ proposed instructions, particularly in light of the trial court’s characterization of this filing as “very misleading” because after the parties met and conferred on proposed jury instructions “[m]any earlier instructions were withdrawn as inapplicable or duplicative.” Plaintiffs complain that “[i]t does not appear that all of the Court’s rulings concerning the jury instructions were placed on the record,” but this does not alter Plaintiffs’ obligation on appeal. (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678 [“An appellant has the burden to provide a record sufficient to support its claim of error. . . . An appellant arguing instructional error must ensure that the appellate record includes the instructions given and refused and the court’s rulings on proposed instructions.”]; Cal. Rules of Court, rule 8.137 [procedure for using a settled statement when “[t]he designated oral proceedings were not reported”].)
Plaintiffs contend the trial court had a sua sponte obligation to provide the jury with these instructions. We disagree. To the extent trial courts have any sua sponte duty to instruct on legal theories in civil cases, it is limited to cases involving “ ‘a complete failure to instruct on material issues and controlling legal principles . . . .’ ” (Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1010, italics omitted.) No such failure is present here, where the trial court instructed the jury on negligence, causation, and damages, as well as Plaintiffs’ other causes of action.
V. Nonsuit
Following Plaintiffs’ case-in-chief, Burke filed a motion for nonsuit as to all causes of action. The trial court granted the motion as to Plaintiffs’ claim for intentional infliction of emotional distress and punitive damages. We affirm.
“We review an order granting a nonsuit de novo. [Citation.] A defendant is entitled to a nonsuit if the trial court determines the evidence presented by plaintiff is insufficient to permit a jury to find in his or her favor as a matter of law.” (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060.)
“A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.) We agree with Burke that evidence that she failed to address Nathan’s conduct or assist Plaintiffs does not constitute the kind of “extreme and outrageous conduct” required to support this claim. Moreover, any error in granting the nonsuit would be harmless as the jury found neither Plaintiff suffered any emotional damages and therefore would not have found Plaintiffs suffered “severe or extreme” emotional distress.
“ ‘ “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.” ’ ” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 716.) Plaintiffs argue “there was fraud in the form of concealment by Burke of the dangerous conditions on the property and malice and oppression in the disregard of the Plaintiffs’ safety.” Again, Plaintiffs have failed to demonstrate Nathan was a dangerous condition for purposes of Burke’s duty to warn. We agree with the trial court that the evidence did not show any failure of Burke’s to intervene in the growing problems between Nathan and Plaintiffs was malicious or oppressive.
VI. JNOV
After the jury verdict, Burke moved for judgment notwithstanding the verdict on the negligence claim. The trial court granted the motion, noting it was “somewhat academic” as Burke was the prevailing party regardless of the negligence verdict because she won on all other claims and her “minimal” liability—for 5 percent of a small damages award to Duncan—was “well below” the settlement amount paid by Nathan. Plaintiffs challenge the ruling on appeal. Defendants argue the ruling was proper and, in any event, harmless. We agree with Defendants that any error was harmless.
When a settlement is entered into with “one or more of a number of tortfeasors claimed to be liable for the same tort,” “it shall reduce the claims against the others in the amount . . . of the consideration paid for it . . . .” (§ 877, subd. (a).) Plaintiffs assert, without citation to authority, that Burke and Nathan were not joint tortfeasors. But there is no requirement that defendants act in concert for this offset to apply. Instead, “the key is that the tortious acts of the codefendants operate to produce a singular injury . . . [¶] . . . ‘[T]he idea of a “double recovery” is inextricably linked to the joint liability of multiple tortfeasors. When multiple defendants are responsible for the same compensatory damages, a setoff is not only mandated under section 877[, subd. (a)], but is required by the fundamental principle that “. . . a plaintiff may not recover in excess of the amount of damages which will fully compensate him for his injury.” ’ ” (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1361.) Even if the trial court erred in granting Burke’s JNOV motion as to the negligence claim, Burke would have been entitled to offset the entirety of her damages liability. The trial court clearly stated Burke would be the prevailing party regardless of the negligence verdict, and Plaintiffs raise no challenge to that determination. Plaintiffs have identified no other potential prejudice from the trial court’s JNOV ruling.
VII. Attorney Fees
After trial, Burke and Plaintiffs both filed attorney fees motions. The trial court awarded Burke the entirety of her requested fees and awarded Plaintiffs only a small percentage of their requested fees. For the reasons discussed below, we reverse both orders and remand to the trial court for further proceedings.
