Filed 1/19/18 Biggs v. Tekin CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



JULIA BIGGS et al.,

Plaintiffs and Respondents,

v.

ABRAHAM TEKIN et al.,

Defendants and Appellants.


E066224

(Super.Ct.No. CIVDS1413473)

OPINION


APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed.
Pope & Gentile and Daniel K. Gentile for Defendants and Appellants.
Fullerton, Lemann, Shaefer & Dominick, Michael R. Schaefer and Zachary R. Hagenbuch for Plaintiffs and Respondents.
Plaintiffs and respondents Julia and Gerard Biggs (plaintiffs) sued defendants and appellants Sheila and Abraham Tekin (defendants). The trial court awarded plaintiffs their attorneys’ fees in the amount of $32,133.50. Defendants contend the trial court erred in awarding attorneys’ fees because (1) the case should have been resolved via a motion rather than trial; (2) the case was not difficult and plaintiffs failed to obtain a majority of their requested damages; and (3) plaintiffs failed to apportion their attorneys’ fees between the contract and non-contract causes of action. We affirm the order.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
On September 9, 2014, plaintiffs filed their complaint against defendants. Plaintiffs and defendants are neighbors. Plaintiffs brought causes of action for breach of contract, enforcement of an easement, private nuisance, and injunctive relief. In the complaint, plaintiffs alleged they entered into a settlement agreement (the Agreement) with defendants in October 2006. The Agreement resulted in the dismissal of pending litigation between plaintiffs and defendants.
According to plaintiffs’ complaint, the Agreement included “an express negative easement preventing defendant[s] from excavating within 10 feet of the base of certain trees along their shared property line.” The purpose of the easement was to protect the trees and their roots. Defendants graded their lot in order to build on their property. Plaintiffs alleged that during the grading the negative easement was violated and the trees were harmed due to excavation activities.
In the breach of contract cause of action, plaintiffs alleged defendants breached the Agreement by violating the negative easement. In the enforcement of the easement cause of action, plaintiffs alleged “the easement is at risk of being destroyed” because the trees were threatened by the excavation. In the private nuisance cause of action, plaintiffs asserted defendants interfered with plaintiffs’ use and enjoyment of their land by violating the easement. In the injunctive relief cause of action, plaintiffs alleged defendants’ violation of the easement was ongoing in that defendants intended to continue grading their property, which would cause irreparable harm to plaintiffs.
Plaintiffs sought: (1) compensatory damages in an amount to be proven at trial; (2) general damages according to proof; (3) special damages according to proof; (4) an order enforcing the easement; (5) preliminary and permanent injunctions; (6) attorneys’ fees; and (7) costs. In October 2014, the trial court granted plaintiffs’ motion for a preliminary injunction.
B. THE AGREEMENT
The Agreement was attached as an exhibit to the complaint. In regard to attorneys’ fees, it provides, “Each Party hereto agrees that in the event of any dispute concerning this Agreement or claims, demands, liabilities or causes of action included within its scope the Prevailing Party shall be entitled to recover its attorneys[’] fees and costs. The Prevailing Party shall be the Party entitled to recover his/her costs of suit, whether or not the suit proceeds to final judgment. No sum for attorneys’ fees shall be counted in calculating the amount of a judgment for purposes of determining whether a Party is entitled to recover his/her costs or attorneys’ fees.”
C. DEFENDANTS’ TRIAL BRIEF
Defendants filed a trial brief. In the trial brief, defendants asserted (1) the trees were not damaged during the excavation; (2) the excavated area near the trees was immediately backfilled; (3) the Agreement did not create a negative easement; (4) there was no interference with plaintiffs’ use and enjoyment of their property; and (5) the grading was not ongoing—it was finished a year prior to the trial brief being filed.
D. TRIAL
A bench trial took place on November 17, 2015. Plaintiffs’ witnesses were: (1) Julia Biggs;; (2) Gerard Biggs; (3) Stephen Leja, a licensed surveyor; and (4) Abraham Tekin. Defendants’ witnesses were: (1) Abraham Tekin; and (2) Gerard Biggs.
Gerard Biggs testified that, after the excavation around the trees, he spent $159.77 on irrigation materials to provide water to the trees because he worried the trees would not have sufficient water due to the excavation.
E. PLAINTIFFS’ CLOSING ARGUMENT
