Nazir v.
Filed 4/2/13
Horak v. South Shores Development CA2/2
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opinion has not been certified for publication or ordered published for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
TWO
JACK HORAK et al.,
Plaintiffs and
Appellants,
v.
SOUTH SHORES DEVELOMENT CORP. et al.,
Defendants and Appellants.
B238973
(Los Angeles County
Super. Ct. No. BC379704)
APPEAL
from a judgment of the Superior Court
of
County. Yvette M.
Palazuelos, Judge. Affirmed.
Law
Office of Ken I. Karan and Ken I. Karan for Plaintiffs and Appellants.
Law
Offices of Larry W. Weaver and Susan C. Watts for Defendants and Appellants.
This
is the second time this matter is before us.
The case stems from claims filed by Jack and Teresa Horak (collectively
“Horaksâ€) against South Shores Development Corporation doing business as
Lanikai Lane Mobile Home Park and Jed Robinson (Robinson) (collectively “South
Shoresâ€), after South Shores served the Horaks with a “Sixty (60) Day Notice to
Terminate Possession†of their tenancy (60-day notice) in the Lanikai Lane
Mobilehome Park (the park).
name="_ftnref1" title="">[1] The Horaks requested that the 60-day notice
be withdrawn “on the grounds of discrimination
and breach of contract.†They moved
out of their mobilehome, yet continued to market the property for sale. The Horaks sued South
Shores after they came to believe
that South Shores
was blocking their ability to sell their mobilehome.
In
their second amended complaint (SAC), filed July 24, 2008, the Horaks alleged
six causes of action against South Shores for:
(1) declaratory relief, seeking a declaration that the purported
termination of their lease was a nullity and that the lease was still in full
force and effect; (2) slander of title, based on South Shores’s representations
to third parties that the Horaks no longer had rights to the property; (3)
breach of contract, based on South Shores’s issuance of a false 60-day
termination letter and refusal to authorize sale of the property; (4) breach of
the implied covenant of good faith and fair dealing; (5) intentional
interference with prospective economic advantage; and (6) negligent
interference with prospective economic advantage.
A
bench trial was held in January 2009.
Following trial, a decision was rendered on the merits in favor of South
Shores, including $85,000 in
attorney fees. The Horaks appealed, and
in July 2010 we issued an unpublished opinion in Horak et al. v. South Shores Development Corp. et al. (Jul. 23, 2010, B216698) (hereafter
first cause of action as to Teresa Horak only, finding that her tenancy was not
terminated by operation of the 60-day notice to terminate.
remanded for reconsideration in light of our decision on the first cause of
action. The judgment was affirmed in
full as to Jack, with directions to the trial court to reconsider the attorney
fee award in light of our opinion. We
further determined that Teresa was entitled to her costs in connection with that
first appeal.
Upon
remittitur, the trial court requested briefing and argument from both parties.
The trial court then issued an amended judgment re-entering judgment against
Teresa as to the second through sixth causes of action and re-entering the attorney
fee award of $85,000 in favor of South
Shores.
The
Horaks now appeal from the amended judgment.
Shores cross-appeals from the award
of costs and fees entered in favor of Teresa after the first appeal.
We
find no error in the court’s amended judgment or in the order awarding Teresa
her costs and fees incurred in the first appeal. We therefore affirm the trial court’s
judgment in full.
In
their direct appeal from the amended judgment, the Horaks argue: (1) reconsideration of a judgment on remand
from an appeal requires a trial court that did not hear the evidence to retry
the matter; (2) burdens on the park application process violate the Mobilehome
Residency Law (MRL) (Civ. Code, § 798 et seq.); (3) the amended judgment is not
based on substantial evidence; (4) the judgment should be reversed for failing
to specify judgment for Teresa on the first cause of action; (5) the MRL
compels the imposition of monetary
penalties for South Shores’s violations; and (6) Teresa is the prevailing
party under the MRL and is entitled to her attorney fees.
In
its cross-appeal, South Shores
challenges the trial court’s ruling granting Teresa $43,534.29 in costs and
attorney fees after the first appeal of this matter.
The
Horaks are a married couple. Pursuant to
a rental agreement entered into on or
about July 1, 1997 (lease), South
Shores rented to the Horaks a
mobilehome space in the park, located at 6550 Pronto
Drive, Space No. 108, Carlsbad,
California.
The Horaks purchased the mobilehome on the mobilehome space, in which
they resided with their two sons. At all
relevant times, South Shores
owned the mobilehome park. The lease was
explicitly governed by the MRL.