A. Burke’s Fee Motion
1. Background
The fourth cause of action in Plaintiffs’ complaint alleges Defendants violated “the San Francisco Rent Ordinance.” (Capitalization altered.) The paragraphs setting forth this cause of action assert Defendants attempted to recover possession of the unit without lawful grounds in violation of section 37.9 of the San Francisco Administrative Code (the Eviction Ordinance), and further assert Defendants harassed Plaintiffs in bad faith in violation of section 37.10B of the San Francisco Administrative Code (the Harassment Ordinance). Both of these provisions are part of San Francisco’s Residential Rent Stabilization and Arbitration Ordinance. (S.F. Admin. Code, ch. 37.) Both include attorney fees provisions: the Eviction Ordinance authorizes attorney fees for the prevailing party, while the Harassment Ordinance authorizes fees only for prevailing plaintiffs. (S.F. Admin. Code, §§ 37.9, subd. (f) (Eviction Ordinance) [“The prevailing party shall be entitled to reasonable attorney’s fees and costs pursuant to order of the court.”], 37.10B, subd. (c)(5) (Harassment Ordinance) [“a prevailing plaintiff shall be entitled to reasonable attorney’s fees and costs pursuant to order of the court”].)
On the first day of trial, before opening statements, Plaintiffs stated they were withdrawing their Eviction Ordinance claim, but would continue to assert their Harassment Ordinance claim. Plaintiffs initially stated they were dismissing without prejudice, but then clarified they did not intend to re-raise the claim. Although Burke did not object at that time, before the close of evidence she argued Plaintiffs could not withdraw the claim because Plaintiffs could not dismiss only part of a cause of action. The trial court ruled Plaintiffs could not dismiss the Eviction Ordinance claim. The jury found for Burke on the Eviction Ordinance claim and Burke sought and obtained an attorney fee award based on that ordinance.
2. Analysis
Plaintiffs argue the trial court erred in refusing to dismiss their Eviction Ordinance claim. We agree.
Section 581, subdivision (c) provides: “A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.” “Under . . . section 581, a plaintiff generally has an unfettered right to dismiss a cause of action before commencement of trial.” (Panakosta Partners, LP v. Hammer Lane Management, LLC (2011) 199 Cal.App.4th 612, 632.)
The parties’ sole dispute on this issue is whether the two rent ordinance claims constitute a single cause of action for purposes of section 581. “[T]he term ‘cause of action’ . . . has various meanings. It may refer to distinct claims for relief as pleaded in a complaint. These are usually set out as ‘first cause of action,’ ‘second cause of action,’ and so forth. But the term may also refer generally to a legal claim possessed by an injured person, without reference to any pleading. A person may have a cause of action for defamation or breach of contract even if no suit has been filed.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 381 (Baral).) “[D]espite the imprecision that may result from the various connotations of the term ‘cause of action,’ its meaning is generally evident in context.” (Id. at p. 382, fn. 2.)
Defendants suggest “cause of action” in section 581 refers to a “primary right.” “[T]he primary right is simply the plaintiff’s right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: ‘Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.’ [Citation.] The primary right must also be distinguished from the remedy sought: ‘The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.’ ” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681–682 (Crowley).)
However, “the ‘primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits.’ ” (Baral, supra, 1 Cal.5th at p. 395.) In Steele v. Litton Industries, Inc. (1968) 260 Cal.App.2d 157 (Steele), the court rejected an interpretation of “cause of action” in section 581 as the primary right. The court held a count seeking an alternative remedy could be voluntarily dismissed under section 581 without dismissing another remedy set forth in a separate count: “A plaintiff who sets forth alternative remedies in separate counts in his complaint may abandon or dismiss one count without prejudice to his right to proceed on the other. [Citations.] The plaintiff here dismissed the counts wherein he sought equitable relief. These were alternative remedies. The dismissal of these alternative remedies did not constitute a dismissal of plaintiff’s entire cause of action. . . . [T]he Legislature in using the words ‘action’ and ‘cause of action’ in section 581 . . . intended such words to include a count or counts in a single pleading wherein alternative remedies are sought. Such a construction does not compel a defendant to contest in a trial the same cause of action twice. For if the trial proceeds to judgment on one alternative remedy such judgment would constitute a bar to the trial in a subsequent action on the obligation which plaintiff seeks to enforce, but on a different theory.” (Steele, at p. 172.)
