Filed 11/13/20 AAWestwood v. Liberal Arts 677 etc. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
AAWESTWOOD, LLC, B296066
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC504513)
v.
LIBERAL ARTS 677
BENEVOLENT
FOUNDATION, INC.,
Defendant and
Respondent.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Randolph M. Hammock, Judge. Affirmed.
Westwood Lawyers and Lottie Cohen; Pick & Boydston and
Brian Boydston for Plaintiff and Appellant.
Law Office of Lawrence M. Lebowsky and Lawrence M.
Lebowsky for Defendant and Respondent.
I. INTRODUCTION
Plaintiff and cross-defendant AAWestwood, LLC (plaintiff)
appeals from a postjudgment order awarding attorney fees to
defendant and cross-complainant Liberal Arts 677 Benevolent
Foundation, Inc. (defendant). Plaintiff argues that, following a
reversal and remand from this court, plaintiff was entitled to
have the same trial judge who presided over the initial attorney
fees motion consider defendant’s motion. Plaintiff also challenges
the court’s ruling that defendant was entitled to attorney fees
and the court’s calculation of those fees. We affirm.
II. BACKGROUND
A. The Form and the Lease1
Defendant owns property, including a parking lot, located
at 2244 Westwood Boulevard in Los Angeles (2244 property). In
1987, Daniel Haines purchased property nearby at 2288
Westwood Boulevard (2288 property). Plaintiff is the current
owner of the 2288 property.
Sometime after Haines purchased the 2288 property, he
informed defendant that the City of Los Angeles (City) might
require him to obtain a covenant for six additional parking spaces
before it would approve pending improvements on the 2288
property. Accordingly, Haines requested that defendant sign a
form entitled “Covenant and Agreement Regarding Maintenance
of Off-Street Parking Space” (Form). The Form recited that
1 The following facts in subsection A are mainly taken from
the trial court’s statement of decision issued on June 25, 2015.
2
defendant and the City agreed six parking spaces on the 2244
property (Parking Spaces) would be maintained and provided for
use by the 2288 property unless certain conditions applied. The
Form contained a signature line indicating that it “MUST BE
APPROVED BY [¶] Dept. of Building & Safety [¶] prior to
recording.” Haines and defendant agreed that the Form would be
recorded only if the City required the Parking Spaces as a
prerequisite for Haines’s improvements.
On May 14, 1987, two of defendant’s board members signed
the Form. Haines maintained possession of the Form, but did not
record it. The City never approved the Form.
At around the same time that defendant’s board members
signed the Form, Haines and defendant entered into a separate
lease agreement for the Parking Spaces, which required that
Haines pay defendant a monthly rate. Haines paid the monthly
rent.
On July 21, 1995, after Haines’s death, Haines’s wife
recorded a modified version of the Form with the Los Angeles
County Recorder’s Office.
In March 1999, new owners purchased the 2288 property.
The new owners2 of the 2288 property entered into a new parking
lot lease with defendant for use of the Parking Spaces.
In April 2009, plaintiff, who was the new owner of the 2288
property, entered into a new lease agreement with defendant for
the Parking Spaces (2009 Lease). Plaintiff agreed to pay
defendant monthly rent for use of the Parking Spaces. The 2009
Lease contained an attorney fees provision, which stated: “If a
party under this agreement brings an action or proceeding to
2 Lottie Cohen, a managing member of plaintiff, was one of
the new owners.
3
enforce the terms thereof or declare rights thereunder, the
prevailing party in any such action, proceeding or appeal thereon,
shall be entitled to full reimbursement of all attorney[ ] fees
reasonably incurred, regardless of court fee schedules. Such fees
may be awarded in the same suit or recovered in a separate suit,
whether or not such action or proceeding is pursued to decision or
judgment.” The 2009 Lease commenced on March 1, 2009, and
ended on February 29, 2012.
When the 2009 Lease ended in 2012, plaintiff and
defendant commenced negotiating the terms of a new lease.
Plaintiff continued to pay and defendant continued to receive the
monthly rental payments from March to July 2012. By August
2012, the parties ceased negotiating the terms of the new lease.
In August 2012, plaintiff informed defendant that it would
not pay for use of the Parking Spaces as it had a purported
covenant for an easement to use the Parking Spaces in
perpetuity. Plaintiff stated that it would provide defendant with
“‘voluntary contributions’” of $400 per month for use of the
Parking Spaces, and it then sent checks to defendant accordingly.
Defendant returned the checks.
On March 20, 2013, defendant informed plaintiff, in
writing, that it would no longer permit plaintiff access to the
Parking Spaces. On April 1, 2013, defendant blocked public
access to the Parking Spaces.
