Robinson v. U-Haul Co. of California ( 2016 )

Filed 10/18/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
LEIGH ROBINSON,
Plaintiff and Respondent,
A141396, A145828
v.
U-HAUL COMPANY OF CALIFORNIA, (Solano County
et al., Super. Ct. No. FCS031532)
Defendants and Appellants.
I. INTRODUCTION
Nearly ten years ago, appellant U-Haul Co. of California (UHC)1 sued respondent
Leigh Robinson, one of UHC’s independent dealers, for breach of contract and unfair
competition after he terminated their contract and began renting Budget trucks from what
was formerly a UHC dealership (Robinson I). UHC alleged a covenant not to compete in
the UHC dealer contract prohibited Robinson from offering the products of UHC’s
competitors while a Yellow Pages ad, running at UHC’s expense, was still promoting
Robinson’s business as a U-Haul dealership. Robinson filed a cross-complaint seeking to
1
Appellant U-Haul International, Inc. (UHI) is UHC’s corporate parent. The
parent and subsidiary are sometimes referred to collectively as “U-Haul” or “the U-Haul
defendants.”
1
avoid enforcement of the covenant not to compete by, among other things, seeking a
judicial declaration that it was void due to fraud in the inducement.2
After UHC lost its request for a preliminary injunction and dismissed its
complaint, Robinson filed a separate action alleging malicious prosecution by UHC in the
prior lawsuit and violation by U-Haul of Business and Professions Code3 section 17200,
et seq., also known as the unfair competition law (UCL) (Robinson II). He based his
UCL cause of action on UHC’s inclusion of the covenant not to compete in its dealer
contracts, which he alleged was illegal, and its aggressive enforcement of that provision
through litigation and threats of litigation. A jury awarded Robinson more than $195,000
in compensatory damages for malicious prosecution. The trial court later issued a
permanent injunction prohibiting U-Haul from initiating or threatening to initiate judicial
proceedings to enforce the noncompetition covenant in California. It awarded Robinson
more than $800,000 in attorney’s fees as a private attorney general on his UCL cause of
action.
In their consolidated appeals from Robinson II, the U-Haul defendants argue
(1) the trial court committed reversible error in issuing a permanent injunction because
UHC had voluntarily abandoned enforcement of the covenant not to compete in
California, and (2) the court abused its discretion in awarding attorney’s fees to Robinson
as a private attorney general because Robinson’s request for fees was late-filed. We
conclude the injunction was properly entered and the court did not abuse its discretion in
allowing Robinson to file a late motion for attorney’s fees. We therefore affirm the
judgment and the award of fees.
2
We hereby grant Robinson’s request for judicial notice filed April 8, 2016.
(Evid. Code, §§ 452, 459.)
3
Subsequent citations to code sections are to the Business and Professions Code,
unless otherwise specified.
2
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Relationship Between the Parties
In 2001, Robinson purchased Downtown Self Storage, a self-storage business in
Fairfield, California. On August 1, 2001, he signed a standard form dealer contract with
UHC and renewed the contract three years later. Under the dealer contract, UHC and
Robinson agreed that he would rent U-Haul vehicles and equipment at his storage facility
and they would share the rental income. UHC also agreed to promote and advertise
Robinson’s storage business as a U-Haul rental location, including Yellow Pages
advertisements using the U-Haul trademark.
UHC’s standard dealer contract included a “Noncompetition Covenant” requiring
Robinson to refrain from competing with UHC by representing U-Haul’s competitors
while the Yellow Pages ad remained in print: “Dealer warrants, covenants and agrees
that . . . Dealer . . . shall not represent or render any service either on its own behalf or in
any capacity . . . for the duration of the then-existing or contracted-for telephone
directory listing(s) for the Dealer Location.” An addendum to the contract extended the
“Noncompetition Covenant” for another year after expiration of the advertising, which
could leave a dealer unable to rent competitors’ trucks for two years or more. Covenants
not to compete are, with limited exceptions, illegal under California law. (§ 16600, et
seq.; see Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 945.)
Between 2001 and 2006, UHC advertised Downtown Self Storage in the Fairfield
and Vacaville area Yellow Pages as a place where consumers could find U-Haul rental
vehicles and equipment. UHC paid for the dealer ads on an annual basis, placing the
orders several months before the directory listings were published.
On September 6, 2006, a month after UHC had renewed the annual Yellow Pages
advertising (and after it was too late to cancel the ads), Robinson sent a letter to UHC
terminating their dealer contract. A few days later, Robinson opened a Budget rental
truck dealership at Downtown Self Storage. UHC responded by writing to Robinson,
warning him not to compete with UHC while the Yellow Pages ad was running. In the
letter UHC said it was the “policy of U-Haul to aggressively protect its legitimate
3
business interests by seeking to enforce the non-competition provisions” of the dealer
contract, and that it would, “without hesitation, . . . consider any and all remedies
available to it at law and in equity.”
B. The Proceedings in Robinson I
In December 2006, UHC filed its complaint in Robinson I in Solano County
Superior Court against Robinson in docket No. FCS028840. UHC asserted causes of
action for unfair competition, breach of contract, and specific performance. UHC’s
lawsuit alleged that Robinson was impermissibly offering Budget trucks for rent at the
same time that UHC’s Yellow Pages ad identified Robinson’s business as a U-Haul
dealership. In addition to damages, restitution, an accounting, attorney’s fees and costs,
UHC sought preliminary and permanent injunctions requiring Robinson to discontinue
his relationship with Budget and to refrain from entering into business with any other
competitor of UHC until a year after the Yellow Pages ads expired.
Robinson filed a cross-complaint for declaratory relief and breach of contract. He
alleged UHC had breached the dealer contract in various material ways, relieving him of
the obligation to comply with the covenant not to compete. He further alleged the
covenant not to compete was void based on fraud in the inducement, and he sought a
judicial declaration to that effect.
In June 2007, UHC filed a motion for a preliminary injunction, and Robinson
opposed it, primarily based on the theory that the noncompetition covenant was void
under section 16600. The court denied UHC its requested preliminary injunction.
Approximately three weeks later, UHC dismissed its complaint in Robinson I. According
to a declaration by Robinson’s lawyer, UHC dismissed its complaint in an effort to avoid
having to pay Robinson’s attorney’s fees. In mid-November 2007, UHC filed a motion
for summary judgment on Robinson’s cross-claims, together with the supporting
declaration of Jeff Singleton (a UHC management level employee). Singleton stated
under oath that UHC had dismissed its complaint against Robinson and would not “re-file
or reinitiate any proceedings against Downtown [Self Storage] seeking to enforce the
4
noncompetition provisions.” UHC’s motion for summary judgment argued that the
cross-claims were therefore moot.
