Park Lane Associates, LP v. Alioto CA1/4

Filed 3/5/21 Park Lane Associates, LP v. Alioto CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
PARK LANE ASSOCIATES, LP,
Plaintiff and Respondent,
A155781
v.
JOSEPH ALIOTO et al., (City & County of San Francisco
Super. Ct. No. CJD-13-647251)
Defendants and Appellants.
Defendants Joseph Alioto and Michele Alioto (the Aliotos) appeal an
order awarding plaintiff Park Lane Associates, LP (Park Lane) the attorney
fees it incurred in a prior appeal of this matter. We shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Trial Court Proceedings
This is the second time this case has been before us. The procedural
history is set forth in an opinion of a different panel of this division, Park
Lane Associates, LP v. Joseph Alioto et al. (Jan. 25, 2018, A144383) [nonpub.
opn.] (Park Lane I). We need not repeat that history in detail here. To
summarize the pertinent points, the Aliotos lived in an apartment owned by
Park Lane. Park Lane began renovating the penthouse above the Aliotos’
apartment in 2012. The renovations caused noise and dust, the Aliotos’
water and electricity were shut off periodically, elevators did not always
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work, and the building shook. The disruption made it difficult for Joseph
Alioto (Alioto), an attorney, to carry out his law business from the apartment.
The Aliotos withheld their rent in February 2013, and Park Lane filed
an unlawful detainer action. (Park Lane Associates, LP v. Joseph Alioto et al.
(Super. Ct. S.F. City & County, 2013, No. CUD-13-644351) [the first unlawful
detainer action].) On May 31, 2013, a jury found that Park Lane breached
the implied warranty of habitability by substantially interfering with the
Aliotos’ right to occupy their apartment, and reduced the rent payment for
the month of February 2013 from $10,316.52 to $8,284.87. The contractor for
the renovation work testified he expected work on the penthouse to be
complete by the end of July 2013.
Renovations on the penthouse continued, the Aliotos again withheld
their rent payment in November 2013, and Park Lane brought the current
case, a second unlawful detainer action. On January 3, 2014, the parties
entered into a settlement agreement with a stipulation for entry of future
judgment (together, the Agreement). The Aliotos agreed to pay their back
rent for November and December 2013 and make future rent payments in a
timely manner. In return, Park Lane forgave the Aliotos’ arrearage for June
2013 and reduced their rent by $1,000 per month for 11 months, from
November 2013 through September 2014.
By that time, the Aliotos had been served with a notice terminating
their tenancy pursuant to the Ellis Act, which allows owners of residential
property to remove property from the rental market consistent with certain
guidelines. (Danger Panda, LLC v. Launiu (2017) 10 Cal.App.5th 502, 506–
507; Gov. Code., § 7060 et seq.) They requested and received the right to
remain as tenants until October 24, 2014, with Park Lane reserving its right
to terminate the tenancy earlier pursuant to the Ellis Act and the Aliotos
2
reserving their right to assert defenses to that act, except for the defense of a
“decrease in housing services caused by or related to the construction
activity.” The Agreement included the following release: “[F]or the
consideration herein, [the Aliotos] shall release and hold [Park Lane] . . .
harmless for any inconvenience, decrease in housing services, or distress as a
result of or arising out of the building’s extensive renovation, improvement,
unit rehabilitations, construction, and the like (‘construction activity’). This
release extends to all past, current, and future construction activity that
occurs in or around the building, the [Aliotos’ apartment], and/or other units
in [the building.] It is the express intention of this Agreement that the
consideration provided to [Park Lane] [sic] by [the Aliotos] [sic] shall in every
way compensate [the Aliotos] . . . from all problems, inconveniences,
aggravations, and adverse issues related to the construction activity, and
that [the Aliotos] shall thereafter not be entitled to any further rent
adjustment, abatement, or award of damages as a result thereof except as
allowed by this Agreement. [The Aliotos] acknowledge that construction
activity will continue throughout the duration of [their] tenancy at [their
apartment], and they hereby agree that the consideration provided by this
Agreement shall be sufficient to compensate them for any harm, annoyance,
loss or diminution of housing services, or lack of quiet use and enjoyment
they suffered or will suffer as a result of the past, present, and future
construction activity.”
