Filed 9/1/26 Choy v. Ribeiro Development, Inc. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT
(El Dorado)
SEAN CHOY et al., C100831 Plaintiffs and Respondents, (Super. Ct. No. PC20120295)
v.
RIBEIRO DEVELOPMENT, INC., et al., Defendants and Appellants.
Sean Choy and Joseph Oloriz are former employees of Ribeiro Development, Inc.
(RDI), an entity that develops and manages commercial real estate. (Choy v. Ribeiro (Nov. 3, 2020, C080715) [nonpub. opn.] (Choy v. Ribeiro).) Choy and Oloriz sued RDI for severance pay under the terms of their employment agreements. (Ibid.) They also sued RDI’s president, Johnny R. Ribeiro, and the Johnny R. Ribeiro Separate Property Trust (the Trust), which owns RDI. (Ibid.) Following a bench trial, the trial court found in favor of Choy and Oloriz and entered judgment against RDI, Ribeiro, and the Trust, holding them jointly and severally liable for severance payments of $466,856 to Choy and $350,142 to Oloriz. (Ibid.) Ribeiro and the Trust appealed the imposition of joint and several liability, and another panel of this court reversed. (Ibid.) The trial court
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subsequently entered judgment in favor of Ribeiro and the Trust; however, the judgment against RDI remained unchanged.
That brings us to the present dispute. Ribeiro and the Trust moved for attorney fees in the amount of $233,594 pursuant to an attorney fee provision in the subject employment agreements. Choy and Oloriz opposed the motion. Following argument, the trial court entered an interim order finding Ribeiro and the Trust were prevailing parties within the meaning of Civil Code section 1717, but the court would award only those fees reasonably necessary to their defense, as opposed to the defense of losing party RDI. The trial court directed Ribeiro and the Trust to submit a revised fee request with sufficient information to determine apportionment of fees. That task was easier said than done. By then, Ribeiro and the Trust’s original lead counsel had unfortunately passed away. Another law firm was retained, but new counsel was unable to attest to the reasonableness of the first firm’s fees or allocate them between compensable and uncompensable tasks. Accordingly, the trial court independently assessed both firms’ billing statements and determined Ribeiro and the Trust were entitled to attorney fees in the amount of $64,150, approximately 27 percent of the amount requested. Ribeiro and the Trust appeal, arguing the trial court abused its discretion in declining to award the entire amount sought. Finding no error, we will affirm.
I. BACKGROUND
A. The Initial Trial Court Proceedings Choy and Oloriz were employed by RDI. They were terminated in November 2010. They commenced the instant action against RDI, Ribeiro, and the Trust in May 2012. (Choy v. Ribeiro, supra, C080715.) The matter was tried to the court (Judge Stracener) over the course of four days in December 2014 and January 2015. The trial court entered judgment in favor of Choy and Oloriz in August 2015. As noted, the trial court found RDI, Ribeiro, and the Trust were jointly and severally liable to pay severance in the amount of $466,856 to Choy and $350,142 to Oloriz.
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RDI, Ribeiro, and the Trust were represented in the trial court proceedings by the late attorney Nancy Sheehan of Porter Scott. B. The Prior Appeal Ribeiro and the Trust appealed the judgment, arguing the trial court erred in making them jointly and severally liable for the severance payments. (Choy v. Ribeiro, supra, C080715.) Agreeing, this court reversed the imposition of joint and several liability and remanded with directions to the trial court to enter judgment in Ribeiro’s favor and determine whether the Trust was liable for the severance payments. (Ibid.) Sheehan passed away while the appeal was pending. C. Post-Appellate Proceedings The parties returned to the trial court, with RDI, Ribeiro, and the Trust now represented by Boutin Jones Inc. (Boutin Jones). The trial court (Judge Sullivan) received supplemental briefing and conducted a limited evidentiary hearing on the question of the Trust’s liability. At the conclusion of those proceedings, the trial court found Ribeiro mistakenly signed one of the employment agreements in his capacity as trustee for the Trust, and the Trust should not be liable for the severance payments. Accordingly, the trial court vacated the previous judgment as to Ribeiro and the Trust and entered a new judgment in their favor. Thus, Ribeiro and the Trust were now prevailing parties, and RDI was the sole nonprevailing party. D. The Motion for Attorney Fees Ribeiro and the Trust moved for $233,594 in contractual attorney fees in September 2022. (Code of Civ. Proc., § 1032; Civ. Code, § 1717.) The motion was supported by declarations from Carl J. Calnero, an attorney from Porter Scott, and Michael G. Cross, an attorney from Boutin Jones.