Robinson dismissed his cause of action for breach of contract, but maintained his
action for declaratory relief. Two weeks after UHC filed its summary judgment motion,
he filed a motion for summary judgment on his declaratory relief cause of action, asking
the court to declare UHC’s noncompetition covenant void. As the court would later
observe, Robinson had by that time developed the argument that UHC had a “pattern of
threatening to sue, and/or filing lawsuit[s], against former dealers with identical non-
competition covenants, with no evidence or reasonable expectation of use of trade secrets
by these former dealers, that would legally justify attempted enforcement of the
covenants.” Robinson sought declaratory relief despite UHC’s claim that the dispute was
moot because, Robinson argued, UHC’s wrongdoing was “capable of repetition, yet
evading review.”
In February 2008, the trial court (Judge Paul L. Beeman) in Robinson I denied
Robinson’s motion for summary judgment on his declaratory relief cause of action in part
because it was moot in light of the fact that UHC had waived enforcement of the
noncompetition clause against Robinson. As for Robinson’s contention that UHC’s
misconduct was “capable of repetition, yet evading review,” the court ruled that
Robinson had failed to produce “sufficient admissible evidence that U-HAUL had, or
currently has, cases against other dealers pending in which U-HAUL attempted or is
attempting to enforce non-competition covenants without a reasonable expectation that
the dealer used or is using its trade secrets.”
UHC’s motion for summary judgment remained pending at that time, as Robinson
was seeking to reopen discovery to locate additional litigation between UHC and its
dealers. Robinson claimed he had found through his own investigation a number of
lawsuits against dealers that UHC had failed to disclose in discovery. Robinson was
granted limited additional discovery on that basis in May 2008. UHC’s summary
judgment motion in Robinson I was never ruled upon because Robinson ultimately
dismissed his cross-complaint for declaratory relief before there was a ruling. UHC
5
unsuccessfully sought recovery of attorney’s fees in Robinson I, with the court
determining in May 2013 that UHC was not the prevailing party.
C. The Trial in Robinson II
On June 9, 2008, while Robinson I was still pending, Robinson filed Robinson II
as a class action in docket No. FCS031532.4 He alleged causes of action against the U-
Haul defendants for malicious prosecution and violation of the UCL. Through his UCL
claim, Robinson sought to permanently enjoin the U-Haul defendants from including the
covenant not to compete in future U-Haul dealer contracts in California, to require them
to notify their current dealers that the covenant was void and unenforceable, and to order
them to dismiss any action in any court in California through which they sought to
enforce the covenant.
In August 2013, the court tried the malicious prosecution cause of action in
Robinson II together with the UCL cause of action before a jury, with the trial structured
so that the jury would decide only the malicious prosecution action, while the court
would decide the UCL claim. (See Hodge v. Superior Court (2006) 145 Cal.App.4th
278, 284–285 [no jury trial on UCL claims].) At the conclusion of the trial, the court
determined as a matter of law that the noncompetition covenant was illegal in California
and that U-Haul knew this at the time it inserted the noncompetition clause into its dealer
contracts. The judge said: “First off, the clause is void and unenforceable as a matter of
law. [Section] 16600 was―the law predated these events herein by many, many years.
Their only reason to put a void contract clause in a contract is to mislead people. U-Haul
knew when it put that in its contract that [section] 16600 of the [Business and
Professions] [C]ode was in existence. That statute was clear. [¶] Why would you
possibly put something in a contract where the law says it’s void? You do that so you
can cause somebody to think that that clause is, in fact, valid when it isn’t. So it is void
and unenforceable as a matter of law.” U-Haul does not challenge this ruling on appeal.
4
The trial court denied Robinson’s motion for class certification. The action then
proceeded as an individual action.
6
Throughout both Robinson I and the trial in Robinson II, UHC attempted to defend
its noncompetition covenant, claiming Robinson had misappropriated UHC’s trade name
and trade secrets. (See Muggill v. Reuben H. Donnelley Corp. (1965) 62 Cal.2d 239,
242; Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853,
863.) On August 22, 2013, the jury found, among other things, that UHC did not
reasonably believe Robinson was misusing trade secrets or confidential information when
it filed Robinson I and that U-Haul did not reasonably believe Robinson’s renting Budget
trucks would confuse its customers while the Yellow Pages ad was running. The jury
awarded Robinson compensatory damages of $195,310 on his malicious prosecution
claim, but awarded no punitive damages, and the court entered judgment thereon.
In September and October 2013, the parties submitted briefing and additional
supporting documentation on Robinson’s UCL cause of action. Robinson argued he was
entitled to judgment on that claim, asked the court to grant an injunction, and requested
attorney’s fees. Robinson introduced into evidence an order of the Federal Trade
Commission (FTC) dated in 1987 that prohibited UHI and its subsidiaries from initiating
or participating in any judicial or administrative proceeding in which its “primary
purpose [was] to harass or injure any competitor or potential competitor.” Robinson also
presented evidence of four lawsuits that had been filed in California by UHC between
1995 and 2005 against its former dealers in which it attempted to enforce the
noncompetition covenant.
On October 1, UHC filed a motion for judgment on the UCL cause of action,
arguing an injunction was unauthorized because Robinson lacked standing under the
UCL and such claims were in any case moot because UHC had abandoned all attempts to
enforce the noncompetition covenant in California. In support of its position, UHC filed
the declaration of Kristine Campbell (in-house counsel for UHC) attesting: “In 2010,
UHC modified its Dealer Contracts to make the noncompetition clause void where
prohibited.” She added, “Since the dismissal of Robinson I, UHC has not attempted to
enforce the noncompetition clause in California and currently has no pending cases
seeking enforcement of the noncompetition clause in California.” And finally, “Since
7
2010, UHC’s corporate policy has been, and continues to be, that it will neither threaten
nor bring any action against its independent dealers to enforce the covenant not to
compete contained in the dealer contract. UHC has advised its dealers of this policy.”
Robinson’s attorneys, in fact, were able to turn up anecdotal evidence from several
dealers who claimed they had not been so notified.
