K2 Construction v. Anjani Investments
Filed 6/15/09 K2 Construction v. Anjani Investments CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
K2 CONSTRUCTION, INC., Plaintiff and Respondent, v. ANJANI INVESTMENTS, INC. Defendant and Appellant. | D053717 (Super. Ct. No. L00973) |
APPEAL from an order of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed.
This is the second appeal in an action by K2 Construction, Inc. (K2) against Anjani Investments, Inc. (Anjani) arising out of Anjani's termination of its construction contract with K2 to build a hotel in El Centro. On this appeal, Anjani contends that the superior court erred in awarding K2 all of its requested attorney fees incurred in connection with the prior appeal. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Anjani hired K2 in September 2000 to build a Holiday Inn Express hotel on a property it owned in El Centro. (K2 Construction v. AnjaniInvestments (Aug. 9, 2007, D046906 [nonpub. opn.].) Before the scheduled date for substantial completion of the project, Anjani terminated the construction contract. In March 2002 K2 filed this action against Anjani, Anjani's construction lender (Comerica Bank-California) and others. Anjani and Comerica each filed cross-complaints. (K2 Construction v. AnjaniInvestments, supra.) In a bifurcated trial, K2's contract claims were tried to a jury, which rejected Anjani's breach of contract claim against K2, found that Anjani breached the contract and awarded K2 $370,409 in damages. (K2 Construction v. AnjaniInvestments, supra.)
K2's stop notice claim against Comerica was then tried to the court, which rejected both Anjani's defense "in intervention" on Comerica's behalf and K2's attempt to establish that Anjani's principals were alter egos of the company. (K2 Construction v. AnjaniInvestments, supra.) The court thereafter granted K2's motion to recover prejudgment interest against Comerica, denied K2's request for penalty interest against Anjani and awarded K2 attorney fees and costs, after taxing certain of K2's requested cost items. (K2 Construction v. AnjaniInvestments, supra.)
All three parties appealed the resulting judgment, which was affirmed in part and reversed in part by this court's unpublished opinion. (K2 Construction v. AnjaniInvestments, supra.) The disposition ordered that K2 and Anjani were to each bear their own costs on appeal, but remanded the matter for "further proceedings, if necessary," and for the entry of an amended judgment consistent with our opinion. (K2 Construction v. AnjaniInvestments, supra.)
On remand, the court entered an amended judgment and K2 moved for an award of attorney fees incurred on the prior appeal. Anjani filed a two page opposition to K2's motion, arguing that, because the appellate opinion ordered K2 to bear its own costs, the court could not award K2 any fees. After oral argument, the court took the matter under submission and received supplemental briefing on the issue of whether it had jurisdiction to award fees. It ultimately awarded K2 $54,679 in fees, finding that, even after the appeal, K2 still recovered the greater relief, and thus was the prevailing party, in the action.
Anjani moved for reconsideration, contending that, as a result of its counsel's misreading of the underlying attorney fee motion, it did not previously argue, but was now contending, that the court should at least have apportioned the fees and denied those fees incurred as to those issues as to which K2 did not prevail on appeal. The court denied the motion on the ground that the motion did not meet the criteria for a motion for reconsideration. It also indicated, however, that it would review the papers and, if it concluded that there was some error in its finding, it could and would set the matter for hearing on its own motion. The court apparently concluded that there was no error and Anjani now appeals the order awarding K2 its fees.
DISCUSSION
Anjani contends that the trial court lacked jurisdiction to award K2 attorney fees incurred on the prior appeal or, alternatively, that the court abused its discretion in not apportioning the fees. We address these arguments in turn below.
1. Jurisdiction to Award Fees
Anjani contends that because this court's prior opinion ordered K2 to bear its own costs of appeal, the trial court lacked jurisdiction to award K2 its costs. However, the law is to the contrary. (Cal. Rules of Court, rule 8.278(d)(2) [providing that unless the appellate court otherwise specifies, an award of costs "neither includes attorney's fees on appeal nor precludes a party from seeking them"]; Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 922-928; Mustachio v. Great Western Bank (1996) 48 Cal.App.4th 1145, 1150.) Moreover, contrary to Anjani's contention, we did not merely remand the matter for entry of an amended judgment or for a reduction of the principal amount thereof, but also expressly included in the remittitur that the court could conduct further proceedings, which, in accordance with the authorities cited above, included the issue of attorney fees. The remittitur thus created jurisdiction in the trial court to award K2 attorney fees incurred on the prior appeal.
2. Apportionment
Anjani also contends that the trial court abused its discretion in not apportioning the attorney fees and awarding only those fees incurred in connection with issues on which K2 was successful on appeal. As K2 points out, however, Anjani failed to raise this contention in opposing its fee motion (despite having filed three different oppositions to the motion) and thus failed to preserve this issue for appellate review. (See Baychester Shopping Center, Inc. v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2008) 165 Cal.App.4th 1000, 1007-1008 [recognizing that even a timely assertion of a one-sentence argument in the trial court regarding the constitutionality of a local ordinance was insufficient to preserve the issue for appellate review]; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) Accordingly, we need not and do not address this argument further.
DISPOSITION
The order awarding K2 its attorney fees on the prior appeal is affirmed. The parties are to each bear their own costs and fees.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P.J.
O'ROURKE, J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
