Robinson v. Montana Bail Bonds CA2/2

Filed 10/15/13 Robinson v. Montana Bail Bonds 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
GRACE D. ROBINSON, B246891
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GC044161)
v.
MONTANA BAIL BONDS, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
C. Edward Simpson, Judge. Affirmed.
Law Offices of G. Marshall Hann and G. Marshall Hann for Defendant and
Appellant.
Pasadena Law Center and E. Samuel Johnson III for Plaintiff and Respondent.
______________________
This is the second appeal involving these parties. In the first appeal, defendant
and appellant Montana Bail Bonds, Inc. (Montana) challenged the trial court’s judgment
of contempt for its willful violation of a preliminary injunction. (Robinson v. Montana
Bail Bonds, Inc. (July 25, 2012, B233010) [nonpub. opn.] (Robinson I).) On July 25,
2012, we reversed the trial court’s judgment. (Robinson I, supra, B233010, at p. 1.) On
remand, Montana moved for attorney fees. The trial court denied Montana’s motion, and
Montana appeals.
We agree that Montana is not entitled to attorney fees. The trial court’s order is
affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The Deed of Trust and Attorney Fees Provision
On August 30, 2007, Grace D. Robinson (Robinson), as trustor, Underwriters
Surety, Inc., as trustee, and American Surety Company (ASC), as beneficiary, executed a
deed of trust securing payment to ASC resulting from the execution of a bail bond.
Specifically, the deed of trust secures “(1) . . . all monies due to the Beneficiary and for
all interest, premiums, losses, costs, expenses, expenditures, including but not limited to
reasonable attorney’s fees and liability suffered, sustained, made or incurred by the
Beneficiary and as more fully set forth and described in a certain Bail Agreement dated
August 30, 2007, and/or (2) on account of, growing out of, or resulting from the
execution of a certain bond . . . in the amount of $400,000 by Montana Bail Bond as
agent for Beneficiary.” The bail agreement is not part of the appellate record.
The deed of trust further provides “that a certificate signed by the Beneficiary at
any time hereafter stating . . . that any loss, damage, expenditure or liability has been
sustained by the Beneficiary or its agent on account of the Bail Agreement, which
certificate shall specify the date or dates and the amount or amounts of such loss,
damage, expenditure (including reasonable attorney’s fees) or liability . . . and that such
loss, damages, expenditures (including said reasonable attorney’s fees) or determined
liability has not been paid to the Beneficiary, shall be conclusive and binding on the
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Trustor; and shall be the warrant of the Trustee to proceed forthwith to foreclose upon
and sell the security.”
The First Contempt Proceedings
On November 25, 2009, the trial court issued a temporary restraining order,
restraining Montana and Reliable Trust and Deed Services (Reliable) from conducting a
foreclosure of certain real property. Included with the temporary restraining order was an
order to show cause why a preliminary injunction should not be issued. (Robinson I,
supra, B233010, p. 2.) The following day, the trial court filed the written preliminary
injunction. (Id. at p. 3.)
Shortly thereafter, Montana’s attorney advised Reliable that it could proceed with
a trustee sale of the property. Reliable proceeded with the sale; Robinson filed a motion
for sanctions; and the trial court set an Order to Show Cause re Contempt. (Robinson I,
supra, B233010, at pp. 3–4.) At the contempt hearing, the trial court found Montana in
contempt and ordered it to pay monetary sanctions for contempt of court and as damages
to Robinson. (Id. at p. 4.) Montana petitioned this court for a writ of mandate, and we
issued an order indicating that we were considering issuing a peremptory writ directing
the trial court to vacate its contempt order because the record did not contain (1) an
affidavit of facts constituting the contempt as required by Code of Civil Procedure
section 1211, subdivision (a), and (2) evidence of the attorney fees and costs incurred by
Robinson under section 1218, subdivision (a). (Robinson I, supra, B233010, at p. 5.) On
July 23, 2010, the trial court complied with our order and vacated its contempt order,
rendering the writ proceeding moot. (Id. at p. 5.)