On January 17, 2014, Judge Harry S. Kinnicutt filed his “Order after Hearing on
Plaintiff’s Motions.” The judge found in favor of Robinson on his UCL claim but limited
relief to “issuance of a permanent injunction against UHAUL prohibiting it from
instituting, or threatening to institute, judicial proceedings to enforce against any former
or current dealers the non-competition covenant in its dealer contracts.” Judge Kinnicutt
ruled Robinson’s UCL claim was not moot because it presented an issue of broad public
interest that was likely to recur. Although the court did not expressly rule that Robinson
met the standing requirements of section 17204, it implicitly rejected U-Haul’s argument
that he did not.
On January 22, 2014, the court entered its final judgment in favor of Robinson on
both the malicious prosecution and UCL claims, and the clerk served notice of entry on
January 24, 2014. Although Robinson was awarded the damages found by the jury in the
malicious prosecution cause of action, the only remedy provided under the UCL was the
injunction described above. In the final judgment the court ordered that Robinson “shall
also recover attorneys’ fees against” U-Haul on the UCL claim, but the court left blank
spaces where the amounts of such fees were apparently intended to be designated. On
March 21, 2014, the U-Haul defendants timely appealed from the judgment.
After further proceedings, which we shall discuss in section III.B., post, on
May 14, 2015, the court found, under Code of Civil Procedure section 1021.5 (section
1021.5), Robinson was entitled to an award of $834,008.09 in attorney’s fees as a private
attorney general. U-Haul timely appealed from the trial court’s order granting
Robinson’s motion for attorney’s fees. On August 21, 2015, this court ordered the two
appeals consolidated at the parties’ request.
8
III. DISCUSSION
A. Permanent Injunction Precluding UHC from Enforcing Covenant
UHC contends the court erred in issuing a permanent injunction because (1) there
was “no evidence” supporting a continuing violation by UHC, so as to justify an
injunction; (2) Robinson lacked standing; (3) Robinson’s UCL claim did not, in fact,
present an issue of broad public interest; (4) the denial of Robinson’s motion for
summary judgment as moot in Robinson I operated through collateral estoppel to bar the
issuance of a permanent injunction in Robinson II; and (5) the court erroneously excluded
the testimony of one of its witnesses who would have testified that UHC had stopped
enforcing the covenant not to compete in California.
1. There Was Substantial Evidence Supporting the Court’s Factual
Findings, and Issuance of the Injunction Was Not an Abuse of
Discretion.
“ ‘The grant or denial of a permanent injunction rests within the trial court’s sound
discretion and will not be disturbed on appeal absent a showing of a clear abuse of
discretion. [Citation.] The exercise of discretion must be supported by the evidence and,
“to the extent the trial court had to review the evidence to resolve disputed factual issues,
and draw inferences from the presented facts, [we] review such factual findings under a
substantial evidence standard.” ’ ” (Salazar v. Matejcek (2016) 245 Cal.App.4th 634,
647.) Here, there is a dispute about the facts, including whether UHC’s claim to have
abandoned its past practices was made in good faith. We approach such issues with
deference.
The trial court summarized its reasons for issuing the injunction as follows:
“UHAUL apparently had followed a policy for years of threatening to enforce, and
instituting proceedings to enforce, those covenants. In late 2007, faced with
ROBINSON’s cross-complaint in the first case, UHAUL carved out an exception for
ROBINSON alone (although UHAUL claims, and ROBINSON has no evidence to the
contrary, that UHAUL has not sued any other former dealers since bringing the 2007 first
case against ROBINSON). Then, in 2010, after ROBINSON in 2008 had filed this
9
second case, UHAUL modified its covenant, but only to state that it was ‘void where
prohibited’. UHAUL continued up until trial in early 2013 to claim as a defense to this
action that the covenant was enforceable under California law. UHAUL now in 2013
through a conclusory declaration of its in-house counsel claims that it has told its
California dealers that the covenant will not be enforced against them, but provided no
copy of mass letter sent to those dealers, or record of other transmissions of this kind of
binding reassurance.” The court continued: “Absent clear evidence that UHAUL has
confirmed to its California dealers that it will not be enforced, the disclaimer of ‘void
where prohibited’ does not provide sufficient reassurance to the court that this
unenforceable covenant will not have some effect detrimental to California dealers or
their state-wide customers.”
One of the central legal questions in this case is whether a party to a lawsuit can
avoid having a permanent injunction issued against it by voluntarily undertaking to do
what the injunction would require. There is case authority saying an injunction may be
denied on that basis. (Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1020;
Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 465; Midpeninsula Citizens
for Fair Housing v. Westwood Investors (1990) 221 Cal.App.3d 1377, 1393 [injunction
would serve no purpose where the “challenged policy was withdrawn nearly four years
ago, and nothing in the record indicates any intention . . . to reinstate it”].) But simply
because a request for permanent injunctive relief may be denied based on voluntary
submission to its terms does not mean such a request must be denied on that basis.
U-Haul nevertheless claims there was “no evidence” before the trial court warranting an
injunction. Nelson held that a party seeking an injunction must present “actual evidence
that there is a realistic prospect that the party enjoined intends to engage in the prohibited
activity.” (Nelson, supra, at p. 1020.) Here, the evidence of U-Haul’s past practice,
coupled with evidence of the half-measures it took in lieu of eliminating altogether the
noncompetition covenant in its California contracts, amounted to substantial evidence to
support any factual findings necessary to or implicit in the issuance of the injunction.
10
First, there is no hard-and-fast rule that a party’s discontinuance of illegal behavior
makes injunctive relief against him or her unavailable. “While voluntary cessation of
conduct may be a factor in a court’s exercise of its equitable jurisdiction to issue an
injunction, it is not determinative . . . .” (People ex rel. Feuer v. Superior Court
(Cahuenga’s the Spot) (2015) 234 Cal.App.4th 1360, 1385.) Similarly, Marin County
Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 929 (Palsson) held: “ ‘[T]he
voluntary discontinuance of alleged illegal practices does not remove the pending charges
of illegality from the sphere of judicial power or relieve the court of the duty of
determining the validity of such charges where by the mere volition of a party the
challenged practices may be resumed.’ [Citation.]” And of course, there is the
fundamental question whether a defendant’s discontinuance of a UCL violation was
implemented in good faith. (People v. National Association of Realtors (1981) 120
Cal.App.3d 459, 476 [“where the injunction is sought solely to prevent recurrence of
proscribed conduct which has, in good faith been discontinued, there is no equitable
reason for an injunction”] (italics added).) Where, as here, a company has not taken
action to bind itself legally to a violation-free future, there may be reason to doubt the
bona fides of its newly established law-abiding policy.