On
May 9, 2006, the Horaks gave
notice to South Shores
of their intention to sell their mobilehome in the park. The notice informed South
Shores that the Horaks were selling
because of breaches by South Shores
in its duties to properly maintain the park and preserve the quiet enjoyment of
the park.
On
June 8, 2006, Jack was
involved in a confrontation with another resident of the park. The police were called, and Jack was
arrested. Charges were filed against
Jack, but later dismissed.
On
June 19, 2006, South
Shores prepared the 60-day notice,
which was addressed to “Jack Horak and All Residents in Possession†of the
property. The notice was served on the
Horaks on June 24, 2006. The notice described the altercation between
Jack and the other park resident, and provided that “[f]or all the
above-described reasons, the management and residents of Lanikai Lane
Mobilehome Park have found your conduct totally undesirable and a substantial
annoyance to every resident of the Park.â€
The notice demanded that, within 60 days, the Horaks quit the premises
and either sell their mobilehome to an approved purchaser or remove it from the
premises. After receiving the notice,
the Horaks disputed it in writing, asking that the notice “be taken back†on
the grounds of discrimination and breach of contract by South
Shores. The Horaks indicated that they would be
moving out of the mobilehome in July 2006 but that they would “still be a
mobile home owner as well as an active member of the HOA and a Board of
Director until our home is sold.â€
The
Horaks moved out of the property while they marketed it for sale. They tendered rent checks every month, which South
Shores never cashed. The Horaks also continued to pay property
taxes from May 2006 to the time of trial.
The
Horaks’ lease contained a provision requiring that any prospective buyer obtain
approval from the management of the park before the Horaks could actually sell
the property. Thus, as the Horaks
marketed their property, they sent prospective buyers to the management of the
park for approval. Teresa testified that
she referred at least six prospective buyers to South Shores for park
approval. When her buyers never returned
to finalize the sale, Teresa became concerned that South Shores was unlawfully
withholding approval of prospective buyers.
The
Horaks filed suit against South Shores on October 25, 2007. The SAC, filed July 24, 2008, became the
operative complaint in the action.
Trial
commenced on January 12, 2009. On March
17, 2009, the trial court entered judgment on the merits in favor of South
Shores on all causes of action. South
Shores brought a motion for attorney fees, which the trial court granted in the
amount of $85,000.
The
Horaks appealed, contending that: (1)
the trial court erred in determining that Teresa’s tenancy was properly
terminated by South Shores based on the actions of Jack; (2) substantial
evidence did not support the trial court’s finding that the actions of Jack
amounted to a “substantial annoyance†under Civil Code section 798.56; (3) the
trial court erred in excluding evidence of the alleged potential buyers of the
Horaks’ mobilehome; (4) the trial court erred in excluding evidence of South
Shores’s treatment of other allegedly offending residents of the mobilehome
park; and (5) the trial court erred by denying sanctions in the form of
attorney fees after granting the Horaks’ motion to compel discovery. In Horak
v. South Shores I, this court held that the trial court erred in
determining that Teresa’s tenancy had been terminated by service of the 60-day
notice. The trial court judgment on the
first cause of action for declaratory relief was reversed as to Teresa only. As to Teresa’s remaining causes of action,
the matter was remanded for reconsideration in light of the decision on the
first cause of action. As to Jack, the
judgment was affirmed in full. The trial
court was also directed to reconsider the award of attorney fees to South
Shores in light of the appellate opinion.
Teresa was granted her costs on appeal.
Remittitur
was filed in the superior court on September 28, 2010. The Horaks filed an affidavit of prejudice
pursuant to Code of Civil Procedure section 170.6 against the original trial
judge, Hon. William F. Fahey, on October 14, 2010. The matter was reassigned.
After
reviewing written briefs and hearing arguments of counsel, on November 30,
2011, the trial court entered an amended judgment in favor of South Shores as
to the second, third, fourth, fifth and sixth causes of action. The previous attorney fee award of $85,000
was re-entered in favor of South Shores.
On
February 24, 2012, the trial court determined that South Shores was the
prevailing party in the reconsideration after remand and awarded South Shores
$45,800 plus costs in the amount of $140.
On the same date, Teresa was awarded her costs and fees from the first
appeal, in the total amount of $43,534.29.
On
January 30, 2012, the Horaks filed their notice of appeal. On March 1, 2012, South Shores filed a notice
of appeal from the order dated February 24, 2012 granting Teresa her attorney
fees in the first appeal. The parties
stipulated to consolidate the appeals, and filed a request with this court. We granted the request for consolidation.
