Brownstein v. Smith

Filed 7/1/09 Brownstein v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Los Angeles County,
Jacqueline A. Connor, Judge. Affirmed and remanded with direction.

Jeffrey Licht & Associates and Jeffrey L. Licht for Plaintiff and Appellant.

Challenge Alliance Group, Inc., Barry Khan for Defendants and Respondents.

_____________________

INTRODUCTION

Plaintiff Eveline Brownstein appeals from a post-judgment order awarding attorneys fees and costs to defendants Douglas Smith and Bonnie Smith (the Smiths). Brownstein claims the award was erroneous because the Smiths did not file a memorandum of costs, but the proper method to recover attorney fees is as an item of costs awarded upon noticed motion and no error occurred because the Smiths did not file a memorandum of costs. Brownstein has failed to show that the doctrine of law of the case applies in this appeal, or that the doctrine of issue preclusion made the attorney fee award erroneous. We affirm the award.

FACTUAL AND PROCEDURAL HISTORY

Brownstein sued the Smiths for causes of action arising from a dispute concerning a condominium property at 27 Ketch Street in Marina del Rey in which the Smiths and Brownstein owned units. Brownsteins complaint included causes of action alleging that the Smiths violated Covenants, Conditions and Restrictions (CC&Rs) governing the 27 Ketch Street condominium, and also sought to enforce the CC&Rs as equitable servitudes pursuant to Civil Code section 1354, subdivision (a). Following the grant of summary judgment in favor of the Smiths and against Brownstein, the trial court entered a judgment ordering Brownstein to take nothing, and defendants to recover from Brownstein costs of suit in the sum of $pur to cost bill. The judgment was filed on September 14, 2007.

On October 24, 2007, the Smiths filed a motion for $171,611.11 in attorneys fees and costs. The motion was based on attorney fee clauses in section 6 of the 27 Ketch Street CC&Rs, and on Civil Code section 1354, subdivision (c). The motion was supported by a declaration from the Smiths attorney, Barry Kahn, which stated that his law firm had expended and billed the Smiths for 500.7 hours of principal time at $325.00 per hour for total principal fees of $162,722.14, and had incurred costs of $8,888.97. Kahns declaration attached copies of receipts, billings, and documents supporting all fees and each cost expenditure.

Brownstein opposed the attorney fee motion on several grounds. First, Brownstein argued that the attorney fee provisions in the CC&Rs did not apply to actions between individual homeowners, and applied only to actions involving the homeowners association or its governing body, which were not part of this litigation. Second, Brownstein argued that Civil Code section 1354 did not provide for an attorney fee award to the Smiths because Brownsteins action was not an action to enforce the CC&Rs. Third, even if Civil Code section 1354 applied, attorneys fees pursuant to that statute must be allocated between enforcement and non-enforcement actions, and 90 percent of attorney time related to the Smiths should be allocated to tort claims and the overwhelming portion of Brownsteins declaratory relief and injunctive relief claims did not involve enforcement of any governing document, making a $15,000 award appropriate. Fourth, the attorney fee motion was premature because the Smiths failed to file a cost memorandum and sought to avoid specifying costs with sufficient detail to allow the court to evaluate whether costs were warranted under Code of Civil Procedure section 1033.5. Fifth, Code of Civil Procedure section 1033.5 prohibits an award of amounts for copying and other costs. Sixth, the fees and costs should be reduced to exclude fees and costs not related to the litigation. Seventh, the trial court should exercise its discretion to reduce amounts requested by 50 or 60 percent, to award a reasonable amount for litigation that actually occurred.

On December 6, 2007, the trial courts order awarded the Smiths attorneys fees and costs of $161,223.74. Brownstein filed a timely notice of appeal.