Second, UHC’s lawsuit against Robinson was not an isolated one. Based on the
court’s finding that U-Haul knew when it inserted the noncompetition covenant into the
contract that the clause was illegal in California,5 it appears UHC had acted in knowing
violation of the law over a period of many years. UHC’s own letter to Robinson in
October 2006 said the company had a “policy of . . . aggressively protect[ing] its
5
The state of the law itself lends credence to the court’s finding. Section 16600
has been a part of California law since 1941, and traces its origins back to 1872 in former
Civil Code section 1673. (Edwards v. Arthur Andersen LLP, supra, 44 Cal.4th at p. 945.)
It has long been understood to make garden variety noncompetition covenants void.
(See, e.g., Kelton v. Stravinski (2006) 138 Cal.App.4th 941, 946; Hill Medical Corp. v.
Wycoff (2001) 86 Cal.App.4th 895, 900–901; South Bay Radiology Medical Associates v.
Asher (1990) 220 Cal.App.3d 1074, 1080; KGB, Inc. v. Giannoulas (1970) 104
Cal.App.3d 844, 847–850.)
11
legitimate business interests by seeking to enforce the non-competition provisions.” This
statement was borne out by Robinson’s evidence of other lawsuits UHC had filed against
its dealers over a period of ten years before UHC sued Robinson. Evidence of such an
ingrained, long-term, knowingly illegal corporate practice provides support for a finding
of likely repetition in the future.
Third, even when UHC revised its standard dealer contract in 2010, it did not
purge the offending covenant from its California contracts. The court explicitly found
that inserting the words “void where prohibited” into the language of the dealer’s contract
was insufficient to solve the problem. It also found insufficient evidence of across-the-
board notification of current dealers to support a finding that UHC had corrected its
anticompetitive behavior.
Fourth, UHC’s change in policy came only after it lost its motion for a preliminary
injunction in Robinson I and after the complaint in Robinson II was filed. And despite
the purported change in policy in 2010, UHC continued to insist at trial in Robinson II
that its noncompetition covenant was valid and enforceable. It thus changed its policy
only when threatened with an injunction. On this record, the trial court found that UHC’s
promise to refrain from further enforcement of its noncompetition covenant could not be
relied upon as the sole means of ensuring a change of practice in the future.
As we read Judge Kinnicutt’s orders and judgment, the injunction was a response
in part to U-Haul’s resistance to amending its policies, and its persistence in pursuing its
anticompetitive litigation strategy over the years, up to the time it initiated the lawsuit in
Robinson I and even throughout the trial in Robinson II. The injunction eliminates a
practice that is now shrouded in uncertainty and plagued by a troubling past. We have no
reason to overturn the trial court’s decision to issue an injunction, as it did not result from
lack of evidence, legal error, or an abuse of discretion.
2. Robinson Had Standing
UHC claims Robinson lacks standing to seek an injunction against U-Haul under
the UCL because he cannot show he personally suffered injury as a result of U-Haul’s
alleged unfair competition, citing section 17204 and Amalgamated Transit Union, Local
12
1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1002 (Amalgamated Transit).
Section 17204 vests in the Attorney General, county district attorneys, and city attorneys
authority to seek injunctive relief under the UCL, but it also grants such authority to any
“person who has suffered injury in fact and has lost money or property as a result of the
unfair competition.” (§ 17204; see Aron v. U-Haul Co. of California (2006) 143
Cal.App.4th 796, 800–803 [customer forced to pay unfair refueling costs upon return of
rental truck had standing under UCL].)
Amalgamated Transit, supra, 46 Cal.4th 993 dealt with the changes in standing
requirements ushered in by voter initiative in 2004 under Proposition 64.6 (Id. at
p. 1000.) That case involved a labor union that attempted to assert a UCL cause of action
against an employer to enjoin alleged labor law violations and obtain other relief both on
behalf of, and as assignee of, its members. (Id. at p. 999.) The Supreme Court held the
union did not have standing because it had not suffered injury in fact under section
17204. (Id. at pp. 999–1002.) Amalgamated Transit explained the background of the
changes wrought by Proposition 64. (See fn. 6, ante.) Suffice it to say, the mere
6
Before 2004, the UCL allowed “any person acting for the interests of itself, its
members or the general public” to seek restitution or injunctive relief against unfair
business acts or practices. (Former § 17204, added by Stats. 1977, ch. 299, § 1, p. 1202.)
This relaxed standard had been subject to abuse. (Amalgamated Transit, supra, 46
Cal.4th at p. 1000.) “Proposition 64’s Findings and Declarations of Purpose (Voter
Information Guide, Gen. Elec. (Nov. 2, 2004) p. 109) expressed concern that the UCL
and false advertising law were being ‘misused by some private attorneys’ (Prop. 64, § 1,
subd. (b)) to file suits on behalf of ‘clients who [had] not used the defendant’s product or
service, viewed the defendant’s advertising, or had any other business dealing with the
defendant’ (id., subd. (b)(3)) and had not ‘been injured in fact’ (id., subd. (b)(2)) as a way
of ‘generating attorney’s fees without creating a corresponding public benefit’ (id., subd.
(b)(1)). In short, voters focused on curbing shakedown suits by parties who had never
engaged in any transactions with would-be defendants. [Citation.] No corresponding
concern was expressed about suits by those who had had business dealings with a given
defendant . . . .” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 335, fn. 21.)
Thus, “[w]hile Proposition 64 clearly was intended to abolish the portions of the UCL . . .
that made suing under them easier than under other comparable statutory and common
law torts, it was not intended to make their standing requirements comparatively more
onerous.” (Id. at p. 335.)
13
likelihood of harm to members of the public is not sufficient to confer standing on any
individual. (Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 628.) But if a
plaintiff has suffered particularized harm as a result of the defendant’s anticompetitive
conduct, standing has been upheld. (See Medrazo v. Honda of North Hollywood (2012)
205 Cal.App.4th 1, 12–13.)
We agree with Robinson that he has standing in this action because he was sued
by UHC in Robinson I to enforce the covenant not to compete and incurred attorney’s
fees and costs as a result. The alleged unfair business practice in this case was not just
the inclusion of the noncompetition covenant in UHC’s dealer contracts, but the strategic
use of litigation and threatened litigation to achieve its anticompetitive purpose.
