Salazar v.Salazar
Filed 11/4/13 Salazar v.Salazar CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
JOEL SALAZAR,
Plaintiff and Appellant,
v.
ALBERT SALAZAR,
Defendant and Appellant.
D061716
(Super. Ct. No. 37-2007-00055630- CU-BC-NC)
APPEALS
from an order of the Superior Court
of
County, Jacqueline M. Stern, Judge. Affirmed in part; reversed in part with
directions.
Randall C. Sterling,
for Defendant and Appellant Albert Salazar.
The Law
Offices of Charles D. Nachand, Charles D. Nachand and Richard B. Hudson, for Plaintiff
and Appellant Joel Salazar.
Albert
Salazar appeals an order enforcing a settlement
agreement he entered into with his brother, Joel Salazar.
rules of appellate practice, and thus he has forfeited the matter. In any event, he purports to raise a
jurisdictional issue on behalf of a third party, which he lacks standing to do.
Joel also
appeals, contending the trial court erred by denying him contractual attorney
fees as the prevailing party before he even filed a motion for fees. We agree with him, and reverse the order in
part with directions.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996 Joel
and Albert formed a partnership and acquired three parcels of property in San
Diego County. In 2005 they agreed that Albert would
purchase Joel's interest in the properties for $300,000. A note secured by a deed of trust and a deed
of trust with assignment of rents were prepared, but Albert did not sign them. Joel signed a deed quitclaiming his interest
in the properties to Albert, and it was recorded.
In 2007
Joel sued Albert for breach of contract, fraud, and related counts, alleging
Albert's nonpayment. The complaint also alleged
Albert had encumbered two of the three properties that were to secure the note.
On January 9, 2009, the terms of a
record. Albert was to pay Joel a total
of $300,000. He was to pay Joel $250,000
within 90 days, and he was to sign a $50,000 promissory note in favor of his
parents, Alberto and Rachel Salazar, and pay them in a lump sum on December 30, 2009. The record states, "It's the intent of
the parties that this note is fully enforceable and nonwaivable. If the parents, or either of them, should
waive the performance obligation or payment, then the obligation and payment
revert back in favor of [Joel]. If
either of the parents is deceased, then it will be paid to the survivor when
due." The court retained
jurisdiction over the matter. Albert
signed a "Note Secured by Deed of Trust" the same date.
In January
2012 Joel brought a motion to enforce the settlement agreement under Code of
Civil Procedure section 664.6.
name="_ftnref2" title="">[2] Albert had paid Joel the $250,000, but he had
not paid the $50,000 note. Alberto had
died, and thus it was owed to Rachel.
Albert had sold the property securing the note without giving Rachel any
of the $100,000 down payment and he had "attempted to negotiate the
extension of payment with his mother, and ha[d] promised to pay her through the
sale of other property in Mexico." Rachel
told her sons "she wanted nothing to do with it [the $50,000], it was not
her money." She told Joel's
attorney she "would not go to Court, and did not want to deal with the
Court." The attorney submitted a
declaration that stated the "parents were solely gratuitous beneficiaries.
. . . It was [Joel's] money and being paid on behalf of [Joel]
pursuant to the settlement."
The trial court
did not consider Albert's opposition brief, because he presented it in pro per. He had counsel of record and had not
submitted a substitution of attorney form.
Neither Albert nor his attorney appeared at the hearing. After taking the matter under submission, the
court granted the motion, finding Albert breached the settlement agreement and
the note secured by a deed of trust reverted to Joel because Rachel "has
waived performance and/or payment of the obligation." The court denied Joel contractual attorney
fees on the ground he had not followed the correct procedure.
I
Albert's Appeal
A
Albert has
filed a three-page opening brief, which violates basic rules of appellate
practice. It does not develop any
particular argument; cite the record, with minor exception; or cite any supporting
legal authority. Each brief shall "[s]upport
any reference to a matter in the record by a citation to the volume and page
number of the record where the matter appears." (Cal. Rules of Court, rules 8.204(a)(1)(C)
& (a)(2)(C).)
title="">[3] The "appellate court can treat as
raised in the briefs, is not supported by
pertinent or cognizable legal argument or proper citation of authority." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group
2012) ¶ 9.21, p. 906; Cahill v. San Diego
Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) We deem Albert's appeal forfeited.
In any
event, the opening brief does not challenge the sufficiency of the evidence to
support the court's order or raise any other claimed error as to Albert. Rather, its sole contention is that the trial
court lacked personal jurisdiction over Rachel because she was not a party to
the action and thus it could not adjudicate her interest in the $50,000
note. Albert, however, cites no
authority for the proposition he has standing to pursue an argument on her behalf.
In his
reply brief, Albert attempts to challenge the sufficiency of the evidence to
show that Rachel waived payment, asserting declarations by Joel and his
attorney were hearsay. We deem arguments
made for the first time in the reply brief, however, to be waived. (West
v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 799.) Further, Albert has waived the argument
because he cites no law on the hearsay rule and exceptions thereto, or on the
substantial evidence standard of review.
Moreover, the
reply brief argues that even though Rachel was not a party at the trial court,
she may appeal the order. It cites
279, 285, which explains, "Nonparties who are aggrieved by a judgment may
appeal from it." Rachel, however, did
not file a notice of appeal, and again, Albert cites no authority for the
proposition he has standing to pursue her interests.