ISSUE

Brownstein claims on appeal that the trial court erroneously granted the Smiths motion for attorneys fees and costs because:

1.      the Smiths did not file a memorandum of costs as required by California Rules of Court, rule 3.1700;

2.      the doctrine of issue preclusion bars the award;

3.      the doctrine of law of the case bars the award; and

4.      the express terms of the September 14, 2007, judgment bar the award.

DISCUSSION

1.      No Error Occurred Because the Smiths Did Not File a Memorandum of Costs

Brownstein claims that the trial court erroneously made an attorneys fee and cost award because the Smiths did not file a memorandum of costs as required by California Rules of Court, rule 3.1700. Because Brownstein does not discuss this issue further and provides no legal authority for this claim of error, this court can disregard it. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.)

The trial court rejected section 6 of the CC&Rs as a basis for an award of attorneys fees pursuant to Civil Code section 1717. Instead the trial court relied on Civil Code section 1354, subdivision (c) as authority for an award of reasonable attorneys fees and costs.[1] Attorney fees authorized by statute are recoverable under Code of Civil Procedure section 1033.5, subdivision (a)(10). (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 194.) [T]he proper method to recover attorney fees is as an item of costs awarded upon noticed motion. (Ibid; see also Code Civ. Proc.,  1033.5, subd. (c)(5).) Thus no error occurred because the Smiths did not file a memorandum of costs.

2.      The Doctrines of Issue Preclusion and Law of the Case Do Not Apply and Do Not Render the Attorney Fee Award Erroneous

Brownstein claims that the doctrines of issue preclusion and law of the case barred the attorney fee award.

Brownstein claims that the September 14, 2007, judgment required a cost bill, which precludes the trial court from later deciding not to require a cost bill. First, Brownstein failed to make this objection in the trial court, and therefore forfeits the claim on appeal. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.) Second, the issue preclusion effect of res judicata bars a party from raising an issue of fact or law if the issue was actually litigated and determined by a valid and final judgment in a previous proceeding, and the determination was essential to the judgment; the determination, in that instance, is conclusive in a subsequent action between the parties. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1289-1290.) Here the judgment which purportedly made the determination was in the same case, not a previous one. The issue preclusion doctrine does not apply and does not render the attorney fee award erroneous.

Brownstein also claims that the doctrine of the law of the case barred the attorney fee award. Under the law of the case doctrine, the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301.) Thus the doctrine applies only to a prior decision of an appellate court in the same case, not to a trial courts own previous ruling. (Tippett v. Terich (1995) 37 Cal.App.4th 1517, 1523, fn. 2.) In this case no prior appellate decision stated a rule of law that governed the trial courts attorney fee award. The law of the case doctrine does not apply to the trial courts attorney fee award and does not make it erroneous.

3.      Brownstein Has Not Shown Error Because the Judgment Required a Cost Bill

Brownstein claims that the express terms of the September 14, 2007, judgment required the filing of a cost bill. Brownsteins opposition to the motion for attorneys fees and costs did not raise this objection in the trial court; the claim of error is therefore forfeited on appeal. (Amato v. Mercury Casualty Co., supra, 18 Cal.App.4th at p. 1794.) Moreover, as we have pointed out, a noticed motion was the proper method of seeking to recover attorneys fees as costs.

4.      The Smiths Are Entitled to Their Attorneys Fees on Appeal

The Smiths claim on appeal that they are entitled to an award of attorneys fees incurred in this appeal. Fees recoverable pursuant to statute are available for services at trial and on appeal. (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.) On remand, the trial court will determine the amount of attorney's fees.

DISPOSITION

The order is affirmed. The matter is remanded to the trial court for an award, on noticed motion, of attorneys fees incurred by defendants in this appeal. Costs on appeal are awarded to defendants Douglas Smith and Bonnie Smith.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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[1] Civil Code section 1354, subdivision (c) states: In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorneys fees and costs. Governing documents means the declaration and any other documents, such as bylaws, operating rules of the association, articles of incorporation, or articles of association, which govern the operation of the common interest development or association. (Civ. Code, 1351, subd. (j).)