The Agreement required Park Lane to file a dismissal without
prejudice, but authorized the court to set aside the dismissal upon Park
Lane’s request for the purpose of enforcing the terms of the agreement. The
parties agreed to stipulated terms for entry of a future judgment in the event
of a breach of the settlement agreement, among which, should the court sign
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“a judgment for restitution” of the premises, the Aliotos waived their right to
appeal. The stipulated terms included an attorney fee provision under which
the prevailing party in an action to enforce the terms of the Agreement would
recover attorney fees and costs. Alioto crossed out a second attorney fee
provision included in the copy the Aliotos signed.
Construction work resumed on the penthouse unit in early 2014, and
the Aliotos again withheld their rent payment in April 2014. Along with
three other tenants of the building, they also filed an independent lawsuit
against Park Lane (Greene et al. v. Park Lane Associates, LP (Super. Ct. S.F.
City & County, 2014, No. CC-14-538688) [the Greene action] seeking damages
and injunctive relief as a result of the construction work.
Park Lane then moved for an order vacating dismissal of the current
action and enforcing the Agreement, contending the Aliotos breached the
Agreement by failing to pay their April 2014 rent and by filing the Greene
action. The Aliotos opposed the motion on the ground they signed the
Agreement in the belief construction on the penthouse had been completed.
In response, Park Lane submitted a declaration of its agent stating that he
had told Alioto in December 2013 that he had just bought the penthouse and
intended to move into it in several months after he had work done to
reinforce the roof and add a small elevator. The trial court granted Park
Lane’s request, finding the Aliotos had released all claims from the
renovation, including claims related to future construction activity, and that
the Aliotos’ assumption that there would be no further construction on the
penthouse did not qualify as a mistake of fact. The court vacated dismissal of
the action and entered judgment pursuant to the terms of the Agreement, but
stayed the judgment on condition, inter alia, that the Aliotos reimburse Park
Lane for its attorney fees in bringing the motion. After further proceedings,
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the trial court lifted the stay of the judgment. The Aliotos’ appeal in Park
Lane I concerned these proceedings.
B. Appeal in Park Lane I
In Park Lane I, a different panel of this division affirmed the orders the
Aliotos challenged, concluding the trial court did not abuse its discretion in
vacating dismissal of the action or lifting the stay, and did not err or abuse its
discretion in declining to relieve them of their obligation to pay Park Lane’s
attorney fees.
The Aliotos petitioned for rehearing on the ground, in part, that the
settlement agreement was unenforceable as against public policy because it
purported to waive the implied covenant of habitability. This court declined
to rehear the appeal, but modified a footnote made in the course of rejecting
the Aliotos’ argument that they did not breach the Agreement by withholding
their April 2014 rent (footnote 6).
As modified, footnote 6 of the opinion in Park Lane I reads: “In their
reply brief, the Aliotos assert a public policy argument, not included in their
opening brief, challenging the validity of the settlement’s release and, by
extension, the validity of the trial court’s June 2014 order, by contending any
purported waiver of the warranty of habitability was invalid. The Aliotos
frame their assertion as a response to one of Park Lane’s arguments,
characterizing the latter as an assertion that, through the settlement, they
waived any claim based on the warranty of habitability. The cited portion of
Park Lane’s respondent’s brief did not mention the warranty of habitability,
however; rather, Park Lane there contended that the language of the
settlement itself put the Aliotos on notice there would be further construction
activity in the building. In our original opinion, we declined to consider the
Aliotos’ new argument because they waited until their reply brief to raise it
5
in this appeal, offering no excuse for their delay, and did not sufficiently
develop it by citing facts or law. The Aliotos subsequently petitioned for a
rehearing, citing Morey v. Paladini (1922) 187 Cal. 727, 734, for the
proposition that, when one party is seeking to enforce a contract, and ‘the
court discovers a fact which indicates that the contract is illegal and ought
not to be enforced,’ it must ‘instigate an inquiry,’ even if the issue is raised in
an appellate reply brief. But that case is easily distinguishable because there
a review of ‘the plain terms of the contract itself’ unavoidably led to the
conclusion the parties intended an illegal restraint on trade. (Id. at p. 736.)
