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               DOMINICK COSOLO et al., Plaintiffs and Respondents, v. VERIZON CALIFOR-
                              NIA, INC., Defendant and Appellant.

                                                       E049017

                 COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT,
                                       DIVISION TWO

                                        2011 Cal. App. Unpub. LEXIS 1908


                                                March 14, 2011, Filed

NOTICE:      NOT TO BE PUBLISHED IN OFFICIAL                July 17, 2008, plaintiffs filed a third amended complaint
REPORTS. CALIFORNIA RULES OF COURT, RULE                    in which they added a cause of action against the City of
8.1115(a), PROHIBITS COURTS AND PARTIES                     Chino (City) for inverse condemnation. Verizon even-
FROM CITING OR RELYING ON OPINIONS NOT                      tually settled with plaintiffs for a total of $22,500 to
CERTIFIED FOR PUBLICATION OR ORDERED                        plaintiffs collectively; the stipulated partial settlement
PUBLISHED, EXCEPT AS SPECIFIED BY RULE                      agreement expressly reserved ruling on the issue of at-
8.1115(b). THIS OPINION HAS NOT BEEN CERTI-                 torneys' fees and costs. The court later declared plaintiffs
FIED FOR PUBLICATION OR ORDERED PUB-                        the prevailing party; it awarded attorneys' fees in the
LISHED FOR THE PURPOSES OF RULE 8.1115.                     amount of $185,674.22 and costs in the amount of
                                                            $12,829. Verizon appeals, contending plaintiffs were not
PRIOR HISTORY: [*1]                                         legally [*2] entitled to costs and fees or, in the alterna-
   APPEAL from the Superior Court of San Bernardino         tive, that the court abused its discretion in granting the
County. Super.Ct.No. RCVRS099168. David A. Wil-             awards. We affirm.
liams, Judge.
                                                            FACTUAL AND PROCEDURAL HISTORY1
DISPOSITION:         Affirmed.
                                                                   1     As noted by Verizon in its opposition to
COUNSEL: Kinkle, Rodiger and Spriggs and Wesley D.                 plaintiffs' motion for attorneys' fees and costs,
Hellerud for Defendant and Appellant.                              "[t]he facts are few and generally not in dispute."
                                                                 Plaintiffs alleged that in 2004, Verizon commenced
Law Offices of C. Joe Sayas, Jr., C. Joe Sayas, Jr., and
                                                            a project to lay underground fiber optic cable in the City
Karl P. Evangelista for Plaintiffs and Respondents.
                                                            of Chino. Verizon applied for and obtained an en-
                                                            croachment permit from the City for the work to be per-
JUDGES: MILLER J.; KING Acting P.J., CODRING-
                                                            formed. The permit required that Verizon comply with
TON J. concurred.
                                                            the provisions of Chino Municipal Code, Chapter 12.02:
                                                            "Verizon 'agree[s] to compensate the City of Chino and
OPINION BY: MILLER
                                                            any other party for all costs to restore any and all damage
                                                            to the public right-of-way, other city property; and other
OPINION
                                                            life or property; and for all remediation costs of all envi-
     On November 7, 2006, plaintiffs Dominick Cosolo,       ronmental damage caused, directly or indirectly, by [Ve-
Glen Navalta, and Mae Navalta (collectively "plaintiffs")   rizon's] acts or omissions as required by Chapter 12.02 of
filed a complaint alleging causes of action against de-     the Chino Municipal Code.'" According to section
fendant Verizon Communications, Inc. (Verizon) and its      12.02.030 of the Chino Municipal Code "1) each appli-
various subcontractors for nuisance and negligence. On      cant who, directly or indirectly, causes damages, interfe-
                                                                                                                   Page 2
                                          2011 Cal. App. Unpub. LEXIS 1908, *


rence or obstruction to such interests, rights, or property    going to have to figure that out when they get to the set-
belonging to the city [*3] or private property shall re-       tlement issue themselves. But I don't think the Court
store same to like or better condition tha[n] existed prior    should be in the middle of this settlement that way based
to the damages, and 2) each applicant who fails to restore     on the fact that this may be coming back to the court for
such interest, rights or property belonging to the city or     trial."
private property shall be liable for all costs to restore
                                                                    On January 22, 2009, the parties entered into a set-
same and for reasonable attorneys fees and expert wit-
                                                               tlement agreement reserving the court's jurisdiction to
ness fees in the event litigation and other legal action is
                                                               rule on the issue of attorneys' fees and costs. After exten-
required to collect such costs." In the event of such
                                                               sive briefing on the issue, the court awarded attorneys'
damage and remediation, the municipal code required
                                                               fees to plaintiffs in the amount of $185,674.22. The court
that the restoration be done to the satisfaction of the
                                                               requested that plaintiffs file a separate memorandum of
City's director of public works.
