Javaheripour v. Sigal CA2/4

Filed 9/22/21 Javaheripour v. Sigal CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
FAHIMEH JAVAHERIPOUR, B304911
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No.
19SMCV01670)
GENE SIGAL,
Defendant and Respondent.
APPEAL from order and judgment of the Superior Court of
Los Angeles County, Mark A. Young, Judge. Affirmed and
remanded for determination of attorneys’ fees on appeal.
Fahimeh Javaheripour, in pro. per., for Plaintiff and
Appellant.
Mitchell Silberberg & Knupp, Stephen E. Foster and
Andrew C. Spitser for Defendant and Respondent.
INTRODUCTION
Plaintiff and appellant Fahimeh Javaheripour appeals from
the trial court’s order granting attorneys’ fees to defendant and
respondent Gene Sigal. Javaheripour contends the court erred
because there was no written agreement containing a prevailing
party attorneys’ fees provision. Alternatively, she contends the
attorneys’ fees awarded were unreasonable. We reject both
contentions and affirm. We also find the lease agreement
between the parties entitles Sigal to an award of attorneys’ fees
on appeal, and remand to the trial court to calculate the amount
of those fees.
FACTUAL AND PROCEDURAL BACKGROUND
In 2012, Sigal leased a residential property in Malibu (the
premises) owned by Javaheripour. In 2018, the parties signed a
subsequent lease. Both lease agreements contained a
substantially similar attorneys’ fees provision, which stated in
relevant part: “In any action or proceeding arising out of this
Agreement, the prevailing party between Landlord and Tenant
shall be entitled to reasonable attorney[s’] fees and costs.”
In 2019, Javaheripour filed an unlawful detainer complaint
against Sigal seeking to evict him from the premises for alleged
failure to pay rent. After a bench trial, the court entered
judgment in favor of Sigal, finding Javaheripour breached her
duty to provide Sigal with habitable premises. It also found Sigal
was the prevailing party for purposes of attorneys’ fees.
Sigal filed a motion for attorneys’ fees seeking a total of
$199,940.50 in fees and $5,131.78 in costs. Sigal supported his
motion with declarations from his attorneys (Stephen Foster and
Matthew Beasley) detailing the work they performed, and a
declaration from their firm’s Chief Marketing and Financial
Officer regarding the attorneys’ hourly rates. Javaheripour
opposed the motion, arguing the hourly rates and the hours
expended were excessive, unreasonable, and unsupported by
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evidence. The trial court granted Sigal’s motion. After reducing
the hours spent on drafting the attorneys’ fees motion and
enforcing the terms of the judgment, the court awarded Sigal his
reasonable attorneys’ fees in the amount of $178,190.50 and the
total costs sought. The trial court entered an amended judgment,
which added the award of attorneys’ fees and costs. Javaheripour
appeals from the order granting the motion for attorneys’ fees.
She also appeals from the amended judgment, but only with
respect to the award of attorneys’ fees.
DISCUSSION
A. Adequacy of the Appellate Record
We first address the contention by Sigal that Javaheripour
failed to provide an adequate record on appeal. He argues
Javaheripour’s failure to secure a reporter’s transcript of the
hearing on the motion for attorneys’ fees renders impossible a
finding that the trial court abused its discretion. We reject this
contention.
The record contains the motion for attorneys’ fees, the
opposition, the reply, and the trial court’s written order. That is
sufficient. Javaheripour makes no claim that some misconduct or
error occurred during the hearing. Moreover, the court’s two-page
written order appears complete; it does not refer to any
additional findings or rulings made at the hearing. Resolution of
this appeal, therefore, does not require our consideration of what
was said during the hearing. (See Cal. Rules of Court, rule
8.120(b) [a record of the oral proceedings is required only when
“an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court . . . .”].)
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B. The Parties’ Lease Agreement Contained a
Prevailing Party Attorneys’ Fees Provision
As noted above, the parties’ lease agreements (admitted at
trial as exhibit numbers two and five) contained prevailing party
attorneys’ fees provisions. Based on those provisions, the trial
court concluded Sigal was entitled to reasonable attorneys’ fees
as the prevailing party.
