UDC-Universal Development v. CH2M Hill

Filed 1/22/10 UDC-Universal Development v. CH2M Hill CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

After judgment was entered in this cross-action against CH2M Hill, the trial court awarded attorney fees and costs to the cross-complainant, UDC-Universal Development, L.P. (UDC), pursuant to Civil Code section 1717. CH2M Hill appeals, contending that the court abused its discretion in finding UDC to be the prevailing party and in determining the amount of fees and costs to award UDC. We find no error, however, and therefore will affirm the order.

Background

The order challenged in this appeal followed litigation over an indemnity agreement, which culminated in partial success by each party. UDC failed to establish entitlement to indemnity for the damages it had paid to settle the underlying lawsuit brought against it by the homeowners association (HOA) of a condominium project in which UDC had acted as developer. UDC succeeded, however, in convincing the trial court that CH2M Hill had wrongly refused to defend UDC in the HOA's action, as required by the indemnity provision in the parties' contract. The events giving rise to this dispute are summarized in a companion appeal, H033610.

In its October 2, 2008 judgment the court deferred the issue of which party had prevailed for purposes of costs and attorney fees. On October 17, 2008, UDC submitted a memorandum of costs, including attorney fees, incurred in both the HOA litigation and its cross-action against CH2M Hill. CH2M Hill moved to strike or tax costs.

On December 1, 2008, UDC moved for attorney fees, citing Civil Code section 1717 and related provisions. UDC claimed $390,960.00, encompassing fees incurred in defending the HOA's action and in prosecuting the cross-action against CH2M Hill. In an amended order filed February 5, 2009, the superior court granted CH2M Hill's motion in part, taxing some of UDC's claimed costs. However, it found UDC to be the prevailing party in the litigation and awarded UDC $402,596.40 in attorney fees.

Discussion

CH2M Hill asserts error in the February 5, 2009 order, contending that (1) the award of fees and costs to UDC was based on insufficient evidence that UDC was the prevailing party; and (2) the amount awarded to UDC was not supported by sufficient evidence. We disagree with both arguments.

CH2M Hill challenges the prevailing-party determination on the sole ground that it was based on the court's "erroneous interpretation and application of Crawford [v. Weather Shield Mfg. Inc. (2008) 44 Cal.4th 541]. . . . Had the trial court correctly interpreted Crawford (or simply not applied it), CH2M Hill would have defeated all of UDC's claims (which is what the jury determined) and necessarily would have been the prevailing party . . . ."

We would accept the argument that CH2M Hill should have been deemed the prevailing party if it did not rest on an incorrect premise, that the court erred in entering judgment for UDC on the cross-complaint. As we concluded in H033610, the court properly applied Crawford to the circumstances presented, in light of CH2M Hill's wrongful refusal to accept UDC's tender of defense in the HOA's action against UDC. Because both parties succeeded in part, it was within the superior court's discretion to determine which party prevailed overallthat is, which "recovered a greater relief in the action on the contract." (Civ. Code,  1717.) The law governing prevailing-party determinations is clear. "If neither party achieves a complete victory on all the contract claims, it is within the discretion of the trial court to determine which party prevailed on the contract or whether, on balance, neither party prevailed sufficiently to justify an award of attorney fees." (Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.) The trial court exercises a particularly " 'wide discretion' " in making this determination, which will not be overturned unless the opposing party demonstrates " 'a clear abuse of discretion.' " (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894.)

Here, the superior court found that UDC recovered the greater relief by obtaining a judgment against CH2M Hill for breach of the contractual duty to defend UDC in the HOA's lawsuit. CH2M Hill has not shown that the court clearly abused its discretion in reaching this conclusion.

CH2M Hill further disputes the amount awarded to UDC, claiming improper reliance on an inadequate declaration by UDC's counsel regarding "which attorney performed which task and how long was spent performing the task." Although this information was available in the billing statements, UDC "failed and refused" to provide those statements upon CH2M Hill's request. According to CH2M Hill, the court then failed to base its decision on specific factors but relied only on its "general observations" in determining what amount was reasonable. Without access to UDC's billing records, the court was unable to ascertain "how UDC apportioned the tasks that comprise [sic] UDC's total fees and the fees it sought from CH2M Hill. For example, UDC failed to explain why CH2M Hill, whose work was implicated, if at all, only by the geotechnical claims that amounted to 10 % of Plaintiff HOA's total claim, is responsible for 67 % of UDC's total attorneys' fees."

The superior court considered these points, however. As to the billing records, the court ruled that CH2M Hill had forfeited the challenge by failing to move to compel further responses when it did not receive the requested records. The court also addressed CH2M Hill's apportionment argument in light of UDC's response. UDC explained that it had in fact apportioned its fees to claim amounts for the specific defense of the geotechnical and civil engineering issues, the depositions of experts and witnesses related to those issues, and responses to motions brought by CH2M Hill.

The parties thoroughly briefed the issues of apportionment and the reasonableness of the amounts claimed, and they amplified their positions at the hearing on this matter. CH2M Hill acknowledged that the trial court could evaluate the fee claim in accordance with its familiarity with the issues involved and counsel's representation in the case. As the court pointed out, it had presided over this case from the inception of the HOA litigation and was "familiar with the case, the work of the lawyers, the nature of the defects alleged in the project, and the role that the various subcontractors and consultants played in the construction of the project and the litigation." Accordingly, the court found that the fees requested by UDC were "reasonable based on the Court's observations of the time and effort expended by UDC and the reasonable rate charged by UDC."

"The amount of attorney fees to be awarded is within the court's sound discretion, taking into account the type and difficulty of the matter, counsel's skill vis-a-vis the skill required to handle the case, counsel's age and experience, the time and attention counsel gave to the case, and the outcome. [Citation.]" (Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1107; Olson v. Cohen (2003) 106 Cal.App.4th 1209, 1217.) "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 v. Priest (1977) 20 Cal.3d 25, 49.) Here the trial court's explanation of its reasoning fully supports its order granting $402,596.40 in attorney fees. As to other costs, the court carefully examined UDC's claim and struck the requested amounts in several areas where they had "no bearing on UDC's case against CH2M Hill." Filing and motion fees were reduced by $3,265 from UDC's original request of $4,265; deposition costs were taxed by $3,141 from the request of $11,479; fees for service of process were reduced by $291 from $423; all of the $8,354 in requested court reporter fees were taxed; and "other" costs of $27,413 were taxed by $12,819.04. CH2M Hill does not specifically contest either the reasoning or the result of the court's determination of the cost issue. No abuse of discretion is shown in its resolution of the parties' dispute over either litigation expenses or attorney fees.

Disposition

The order is affirmed. To the extent that it pertains to this appeal, UDC's motion for appellate sanctions is denied.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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