I. The Horaks’ direct appeal
A. The trial court lacked jurisdiction to re-try
the matter on remand
When
the matter was remanded after the first appeal, the Horaks urged the trial
court to interpret this court’s remand directions as unqualified. The Horaks argued that the remand directions
vacated the appealed judgment and all associated rulings and permitted them a
new trial. South Shores disagreed,
pointing out that the directions in the remittitur were to merely reconsider
the second through sixth causes of action in light of our determination that
Teresa’s tenancy had not been terminated.
The
trial court agreed with South Shores. It
interpreted our remand directions to mean that it should reconsider its verdict
on the remaining five causes of action in light of our determination that
Teresa’s tenancy remained intact. The
trial court did not interpret our remand directions as an unqualified reversal.
On
appeal, the Horaks challenge the trial court’s decision that it was not
authorized to order a new trial. The
question of whether the trial court correctly interpreted our opinion is an
issue of law subject to de novo review.
(In re Groundwater Cases (2007)
154 Cal.App.4th 659, 674 [“[t]he interpretation of the language of a judicial
opinion is a legal determination, and it is therefore subject to de novo
reviewâ€].)
Applicable law
“‘A
reviewing court has authority to “affirm, reverse, or modify any judgment or
order appealed from, and may direct the proper judgment or order to be entered,
or direct a new trial or further proceedings to be had.†(Code Civ. Proc., § 43.) The order of the reviewing court is contained
in its remittitur, which defines the scope of the jurisdiction of the court to
which the matter is returned.’
[Citations.] ‘The trial court is
empowered to act only in accordance with the direction of the reviewing court;
action which does not conform to those directions is void.’ [Citation.]â€
(Ayyad v. Sprint Spectrum, L.P. (2012)
210 Cal.App.4th 851, 859 (Ayyad).)
Thus,
the rule requiring a trial court to follow the terms of the remittitur is
jurisdictional. “The issues the trial
court may address in the remand proceedings are . . . limited to
those specified in the reviewing court’s directions, and if the reviewing court
does not direct the trial court to take a particular action or make a
particular determination, the trial court is not authorized to do so. [Citations.]â€
(Ayyad, supra, 210 Cal.App.4th
at pp. 859-860.)
“In
short, when an appellate court remands a matter with directions governing the
proceedings on remand, ‘those directions are binding on the trial court and
unauthorized and void.’
[Citation.]†(
2. The trial court correctly
concluded it could not order a new trial
The language contained in the
remittitur filed in the superior court specified that the trial court’s
judgment on Teresa’s cause of action for declaratory relief was reversed. It further directed that Teresa’s remaining
causes of action should be reconsidered in light of the opinion. The judgment was affirmed in full as to Jack,
with further directions that the trial court reconsider its attorney fee award
in light of the opinion.
This
language does not constitute an unqualified reversal. The directions restricted the proceedings
below to a reconsideration of Teresa’s remaining causes of action, to the
extent that they might be affected by our decision that her tenancy had not been
terminated. The trial court’s
jurisdiction did not extend to any issues outside the scope of these specific
directions. In particular, the trial
court had no jurisdiction to authorize a new trial.
The
Horaks argue that the trial court has the power to order a new trial after
remand as long as ordering a new trial is not a material variance from the
directions of the appellate court. In
support of this claim, the Horaks cite three cases, none of which support this
contention. On the contrary, all three
cases confirm the trial court’s conclusion that it had no power to vary from
the appellate court’s directive. (See
County (1952) 38 Cal.2d 652, 655-656 [“The order of the appellate court as
stated in the remittitur, ‘is decisive of the character of the judgment to
which the appellant is entitled. The
lower court cannot reopen the case on the facts, allow the filing of amended or
supplemental pleadings, nor retry the case, and if it should do so, the
judgment rendered thereon would be void’â€]; In
re N.M. (2008) 161 Cal.App.4th 253, 264 [“The trial court must follow the
directions of the appellate court and cannot modify or add any conditions to
the judgment as directed. . . .
Any action that does not conform to those directions is voidâ€]);
Cal.App.4th 1526, 1530 (Karlsen) [“
accordance with the direction of the reviewing court; action which does not
conform to those directions is void†(original italics)].)
The
Horaks further argue that if the trial court’s acceptance of their Code of
Civil Procedure section 170.6 challenge was proper, then it must be true that
the remand in this case anticipated a new trial.
