Silva v. Tong

Filed 12/11/09 Silva v. Tong CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

The trial court awarded respondents James Tong and Charter Properties their attorney fees and costs after they successfully sought summary judgment in this action brought by appellant Tina Silvia. Appellant is representing herself in an appeal challenging the attorney fees award. We affirm.

I.
Factual and Procedural
Background

The record in this matter is sparse and lacks key documents, including appellants complaint, making a meaningful summary of the relevant facts difficult. Appellant submitted a purchase offer to buy property in Livermore owned by respondent James Tong. Neither Tong nor any owner of the property signed the offer. Appellant sued respondents, alleging that they breached an enforceable contract with her and that she suffered damages when she spent money to make improvements on her own home to prepare it for sale. The trial court granted respondents motion for summary judgment and dismissed the entire action, concluding that there was no valid written agreement between the parties.

Respondents filed a motion for attorney fees pursuant to Civil Code section 1717. They sought $80,581 in fees and $3,978 in costs. Following a hearing, the trial court granted respondents motion and awarded them $53,721 in fees and $3,978 in costs.

Appellant appealed from the dismissal of the case and the award of attorney fees. On July 8, 2009, this court granted respondents motion to dismiss as untimely appellants appeal as to the grant of summary judgment. The order did not affect appellants appeal of the order granting respondents motion for attorney fees. This court denied two subsequent motions filed by appellant that were treated as requests to reconsider the courts July 8, 2009 order.

II.
Discussion

Appellants opening and reply briefs focus primarily on the merits of her underlying claims, which were dismissed on summary judgment and which are not the subject of this appeal because appellant did not timely appeal from the dismissal of her action. We therefore disregard appellants arguments as to why the trial court erred in granting respondents motion for summary judgment.

As for appellants challenge of the order granting respondents attorney fees and costs, we agree with respondent that appellants opening brief does not comply with the California Rules of Court,[1] because it contains no citations to the record (rule 8.204(a)(1)(C)). Appellant elected to provide this court with a record in the form of an appendix (rule 8.124); however, the appendix she submitted likewise does not comply with the Rules of Court. It does not include all items required by rule 8.122(b)(1) (including, notably, the order appealed from) (rule 8.124(b)(A)), does not comply with the requirements of rule 8.144(a)-(c) for a clerks transcript (rule 8.124(d)(1)), and is bound with her opening and reply briefs, in violation of rule 8.124(d)(3). Respondents argue that this court should strike appellants opening brief; however, they have not filed a separate motion requesting such a sanction (rule 8.204(e)(2)). Respondents likewise request that this court impose monetary sanctions, but they have not requested them by separate motion (rule 8.276(a)). This court declines to strike the brief or impose sanctions on its own motion (rules 8.204(e)(2), 8.276(a)), and we instead consider the merits of the appeal.

We affirm the order granting fees and costs. Civil Code section 1717, subdivision (a) provides in part that [i]n any action on a contract, where the contract specifically provides that attorneys fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees in addition to other costs. Although the court here found that there was no enforceable contract between the parties, it is settled that [u]nder Civil Code section 1717, the prevailing party is entitled to attorneys fees even when it wins on the grounds that the contract is inapplicable, invalid, unenforceable or nonexistent, so long as the party pursuing the lawsuit would have been entitled to attorneys fees had it prevailed. [Citations.] The rationale is that Civil Code section 1717 is guided by equitable principles, including mutuality of remedy, and it would be inequitable to deny attorneys fees to one who successfully defends, simply because the initiating party filed a meritless case. [Citations.] (Rainier National Bank v. Bodily (1991) 232 Cal.App.3d 83, 86.) Here, the purchase offer that appellant sought to enforce included an attorney fees provision, and there is no dispute that had appellant prevailed, she would have been entitled to fees. The trial court correctly concluded that there was a legal basis for an award of attorney fees.

As to the amount of fees set by the trial court, we review the award for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096; Serrano v. Priest (1977) 20 Cal.3d 25, 49.) The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.  (Serrano at p. 49.) No such error appears in the record. Appellant argues that a comparison of attorney fees awarded following judgment in other civil cases in Alameda County Superior Court reveals that the fee award here was much higher than in other cases. First, documents relating to other cases were not submitted to the trial court and therefore are not properly included in the record on appeal. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 [As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review.].) Second, fee awards made in other cases are irrelevant in any event, because they have no bearing on the consideration of the particular factors relevant to the determination of fees in this case. (PLCM Group, supra, 22 Cal.4th at p. 1096 [court considers nature of litigation, its difficulty, amount involved, skill required and employed, and other factors].)

Appellant also complains that the billing records submitted to the trial court included charges for an arbitration that never happened,[2] and that the charges for preparing the summary judgment motion were extravagent [sic]. She does not specify how much was overcharged or direct this court to any specific evidence that the attorney fees awarded were unreasonable. In light of the fact that the trial court awarded respondents $26,860 less than what they requested in fees, appellant has not demonstrated that the trial court abused its broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.)

Appellant raises other irrelevant issues that we briefly address. She correctly notes that the purchase offer includes an arbitration clause, and complains that this case was never submitted to arbitration. She points to no evidence that she ever sought to enforce the arbitration clause, let alone articulate why a petition to arbitrate should have been granted in light of the fact that the trial court concluded that the parties did not enter into a valid contract.

Appellant also makes a vague argument that this case was improperly assigned to the trial judge who heard the motions below; however, she does not clearly articulate the procedure that was followed in assigning this case, point to any evidence of reversible error, or even articulate whether this issue was preserved for appellate review.  The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. . . . [E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citation.] Although [appellant] is representing herself in this appeal she is not entitled to special treatment and is required to follow the rules. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523, fn. omitted.)

III.
Disposition

The order granting attorney fees is affirmed. Respondents shall recover their costs on appeal.

_________________________

Sepulveda, J.

We concur:

_________________________

Reardon, Acting P.J.

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Rivera, J.

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[1] All rule references are to the California Rules of Court.

[2] The trial court at one point apparently ordered that the parties submit the case to non-binding judicial arbitration, which was postponed after respondents filed their motion for summary judgment.