Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County Super. Ct. No. GC034608, Jan A. Pluim, Judge.
Knapp, Petersen & Clarke and Kevin J. Stack for Plaintiffs and Appellants.
Ernster Law Offices, John H. Ernster, Katharine A. Miller and Ryan K. Marden for Defendants and Respondents Paul Anderson and Elizabeth Anderson.
Gordon & Rees, M. D. Scully, Christopher B. Cato and Eric M. Volkert for Defendants and Respondents the Alta San Rafael Association, Marilyn Buchanan, Charles Malouf, Ann Longyear and John Craig.
TURNER, P. J.
I. INTRODUCTION
This is an action between neighboring real property owners. Plaintiffs, Janice Sharp and Dane Hoiberg, appeal from two postjudgment orders. The first order awarded $184,510 in attorney fees and $14,109 in costs to Paul Anderson and Elizabeth Anderson (the Andersons). The second order awarded $295,547 in attorney fees to the Alta San Rafael Association, Marilyn Buchanan, Charles Malouf, Ann Longyear and John Craig (collectively, the association). The attorney fees were awarded under the Davis-Stirling Common Interest Development Act, specifically Civil Code section 1354, subdivision (c). We affirm the orders.
II. BACKGROUND
Plaintiffs commenced this action on December 9, 2004. Judge Jan A. Pluim has presided over the case from the beginning. A judgment was entered in the association’s favor on February 5, 2008, and a judgment was entered in favor of the Andersons on July 1, 2008. Both judgments have been affirmed on appeal. (Sharp v. Alta San Rafael Association, Inc. (B207606, July 28, 2009) [nonpub. opn.]; Sharp v. Anderson (B210627, Jan. 13, 2010) [nonpub. opn.].)
The association filed an April 18, 2008 motion seeking $291,379.50 in attorney fees. The association’s counsel, Eric M. Volkert, declared: plaintiffs had filed or sought to file an original and three amended verified complaints; plaintiffs filed several writ petitions to challenge various rulings; discovery was “fairly extensive and contentious”; there were numerous depositions consuming 5 days over a 9-month period; the depositions were continued on numerous occasions because plaintiffs or their counsel were unavailable; all four individually named defendants were deposed, as was the association’s then president; plaintiffs deposed the association’s former counsel; the depositions and plaintiff’s threatened motions to compel also necessitated meet and confer efforts and research as to possible protective orders; plaintiffs deposed the Andersons and Mr. Anderson’s father, Bruce Anderson, the former owner of the property in dispute; plaintiffs deposed Nelle Brandon, the former owner of plaintiffs’ property; plaintiffs deposed the Andersons’ architect; there was extensive written discovery and an exchange of more than 5,000 pages of documents; plaintiffs subpoenaed the association’s accounting firm, to which the association objected; both the association and the Andersons filed summary judgment motions; and the association had been billed for at least 1,358.9 hours of legal work for a total of no less than $291,379.50 in attorney fees. Plaintiffs opposed the association’s motion. On June 5, 2008, the trial court continued the hearing on the motion to August 4, 2008. The trial court ordered the association to file “detailed documentary evidence” in support of their claimed fees.
On July 11, 2008, the association filed an “amended and restated” motion. In an attached declaration, Mr. Volkert described his law firm’s billing rates and set forth the details of the legal work performed on this case from December 2004 through May 2008, including: 48.6 hours at a cost of $10,559 for fact investigation and development; 71.9 hours at a cost of $14,822 for general analysis of legal issues and strategy; 5.8 hours at $760 for document and file management; 14 hours at $2,965.50 for preparing written status updates and budgets; 11.2 hours at $2,594 for settlement preparation, analysis and discussions; 16.3 hours at $3,425 for written and telephonic communications with clients, the association’s general counsel and its insurance carrier; 81.1 hours at $15,178.50 for pleadings, including demurrers and answers to plaintiffs’ several complaints; 35.7 hours at $6,822 for preparation, travel to and attendance at court hearings; 289.4 hours at $64,680 for the association’s summary judgment motion; 94 hours at $21,421.50 for other motions; 160.5 hours at $30,931 for propounding and responding to written discovery; 86.7 hours at $19,136.50 for document production, review and related issues; 360.4 hours at $81,045.50 for depositions; 2.9 hours at $653.50 for expert witness depositions; 85.5 hours at $18,899 for meet and confer efforts and possible discovery motions;.6 hours at $141 for review of notices to appear at trial; and 6.4 hours at $1,513.50 for review and analysis of plaintiffs’ multiple mandate petitions. Mr. Volkert provided further amount breakdowns with respect to each category. Plaintiffs opposed the association’s amended and restated motion. On October 1, 2008, the trial court awarded the association $295,547.50 in fees.
The Andersons filed a July 14, 2008 motion seeking $207,673.27 in attorney fees. The Andersons submitted 170 pages of itemized invoices in support of their motion. Plaintiffs opposed the motion. On October 1, 2008, the trial court awarded the Andersons $184,510.18 in attorney fees and $14,109.03 in costs.
