Corrigan v. Kent CA2/6 ( 2014 )

Filed 12/1/14 Corrigan v. Kent CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PATRICK CORRIGAN et al., 2d Civil No. B247707
(Super. Ct. No. 1384882)
Plaintiffs and Respondents, (Santa Barbara County)
v. ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
JILL DORE KENT,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on November 12, 2014, be modified as follows:
On the listing of counsel page, add the following: "Scafide Law Firm, PC, James F.
Scafide," so that the listing of counsel reads:
Scafide Law Firm, PC, James F. Scafide; Buynak, Fauver, Archbald
& Spray, LLP, James F. Scafide, Shannon E. DeNatale for Defendant and
Appellant.
McCarthy & Kroes, R. Chris Kroes, Matthew F. Janowicz for
Plaintiffs and Respondents.
There is no change in the judgment.
Filed 11/12/14 Corrigan v. Kent CA2/6 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PATRICK CORRIGAN et al., 2d Civil No. B247707
(Super. Ct. No. 1384882)
Plaintiffs and Respondents, (Santa Barbara County)
v.
JILL DORE KENT,
Defendant and Appellant.
Defendant Jill Dore Kent appeals an order awarding Patrick Corrigan and
Margaret Mary Ingalls attorney fees in their injunctive relief action against her. Plaintiffs
alleged Kent violated a city view ordinance, and they obtained a stipulated judgment in
their favor. The trial court awarded plaintiffs' attorney fees. We affirm.
FACTS
Plaintiffs filed a complaint for injunctive relief against Kent, "individually
and as [t]rustee" of the Jill Dore Kent Living Trust. They alleged that Kent owned a
home next to their property, on which a large oak tree on Kent's property obstructed their
view of the ocean, a violation of Santa Barbara City view ordinance No. 5220. The
ordinance established "the right of a real property owner to preserve scenic views and
access to sunlight free from unreasonable obstructions caused by the growth of trees
under circumstances where such views and sunlight access existed prior to the growth of
the unreasonable obstruction." Plaintiffs sought an order reducing the size of Kent's tree.
In her answer, Kent alleged she had a right to maintain that tree because the
relief sought was not consistent with the city's view ordinance.
Plaintiffs propounded requests for admissions to Kent. Request No. 5
asked her to admit that plaintiffs "have satisfied the procedural prerequisites of the VIEW
ORDINANCE in order to file their COMPLAINT." Requests Nos. 7-9 asked Kent to
admit that the growth of her oak tree obstructed plaintiffs' scenic views. Request No. 17
asked her to admit that she "intentionally maintained the OAK TREE in order to cultivate
its growth into the scenic views claimed by PLAINTIFFS in their COMPLAINT."
Request No. 12 asked her to admit that "the reduction of the OAK TREE" on her
property within the specifications plaintiffs sought "does not violate the limitations for
reduction of the OAK TREE as set forth under the TREE PRESERVATION
ORDINANCE." Other requests asked her to admit that the reduction in the size of the
tree they sought did not violate the City's view ordinance and would not significantly
alter or damage the tree.
Kent did not file a response to the requests for admissions by the October 5,
2012, deadline. On November 29, 2012, the trial court granted plaintiffs' motion to deem
those requests admitted.
Kent served a notice to take the deposition on plaintiff Patrick Corrigan.
Her counsel filed a motion to continue discovery cutoff dates and to continue the trial
date contending he needed more time for discovery. On December 14, 2012, the trial
court denied Kent's motion and stated, "In view of the order deeming the requests for
admission admitted, the court sees no reason to continue the matter since most of the
substantive issues have been resolved." (Italics added.) "'We cannot permit the courts to
become a sanctuary for chronic procrastination and irresponsibility . . . .'"
Kent's counsel did not appear for the "readiness & settlement" conference.
On the date set for trial, the parties settled the case and signed a stipulation
"for entry of judgment." The stipulation provided: 1) plaintiffs were entitled "to view
restoration and view restoration remedies provided [in Ordinance No. 5220]"; 2) the
2.
height of the oak tree on Kent's property would be reduced within five "business days" by
a "supervising arborist"; 3) Kent would provide access to her property for that purpose.
The stipulation also contained an attorney fee provision designating plaintiffs as the
"prevailing party in this action." The trial court approved the stipulation and entered
judgment based on its terms.
Several weeks later, plaintiffs filed a motion to "enforce" the "settlement
agreement" and judgment. They said Kent denied access to the supervising arborist and
deliberately obstructed the agreed reduction of the oak tree.
In her opposition, Kent claimed the stipulated judgment conflicted with city
ordinances, and therefore the trial court "has no jurisdiction to order the pruning or
cutting of trees governed by the Tree Preservation Ordinance."
The trial court ruled that Kent's objections were without merit and that
reducing the size of the oak tree was not "prohibited by any City ordinance." It said
Kent's "refusal to permit the reduction in the subject oak tree ordered in the court's
judgment indicates that she did not intend to permit the reduction to which she agreed
and which the court ordered." The court granted plaintiffs' motion to enforce the
settlement agreement and judgment. Kent appealed that order. She abandoned that
appeal less than three weeks later.
Plaintiffs filed a motion for attorney fees. Kent did not file an opposition.
At the hearing on the motion, Kent's trial counsel left word that he was in the courthouse
handling a criminal matter and would be "back at 10:30." He did not return at that time.
The trial court continued the hearing to the afternoon session. When the court called the
case that afternoon, Kent's counsel was not present.