                                                               costs. After plaintiffs filed an itemized memorandum of
     On or about February 15, 2005, Verizon contracted         costs, the court denied Verizon's motion to tax plaintiffs'
with codefendant, The Fishel Corporation (Fishel), to act      costs in the amount of $12,829.
as the general contractor for the project. Fishel subcon-
tracted different portions of the project to codefendants      DISCUSSION
S&S Directional Drilling, Inc. (S&S) and Horizon Un-
derground, Inc. (Horizon).                                     A. MOTION TO AUGMENT
     On or about March 28, 2005, Horizon punctured the              Verizon filed its reply brief in this appeal on Sep-
lateral sewer line connecting the Navalta home to the          tember 17, 2010. On the same date it filed a motion
City's main sewer line. The Navalta home was subse-            seeking to augment the record [*6] with transcripts of
quently flooded with raw sewage. On or about May 17,           the depositions of plaintiffs conducted on July 17, 2008,
2005, Horizon punctured another lateral sewer line con-        and plaintiffs' mediation brief filed February 18, 2008,
necting the Cosolo home to the City's main sewer line.         totaling hundreds of additional pages (the attached mate-
The Cosolo home [*4] was similarly flooded with raw            rials are not Bates stamped as required by California
sewage. Plaintiffs allegedly incurred damages including        Rules of Court, rule 8.155(a)(2)). 2 In their opposition
repairs and cleaning of their respective homes, temporary      filed on October 4, 2010, plaintiffs argued that augmen-
lodging expenses, diminution of their home values, and         tation of the attached materials was improper because the
emotional distress.                                            deposition transcripts were never filed, lodged, or consi-
                                                               dered by the court below. Likewise, plaintiffs maintain
     After plaintiffs and the City's director of public
                                                               augmentation of the record with their mediation brief
works unsuccessfully attempted to resolve the issue with
                                                               was improper because it was a confidential document
Verizon regarding the expenses incurred for the restora-
                                                               forbidden from such disclosure. On October 12, 2010,
tion of the plaintiffs' homes and other damages during
                                                               we issued an order reserving ruling on the motion for
the ensuing year and a half, plaintiffs filed suit against
                                                               consideration with the appeal. We have now considered
Verizon and its subcontractors on November 7, 2006.
                                                               the materials with which Verizon proposes to augment
Cosolo sought restorative damages in the amount of
                                                               the record. We agree with plaintiffs that augmentation of
$64,453.77; Navalta sought $42,968.85. Plaintiffs addi-
                                                               those documents is improper and, therefore, deny Veri-
tionally sought $50,000 in diminution of the value of
                                                               zon's motion to augment.
their respective homes, $45,000 in emotional distress
damages per plaintiff, and attorneys' fees and costs.
                                                                      2 All further rule references are to the Califor-
     During subsequent litigation of the matter, plaintiffs           nia Rules of Court unless otherwise indicated.
conducted 11 depositions and propounded 62 sets of
                                                                    "Rule 8.155(a)(1)(A) allows this court to order the
written discovery. Defendant propounded an additional
                                                               record augmented with '[a]ny document filed or lodged
40 sets of written discovery. Thus, a total of 102 written
                                                               in the case in superior [*7] court.' Rule 8.340(c) pro-
sets of discovery were propounded. As a result of the
                                                               vides, 'At any time, on motion of a party or on its own
discovery, plaintiffs amended their complaint to allege a
                                                               motion, the reviewing court may order the record aug-
cause of action against City on July 17, 2008.
                                                               mented or corrected as provided in rule 8.155.'" (In re
     In an attempt [*5] to settle the matter, the parties      A.B. (2008) 164 Cal.App.4th 832, 839.)
sought an early adjudication, essentially an advisory opi-
nion, on the issue of whether plaintiffs would be entitled     1. DEPOSITION TRANSCRIPTS
to attorneys' fees and costs should Verizon settle the
                                                                   Appellate review of deposition transcripts "'is li-
matter with plaintiffs in any amount. The court declined
                                                               mited to those portions of the depositions which were
the invitation to issue an advisory ruling: "The parties are
                                                                                                                      Page 3
                                           2011 Cal. App. Unpub. LEXIS 1908, *


abstracted and placed before the court in'" moving papers        Furthermore, we agree that Verizon's disclosure of the
filed below. (Sacks v. FSR Brokerage, Inc. (1992) 7              document "is an egregious violation of mediation confi-
Cal.App.4th 950, 962, quoting Howe v. Pioneer Mfg. Co.           dentiality."
(1968) 262 Cal.App.2d 330, 336, italics omitted; see also
Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14            3. SANCTIONS
Cal.4th 434, 444, fn. 3.) "[A]ugmentation may be used
                                                                      Plaintiffs requested sanctions against Verizon in the
only to add evidence that was mistakenly omitted when
                                                                 amount of $1,925 in attorneys' fees for the time ex-
the appellate record was prepared; the record cannot be
                                                                 pended in responding to what they characterized as a
'augmented' with material that was not before the trial
                                                                 "frivolous and egregious" motion. We issued, separately
court. [Citations.]" (In re Marriage of Forrest & Eaddy
                                                                 and contemporaneously with the tentative opinion,
(2006) 144 Cal.App.4th 1202, 1209.)