In plaintiffs’ closing argument, they asserted the excavation intruded into the easement area in varying amounts, from two feet to 5.75 feet, and that there was no evidence of the excavated dirt having been replaced. Plaintiffs conceded the trees had not died as a result of the grading, but asserted defendants’ actions caused plaintiffs to suffer annoyance, inconvenience, discomfort, and distress. For example, plaintiffs worried that the excavation undermined the trees’ support system leaving them vulnerable to storms.
Plaintiffs argued they were entitled to damages for the annoyance, inconvenience, and discomfort they experienced in connection with defendants’ interference in plaintiffs’ property rights. Plaintiffs requested (1) $20,000 in damages, which was the amount of money they spent in the 2006 litigation that resulted in the creation of the Agreement; as well as (2) mitigation damages for the money they spent irrigating the trees.
F. DEFENDANTS’ CLOSING ARGUMENT
In defendants’ closing argument, they asserted the breach of contract claim failed because the excavated area around the trees was immediately backfilled and therefore there were no damages. Defendants argued the enforcement of easement claim failed because the Agreement did not create an easement along the trees. Defendants asserted the private nuisance cause of action failed because the excavation was trivial and caused no damage. Defendants argued there was no need for an injunction because the excavation stopped one year before trial.
G. JUDGMENT
In December 2015, the trial court issued a statement of intended decision, which provided, “The evidence clearly established that the grading contractor, hired by the defendants, graded within the clearance area, removing soil and cutting the root systems of the trees. By so doing, the defendants violated the terms of the settlement agreement and the easement that was created thereby and interfered with the plaintiffs’ quiet enjoyment of their property.
“Accordingly, plaintiffs shall recover from the defendants the sum of $5,159.77 plus costs of suit. Also, plaintiffs are entitled to their reasonable attorney’s fees upon filing the proper motion.
“There does not appear to be a need for a permanent injunction. Therefore, one will not issue.”
In February 2016, the trial court issued a judgment awarding $5,159.77 to plaintiffs. The trial court also awarded attorneys’ fees and costs to plaintiffs, reserving its ruling on the particular amounts.
H. MOTION FOR ATTORNEYS’ FEES
Plaintiffs moved for an award of attorneys’ fees. Plaintiffs asserted they prevailed on their breach of contract cause of action and therefore, per the Agreement, were entitled to attorneys’ fees. Plaintiffs sought:
(1) $6,510.25 for work performed July through October 2014, which included working on the complaint, applying for a preliminary injunction, coordinating with the surveyor, examining grading plans, photographing the site, participating in settlement discussions, and meeting with plaintiffs;
(2) $939.25 for work performed November 2014 through May 2015, which included status conferences, a trial setting conference, and discussions about ongoing construction activity;
(3) $1,878.50 for preparing a mandatory settlement conference brief and attending the mandatory settlement conference;
(4) $2,917 for trial preparation work performed July 27 through September 23, which included legal research for a motion for summary judgment that ultimately was not brought, and responding to defendants’ discovery requests;
(5) $2,441.50 for taking the deposition of one of the plaintiffs;
(6) $5,056.25 for final trial preparation work performed November 9 through November 16, which included summarizing depositions, assembling exhibits, drafting a trial brief, reviewing testimony with witnesses, and preparing witness and exhibit lists;
(7) $1,400 for trial;
(8) $2,437.25 to prepare a written closing argument and proposed statement of decision; and
(9) $4,813 for drafting a judgment and notice of entry of judgment, preparing a bill of costs, and drafting a motion for attorneys’ fees.
Four attorneys worked on the case. Their hourly rates were (1) $325 to $350; (2) $200; (3) $150; and (4) $120 to $125. A paralegal who worked on the case had an hourly billing rate of $85 to $95. In total, plaintiffs sought $32,133.50 in attorneys’ fees for approximately 168 hours of work.
I. OPPOSITION