B. The Lawsuit
On April 2, 2013, plaintiff initiated the underlying action
against defendant for quiet title.
4
On May 2, 2013, defendant filed a cross-complaint for quiet
title and declaratory relief.
On June 30, 2014, plaintiff filed the operative amended
complaint for quiet title and forcible detainer. For its quiet title
cause of action, plaintiff alleged that it had an express grant of
easement through the Form or, in the alternative, a prescriptive
easement. Plaintiff requested as relief, among other things, a
recordable judgment quieting title of its purported easement
rights to the Parking Spaces, damages, and attorney fees.
For its forcible detainer cause of action, plaintiff alleged
that its easement precluded a lock-out from the Parking Spaces
without due process. Alternatively, plaintiff alleged that its
rights as a tenant precluded defendant from locking it out.
Plaintiff requested as relief on the forcible detainer claim, among
other things, damages for its own lost rental revenue of $600 per
month for the Parking Spaces, treble damages, restitution of the
Parking Spaces, and an award of attorney fees.
C. Statement of Decision, Judgment, and Motion for Attorney
Fees
The matter proceeded to a court trial before Judge Debre K.
Weintraub. On June 25, 2015, the trial court issued its
statement of decision. The court rejected plaintiff’s quiet title
claim, finding that neither a covenant nor a prescriptive
easement existed. The court next considered plaintiff’s forcible
detainer claim and concluded that the 2009 Lease expired and
turned into a month-to-month tenancy, which required defendant
to initiate unlawful detainer proceedings to evict plaintiff.
Defendant had instead resorted to self-help and plaintiff was
5
entitled to damages in the net amount of $3,809.52. The court
denied plaintiff’s request for restitution of the Parking Spaces.
The court then considered defendant’s cross-complaint and
found that defendant was entitled to quiet title to the Parking
Spaces, free and clear of any covenant or easement.
The trial court declared defendant to be the prevailing
party under Code of Civil Procedure section 1032, subdivision
(a)(4), but ordered that, in the interest of justice, each party
would bear its own costs.
On August 17, 2015, the trial court entered its judgment.
On October 16, 2015, defendant filed a motion for attorney
fees pursuant to Civil Code section 1717.3
On February 1, 2016, the trial court denied defendant’s
motion, finding that the judgment, which ordered the parties to
bear their own costs pursuant to Code of Civil Procedure section
3 Civil Code section 1717 provides in pertinent part: “(a) In
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. [¶] . . . [¶]
“(b)(1) The court, upon notice and motion by a party, shall
determine who is the party prevailing on the contract for
purposes of this section, whether or not the suit proceeds to final
judgment. Except as provided in paragraph (2) [voluntary
dismissal or settlement], the party prevailing on the contract
shall be the party who recovered a greater relief in the action on
the contract. The court may also determine that there is no party
prevailing on the contract for purposes of this section.”
6
1032, subdivision (a)(4), precluded an award of attorney fees
pursuant to Civil Code section 1717. Defendant appealed.
D. The Prior Appeal
On May 23, 2018, we issued our opinion reversing the trial
court’s order denying the motion for attorney fees. We held that
a “prevailing party” under Code of Civil Procedure section 1032,
subdivision (a)(4) is distinct from a “party prevailing on the
contract” under Civil Code section 1717. Because, however, the
court did not make a finding as to whether defendant was the
prevailing party on the contract under Civil Code section 1717,
we remanded the matter, stating: “The order is reversed and
remanded to the trial court with directions to determine whether
defendant prevailed on the contract and, if so, to award
reasonable attorney fees pursuant to [Civil Code] section 1717.
Defendant is awarded costs on appeal.” (AAWestwood, LLC v.
Liberal Arts 677 Benevolent Foundation (May 23, 2018, B275717)
[nonpub. opn.].) The remittitur issued on August 17, 2018.
E. Assignment to Judge Hammock
While the prior appeal was pending, Judge Weintraub was
reassigned from Department 47 to Department 1. Judge
Randolph M. Hammock was assigned to Department 47. On
September 26, 2018, Judge Weintraub, upon receipt of the
remittitur, forwarded the case to Judge Hammock for all further
proceedings.4
4 On February 27, 2017, defendant filed a notice of related
case. On March 10, 2017, plaintiff filed an opposition, stating its
7
F. Motions for Attorney Fees
On September 26, 2018, defendant filed its motion for
attorney fees as the prevailing party on the contract. Defendant
argued that its causes of action for declaratory relief and quiet
title in the cross-complaint as well as plaintiff’s causes of action
for quiet title and forcible detainer were predicated on the 2009
Lease, which contained an attorney fees provision. Defendant
sought $266,210.50 as the lodestar amount, and requested that
the court apply a 1.5 multiplier.