In contrast, here, a review of the contract itself does not compel a conclusion
that the Aliotos were waiving the warranty of habitability or that the
agreement otherwise was illegal. In their rehearing petition, the Aliotos cite
to a declaration they filed in the trial court complaining that the construction
created certain disruptions, but they have cited no legal authority compelling
the conclusion the disruptions rendered their apartment uninhabitable.
Accordingly, we reject their belated assertion that the trial court erred in
enforcing their settlement because it was illegal and, therefore, void.”1
The California Supreme Court denied the Aliotos’ petition for review.
C. Motion for Attorney Fees on Appeal
After the appeal in Park Lane I, Park Lane moved for its attorney fees
in post-judgment proceedings in the trial court and on appeal, based on the
fee provision in the Agreement. Park Lane sought a total fee award of
$56,393.50, plus costs. In their opposition, the Aliotos argued the Agreement
is void because it waives the implied warranty of habitability and the
1On March 2, 2018, this division dismissed as moot an appeal in a
separate unlawful detainer action between the parties. (Park Lane
Associates, LP v. Alioto et al., (Mar. 2, 2018, A145019) [nonpub. opn.].)
6
covenant of quiet enjoyment, and that the fees sought included items outside
the scope of the Agreement, which they contended was limited to the fees
incurred in “ ‘bringing [the] enforcement motion’ that resulted in the June 9,
2014, Order” and did not authorize fees related to the appeal of that order or
any other post-judgment matters.
The trial court granted Park Lane’s motion for post-judgment attorney
fees, and awarded $44,736.50, after making deductions for entries not related
to enforcement of the settlement agreement.2 In so doing, the trial court
found, citing the order on rehearing of the appeal in Park Lane I, that the
contract and the attorney fee clause were enforceable, as nothing in the face
of the agreement between the parties was illegal or void as against public
policy. This timely appeal ensued.3
DISCUSSION
I. Enforceability of Attorney Fee Provision
The Aliotos contend attorney fees are unavailable to Park Lane because
the Agreement as a whole is unenforceable as against public policy.
Park Lane argues that all of the Aliotos’ claims, including this one, are
barred because they waived their right to appeal. It is well settled that a
party may waive the right to appeal, as long as the waiver is clear and
2 At the hearing on the motion, the court stated that the reason it
departed from Park Lane’s request was “it wasn’t quite clear whether some of
it was—for example, there was one. I think it was $400. $400 to correct a
typo or something like that. That’s not enforcement of settlement. And there
were some things like that that the Court went ahead and did.” The court
did not itemize the items it disallowed.
3 We grant the Aliotos’ October 15, 2019 request for judicial notice of
their reply brief and petition for rehearing in case No. A144383 and the
notice of intent to withdraw their apartment from the rental market. We
grant Park Lane’s May 28, 2020 request for judicial notice of an order, special
verdict form, and judgment in the Greene action.
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express. (Ruiz v. California State Automobile Assn. Inter-Insurance Bureau
(2013) 222 Cal.App.4th 596, 603 (Ruiz); Guseinov v. Burns (2006) 145
Cal.App.4th 944, 952 (Guseinov).) The Agreement meets that standard. The
Aliotos agreed: “Should a judgment for restitution be signed by the Court,
Defendants expressly waive any right to an appeal or to seek a stay of
execution of judgment or eviction for any reason whatsoever, including
hardship.” But here, the Aliotos challenge the enforceability of the very
agreement that waives their appellate rights. Rather than treating this
challenge as barred by the waiver, we will consider it.
We must first decide whether the decision in Park Lane I, which
rejected the Aliotos’ challenge to the legality of the Agreement, prevents them
from again raising this issue. Park Lane argues the Aliotos’ claim is barred
by the doctrines of law of the case, claim preclusion (or res judicata), and
issue preclusion (or collateral estoppel). The Aliotos contend, and we agree,
that res judicata and collateral estoppel do not apply, so the doctrine under
which this question must be decided is law of the case.
Res judicata “ ‘gives conclusive effect to a former judgment only when
the former judgment was in a different action; an earlier ruling in the same
action cannot be res judicata, although it may be “law of the case” if an
appellate court has determined the issue.’ ” (Phillips v. Sprint PCS (2012)
209 Cal.App.4th 758, 770.) Lennane v. Franchise Tax Bd. (1996) 51
Cal.App.4th 1180 (Lennane) is instructive in a context similar to that before
us. The pertinent question there was the effect of a prior ruling that the
prevailing party taxpayers were entitled to attorney fees and costs after
prevailing on summary judgment in a tax refund action because, pursuant to
section 19717 of the Revenue and Taxation Code, the position of the
defendant Franchise Tax Board (FTB) was “not substantially justified.”
