Pont v. Pont

Filed 12/20/18; Certified for Publication 1/16/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MICHELLE A. PONT, B284064
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BD512209)
v.
JEFFERY D. PONT,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Richard J. Burdge, Jr., Judge. Affirmed.
Law Office of Foroozandeh and Majid Foroozandeh for
Plaintiff and Appellant.
Stephen Temko for Defendant and Respondent.
____________________
INTRODUCTION
Michelle Pont1 appeals from a $90,000 award in attorney
fees and costs in favor of her ex-spouse Jeffery Pont. The parties
were initially engaged in a marital proceeding, which they
resolved by entering into a stipulated judgment. That judgment
included a release, continued family law court enforcement
jurisdiction, and attorney fees to the prevailing party who was
“forced to seek” court intervention to enforce the stipulated
judgment.
Specifically, by the stipulated judgment, Michelle released
her claims against Jeffery, and the parties agreed that the Los
Angeles family law court would retain jurisdiction to enforce the
stipulated judgment’s terms. Within the paragraph containing
the release, Jeffery made representations about their community
property including that none was given to his new wife, Shantal,
or the business entity Hand Air, LLC and that neither he nor the
community had any interest in Hand Air, LLC. The stipulated
judgment also authorized an award of attorney fees and costs to
the prevailing party “incurred in connection therewith” a party’s
effort “to seek Court intervention to enforce any provision of this
Stipulated Further Judgment.”
Subsequently, Michelle filed a civil lawsuit in
Orange County alleging that Jeffery siphoned some of the
community assets that were subject to the stipulated judgment.
Jeffery successfully demurred and obtained a judgment of
dismissal against Michelle’s civil lawsuit in Orange County. In
1 We will refer to the parties and other individuals by
first name for clarity, not out of familiarity or disrespect. (See
In re Marriage of Schaffer (1999) 69 Cal. App. 4th 801, 803, fn. 2.)
2
the family law court, Jeffery then moved under the stipulated
judgment’s attorney fees provision for recovery of $89,560.50 in
attorney fees and $670.61 in costs he incurred in connection with
the civil action in Orange County. Ultimately, the family law
court awarded Jeffery $90,000 in attorney fees and costs, having
rounded down from the amount Jeffery requested.
We conclude that the attorney fees provision in the
stipulated judgment encompasses these fees and costs because of
its broad language, particularly, the phrase “in connection
therewith.” We also conclude that the family law court did not
abuse its discretion in deeming Jeffery the prevailing party
because he obtained a judgment of dismissal against Michelle’s
civil lawsuit thereby achieving his litigation objectives, which is
the applicable standard. Finally, the family law court did not
abuse its discretion in awarding $90,000 in attorney fees and
costs, and finding that counsel’s hourly rates and number of
charged hours were reasonable, particularly where Michelle has
not provided any competent evidence or analysis challenging
those fees and hours.
Finally, we do not resolve the parties’ dispute over
discovery sanctions to the extent their opening and responding
appellate briefs address them because Michelle clarifies in her
reply that she “has not appealed [them].”
Accordingly, we affirm.
3
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties Resolved Their Marital Dissolution
Action By Entering Into A Stipulated Judgment With
An Attorney Fees Provision
In September 2009, the parties each filed a marriage
dissolution action against the other in the Los Angeles Superior
Court family law court, which actions they stipulated to
consolidate. On December 14, 2011, Jeffery filed a
stipulation and order regarding their final property division,
spousal support, and attorney fees and costs, which both
parties, their counsel, and the family law court, through
Judge Keith M. Clemens, signed.
On March 26, 2012, the family law court, through
Judge Clemens, entered a judgment (nunc pro tunc on
December 31, 2011) pursuant to a stipulated further judgment of
dissolution of marriage. We refer to this document as the
stipulated judgment.
The stipulated judgment contains the following attorney
fees provision: “18.3. If any Party is forced to seek Court
intervention to enforce any provision of this Stipulated Further
Judgment, the prevailing Party shall be entitled to all of her or
his reasonable attorneys’ fees and costs incurred in connection
therewith.”
It also contains a reservation of jurisdiction clause: “20.12.
Reservation of Jurisdiction. Except where this Stipulated
Further Judgment expressly provides otherwise, this Court
reserves jurisdiction to make such further orders, judgments and
decrees as may be necessary or convenient to enforce, but not to
alter or modify, the terms and provisions of this Stipulated
Further Judgment.” (Underscoring omitted.)
4
The stipulated judgment accounted for the parties’
assets including their business entities A.P. Express, LLC and
A.P. Express Worldwide, LLC. It also accounted for spousal and
child support, debts, and a settlement or “equalization” payment
owed by Jeffery to Michelle.
Under the stipulated judgment, in paragraph 10.1(15),
Michelle released Jeffery and his new wife, Shantal, from all
claims regarding another business entity, Hand Air, LLC. As
part of the release, Jeffery represented that neither he nor the
A.P. entities provided funds to Shantal or Hand Air, LLC for
Hand Air Express, LLC’s startup or operating costs through the
date of execution of the stipulated judgment, and that neither he
nor the community had any interest in Hand Air, LLC.
B. Michelle Filed An Unsuccessful Civil Lawsuit
Alleging That Jeffery Wrongfully Dissipated Some Of
The Community Assets That Were Subject To The
Stipulated Judgment
About four years later, on February 9, 2016, Michelle filed
a civil lawsuit against Jeffery, Shantal, and Hand Air Express,
LLC in the Orange County Superior Court. Michelle asserted
causes of action for actual intent to defraud and constructive
fraudulent transfer against all three defendants, and breach of
A.P. Express, LLC’s operating agreement against Jeffery.
