Robinson
v. Montana Bail Bonds
Filed
10/15/13 Robinson v. Montana Bail Bonds 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
GRACE D. ROBINSON,
Plaintiff and Respondent,
v.
MONTANA BAIL BONDS, INC.,
Defendant and Appellant.
B246891
(Los
Angeles County
Super. Ct.
No. GC044161)
APPEAL from an order of the
Law Offices
of G. Marshall Hann and G. Marshall Hann for Defendant and Appellant.
Pasadena
Law Center
and E. Samuel Johnson III for Plaintiff and Respondent.
______________________
>
This is the
second appeal involving these parties.
In the first appeal, defendant and appellant Montana Bail Bonds, Inc. (Montana)
challenged the trial court’s judgment of contempt for its willful violation of
a preliminary injunction. (Robinson
v. Montana Bail Bonds, Inc. (July
25, 2012, B233010) [nonpub. opn.] (Robinson I).) On July 25, 2012, we reversed the trial
court’s judgment. (Robinson I, supra,
B233010, at p. 1.) On remand, Montana
moved for attorney fees. The trial court denied Montana’s
motion, and Montana appeals.
We
agree that Montana is not
entitled to attorney fees. The trial
court’s order is affirmed.
The Deed of
Trust and Attorney Fees Provision
On August 30, 2007, Grace D. Robinson (Robinson), as
trustor, Underwriters Surety, Inc., as trustee, and
(ASC), as beneficiary, executed a deed of trust securing payment to ASC
resulting from the execution of a bail bond.
Specifically, the deed of trust secures “(1) . . . all
monies due to the Beneficiary and for all interest, premiums, losses, costs,
expenses, expenditures, including but not limited to reasonable attorney’s fees
and liability suffered, sustained, made or incurred by the Beneficiary and as
more fully set forth and described in a certain Bail Agreement dated August 30,
2007, and/or (2) on account of, growing out of, or resulting from the execution
of a certain bond . . . in the amount of $400,000 by Montana
Bail Bond as agent for Beneficiary.†The
bail agreement is not part of the appellate record.
The deed of trust further
provides “that a certificate signed by the Beneficiary at any time hereafter
stating . . . that any loss, damage, expenditure or liability
has been sustained by the Beneficiary or its agent on account of the
specify the date or dates and the amount or amounts of such loss, damage,
expenditure (including reasonable attorney’s fees) or liability
. . . and that such loss, damages, expenditures (including said
reasonable attorney’s fees) or determined liability has not been paid to the
Beneficiary, shall be conclusive and binding on the Trustor; and shall be the
warrant of the Trustee to proceed forthwith to foreclose upon and sell the
security.â€
The First
Contempt Proceedings
On November 25, 2009, the trial court issued a
temporary restraining order, restraining Montana
and Reliable Trust and Deed Services (Reliable) from conducting a foreclosure
of certain real property. Included with
the temporary restraining order was an order to show cause why a preliminary
injunction should not be issued. (
The following day, the trial court filed the written preliminary
injunction. (Id. at p. 3.)
Shortly thereafter, Montana’s
attorney advised Reliable that it could proceed with a trustee sale of the
property. Reliable proceeded with the
sale; Robinson filed a motion for sanctions; and the trial court set an Order
to Show Cause re Contempt. (
At the contempt hearing, the trial court found Montana
in contempt and ordered it to pay monetary sanctions for contempt of court and
as damages to Robinson. (
mandate, and we issued an order indicating that we were considering issuing a
peremptory writ directing the trial court to vacate its contempt order because
the record did not contain (1) an affidavit of facts constituting the contempt
as required by Code of Civil Procedure section 1211, subdivision (a), and (2)
evidence of the attorney fees and costs incurred by Robinson under section
1218, subdivision (a). (
On July 23, 2010,
the trial court complied with our order and vacated its contempt order,
rendering the writ proceeding moot. (
The Second
Contempt Proceedings
On
August 25, 2010, Robinson
reinitiated a contempt proceeding, this time with affidavits of facts in
support. (Robinson I, supra,
B233010, at pp. 5–6.) The trial
court again issued an order to show cause re contempt for willful disobedience
of the injunction order. (
and Reliable in contempt of court; it fined Montana
and Reliable $1,000 each and ordered them to pay Robinson reasonable attorney
fees and costs incurred in connection with the contempt proceedings. (Id.
at pp. 6–7.)