Also on September 26, 2018, defendant filed a motion for
attorney fees as the prevailing party on appeal. Defendant
sought $75,869 as the lodestar amount, and requested that the
court apply a 1.5 multiplier.
On February 6, 2019, plaintiff filed its opposition to
defendant’s motion for attorney fees. Plaintiff argued that the
motion “should be decided only by [the Honorable Debre K.
Weintraub] since she is available.” As to the merits of
defendant’s motion, plaintiff contended that defendant did not
prevail on the contract as the only cause of action involving the
contract was the forcible detainer claim, upon which plaintiff
prevailed. In plaintiff’s view, the quiet title and declaratory relief
claims were not predicated upon the 2009 Lease. Plaintiff also
argued that the amounts sought were unreasonable.
Also on February 6, 2019, plaintiff filed its opposition to
defendant’s motion for attorney fees on appeal. Plaintiff again
argued that Judge Weintraub must consider the motion and
intent to file a petition pursuant to Code of Civil Procedure
section 170.6 against Judge Weintraub if the notice of related
case were granted.
8
contended that defendant had not prevailed on appeal because,
according to plaintiff, this court’s opinion on appeal constituted
“an interim order, with no prevailing party.” Plaintiff also
disputed the amounts sought as unreasonable.
G. Ex Parte Application for Judge Weintraub to Hear Motions
On January 25, 2019, plaintiff submitted an ex parte
application requesting that Department 1, as the master
calendar court, assign the attorney fee motions to be heard by
Judge Weintraub, who was now assigned to Department 76. The
judge in Department 1 denied the ex parte request.
H. Trial Court’s Attorney Fee Award
On February 21, 2019, following a hearing, the trial court
issued its order on the motions for attorney fees. The court
rejected plaintiff’s argument that only Judge Weintraub could
hear the motions. It then determined that defendant was the
prevailing party on the contract and awarded defendant $225,000
as reasonable attorney fees. The court also awarded defendant
an additional $55,000 for prevailing on appeal. Plaintiff timely
appealed.
III. DISCUSSION
A. Jurisdiction of Trial Court to Hear Attorney Fees Motion
Plaintiff asserts it was error for Judge Hammock, rather
than Judge Weintraub, to rule on defendant’s motions for
9
attorney fees. First, plaintiff contends that this court, in issuing
the prior opinion, “did not hold there was an error of law” and
instead “direct[ed] the initial [t]rial [c]ourt to elaborate on her
ruling.” Plaintiff has misconstrued our prior opinion. As
explained above, we held that the court erred when it concluded
that its ruling pursuant to Code of Civil Procedure section 1032,
subdivision (a)(4) precluded an award of attorney fees pursuant
to Civil Code section 1717. (See Goodman v. Lozano (2010) 47
Cal.4th 1327, 1335, fn. 3; Sears v. Baccaglio (1998) 60
Cal.App.4th 1136, 1143.) Thus, our remand was for the trial
court to exercise its discretion pursuant to Civil Code section
1717 in the first instance, not for any particular judge to explain
his or her “intention.” (Cf. Karlsen v. Superior Court (2006) 139
Cal.App.4th 1526, 1530–1531 [where remand for trial court to
complete trial by preparing statement of decision, the court erred
by granting disqualification motion under Code Civ. Proc.,
§ 170.6]; Geddes v. Superior Court (2005) 126 Cal.App.4th 417,
424 [remand for trial court to comply with summary judgment
statute’s requirements “to state the facts and law upon which it
based its decision”].)
Next, plaintiff argues that “[t]he [r]ule of returning
remanded cases to the available initial trial court is the rule, to
which there should [be] no exception.” Plaintiff cites no relevant
authority in support of its claim and none of the statutes or cases
cited in plaintiff’s briefs supports application of such a broad rule.
(See Code Civ. Proc., § 661 [motion for new trial “shall be heard
and determined by the judge who presided at the trial”]; People v.
Rodriguez (2016) 1 Cal.5th 676, 690 [describing “same judge rule”
for motions to suppress evidence under Pen. Code, § 1538.5,
subd. (p)]; People v. Arbuckle (1978) 22 Cal.3d 749, 756–757
10
[finding reversible error when trial judge accepts plea bargain
but fails to impose the sentence].) As a general matter,
“‘[j]urisdiction lies in the court and not a particular judge.
