Mundell v. City of
Valley
Filed 8/16/12 Mundell v. City of Simi Valley CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
MARK MUNDELL,
Plaintiff and Appellant,
v.
CITY OF SIMI VALLEY
AND SIMI VALLEY POLICE DEPARTMENT,
Defendant and Respondent.
2d Civil No.
B234915
(Super. Ct. No.
56-2010-00371739-CU-CR-SIM)
(Ventura
County)
Mark Mundell appeals from the order awarding reasonable
attorney fees to the City of Simi Valley (City) pursuant to Code of
Civil Procedure section 1021.7.
name="_ftnref1" title="">[1] Appellant contends that the trial court (1)
erroneously found that his action against City had not been filed in good
faith, (2) failed to provide him an opportunity to respond to evidence produced
by City, and (3) abused its discretion in determining the amount of attorney
fees. We affirm and remand for a
determination of reasonable attorney fees on appeal.
Factual and Procedural Background
On April 15, 2010, appellant filed an action against City and the Simi
Valley Police Department (respondents).
The action was brought pursuant to state
law and the federal civil rights statute (42 U.S.C.
§ 1983). (Augmented Record (AR) 1)
Appellant claimed that, on April 16,
2009,
police officers had used excessive force in arresting him. The excessive force occurred when a police
dog bit him. Appellant's complaint
alleged that, "in full and timely compliance with the California Tort
Claim[s] Act [Gov. Code, § 900 et seq.]," he had filed a claim with
City, which had rejected it. The timely
filing of the claim was a prerequisite to bringing an action against City based
on state law. (State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1237.)
On May 21, 2010, appellant filed a
of a late claim with City. Appellant
alleged that his mother, Cindy Pritchard, had filed a claim with the wrong
entity: Ventura County. Pritchard's declaration, dated May 12, 2010, was attached to the motion. She declared that her attorney had
misinformed her that the claim should be filed with Ventura County instead of City. Pritchard later retained a different
attorney, P. Paul Aghabala, to represent appellant. Aghabala filed the action against respondents
and continues to represent appellant in this appeal.
On June 4, 2010, respondents filed a demurrer to the complaint. Two days earlier, respondents had served the
demurrer by mailing a copy to appellant.
The demurrer was based in part on appellant's failure to timely file a
claim with City.
On July 29, 2010, the trial court denied appellant's motion to allow
the filing of a late claim with City.
The denial was based on appellant's failure to timely file with City an
application to present a late claim. (Gov. Code, § 911.4.)
On July 29, 2010, the court also sustained, without leave to amend,
respondents' demurrer to the state claims because appellant had failed to
comply with the claims presentation requirements of the Tort Claims Act. The court overruled respondents' demurrer to
appellant's federal claims. But on January 11, 2011, appellant voluntarily dismissed without prejudice
the entire action against respondents.
Respondents
subsequently moved for attorney fees pursuant to section 1021.7 on the ground
that appellant's action had not been filed or maintained in good faith or with
reasonable cause. In opposition to the
motion, attorney Aghabala declared under penalty of perjury: Before he filed
the complaint, Pritchard had informed him "that under the advice of her
personal injury attorney . . . she had filed a timely claim against [City] on October 15, 2009 and that it had been rejected on October 16, 2009."
Aghabala relied on her information.
When Aghabala "received [respondents'] demurrer, for the first time
[he] realized that in fact the government claim had been filed with the County of Ventura instead of Simi Valley."
In
their reply to appellant's opposition, respondents argued that Aghabala
"had to [have] known before [receiving the demurrer] that the claim was
filed with the wrong entity." Respondents
mailed the demurrer to Aghabala on June 2, 2010. On May 12, 2010, 21 days before the
demurrer was mailed, Pritchard had signed a declaration alleging that she had
mistakenly filed the claim with Ventura County instead of City.
During
the hearing on the motion for attorney fees, respondents presented evidence
discovered by their counsel the previous day.