III. DISCUSSION
A. Standard Of Review
The defendants recovered their attorney fees under Civil Code section 1354, subdivision (c). Civil Code section 1354, subdivision (c) provides that the prevailing party in an action to enforce common interest development covenants and restrictions are to be awarded reasonable attorney’s fees and costs. (Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847, 852-853.) We review the amount and apportionment of the attorney fee awards for an abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175; Garcia v. Santana (2009) 174 Cal.App.4th 464, 469 [§ 1354, subd. (c)]; Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1381 [apportionment under § 1354, subd. (c)]; Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [Civ. Code § 1354, former subd. (f), now (c)].)
The standard of review is set forth in Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1394, as follows: “‘California courts have long held that trial courts have broad discretion in determining the amount of a reasonable attorney’s fee award. This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case.’ (Meister [v. Regents of University of California (1998)] 67 Cal.App.4th [437,] 452.) In exercising its discretion, the trial court may accordingly ‘consider all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorney’s fee award.’ (Ibid.) An attorney fees award ‘“will not be overturned in the absence of a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence. [Citations.]” [Citation.]’ (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894.)”
Our Supreme Court has held: “‘It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court.... [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) Moreover, as our Supreme Court explained in Serrano v. Priest (1977) 20 Cal.3d 25, 49: “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.’ [Citations.]” (Accord, Granberry v. Islay Investments (1995) 9 Cal.4th 738, 751; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448.)
It is plaintiffs’ burden to establish an abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Our Supreme Court has held: “[A] reviewing court should not disturb the exercise of a trial court’s discretion unless it appears that there has been a miscarriage of justice.... ‘It is fairly deducible from the cases that one of the essential attributes of abuse of discretion is that is must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court, supra, 2 Cal.3d at p. 566 ; see Blue Cross of California, Inc. v. Superior Court (2009) 180 Cal.App.4th 138, 157.)
B. Improper Briefing
Preliminarily, we note that plaintiffs’ briefs on appeal merely recycle, largely verbatim, the arguments presented below. This is not proper appellate advocacy. It is not proper argument on appeal to merely repeat the assertions made below. (Santa Monica Rent Control Bd. v. Pearl Street (2003) 109 Cal.App.4th 1308, 1313, fn. 6 [trial court points and authorities incorporated by reference]; Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334 [arguments incorporated from papers filed below]; Balesteri v. Holler (1978) 87 Cal.App.3d 717, 720 [trial brief incorporated by reference].) Repeating arguments made in the trial court does not demonstrate that the trial court abused its discretion in resolving the issues presented. All of plaintiff’s arguments have thus been forfeited. (Balesteri v. Holler, supra, 87 Cal.App.3d at pp. 720-721.)
C. Timeliness
Plaintiffs contend the association’s “amended and restated” motion for attorney fees was untimely as not filed within the time for filing a notice of appeal. (Cal. Rules of Court, rules 3.1702(b)(1) and 8.104.) Plaintiffs have not cited any legal authority in support of their assertion the amended and restated motion, which was filed at the trial court’s request, was a new motion. The trial court continued the hearing on the association’s motion and directed the association to provide additional evidence. The subsequently filed documents, no matter how titled, did not constitute a new motion subject to the time constraints of California Rules of Court rules 3.1702(b)(1) and 8.104.
D. California Rules Of Professional Conduct Rule 4-200(B)
Plaintiffs argue—as to both the association and the Andersons—that defendants’ motions failed to “satisfy the factors and proper documentation to be considered in determining the reasonableness and recovery of attorneys’ fees” as required by the California Rules of Professional Conduct rule 4-200(B) (rule 4-200(B)). The professional conduct rules are intended to regulate the conduct of State Bar members through discipline. (California Rules of Professional Conduct rule 1-100(A).) The professional conduct rules do not create or otherwise affect any substantial legal duty of lawyers. (Conservatorship of Becerra (2009) 175 Cal.App.4th 1474, 1484; Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 111, fn. 5.) Rule 4-200(B) discusses the factors to be considered in determining whether an attorney fee is unconscionable. The present appeal does not present a question whether a lawyer should be disciplined for entering into an agreement for, charging, or attempting to collect an unconscionable fee. Therefore, the cited rule is inapplicable.
California Rules of Professional Conduct rule 1-100(A) states in part: “The following rules are intended to regulate professional conduct of members of the State Bar through discipline.... [¶]... [¶] These rules are not intended to create new civil causes of action. Nothing in these rules shall be deemed to create, augment, diminish, or eliminate any substantive legal duty of lawyers or the nondisciplinary consequences of violating such a duty.”