Robinson successfully showed that Robinson I was part of a pattern of business activity
in which UHC sought to intimidate its former dealers from setting up business relations
with UHC’s competitors. (Cf. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94,
108–113 [collection agency’s pattern of intentionally commencing litigation in improper
venues for the purpose of impairing its adversaries’ ability to defend such suits was an
“unlawful business practice” under predecessor to § 17200].) When Robinson refused to
break ties with Budget, he was sued and thereby suffered an injury in fact and lost money
by way of court costs and attorney’s fees. This is not a case where an unscrupulous
attorney teamed up with a stick figure plaintiff to shake down a completely unrelated
business. (See fn. 6, ante.) As one of the victims of UHC’s anticompetitive business
practice, Robinson has standing.
3. The Court’s Finding of a Broad Public Interest Was Supported by the
Record and Was Not an Abuse of Discretion
A major thrust of UHC’s briefing is that this litigation is moot. UHC
acknowledges, however, that “ ‘[i]f a pending case poses an issue of broad public interest
that is likely to recur, the court may exercise an inherent discretion to resolve that issue
even though an event occurring during its pendency would normally render the matter
moot.’ ” (Johnson v. Hamilton (1975) 15 Cal.3d 461, 465.) UHC contends the trial court
erred in finding a “broad public interest” at stake in this case. (Cf. Application Group v.
14
Hunter Group (1998) 61 Cal.App.4th 881, 892–893 (Application Group) [declaratory
relief held properly granted, even though the individual plaintiff’s case was moot].)
The parties have cited no cases articulating the standard of review on the “broad
public interest” determination, and we have located none. Issues of justiciability, such as
mootness, are generally reviewed de novo. (Panoche Energy Center, LLC v. Pacific Gas
& Electric Co. (2016) 1 Cal.App.5th 68, 99 [ripeness]; K.G. v. Meredith (2012) 204
Cal.App.4th 164, 174 [mootness reviewed de novo where facts are undisputed]; Gilb v.
Chiang (2010) 186 Cal.App.4th 444, 457–461 [justiciability]; Biodiversity Legal Found.
v. Badgley (9th Cir. 2002) 309 F.3d 1166, 1173 [appellate courts “review mootness, a
question of law, de novo”].) But since the broad public interest exception to mootness is
an exercise of the court’s “inherent discretion” (Johnson v. Hamilton, supra, 15 Cal.3d at
p. 465), the determination arguably could be subject to an abuse of discretion standard of
review. (See Application Group, supra, 61 Cal.App.4th 881 at p. 893 [“Whether an
action is justiciable . . . is . . . a matter entrusted to the sound discretion of the trial
court”].) We need not decide which standard applies, as we would reach the same result
under any standard.
UHC claims there is no California case finding a noncompetition clause to present
an issue of broad public concern. That ignores Palsson, upon which the court below
relied. While Palsson did not deal directly with a covenant not to compete, its holding is
pertinent here because it dealt with a private entity’s curtailment of employment
opportunities through policies adopted in its bylaws.
In Palsson, an association of real estate brokers and sales associates, to which
three-quarters of brokers in the county belonged, denied Palsson’s application for
membership—and hence his access to the multiple listing service (MLS)—because he
was primarily employed as an airline engineer and sold real estate only part-time.
(Palsson, supra, 16 Cal.3d at p. 924.) Under the association’s bylaws, a salesman had to
be “primarily engaged in the real estate business” in order to join, and members were
prohibited from employing or sharing office space with anyone denied membership.
(Ibid.) Thus, a part-time salesman faced not only denial of access to the MLS, but also
15
denial of “employment with 75 percent of the residential brokers in Marin County.” (Id.
at p. 925.) When Palsson contested the board’s decision denying him membership, the
board sought a declaratory judgment that its bylaws were valid. (Id. at pp. 923–925.)
The central question in the case was whether the board’s “primarily engaged” rule
and related limitation on access to the MLS violated the Cartwright Act (§§ 16720,
16726). Before reaching that question, the California Supreme Court addressed a number
of preliminary issues, including mootness. (Palsson, supra, 16 Cal.3d at pp. 925–930.)
The real estate association argued the action was moot because it had changed its bylaws,
allowing part-time brokers to become associate members. (Id. at p. 928.) Despite this
fact, the Supreme Court, noting on the merits that “the practices of the board pose serious
anticompetitive dangers both to licensed real estate salesmen and brokers and to
consumers” (id. at p. 935), and then ultimately finding those practices to violate the
Cartwright Act, held the broad public interest exception to mootness applied because
“[t]he issues raised are of substantial interest not only to real estate boards and home-
buyers but also to all trade associations and their members, and to consumers in general”
(id. at p. 930).
Palsson also mentioned that “the importance of the questions involved [was]
partly shown by the appearance of the California Association of Realtors, the Attorney
General, and the District Attorney of Los Angeles County through amicus briefs,” and
because there were a number of similar cases pending in various trial courts. (Palsson,
supra, 16 Cal.3d at p. 930.) While those may have been factors influencing the court’s
decision in Palsson, we do not think the applicability of the broad public interest
exception can legitimately turn on whether amicus briefs were filed, whether any other
parties intervened in the action, or whether there were currently pending actions
elsewhere in the state asserting similar positions. The presence of such factors may
provide support for a finding of broad public interest, but their absence does not prove the
opposite. We have already discussed the trial court’s reasons for issuing the injunction in
this case, which were sound.
As a secondary argument, UHC contends that the “small number of independent
16
dealers in California” is too limited a group to qualify under the “broad public interest
exception.” According to Robinson, UHC has approximately 1,000 California dealers, and
UHC offers no contrary evidence. We are aware of no rule establishing how many members
of the public must be affected in order for the “broad public interest” exception to apply. To
our way of thinking, a population of 1,000 dealers, together with past dealers and prospective
dealers, makes up a sufficient segment of the public to qualify as a “broad” swath. We
hasten to add, however, that here the court found the anticompetitive impact of the covenant
spread to more than just dealers. The trial court found the threat to competition extended to
the dealers’ customers and to the truck rental market in general. UHC’s enforcement and
threats to enforce the covenant in California negatively affected its competitors by denying
them rental outlets for their trucks and hurt the rental market customers by limiting their
access to rental trucks and restricting price competition. For the protection of UHC’s
dealers, past dealers and prospective dealers, UHC’s competitors, and the members of the
general public who participate in the truck and trailer rental market, an injunction was
warranted.