Defendants opposed plaintiffs’ motion for attorneys’ fees. Defendants asserted there were no material disputes regarding the evidence in the case. Defendants noted the trial lasted less than one day and primarily concerned plaintiffs’ damages. Defendants contended that, during the discovery phase of the proceedings plaintiffs sought $60,000 in damages. Defendants noted that the trial court awarded plaintiffs $5,159.77. Defendants speculated the award was comprised of $159.77 for irrigation expenses and $5,000 for annoyance, inconvenience, discomfort, and distress. Defendants asserted (1) the trial court rejected most of plaintiffs’ $60,000 claim; and (2) the case was a “simple matter,” so a $32,133.50 attorneys’ fee “request is outrageous.”
Additionally, defendants faulted plaintiffs for not separating the fees associated with the contract cause of action from the noncontract claims. Defendants asserted plaintiffs were only entitled to collect attorneys’ fees for the contract cause of action.
Further, defendants asserted that the case should not have been litigated. Defendants contended that instead, plaintiffs could have brought a motion to enforce the Agreement. (Code Civ. Proc., § 664.6.) Defendants contended it was inefficient and costly to file a new case and expend $32,133.50 to resolve the matter when it could have been resolved via motion.
J. REPLY
Plaintiffs replied to defendants’ opposition. Plaintiffs asserted there were disputes in the case, in particular, defendants believed any easement violation was trivial and that plaintiffs suffered no damages. Plaintiffs explained that they had to prove that there was an easement, that the violation was not trivial, and that they suffered damages.
Plaintiffs asserted the attorneys’ fee provision in the Agreement did not limit attorneys’ fees to contract causes of action, and therefore plaintiffs could collect attorneys’ fees for tort causes of action as well. Alternatively, plaintiffs asserted the contract and tort causes of action were so intertwined that the fees could not be separated.
Next, plaintiffs contended attempting to resolve the matter via a motion would not have resulted in less work. Plaintiffs explained they still would have sought a preliminary injunction, wanted an evidentiary hearing, and hired an expert. Plaintiffs further asserted that the damages they were awarded for emotional distress would not have been available via a motion to enforce the Agreement.
K. HEARING
At the hearing on plaintiffs’ motion for attorneys’ fees, defendants asserted approximately $159 was awarded on the breach of contract cause of action. Defendants contended the case should have been brought in small claims court. Defendants asserted the only dispute at trial was how much, if anything, plaintiffs were owed in damages. Plaintiffs argued the matter needed to be litigated and was not appropriate for small claims court.
L. RULING
The trial court found defendants failed to establish that attorneys’ fees were not permitted under the Agreement and failed to establish that the amount of requested attorneys’ fees was unreasonable. The trial court awarded plaintiffs $32,133.50 in attorneys’ fees and $2,559 in costs.
DISCUSSION
A. MOTION TO ENFORCE THE AGREEMENT
1. PROCEDURAL HISTORY
The Agreement provides, “This Agreement and stipulation for settlement is entered into, and shall be fully enforceable, pursuant to the provisions of California Code of Civil Procedure section 664.6.” The 2006 stipulated judgment reflects, “The Court shall retain jurisdiction to enforce or modify the provisions of this Judgment, and the provisions of the settlement agreement that parties have entered into outside of court pursuant to Code of Civil Procedure section 664.6.”
2. ANALYSIS
Defendants contend the trial court erred in awarding $32,133.50 in attorneys’ fees because the case should have been resolved via a motion to enforce the Agreement. (§ 664.6.)
“ ‘We review the amount of attorney fees awarded for [an] abuse of discretion. [Citation.] A trial court’s attorney fee award will not be set aside “absent a showing that it is manifestly excessive in the circumstances.” ’ ” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487.)
When a case settles, the parties may request the court “retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (§ 664.6.) “ ‘ “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” [Citation.] A trial court “hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment.” ’ ” (Karpinski v. Smitty’s Bar, Inc. (2016) 246 Cal.App.4th 456, 460-461.)
If the dispute in this case were initiated in the trial court via a motion with exhibits submitted in support of the motion, there may have been different attorneys’ fees, but not necessarily less attorneys’ fees. Instead of fees associated with preparing for a one-day trial, there may have been fees for attending depositions or preparing declarations, fees for drafting the motion, fees for replying to defendants’ opposition to the motion, and fees for appearing at a hearing on the motion. Because the fees would have been for different activities, but not necessarily a different overall amount, it has not been shown that proceeding via a complaint and one-day trial generated manifestly excessive fees. Therefore, we conclude the trial court did not err.