Defendants also suggest “cause of action” refers to the count as pled in the complaint, and Plaintiffs’ inclusion of both rent ordinance claims in a single count therefore precludes the dismissal of only one of the claims. This is one meaning of the term cause of action: “ ‘cause of action’ in its ordinary sense . . . mean[s] a count as pleaded.” (Baral, supra, 1 Cal.5th at p. 382.) But we are not persuaded the Legislature in enacting section 581 intended the term to be construed in such a technical way. “It is the policy of government . . . to discourage, rather than to encourage, litigation, and that policy is subserved by permitting the voluntary departure from court of one who voluntarily comes into court. . . . [S]ection 581 is grounded upon such a policy . . . .” (Los Angeles G & E Corporation v. Superior Ct. (1921) 53 Cal.App. 701, 703.) Limiting a plaintiff’s ability to dismiss claims based on the structure of the complaint would not serve this purpose. (See Baral, at p. 392 [declining to construe “cause of action” for purposes of the anti-SLAPP statute to mean count as pled in the complaint because, inter alia, “the application of [the anti-SLAPP statute] cannot reasonably turn on how the challenged pleading is organized”].) Indeed, such a construction has been rejected in the context of other statutes. (Id. at p. 396 [“the term ‘cause of action’ in the anti-SLAPP statute . . . refers to claims for relief that are based on allegations of protected activity”]; Exxon Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1688, fn. 11 [where “plaintiffs pleaded their case by combining causes of action,” a defendant “remains entitled to present summary adjudication motions that dispose of allegations which would have formed a single cause of action if properly pleaded”].) We conclude the term “cause of action” in the voluntary dismissal provisions of section 581 refers not to the count as pled in the complaint or the plaintiff’s primary right, but instead to the separate legal theories asserted.
We accordingly conclude that the trial court erred in instructing the jury on the Eviction Ordinance claim after Plaintiffs sought to dismiss that claim. As the jury verdict for Burke on the Eviction Ordinance claim was the basis on which the trial court awarded her attorney fees, we reverse that order. However, we do so without prejudice to a renewed fee motion by Burke asserting another basis for entitlement to fees. (See Cypress Semiconductor Corp. v. Maxim Integrated Products, Inc. (2015) 236 Cal.App.4th 243, 258 [affirming trial court’s determination that the defendant was the prevailing party after the plaintiff’s voluntary dismissal].)
B. Plaintiffs’ Fee Motion
1. Background
Nathan’s settlement offer to Plaintiffs provided that he would pay them $12,500 each, plus “fees and costs as determined by the court.” Plaintiffs accepted the offer on September 23, 2015. During settlement discussions, Nathan offered Plaintiffs $90,000 for a release of all claims against both him and Burke; Plaintiffs refused this offer.
Following trial, Plaintiffs moved for attorney fees against Nathan. Plaintiffs contended the settlement agreement made them prevailing parties as to Nathan and entitled them to fees under the San Francisco rent ordinances. Plaintiffs sought lodestar fees of approximately $142,000, plus a multiplier of 1.35, plus an additional $5,000 for work on the fee motion, for a total of nearly $200,000.
The trial court’s order noted that Plaintiffs “presented as relatively financially privileged individuals who sustained no real loss,” while Nathan “had no known assets, except his home, and . . . had very limited income.” The court continued: “Plaintiffs’ rejection of defendant Nathan’s $90,000 offer supports the inference that the case went to trial, not because plaintiffs suffered, but because they sought a big return on their investment. That investment was the incurred obligation to pay their attorney fees . . . . [¶] . . . The settlement posture of plaintiffs was coercive. It is reasonable to infer that Mr. Nathan’s offer at trial ($90,000) was motivated by his desire to retain some part of the remaining equity of his home, after payment of debts and taxes, in order to secure his future. This offer was rejected for the prospect, not realized, of a big financial payout.” The court continued: “Given the jury verdict’s finding of very small economic loss to Ms. Duncan, . . . which took into account all the conduct of Mr. Nathan, this case could have been decided expeditiously in small claims court. In the alternative, it could have been pursued in limited jurisdiction, which would have greatly reduced the financial burden of preparation and pre-trial discovery. [¶] The fee request . . . is grossly excessive and unreasonably inflated.” With no further explanation, the trial court awarded each plaintiff $3,750 in attorney fees.