The
trial court’s acceptance of the Horaks’ peremptory challenge was not proper. As
the Horaks admit, peremptory challenges after remand are only appropriate when
the trial judge in the prior proceeding is “assigned to conduct a new trial on
the matter.†(Code Civ. Proc., § 170.6,
subd. (a)(2).) We did not order a new
trial on remand, therefore the peremptory challenge should not have been
granted. (See Karlsen, supra, 139 Cal.App.4th at p. 1530 [by granting motion
pursuant to Code of Civil Procedure section 170.6 after a remand with specific
directions, “the trial court acted in excess of its jurisdictionâ€].) However, the Horaks may not object to the
trial court’s action in granting the peremptory challenge when they made a
deliberate tactical choice to file the peremptory challenge. An error which an appellant has invited is
not reversible error. (
23 Cal.3d 180, 184, fn. 1).
name="_ftnref5" title="">[5]
South
Shores also did not object to the grant of the peremptory challenge at any
stage of the proceedings. Therefore, any
objection to the grant of the peremptory challenge by either party has been
forfeited.
The
Horaks contend, as they did in their first appeal, that they should have been
permitted to present a certain witness, Richard Shirek, who was excluded from
trial on the ground that his name was not disclosed in discovery as it should
have been. In the first appeal of this
matter, we held that the trial court did not abuse its discretion in excluding
that witness on the ground of willful failure to respond to discovery. The Horaks are not entitled to a new trial
simply because they continue to perceive error in that ruling.
The
trial court on remand correctly concluded that our directions did not
constitute an unqualified reversal. The
trial court also correctly understood its task to be limited to a
reconsideration of the remaining causes of action as to Teresa in light of our
opinion that her tenancy was not terminated by the 60-day notice. The trial court limited its actions to those
consistent with our directions, therefore no error occurred.
The record supports the amended judgment
The Horaks further contend that the
evidence does not support the trial court’s amended judgment in favor of South
Shores on the second through sixth causes of action.
We
first discuss the standard of review. The Horaks correctly state that certain
issues such as liability and causation may present pure questions of law
subject to de novo review on appeal where the facts are not contested. However, the Horaks argue that we should
evaluate any conflicting evidence in the record under the substantial evidence
standard. We disagree. The substantial evidence test is appropriate
where the appellate court must review questions concerning the establishment of
historical or physical facts. (
San Francisco (1989) 49 Cal.3d 881, 888.)
Because it involves a review of factual findings, the substantial
evidence standard of review is appropriately applied where this court must
defer to the fact finder’s assessment of a witness’s credibility. (Harustak
v. Wilkins (2000) 84 Cal.App.4th 208, 213.)
Witness credibility was not an issue on remand, and the trial court did
not assess the credibility of any witnesses in reaching its decision. As the trial court correctly stated: “this court is not reconsidering whether
Judge Fahey correctly found the facts but whether the facts Judge Fahey found,
in light of the appellate directive, support the verdicts.â€
The
matter was remanded for reevaluation in light of our legal conclusion that
Teresa’s tenancy was not terminated by South Shores’s 60-day notice. Thus, the outcome of this appeal turns on
whether Teresa’s legal status as a tenant has any effect on her remaining
causes of action. While this is a mixed
question of law and fact, the predominant issue is legal: whether the change in Teresa’s status, as
decided on appeal, affects the outcome of her remaining causes of action. This inquiry requires “a critical
consideration, in a factual context, of legal principles.†(Crocker
National Bank, supra, 49 Cal.3d at p. 888.)
We therefore find that the de novo standard of review is more
appropriate. (Ibid.; see also Harustak v.
Williams, supra, 84 Cal.App.4th at p. 213 [de novo standard of review
appropriate if there are mixed questions of law and fact but legal issues
predominate].)
As
set forth below, we find no error in the trial court’s determination that
Teresa’s status as a non-terminated tenant did not affect the outcome of her remaining
causes of action.
Slander of title
The
elements of a cause of action for slander of title are: (1) false and unprivileged disparagement; (2)
of title to property; and (3) resulting in actual pecuniary damage. (Glass
v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 419 (Glass).) The trial court
concluded that the Horaks failed to show that there was any disparagement of
the title to Teresa’s property. In
addition, the trial court determined that Teresa failed to establish that she
suffered any damages from any purported disparagement of title. Thus, the trial court concluded, Teresa’s
status as a non-terminated tenant does not change the original ruling against
Teresa on this cause of action.
In
discussing disparagement of title, the court pointed out that there was no
evidence that any potential buyer was ever informed that Teresa did not hold
title to the property. The Horaks argue
that there was evidence in the record suggesting that South Shores’s staff was
instructed to tell any prospective purchaser of Teresa’s interest in her lease
to contact South Shores’s attorney in order to obtain an application. The Horaks claim that the reasonably
foreseeable effect of this instruction on potential buyers would be “to walk
away from the transaction to avoid buying a lawsuit.†The trial court found this argument was too
speculative to support a ruling in favor of Teresa on this cause of action.