                                                                 [*10] an order to show cause why sanctions in the
     Verizon has failed to establish that the deposition         amount requested by plaintiffs should not be granted.
transcripts were filed, lodged, or considered by the court
                                                                       At oral argument, Verizon continued to assert that
below. Rather, since the particular deposition references
                                                                 the documents attached to its motion to augment were
relied on by the parties below were attached to their
                                                                 properly subject to augmentation because they are part of
points and authorities, it appears [*8] that only those
                                                                 the superior court file. For the reasons discussed above,
particular references were before the trial court in mak-
                                                                 we find Verizon's response disingenuous and legally
ing its decisions. Indeed, Verizon admits in its motion
                                                                 unfounded. Thus, the motion is frivolous and a sanction
that only "portions of these documents have been filed
                                                                 award appropriate. (Rule 8.276(a)(3).) Therefore, plain-
and/or lodged in the case in superior court." This court
                                                                 tiffs' request for sanctions is granted and Verizon is or-
can only rely on evidence that was before the trial court;
                                                                 dered to pay plaintiffs' attorneys' fees in the amount of
thus, only those references to the deposition transcripts
                                                                 $900, for plaintiffs' defense of the frivolous motion to
considered by the court below can be relied upon by this
                                                                 augment.
court in deciding whether the trial court's decision was
correct. Therefore, Verizon's motion to augment the
                                                                 B. DEFICIENCIES IN VERIZON'S OPENING BRIEF
record with the attached deposition transcripts must be
and is denied.                                                       We begin by attempting to discern the precise issues
                                                                 Verizon is raising on appeal through the haze of the defi-
2. MEDIATION BRIEF                                               ciencies in its opening brief.
     "No writing, as defined in Section 250, that is pre-
                                                                 1. ARGUMENT AND AUTHORITY
pared for the purpose of, in the course of, or pursuant to,
a mediation or a mediation consultation, is admissible or             A brief must "[s]tate each point under a separate
subject to discovery, and disclosure of the writing shall        heading or subheading summarizing the point, and sup-
not be compelled, in any arbitration, administrative adju-       port each point by argument and, if possible, by citation
dication, civil action, or other noncriminal proceeding in       of authority . . . ." (Rule 8.204(a)(1)(B).) "The purpose of
which, pursuant to law, testimony can be compelled to be         requiring . . . coherent arguments in appellate briefs is 'to
given." (Evid. Code, § 1119, subd. (b); Wimsatt v. Supe-         lighten the labors of the appellate [courts] by requiring
rior Court (2007) 152 Cal.App.4th 137, 158-159.)                 [*11] the litigants to present their cause systematically
                                                                 and so arranged that those upon whom the duty devolves
     Verizon fails to assert that plaintiff's mediation brief
                                                                 of ascertaining the rule of law to apply may be advised,
was considered by the ruling [*9] court below. Moreo-
                                                                 as they read, of the exact question under consideration,
ver, the brief is not stamped "filed," suggesting, as as-
                                                                 instead of being compelled to extricate it from the mass.'
serted by plaintiffs, that it was, in fact, not filed with the
                                                                 [Citation.]" (Opdyk v. California Horse Racing Bd.
court below. Finally, a purview of the brief itself reflects
                                                                 (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) An appellant
that it is the very type of writing prepared for mediation
                                                                 forfeits an issue when he makes only a blanket, conclu-
that is forbidden from disclosure. Indeed, the judge
                                                                 sory statement, with no citation to authority or discussion
whose rulings Verizon challenges declined to issue an
                                                                 of the authority as it applies to the facts of the case.
advisory opinion on the attorneys' fees issue precisely
                                                                 (Nelson v. Avondale Homeowners Assn. (2009) 172
because he did not wish to improperly intersperse him-
                                                                 Cal.App.4th 857, 862.)
self into the parties confidential settlement negotiations:
"But I don't think the Court should be in the middle of               Verizon cites all of two cases in its opening brief.
this settlement that way based on the fact that this may         The first case is cited in its "statement of the case." The
be coming back to the court for trial." Thus, we agree           second case is cited in its "standard of review." Verizon
with plaintiffs that Verizon's motion to augment the             cites Albert v. Southern Pacific Transportation Co.
record with the mediation brief must be and is denied.           (1994) 30 Cal.App.4th 529 (Albert) (with no point page
                                                                                                                    Page 4
                                           2011 Cal. App. Unpub. LEXIS 1908, *


citation) for the proposition that we conduct de novo           judgment; it is the appellant's affirmative burden to
review in the instant case. However, Albert dealt with the      demonstrate otherwise. [Citations.] The appellant's brief
issue of whether summary judgment was properly                  must set forth all of the material evidence [*14] bearing
granted in favor of the defendant where the plaintiff sued      on the issue, not merely the evidence favorable to the
for negligence. Albert appropriately noted that review of       appellant, and must show how the evidence does not
a grant of summary [*12] judgment as a matter of law            sustain the challenged finding. [Citations.]" (Cequel III
is de novo. (Id. at p. 533.) The instant case involves a        Communications I, LLC, v. Local Agency Formation
challenge to an award of attorneys' fees and costs; thus,       Com. of Nevada County (2007) 149 Cal.App.4th 310,
Albert is not even remotely relevant authority to the is-       329, fn. 7.)
sues raised by Verizon. Verizon cites no other cases in its
                                                                     Verizon's 12-page opening brief, which consists of a
opening brief under any of its six enumerated issues on
                                                                six-page "statement of the case" (including its "summary
appeal.