The trial court ruled there were two grounds to support an award of
attorney fees to plaintiffs: 1) Kent's actions required plaintiffs to litigate issues that had
been deemed admitted in the requests for admissions (Code Civ. Proc. § 2033.420, subd.
(a)), and 2) the stipulated judgment contained an attorney fee provision. It granted the
motion and awarded attorney fees in the amount of $27,524.50.
3.
DISCUSSION
Entitlement to Attorney Fees
Kent contends the trial court erred by awarding attorney fees to plaintiffs.
The parties disagree as to whether fees could be awarded under Code of Civil Procedure
section 2033.420, subdivision (a) for a discovery violation. We need not decide that
issue. There is an attorney fee provision in the stipulated judgment.
Attorney Fees Authorized by the Stipulation for Judgment
Kent contends attorneys fees may not be awarded based on the attorney fee
clause in the stipulation for judgment. We disagree.
"[P]arties may validly agree that the prevailing party will be awarded
attorney fees incurred in any litigation between themselves . . . ." (Palmer v. Shawback
(1993) 17 Cal.App.4th 296, 299.) A settlement or a written stipulation in litigation may
provide the basis for the prevailing party to be awarded attorney fees. (County of
Sacramento v. Sandison (2009) 174 Cal.App.4th 646, 649-651.)
Here the stipulation for judgment has an attorney fee provision. It provides
in relevant part, "[T]he prevailing Party shall be entitled to collect, in addition to all other
relief, its reasonable attorney fees and costs." [Italics added] "In the event Plaintiffs are
required to serve any notice on Defendant because of breach of the terms of this
Judgment by Defendant, then shall Plaintiffs be entitled to their reasonable attorney fees
and costs related to the preparation and service of such notice." It also provides, "With
regard to the Plaintiffs' claim for attorney fees and costs arising out of this pending
action, Plaintiffs are a prevailing party in this action, and their claim and entitlement to
such fees and costs shall be resolved by Plaintiffs' filing a Notice of Motion for Fees and
Costs, and Defendant shall have the right to lodge any objections to the items claimed.
Once determined by the Court, the fees and costs approved will be added to this
Judgment." (Italics added.)
These provisions show the parties agreed that the prevailing party was
entitled to attorney fees and that plaintiffs had prevailed. They also agreed plaintiffs
4.
were entitled to fees for having to file a motion to enforce the judgment. Courts will
enforce the parties' "freedom to contract" where they stipulate to an attorney fee
provision for the prevailing party as part of a settlement agreement. (County of
Sacramento v. Sandison, supra, 174 Cal.App.4th at p. 651.) Moreover, here the right to
fees was approved by the court when it signed the stipulation for judgment. The trial
court did not err by ruling plaintiffs were entitled to attorney fees.
Were the Fees Excessive?
Kent contends the award of attorney fees was excessive. The trial court
awarded $27,524.50 in fees.
An appellant has a burden to demonstrate that the court abused its
discretion in awarding fees. "[T]he trial court has broad authority to determine the
amount of a reasonable fee." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1095.) "'The "experienced trial judge is the best judge of the value of professional
services rendered in his court . . . ."'" (Ibid.) Consequently, "'[t]he amount to be awarded
in attorney's fees is left to the sound discretion of the trial court.'" (Ibid.) That
determination "'will not be disturbed unless the appellate court is convinced that it is
clearly wrong.'" (Ibid.)
The motion for attorney fees was supported by a declaration from plaintiffs'
counsel. Counsel attached an itemized time record showing the specific services
rendered, the dates and time spent for each service, and the hourly rates. As a general
rule, counsel should normally recover a fee for "all hours reasonably spent." (Vo v. Las
Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 446.)
Kent claims the services were duplicative and unnecessary. But she did not
object or contest the rates, the hours, or the services in the trial court. She did not file an
opposition to the motion for fees, and her counsel did not appear at the hearing. She
made no showing to permit the trial court to determine why fees were excessive. That is
fatal to her newly raised objections to the award on appeal. (Premier Medical
Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th
5.
550, 564 ["Failure to raise specific challenges in the trial court forfeits the claim on
appeal" regarding alleged excessive attorney fees]; City of Santa Paula v. Narula (2003)
114 Cal.App.4th 485, 494 [failure to raise objections about unnecessary attorney fees in
the trial court waives the issue on appeal]; Haskell v. Carli (1987) 195 Cal.App.3d 124,
129 [objections must first be raised in the trial court].) The initial judgment was the
result of a stipulation. But that did not occur until the day of trial. Plaintiffs should not
be denied fees for time reasonably spent preparing for that trial and responding to Kent's
challenges to the judgment. The size of the award is not unreasonable given the effort
required to obtain the judgment and defend it.
We have reviewed Kent's remaining contentions and we conclude she has
not shown error.
Attorney Fees on Appeal
Plaintiffs contend they are entitled to an award of attorney fees for this
appeal. They claim "[t]his appellate proceeding arose out of the terms of the Stipulation
and Judgment" entered by the trial court.
But any claim for such fees should initially be raised in the trial court.
(Palmer v. Shawback, supra, 17 Cal.App.4th at p. 301; Citizens Assn. for Sensible
Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 176.)
The order is affirmed. Costs on appeal are awarded to plaintiffs
(respondents on appeal).
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
6.
Colleen K. Sterne, Judge
Superior Court County of Santa Barbara
______________________________
Buynak, Fauver, Archbald & Spray, LLP, James F. Scafide, Shannon E.
DeNatale for Defendant and Appellant.
McCarthy & Kroes, R. Chris Kroes, Matthew F. Janowicz for Plaintiffs and
Respondents.
7.