The
Horaks also claim that there was testimony suggesting that South Shores
informed members of the public that Teresa had no tenancy to transfer. However, the cited portions of the record do
not support the Horaks’ claim. Thus, the
trial court properly concluded that Teresa failed to establish this element of
the tort of slander of title.
In
finding that Teresa suffered no damages from any purported disparagement of
title, the trial court relied upon the first trial court’s statement of
decision, in which the court pointed to Teresa’s testimony that “she did not
receive a bona fide offer from any of the people with whom she was negotiating
to sell the mobilehome.†By failing to
point to evidence of a bona fide purchaser, the trial court concluded, Teresa
failed to establish that she suffered any actual pecuniary injury as a result
of any alleged slander of title.
The
Horaks argue that evidence of a specific buyer was not necessary to a finding
of slander of title. The Horaks cite
disparagement may cause pecuniary loss if widely disseminated where, “‘but for
the disparagement, [the] land or other thing might with reasonable certainty
have found a purchaser.’†(
424.) The principle stated in
public disparagement of Teresa’s title at all -- much less widely disseminated
disparagement.
Under
the circumstances, we find that the trial court did not err in finding in favor
of South Shores on the second cause of action for slander of title. Although Teresa’s tenancy was not terminated
by the 60-day notice, the Horaks failed to establish two essential elements of
the tort of slander of title:
disparagement and damages. The
record supports the trial court’s ruling that our decision as to Teresa’s legal
status had no effect on the outcome of this cause of action. No error occurred.
Breach of contract/breach of implied covenant of good faith and fair
dealing
The
Horaks’ claims for breach of contract and breach of implied covenant of good
faith and fair dealing require that the Horaks prove that they suffered damage
from any such breach. (See
& Gas Co. (2004) 116 Cal.App.4th 1375, 1391, fn. 6 [elements of breach
of contract are: (1) existence of
contract; (2) plaintiffs’ performance or excuse for nonperformance; (3)
defendants’ breach; and (4) resulting damage]; Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38,
49 [elements of cause of action for breach of covenant of good faith and fair
dealing are: (1) existence of contractual
relationship; (2) implied duty; (3) breach; and (4) causation of
damages].) Based on its review of the
evidence, the trial court concluded that the Horaks failed to establish this
essential element of these causes of action.
The
trial court noted that Teresa established a
the 60-day notice was an improper attempt to terminate her tenancy. However, the trial court found that because
Teresa was not evicted from her home, the breach did not cause any actual
damage to Teresa.
The
Horaks argued below, as they argue on appeal, that the damage arose from South
Shores’s disparaging statements to members of the public that Teresa had no
tenancy to transfer. However, the trial
court concluded that the record did not support the Horaks’ claim that such
disparaging statements were made.
Without
any evidence of damages, Teresa’s cause of action for breach of contract
fails. Where the evidence does not
support a cause of action for breach of contract, the evidence also does not
support a cause of action for breach of the implied covenant of good faith and
fair dealing. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344.) There was no error in the trial court’s decision
in favor of South Shores on these two causes of action.
Intentional and negligent interference with prospective economic
advantage
In
order to prevail on her causes of action for the torts of intentional or
negligent interference with prospective economic advantage, Teresa was required
to prove that South Shores intentionally or negligently interfered with her
ability to market or sell her property.
(See Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal.App.4th 212, 241 [elements of intentional
interference with prospective business relationship are: (1) economic relationship between plaintiff
and third party; (2) probability of future economic benefit to the plaintiff;
(3) defendant’s knowledge of the relationship; (4) defendant’s intentional acts
designed to disrupt the relationship; (5) defendant engaged in independently
wrongful act beyond disruption of economic relationship; (6) actual disruption
of the relationship; and (7) economic harm to the plaintiff];
Court (1997) 59 Cal.App.4th 764, 786 [elements of negligent interference
with prospective economic relations are:
(1) economic relationship between the plaintiff and a third party; (2) a
reasonably probable economic benefit to the plaintiff; (3) defendant knew of
the existence of the relationship and was aware, or should have been, that if
defendant did not act with due care, its actions would interfere with the
relationship and cause the plaintiff to lose the probable future economic benefit;
(4) the defendant was negligent; (5) the negligence caused damage to plaintiff
because of actual interference or disruption; and (6) plaintiff lost in whole
or in part the economic benefit or advantage reasonably expected from the
relationship].)