Michelle alleged, “In an effort to reduce the assets of the AP
companies in anticipation of reaching a final divorce based on a
Marital Settlement Agreement, defendant Jeff Pont with the
assistance of defendant Shantal Pont began transferring AP
assets, money and customer accounts to Shantal Pont as the
CEO for Hand Air Express, LLC.”
5
On June 1, 2016, Jeffery’s family law counsel,
Meyer, Olson, Lowy & Meyers, LLP (Meyer Olson), through
attorney Lisa Meyer,2 wrote directly to Michelle stating, “In the
event you are unwilling to comply with this request [to dismiss
the civil lawsuit with prejudice], this letter shall serve as further
Notice that Mr. Pont will proceed in filing an Application with
the Family Law Department of the Los Angeles Superior Court
seeking to enforce the Judgment. Please be advised that
Mr. Pont will also include a request for attorneys’ fees and costs
pursuant to Paragraph 18.3 of the Judgment . . . .”
Apparently, there was confusion over whether Michelle was
then represented by counsel. Thus, in a subsequent letter,
attorney Meyer wrote to Michelle’s counsel reiterating the
demand: “Unless you forthwith confirm that Ms. Pont has
dismissed her pending Civil Complaint and provide proof of
same, we will proceed in seeking enforcement of Paragraph
10.2(15) of the parties’ Family Law Judgment, and attendant
prevailing party attorneys’ fees and costs as authorized by
Paragraph 18.3 of the Judgment.”
On June 10, 2016, on behalf of Jeffery, attorney Meyer filed
an ex parte application in the family court and request for an
order for prevailing party attorney fees and costs under
paragraph 18.3 of the stipulated judgment. Additionally, Jeffery
requested an order temporarily staying his payment obligations
to Michelle pending the civil lawsuit, a finding that Michelle
violated the release contained in the stipulated judgment, an
2 To the extent Michelle objects to attorney Meyer’s
declaration, she “failed . . . to get a ruling from the trial court on
the objection, thus failing to preserve the issue for appeal.”
(Bussard v. Minimed, Inc. (2003) 105 Cal. App. 4th 798, 801, fn. 1.)
6
order enforcing the release, an order requiring Michelle to comply
with the release and dismiss the civil lawsuit, a finding that the
family law court retains jurisdiction over Michelle’s claims
related to Hand Air Express, LLC, a finding that Jeffery was the
prevailing party in “this enforcement proceeding,” and an order
permitting Jeffery to withhold portions of two future equalization
payments to satisfy the attorney fees and costs award.
The family law court, through Judge Kathleen O. Diesman,
ruled as follows: “Insufficient showing of exigent circumstances.
No authority to dismiss or order dismissal of a civil action.
Set on regular calendar for hearing through clerk’s office.”
The hearing was then set on the family law court’s regular
calendar for July 25, 2016. It was subsequently continued
to November 2, 2016, February 8, 2017, and finally to
April 19, 2017. We recount those portions of the hearings
relevant to this appeal in Subsection C, below.
In the meantime, also in response to Michelle’s civil
lawsuit, Jeffery, Shantal, and Hand Air Express, LLC engaged
Rutan & Tucker, LLP (Rutan), which filed a demurrer on
June 9, 2016 on their behalf in the Orange County civil law court.
Jeffery, Shantal, and Hand Air Express, LLC argued that the
civil law court lacked jurisdiction because the family law court’s
jurisdiction had already been invoked and, further, Michelle
waived the claims she asserted in her civil complaint by agreeing
to paragraph 10.1(15) of the stipulated judgment.
On September 14, 2016, the civil law court sustained the
demurrer without leave to amend on the ground that it lacked
jurisdiction over the family law matters asserted in the civil
lawsuit with no possibility of successful amendment, citing
Neal v. Superior Court (2001) 90 Cal. App. 4th 22 (Neal),
7
Rubenstein v. Rubenstein (2000) 81 Cal. App. 4th 1131, 1146
(Rubenstein), and Kuehn v. Kuehn (2000) 85 Cal. App. 4th 824, 834
(Kuehn). The Orange County court’s ruling did not provide an
explanation of those cases, but we note that they state that
“family law cases should not be allowed to spill over into civil
law” (Neal, supra, 90 Cal.App.4th at p. 25), and that where a
family law judgment is procured by fraud, a tort remedy is
unavailable (Rubenstein, supra, 81 Cal.App.4th at p. 1146;
Kuehn, supra, 85 Cal.App.4th at p. 834).
On October 13, 2016, the Orange County civil court entered
judgment against Michelle dismissing her complaint and
awarding $1,412.70 in costs to Jeffery, Shantal, and Hand Air
Express, LLC pursuant to their memorandum of costs for
their civil law counsel’s work.3 On January 19, 2017, the
Orange County civil law court denied Michelle’s motion for leave
to file a first amended complaint for the following reasons: “[T]he
gravamen of the proposed First Amended Complaint is still the
fraudulent conveyance of community property. As ruled in
connection with the prior demurrer to the complaint, such
matters are for the Family Law Court to decide, and this court
has no jurisdiction to hear the matter.”4 The appellate record
does not indicate that Michelle appealed that judgment.
3 The memorandum of costs is not in the appellate record.
Additionally, the record does not disclose whether Jeffery,
Shantal, and/or Hand Air Express, LLC sought, or were awarded
attorney fees for the work of either Rutan or Meyer Olson in the
Orange County civil court.
4 We observe that it is unclear why the Orange County
civil law court considered Michelle’s motion for leave to amend
after judgment was entered in light of its earlier ruling
8
Also in the meantime, in the family law court, the parties
engaged in a dispute over Michelle’s failure to appear for a
deposition multiple times and a related sanctions request.
Judge Richard J. Burdge, imposed a $15,000 sanction against
Michelle for discovery abuse. Further, Michelle unsuccessfully
moved to disqualify Meyer Olson and was sanctioned $8,500 for
doing so under Family Code section 271.