B
Joel seeks
sanctions under section 907, which provides:
"When it appears to the reviewing court that the appeal was
frivolous or taken solely for delay, it may add to the costs on appeal such
damages as may be just." We decline
to award sanctions, because Joel has not complied with rule 8.276, which
requires that a party seeking sanctions for a frivolous appeal bring a noticed
motion, to include a declaration supporting the amount of the sanction sought, "before
any order dismissing the appeal but no later than 10 days after the appellant's
reply brief is due." (Rule
8.276(b)(1) & (2).)
II
Joel's Appeal
In his
appeal, Joel contends the court erred by denying him attorney fees before he
even brought a motion for them. "On
appeal this court reviews a determination of the legal basis for an award of
attorney fees de novo as a question of law." (G.
Voskanian Construction, Inc. v. Alhambra Unified School Dist. (2012) 204
Cal.App.4th 981, 995.) We agree with Joel's
analysis.
When the
settlement agreement was read into the record, the court stated: "[I]f you all have to come back to court
and there's another legal difficulty, the court in its discretion could
authorize attorney fees and costs to whatever the court determines is the
prevailing party, as long as the fees and costs are reasonable. Is that sort of understood by this? It's understood in the code." Albert's attorney responded, "Yes. That's an agreement," and Joel's
attorney responded, "We will make that an agreement and part of this." Further, the $50,000 promissory note
provides, "[i]f action be instituted on this Note, the undersigned
[Albert] promises to pay such sum as the Court may adjudge as attorney's fees."
In his
reply memorandum of points and authorities, Joel argued "attorney's fees
and costs . . . should be awarded (Memorandum of Costs)
when Plaintiff prevails on this Motion." The court's tentative ruling states, "Plaintiff's
request for an award of fees and costs is denied. Plaintiff did not request fees and costs
until the reply brief which is too late as Defendant cannot respond to that
request. In addition, Plaintiff counsel's
supporting declaration did not set out the amount being sought or any details
regarding how that amount was determined, such as the tasks performed, the time
expended and Counsel's hourly rate.
[¶] In the reply Plaintiff
indicates that fees and costs will be sought via Cost Memo. However, a cost memo is not the proper
vehicle for recovering attorney's fees."
At the
hearing, Joel argued he was entitled to attorney fees, and under the Code of
Civil Procedure he intended to file a memorandum of costs accompanied with a
motion for fees. The court responded, "You're
wrong. I mean, I don't know how to say
it nicely. You're wrong. That's not the way to request the fees." The court issued a final minute order
identical to the tentative one insofar as attorney fees are concerned. The court's formal order provides, "Plaintiff's
request for fees is denied as the request was not made in the moving papers,
and was not supported by sufficient Declaration of counsel."
However, Joel
was not required to submit a motion for attorney fees with his moving papers,
before the merits of his motion were adjudicated. Section 1032, subdivision (b), provides that
the "prevailing party is entitled as a matter of right to recover costs in
any action or proceeding." Section
1033.5, subdivision (a)(10), provides that attorney fees, as authorized by
contract, statute, or law, are an item of recoverable costs. When contractual attorney fees are an item of
costs, the party seeking fees shall bring a noticed motion. (§ 1033.5, subd. (c)(5).) Under rule 3.1702(b)(1), a motion for
contractual fees "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 or
under rules 8.822 and 8.823 in a limited civil case."
filed a motion was improper. The court's
order should have designated Joel the prevailing party on the contract and
noted his entitlement to fees was subject to a subsequent motion proceeding.
Additionally,
the court's tentative and final minute orders state: "The Court also notes that Plaintiff's
counsel expressly stated on the record that fees for this matter would be
capped at $1,500.00. . . . The fact Judge Maino later
reiterated that the Court could award fees in its discretion has no bearing on
the fact the parties expressly agreed the fees would not exceed $1,500.00 for
this motion."
title="">[5]
While this
finding is not included in the court's formal order, we address it for the
court's convenience on remand. We
conclude the court misread the reporter's transcript from the settlement
agreement hearing. The $1,500 cap on
attorney fees refers exclusively to Albert's obligation to pay Joel
$250,000. After discussing the $250,000
obligation, Judge Maino stated the "counsel seeking that entry of judgment may request up to $1500 in attorney's fees
for providing notice and making calculations and providing the declarations and
submitting the judgment." The
parties agreed that if Albert defaulted on the $250,000 obligation, Joel could
obtain a judgment to enforce the settlement agreement in an ex parte
proceeding, which would naturally be less expensive than a noticed motion. This motion, which had to be noticed in the
regular course, pertained to the $50,000 note, and no attorney fees cap for
that matter was stated on the record.
DISPOSITION
The order
is reversed to the extent it denies Joel attorney fees or purports to cap fees
at $1,500. The matter is remanded for
further proceedings on the issue. In all
other respects, the order is affirmed.
Joel is entitled to costs on appeal.
McCONNELL,
P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
name="_ftn1" title="">[1] To avoid confusion, we refer to the parties and other family
members with the same surname by their first names.
name="_ftn2" title="">[2] Further undesignated statutory references are to the Code of
Civil Procedure unless otherwise specified.