The evidence was a fax from Aghabala's office to Simi Valley Deputy City
Attorney Felicia Liberman. The fax had
been sent on April 29, 2010, 34 days before the
demurrer was mailed to Aghabala. The fax
cover sheet has a blank space next to "SENDER." In that space, someone had written the name,
"Paul Aghabala." Without
objection, the fax was marked as Exhibit A and received by the court. The fax included (1) the claim filed by
Pritchard, showing that Ventura County had received it on October 15, 2009; and
(2) Ventura County's rejection letter dated the following day and addressed to
Pritchard.
Respondents'
counsel argued that the fax showed that, long before Aghabala received the
demurrer, he had known that the claim had been filed with the wrong
entity. Counsel contended that it is
reasonable to infer that Pritchard gave the wrongly filed claim and rejection
letter to Aghabala when she met with him before the action was filed on April
15, 2010. Counsel continued:
"[T]here's an instruction on a witness willfully false who is to be
distrusted in other areas of his testimony, and based on what Mr. Aghabala has
told the Court today and on other occasions, I don't think you can just take at
face value the representations that he's made." At the conclusion of the hearing, the court
took the matter under submission.
The
court's ruling is set forth in a minute
order. The court concluded that
respondents "are entitled to recover $11,857.50 in attorney's fees
incurred in defending against [appellant's] state law claims . . . pursuant to
[section] 1021.7 because they demonstrate that [appellant's] state law claims
were filed or maintained without 'good faith' or 'reasonable cause.'
" The court explained: "Facts
adduced at the hearing, and corroborated by the Court's review of the court
file, flatly contradict so many of Mr. Aghabala's claims that they belie the
veracity of those remaining. In short,
the Court concludes that Mr. Aghabala knowingly filed this action based upon a
defective Tort Claim, and, therefore, did so in bad faith."
Section 1021.7 applies to an action for damages against a
peace officer, or a public entity
employing a peace officer, if the action arises out of the performance of the
peace officer's duties. In such actions,
section 1021.7 gives the court discretion to award reasonable attorney fees to
the defendants "upon a finding . . . that the action was not filed or
maintained in good faith and with
reasonable cause." (§ 1021.7,
italics added.) Despite the use of the
conjunction "and," the statute has been interpreted as permitting the
recovery of attorney fees upon a finding that the action was not filed or
maintained in good faith or with
reasonable cause. (Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934, 949
["the absence of either condition [good faith or reasonable cause] is
sufficient grounds for awarding fees under sections 1038 and
1027.1"]; Kobzoff v. Los Angeles
County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 855 [similar
language in section 1038 interpreted as meaning "that the trial court may
award section 1038 costs if it finds plaintiffs brought or maintained their
action without either good faith or reasonable cause"].)
The
trial court found that Aghabala had not acted in good faith because he had
"knowingly filed this action based upon a defective Tort Claim." Appellant contends that the court's finding
was erroneous.
The
term "good faith" as used in sections 1021.7 and 1038 is construed
the same. (Salazar v. Upland Police Dept., supra,
116 Cal.App.4th at p. 949.) " '
faith,
or its absence, involves a factual inquiry into the
plaintiff's subjective state of mind [citations] . . . . A subjective state of mind will rarely be
susceptible of direct proof; usually the trial court will be required to infer
it from circumstantial evidence. Because
the good faith issue is factual, the question on appeal will be whether the
evidence of record was sufficient to sustain the trial court's finding.' " (Clark
v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 183.)
"
'In reviewing the sufficiency of the evidence,
we must consider all of the evidence in the light
party, accept as true all the evidence and reasonable inferences therefrom that
tend to establish the correctness of the trial court's findings and decision,
and resolve every conflict in favor of the judgment. [Citation.]
"It is not our task to weigh conflicts and disputes in the evidence;
that is the province of the trier of fact.