2. Analysis
On appeal, Plaintiffs contend the trial court erred in failing to calculate the lodestar. We agree. “[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. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.’ [Citation.] . . . 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.] Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
The trial court’s order does not purport to base the fee award on the lodestar, and neither the parties nor this court has identified a connection between the requested lodestar and the fee awarded. Instead, as the parties note, the fee award is exactly 30 percent of the settlement amount. Defendants justify this method of determining the fee award by citing a 1975 case approving a fee award of approximately 30 percent of the final judgment. (Iverson v. Spang Industries, Inc. (1975) 45 Cal.App.3d 303, 312.) However, this case predates our Supreme Court’s decision in Serrano v. Priest (1977) 20 Cal.3d 25 (Serrano III). “Before 1977, numerous California courts had held that if a contract or a statute permitted an award of attorney fees or reasonable attorney fees, the determination of the amount was a matter committed to the sound discretion of the trial court. [Citations.] The trial court was expected to consider many factors in deciding what constituted a reasonable fee, . . . . [b]ut no mechanical formula dictated how the court should evaluate all these factors. . . . [¶] But in 1977, our Supreme Court decided Serrano III,” which “circumscribed that discretion to some extent by approving the touchstone or lodestar adjustment method of calculating the amount of an award. That method requires the trial court first to determine a touchstone or lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation for each attorney.” (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 638–639 (Flannery).)
Our Supreme Court has subsequently “noted the lodestar-multiplier method of determining a reasonable fee is not necessarily exclusive: ‘. . . we are not mandating a blanket “lodestar only” approach; every fee-shifting statute must be construed on its own merits . . . .’ ” (Laffitte, supra, 1 Cal.5th at p. 500.) However, where statutory “ ‘provisions refer to attorney fees and costs without indicating any restrictions on how they are to be calculated, we . . . presume that the Legislature intended courts use the prevailing lodestar adjustment method.’ ” (Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1260.) Relying on this analysis, one court concluded that one of the fee shifting ordinances at issue here—the Eviction Ordinance—requires attorney fees to be calculated using the lodestar method. (Chacon v. Litke, at p. 1260 [“we will presume the [San Francisco Board of Supervisors] adopting the fee shifting provision [in the Eviction Ordinance, S.F. Admin. Code, § 37.9, subd. (f)], intended courts to use the lodestar adjustment method”].) We agree with this conclusion and see no basis to reach a different result under the fee-shifting provision in the Harassment Ordinance. (S.F. Admin. Code, § 37.10B, subd. (c)(5) [“a prevailing plaintiff shall be entitled to reasonable attorney’s fees and costs pursuant to order of the court”].)
Where, as here, the attorney fee award must be determined with reference to the lodestar and the trial court fails to do so, the award must be reversed. (Flannery, supra, 61 Cal.App.4th at p. 647 [trial court’s discretion in determining reasonable attorney fees “must be based on a proper utilization of the lodestar adjustment method, both to determine the lodestar figure and to analyze the factors that might justify application of a multiplier”]; Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 92 (Gorman) [“ ‘reversal is appropriate where there is no reasonable basis for the ruling or the trial court has applied “the wrong test” or standard in reaching its result,’ ” for example, where “there was ‘no reasonable connection between the lodestar figure and the fee ultimately awarded’ ”]; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239–1240 [“[I]n attorney fee determinations such as this one, the exercise of the trial court’s discretion ‘must be based on a proper utilization of the lodestar adjustment method, both to determine the lodestar figure and to analyze the factors that might justify application of a multiplier.’ ”].)
We therefore reverse and remand the matter to the trial court for a determination of Plaintiffs’ reasonable attorney fees, beginning with a calculation of the lodestar figure. Of course, the trial court may consider a number of factors in determining and adjusting the lodestar, including the result obtained against Nathan, any unnecessary or excessive litigation, and time spent litigating claims against Burke. (Harman v. City & County of San Francisco (2007) 158 Cal.App.4th 407, 426 [“ ‘California law allows the trial court to reduce . . . attorneys’ fees award based on the results . . . obtained’ ”]; Gorman, supra, 178 Cal.App.4th at p. 100 [“If the court considered the case to have been overlitigated in light of factors such as the nature and difficulty of the litigation or the amount involved, the court might have subtracted some of the hours claimed . . . [or] applied a negative multiplier.”]; Rey v. Madera Unified School Dist. (2012) 203 Cal.App.4th 1223, 1239 [“the trial court had discretion to reduce appellants’ attorney fees by the hours that were spent on appellants’ unsuccessful litigation against [a separate defendant]”].)
DISPOSITION
The judgment is reversed and remanded for further proceedings with respect to the award of attorney fees and costs to Burke and the award of attorney fees and costs to Plaintiffs, and is otherwise affirmed. The parties shall bear their own costs on appeal.






SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.





(A147468)