Additionally, Michelle filed for Chapter 13 bankruptcy,
which case was eventually dismissed for failing to file the
required schedules. Michelle also filed an adversary suit in the
bankruptcy court against Meyer Olson, which it moved to
dismiss. The record does not disclose the outcome of that motion
to dismiss, but, in any event, neither party specifically addresses
it with respect to the attorney fees issues raised in this appeal.
C. The Family Law Court Awarded Jeffery $90,000 In
Attorney Fees And Costs Under The Stipulated
Judgment, Citing Civil Code Section 1717
On February 8, 2017, the parties returned to the family law
court to proceed on Jeffery’s request for an award of fees incurred
to Meyer Olson only. At that hearing, the family law court,
through Judge Burdge, requested additional briefing on Jeffery’s
entitlement to attorney fees under paragraph 18.3 of the
stipulated judgment, a breakdown of fees incurred and covered by
the stipulated judgment, and whether Jeffery could be deemed a
prevailing party in light of what the family law court described as
the civil lawsuit’s becoming moot.
sustaining the demurrer without leave to amend and judgment of
dismissal.
9
On March 27, 2017 and April 5, 2017, Jeffery and Michelle,
respectively, filed the requested additional briefing. In his
additional briefing, Jeffery argued that he was entitled to an
award of attorney fees and costs under the stipulated judgment’s
attorney fees provision, which he characterized as “extremely
broad.” He argued that he was the prevailing party in the civil
action, and because the civil action violated the stipulated
judgment, he was also the prevailing party in this family law
proceeding. He further argued that his family law counsel were
forced to file the request for order to seek court intervention to
confirm the family law court’s continuing jurisdiction and enforce
Michelle’s release that was memorialized in paragraph 10.1(15)
of the stipulated judgment. Jeffery did not expressly cite Civil
Code section 1717, which governs an attorney fees award “[i]n
any action on a contract.” (Civ. Code, § 1717, subd. (a).)
Jeffery next argued, “[i]n addition to the foregoing,”
Code of Civil Procedure section 1032 authorized the family law
court to award attorney fees as costs (id., subd. (b)) and
determine the prevailing party where a party recovers something
other than monetary relief (id., subd. (a)(4)). He also cited
Code of Civil Procedure section 1033.5, subdivision (a)(10) as
allowing attorney fees as costs under Code of Civil Procedure
section 1032 when authorized by contract, statute, or law.
Finally, Jeffery asserted alternatively that he should be
awarded attorney fees and costs as a sanction under Family Code
section 271.
Although Jeffery sought fees only for Meyer Olson’s work,
Jeffery’s additional briefing included his, attorney Meyer’s, and
his Rutan attorney’s declarations, with their respective
timekeeping and billing records appended as exhibits. As for
10
Meyer Olson, it represented that Jeffery incurred $90,231.11 in
attorney fees and costs, and that those charges were reasonably
necessary to represent him. An exhibit attached to attorney
Meyer’s declaration summarized the attorney fees charged by the
firm, which totaled $89,560.50. Attorney Meyer charged $800 per
hour for 54.9 hours’ work; attorney LaMolinara, $400 per hour for
106.3 hours’ work; attorney Herrington, $215 per hour for 0.4
hours’ work; attorney Dickerson, $195 per hour for 9.1 hours’
work; and a law clerk, $120 per hour for 10.5 hours’ work. Tasks
included document review, legal research, interoffice memoranda,
communication and conferences, the ex parte application, and
court appearances. The exhibit also summarized costs including
filing fees, transcript, court parking, legal research, and
photocopying, totaling $670.61.5
In opposition, Michelle filed a declaration and
memorandum of points and authorities. She asserted that
Jeffery’s request should be denied because Meyer Olson did not
represent Jeffery in the Orange County civil lawsuit. She also
asserted in a single-paragraph sentence, “there is nothing to be
enforced; as such there CANNOT be a prevailing party.” She
further asserted that the family law court did not have exclusive
jurisdiction because the dissolution action was disposed of by
final judgment. Michelle cited Civil Code section 1717 for the
proposition that the trial court may find no prevailing party for
fees purposes. She characterized Jeffery’s request as a “head
5 Michelle did not challenge any costs below or in this
appeal. Accordingly, we do not address the costs portion of the
award.
11
scratcher” and speculated that it “is grounded upon greed for
money unnecessarily spent.”6
She further contended that Jeffery “was being doubled [sic]
billed by two separate Law Firms for the same legal services,”
Meyer Olson was not counsel of record in the civil lawsuit, and
the dissolution judgment’s attorney fees provision did not apply
to fees Jeffery paid to Rutan. Regarding Meyer Olson’s hourly
rates, Michelle stated, “$800.00 may be a new gold standard
hourly rate for family law practitioners in Los Angeles, but
whatever is a fair hourly rate, is a side issue here.” She,
however, proffered no evidence to support that assertion. Finally,
she asserted that Jeffery was not forced to seek court
intervention to enforce the stipulated judgment because Rutan
represented him well in the Orange County court.
Michelle filed an additional supplemental brief.
Addressing attorney Meyer’s declaration, Michelle commented
that the family and civil law courts made no finding that Jeffery
prevailed on his request for order for attorney fees for the reason
that attorney Meyer claimed, which Michelle summarized as,
“the Civil Court’s ruling was tantamount to the Family Law
Court finding that it in fact retained continuing jurisdiction.”
Michelle asserted that Meyer Olson’s work lacked “any
reasonable necessity for the prompt, proper and effective
representation of Jeffery in the civil action.” Michelle also
commented on the Rutan attorney’s declaration, concluding,
without explanation, that, between his family and civil law
6 Because Jeffery did not seek fees or costs under
Code of Civil Procedure section 128.7, we do not address
Michelle’s contentions that section 128.7 would not support
the award of fees and costs against her.