4. Collateral Estoppel
UHC next contends Judge Beeman’s ruling in February 2008 in Robinson I
denying Robinson’s motion for summary judgment on mootness grounds should have
operated to collaterally estop Robinson from obtaining an injunction against UHC in
Robinson II. Whether collateral estoppel applies is a question of law reviewed de novo.
(Duarte v. State Teachers’ Retirement System (2014) 232 Cal.App.4th 370, 389, fn. 11.)
“At its most fundamental, ‘[i]ssue preclusion, or collateral estoppel, “ ‘precludes
relitigation of issues argued and decided in prior proceedings.’ ” ’ ” (City of Oakland v.
Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 227.)” (Id. at
p. 389.) Collateral estoppel applies only if all of the following conditions are met: (1) the
issue is identical to an issue decided in a prior proceeding; (2) the issue was actually
litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is
final and on the merits; and (5) the party against whom collateral estoppel is asserted was
17
a party to the prior proceeding or in privity with a party to the prior proceeding. (Zevnik
v. Superior Court (2008) 159 Cal.App.4th 76, 82 (Zevnik).)
Based on those requirements, collateral estoppel does not apply here. Robinson
did not allege a UCL violation in Robinson I, and Judge Beeman did not rule that any
issues underlying a UCL action―namely, whether UHC’s noncompetition covenant
amounted to an “unlawful, unfair or fraudulent business act or practice”―would be
mooted, either by the waiver of all claims against Robinson in Singleton’s declaration, or
by the later and broader disavowal of past practices throughout California, as reflected in
Campbell’s declaration. The issues raised by Robinson’s UCL claim were different from
those raised by his request for declaratory relief in Robinson I, where Robinson alleged
fraud in the inducement as a basis for declaring the noncompetition covenant void. For
this reason alone we may reject UHC’s collateral estoppel theory. Because the issues in
the two cases were different factually and legally, and the occurrences and declarations
which purportedly mooted the issues were different in scope, application of the mootness
doctrine in the two cases did not involve identical issues and need not be resolved
uniformly. The Campbell declaration was not even in existence at the time Judge
Beeman made his mootness ruling in Robinson I, and hence he could not have
determined that Campbell’s declaration mooted the issue of the legality of UHC’s
noncompetition clause under the UCL. Nevertheless, UHC theorizes that Robinson’s
UCL claim in Robinson II was moot when Judge Kinnicutt issued the injunction because
Judge Beeman determined five years earlier that his declaratory relief cause of action was
moot in Robinson I.
As noted above, one of the elements of collateral estoppel is that the decision in
question be “on the merits.” (Zevnik, supra, 159 Cal.App.4th at p. 82.) A decision that a
matter is moot is not a decision on the merits. (See Paul v. Milk Depots, Inc. (1964) 62
Cal.2d 129, 131–132.) Quite the opposite, it is a decision that the merits need not be
reached because there is no longer a live controversy. (Ibid.; Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶¶ 5:21 to 5.22, pp. 5-5
to 5-6.) Perhaps one might characterize Judge Beeman’s ruling as a decision on the
18
merits of mootness, but it is more accurately characterized as a decision not to decide
anything. Witkin describes moot cases as “[t]hose in which an actual controversy did
exist but, by the passage of time or a change in circumstances, ceased to exist.”
(3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 21, p. 86.) The preferred disposition
of a moot case on appeal is either to dismiss the appeal or to reverse the moot judgment
and remand with instructions to the trial court to dismiss the action as moot, so as to
avoid having the underlying judgment become subject to res judicata. (See Paul, supra,
at pp. 134–135; Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011)
198 Cal.App.4th 939, 942–945.) Because the mootness decision, by definition, is not a
determination on the merits, the mootness determination in Robinson I was not binding
on the court in Robinson II.
Indeed, mootness is highly situational and not readily compatible with the concept
of estoppel. It is an aspect of justiciability that must be decided independently by each
court with respect to the facts and legal issues before it. Accordingly, we conclude that
collateral estoppel does not prohibit the injunction entered here. (Cf. Application Group,
supra, 61 Cal.App.4th at pp. 884, 892–894, 909 [affirmed declaratory relief in favor of
corporate plaintiff despite mootness of individual plaintiff’s claims]; In re Stinnette
(1979) 94 Cal.App.3d 800, 804 [“When a case presents questions of general public
interest that are likely to recur, the court may render a decision on the merits even though
the issue has become moot as to the particular litigant involved.”].)
5. Exclusion of Savelle Jefferson’s Testimony
Finally, UHC contends the trial court erroneously excluded evidence that it had
voluntarily ceased enforcing its covenant not to sue in California. During the trial, UHC
attempted to introduce testimony of Savelle Jefferson, an area field manager, in an effort
to show that UHC had changed the language in its dealer contracts and had advised its
dealers in California that it would not enforce the restrictive covenant.7 The trial court
7
Robinson claims that Jefferson, as an area field manager, was not employed in a
position to have acquired personal knowledge of statewide communication on this
subject.
19
sustained objections to the questions, ruling such testimony was irrelevant, which UHC
cites as error. Employing an abuse of discretion standard of review (Shaw v. County of
Santa Cruz (2008) 170 Cal.App.4th 229, 281), we do not agree the court erred.
The relevance of Jefferson’s evidence was slim at best. As explained above,
evidence of discontinuance of an illegal practice does not compel the court to reject a
request for an injunction. It is only one factor to consider, and it bears little weight if its
credibility is doubtful. Even if marginally relevant, the court could have validly
considered Jefferson’s evidence on this point to be of such minimal significance that it
could reasonably have been excluded under Evidence Code section 352. A party’s failure
to refer specifically to section 352 as a basis for objection does not preclude a trial court
from exercising its discretion sua sponte to exclude proffered evidence on that ground.
(People v. Roscoe (1985) 168 Cal.App.3d 1093, 1100 & fn. 5; People v. Jackson (1971)
18 Cal.App.3d 504, 508–509.)
More important, assuming for argument’s sake the court should have allowed the
testimony, we would find the error harmless. (People v. Watson (1956) 46 Cal.2d 818,
836; Easterby v. Clark (2009) 171 Cal.App.4th 772, 783 [Watson standard applies to
evidentiary errors].) Before ruling on the attorney’s fees issue, the court received the
declaration of Campbell, which duplicated in substance the evidence UHC had attempted
to elicit from Jefferson. The court referred to Campbell’s declaration in its order filed
January 17, 2014. Thus, it considered but rejected UHC’s argument and evidence that
the abandonment of its attempts to enforce the noncompetition clause made injunctive
relief unavailable. Jefferson’s testimony would have been cumulative, and it is unlikely
anything he said would have made a difference to Judge Kinnicutt. The exclusion of
Jefferson’s testimony was at worst harmless error.