California Rules of Professional Conduct rule 4-200 states: “(A) A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee. [¶] (B) Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events. Among the factors to be considered, where appropriate, in determining the conscionability of a fee are the following: [¶] (1) The amount of the fee in proportion to the value of the services performed. [¶] (2) The relative sophistication of the member and the client. [¶] (3) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly. [¶] (4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member. [¶] (5) The amount involved and the results obtained. [¶] (6) The time limitations imposed by the client or by the circumstances. [¶] (7) The nature and length of the professional relationship with the client. [¶] (8) The experience, reputation, and ability of the member or members performing the services. [¶] (9) Whether the fee is fixed or contingent. [¶] (10) The time and labor required. [¶] (11) The informed consent of the client to the fee.” (http://calbar.ca.gov/calbar/pdfs/rules/Rules_Professional-Conduct.pdf (Jan. 14, 2010) as amended operative September 14, 1992.)
E. Documentation
Plaintiffs assert that in his declaration the association’s attorney, Mr. Volkert, grouped activities in a vague, conclusory, undocumented, unitemized manner without sufficient detail, included administrative tasks that should not have been billed, and appeared to seek recovery for the same items in multiple categories. Plaintiffs further contend defendants “failed to allocate time to the involvement of other parties or theories beyond” the covenants, conditions and restrictions. The trial court was not required to explain its decision on defendants’ attorney fee requests. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 65, 67; Melnyk v. Robledo, supra, 64 Cal.App.3d at p. 625.) And we will not presume error; absent evidence to the contrary, we presume the trial court considered plaintiffs’ assertions and resolved them in defendants’ favor. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564 [error must be affirmatively shown]; Gorman v. Tassajara Development Corp., supra, 178 Cal.App.4th at p. 67; Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d 983, 998.) As discussed above, the trial court was the best judge of the value of services rendered. (Granberry v. Islay Investments, supra, 9 Cal.4th at p. 751; Serrano v. Priest, supra, 20 Cal.3d at p. 49; Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at pp. 447-448.) At the hearing on the association’s attorney fee motion, Mr. Volkert asserted: “I believe that the declaration that I supplied to the court definitely meets the standar[d] articulated by California law and which does not require that particularized bill statements be provided in detail. [¶] It just requires that the attorney attests to the amount of time spent, the general nature of the work and the billing rate.” The trial court responded, “[A]nd certainly I can take judicial notice of the file itself, the summary judgment and the amount of work that I saw that went into that, besides the number of depositions, and there was a lot.” Plaintiffs have not shown that the trial court, which presided over this case from beginning to end, was clearly wrong in determining attorney fees as it did.
We reject plaintiffs’ argument the association’s evidence was insufficient for failing to include billing records and detailed time statements. It is well settled that a party seeking attorney fees may rely on attorney declarations evidencing reasonable hourly rates, billing rates charged, and the number of hours spent. A party seeking attorney fees is not required to produce billing statements and detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375; In re Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 512; Bernardi v. County of Monterey, supra, 167 Cal.App.4th at p. 1398; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1810; Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587; Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103; Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651; Melnyk v. Robledo, supra, 64 Cal.App.3d at pp. 624-625.) Mr. Volkert’s declaration, which set forth the work provided to the association and the billing rates, was sufficient in support of the requested fees. (Raining Data Corp. v. Barrenechea, supra, 175 Cal.App.4th at p. 1375; Sutter Health Uninsured Pricing Cases, supra, 171 Cal.App.4th at p. 512; Bernardi v. County of Monterey, supra, 167 Cal.App.4th at p. 1398; Dunk v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1810; Weber v. Langholz, supra, 39 Cal.App.4th at p. 1587; Nightingale v. Hyundai Motor America, supra, 31 Cal.App.4th at p. 103; Sommers v. Erb, supra, 2 Cal.App.4th at p. 1651; Melnyk v. Robledo, supra, 64 Cal.App.3d at pp. 624-625.) Plaintiffs have not shown any abuse of discretion.
F. The Andersons’ Cost Award
Plaintiffs assert costs were awarded to the Andersons without allocation and sufficient support. Plaintiffs complain that the Andersons first sought $23,650.27 in costs, then $22,164.06, and then $18,513.83. They argue without citation to the record or any ponderable legal analysis: “The assertion of different numbers for costs by the Andersons and providing only the summary cover sheets affects the propriety of the award of costs by the court. Furthermore, there was no allocation of costs to the theories of the case that do not support an award of attorneys’ fees and costs.” This is not proper argument on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004, fn. 2.) Moreover, at the hearing on the Anderson’s motion, their attorney stipulated to $14,000 in costs as set forth in the trial court’s tentative ruling. There is no merit to plaintiffs’ arguments.
IV. DISPOSITION
The orders awarding attorney fees and costs to defendants are affirmed. Defendants, Paul Anderson, Elizabeth Anderson, the Alta San Rafael Association, Marilyn Buchanan, Charles Malouf, Ann Longyear and John Craig, are to recover their costs on appeal jointly and severally from plaintiffs Janice Sharp and Dane Hoiberg.
We concur: ARMSTRONG, J. KRIEGLER, J.