8
(Lennane, at pp. 1183–1184, italics omitted.) The FTB appealed the ruling on
the merits, urging in a footnote that reversal of the judgment would entail
reversal of the attorney fee and cost award and that FTB’s position was
substantially justified in any event. (Id. at p. 1184.) The Court of Appeal
reversed, and was in turn reversed upon review by the Supreme Court.
Neither the opinion in the original appeal nor the Supreme Court’s decision
mentioned the attorney fee and cost award. (Id. at pp. 1184–1185.) On
remand, the taxpayers again sought attorney fees, which the trial court
denied, finding FTB’s position substantially justified. (Id. at p. 1185.)
On appeal of the denial of attorney fees, the taxpayers argued the
original cost order was res judicata on the issue of substantial justification.
(Lennane, supra, 51 Cal.App.4th at p. 1185.) Our colleagues in Division Two
rejected this contention, concluding “[t]he doctrine of res judicata fails
because . . . the first ruling was not in a former action [citations], a
requirement which would also apply should we view the issue as one of
‘collateral estoppel’ [citation]. This was an earlier ruling in the same action.”
(Id. at p. 1185.) Similarly here, the ruling upon which Park Lane seeks to
rely, our decision in Park Lane I, was in the same action as that now before
us. We agree with the Aliotos that res judicata and collateral estoppel do not
provide the proper analytical framework for considering the effect of Park
Lane I.4
4 Park Lane notes in passing that nonsuit was granted as to all causes
of action brought by Alioto in the Greene action, based on the release
contained in the Agreement, but it fails to present a reasoned argument that
this decision in a separate action bars the issue now before us through claim
or issue preclusion. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th
41, 52 [undeveloped arguments not supported by argument may be treated as
forfeited].)
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That framework, we conclude, is instead found in the law of the case.
This doctrine “dictates that an appellate court’s holding, on a rule of law
necessary to an opinion, must be adhered to throughout the case’s subsequent
progress in the trial court and on subsequent appeal, as to questions of law
(though not as to questions of fact).” (City of West Hollywood v. Kihagi (2017)
16 Cal.App.5th 739, 749; see People v. Boyer (2006) 38 Cal.4th 412, 443.) The
doctrine does not apply to “arguments that might have been but were not
presented and resolved on an earlier appeal.” (Leider v. Lewis (2017)
2 Cal.5th 1121, 1130; see Bovard v. American Horse Enterprises, Inc. (1988)
201 Cal.App.3d 832, 842 [prior appeal did not establish law of the case on
legality of contract where court could not have decided issue on record before
it and therefore neither considered nor expressed views on it].) However, it
does apply to “questions not expressly decided but implicitly decided because
they were essential to the decision on the prior appeal.” (Estate of Horman
(1971) 5 Cal.3d 62, 73 (Horman).) The rule is “ ‘one of procedure that
prevents parties from seeking reconsideration of an issue already decided
absent some significant change in circumstances.’ ” (Sargon Enterprises v.
University of Southern California (2013) 215 Cal.App.4th 1495, 1505.)
Interpreting this rule, the court in Lennane noted that no appellate court had
actually determined the issue of FTB’s “substantial justification,” that it
seemed “doubtful either [the Court of Appeal or Supreme Court in the prior
appeal] appreciated the issue was presented,” and that “neither court’s
opinion acknowledged or expressed any view on the question.” (Lennane,
supra, 51 Cal.App.4th at p. 1186.)
