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Page 1 1 of 1 DOCUMENT 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 LEXIS 1908 March 14, 2011, Filed NOTICE: NOT TO BE PUBLISHED IN OFFICIAL July 17, 2008, plaintiffs filed a third amended complaint REPORTS.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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