(People v. Osslo (1958) 50 Cal.2d 75, 103 . . . .) . . . “[A]n
individual judge (as distinguished from a court) is not empowered
to retain jurisdiction of a cause. The cause is before the court, not
the individual judge of that court, and the jurisdiction which the
judge exercises is the jurisdiction of the court, not of the judge.”
(People v. Osslo, supra, 50 Cal.2d at p. 104.)’ (In re Marriage of
Regnery (1989) 214 Cal.App.3d 1367, 1377 . . . .)” (Leonard
Carder, LLP v. Patten, Faith & Sandford (2010) 189 Cal.App.4th
92, 99.) Thus, Judge Hammock had jurisdiction to hear the
attorney fees motions on remand.
B. Prevailing Party on Contract
We next consider plaintiff’s contention that the trial court
erred by finding that defendant was “the prevailing party on the
contract” pursuant to Civil Code section 1717. “The trial court
ruling on a motion for fees under [Civil Code] section 1717 is
vested with discretion in determining which party has prevailed
on the contract, or that no party has. [Citation.] ‘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.’
[Citation.] [A] party who obtains an unqualified victory on a
contract dispute, including a defendant who defeats recovery by
the plaintiff on the plaintiff’s entire contract claim, is entitled as
a matter of law to be considered the prevailing party for purposes
11
of [Civil Code] section 1717. [Citation.] But ‘when the results of
the [contract] litigation are mixed,’ the trial court has discretion
under the statute to determine that no party has prevailed.”
(DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968,
973.)
“‘[I]n deciding whether there is a “party prevailing on the
contract,” the trial court is to compare the relief awarded on the
contract claim or claims with the parties’ demands on those same
claims and their litigation objectives as disclosed by the
pleadings, trial briefs, opening statements, and similar sources.
The prevailing party determination is to be made only upon final
resolution of the contract claims and only by “a comparison of the
extent to which each party ha[s] succeeded and failed to succeed
in its contentions.”’” (DisputeSuite.com, LLC v. Scoreinc.com,
supra, 2 Cal.5th at p. 974.)
Plaintiff contends that because defendant prevailed on
equitable causes of action (for quiet title and declaratory relief)
while plaintiff prevailed on the only purported “contractual”
claim, that is, unlawful detainer, defendant was not entitled to
fees under Civil Code section 1717.5 Plaintiff’s contention is
meritless. Civil Code section 1717 does not limit relief to breach
of contract claims. (Santisas v. Goodin (1998) 17 Cal.4th 599, 608
[“If 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
5 Plaintiff’s forcible entry/forcible detainer claim was
premised on its assertion that it “was entitled to the possession of
the [Parking Spaces] by reason of its afore-alleged easement
rights.” Plaintiff alternatively asserted that it was entitled to
relief as a tenant based upon the 2009 Lease.
12
claims”]; Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270, 1277
[provision that provided for attorney fees “‘[i]f a civil action is
instituted in connection with this’” lease permitted award of fees
for both breach of contract and tort causes of action].) Rather,
“‘California courts liberally construe the term “‘“on a contract”’”
as used within [Civil Code] section 1717. [Citation.] As long as
the action “involve[s]” a contract it is “‘on [the] contract’” within
the meaning of [Civil Code] section 1717. [Citations.]’”
(Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008)
162 Cal.App.4th 858, 894.)
The attorney fees provision in the 2009 Lease provided that
“[i]f a party under this agreement brings an action or proceeding
to enforce the terms thereof or declare rights thereunder,” the
prevailing party will recover reasonable attorney fees. The
parties here disputed whether plaintiff had a right to use the
Parking Spaces, which were clearly identified in the 2009 Lease
as the premises being rented. In its amended complaint,
plaintiff: (1) asserted that it had possessory rights to the Parking
Spaces by reason of a covenant or prescriptive easement; (2)
sought a determination that its easements rights were “not
conditioned upon payment of consideration or rent”; and (3)
sought attorney fees on its quiet title cause of action. Thus,
plaintiff’s lawsuit sought to “declare [its] rights” to the Parking
Spaces. Further, defendant sought in its cross-complaint to
declare its own rights to the Parking Spaces. As plaintiff
concedes, the terms of the 2009 Lease contradicted plaintiff’s
claims of a purported possessory interest in the Parking Spaces,
which demonstrates that plaintiff’s claims were meritless, not
that they did not “involve” the 2009 Lease. Accordingly, the trial
court did not err by ruling that the quiet title and declaratory
13
relief causes of action were “on the contract” for purposes of Civil
Code section 1717.6
Next, we consider whether the trial court abused its
discretion in awarding attorney fees when plaintiff prevailed on
at least one of its causes of action. Defendant prevailed on its
quiet title and plaintiff’s quiet title causes of action. It also
prevailed on its declaratory relief cause of action. Plaintiff
prevailed on its unlawful detainer cause of action. Defendant
obtained a judgment declaring that it held title to the Parking
Spaces free and clear of any encumbrance or easement. Plaintiff
obtained a judgment for $3,809.52. On this record, the court did
not abuse its discretion by finding defendant recovered greater
relief on the contract and was thus entitled to recover reasonable
attorney fees.7 (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103,
1109; Civ. Code, § 1717, subd. (b)(1).)