                                                                of facts"), contains not one citation to the record on ap-
      Verizon does cite to Code of Civil Procedure section      peal. Thus, we shall disregard Verizon's statement of the
657, subdivision (5) 3 in support of one of its six argued      case in its entirety and rely instead on that provided by
issues, that the fees and costs awarded in this case were       plaintiffs and on our own review of the record. While
excessive. However, section 657 deals with the granting         Verizon does provide record citations in its argument, it
of relief to a party filing a motion for new trial. As plain-   does so only by block page references at the conclusion
tiffs correctly observe, because there was no trial in this     of each of its arguments. "'As [a] practical matter, the
case, no party filed a motion for new trial. Thus, section      appellate court is unable to adequately evaluate which
657, subdivision (5) is not relevant authority on the issue     facts the parties believe support their position when
raised by Verizon.                                              nothing more than a block page reference is offered in
                                                                the briefs . . . .'" (Spangle v. Farmers Ins. Exchange, su-
       3    All further statutory references are to the         pra, 166 Cal.App.4th at p. 564, fn. 3.) We shall exercise
       Code of Civil Procedure unless otherwise indi-           our discretion to consider the issues raised by Verizon
       cated.                                                   despite the inadequacies of its opening brief. 4 (Stocking-
                                                                er v. Feather River Community College (2003) 111
      Verizon does cite to the Chino Municipal Code in
                                                                Cal.App.4th 1014, 1024-1025) [*15] Nonetheless, to
support of all of its contentions. Yet Verizon still fails to
                                                                the extent Verizon complains about our characterization
elucidate how the facts of this case apply to the authority
                                                                of its arguments and view of the facts, Verizon has for-
it cites. Therefore, we would be well within our authority
                                                                feited any right to argue the issue. (Loranger v. Jones
in deeming all of the issues raised by Verizon as for-
                                                                (2010) 184 Cal.App.4th 847, 858, fn. 9.)
feited. (Nelson v. Avondale Homeowners Assn., supra,
172 Cal.App.4th at p. 862.)
                                                                       4 We note the opening brief also contains nu-
                                                                       merous grammatical mistakes, misspellings, and
2. [*13] RECORD CITATIONS
                                                                       typographical errors.
     A brief must "[s]upport any reference to a matter in
the record by a citation to the volume and page number          3. REPLY BRIEF
of the record where the matter appears." (Rule
                                                                     Verizon corrects many of the mistakes it made in its
8.204(a)(1)(C); Doppes v. Bentley Motors, Inc. (2009)
                                                                opening brief in its reply brief. Indeed, the reply brief is
174 Cal.App.4th 967, 989-990.) Where a party "provides
                                                                nearly three times as long as the opening brief--30 subs-
a statement of facts in his . . . brief but makes no attempt
                                                                tantive pages as opposed to the latter, which was
to support it with citations to the record[,] . . . [w]e dis-
                                                                12-pages long. It contains numerous case citations
regard his statement of facts." (Gotschall v. Daley (2002)
                                                                (though many still without point page citations) and
96 Cal.App.4th 479, 481, fn. 1; see also McOwen v.
                                                                more record citations (though again still failing to pro-
Grossman (2007) 153 Cal.App.4th 937, 947.) An appel-
                                                                vide citations to the record for each statement of fact). It
late court may disregard sections of a brief, including
                                                                presents arguments not made in the opening brief, and
argument, containing factual statements not supported by
                                                                more lucid expositions of those arguments made pre-
record citations (Doppes, at p. 990 & fn. 4), and may
                                                                viously. Nevertheless, as discussed below, Verizon's
deem the particular argument to have been forfeited
                                                                corrections in the reply brief, of the flaws in its opening
(Nwosu v. Uba (2004) 122 Cal.App.4th 1229,
                                                                brief, cannot rectify the deficiencies of its opening brief.
1246-1247), or may strike the brief (Spangle v. Farmers
Ins. Exchange (2008) 166 Cal.App.4th 560, 564, fn. 3).               A point raised for the first time in a reply brief de-
                                                                prives the respondent of an opportunity to answer it;
     "[T]he reviewing court starts with the presumption
                                                                therefore, it "is deemed waived [*16] and will not be
that the record contains evidence sufficient to support the
                                                                considered, unless good reason is shown for failure to
                                                                                                                        Page 5
                                           2011 Cal. App. Unpub. LEXIS 1908, *


present it before. [Citations.]" (People v. Baniqued             tion and other legal action is required to collect such
(2000) 85 Cal.App.4th 13, 29.) Arguments made for the            costs." The municipal code additionally required that any
first time in the reply brief will not normally be consi-        remediation of damages be completed to the satisfaction
dered by the reviewing court. (Reichardt v. Hoffman              of the City's director of public works. As holder of the
(1997) 52 Cal.App.4th 754, 764.)                                 permit, Verizon, not any of its subcontractors, was ulti-
                                                                 mately liable for any non-compliance with the conditions
     Verizon makes no showing whatsoever, let alone
                                                                 of the permit. 5
one amounting to good cause, for its failure to raise those
issues first exposited in its reply brief in its opening
                                                                         5 To the extent any of its subcontractors were
brief. Thus, to the extent Verizon's reply brief raises new
                                                                         directly at fault for the incidents, Verizon could
issues or clarifies any of the ambiguities and/or rectifies
                                                                         presumably recover from those subcontractors
the deficiencies of its arguments in the opening brief,
                                                                         through the maintenance of appropriate actions
Verizon has forfeited reliance upon such remediation by
                                                                         for indemnification. While it appears from the
failing to have clearly raised such issues in its opening
                                                                         record that Verizon cross-complained against
brief. Therefore, we shall proceed to address the merits
                                                                         Horizon, nothing in this record, except perhaps a
of the claims we have been able to divine from our read-
                                                                         thorough review of the register of actions, defini-
ing of appellant's opening brief and, to the extent appro-
                                                                         tively establishes the outcome of Verizon's
priate, only those elaborations or clarifications in the
                                                                         cross-complaint. Since that matter is tangential to
reply brief of arguments already clearly raised in the
                                                                         the [*19] issues raised on appeal and neither
opening brief.
