Ghannoum v. Sevier CA2/2 ( 2021 )

Filed 4/7/21 Ghannoum v. Sevier CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 TWO
SAMIR GHANNOUM et al., B304026
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. EC064044)
v.
JULIA K. SEVIER,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, William D. Stewart, Judge. Affirmed.
Law Office of Zulu Ali & Associates and Donovan Fleming
for Plaintiffs and Appellants.
Anthony A. Sears for Defendant and Respondent.
Plaintiffs and appellants Samir Ghannoum (Samir) and
Mohamed Ghannoum (Mohamed)1 (collectively, plaintiffs) appeal
from a post-judgment order awarding defendant and respondent
Julia K. Sevier (defendant) $93,913.85 in attorney fees following
a jury trial and entry of judgment in defendant’s favor on all of
plaintiffs’ causes of action. We affirm the attorney fees order.
BACKGROUND
On March 9, 2012, defendant and Mohamed signed a
residential lease agreement (the lease) for a room in a house
owned by plaintiffs. Paragraph 37 of the lease contained a
mediation provision, under which the parties agreed to “mediate
any dispute or claim arising between them out of this Agreement,
or any resulting transaction, before resorting to court
action. . . . If, for any dispute or claim to which this paragraph
applies, any party commences an action without first attempting
to resolve the matter through mediation, or refuses to mediate
after a request has been made, then that party shall not be
entitled to recover attorney fees, even if they would otherwise be
available to that party in any such action.” Paragraph 38 of the
lease provided that, subject to paragraph 37, the prevailing party
in any action “shall be entitled to reasonable attorney fees and
costs.”
Pursuant to the lease mediation provisions, plaintiffs sent a
written demand for mediation to defendant on April 2, 2015.
Plaintiffs’ demand was sent by mail to an address in Virginia and
stated that plaintiffs would file an action for conversion and
trespass to chattels if defendant refused to mediate or failed to
1 Because appellants share the same surname, we refer to
them individually by their first names to avoid confusion.
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respond within seven days. Defendant, through her attorney,
responded in a letter dated April 14, 2015 stating that she was
agreeable to mediation.
However, plaintiffs did not proceed with mediation but filed
this action against defendant for conversion and trespass to
chattels on May 7, 2015. Plaintiffs alleged in their complaint
that they rented a room to defendant on March 9, 2012, and
evicted her in May 2013. Plaintiffs further alleged that when
defendant moved out of the premises, she removed and damaged
$39,300 worth of plaintiffs’ property.
After a two-day trial, the jury returned a verdict in
defendant’s favor on all causes of action. Defendant filed a
motion for attorney fees as the prevailing party, seeking fees in
the amount of $116,527.10.
In opposition to the motion, plaintiffs argued that
defendant had not complied with their mediation demand and
that she was therefore not entitled to recover attorney fees.
Plaintiffs further argued that the amount of fees claimed was
unreasonable.
Defendant’s motion for attorney fees was heard on
November 15, 2019. At the conclusion of the hearing, the trial
court issued a written ruling awarding defendant $93,913.85 in
attorney fees. The record on appeal contains no reporter’s
transcript of that hearing.
Plaintiffs filed a motion for reconsideration on
November 25, 2019, arguing, for the first time, that because
Samir was not a signatory to the lease, she should not be liable
for any portion of the attorney fees. Defendant’s opposition to the
motion included a copy of the deed to the rental premises,
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showing that at the time of the lease, plaintiffs owned the
property as “husband and wife as joint tenants.”
Plaintiffs’ motion for reconsideration was heard and denied
on January 3, 2020. The record contains no reporter’s transcript
of the hearing. The trial court’s written ruling states that
because plaintiffs failed to comply with the affidavit
requirements of Code of Civil Procedure section 1008, and failed
to explain why the issue for reconsideration was not raised
during the previous motion for attorney fees, the court lacked
jurisdiction to consider plaintiffs’ motion.