With these principles in mind, we consider the case before us. In their
reply brief in Park Lane I, the Aliotos argued that “any provision of the
Settlement Agreement which purports to release and hold Park Lane
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harmless from any future claims arising from construction at 1100
Sacramento Street is not binding because a tenant’s rights to a tenable and
habitable dwelling cannot be waived by agreement.” Dissatisfied with the
response to this argument in our original opinion, the Aliotos sought
rehearing on the ground that the settlement agreement was invalid because
it waived the implied warranty of habitability and that we had a duty to
investigate and determine its illegality. (See Morey v. Paladini, supra, 187
Cal. at p. 734.) In our modified opinion, we distinguished Morey on the
ground the plain terms of the contract there led unavoidably to the conclusion
the parties intended an illegal restraint on trade, but the Agreement at issue
in this case does not compel a conclusion it “waiv[ed] the warranty of
habitability or that the agreement otherwise was illegal.” We further noted
the Aliotos had “cited no legal authority compelling the conclusion the
disruptions rendered their apartment uninhabitable,” and we expressly
“reject[ed] [the Aliotos’] belated assertion that the trial court erred in
enforcing their settlement because it was illegal and, therefore, void.” Thus,
unlike the situation in Lennane and Bovard, the Aliotos raised and we
considered and decided on a full record the issue they now seek to relitigate.
In these circumstances, we conclude the doctrine of law of the case is
applicable, and the trial court correctly refused to take a position contrary to
our earlier opinion.
We reject the Aliotos’ analogy to Kowis v. Howard (1992) 3 Cal.4th 888,
891, 899, which held that summary denial of a pretrial petition for
extraordinary relief does not establish law of the case, in part on the ground
that such a result would prevent the losing party from ever having the
opportunity to present oral argument on the issue. Here, although the
Aliotos chose not to raise the issue of the legality of the settlement agreement
11
until they submitted their reply brief, they were afforded the full protections
of the appellate process. Summary denial of a writ petition “does not decide a
‘cause’ ” (id. at p. 897), but in Park Lane I this court both heard and decided
the Aliotos’ challenge to the validity of the agreement.
In support of their position that we have not already ruled on the legal
points they raise here, the Aliotos point out that in the current appeal, they
not only repeat the argument they made in Park Lane I that the settlement
agreement violates Civil Code section 1942.1,5 which bars the waiver of a
tenant’s rights to a tenantable dwelling, but they assert a second statute
under which they claim the agreement violates public policy, to wit, section
1953. As pertinent here, that enactment provides that “[a]ny provision of a
lease or rental agreement of a dwelling by which the lessee agrees to modify
or waive” certain rights “shall be void as contrary to public policy”; among
those rights are the “right to assert a cause of action against the lessor which
may arise in the future” and “a statutory right, where the modification or
waiver is not void under subdivision (a) or under Section 1942.1, 1942.5, or
1954.” (§ 1953, subds. (a)(2) & (b).) The Aliotos claim the Agreement violates
these principles because it purports to release claims for “loss or diminution
of housing services, or lack of quiet use and enjoyment they suffered or will
suffer as a result of the past, present, and future construction activity.”
(Italics added.)
We are not persuaded that this variation on their original legal
argument takes this case outside the scope of the law of the case. (See Yu v.
Signer Bank/Virginia (2002) 103 Cal.App.4th 298, 312, overruled on another
ground in Newport Harbor Ventures, LLC v. Morris Cerullo World
Evangelism (2018) 4 Cal.5th 637, 646 [“Litigants are not free to continually
5 All undesignated statutory references are to the Civil Code.
12
reinvent their position on legal issues that have been resolved against them
by an appellate court”].) Both in Park Lane I and here, the gravamen of the
Aliotos’ claim is that the Agreement is void as against public policy because it
purported to release Park Lane for future claims caused by the disruptive
effects of the continuing construction. Park Lane I rejected the Aliotos’
argument “that the trial court erred in enforcing their settlement because it
was illegal and, therefore, void,” and this determination was “essential to the
decision” affirming orders enforcing that very agreement. (See Horman,
supra, 5 Cal.3d at p. 73.)
The Aliotos point out that the doctrine of law of the case is a
discretionary policy, which we need not follow if the result would be unjust.
(Amato v. Mercury Casualty Co. (1997) 53 Cal.App.4th 825, 835.) Thus, the
court may “decline[] to adhere to it where its application would result in an
unjust decision, e.g., where there has been a manifest misapplication of
existing principles resulting in substantial injustice.” (Morohoshi v. Pacific
Home (2004) 34 Cal.4th 482, 491–492 (Morohoshi).) The Aliotos have not
persuaded us that either our original decision or the trial court’s refusal to
revisit issues resolved in it has worked any such injustice.
