Goldstein v. Fernandez
Filed 9/27/06 Goldstein v. Fernandez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| NORMAN GOLDSTEIN, Plaintiff and Respondent, v. GLEN G. FERNANDEZ et al., Defendants and Appellants. | G035551 (Super. Ct. No. 03CC07750) O P I N I O N |
Appeal from a postjudgment order of the Superior Court of Orange County, Sheila Fell, Judge. Reversed and remanded.
Law Offices of Jefford C. Davis and Jefford C. Davis for Defendants and Appellants.
No appearance for Plaintiff and Respondent.
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Defendants Glen G. Fernandez and Southwest Clean Fuels Corporation appeal from an order denying their motion for attorney fees after they prevailed on a complaint for breach of a contract containing a term providing for an award of fees. They contend the court erred in requiring evidence of fees incurred in addition to what they provided. They also assert the fact that they denied the existence of the contract at trial did not foreclose their recovery of fees. We agree and reverse.
FACTS AND PROCEDURAL HISTORY
Plaintiff Norman Goldstein sued defendants to recover on a written promissory note that contained a term awarding him attorney fees if he hired someone to collect amounts due or enforce the note. The court awarded judgment to defendants.
Defendants then filed a motion for attorney fees. It contained a declaration by defendants’ trial lawyer who attached copies of the invoices sent to defendants. In the declaration counsel stated his hourly billing rate and set out a summary of the “reasonable attorney fees . . . incurred in the defense of this matter . . . .”
In opposition, plaintiff conclusorily argued defendants had not proved they were obligated “to pay their attorney any sum at any rate or at all” and had “failed to present one statement or invoice for any amount demanded” in the motion. Defendants’ lawyer filed a supplemental declaration stating he had billed almost $64,000 to defendants and that the invoices attached to his original declaration accurately set out the fees defendants had incurred.
After a hearing, the court denied the motion, stating that defendants had “not provided any substantiation to support [their] obligation for the attorney fees in question. There are no documents for the Court’s review to establish that fees were actually incurred: no canceled check(s) representing payment of any attorney fee invoice; no acknowledgement from the client to the attorney evidencing responsibility for the payment of these fees; no retainer agreement evidencing responsibility for the fees (redacted of attorney-client privileged information would have been adequate).” The court further commented that at trial, defendants had denied the existence of the contract on which they were basing their claim of fees. Finally, it stated: “The Court is not moved by the arguments made in support of attorney fees.”
DISCUSSION
1. Recovery Under the Contract
The court appeared to deny attorney fees because defendants had challenged the existence of the note containing the fee provision. This was error.
Pursuant to Civil Code section 1717, subdivision (a), where a contract contains a provision awarding attorney fees incurred to enforce the contract to one party, the prevailing party in the action “shall be entitled to reasonable attorney’s fees” even if not the party set out in the contract. Defendants completely prevailed in the action. The court found there was no consideration for the note and it contained “a suspect signature.” “[I]t has been consistently held that when a party litigant prevails in an action on a contract by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717 permits that party’s recovery of attorney fees whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed. [Citations.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 611.) Thus, the fact that defendants denied the contract and prevailed on that theory required the court to award fees under Civil Code section 1717, subdivision (a).
2. Substantiation of Fees
The court also denied the motion for attorney fees on the ground defendants had not sufficiently substantiated that they actually had been incurred by providing copies of a retainer agreement, cancelled checks, or some acknowledgement of responsibility for payment by defendants. This was also error.
Defendants’ lawyer presented evidence to the court that defendants had incurred the fees requested by stating that fact in two declarations. In addition he provided copies of the bills sent to defendants. This was sufficient evidence.
Although not directly addressing this point, Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285 dealt with a claim by the party opposing attorney fees that billing statements had to be provided in support. The court disagreed, stating, “An attorney’s testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. [Citation.]” (Id. at p. 293.) Likewise, the attorney’s declaration here was sufficient to show fees had been incurred.
DISPOSITION
The order is reversed and remanded to the superior court to make a determination as to the reasonable amount of attorney fees due to appellants. Appellants are entitled to costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.
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