                                                                         party has informed us of the outcome of the re-
                                                                         lated suits, we refuse to further investigate these
C. LEGAL AUTHORITY TO AWARD OF ATTOR-
                                                                         matters. As plaintiffs' counsel below noted: "It's a
NEYS' FEES AND COSTS
                                                                         problem between Verizon and their subcontrac-
     Verizon contends that the court below was without                   tors." Nevertheless, we note the trial court's ob-
any legal authority to award [*17] attorneys' fees and                   servation, "I don't have the other defendants in
costs, because plaintiffs' property had been returned to as              front of me. You know the age-old saying that
good a condition as it was before the incidents, and be-                 whoever settles first usually gets the better deal
cause the homeowners obtained the costs of remediation                   when there [are] multiple defendants in the case.
through their homeowners' insurer, with whom Verizon                     They settled out first. They reached their deal. I
settled a subsequent subrogation suit. Thus, Verizon ar-                 don't have them before me now." Thus, we pre-
gues plaintiffs' maintenance of the suit against it was                  sume both plaintiffs and Verizon settled their re-
frivolous and undeserving of an award of attorney fees                   spective issues with the subcontractors.
and costs. We disagree.
                                                                      Plaintiffs alleged that they sustained substantial
     "The issue of a party's entitlement to attorney's fees      damages to their homes on March 28, 2005, and May 17,
is a legal issue which we review de novo. [Citations.]"          2005. Plaintiffs and the City attempted to resolve the
(Garcia v. Santana (2009) 174 Cal.App.4th 464,                   matter with Verizon, i.e., they attempted to obtain the
468-469.) "'[I]n an appeal from a postjudgment order             costs from Verizon for restoring plaintiffs' incurred
awarding attorney's fees, we may review the entitlement          damages. After failing in those attempts over the course
to, as well as the amount of, the fees awarded.' [Cita-          of nearly a year and a half, plaintiffs' initiated suit against
tion.]" (City of Santa Paula v. Narula (2003) 114                Verizon on November 7, 2006. Subsequent discovery
Cal.App.4th 485, 492.) "A city ordinance may authorize           conducted in an effort to collect the costs of restoration
an award of attorney fees." (Id. at p. 493.)                     of the damages involved 11 depositions, [*20] 102 sets
                                                                 of written discovery, and the retention of an expert wit-
     Here, Verizon obtained an encroachment permit               ness. As late as November 18, 2008, the City's director of
from the City authorizing it to perform the work of in-          public works declared that Verizon had yet "to show
stalling the underground fiber optic cables. A condition
                                                                 proof to my satisfaction that the damages to the Cosolo
of the issuance of the permit required that Verizon would
                                                                 and Navalta Homes, or their rights and interests therein,
pay the costs of all damages caused by its actions under
                                                                 have been fully paid." Thus, as a matter of law, plaintiffs'
the permit. The permit incorporated [*18] by reference
                                                                 were entitled to an award of attorneys' fees and costs,
the provisions of chapter 12.02 of the City municipal            upon a proper showing of proof, for their efforts to com-
code. That chapter requires that permit holders restore all      pel Verizon through litigation to pay the costs of the res-
damaged properties to like or better condition. "[E]ach
                                                                 toration of their homes and other damages.
applicant who fails to restore such . . . property . . . shall
be liable for all costs to restore same and for reasonable           Verizon contends that plaintiffs obtained payment
attorneys' fees and expert witness fees in the event litiga-     from their insurer and subsequently restored their homes
                                                                                                                   Page 6
                                          2011 Cal. App. Unpub. LEXIS 1908, *


to like or better condition. Thus, Verizon maintains that             plaintiffs. This would prevent any double recov-
plaintiffs need not have incurred attorneys' fees and costs           ery.
because their homes would have been restored regard-
                                                                    As the trial court properly concluded, the City's mu-
less.