12
counsel, Jeffery was billed $150,000 for the demurrer. Michelle
stated that “[i]n reality,” Rutan billed Jeffery only $8,337.50, and
that amount would be a reasonable attorney fees award.
Michelle asserted that Meyer Olson’s bills were excessive
because multiple attorneys worked on the case. Michelle did not,
however, identify any duplicative tasks. She then asserted that
Family Code sections 271 (authorizing a sanction for conduct
that frustrates settlement of a family law dispute) and 2030
(authorizing fee shifting to ensure that each party has access
to legal representation in dissolution proceedings) were
inapplicable. Finally, she asserted that neither party prevailed,
but she provided no supporting legal analysis.
At the April 19, 2017 hearing, the family law court, through
Judge Burdge, announced its tentative ruling to award Jeffery
$90,000 in attorney fees under paragraph 18.3 of the stipulated
judgment and Civil Code section 1717. The family law court
concluded that the civil action was arguably contrary to the
stipulated judgment, and therefore it was reasonable for Jeffery
to seek to enforce the stipulated judgment and file the ex parte
application at the outset of the civil lawsuit “to try to stop the
bleeding before it started.” It further found Jeffery was
successful in thwarting what it characterized as Michelle’s
“attack on the finality of the [stipulated] judgment.”
The family law court commented that Meyer Olson’s hourly
rates were high but “within the range of rates charged by firms of
this capacity in this area.” It stated that it had reviewed all the
bills and $90,000 did not cover them all. The family law court
also noted that although multiple Meyer Olson attorneys were
engaged, Jeffery’s fees request ameliorated potential excessive
13
billing by, for example, omitting charges for attorneys attending
the same conferences.
The family law court further noted that Michelle’s
opposition papers included “a lot of ad hominem attacks as to
whether [the amount of Jeffery’s request] was appropriate . . . but
there was no specific challenge to either any particular activity or
any particular billing charged . . . . It was just complained about,
the cost of the whole charge.”
Michelle’s counsel asked whether the award was being
made under Code of Civil Procedure section 128.7; the family law
court stated that it was making the order under Civil Code
section 1717. Michelle’s counsel also asked if the award included
fees Rutan charged; the court stated that it did not. Michelle’s
counsel asked if the award included Meyer Olson’s charges for
reviewing the demurrer and attending hearings in the civil
lawsuit; the court responded in the affirmative, stating that the
charges were reasonable. Finally, Michelle’s counsel referenced
Family Code sections 271 and 2030, and Askew v. Askew (1994)
22 Cal. App. 4th 942 (Askew) (after the family law court acquires
jurisdiction to divide community property in a dissolution action,
no other trial court department may make an order adversely
affecting that division); the court responded that the award was
not being made under Family Code section 271 or 2030.
On June 20, 2017, the family law court entered the
following order: “Pursuant to Civil Code, §1717, and in
accordance with the prevailing party fee provision set forth in the
Parties’ Judgment, the Court hereby grants a Judgment for
attorney’s fees and costs against Petitioner [Michelle] in favor of
Respondent [Jeffery] in the sum of NINETY THOUSAND
DOLLARS ($90,000).” (Underscoring and fn. omitted.)
14
The order also stated the following findings: Jeffery’s
June 10, 2016 ex parte application was a reasonable attempt to
enforce the stipulated judgment, the charges for Jeffery’s family
law counsel to attend hearings in the civil lawsuit were
reasonable, Jeffery was successful and the prevailing party, and
Meyer Olson’s hourly rates were reasonable. Michelle timely
appealed this order. (P R Burke Corp. v. Victor Valley
Wastewater Reclamation Authority (2002) 98 Cal. App. 4th 1047,
1053 (P R Burke Corp.) [post judgment order awarding attorney
fees is separately appealable].)
STANDARD OF REVIEW
“ ‘[A] determination of the legal basis for an attorney fee
award is a question of law to be reviewed de novo.’ ” (Mountain
Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th
744, 751 (Mountain Air).) “[T]he reviewing court will examine
the applicable . . . provisions of the contract” “to determine
whether an award of attorney fees is warranted under a
contractual attorney fees provision.” (Carver v. Chevron U.S.A.,
Inc. (2002) 97 Cal. App. 4th 132, 142.)
“We review the trial court’s prevailing party determination
for an abuse of discretion.” (City of Santa Maria v. Adam (2016)
248 Cal. App. 4th 504, 516.) A “trial court decision on
the . . . amount of . . . attorney fees to be awarded” is also
reviewed for abuse of discretion. (Mountain Air, supra, 3 Cal.5th
at p. 751.) “ ‘ “An abuse of discretion occurs if, in light of the
applicable law and considering all of the relevant circumstances,
the court’s decision exceeds the bounds of reason and results in a
miscarriage of justice. [Citations.] This standard of review
affords considerable deference to the trial court provided that the
court acted in accordance with the governing rules of law. We
15
presume that the court properly applied the law and acted
within its discretion unless the appellant affirmatively shows
otherwise.” ’ ” (Espejo v. The Copley Press, Inc. (2017)
13 Cal.App.5th 329, 378 [in context of statutory attorney fees
award under Code of Civil Procedure section 1021.5].)
DISCUSSION
A. The Parties’ Stipulated Judgment Supports The
Attorney Fees Award Because It Contains A Broadly
Phrased Attorney Fees Provision, And The Litigation
Surrounding Michelle’s Civil Lawsuit Falls Within
Its Scope
“Except as attorney’s fees are specifically provided for by
statute, the measure and mode of compensation of attorneys and
counselors at law is left to the agreement, express or implied, of
the parties.” (Code Civ. Proc., § 1021.) In the case of a
contractual attorney fees provision, as here, “any inquiry begins
with the language of the attorney fees provision itself.”