Our authority begins and ends with a determination as to whether, on the
entire record, there is any substantial evidence, contradicted or
uncontradicted, in support of the judgment." [Citation.]' " (DiPirro
v. Bondo Corp. (2007) 153 Cal.App.4th 150, 189.) "An appellate court does not . . .
evaluate the credibility of witnesses, but rather defers to the trier of
fact. [Citations.]" (Cahill
v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 958.)
Viewing
the evidence in the light most favorable to respondents, we conclude that substantial
evidence supports the trial court's finding that Aghabala had not acted in good
faith. Aghabala declared under penalty
of perjury that, when he "received [respondents'] demurrer, for the first
time [he] realized that in fact the government claim had been filed with the
County of Ventura instead of Simi Valley."
The demurrer was mailed to Aghabala on June 2, 2010. But on April 29, 2010, Aghabala sent a fax to
City that included (1) the claim filed by Pritchard, showing that Ventura
County had received it on October 15, 2009; and (2) Ventura County's rejection
letter dated the following day and addressed to Pritchard. Based on the fax, it is reasonable to infer
that, more than one month before the demurrer was mailed to him, Aghabala knew
that the claim had been filed with the wrong entity. We presume that the trial court drew this
inference. (Cahill v. San Diego Gas & Elec. Co., supra, 194 Cal.App.4th at p. 958 ["An appellate
judgment or order all reasonable inferences"].) Thus, the fax provides a factual basis which
supports the trial court's determination that Aghabala was not credible. This is fatal to the appeal. (In re
Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099.)
It is
also reasonable to infer that Aghabala obtained the faxed claim and rejection
letter from Pritchard. We know that she
had these documents in her possession.
She declared that, when she filed the claim with Ventura County, the
clerk stamped "received" on a copy and gave it to her. (1CT 131, line
10). Pritchard further declared that she
had received the rejection letter "on or about October 20, 2009."
(1CT 131, lines 11-13) Moreover, as argued
by respondents' counsel at the hearing, it is reasonable to infer that
Pritchard gave Aghabala the claim and rejection letter when she met with him
before the action was filed. Any
competent attorney would have reviewed these documents before filing the
complaint. Accordingly, the court
reasonably concluded that Aghabala had "knowingly filed this action based
upon a defective Tort Claim."
In
any event, irrespective of the good faith issue, the trial court did not err in
determining that the action had been filed without reasonable cause. " 'Reasonable cause is to be
determined objectively, as a matter of law, on the basis of the facts known to
the plaintiff when he or she filed or maintained the action. Once what the plaintiff (or his or her
attorney) knew has been determined, or found to be undisputed, it is for the
court to decide " 'Whether any reasonable attorney would have thought the
claim tenable . . . .' "
[Citations.] Because the opinion
of the hypothetical reasonable attorney is to be determined as a matter of law,
reasonable cause is subject to de novo review on appeal.' [Citation.]" (Hall
v. Regents of University of California (1996) 43 Cal.App.4th 1580,
1586.) As discussed above, it is
reasonable to infer that, before Aghabala filed the action against respondents,
Pritchard had given him documents showing that the mandatory pre-filing claim
had been presented to Ventura County instead of City. In these circumstances, no reasonable
attorney would have thought the claim tenable.
Appellant
argues: "The trial court violated [appellant's] and Attorney Aghabala's
due process rights by depriving them of an opportunity to respond to this new
evidence, produced for the first time [at the hearing] after the parties had
fully briefed the issues." But the
court gave appellant an opportunity to respond.
The court asked Aghabala: "What about this fax to the City of Simi
Valley on your fax machine What do you
know about that" Aghabala neither
requested additional time to respond to the fax nor objected to its
consideration by the court. Appellant,
therefore, has forfeited the issue.
"As a general rule, a claim of error will be deemed to have been
the error to the trial court's attention by timely motion or objection. [Citations.]" (Avalos
v. Perez (2011) 196 Cal.App.4th 773, 776.)