As
explained above, the trial court found that the Horaks failed to establish at
trial that South Shores interfered in any way with Teresa’s ability to sell and
market her property. There was no
evidence that any potential buyer was ever incorrectly informed that Teresa had
no tenancy to transfer. There was no
evidence that Teresa had a prospective business relationship with any specific
buyer, or that South Shores or its attorney ever disrupted any such
relationship. Because the Horaks failed
to establish this essential element of these two causes of action, our decision
as to Teresa’s legal status had no effect on the outcome of these two causes of
action. The trial court did not err in
deciding these two causes of action in favor of South Shores on remand.
C. The trial court did not abuse its discretion
in declining to find that Teresa was the prevailing party on reconsideration
after remand
After
the initial trial of this matter, the trial court entered judgment in favor of
South Shores on all causes of action and awarded South Shores reasonable
attorney fees in the amount of $85,000 as the prevailing party. Attorney fees were initially sought under
Civil Code sections 1717 (contractual attorney fees) and 798.85 (providing
statutory attorney fees to the prevailing party on any action arising out of
the MRL).
After
partially reversing the judgment, and remanding for reconsideration, this court
directed the trial court to reconsider the award to South Shores of $85,000 in
attorney fees. On remand, the trial
court determined that judgment should remain in favor of South Shores and
against Teresa on the second through sixth causes of action. The trial court concluded that South Shores
remained the prevailing party on the matter as a whole and that the $85,000
award of attorney fees in favor of South Shores was still proper. While acknowledging that the judgment against
Teresa was reversed on the first cause of action, the trial court cited
139 Cal.App.4th 328, 342 for the proposition that “attorney fees need not be
reduced for work on unsuccessful claims if the claims ‘are so intertwined that
it would be impracticable, if not impossible, to separate the attorney’s time
into compensable and noncompensable units.’ [Citations.]â€
The trial court also noted that Teresa suffered no damages from South
Shores’s improper notice of eviction.
Teresa
challenges the trial court’s ruling. She
argues that she is the prevailing party under the MRL, and that enforcement of
the MRL does not hinge on the recovery of damages.
A
trial court’s determination of the prevailing party is subject to an abuse of
discretion standard of review. (Ritter
& Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium Assn.
(2008) 166 Cal.App.4th 103, 126 (Ritter
& Ritter) [“The trial court’s determination of the prevailing party for
purposes of awarding attorney fees is an exercise of discretion which should
not be disturbed on appeal absent a clear showing of abuse of discretionâ€].)
We
find no abuse of discretion in the trial court’s ruling. The court set forth the factors which it was
required to consider under both Civil Code sections 1717 and 798.85. Citing Zagami,
Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1097, the court
noted that under Civil Code section 1717 it was required to “compare the extent
each party succeeded and failed to succeed as to their contentions, and the
relief awarded on contract claims, with the parties’ demands on those claims
and their objectives, as disclosed by pleadings and briefs, and similar
sources.†Under Civil Code section
798.85, the court indicated that it had no discretion to deny prevailing party
status where one of the following statutory factors applies: “‘“[1] the party with a net monetary
recovery, [2] a defendant in whose favor a dismissal is entered, [3] a
defendant where neither plaintiff nor defendant obtains any relief, and [4] a
defendant as against those plaintiffs who do not recover any relief against
that defendant†. . .’ [Citation.]†(See Code Civ. Proc., § 1032, subd. (a)(4).)
Based
on these legal principles, the trial court determined that South Shores
remained the prevailing party under both Civil Code sections 1717 and
798.85. The court explained that the
only cause of action upon which either plaintiff received judgment was Teresa’s
claim for declaratory relief. However,
she was not entitled to any relief on this claim because it did not result in
any damages.
If
a trial court’s exercise of discretion is not erroneous as a matter of law, we
will not disturb it. (
Cal.App.4th 748, 759.) We find no abuse
of discretion in the trial court’s ruling that South Shores remained the prevailing
party in this matter under both Civil Code sections 1717 and 798.85. Therefore, the trial court did not err in
reentering the original attorney fee award in favor of South Shores.
D. The trial court did not err in declining to
award monetary penalties under the MRL
The
Horaks argue that the trial court abused its discretion when it declined to
award Teresa statutory penalties against South Shores for its violation of the
MRL. Under Civil Code section 798.86,
subdivision (a), “[i]f a homeowner or former homeowner . . . is the prevailing
party in a civil action,†the homeowner may be awarded “an amount not to exceed
two thousand dollars ($2,000) for each willful violation of this chapter by the
management.†The Horaks argue that South
Shores willfully violated Civil Code section 798.55, subdivision (b)(1), which
provides: “The management may not
terminate or refuse to renew a tenancy, except for a reason specified in this
article . . . .â€
The
Horaks cite several other provisions of the MRL which, they claim, South Shores
willfully violated, including Civil Code section 798.56, which provides that a
tenancy shall only be terminated for one or more of certain enumerated reasons;
Civil Code section 798.57, which states that the management shall set forth in
a notice of termination the specific facts describing the reason for the
termination; and Civil Code section 798.74, which provides for the transfer of
tenancy to a buyer of a mobilehome in the park in accordance with the MRL. Teresa requests that this court find nine
unspecified violations of the MRL, entitling her to statutory penalties in the
amount of $18,000.