Calnero averred that Sheehan had been the Porter Scott attorney primarily responsible for representing RDI, Ribeiro, and the Trust. Calnero’s declaration attached copies of Porter Scott’s billing statements for the matter, which reflect attorney fees of
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$182,880 for 669.4 hours of work from July 2012 through August 2020. The billing statements identify the client as RDI, and do not differentiate between time spent on tasks for prevailing parties Ribeiro and the Trust, as opposed to time spent on tasks for nonprevailing party, RDI.
Cross averred he was the attorney responsible for handling day-to-day tasks on the case at Boutin Jones. Cross further averred that Ribeiro and the Trust had incurred $50,714 in attorney fees with Boutin Jones from the beginning of the firm’s representation (during the pendency of the prior appeal) through August 2022.
Choy and Oloriz opposed the motion. Among other things, they argued Ribeiro and the Trust sought compensation for “duplicate entries, redundant work, excessive work on several tasks, and unnecessary investigation of additional affirmative defenses for an answer and cross-complaint that [d]efendants[] never filed,” and thus could not satisfy their burden of showing the amount requested was reasonable. Choy and Oloriz also argued Ribeiro and the Trust unreasonably sought compensation for attorney fees incurred by losing party RDI.
Ribeiro and the Trust conceded some of the issues raised by Choy and Oloriz in their reply and reduced their request from $233,594 to $226,510. E. The Interim Ruling A hearing on Ribeiro and the Trust’s motion for attorney fees was held in January 2023. The trial court (Judge Slossberg) issued a ruling on submitted matter in April 2023 (the interim ruling). The interim ruling determined that Ribeiro and the Trust were prevailing parties within the meaning of Civil Code section 1717. However, the trial court found apportionment would be appropriate “to avoid what would otherwise be an unjust outcome of awarding fees to Ribeiro and the Trust which should properly be charged to the losing [d]efendant, RDI.” Reasoning by analogy to Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431 (Zintel), the trial court concluded Ribeiro and the Trust should only recover those fees expended on the issue of their specific liability, as
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opposed to the more general question of whether the employment agreements had been breached. (See generally Zintel, supra, at p. 443 [“Huth may recover only reasonable attorney fees incurred in his defense of the action by Zintel. To the extent his shared counsel engaged in litigation activity on behalf of McLean for which fees are not recoverable, the court has broad discretion to apportion fees”].) The trial court posited that such fees could include: (1) fees billed for activities related to discovery propounded by or directed to Ribeiro and the Trust; (2) fees billed for activities specifically related to the liability of Ribeiro and the Trust through trial, such as drafting portions of the trial brief or pretrial motions regarding the proper parties in the suit; and (3) fees billed for activities relating to the prior appeal.
The trial court observed that Porter Scott’s billing statements did not differentiate between work for Ribeiro and the Trust, on the one hand, and work for RDI, on the other. As a result, the trial court lacked the information necessary to allocate fees. To address that problem, the trial court directed Ribeiro and the Trust to submit a revised fee request that would “more particularly identify the activities related to each [d]efendant … to arrive at an attorney’s fees request that reasonably reflects the work conducted to defend Ribeiro and the Trust.”
The trial court acknowledged that the task of segregating fees incurred on behalf of Ribeiro and the Trust and fees incurred on behalf of RDI would be challenging, “given the passage of time, the voluminous number of billing entries, and the unfortunate passing of [d]efendants’ primary trial counsel, who would have been most knowledgeable about the majority [of] the activities on behalf of [d]efendants in this case.” Nevertheless, the trial court observed that Porter Scott “could have segregated the charges in its billing statements, rather than lumping them all together,” and the court was unwilling to grant an award that was “unreasonable and excessive as a result of prior counsel’s failure to do so.”