                                                               nicipal code provision for attorneys' fees applies when an
     "It is well settled that, pursuant to principles of       individual has "not [been] [*23] fully restored prior to
equitable subrogation, an insured retains a right to sue       any litigation forcing the defendants to fully restore the
for uncompensated loss. 'Subrogation is the right of an        plaintiff." Thus, regardless of Verizon's settlement of the
insurer to take the place of its insured to pursue recovery    subrogation claim, plaintiffs had already incurred exten-
from legally responsible third parties for losses paid to      sive fees and costs in their effort to recover the damages
the insured by the insurer. [Citation.]' [Citation.] 'Both     to which they were legally entitled. Hence, an award of
the subrogee (insurer) [*21] and the subrogor (insured)        attorneys' fees and costs was legally proper.
have a right of action against the tortfeasor.' [Citation.]"
                                                                    Furthermore, as plaintiffs noted below, "the subro-
(Pacific Gas & Electric Co. v. Superior Court (2006)
                                                               gation payment does not settle other damages uncom-
144 Cal.App.4th 19, 23, fn. omitted.) "Where a person
                                                               penstated by insurance, including other property damag-
suffers personal injury or property damage by reason of
                                                               es, emotional distress and attorney's fees." Thus, to the
the wrongful act of another, an action against the
                                                               extent plaintiffs alleged damages for which the insurer
wrongdoer for the damages suffered is not precluded nor
                                                               did not and would not pay, an award of attorneys' fees
is the amount of the damages reduced by the receipt by
                                                               and costs incurred in pursuit of those damages would
him of payment for his loss from a source wholly inde-
                                                               remain legally cognizable. Here, plaintiffs alleged dam-
pendent of the wrongdoer. [Citations.]" (Anheus-
                                                               ages for diminution of their home values and emotional
er-Busch, Inc. v. Starley (1946) 28 Cal.2d 347, 349; ac-
                                                               distress, damages for which an insurer would be unlikely
cord People v. Bickett (1999) 21 Cal.4th 226, 247, fn.
                                                               to compensate a homeowner. (Smith v. County of Los
19.) "The most typical case is where the person suffering
                                                               Angeles (1989) 214 Cal.App.3d 266, 288-289 [emotional
the damage has procured insurance protecting him
                                                               distress damages may be awarded in a nuisance action].)
against the loss, to which the wrongdoer did not contri-
                                                               Verizon ultimately settled the matter with plaintiffs; thus,
bute in procuring, and his insurer pays him for the loss
                                                               plaintiffs were also legally entitled to an award of attor-
suffered. In the insurance cases its application is not
                                                               neys' fees and costs, [*24] upon proper showing, for
prevented by the circumstance that the insurer is subro-
                                                               costs incurred in pursuit of damages not compensated by
gated to the rights of the insured person suffering the
                                                               their insurer.
damage as against the tort feasor. [Citations.]" (Anheus-
er-Busch, at p. 349.)
                                                               D. THE COURT'S EXERCISE OF ITS DISCRETION
      Here, the fact that plaintiffs' insurer paid some or     IN AWARDING ATTORNEYS' FEES AND COSTS
even all of the damages plaintiffs incurred does not ne-
                                                                    Verizon contends the court abused its discretion in
gate plaintiffs' [*22] right to pursue an action for dam-
                                                               declaring plaintiffs the prevailing party and, hence,
ages against Verizon, the entity ultimately responsible
                                                               awarding attorneys' fees and costs. Verizon further
for the damages. 6 Likewise, Verizon could, as it appar-
                                                               maintains that, to the extent any fees and costs were
ently did, settle a subrogation claim filed by the insurer.
                                                               proper, the court abused its discretion in awarding the
The record reveals that plaintiffs' insurer filed a com-
                                                               amounts it did. We hold the court acted within its discre-
plaint for subrogation on March 28, 2008. Verizon set-
                                                               tion in rendering the award of attorneys' fees and costs.
tled that claim on August 11, 2008. Thus, Verizon's set-
tlement of the subrogation claim would bar an award of
                                                               1. PREVAILING PARTY AND ATTORNEYS' FEES
damages against it for those amounts and items paid by
the insurer; however, it would not affect plaintiffs' incur-        The trial court's determination that a litigant is a
rence of attorneys' fees and costs prior to that settlemen.t   prevailing party, along with its award of attorneys' fees,
Here, as alleged by plaintiffs, the insurer's claim for sub-   is reviewed for abuse of discretion. (Villa De Las Palmas
rogation and Verizon's settlement of it "came only after       Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94.)
extensive discovery was already accomplished by Plain-         "'The "experienced trial judge is the best judge of the
tiffs . . . ."                                                 value of professional services rendered in his [or her]
                                                               court. . . ." [Citations.]' [Citation.] 'Absent a manifest
       6 Presumably, the insurer, as a condition of its        abuse of discretion, the determination of the trial court
       insurance policy, would have a lien against any         will not be disturbed.' [Citation.]" (City of Santa Paula v.
       damages recovered by the homeowners in their            Narula, supra, 114 Cal.App.4th at p. 493.)