Javaheripour contends, without mention of the lease
agreements, that the trial court erred by awarding attorneys’ fees
to Sigal because “the motion for attorney[s’] fees presented no
evidence that a written agreement contained an attorney[s’] fees
clause, or what such an agreement provided, if at all.” (Emphasis
omitted.) It is unclear whether Javaheripour’s appellate counsel
was simply unaware of the relevant provisions in the lease
agreements, or whether she is arguing that a moving party must
always attach the attorneys’ fees agreement (even if previously
admitted as an exhibit at trial) to a motion for attorneys’ fees. In
any event, Javaheripour cites no authority for that proposition,
and failed to raise the argument in the trial court. Therefore the
argument has been forfeited. (Ochoa v. Pacific Gas & Electric Co.
(1998) 61 Cal.App.4th 1480, 1488, fn. 3 [arguments not raised in
the trial court are forfeited on appeal].) The trial court properly
determined Sigal was entitled to attorneys’ fees as the prevailing
party.
C. The Trial Court Did Not Abuse Its Discretion in
Determining the Attorneys’ Fee Award
Javaheripour contends the award is excessive on the
following grounds: (1) Sigal’s fees incurred in connection with a
prior unlawful detainer action (the First U.D. Action) were
improperly awarded in this action; (2) Sigal’s attorneys billed for
duplicative work; and (3) the hours must have been “padded”
because this was a simple case in which the trial lasted only eight
hours. As explained below, none of these contentions has merit.
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Under Civil Code section 1717, subdivision (a), “reasonable
attorney[s’] fees shall be fixed by the court” in an action “where
the contract specifically provides that attorney[s’] fees and
costs . . . shall be awarded . . . .” Because an award of attorneys’
fees under section 1717 is governed by equitable principles, “the
trial court has broad authority to determine the amount of a
reasonable fee. [Citations.]” (PLCM Group, Inc. v. Drexler (2000)
22 Cal.4th 1084, 1095.) The trial judge “‘is the best judge of the
value of professional services rendered in his [or her] court, and
while his [or her] judgment is of course subject to review, it will
not be disturbed unless the appellate court is convinced that it is
clearly wrong.’ [Citations.]” (Serrano v. Priest (1977) 20 Cal.3d 25,
49.) Thus, we review the court’s determination of reasonable
attorneys’ fees for abuse of discretion. (Syers Properties III, Inc. v.
Rankin (2014) 226 Cal.App.4th 691, 697.)
We begin by addressing the First U.D. Action. Before filing
the action underlying this appeal, Javaheripour filed the First
U.D. Action against Sigal. On the morning of trial, however,
Javaheripour dismissed the action after Sigal’s counsel would not
stipulate to reclassify the case as an unlimited civil case and
continue trial. Less than two weeks later, Javaheripour filed this
action, which she concedes was essentially a re-filing of the First
U.D. Action.1
In his motion for attorneys’ fees in this action, Sigal sought
a total of $16,854.50 in fees incurred in connection with the First
U.D. Action. Sigal’s counsel declared those fees were incurred for
1 In her opposition to Sigal’s motion for attorneys’ fees,
Javaheripour stated: “Defendant’s counsel’s hard line litigation
tactic forced Plaintiff to voluntarily dismiss the first unlawful
detainer action and file a second similar action roughly two
weeks later. Rather than stipulate to Plaintiff’s requested relief
in light of Plaintiff’s right to re-file the action, Defendant’s
counsel’s [sic] forced the parties to relitigate a similar case twice
and caused Defendant to incur unnecessary attorneys’ fees and
costs.”
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work he used, and did not have to re-do, in this action, related to
Sigal’s uninhabitability defense. Javaheripour does not argue
that the fees incurred in connection with the First U.D. Action
were excessive. Nor does she contest that the work performed
was reasonably necessary for use in this action. Rather, she
argues attorneys’ fees incurred in the First U.D. Action are not
recoverable because there was no prevailing party in that action.
This argument misses the point. Sigal sought attorneys’ fees
incurred in connection with the First U.D. Action not as the
prevailing party in that action, but as the prevailing party in this
action. Legal fees incurred prior to the filing of an action are
recoverable if, as here, the work performed was necessary and
not re-performed. (See Stokus v. Marsh (1990) 217 Cal.App.3d
647, 655 [“Nothing in [Civil Code section 1717] precludes
compensation for fees incurred prior to filing the complaint,
where fees were reasonably and necessarily incurred at that time
by the prevailing party.”].)