(Mountain Air, supra, 3 Cal.5th at p. 760.)
“ ‘[I]n construing a contract the court’s function is not
merely to import all of the possible definitions or even the
broadest definition, but to glean the meaning of the words from
the context and usage of the words in the contract itself.’ ”
(Mountain Air, supra, 3 Cal.5th at p. 755, italics omitted.) “Thus,
if the facts . . . warrant it, courts ‘should consider the pleaded
theories of recovery, the theories asserted and the evidence
produced at trial, if any, and also any additional evidence
submitted on the motion in order to identify the legal basis of the
prevailing party’s recovery.’ ” (Id. at pp. 760-761.) The approach
should not be “overly formalistic.” (Id. at p. 760.)
16
With these principles in mind, we also observe that “[t]he
words of a contract are to be understood in their ordinary and
popular sense, rather than according to their strict legal
meaning; unless used by the parties in a technical sense, or
unless a special meaning is given to them by usage, in which case
the latter must be followed” (Civ. Code, § 1644), and “[t]he whole
of a contract is to be taken together, so as to give effect to every
part, if reasonably practicable, each clause helping to interpret
the other” (id., § 1641).
Here, the parties’ attorney fees clause states: “If any Party
is forced to seek Court intervention to enforce any provision of
this Stipulated Further Judgment, the prevailing Party shall be
entitled to all of her or his reasonable attorneys’ fees and costs
incurred in connection therewith.”
The parties dispute whether “Court intervention” is limited
to the family law court. Although “Court” is capitalized, it is not
expressly defined in the stipulated judgment. In context, “forced
to seek Court intervention” is modified by “to enforce any
provision of this Stipulated Further Judgment.” The party
opposing the relief sought in a court other than the Los Angeles
family law court would need to bring a defense in that other
court. Thus, we conclude that the parties did not intend to limit
“Court intervention” to the Los Angeles family law court,
especially given the stipulated judgment’s continuing jurisdiction
provision which Jeffery sought to enforce.7
7 Michelle also asserts the term “ ‘court intervention’ refers
solely to a Family Law court” because Jeffery has “steadfastly
argued [that the family law court] was the only court with
jurisdiction to hear any matter arising out of the Stipulated
Further Judgment.” Michelle fails to support her interpretation
17
We acknowledge that the stipulated judgment refers to “the
Court” in stating factual findings. For example, paragraph
15.2(3) states, “The Court finds that no sums of child support are
presently due.” In that context, “the Court” obviously means the
family law court because no other court was making factual
findings throughout the parties’ dissolution action. The attorney
fees provision, however, appears in a different context as
described above. Additionally, it is phrased as “Court,” not “the
Court.” The definite article “the” particularizes “Court” to mean
the family law court. By omitting the word “the” before “Court”
in the attorney fees provision, the parties expressed their intent
that the term “Court” refer more broadly to any court.
Even if the term “Court intervention” were limited to the
family law court, “in connection therewith” expands that term’s
scope. “In connection therewith” modifies the fees and costs
authorized by the fees provision. The fees and costs are
recoverable where incurred to enforce the stipulated judgment.
Thus, so long as the fees and costs were incurred to enforce the
stipulated judgment, or in connection therewith, they are
recoverable regardless of in which court they were incurred.
Concerning “forced to seek,” by bringing a lawsuit, Michelle
required Jeffery to participate in the Orange County civil court
proceedings. Jeffery’s only alternative was to decline to
participate and default. If the only choice is to default, then
with citation to authority or the record and therefore fails to meet
her burden on appeal. (Keyes v. Bowen (2010) 189 Cal. App. 4th
647, 655-656 (Keyes).) As noted above, we disagree with her
argument based on the language in the attorney fees provision,
its context within the stipulated agreement, and principles of
contract interpretation.
18
mounting a defense instead constitutes being “forced to seek
court intervention.”
Turning to the language “enforce any provision of this
Stipulated Further Judgment,” the stipulated judgment provided
that the family law court retained jurisdiction to enforce its
terms. Michelle cannot evade that continuing jurisdiction by
casting her claims as torts. (See Neal, supra, 90 Cal.App.4th
at p. 25 [granting writ directing trial court to sustain demurrer
and stating that “family law cases should not be allowed to spill
over into civil law, regardless of whether the family law matter
may be characterized as an action for fraud (Askew[, supra,
22 Cal. App. 4th 942]), malicious prosecution (Bidna[ v. Rosen
(1993) 19 Cal. App. 4th 27]), or securities law violation (D’Elia[ v.
D’Elia (1997) 58 Cal. App. 4th 415]). Almost all events in family
law litigation can be reframed as civil law actions if a litigant
wants to be creative with various causes of action.”].)
Michelle brought a civil action in Orange County Superior
Court asserting fraud, fraudulent transfer, and breach of A.P.
Express, LLC’s operating agreement based on an allegation that
Jeffery was attempting to reduce Michelle’s “share of the former
community estate” with “[t]he end result . . . that
Michelle . . . received substantially less from the marital
settlement agreement.” Michelle asserted the two fraud claims
against Jeffery, Shantal, and Hand Air Express, LLC. She
asserted the breach of contract claim against Jeffery.
To the extent Michelle’s claims in the Orange County civil
case concerned the circumstances surrounding the stipulated
judgment’s formation or efforts by Jeffery and other parties to
defeat the stipulated judgment’s allocation of properties
addressed in that judgment, Michelle was required to bring those
19
claims in the family law court in Los Angeles. When she chose
the Orange County civil forum instead, she violated the
continuing jurisdiction provision in the stipulated judgment.
Jeffery’s defense of the Orange County civil litigation was thus
necessary to enforce that jurisdiction provision.