B. Robinson’s Late Filing of His Motion for Attorney’s Fees
Finally, the U-Haul defendants claim they cannot be ordered to pay Robinson’s
attorney’s fees because he did not follow the proper procedure in seeking his fees award.
Again, we disagree and affirm the trial court’s order.
20
1. Proceedings Related to Attorney’s Fees
On September 6, 2013, before judgment was entered, Robinson filed a motion for
contractual attorney’s fees under the dealer contract in connection with his malicious
prosecution cause of action. He also claimed in briefing that he was entitled to attorney’s
fees as a private attorney general under section 1021.5.8 The total amount he claimed in
fees for both causes of action was $1,063,248.29.
The trial court issued a tentative ruling on October 4, 2013, denying Robinson’s
request for attorney’s fees because the jury’s verdict in his favor on the malicious
prosecution cause of action was interlocutory, as judgment had not yet been entered on
the UCL claim. With regard to Robinson’s request for attorney’s fees under section
1021.5, the tentative ruling stated: “If the court’s ruling awards Plaintiff the right to
attorneys fees as to the unfair business practices [UCL] cause of action, the determination
of the amount of those fees is deferred to proper and timely later filing of a motion for
attorneys fees, following issuance of the court’s final judgment.” As noted above, the
court included in its judgment that Robinson “shall also recover attorneys’ fees” on the
UCL claim, but did not indicate an amount of any award.
On February 5, 2014, after judgment was entered, Robinson filed a memorandum
of costs seeking, among other costs, $1,154,738 in attorney’s fees. UHC responded with
a motion to tax costs, arguing that Robinson could not seek attorney’s fees by way of a
memorandum of costs, but instead was required to file a noticed motion. At that time,
Robinson still had time to file a motion for attorney’s fees within the 60 days permitted
under Rule 3.1702(b)(1) [motion must be brought within time allowed for filing notice of
8
That section provides, in pertinent part: “Upon motion, a court may award
attorneys’ fees to a successful party against one or more opposing parties in any action
which has resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the
general public or a large class of persons, (b) the necessity and financial burden of private
enforcement, or of enforcement by one public entity against another public entity, are
such as to make the award appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.”
21
appeal].9 But instead Robinson simply opposed the motion to tax costs, arguing that
seeking his attorney’s fees by a memorandum of costs was appropriate because there was
“no debate” he was entitled to attorney’s fees after the final judgment ordered such
recovery.
On April 3, 2014, a hearing was held on UHC’s motion to tax costs. At the
hearing, apparently in response to the court’s tentative ruling, Robinson’s counsel
abandoned his argument that a motion was not required, but argued he was allowed to file
such a motion under section 1021.5 at any time after entry of final judgment. “There is
no express time limit,” he told the court, relying primarily on Angelheart v. City of
Burbank (1991) 232 Cal.App.3d 460, 466. The next day, UHC submitted a letter brief to
the trial court in which it contended that Rule 3.1702 required Robinson to file his motion
for attorney’s fees within 60 days after the court clerk’s service of notice of entry of the
final judgment, and the deadline had already passed. UHC argued that Angelheart had
been “overruled” by Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 427. In his
response to UHC’s letter brief, Robinson conceded that Rule 3.1702 applied but argued
that, pursuant to Rule 8.104(a), the court should treat his prematurely filed requests for
attorney’s fees as timely filed.
On June 19, 2014, the trial court issued its order on UHC’s motion to tax costs.
The court noted it had more than once advised Robinson’s counsel that his motions for
attorney’s fees were premature and told him he had to re-file the motion after final
judgment. Yet Robinson had failed to file a motion for attorney’s fees within the 60 days
allowed by Rule 3.1702. On that basis the court struck the entire amount requested for
attorney’s fees from Robinson’s memorandum of costs, without prejudice to a renewed
motion if Robinson sought and was granted an extension of time under Rule 3.1702(d).
Robinson then filed a motion to extend time to file a motion for attorney’s fees in
which he sought to excuse his failure to timely file his attorney’s fees motion based on
his attorney’s “mistaken view that the Court had already determined that Robinson was
9
References to rules are to the California Rules of Court.
22
entitled to attorneys’ fees and that therefore any motion for attorneys’ fees would be
moot.” Specifically, Robinson’s counsel stated in a declaration under oath: “The
[October 4, 2013] Tentative Ruling appeared to treat Robinson’s Motion for Attorneys’
Fees concerning his cause of action for Malicious Prosecution separate from his request
for attorneys’ fees and related briefing contained in his brief concerning his §17200
Claim. Consequently, I believed that while the former was premature, the latter was
accepted as properly filed, and was considered by the Court.” Robinson’s lawyer
continued: “I believed that because the Final Judgment stated that Robinson ‘shall also
be’ entitled to attorneys’ fees, the Court had deemed Robinson’s premature Motions for
Attorneys’ Fees as timely filed . . . .”
On January 15, 2015, the trial court granted Robinson’s motion to extend time,
finding Robinson’s “honest mistake as to the necessity to file the attorneys’ fees motion”
provided good cause to grant him more time under Rule 3.1702(d). Robinson followed
with a motion for a total of $1,166,430.51 in attorney’s fees, claiming he was entitled to
fees for his malicious prosecution cause of action based on a contractual provision in the
dealer contract, and under a private attorney general theory as authorized by section
1021.5 in connection with his UCL claim.
On May 14, 2015, the trial court denied Robinson’s request for contractual
attorney’s fees because the malicious prosecution claim was one based in tort, not
contract. On the other hand, the court granted Robinson’s request for fees in the amount
of $834,008.09 in connection with his UCL claim. It found (1) Robinson had enforced
“an important right affecting the public interest, insofar as it furthered the strong
California public policy in favor of free markets and against restraint of trade”;
(2) Robinson’s legal action conferred “a significant benefit . . . on the general public or a
broad class of persons, namely the many independent dealers in California engaged in the
business of renting moving vans or trucks, and the multitude of California residents who
move”; and (3) the necessity and financial burden of private enforcement transcended
Robinson’s personal interest in the controversy.