This appeal followed.
DISCUSSION
Plaintiffs contend the attorney fees order should be
reversed as to Samir because she was not a signatory to the lease.
Plaintiffs further contend the attorney fees award was improper
because the causes of action on which defendant prevailed --
conversion and trespass to chattel—did not arise under the lease.
I. Fees against nonsignatory
Plaintiffs failed to argue in their opposition to defendant’s
motion for attorney fees that a fee award was improper against
Samir, a nonsignatory to the lease. Their failure to do so
forfeited the claim on appeal. “Failure to raise specific challenges
in the trial court forfeits the claim on appeal. ‘“‘[I]t is
fundamental that a reviewing court will ordinarily not consider
claims made for the first time on appeal which could have been
but were not presented to the trial court.’ Thus, ‘we ignore
arguments, authority, and facts not presented and litigated in the
trial court. Generally, issues raised for the first time on appeal
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which were not litigated in the trial court are waived.
[Citations.]’” [Citation.]’” (Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163
Cal.App.4th 550, 564 (Premier Medical).)
Plaintiffs’ unsuccessful attempt to raise the nonsignatory
argument in their motion for reconsideration did not avert the
forfeiture. The trial court found that because plaintiffs failed to
comply with the affidavit requirements of Code of Civil Procedure
section 1008, subdivision (a), and failed to indicate to the trial
court the reasons the nonsignatory argument was not raised
during the previous, fully briefed, attorney fees motion, the trial
court lacked jurisdiction to consider the motion for
reconsideration. The nonsignatory issue was not litigated in the
trial court. It was accordingly forfeited on appeal. (Premier
Medical, supra, 163 Cal.App.4th at p. 564.)
II. Causes of action arising under the lease
Plaintiffs argue for the first time in this appeal that the
conversion and trespass to chattel causes of action on which
defendant prevailed were not claims “arising out of” the lease
within the meaning of the lease’s attorney fees provision. Their
failure to raise this argument in the trial court below forfeits the
issue on appeal. (Premier Medical, supra, 163 Cal.App.4th at
p. 564.)
Even absent such forfeiture, the argument is not well
taken. Contractual attorney fees may be recovered on a claim for
conversion based on a contract. (Mustachio v. Great Western
Bank (1996) 48 Cal.App.4th 1145, 1151.) The allegations in
plaintiffs’ complaint indicate that their claims for conversion and
trespass to chattel are based on the lease. Plaintiffs alleged the
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existence of a lease between them and defendant, that they
evicted defendant from the premises, and that defendant
removed and damaged plaintiffs’ property when vacating the
premises. The lease states that defendant was obligated upon
vacating the premises to return the premises, including any
furniture, furnishings, appliances, landscaping, and fixtures
therein, in the same condition as at commencement of the lease
term. The lease further states that breach of these obligations
shall constitute breach of the lease. Plaintiffs’ prayer for relief in
their complaint included a request for attorney fees. The causes
of action on which defendant prevailed were claims arising under
the lease. Defendant accordingly was entitled to recover her
attorney fees as the prevailing party on those claims.
III. Other arguments
We do not address arguments plaintiffs raise for the first
time in their reply brief – (1) defendant’s failure to timely
respond to plaintiffs’ demand for mediation waived her claim for
attorney fees under the lease, (2) the fees awarded were excessive
and unconscionable, and (3) the trial court abused its discretion
by not adjudicating the nonsignatory issue in plaintiffs’ motion
for reconsideration. Plaintiffs waived these arguments by failing
to raise them in their opening brief on appeal. (Shade Foods, Inc.
v. Innovative Products Sales & Marketing, Inc. (2000) 78
Cal.App.4th 847, 894, fn. 10.)
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DISPOSITION
The order awarding defendant her attorney fees is
affirmed. Defendant shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________, J.
CHAVEZ
We concur:
_______________________, P. J.
LUI
________________________, J.
ASHMANN-GERST
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