B. SIMPLICITY AND DAMAGES
Defendants contend the trial court erred by not reducing the award of attorneys’ fees due to (1) the simplicity of the case, and (2) plaintiffs’ failure to obtain a greater percentage of their requested damages.
“ ‘It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court . . . . [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. . . . The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ ” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) We apply the abuse of discretion standard of review. (Id. at p. 1095.)
In regard to the simplicity of the case, defendants assert the case was simple because “[n]one of the liability issues were in dispute.” At trial, defendants (1) disputed the breach of contract claim, asserting there were no damages; (2) argued the easement claim failed because the Agreement did not create an easement along the trees; (3) contended the private nuisance cause of action failed because the excavation was trivial and caused no damage; and (4) argued there was no need for an injunction because the excavation stopped one year before trial. Because there was a dispute as to each cause of action, and the case was resolved via a one-day trial, the trial court could reasonably conclude the case was not simplistic and required many hours of work to resolve.
In regard to plaintiffs’ success, they obtained (1) $5,159.77 in damages; and (2) a judicial finding that the Agreement created a negative easement. Plaintiffs had requested $20,000 in emotional distress damages plus money spent on irrigation. The trial court denied plaintiffs’ request for a permanent injunction. Although plaintiffs were not 100 percent successful in obtaining all the relief they sought, they did obtain relief. The trial court could reasonably conclude plaintiffs’ attorneys were successful. In particular, they were successful in proving that an easement existed, which will be helpful should any future disputes arise. Because the trial court could reasonably conclude plaintiffs’ counsel was successful, we conclude the trial court did not abuse its discretion by awarding $32,133.50 in attorneys’ fees.
C. APPORTIONMENT
Defendants contend the trial court erred by not separating the attorneys’ fees for the contract and non-contract causes of action.
We apply the de novo standard of review. (Hemphill v. Wright Family, LLC (2015) 234 Cal.App.4th 911, 914.) A contractual attorney fee provision can be broadly worded so as to include both contract and tort causes of action. (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.) “[A]n attorney fee provision awarding fees based on the outcome of ‘any dispute’ encompasses all claims, whether in contract, tort or otherwise.” (Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 993; see also Silver v. Boatwright Home Inspection, Inc. (2002) 97 Cal.App.4th 443, 449.) If the fee provision encompasses contract and non-contract claims, then there is no need to apportion fees between those claims. (Maynard v, at p. 992.)
The Agreement provides, “Each Party hereto agrees that in the event of any dispute concerning this Agreement or claims, demands, liabilities or causes of action included within its scope, the Prevailing Party shall be entitled to recover its attorneys[’] fees and costs.”
The language “any dispute” in the Agreement includes contract and non-contract causes of action. (Maynard v. BTI Group, Inc., supra, 216 Cal.App.4th at p. 993; see also Silver v. Boatwright Home Inspection, Inc., supra, 97 Cal.App.4th at p. 449.)
We now examine whether the claims concerned the Agreement. In the breach of contract claim, plaintiffs asserted defendants violated the negative easement created in the Agreement. In the enforcement of the easement cause of action, plaintiffs sought an order enforcing the easement rights created in the Agreement. In the private nuisance cause of action, plaintiffs asserted the violation of the easement, created in the Agreement, caused harm to plaintiffs’ use and enjoyment of their property. In the injunction cause of action, plaintiffs asserted defendants should be enjoined from violating the easement created in the Agreement.
Thus, all of plaintiffs’ causes of action contained allegations concerning the Agreement.
Because the Agreement provided for attorneys’ fees to be awarded for any dispute concerning the Agreement, the trial court did not need to apportion the attorneys’ fees between the contract and non-contract causes of action.
DISPOSITION
The order is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


McKINSTER
Acting P. J.


FIELDS
J.