Next, in support of her contention that Sigal’s attorneys
billed for duplicative work and “padded” the bills, Javaheripour’s
argument is limited to the following: “The declarations in support
of the attorney[s’] fee motion indicated that two attorneys for
[Sigal] had essentially performed the same work. [Citation.2]
They claimed they spent 57.7 hours in December alone.
[Citation.] [Sigal] claimed that 116.3 hours was [sic] spent
between January 1 through January 8, 2020. [¶] There were no
depositions taken by either party, only the single ex parte
application was filed, and the trial lasted roughly a total of 8
2 Javaheripour cites to pages three through seven of the
declaration of Mr. Foster, Sigal’s lead counsel, in support of the
attorneys’ fee motion. In that portion of the declaration, Mr.
Foster describes in detail the work he performed. Although he
references certain tasks both he and Mr. Beasley performed (i.e.,
drafting the trial brief, editing witness outlines, and planning the
presentation of evidence), he does not state he and Mr. Beasley
performed identical work.
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hours and was a nonjury trial. [Citation.]” These vague
complaints do not warrant reversal under the deferential
standard of review applicable here. As the trial court observed:
“[Javaheripour’s] litigation strategy, including unreasonably
denying requests for admissions that were later found to be true
by the Court, filing two lengthy trial briefs including a 123 page
second trial brief that contained completely new arguments and
theories, ex parte applications, and attempted site inspections, all
drove the cost of this relatively straightforward matter through
the roof. [Sigal’s] attorney[’]s need to address these issues drove
the otherwise large number of hours spent preparing this matter
for trial, and the Court concludes that the time spent was
reasonable. [Sigal’s attorney’s] declaration addresses in detail the
services and hours spent by counsel responding to these events
and preparing the case for trial.” Javaheripour does not directly
contest these findings. We discern no abuse of discretion.
Finally, Javaheripour argues, without citation to evidence
in the record, that the hourly rates “were far above even [those]
customarily charged by attorneys handling ordinary civil
litigation.” We reject this contention. Sigal supported his motion
in the trial court with a declaration from his attorneys’ firm’s
chief marketing and financial officer stating the attorneys’ rates
were competitive. Javaheripour presented no evidence to the
contrary. She also argues, under the heading “Summary of
Contentions” in her opening brief, that Sigal did not meet the
“burden of proof” because he did not provide a “specific
itemization of services rendered[.]” Javaheripour fails, however,
to support this contention with reasoned argument or any legal
authority. We therefore deem this argument forfeited. (See
Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,
852 [conclusory assertion of error unaccompanied by citation to
legal authority or “pertinent argument or an attempt to apply the
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law to the circumstances of [the] case is inadequate” and may be
treated as forfeited].)3
Accordingly, we conclude Javaheripour failed to carry her
burden to show the trial court’s award of $178,190.50 as
attorneys’ fees constituted an abuse of discretion.
D. Sigal Is Awarded His Attorneys’ Fees On Appeal
Sigal requests attorneys’ fees reasonably incurred on
appeal. We agree he is entitled to those fees, in an amount to be
determined by the trial court. (See Serrano v. Unruh (1982) 32
Cal.3d 621, 637 [“[I]t is established that fees, if recoverable at all
– pursuant either to statute or parties’ agreement – are available
for services at trial and on appeal. [Citations.]”].)
3 We also note that, again under the heading “Summary of
Contentions” in her opening brief, Javaheripour states: “An
award of fees for denial of requests for admissions is limited to
the cost of proof.” Javaheripour fails to develop this argument
and, in any event, the court awarded attorneys’ fees to Sigal as
the prevailing party pursuant to Civil Code section 1717, not as
costs of proof sanctions under Code of Civil Procedure section
2033.420 [a party that denies a pretrial request for admission
without a reasonable basis can be ordered to pay to the
propounding party the reasonable expenses incurred—including
attorney fees and costs—in proving the matter covered by the
request (costs of proof).].
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DISPOSITION
The order and judgment are affirmed. Sigal is awarded his
costs and attorneys’ fees on appeal. The matter is remanded to
the trial court for its determination of the amount of an award of
attorneys’ fees on appeal to Sigal, and entry of an order awarding
those fees.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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