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F. Supplemental Briefing Ribeiro and the Trust went back to the drawing board. They submitted a supplemental brief in September 2023, which reduced the request from $226,882 to $146,284. The supplemental brief was supported by a supplemental declaration from attorney Cross. Cross explained that he had reviewed the previously submitted billing statements from Porter Scott, and highlighted entries he believed recoverable under the interim ruling. Those entries were compiled into a separate table, which was attached as an exhibit to the supplemental Cross declaration, and indicated Porter Scott spent 245 hours on activities related to the defense of Ribeiro and the Trust, for fees amounting to $68,510. Another exhibit to the supplemental Cross declaration indicated Boutin Jones spent approximately 200 hours on activities related to the defense of Ribeiro and the Trust, for an additional $77,774 in attorney fees. Thus, Ribeiro and the Trust now sought $146,284.
Choy and Oloriz filed a supplemental opposition brief. They argued Ribeiro and the Trust failed to comply with the interim ruling’s instruction that they more particularly identify activities related to their defense, as opposed to the defense of RDI. Focusing on fees incurred through the first appeal, they observed that Ribeiro and the Trust submitted the same uninformative billing statements from Porter Scott as before, adding only an attestation from attorney Cross that he “ ‘believed’ ” the highlighted entries were related to their defense. They objected to the attestation as speculative and lacking foundation (given that Cross does not appear to have been involved in Porter Scott’s handling of the matter), and urged the trial court to deny the motion for attorney fees in its entirety. In the alternative, they argued fees requested were “likely inflated,” given the minimal attention devoted to the specific question of Ribeiro and the Trust’s liability at trial. By way of illustration, they noted that billing entries discussing contact with “the client” were not necessarily allocable to Ribeiro, inasmuch as he was the only natural person associated with RDI or the Trust.
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Choy and Oloriz’s opposition was supported by a declaration from Jeffrey D.
Fulton, one of their attorneys herein. Fulton averred that Ribeiro and the Trust’s discovery responses were identical or nearly identical to RDI’s, and “very little time” was spent on the question of their liability at trial. G. Final Ruling A further hearing was held on the attorney fees motion in November 2023. The trial court (Judge Slossberg) issued another ruling on submitted matter in February 2024 (the final ruling). The final ruling explained the trial court would continue to follow the Zintel model of apportionment, notwithstanding Choy and Oloriz’s argument that attorney fees should be denied entirely. To facilitate that analysis, the final ruling divided the litigation into four phases, with separate findings for each.
For the first phase, the trial court considered the period from inception through trial, in which RDI, Ribeiro, and the Trust were represented by Porter Scott. The trial court found Porter Scott charged reasonable rates. At the same time, however, the trial court agreed with Choy and Oloriz that attorney Cross was ill-positioned to attest to the allocation of Porter Scott’s fees, and “few of the claimed items have been segregated to indicate cost to [Ribeiro and the Trust], thereby making it difficult, if not, impossible to determine which of these costs should be recovered.” Despite that difficulty, the trial court independently evaluated the pleadings and highlighted billing statements and found “the vast majority of time … was related to issues affecting all three [d]efendants and was not solely based on the inclusion of Ribeiro and the Trust as parties.” Based upon that independent evaluation, the trial court found the reasonable amount of attorney fees for the first phase of the litigation was $7,100.
For the second phase, the trial court considered fees incurred in connection with the first appeal, which was also handled by Porter Scott. It appears to have been undisputed that fees incurred in the second phase were allocable to Ribeiro and the Trust, and thus recoverable. All the same, the trial court again independently evaluated the
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billing statements and pleadings, along with the briefs in the court file, and found the number of claimed hours was “slightly inflated.” Accordingly, the trial court reduced that number from 90 to 67, with 60 hours at the rate of $300 per hour, six hours at the rate of $250 per hour, and one hour at the rate of $100 per hour. Combined, the trial court found the reasonable amount of attorney fees for phase two of the litigation was $19,600.