First,
to the extent that the Horaks did not seek imposition of
in the first trial or appeal of this matter, the point is forfeited. (See People
v. Senior, supra, 33 Cal.App.4th at pp. 535-536 [all available arguments
must be raised in an initial appeal from a judgment].) Teresa has failed to provide a citation to
the record of the first appeal showing that she has preserved this issue, and
it was not something that the trial court was specifically directed to consider
on remand. Thus, the trial court was not
authorized to consider it, and properly declined to do so. (
[“‘The trial court is empowered to act only in accordance with the direction of
the reviewing court; action which does not conform to those directions is
void.’ [Citation]â€].)
Further, even if it had been proper for the trial court
to consider this issue, the trial court did not find that Teresa was “the
prevailing party†in the remand action, as required for imposition of
penalties. (Civ. Code, § 798.86, subd.
(a).) Nor did the trial court find that
South Shores willfully violated the cited statutes. We assume that the trial court made the
findings necessary to support any decision implied in the judgment. (Homestead
Supplies, Inc. v. Executive Life Ins. Co. (1978) 81 Cal.App.3d 978, 984
[“we must presume in favor of the judgment every finding of fact necessary to
support it warranted by the evidenceâ€].)
discretionary decision on this issue absent a clear abuse of discretion, and
the burden is on the complaining party to establish an abuse of
discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) Teresa has failed to convince us that the
trial court abused its discretion in declining to award her statutory
penalties.
In sum, Teresa has failed to meet her burden of showing
that any error occurred.
E. The remaining issues are forfeited
1. Burdens on the park application process
The
Horaks attempt to raise a question of law in this second appeal which they did
not raise in the first appeal.
Specifically, the Horaks seek a determination of whether the MRL forbids
adding criteria to those set forth in the law for obtaining an application for
park residency. The Horaks present this
as a pure question of law, not related to the resolution of any disputed facts.
Having
failed to raise this legal issue in the first appeal, the Horaks may not do so
now. (See People v. Senior, supra, 33 Cal.App.4th at pp. 535-536 [all
available arguments must be raised in an initial appeal from a judgment].)
Revision of the judgment
Teresa
complains that the amended judgment is not specific with regard to who
prevailed on the first cause of action.
She argues that the judgment should be reversed for failing to specify
judgment in her favor on the first cause of action. However, Teresa presents absolutely no legal
authority in support of this argument.
In addition, Teresa fails to provide any citation to the record
indicating that she objected to the trial court’s amended judgment below.
Thus,
Teresa has forfeited this issue. (See,
e.g., Nelson v. Avondale Homeowners Assn.
(2009) 172 Cal.App.4th 857, 862 [when an appellant asserts a point “‘but
fails to support it with reasoned argument and citations to authority, we treat
the point as waived’â€]; City of Lincoln
v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [reviewing court may
disregard contentions unsupported by citation to the record];
635, 639 [appellant has responsibility to support claims of error with citation
and authority; this court is not obligated to perform that function on the
appellant’s behalf].) “‘The burden is on
the appellant in every case affirmatively to show error and to show further
that the error is prejudicial.’†(
329.) Teresa has failed to meet this
burden, therefore reversal is not warranted.
II. South Shores’s cross-appeal
In
the first appeal of this matter, we reversed the first cause of action as to
Teresa and remanded the remaining causes of action for reconsideration in light
of that ruling. Because the matter was
partially reversed and remanded as to Teresa, we concluded that she was
entitled to her costs of appeal. Teresa sought
her costs and attorney fees incurred in the successful appeal, and the trial
court awarded both costs and attorney fees to Teresa in the amount of
$43,534.29. In its cross-appeal, South
Shores challenges the trial court’s order awarding Teresa her attorney fees on
appeal. We reject South Shores’s arguments, and affirm the award.
Applicable law
After remand, the successful
appellant must serve a memorandum of costs in the trial court to recover any
costs awarded on appeal. (Cal. Rules of
Court, rule 8.278(c).) Where the Court
of Appeal has specified that an appellant is entitled to her costs on appeal,
such an award “neither includes attorney’s fees on appeal nor precludes a party
from seeking them under rule 3.1702.â€
(Cal. Rule of Court, rule 8.278(d)(2).)
