Alexander v. Mkt. St. Apartments, LLC

LILLIAN ALEXANDER, Plaintiff and Respondent, v. MARKET STREET APARTMENTS, LLC, Defendant and Respondent.

D070198

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

June 23, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2013-00074063-CU-OE-CTL )

APPEAL from a postjudgment order of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed.

Kevin C. Young for Plaintiff and Respondent.

Van Susteren Law Group and Adam Van Susteren for Defendant and Appellant.

After Lillian Alexander accepted a statutory offer to compromise (Code Civ. Proc.,¹ § 998) in the amount of $9,980 and judgment was entered, she moved for attorney fees. The superior court awarded her $93,270. Market Street Apartments, LLC (Market Street) appeals the attorney fee order, contending: (1) Alexander has not shown sheprevailed on any cause of action authorizing an award of attorney fees; (2) the superior court erred in awarding attorney fees incurred after the statutory offer to compromise was made; (3) Alexander is not entitled to attorney fees that are attributable to time spent on her husband's claims; (4) section 1033, subdivision (b) prohibits the award of any attorney fees in this case; and (5) the trial court abused its discretion in awarding attorney fees without considering Alexander's lack of success and failure to make a demand.

We conclude Market Street forfeited its claim that the superior court could not award any fees incurred after the statutory offer to compromise was made. As to the remaining claims, we determine they lack merit. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Market Street hired Alexander and her husband, Robert, to be resident managers of certain apartments located in San Diego County. Alexander and Robert believed they were going to be paid $8 per hour to be the on-site managers, but that the full market value of their rental unit ($970 per month) would be credited against their monthly pay. They were employed from August 31, 2012 through February 12, 2013 when Market Street terminated their employment.

Market Street did not pay Alexander and Robert. Consequently, Alexander and Robert brought suit in San Diego Superior Court, alleging six causes of action: (1) failure to pay wages; (2) failure to pay overtime wages; (3) waiting time penalties; (4) wrongful termination in violation of public policy; (5) violation of Labor Code section 1182.8; and (6) violation of Labor Code section 226.

Market Street answered the complaint and began discovery. It served 10 sets of written discovery on Alexander and Robert, including general form interrogatories, 162 special interrogatories, 30 requests for admissions, and 70 requests for production of documents. In addition, Market Street noticed the videotaped depositions of Alexander and Robert, which included additional requests for production for 15 categories of documents.

Alexander and Robert responded to the written discovery and produced 698 pages of documents. Market Street took depositions of both plaintiffs. Alexander and Robert produced 91 pages of documents at their depositions.

After engaging in significant discovery, Market Street filed a petition to compel arbitration almost six months after it filed its answer. The superior court denied the petition. Market Street appealed the order. This court affirmed the order denying Market Street's petition. (See Alexander v. Market Street Apartments, LLC (May 19, 2015, D066382) [nonpub. opn.].)

Following its unsuccessful appeal, Market Street served Alexander and Robert with an additional 54 special interrogatories, 117 requests for admission; another request for production covering 16 categories of documents; and two more sets of form interrogatories. Market Street also served three subpoenas for production of documents on third parties.

Market Street additionally brought a motion to consolidate the instant action with a former tenant's action against Market Street for the improper retention of a security deposit. The superior court denied that motion. Then Market Street moved to disqualifycounsel representing Alexander and Robert. The superior court denied that motion as well.

After over two years of litigation, Market Street served a statutory offer to compromise on Alexander in which Market street offered "to have judgment entered against itself in favor of [Alexander] for [$9,980] for all causes of action[.]" The offer explicitly stated that if Alexander accepted the offer, Alexander "may file a motion for attorneys' fees." Alexander accepted the statutory offer to compromise. However, after Alexander accepted the offer, Market Street and Alexander disagreed regarding the content of the ensuing judgment. Market Street argued that the judgment must allocate the amount of judgment among the various causes of action. Alexander countered that the judgment should reflect the terms of the statutory offer, which did not allocate the offered amount among the different causes of action, but instead, offered a lump sum "for all causes of action." The superior court ultimately agreed with Alexander and entered judgment in favor of Alexander and against Market Street on all causes of action consistent with the language of the statutory offer to compromise.

Alexander subsequently filed a motion for attorney fees, seeking a total of $96,180 for 320.6 hours of work at $300 per hour. These fees included matters in superior court as well as Market Street's appeal of the order denying the petition to compel arbitration. Market Street opposed the motion, arguing: (1) the court should not award any fees because Alexander had not proven she prevailed on a cause of action that entitled her to attorney fees; (2) section 1033, subdivision (b) prohibited the award of fees in this matter; (3) the amount of fees should be denied or substantially reduced because Alexander wasseeking fees on behalf of Robert who was yet to be determined a prevailing party; and (4) a proper lodestar calculation requires little or no attorney fee award.

After considering the pleadings and evidence submitted as well as entertaining oral argument, the superior court granted in part Alexander's motion for attorney fees. In doing so, the court rejected Market's Street's argument that Alexander had to prove she prevailed on a cause of action that entitled her to attorney fees. Instead, the court found that the accepted statutory offer to compromise was sufficient to establish Alexander as a prevailing party entitled to attorney fees. In addition, the court determined that section 1033, subdivision (b) was not applicable because it only applied to limited civil actions. The court also concluded that the claims of Alexander and Robert were "identical and completely intertwined." As such, the court determined that most of the fees incurred should not be allocated. Nevertheless, the court reduced the requested fees by 9.7 hours for work completed after Alexander accepted the statutory offer to compromise as well as for work attributable solely to Robert (e.g., his claim for unemployment benefits). The court thus awarded Alexander a total of $93,270 for her attorney fees.

Market Street timely appealed.

DISCUSSION

ISTANDARD OF REVIEW

Market Street's challenges to the order awarding Alexander attorney fees can be divided into two categories. The first type involves Alexander's entitlement to fees as a threshold matter. Here, Market Street argues Alexander was not entitled to attorney feesbecause she has not shown that she prevailed on her claim for unpaid wages. Market Street also maintains that section 1033, subdivision (b) prohibits the award of attorney fees on the record before us. We address these threshold entitlement arguments under a de novo standard of review. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213 (Whitley).)

Market Street's other arguments concern the amount of the attorney fees awarded. For this kind of challenge, our normal standard of review is abuse of discretion. (Whitley, supra, 50 Cal.4th at p. 1213.) If the superior court made factual determinations, we review " 'the ruling according to the substantial evidence rule. The trial court's resolution of the factual issue must be affirmed if it is supported by substantial evidence. [Citation.] We look at the evidence in support of the trial court's finding, resolve all conflicts in favor of the respondent and indulge in all legitimate and reasonable inferences to uphold the finding.' " (Carpenter & Zuckerman v. Cohen (2011) 195 Cal.App.4th 373, 378.)

" '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.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

IIALEXANDER'S ENTITLEMENT TO ATTORNEY FEES

Market Street insists Alexander is not entitled to attorney fees for two reasons. First, it contends Alexander has not shown she prevailed on any cause of actionauthorizing an award of attorney fees. Second, Market Street asserts that section 1300, subdivision (b) prohibits an award of attorney fees here. We reject both contentions.

A. Alexander is the Prevailing Party

Market Street asserts Alexander has not offered any evidence that she obtained a judgment for wages. Without such evidence, Market Street insists any order awarding Alexander attorney fees is improper. We disagree.

Alexander accepted Market Street's statutory offer to compromise. By doing so, she received $9,980; thus, she was a plaintiff who achieved a...