       suit against Verizon for any amount of damages
                                                                   "'Prevailing party' includes the party with a net
       for which the insurer had already compensated
                                                               [*25] monetary recovery. . . ." (§ 1032, subd. (a)(4); Re-
                                                                                                                       Page 7
                                           2011 Cal. App. Unpub. LEXIS 1908, *


veles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139,                   7 Verizon's reply brief addresses this issue as
1149-1151 [party obtaining net recovery in settlement                    follows: "Then, there is the issue of [plaintiffs']
agreement may be deemed "prevailing party" for pur-                      counsel's hourly rate of $550.00. That may be
poses of attorneys' fees and costs award where determi-                  acceptable in Los Angeles (I doubt!) but not in
nation of fees and costs is reserved for postsettlement                  Rancho Cucamonga. The analysis is [sic] rea-
motion], disapproved on other grounds in Snukal v.                       sonable for an attorney in the area where the case
Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754,                    is being litigated. $550.00 is not reasonable in
775, fn. 6, and Gavaldon v. DaimlerChrysler Corp.                        Rancho Cucamonga. $225.00 is more reasonable
(2004) 32 Cal.4th 1246, 1261.)                                           and $95.00 for a paralegal is not reasonable more
                                                                         like $55.00 an hour and associates the going rate
a) Prevailing Party                                                      would be between $125.00 per hour to $165.00
                                                                         per hour depending on experience and complexi-
     Here, the court concluded, "[t]he fact that there was
                                                                         ty of the action."
a settlement does not change that. I think they're entitled
to their attorneys' fees . . . ." It concluded that plaintiffs        Second, with respect to the court's purported failure
were "a prevailing party in this matter." In that Verizon        to divide the attorneys' fees award between Verizon and
settled the matter with plaintiffs for $22,500 collectively      the subcontractor codefendants, we note that Verizon
"with respect to the Plaintiffs' claims for property dam-        fails to establish it requested that the court do so below.
age and emotional distress," plaintiffs were parties re-         Thus, Verizon has forfeited the issue on appeal. (Premier
ceiving "a net monetary recovery. . . ." (Reveles v. Toyo-       Medical Management Systems, Inc. v. California Ins.
ta by the Bay, supra, 57 Cal.App.4th at p. 1149.) Indeed,        Guarantee Assn. (2008) 163 Cal.App.4th 550, 564
the settlement expressly reserved the issue of attorneys'        [*28] [failure to raise specific challenges to fee award in
fees. Thus, the court's determination that plaintiffs were       the trial court forfeits claim on appeal].) Nevertheless, as
the prevailing party was well within its [*26] discretion.       discussed in footnote No. 6 ante, Verizon had its own
                                                                 methods of recourse against the subcontractor codefen-
b) Attorneys' Fees                                               dants to the extent they were responsible for the incur-
                                                                 rence of any of the attorneys' fees. Finally, as the court
     With respect to the attorneys' fees award in the
                                                                 properly noted, those defendants were not before it; thus,
amount of $185,674.22, Verizon contends the court
                                                                 it had no jurisdiction to issue such an order.
abused its discretion in awarding fees in an excessive
amount, in failing to divide the award between the vari-               Third, with regard to Verizon's contention that fees
ous other defendants, and in awarding attorneys' fees to         of up to $137,000 dealing with plaintiffs' litigation with
plaintiffs for amounts expended in their litigation against      the City should be deducted from the award, it was well
the City in an ostensibly unrelated action. We disagree.         established below that plaintiffs' litigation against the
                                                                 City was directly related to its case against Verizon.
     First, we note that plaintiffs requested an award of
                                                                 City's responses to discovery were deemed crucial by
attorneys' fees in the amount of "$277,677.92 based on
                                                                 plaintiffs in establishing Verizon's liability. Plaintiffs'
billing rates of $550 for the partner, $95 for the paraleg-
                                                                 original complaint, filed November 7, 2006, did not
al, $275 to $250 for the associate." Contrary to Verizon's
                                                                 name City as a defendant. Plaintiffs did not successfully
contention in its reply brief, the court did not award the
                                                                 amend their complaint to name City as a defendant until
attorneys' fees at the rate plaintiffs' requested. 7 Rather,
                                                                 their third amended complaint, filed on July 17, 2008.
the court "reduced the partner's rate to $350. I have re-
                                                                 City noted that it was not brought in as a defendant until
duced the associate's rate to $200. And I have reduced
                                                                 after plaintiffs had already engaged in discovery. Plain-
the rate on the paralegal to $75." The court additionally
                                                                 tiffs dismissed City as a defendant [*29] on December
noted that it reduced the requested amount by an admit-
                                                                 26, 2008, so City was a defendant in the matter for less
ted double charge for $3,211. Thus, in its award of
                                                                 than six months. Plaintiffs alleged they "only amended
$185,674.22 in attorneys' fees, $92,003.70 less than that
                                                                 their Complaint to implead the City because of Verizon's
requested, the court demonstrated that it did not simply
                                                                 defense in this litigation. Verizon . . . claimed that the
"rubber stamp" plaintiffs' requested attorneys' fees.
                                                                 City ha[d] responsibility for the sewage backup because
[*27] Rather, it appropriately reviewed the motion for
                                                                 the sewer main was clogged." Thus, with regard to plain-
attorneys' fees. As discussed above, that award included
                                                                 tiffs' claim for attorneys' fees with respect to their efforts
attorneys' fees incurred over the course of more than four
                                                                 directed at City, plaintiffs more than adequately estab-
years of litigation during which the parties engaged in
                                                                 lished that such efforts were the direct result of Verizon's
extensive discovery. The court acted in proper exercise
                                                                 behavior both before and after litigation in the current
of its direction.