For the third phase, the trial court considered post-appellate work performed by Boutin Jones. That work primarily consisted of preparing and filing post-appellate briefs, preparing for the above-described evidentiary hearing on the Trust’s liability, and appearing at the hearing. The trial court found those activities were allocable to Ribeiro and the Trust, but the claimed hours were “excessive, with several of the tasks of attorneys duplicative of one another.” Accordingly, the trial court reduced the hours from 80 to 56.2, with 48 hours charged at $390 per hour, five hours at $475 per hour, and 3.2 hours at $250 per hour. Together, the trial court found the reasonable amount of attorney fees for phase three of the litigation $21,895.
For the fourth and final phase, the trial court considered work related to the attorney fees motion, which was performed by Boutin Jones for Ribeiro and the Trust, and said to be more than 100 hours of billable time. The trial court acknowledged that reviewing Porter Scott’s billing statements pursuant to the interim ruling “may have taken substantial time,” but found “the need to do so was created by prior counsel’s failure to segregate the time amongst the three [d]efendants at the time of legal services themselves.” The trial court further found “it would be unreasonable to shift the cost of this segregation now years later to [p]laintiffs.” Taking these factors into consideration, the trial court found the claimed hours were “excessive, particularly given the limited tasks remaining in the case.” Based on its independent evaluation of the billing statements and pleadings, the trial court found the reasonable number of hours expended in the fourth phase was 39 hours, with 20 hours charged at $390 per hour, 15 hours charged at $420 per hour, two hours charged at $475 per hour, and one hour charged at
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$505 per hour. Together, the trial court found the reasonable amount of reasonable attorney fees for the fourth phase of the litigation was $15,555.
Thus, the final ruling found the reasonable amount of attorney fees was $7,100 for the first phase, $19,600 for the second phase, $21,895 for the third phase, and $15,555 for the fourth phase. Adding these amounts, the trial court found reasonable attorney fees were $64,150. Ribeiro and the Trust appeal, arguing the trial court should have awarded the amount originally sought, $253,541.
II. DISCUSSION
Ribeiro and the Trust argue the trial court’s attorney fee award was erroneous for three reasons. First, they argue the trial court failed to properly apportion fees between prevailing parties Ribeiro and the Trust, on the one hand, and nonprevailing party RDI, on the other, in the first phase of the litigation (from inception through trial). Second, they argue the trial court acted unreasonably in reducing fees for the second phase of the litigation (through the appeal). Third, they argue the trial court acted unreasonably in reducing fees for the third and fourth phases of the litigation (the post-appellate proceedings and motion for attorney fees). None of these arguments have merit. A. Applicable Legal Principles and Standard of Review Civil Code section 1717, subdivision (a), provides in pertinent part as follows: “In any action on a contract, where the contract specifically provides that 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. [¶] … [¶] Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.” It is undisputed that Ribeiro and the Trust are entitled to an award of reasonable attorney fees under Civil Code section 1717, subdivision (a). The dispute here centers solely on the reasonableness of Ribeiro and the Trust’s request.
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We review the trial court’s determination of the amount of reasonable attorney fees for abuse of discretion. (PCLM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522 [“The amount to be awarded as attorney’s fees is left to the sound discretion of the trial court”].) “ ‘The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his 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.” (PCLM Group, supra, at p. 1095.)
A party requesting attorney fees bears the burden of proving the amounts requested are reasonable. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98 (Gorman).) Likewise, a party challenging the amount of an attorney fees award on appeal bears the burden of showing the trial court abused its discretion. (Ibid.; see also Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 743 [“We presume the fee approved by the trial court is reasonable”].) Ribeiro and the Trust have not satisfied either burden. B. Apportionment of Fees Incurred in the First Phase Ribeiro and the Trust argue the trial court failed to properly apportion fees incurred in the first phase of the litigation, from inception through trial. They argue that, as prevailing parties, they are entitled to all fees reasonably incurred on their behalf, even if some of those fees were incurred for work that incidentally benefited RDI. They insist the trial court abused its discretion by refusing to further apportion fees incurred in the first phase of the litigation for work on issues that were “inextricably intertwined” with those affecting RDI. This argument suffers from two obvious flaws.