The right to recover attorney fees on appeal “does not arise from the
rule; it arises from the applicable statute or contract.†(Butler-Rupp
v. Lourdeaux (2007) 154 Cal.App.4th 918, 925.)
B. Prevailing party
South
Shores first argues that Teresa was not the prevailing party in the first
appeal under Civil Code sections 798.85 or 1717, thus she was not entitled to
attorney fees on appeal under those statutes.
When determining the prevailing party, South Shores argues, the court
should consider all of the litigation and decide which party had greater
success on its claims. Here, Teresa
appealed the judgment as to all six causes of action, but achieved reversal on
only one cause of action. Furthermore,
on that one cause of action, Teresa suffered no damages. Thus, South Shores argues, if the court
examines the appeal as a whole, Teresa failed in more of her contentions than
she succeeded on.
A
trial court’s determination of the prevailing party is subject to an abuse of
discretion standard of review. (
Cal.App.4th at p. 126 [“The trial court’s determination of the prevailing party
for purposes of awarding attorney fees is an exercise of discretion which
should not be disturbed on appeal absent a clear showing of abuse of
discretionâ€].) If a trial court’s
exercise of discretion is not erroneous as a matter of law, we will not disturb
it. (In
re Marriage of De Prieto, supra, 104 Cal.App.4th at p. 759.)
Here,
the trial court determined that Teresa was “clearly the prevailing party on her
appeal.†In addition, the trial court
noted that it was authorized to act solely in accordance with the directions of
the reviewing court, which directed that Teresa was to be awarded her costs of
appeal. We see no legal error in this
decision, therefore we will not disturb the ruling.
C. Timeliness
Next,
South Shores argues that Teresa’s motion for attorney fees was not filed in a
timely manner. South Shores points to
California Rules of Court, rule 3.1702(c), which provides that a party claiming
attorney fees on appeal must file a motion for fees within the time required
for serving and filing a memorandum of costs under rule 8.278(c)(1). According to rule 8.278(c)(1), a party
claiming that it is entitled to an award of costs must file a memorandum of
costs within 40 days of the issuance of the remittitur. In the matter presently before the court, the
remittitur was issued on September 28, 2010, and the motion for attorney fees
and costs was not filed until December 15, 2011.
However,
the trial court held that the motion for attorney fees was timely under
California Rules of Court, rule 3.1702(b)(1), which provides:
“A
notice of motion to claim attorney’s fees for services up to and including the
rendition of judgment in the trial court--including attorney’s fees on an
appeal before the rendition of judgment in the trial court--must be served and
filed within the time for filing a notice of appeal under rules 8.104 and 8.108
in an unlimited civil case . . . .â€
California
Rules of Court, rule 8.104 provides that a notice of appeal must be filed within
60 days after the clerk of the superior court serves the party with a notice of
entry of judgment in the matter or 60 days after the party is served with a
notice of entry of judgment. (Cal. Rules
Court, rule 8.104(a)(1) & (a)(2).)
The
judgment in this matter was entered on November 30, 2011, and Teresa’s motion
for attorney fees was filed on December 15, 2011. It was therefore timely under California
Rules of Court, rule 3.1702(b)(1).
D. Offset
Finally,
South Shores argues that, if this court should affirm the award of attorney
fees to Teresa, then the amount awarded should be offset by the judgment for
attorney fees owed by Teresa to defendants.
South Shores provides only two sentences of discussion on this topic,
without reference to any place in the record where the issue of offset was
raised in the trial court or any citation to legal authority directing the
standard of review or applicable law for such a determination. Under the circumstances, we find that South
Shores has forfeited the issue, and we decline to address it further. (See, e.g., Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th at p.
862 [when an appellant asserts a point “‘but fails to support it with reasoned
argument and citations to authority, we treat the point as waived’â€];
Cal.App.4th at p. 1239 [reviewing court may disregard contentions unsupported
by citation to the record]; Estate of
Hoffman, supra, 213 Cal.App.2d at p. 639 [appellant has responsibility to
support claims of error with citation and authority; this court is not
obligated to perform that function on the appellant’s behalf].)
The
judgment is affirmed in full. Each side
to bear their own costs on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
CHAVEZ
We concur:
_____________________________, P. J.
BOREN
_____________________________, J.
ASHMANN-GERST
name="_ftn1" title="">[1] Robinson
was the chief executive officer of South Shores Development Corp.
name="_ftn2" title="">[2] Jack
Horak and Teresa Horak will be referred to individually as Jack and Teresa, for
ease of reference.