Michelle asserts that the term “enforce” excludes tort
claims, and that Jeffery’s demurrer to her civil complaint did not
“directly” seek to enforce the stipulated judgment. Michelle’s
contention lacks merit because even if arguendo the demurrer
were an “indirect” enforcement effort, the “in connection
therewith” language brings the demurrer proceedings within
the fee provision’s scope. (See Mountain Air, supra, 3 Cal.5th
at p. 757 [describing the similar term “ ‘in connection with’ ” as
broad and observing that it “has been interpreted to extend to
both contract and tort claims in a contractual attorney fees
provision”].)
In support of her assertion that the attorney fees provision
excludes tort claims, Michelle cites Exxess Electronixx v. Heger
Realty Corp. (1998) 64 Cal. App. 4th 698. There, the appellate
court concluded that tort claims for constructive fraud and breach
of fiduciary duty were excluded under the following attorney fees
provision, reasoning that those claims were not brought to
“enforce” the commercial lease in which the fees provision
appeared: “If any Party or Broker brings an action or proceeding
to enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter defined) or Broker in any such
proceeding, action, or appeal thereon, shall be entitled to
reasonable attorney’s fees.” (Id. at pp. 702-703, 709.) This
provision is distinguishable from the one here because it lacks
the broadening terms “forced to seek Court intervention” and “in
20
connection therewith,” which encompass attorney fees and costs
incurred in the service of enforcing the stipulated judgment.
In sum, the family law court did not err in interpreting the
attorney fees provision to encompass Jeffery’s requested fees and
costs. We thus turn to whether the family law court abused its
discretion in deeming Jeffery the prevailing party.
B. The Family Law Court Did Not Abuse Its Discretion
In Deeming Jeffery The Prevailing Party Because He
Achieved His Litigation Objectives By Obtaining A
Judgment Of Dismissal Against Michelle’s Civil
Lawsuit, Thereby Enforcing The Stipulated
Judgment’s Jurisdiction Clause
Jeffery argues that the second sentence of Code of Civil
Procedure section 1032, subdivision (a)(4) provides the applicable
standard for determining the prevailing party. The family law
court applied Civil Code section 1717. We do not have to decide
which of these provisions governs the dispute here because both
statutes define prevailing party in terms of overall litigation
success and recognize that equitable principles inform this
determination. We conclude that the family law court did not err
in finding that Jeffery had achieved overall litigation success.
(Sears v. Baccaglio (1998) 60 Cal. App. 4th 1136, 1156 (Sears)
[although the two statutes “are not identical in their language
and therefore differ in application,” “where there is evidence of
other success [other than the greatest net monetary
recovery], . . . the court is entitled to take such recovery into
account when calculating which side prevailed. This should be
true under Civil Code section 1717 as well as under Code of Civil
Procedure section 1032.”].)
21
Civil Code section 1717 states that “the party prevailing on
the contract shall be the party who recovered a greater relief in
the action on the contract.” (Civ. Code, § 1717, subd. (b)(1).)
“ ‘[I]n deciding whether there is a “party prevailing on the
contract,” the trial court is to compare the relief awarded on the
contract claim or claims with the parties’ demands on those same
claims and their litigation objectives as disclosed by the
pleadings, trial briefs, opening statements, and similar sources.
The prevailing party determination is to be made only upon final
resolution of the contract claims and only by “a comparison of the
extent to which each party ha[s] succeeded and failed to succeed
in its contentions.” ’ ” (Roberts v. Packard, Packard & Johnson
(2013) 217 Cal. App. 4th 822, 834, italics omitted.) “ ‘[I]n
determining litigation success, courts should respect substance
rather than form, and to this extent should be guided by
“equitable considerations.” For example, a party who is denied
direct relief on a claim may nonetheless be found to be a
prevailing party if it is clear that the party has otherwise
achieved its main litigation objective.’ ” (Maynard v. BTI Group,
Inc. (2013) 216 Cal. App. 4th 984, 992, italics omitted (Maynard).)
Code of Civil Procedure “[s]ection 1032, subdivision (b)
provides that ‘[e]xcept as otherwise expressly provided by
statute, a prevailing party is entitled as a matter of right to
recover costs in any action or proceeding’ and [Code of Civil
Procedure] section 1033.5, subdivision (a)(10)(A) provides
that allowable costs include attorney fees ‘when authorized
by . . . [¶] . . . Contract.’ ” (Maynard, supra, 216 Cal.App.4th
at p. 994.) Code of Civil Procedure section 1032,
subdivision (a)(4) defines prevailing party as “the party with a
net monetary recovery, a defendant in whose favor a dismissal is
22
entered, a defendant where neither plaintiff nor defendant
obtains any relief, and a defendant as against those plaintiffs
who do not recover any relief against that defendant.” The
second sentence of this subdivision, which Jeffery relies upon,
states, “If any party recovers other than monetary relief and in
situations other than as specified, the ‘prevailing party’ shall be
as determined by the court . . . .” (Ibid.) The inquiry under
Code of Civil Procedure section 1032 is fact intensive and
authorizes the trial court “to consider all factors which may
reasonably be considered to indicate success in the litigation.”
(Sears, supra, 60 Cal.App.4th at p. 1155.)
Here, Jeffery obtained a judgment of dismissal against
Michelle’s civil lawsuit and defeated her subsequent attempt to
seek leave to amend her defective complaint. Especially given
Jeffery’s letters to Michelle demanding that she dismiss her civil
lawsuit, clearly Jeffery obtained his litigation objective of
defeating Michelle’s attack on the stipulated judgment.
Therefore, Jeffery achieved his litigation objectives and was
the prevailing party under either Civil Code section 1717 or
Code of Civil Procedure section 1032.
In her appellate briefing, Michelle makes several
assertions. We address each in turn.