Montana
filed a petition for writ of mandate or prohibition with this court, and we
denied it without comment. (
Thereafter, a judgment was filed, holding Montana
in contempt and ordering attorney fees and costs. (Id.
at p. 7.) Montana
appealed and we reversed the trial court judgment on the grounds that Robinson
did not satisfy the bond requirement and that that requirement had not been
waived. (Id. at p. 13.)
Montana’s Motion for Attorney Fees
Following
issuance of the remittitur, Montana
filed a motion for attorney fees. It
argued that it was the prevailing party on an action challenging the deed of
trust; accordingly, it was entitled to attorney fees pursuant to the deed of
trust. Robinson opposed the motion.
The
trial court denied Montana’s
motion, reasoning that the “[c]laims on appeal did not arise out of the
enforcement of the deed of trust. In
fact, the deed of trust had already been foreclosed upon. The appeal arose out of [Montana’s]
contempt of the court’s Preliminary Injunction.â€
Montana’s
timely appeal ensued.
I.
At
issue is whether Montana’s
success in its appeal of the trial court’s judgment in the first appeal falls
within the scope of the attorney fee provision in the deed of trust. We review this issue of law de novo. (Loduca
v. Polyzos (2007) 153 Cal.App.4th 334, 340.)
II.
“‘We
start with the basic proposition that each party to a lawsuit must pay its own
attorney fees except where a statute or contract provides otherwise. [Citation.]
Where there is a contractual attorney fees provision, [Civil Code]
section 1717, subdivision (a) provides, “[i]n any action on a contract, where
the contract specifically provides that attorney’s 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 attorney’s fees in
addition to other costs.â€â€™â€ (
held that “[i]f a contractual attorney fee provision is phrased broadly enough
. . . it may support an award of attorney fees to the prevailing
party in an action alleging both contract and tort claims.†(Santisas
v. Goodin (1998) 17 Cal.4th 599, 608.)
Although
not entirely clear, Montana’s
argument appears to be as follows:
Robinson and ASC have an agreement, which contains an attorney fee
provision. Somehow, because it is never
explained, Montana can enforce
that attorney provision. That attorney
fee provision encompasses all contract and tort claims arising out of or
relating to that deed of trust. Because
the contempt proceedings (including Montana’s
successful appeal) arose out of the deed of trust, Montana
is entitled to recoup its attorney fees incurred in appealing the trial court’s
judgment.
Montana
has not demonstrated that it is entitled to attorney fees. First, Montana
does not explain, with reasoned argument and citations to legal authority, how
it can recover attorney fees pursuant to a contract to which it is not a
party. (Benach v. County of
(2007) 149 Cal.App.4th 836, 852.) Second,
the appellate record is incomplete. (Brown
v. Boren (1999) 74 Cal.App.4th 1303, 1320–1321.) Montana
asserts that it is entitled to attorney fees pursuant to the deed of trust,
which incorporates “a certain Bail Agreement.â€
But, that bail agreement is not part of the appellate record. Without the bail agreement, we cannot
determine whether Montana’s claim
for attorney fees arises out of the relevant agreements. Third, Montana
offers no legal authority in support of its contention that contempt
proceedings fall within the scope of ASC’s losses sustained “on account of,
growing out of, or resulting from the execution of a certain bond.â€
Based upon what has been provided to us, we agree with
the trial court that the deed of trust is not broad enough to encompass the
attorney fees sought. The deed of trust
provides for ASC’s recovery of losses incurred, including attorney fees, as set
forth in the bail agreement, which is not part of the appellate record. The agreement says nothing about a contempt
proceeding. Quite simply, the issue of
whether Montana was in contempt
of court for willfully violating an injunction has nothing to do with the deed
of trust.
DISPOSITION
The order
is affirmed. Robinson is entitled to
costs on appeal.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________,
J.
ASHMANN-GERST
We concur:
_____________________________, P.
J.
BOREN
____________________________, J.
CHAVEZ