                                                                 matter began. Therefore, the court acted well within its
                                                                 discretion in refusing Verizon's request that the attorney
                                                                                                                       Page 8
                                           2011 Cal. App. Unpub. LEXIS 1908, *


fee award be reduced by amounts attributable to plain-           filed a separate memorandum of costs requesting
tiffs' litigation against City.                                  $12,829.
                                                                      At the hearing on Verizon's motion to tax costs, the
2. COSTS
                                                                 court concluded that "Chino Municipal Code 12.02.030
    Verizon contends the court abused its discretion in          gives [plaintiffs] the right to seek expert fees." Plaintiffs'
denying its motion to tax plaintiffs' costs in the amount        counsel noted that he relied upon his [*32] expert wit-
of $12,829. Verizon's principal contention is that the           ness's report in deposing all the potential witnesses. City
court erred in awarding the amount of $6,500 in expert           Municipal Code Chapter 12.02 specifically authorizes
witness fees. Verizon again complains that the court             expert witness fees in the event of litigation. The court
erred in failing to divide the costs between the various         agreed that the hiring of such a witness was proper: "I
defendants. We disagree.                                         think they were entitled to hire an expert. I think an ex-
                                                                 pert is vitally important in this type of case, not knowing
     "'[S]ection 1033.5, enacted in 1986, codified exist-
                                                                 what was happening. They are, pursuant to [Code of
ing [*30] case law and set forth the items of costs
                                                                 Civil Procedure] section 1032[,] [subdivision] (a)(4), a
which may or may not be recoverable in a civil action.
                                                                 prevailing party in this matter. . . . I think hiring an ex-
[Citation.]' [Citation.] An item not specifically allowable
                                                                 pert was reasonable . . . ." The court noted, "[t]hose costs
under subdivision (a) nor prohibited under subdivision
                                                                 were minimal here." We find no abuse of discretion in
(b) may nevertheless be recoverable in the discretion of
                                                                 the court's denial of Verizon's motion to tax the costs of
the court if 'reasonably necessary to the conduct of the
                                                                 the expert witness. The municipal code's explicit provi-
litigation rather than merely convenient or beneficial to
                                                                 sion for such fees, the reasonable amount of the claimed
its preparation.' (§ 1033.5, subd. (c)(2).)" (Ladas v. Cali-
                                                                 fee, and plaintiffs' establishment of the expert witness's
fornia State Auto. Assn. (1993) 19 Cal.App.4th 761,
                                                                 reasonable necessity in the litigation support the court's
773-774) "Whether a cost item was reasonably necessary
                                                                 order.
to the litigation presents a question of fact for the trial
court and its decision is reviewed for abuse of discretion.           Yet again, we note that the court committed no error
[Citation.] However, because the right to costs is go-           in declining to divide the costs between Verizon and the
verned strictly by statute [citation] a court has no discre-     other defendants who were no longer parties to the ac-
tion to award costs not statutorily authorized. [Cita-           tion: "I don't have the other defendants in front of me.
tions.]" (Id. at p. 774.) Section 1033.5, subdivision (a)(8)     You know the age-old saying that whoever settles [*33]
specifically permits the "[f]ees of expert witnesses or-         first usually gets the better deal when there's multiple
dered by the court."                                             defendants in the case. They settled out first. They
                                                                 reached their deal. I don't have them before me now. I
     "'[I]f the items appear to be proper charges, the veri-
                                                                 can't order them to pay a part of the costs." Any division
fied memorandum is prima facie evidence that the costs,
                                                                 of the costs is an issue to be resolved between Verizon
expenses and services therein listed were necessarily
                                                                 and its subcontractors.
incurred by the [party] [citations], and the burden of
showing that [*31] an item is not properly chargeable
                                                                 DISPOSITION
or is unreasonable is upon the [objecting party].' [Cita-
tions.]" (Nelson v. Anderson (1999) 72 Cal.App.4th 111,               The judgment is affirmed. Verizon is ordered to pay
131.) "The court's first determination, therefore, is            plaintiffs' attorney fees as a sanction for plaintiffs' de-
whether the statute expressly allows the particular item,        fense of the frivolous motion to augment, in the amount
and whether it appears proper on its face. [Citation.] If        of $900, payable in its entirety on or before 20 days after
so, the burden is on the objecting party to show them to         the remittitur is issued. Plaintiffs are awarded their costs
be unnecessary or unreasonable. [Citation.]" (Ibid.)             on appeal.
     Plaintiffs initially included an itemization of its costs       /s/ MILLER
in the amount of $12,786 in its motion for attorneys' fees
                                                                     J.
filed on May 4, 2009. At the subsequent hearing, after
granting attorneys' fees to plaintiffs, the court requested          We concur:
that plaintiffs file a separate memorandum of costs not-
                                                                     /s/ KING
ing, "I want specifics. There are certainly some areas
where those costs may be taxed, but . . . the deposition             Acting P. J.
costs were extremely high, and there was another portion
that was extremely high." On June 5, 2009, plaintiffs'               /s/
                                                                     CODRINGTON J.

				
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