"The amount of attorney
fees to be awarded is within the trial court's sound
[Citations.] The experienced
trial judge is the best judge of the value of professional services rendered in
his or her court, and a reviewing court will not disturb a trial court's award
unless it is convinced that the trial court's award is clearly wrong. [Citation.]" (Foundation
for Taxpayer and Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375,
1394.)
Appellant
contends that the trial court abused its discretion in determining the amount
of attorney fees because "[n]ot a single billing statement or similar
support [was] provided to the trial court or [appellant's] counsel to
authenticate [respondents'] counsel's declaration he spent the hours he claims
on the matter." The contention is
meritless. Respondents' counsel submitted
51 pages of billing statements setting forth in detail the services that he had
provided. Moreover, "there is no
legal requirement that an attorney supply billing statements to support a claim
for attorney fees." (
Ersoff (2007) 153 Cal.App.4th 257, 269.)
Appellant
argues that "the trial court improperly awarded fees attributable to
defenses upon which [respondents] did not prevail" and "failed to
require [respondents] to differentiate between fees incurred defending the
viable federal claims and the state claims." We disagree.
Respondents requested attorney fees of $46,639.50. (2CT 184) The total fees awarded were $11,857.50,
approximately 25 percent of the amount requested. The court allowed attorney fees only for the
defense of the state claims at a rate of $155 per hour. Respondents' counsel declared under penalty
of perjury that he had spent 76.5 hours defending against the state claims and
224.4 hours defending against the federal claims. "Testimony of an attorney as to the
number of hours worked on a particular case is sufficient evidence to support
an award of attorney fees, even in the absence of detailed time records. [Citations.]" (Martino
v. Denevi (1986) 182 Cal.App.3d 553, 559.)
Respondents
request "a finding of entitlement to attorney's fees on appeal and remand
to the lower court for determination of the amount." (RB 21) Section 1021.7 contains no language
specifically excluding appeals. It therefore
permits an award of attorney fees on appeal.
(Morcos v. Board of Retirement
(1990) 51 Cal.3d 924, 929 ["the general rule [is] that statutory attorney
fee provisions are interpreted to apply to attorney fees on appeal unless the
statute specifically provides otherwise"].) "[S]ince attorney fees are properly
recoverable in the trial court for [respondents']
recoverable for his continued success on appeal. [Citation.]" (
attorney fee request and remand the matter for the trial court to determine the
amount of the award in compliance with rule [3.1702] of the California Rules of
Court." (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440,
448.)
The order awarding
attorney fees to respondents is affirmed.
Respondents shall recover their costs and reasonable attorney fees on
appeal in an amount to be determined by the trial court on noticed motion.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
David R. Worley, Judge
Superior Court County of Ventura
______________________________
Payam P. Aghabala and
Thomas E. Beck, for Plaintiff and Appellant.
David L. Caceres,
Assistant City Attorney, City of Simi Valley and Benjamin F. Coats, Andrew H.
Covner; Engle, Carobini, Covner &
Coats, for Respondents.
name="_ftn1" title="">[1] All statutory references are
to the Code of Civil Procedure unless otherwise stated.
name="_ftn2" title="">[2] For the first time in his reply brief, appellant
contends that section 1021.7 authorizes the award of attorney fees only if the
court finds that the entire action was not filed or maintained in good faith or
with reasonable cause. Because the court
here found that only a portion of the action - the state law claims - had not
been filed or maintained in good faith or with reasonable cause, appellant
argues that section 1021.7 is inapplicable.
"[Appellant] offers no explanation why these contentions were not
presented earlier in [his] opening brief. Because arguments raised for the first time
in the reply brief are considered
untimely and may be disregarded by the reviewing court [citation], we deem
these contentions forfeited. [Citations.]" (Peninsula
Guardians, Inc. v. Peninsula Health Care Dist. (2008) 168 Cal.App.4th
75, 86, fn. 6; see also SCI Cal. Funeral
Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549,
573, fn. 18.)