6 Plaintiff contends that the trial court could only award
costs, which include fees, to the extent costs were awarded under
Code of Civil Procedure section 1032. Pursuant to the law of the
case doctrine, we need not restate our reasons for rejecting that
claim in our earlier appeal. (See Morohoshi v. Pacific Home
(2004) 34 Cal.4th 482, 491.)
7 Plaintiff contends that there was no substantial evidence to
support the trial court’s ruling because defendant failed to attach
its cross-complaint to either of its attorney fees motions. We
disagree as defendant requested that the court take judicial
notice of the court’s record and the court granted that request.
Further, the court stated that it reviewed the case file and
expressly referred to defendant’s cross-complaint in its ruling.
Plaintiff, however, has failed to include the cross-complaint
as part of the record on appeal. As the appellant, plaintiff bears
14
C. Defendant Was Prevailing Party on First Appeal
Plaintiff next argues that defendant was not entitled to
recover attorney fees for prevailing on the first appeal because, in
plaintiff’s view, there was no “final” determination of the
litigation, as our prior opinion was only an “interim appellate
ruling.” The cases cited by plaintiff in support are inapposite as
they involved underlying litigation that was not complete after
the first appeal. (See, e.g., Butler-Rupp v. Lourdeaux (2007) 154
Cal.App.4th 918, 928 [identification of prevailing party not
complete until after conclusion of appeal from underlying
litigation]; Presley of Southern California v. Whelan (1983) 146
Cal.App.3d 959, 961 [“it is well settled a party who prevails on
appeal is not entitled under a [Civil Code] section 1717 fee
provision to the fees he incurs on appeal where the appellate
decision does not decide who wins the lawsuit but instead
contemplates further proceedings in the trial court”].) Here, the
litigation was complete, judgment was entered, and the
determination of who had prevailed on the contract could be
determined by examination of the record of the trial. The court
properly concluded that defendant had prevailed on the earlier
appeal and was therefore entitled to recover attorney fees.
(Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211
Cal.App.4th 230, 250 [“When a contract or a statute authorizes
the prevailing party to recover attorney fees, that party is
entitled to attorney fees incurred at trial and on appeal”].)
the burden of producing an adequate record to demonstrate error.
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)
15
D. Calculation of Attorney Fees
Plaintiff next argues that the trial court abused its
discretion in calculating the amount of attorney fees. We review
this claim for an abuse of discretion. (PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095.) The court’s order is
presumed correct absent a showing of error to the contrary.
(Jameson v. Desta, supra, 5 Cal.5th at pp. 608–609.) Further,
“[i]t is well established that ‘California courts do not require
detailed time records, and trial courts have discretion to award
fees based on declarations of counsel describing the work they
have done and the court’s own view of the number of hours
reasonably spent. [Citations.]’” (Syers Properties III, Inc. v.
Rankin (2014) 226 Cal.App.4th 691, 698.) Here, the court
reviewed the case file, considered declarations and argument by
both parties, reduced certain requested fees, and reached the
lodestar amount of $225,000 for the motion for attorney fees from
trial, and $55,000 for the motion for attorney fees on appeal. On
this record, we find no abuse of discretion.8
8 Plaintiff asserted that this case is entitled to calendar
preference pursuant to rule 8.240 of the California Rules of
Court. Plaintiff, however, did not provide a statutory basis for
such calendar preference, and we have found none. We conclude
calendar preference was given in error.
Plaintiff also moves to sanction defendant for purportedly
filing an untimely brief in violation of rule 8.220 of the California
Rules of Court. To the extent that plaintiff asserts sanctions
should be imposed because defendant filed its brief on
July 13, 2020, which was 18 days after our deadline of
June 25, 2020, we decline to impose sanctions. Accordingly,
plaintiff’s motion for sanctions is denied.
16
IV. DISPOSITION
The postjudgment order awarding attorney fees is affirmed.
Defendant Liberal Arts 677 Benevolent Foundation, Inc. is
entitled to recover costs on appeal, including reasonable attorney
fees pursuant to contract.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
17