Section 1942.1 is part of a statutory scheme imposing standards of
“ ‘tenantability.’ ” (Jaramillo v. JH Real Estate Partners, Inc. (2003) 111
Cal.App.4th 394, 401 (Jaramillo).) As part of that scheme, a dwelling is
deemed untenantable if it “substantially lacks” certain characteristics,
including effective waterproofing, a hot and cold water supply, electrical
lighting maintained in good working order, receptacles for garbage and
rubbish, and clean and sanitary building, grounds and appurtenances.
(§ 1941.1, subd. (a).) The Aliotos contend the settlement agreement
improperly waives their right to a dwelling with these attributes, citing their
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complaints about water shutoffs, electrical service disruptions, inoperable
service elevator and elevator delays, dust from construction in common areas,
and water damage to their ceilings. And, they argue, the Agreement
improperly prospectively waived their statutory right to quiet possession and
enjoyment of the property in violation of section 1953. (See § 1927; Erlach v.
Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299–1300.)
We are unpersuaded by these arguments. First, when entering into the
Agreement in the face of the impending termination of their tenancy under
the Ellis Act, the Aliotos acknowledged that the construction about which
they had complained would continue, and they agreed the forgiveness of their
arrearages and reduction in rent were sufficient to compensate them for the
“problems, inconveniences, aggravations, and adverse issues related to the
construction activity, . . . past, present, and future.” We see no substantial
injustice in enforcing that agreement. Certainly, the Aliotos point to nothing
that compels the conclusion the construction caused their apartment to
“substantially lack[]” the standard characteristics enumerated in section
1941.1 so as to render it untenantable as a matter of law.
Second, we see no substantial injustice in allowing the parties to waive
claims in settling their litigation. Although section 1953 prevents tenants
from waiving certain procedural rights in a residential lease agreement,
“tenants and landlords [can], however, waive or modify procedural rights in
an agreement entirely independent of the rental agreement.” (Williams v.
3620 W. 102nd Street, Inc. (2020) 53 Cal.App.5th 1087, 1092, citing
Jaramillo, supra, 111 Cal.App.4th at p. 404.) The Aliotos argue that the
Agreement was, in effect, a residential lease agreement because it modified
the amount of rent due each month. But we cannot ignore that the purpose
of the Agreement was to settle the current case, an unlawful detainer action
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based on the Aliotos’ withholding rent when construction on the building
continued after resolution of the first unlawful detainer action. And, it is well
established, California has a strong public policy favoring settlement of
disputes before trial (Nicholson v. Barab (1991) 233 Cal.App.3d 1671, 1683), a
policy that extends to landlord-tenant disputes (Geraghty v. Shalizi (2017)
8 Cal.App.5th 593, 595, 599 [right to reoccupy after owner move-in under city
rent ordinance; “the parties should be held to the terms of their negotiated
disposition, which afforded benefits to both and avoided burdening the court
with a lawsuit”]; Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 745–746
[city ordinance voiding waiver of rights in eviction or owner move-in does not
apply to settlement of legal claim for valuable consideration]). If the Aliotos’
current position were correct, we question whether any settlement agreement
resolving an unlawful detainer action in this context or a tenant’s claims for
inconvenience caused by an ongoing construction project would be
permissible.
In these circumstances, we conclude our decision in Park Lane I did not
create “a manifest misapplication of existing principles resulting in
substantial injustice” (Morohoshi, supra, 34 Cal.4th at pp. 491–492), and we
decline to depart from the doctrine of law of the case. Relying upon that
doctrine, the trial court did not err in concluding the Agreement’s attorney
fee clause was enforceable.
II. Scope of Attorney Fee Agreement
The Aliotos contend that, even assuming the Agreement’s attorney fee
provision is enforceable, the trial court exceeded its scope in the award of fees
on appeal. Although a trial court has broad discretion in setting an award of
contractual attorney fees, reversal is appropriate where the trial court has
15
applied the wrong standard in reaching its result. (Nichols v. City of Taft
(2007) 155 Cal.App.4th 1233, 1239.)
We reject the Aliotos’ challenge. First, as we have already discussed,
they expressly waived their right to appeal in this matter. (See Ruiz, supra,
222 Cal.App.4th at p. 603; Guseinov, supra, 145 Cal.App.4th at p. 952.)
Having rejected their public policy challenge to the enforceability of the
Agreement, we see no basis to relieve them of their waiver of appellate rights.