Michelle asserts that the family law court never
determined the prevailing party at the February 8, 2017 or
April 19, 2017 hearings. Michelle appeals from a written order,
and it is the prevailing party finding made in that order which is
controlling regardless of what was stated or unstated at the
hearings. (See P R Burke Corp., supra, 98 Cal.App.4th
at p. 1053.) The order states that Jeffery was the prevailing
23
party. Additionally, at the April 19, 2017 hearing, the family law
court stated that Jeffery “was successful in the litigation.”
Michelle asserts that the family law court did not
determine which party recovered greater relief. This contention
relies upon an incomplete view of the relevant standard. As set
forth above, the determination of which party obtained greater
relief is made “in the sense of most accomplishing its litigation
objectives.” (Maynard, supra, 216 Cal.App.4th at p. 992.)
Michelle asserts that Jeffery was not the prevailing party
because he did not obtain all the particularized items of relief he
requested from the family court in his request for orders
(1) staying his support obligation, (2) offsetting his equalization
payment obligation, and (3) requiring Michelle to comply with the
release and dismiss her civil lawsuit, as well as his request for a
finding that the family law court retains jurisdiction. Michelle
further asserts that she was the prevailing party because she
defeated Jeffery’s June 10, 2016 ex parte request for order (which
contained the request for attorney fees, was continued, and
ultimately heard by Judge Burdge), and the family law court
denied his ex parte application on the ground that it lacked
authority to dismiss or order Michelle to dismiss her civil lawsuit.
Michelle also asserts that with her civil lawsuit dismissed, there
was no need for Jeffery to seek to enforce the stipulated
judgment, rendering moot the relief Jeffery initially sought in his
ex parte application and depriving Jeffery of prevailing party
status.
Michelle’s arguments are formalistic. It was only because
she improperly brought her claims in the Orange County civil
court instead of the Los Angeles family law court that both courts
struggled with their power to tell the other how to proceed.
24
Viewed for what it was, Michelle’s civil lawsuit was an end run
against the continuing family court jurisdiction provided in the
stipulated judgment. Jeffery thus sought a ruling from the
family law court to recognize that court’s continuing jurisdiction,
and simultaneously was forced to defend against Michelle’s
claims in the Orange County civil court by demurring to those
claims on that same jurisdictional basis. (Cf. Neal, supra,
90 Cal.App.4th at pp. 26-27 [“[B]ecause of the inextricable
connection between [respondent]’s supposedly civil causes of
action and the family law case (this case is merely family law
waged by other means), we direct the family law court to make
an appropriate attorney fee award [pursuant to Family Code
section 271] in [petitioner]’s favor for having been dragged
through this unnecessary excursion in the civil court.”].)
Zuehlsdorf v. Simi Valley Unified School Dist. (2007)
148 Cal. App. 4th 249 (Zuehlsdorf) is instructive where the relief a
party initially sought became moot, but that party could
nevertheless be the prevailing party if it achieved overall
litigation success. In Zuehlsdorf, the plaintiff sought to enjoin a
school district from preventing his daughter from joining a school
soccer team. (Id. at p. 252.) The plaintiff obtained a preliminary
injunction. (Id. at pp. 253-254.) The school district complied
with the preliminary injunction, and by the time of trial on the
plaintiff ’s request for a permanent injunction, the soccer season
had ended. (Id. at p. 254.) Thus, the trial court denied the
plaintiff ’s request for a permanent injunction as moot. (Ibid.)
Nevertheless, “this did not deprive [the plaintiff] of prevailing
party status entitling him to [attorney] fees [because h]e was
successful in his attempt to have [his daughter] reinstated in the
25
program while [the school district] failed in [its] efforts to prevent
her participation.” (Id. at p. 257.)
Similarly here, the dismissal of Michelle’s civil lawsuit
obviated Jeffery’s pending request for an order from the family
law court requiring Michelle to comply with the release and
dismiss her civil lawsuit, and for a finding that the family law
court retained jurisdiction. The family law court thus did not
abuse its discretion in deeming Jeffery the prevailing party
because he achieved his overall litigation objective by obtaining a
judgment of dismissal against Michelle’s civil lawsuit in
recognition of the family law court’s continuing jurisdiction under
the stipulated judgment.
In sum, the family law court did not abuse its discretion in
deeming Jeffery the prevailing party.
C. The Family Law Court Did Not Abuse Its Discretion
In Awarding Jeffery $90,000
Attorney fees are determined under the lodestar method,
“ ‘ “calculated by first multiplying the number of hours
reasonably expended on the litigation by a reasonable hourly rate
of compensation.” ’ ” (Calvo Fisher & Jacob LLP v. Lujan (2015)
234 Cal. App. 4th 608, 619.) “ ‘ “ ‘The “experienced trial judge is
the best judge of the value of professional services rendered in
[the] court, and while [the trial judge’s] judgment is of course
subject to review, it will not be disturbed unless the appellate
court is convinced that it is clearly wrong”—meaning that it
abused its discretion.’ ” [Citations.]’ Indeed, . . . the ‘only proper
basis of reversal of the amount of an attorney fees award is if the
amount awarded is so large or small that it shocks the conscience
and suggests that passion and prejudice influenced the
determination.’ [Citation.]” (Id. at p. 620.) “The party opposing
26
the fee award can be expected to identify the particular charges it
considers objectionable.” (Gorman v. Tassajara Development
Corp. (2009) 178 Cal. App. 4th 44, 101.)
Here, Jeffery’s fees and costs request was supported by his
attorneys’ detailed declarations, which included timesheets and
billing records. For each attorney, the records displayed an
hourly rate multiplied by the number of hours spent, consistent
with a lodestar analysis. As set forth above, Meyer Olson’s
hourly rates ranged from $120 to $800 for a total of 181.2 hours’
work. Costs totaled $670.61. The family law court found that
Jeffrey’s attorneys’ hourly rates “are within the range of rates
charged by firms of this capacity in this area.” The family law
court noted that the rates “are higher than many, but they aren’t
higher than everyone. There are a number of firms that charge
similar rates, and I think the work was justified.” Michelle
proffered no contrary evidence.