23
2. The Court Did Not Err in Granting Robinson an Extension of Time
Robinson’s attorney does not dispute on appeal that he should have moved for an
award of attorney’s fees within 60 days after the clerk of the court served the notice of
entry of judgment. (Rules 3.1702(b)(1), 8.104(a).) Still, under the circumstances, we
cannot agree with UHC that the court erred in allowing a belated motion. “Rule 3.1702(d)
is ‘remedial’ and is to be given a liberal, rather than strict interpretation. [Citation.]”
(Lewow v. Surfside III Condominium Owners Assn., Inc. (2012) 203 Cal.App.4th 128,
135 (Lewow).) Flexibility is built into Rule 3.1702 through subdivision (d), which allows
a judge “ ‘[f]or good cause’ ” to “extend the time for filing a motion for attorney’s fees in
the absence of a stipulation or for a longer period than allowed by stipulation.” A court
may grant a request for extension of time to file a motion for attorney’s fees even if the
motion is not filed until after the deadline for filing an attorney’s fees motion under Rule
3.1702. (Ibid.) Even a claim of inadvertence, if it is not prejudicial, may constitute good
cause for a late filing. (Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 381
(Pollard) [cost bill].)
A litigant faces a steep uphill battle in seeking to reverse a court’s finding of
“good cause” for an extension of time. Perhaps for that reason, UHC argues that the
standard regarding an “attorney’s mistake, inadvertence, surprise, or neglect” under Code
of Civil Procedure section 473, subdivision (b), must be applied as well under Rule
3.1702, citing Lewow, supra, 203 Cal.App.4th at page 135. Just because Lewow cited a
case decided under Code of Civil Procedure section 473 (City of Ontario v. Superior
Court (1970) 2 Cal.3d 335) does not mean it should be read as importing that section’s
legal standards wholesale into Rule 3.1702. To the extent it has been so read (see
Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385,
1444 (Community Youth Athletic Center)), we believe further proliferation of this idea
should be avoided. Rather, in our view, the trial court has considerably more latitude in
ruling on an extension of time to file an attorney’s fees motion under the “good cause”
standard of Rule 3.1702(d) than it does in granting relief from a “judgment, dismissal [or]
order” under Code of Civil Procedure, section 473, subdivision (b).
24
Where the standard requires “good cause” only, it has been “ ‘ “equated to a good
reason for a party’s failure to perform that specific requirement [of the statute] from
which he seeks to be excused.” ’ ” (Katz v. Campbell Union High School Dist. (2006)
144 Cal.App.4th 1024, 1036.) In the context of a motion to extend time under Rule
3.1702(d), we should pay special deference to the trial court’s view, which was informed
by its personal interactions with counsel. Accordingly, a trial court’s finding of “good
cause” is generally reviewed deferentially, solely for abuse of discretion. (People v.
Clark (2016) 63 Cal.4th 522, 551 [good cause for criminal trial continuance]; County of
Los Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th 944, 949 [good
cause for extension of time for bail bondsman to produce defendant]; Munroe v. Los
Angeles County Civil Service Com. (2009) 173 Cal.App.4th 1295, 1303 [deference paid
to county agency’s decision on lack of good cause for late filing of administrative
appeal].) This same deferential standard of review applies as well to the court’s ultimate
award of attorney’s fees under section 1021.5. (Graham v. DaimlerChrysler Corp.
(2004) 34 Cal.4th 553, 578; Indio Police Command Unit Assn. v. City of Indio (2014) 230
Cal.App.4th 521, 540–541.)
Although Judge Kinnicutt initially believed he had been clear in advising
Robinson’s counsel to file a motion after judgment, he became convinced after hearing
counsel’s explanation that Robinson’s counsel had made an “honest mistake” in
misconstruing the court’s earlier pronouncements. The judge’s factual finding of an
“honest mistake” is supported by the attorney’s declaration. The judge did not abuse his
discretion, and in fact exercised it judiciously by first denying fees requested by the
memorandum of costs and later granting leave to file a late motion when counsel
provided a satisfactory explanation.
Counsel’s “honest mistake of law” may constitute good cause under Rule
3.1702(d), depending in large part on the reasonableness of the misconception. (See
Lewow, supra, 203 Cal.App.4th at p. 135; Community Youth Athletic Center, supra, 220
Cal.App.4th at pp. 1444–1445.) The reasonableness of counsel’s misunderstanding in
this case turned in large part on the reasonableness of his interpretation of the court’s
25
prior orders. Credibility no doubt played a key role, and on that issue, too, we defer to
the trial judge. (See People v. Jones (2015) 57 Cal.4th 899, 917 [prosecutor’s credibility
in explaining reasons for excusing juror]; People v. Carasi (2008) 44 Cal.4th 1263,
1290–1291 [juror’s state of mind]; Shamblin v. Brattain (1988) 44 Cal.3d 474, 479
[credibility of declaration supporting relief from default].) The trial judge, who lived
with this case for several years, was in a much better position to gauge the reasonableness
of counsel’s misconception and the various actors’ good faith or bad.
Furthermore, we see no prejudice to U-Haul resulting from the procedural snafus,
and no reason to grant it windfall protection from attorney’s fees exposure. It knew from
before entry of judgment the legal grounds upon which fees were sought and the amount
Robinson was seeking (including detailed breakdowns). The fact that there were
procedural irregularities provides no basis for invalidating the award where UHC makes
no attempt to show prejudice. (Pollard, supra, 12 Cal.3d at p. 381 [“In the absence of
prejudice, the trial court has broad discretion in allowing relief on grounds of
inadvertence from a failure to timely file a cost bill”].)
IV. DISPOSITION
The judgment is affirmed, as is the May 14, 2015 order awarding attorney’s fees to
Robinson. Robinson shall recover his costs on appeal.
26
_________________________
Streeter, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
A141396, A145828/Robinson v. U-Haul Co. of California
27
Leigh Robinson v. U-Haul Company of California et al. (A141396 & A145828)
Trial Court: Solano County Superior Court
Trial Judge: Hon. Harry S. Kinnicutt
Counsel:
Alston & Bird, James R. Evans, Jr., and Ryan T. McCoy for
Defendants and Appellants.
Law Offices of Freeman & Freeman, Rebecca J. Freeman, Matthew C. Freeman and
Molly A. Gilardi for
Plaintiff and Respondent.
28