The Second Contempt Proceedings
On August 25, 2010, Robinson reinitiated a contempt proceeding, this time with
affidavits of facts in support. (Robinson I, supra, B233010, at pp. 5–6.) The trial court
again issued an order to show cause re contempt for willful disobedience of the injunction
order. (Id. at p. 6.) Again, the trial court found Montana and Reliable in contempt of
court; it fined Montana and Reliable $1,000 each and ordered them to pay Robinson
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reasonable attorney fees and costs incurred in connection with the contempt proceedings.
(Id. at pp. 6–7.)
Montana filed a petition for writ of mandate or prohibition with this court, and we
denied it without comment. (Robinson I, supra, B233010, at p. 7.) Thereafter, a
judgment was filed, holding Montana in contempt and ordering attorney fees and costs.
(Id. at p. 7.) Montana appealed and we reversed the trial court judgment on the grounds
that Robinson did not satisfy the bond requirement and that that requirement had not been
waived. (Id. at p. 13.)
Montana’s Motion for Attorney Fees
Following issuance of the remittitur, Montana filed a motion for attorney fees. It
argued that it was the prevailing party on an action challenging the deed of trust;
accordingly, it was entitled to attorney fees pursuant to the deed of trust. Robinson
opposed the motion.
The trial court denied Montana’s motion, reasoning that the “[c]laims on appeal
did not arise out of the enforcement of the deed of trust. In fact, the deed of trust had
already been foreclosed upon. The appeal arose out of [Montana’s] contempt of the
court’s Preliminary Injunction.”
Montana’s timely appeal ensued.
DISCUSSION
I. Standard of Review
At issue is whether Montana’s success in its appeal of the trial court’s judgment in
the first appeal falls within the scope of the attorney fee provision in the deed of trust.
We review this issue of law de novo. (Loduca v. Polyzos (2007) 153 Cal.App.4th 334,
340.)
II. Analysis
“‘We start with the basic proposition that each party to a lawsuit must pay its own
attorney fees except where a statute or contract provides otherwise. [Citation.] Where
there is a contractual attorney fees provision, [Civil Code] section 1717, subdivision (a)
provides, “[i]n any action on a contract, where the contract specifically provides that
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attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded
either to one of the parties or to the prevailing party, then the party who is determined to
be the party prevailing on the contract, whether he or she is the party specified in the
contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”’”
(Loduca v. Polyzos, supra, 153 Cal.App.4th at pp. 340–341.) Further, California courts
have consistently held that “[i]f a contractual attorney fee provision is phrased broadly
enough . . . it may support an award of attorney fees to the prevailing party in an action
alleging both contract and tort claims.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.)
Although not entirely clear, Montana’s argument appears to be as follows:
Robinson and ASC have an agreement, which contains an attorney fee provision.
Somehow, because it is never explained, Montana can enforce that attorney provision.
That attorney fee provision encompasses all contract and tort claims arising out of or
relating to that deed of trust. Because the contempt proceedings (including Montana’s
successful appeal) arose out of the deed of trust, Montana is entitled to recoup its attorney
fees incurred in appealing the trial court’s judgment.
Montana has not demonstrated that it is entitled to attorney fees. First, Montana
does not explain, with reasoned argument and citations to legal authority, how it can
recover attorney fees pursuant to a contract to which it is not a party. (Benach v. County
of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Second, the appellate record is
incomplete. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1320–1321.) Montana asserts
that it is entitled to attorney fees pursuant to the deed of trust, which incorporates “a
certain Bail Agreement.” But, that bail agreement is not part of the appellate record.
Without the bail agreement, we cannot determine whether Montana’s claim for attorney
fees arises out of the relevant agreements. Third, Montana offers no legal authority in
support of its contention that contempt proceedings fall within the scope of ASC’s losses
sustained “on account of, growing out of, or resulting from the execution of a certain
bond.”
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Based upon what has been provided to us, we agree with the trial court that the
deed of trust is not broad enough to encompass the attorney fees sought. The deed of
trust provides for ASC’s recovery of losses incurred, including attorney fees, as set forth
in the bail agreement, which is not part of the appellate record. The agreement says
nothing about a contempt proceeding. Quite simply, the issue of whether Montana was in
contempt of court for willfully violating an injunction has nothing to do with the deed of
trust.
DISPOSITION
The order is affirmed. Robinson is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
BOREN
____________________________, J.
CHAVEZ
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