Jeffery’s family law counsel, moreover, excluded fees
incurred in connection with his request for discovery sanctions
and Michelle’s motion to disqualify Jeffery’s family law counsel.
The family law court expressly awarded no fees based on Jeffery’s
civil law counsel’s work. It also “noted that there were a number
of times when counsel didn’t charge for certain activities, for like,
if there were conferences with two people, he charged for one, and
no charge for the other.” Michelle did not challenge any specific
charge.
Thus, the family law court found that Jeffery’s family law
attorneys’ hourly rates were reasonable and within the range
charged by similarly situated firms, and their work was justified.
To paraphrase Hjelm v. Prometheus Real Estate Group, Inc.
(2016) 3 Cal.App.5th 1155, the family law court judge “was in the
27
best position to determine that, a determination within his
discretion. [Citations.] We can reverse only if [Michelle]
establishes an abuse of that discretion. [Citation.] [She] has
not.” (Id. at p. 1177.)
In her appellate papers, Michelle makes several assertions
that she did not raise below. Accordingly, she forfeited those
contentions. (Nellie Gail Ranch Owners Assn. v. McMullin (2016)
4 Cal.App.5th 982, 997 [“ ‘As a general rule, theories not raised in
the trial court cannot be asserted for the first time on appeal;
appealing parties must adhere to the theory (or theories) on
which their cases were tried.’ ”].) Even if we considered
Michelle’s assertions, they lack merit.
Michelle first asserts that the family law court abused its
discretion by failing to apportion “between . . . ‘enforcement of
judgment’ and the ‘legal services’ extended to the Orange County
civil action.” Michelle does not define her quoted terms, and we
fail to see the distinction she posits, especially given the
stipulated judgment’s authorizing fees for work performed “in
connection [ ] with” enforcing the judgment as we have explained
above. Jeffery’s family law counsel’s participation in the civil
lawsuit is within the scope of that provision.
Second, Michelle asserts that fees could not have been
incurred after September 15, 2016 when the civil action was
dismissed. The record showing that the parties continued to
litigate after that date contradicts Michelle’s assertion. For
example, the civil law court denied Michelle’s motion for leave to
amend on January 19, 2017. Also, the parties appeared at family
law court hearings on Jeffery’s request for order for fees and costs
on February 8, 2017 and April 19, 2017, and filed supplemental
briefing on March 27, 2017 and April 5, 2017. Michelle
28
articulates no reason why awarding fees for these proceedings
was an abuse of discretion.
Third, Michelle asserts that the majority of fees billed
from October 3, 2016 through February 25, 2017 was related
to motions to disqualify Jeffery’s family law counsel and
stay Dr. William Aiello’s deposition. In support, Michelle
merely states that “[a] quick review of the . . . billing
statement . . . shows” these facts and cites her family law court
opposition brief. She does not, however, cite any particular
timekeeping entries, rendering her showing insufficient. (See
Keyes, supra, 189 Cal.App.4th at p. 656 [“It is the appellant’s
responsibility to support claims of error with citation and
authority; this court is not obligated to perform that function on
the appellant’s behalf.”].) We nevertheless reviewed the billing
statements Michelle mentioned in her appellate opening brief,
particularly Jeffery’s family law counsel’s billing statements from
October 3, 2016 through February 24, 2017.8 We identified
entries related to the motion to disqualify but none related to a
motion to stay a deposition or anything concerning a Dr. Aiello.
Michelle also does not explain the significance of Dr. Aiello’s
deposition or its lack of relationship to enforcing the stipulated
judgment. Additionally, Jeffery’s fees request expressly excluded
fees incurred because of the motion to disqualify.
8 Michelle’s record citation erroneously includes portions of
her supplemental opposition brief filed below and omits the
statement of account for charges incurred from February 3, 2017
through February 24, 2017. We nevertheless reviewed the billing
statements for the dates Michelle stated in her opening appellate
brief.
29
Next, Michelle asserts “that the [family law] court
mistakenly awarded the majority of the $90,000 to [Jeffery] for
the June 10, 2016 exparte [sic] application that was flat out
denied, and according to [Jeffery’s family law counsel]’s billing
records, only the sum of $13,600.00 had been incurred at that
time.” (Underline and bold omitted.) Michelle articulates no
basis for her belief that that the family law court “awarded the
majority of ” the fees for the ex parte application. She also does
not cite the record to support her contention that Jeffery’s ex
parte application was “flat out denied.”
Finally, Michelle states, “A $175,000 attorney bill for an
11 [sic] page demurrer cannot be reasonable in the mind [of ] any
reasonable practicing lawyer or competent court of law in the
50 states throughout this nation.” Michelle cites no evidence in
support of this conclusory statement, and does not address the
lodestar calculation, which included tasks in addition to the
demurrer.
Overall, Michelle does not satisfy her burden of
establishing that the family law court abused its discretion in
awarding Jeffery $90,000.
30
DISPOSITION
The order is affirmed. Jeffery is awarded his costs on
appeal.
BENDIX, J.
We concur:
ROTHSCHILD, P.J.
CHANEY, J.
31
Filed 1/16/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MICHELLE A. PONT, B284064
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BD512209)
v.
CERTIFICATION AND
JEFFERY D. PONT, ORDER FOR PUBLICATION
Defendant and Respondent. [NO CHANGE IN JUDGMENT]
The opinion in the above-entitled matter filed
December 20, 2018, was not certified for publication in the
Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
There is no change in the judgment.
BENDIX, J. ROTHSCHILD, P. J. CHANEY, J.