First, Ribeiro and the Trust failed to raise the argument in the trial court. To the contrary, they expressly agreed that “they may not recover fees that were clearly undertaken to defend RDI in this action.” We need not consider points on appeal that
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were not raised in the trial court. (Wood v. Santa Monica Escrow Co. (2007) 151 Cal.App.4th 1186, 1192.)
Second, Ribeiro and the Trust fail to show that any further apportionment was required here. “Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units.” (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.) The trial court gave Ribeiro and the Trust an extra opportunity to provide sufficient information to apportion fees incurred in the first phase of the litigation. They were unable to do so. That failure was understandable, given the passage of time, the volume and opacity of Porter Scott’s billing statements, and the death of attorney Sheehan. Be that as it may, it was Ribeiro and the Trust’s burden to show how fees should be further apportioned, not the trial court’s, and their inability to do so confirms that apportionment was impracticable or impossible, and thus, not required. (Ibid.) C. Reduction of Fees Incurred in the Remaining Phases Ribeiro and the Trust next argue the trial court erred in reducing fees incurred in
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the second, third, and fourth phases of the litigation. They specifically take issue with the trial court’s finding that fees incurred during the second phase of the ligation (the prior appeal) were “slightly inflated,” and similar finding that hours claimed in the third and fourth phases were “excessive, with several of the tasks of the attorneys duplicative of one another.” As to both, Ribeiro and the Trust argue the trial court erred in failing to explain its findings. No such explanation was required.
1 To reiterate, the second phase of the litigation was the prior appeal, which was handled by Porter Scott. The third phase of the litigation was the post-appellate work handled by Boutin Jones. The fourth phase of the litigation was the motion for attorney fees, also handled by Boutin Jones.
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A trial court is not required to issue a statement of decision regarding an attorney fees award or to otherwise explain its decision in awarding attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140; see also In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 589 [trial court “not required to explain its rationale” for an attorney fees award]; Gorman, supra, 178 Cal.App.4th at p. 101 [“there is no general rule requiring trial courts to explain their decisions on motions seeking attorney fees”].) In any event, on appeal, “ ‘ “[a]ll intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown.” ’ ” (Ketchum, supra, at p. 1140.) As a general rule, and in the absence of evidence to the contrary, “we presume that the trial court has properly followed established law.” (People v. Diaz (1992) 3 Cal.4th 495, 567; accord, Gorman, supra, at p. 67.) Thus, “[t]he absence of an explanation of a ruling may make it more difficult for an appellate court to uphold it as reasonable, but we will not presume error based on such an omission.” (Gorman, supra, at p. 67; see also RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 776 [trial court’s ruling will not be disturbed “absent a showing that there is no reasonable basis in the record for the award”].) And, where “the trial court severely curtails the number of compensable hours in a fee award, we presume the court concluded the fee request was padded.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325.)
The trial court considered extensive briefing, including supplemental briefing, and voluminous exhibits, including billing statements from two firms spanning more than 10 years. It provided interim guidance on the allocation of fees and information necessary to demonstrate the reasonableness of the requested amounts. It heard argument; not once, but twice. The trial court then issued a nine-page ruling dividing the litigation into phases and evaluating the reasonableness of the requested fees in the context of each phase. Ribeiro and the Trust do not challenge the trial court’s overall approach, and do not suggest the court failed to consider all relevant factors in evaluating the
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reasonableness of the request. We therefore conclude the final ruling was sufficiently detailed, and Ribeiro and the Trust fail to demonstrate error.
III. DISPOSITION
The attorney fees order is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/ RENNER, Acting P. J.
We concur:
/S/ BOULWARE EURIE, J.
/S/ WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.