In any case, the Aliotos have not shown the trial court abused its
discretion or applied the wrong standard in awarding Park Lane its attorney
fees on appeal. The attorney fee clause provides that the parties will bear
their own attorney fees and costs “unless a motion is filed to enforce the
terms” of the Agreement, and that, “[s]hould such a motion become necessary,
the prevailing party shall recover his/its fees and costs incurred in bringing
an enforcement motion.”
The Aliotos contend that the attorney fee provision was narrow in
scope, limited to fees incurred in bringing the original motion in the trial
court seeking to enforce the Agreement, and that it does not extend to Park
Lane’s fees on appeal. Pointing out that the Agreement included a waiver of
appellate rights, they contend Park Lane never contemplated it would
recover attorney fees on appeal because it never contemplated an appeal
taking place at all. This argument is entirely unpersuasive. If the Aliotos
violated the Agreement by appealing the trial court’s adverse ruling, they
may not use that fact to avoid their responsibility to pay Park Lane’s fees.
The Aliotos further contend the limited scope of the agreement is found
in its terms, arguing that “ ‘bringing an enforcement action’ ” does not
encompass defending against an appeal or post-judgment motions. The
general rule, however, is that “[w]hen a contract . . . authorizes the prevailing
16
party to recover attorney fees, that party is entitled to attorney fees incurred
at trial and on appeal.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc.
(2012) 211 Cal.App.4th 230, 250; accord, Frog Creek Partners, LLC v. Vance
Brown, Inc. (2012) 206 Cal.App.4th 515, 547 (Frog Creek).)
We are not persuaded by the Aliotos’ reliance on Mountain Air
Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 754. The
attorney fee provision at issue there, contained in an option agreement,
authorized attorney fees for the prevailing party if a “ ‘legal action’ or
‘proceeding’ ‘is brought for the enforcement of this Agreement or because of
an alleged dispute, breach, default, or misrepresentation in connection with
any provision of this Agreement.’ ” (Id. at p. 749.) One set of parties raised
the option agreement as an affirmative defense to an action on an earlier
agreement between the parties, and, after prevailing, they sought attorney
fees. (Ibid.) In the portion of the opinion upon which the Aliotos rely, our
high court concluded the assertion of an affirmative defense did not
constitute an “ ‘action’ ” or “ ‘proceeding’ ” “ ‘brought’ ” to enforce the
agreement or because of a dispute. (Id at pp. 752–755.) In doing so, the court
noted that “ ‘courts generally treat the term “action,” . . . as referring to the
whole of a lawsuit rather than to discrete proceedings within a lawsuit.’ ” (Id.
at p. 753, quoting Frog Creek, supra, 206 Cal.App.4th at p. 527, fn. 6.)
Nothing in Mountain Air suggests it is proper to divide Park Lane’s
enforcement action against the Aliotos into its individual procedural steps in
determining the availability of attorney fees. Rather, we conclude, the
attorney fee provision applies to fees incurred in the whole of the enforcement
action, including fees on appeal of the trial court’s actions in enforcing the
Agreement.
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The Aliotos also argue that Alioto crossed out one attorney fee provision
and did not intend to allow the second provision to remain in the contract,
and they urge us to find fees unavailable on this basis. In Park Lane I, we
rejected the Aliotos’ contention that attorney fees were not available because
of Alioto’s claimed mistake. We will not revisit that conclusion here.
Finally, we reject a challenge the Aliotos make for the first time in
their reply brief. In their opening brief on appeal, the Aliotos fault the trial
court for “broadly interpret[ing] the language of the Settlement Agreement as
encompassing any legal work related to ‘enforcement of the settlement,’ ” an
argument we have rejected. In their reply brief, the Aliotos take a different
tack, arguing that the fee award should be overturned on the independent
ground that the trial court did not explain, and the Aliotos’ own calculations
do not disclose, which specific items the court excluded as unrelated to
enforcement of the settlement. The argument is a new one and subject to the
general rule that we do not consider contentions raised for the first time in a
reply brief. (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095,
1115 [“An appellant . . . forfeits an issue by failing to raise it in his or her
opening brief”].) We will not consider it.
DISPOSITION
The order is affirmed. Park Lane shall recover its costs on appeal.
TUCHER, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
Park Lane Associates, LP v. Alioto et al. (A155781)
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