Opinion
G043957
01-13-2012
ERIK M. ANDERSEN, Plaintiff and Appellant, v. PACIFIC ASIAN ENTERPRISES, INC., Defendant and Respondent.
Marron Lawyers, Paul Marron and Mark J. Polland for Plaintiff and Appellant. Wordes, Wilshin & Conner and Frank A. Conner for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 07CC11282)
(Consol. with G044257 & G044427)
OPINION
Appeals from a judgment and postjudgment orders of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed. Request for judicial notice. Granted in part and denied in part.
Marron Lawyers, Paul Marron and Mark J. Polland for Plaintiff and Appellant.
Wordes, Wilshin & Conner and Frank A. Conner for Defendant and Respondent.
INTRODUCTION
Erik M. Andersen purchased a cruising yacht from Pacific Asian Enterprises, Inc. (Pacific Asian). Andersen sued Pacific Asian for breach of contract, breach of warranty, and fraud. A jury awarded damages, and Andersen was awarded costs and attorney fees after entry of the judgment. Andersen appeals; we affirm.
First, Andersen argues the trial court erred in denying his motion for leave to amend the complaint, which was filed during trial. We conclude the trial court did not abuse its discretion in denying the motion on the grounds the amendment would have prejudiced Pacific Asian.
Second, Andersen argues the trial court erred in refusing to permit him to seek recovery of loss of use damages during the phase of the trial involving contract damages. Because Andersen did not rent a replacement yacht while Pacific Asian's breaches of contract prevented him from using his own yacht, loss of use damages were not available on those claims. Any error would be harmless because Andersen sought and recovered loss of use damages during the separate phase of the trial involving fraud damages.
Third, the trial court did not err in taxing the costs of depositions requested by Andersen. Andersen's verified cost bill did not specify how the deposition costs were incurred, and was therefore insufficient to establish the necessity and reasonableness of the deposition costs.
Finally, the trial court did not err by reducing the requested attorney fees on equitable grounds to ensure the fees awarded were reasonable.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In April 2003, Andersen entered into a contract with Pacific Asian to purchase a yacht (the vessel). The vessel was built in China and shipped by container ship to New York. From there, it was motored to Newport, Rhode Island, for final commissioning in March 2004. Commissioning involves cleaning a boat, changing its oil and other fluids, making sure all systems are operating properly, and making any additions or changes to the boat not completed at the factory.
The contract provided that the "[c]ommissioning work shall proceed in a continuous operation, at least 5 full days per week, without interruptions; i.e. the Vessel shall not sit in its slip with no commissioning activity, while the crew is working on other vessels." Andersen claimed the commissioning was not continuous.
Andersen took title to the vessel on April 23, 2004. Pacific Asian contended the commissioning was substantially completed in early May 2004. On July 11, 2004, Pacific Asian told Andersen it was done with the vessel and he should go out and use it. In November 2004, Andersen hired someone else to complete the commissioning.
According to Andersen, commissioning was still not completed as of August 18, 2005. In an e-mail dated August 22, 2005, Pacific Asian refused to do any further work on the vessel, contending it had done all it was contractually required to do.
Andersen could not use the vessel while it was in the shipyard for commissioning, or while waiting for the repair or replacement of a nonfunctioning davit used to lift a dinghy from the water. He claimed damages for loss of use of the vessel for a total of 218 days during the summer cruising seasons in 2004 and 2005. Andersen's expert witness on damages testified the price to rent a comparable vessel would be $1,000 per day. Andersen did not, however, rent a substitute vessel.
Andersen sued Pacific Asian for breach of contract, breach of express and implied warranties, and fraud. A jury trial was conducted in three phases. First, the jury considered liability on the breach of contract and warranty claims. Second, the jury considered damages on those claims. Third, and finally, the jury considered the fraud claims.
During the first phase of the trial, Andersen filed a motion to amend the complaint to add allegations regarding a defect in the wire loom. (The wire loom is a flexible plastic conduit or sheathing around the vessel's electrical wiring. At his deposition, Andersen's expert witness testified the vessel's wire loom was defective because it was not self-extinguishing, meaning a fire in the wiring system could spread throughout the vessel.) The trial court denied the motion. In phase 2 of the trial, the jury awarded damages of $25,770 for the breach of contract and warranty claims.
In the third phase of the trial, the jury found Pacific Asian fraudulently induced Andersen to enter into the contract, and awarded $18,000 for loss of use damages; Andersen had requested $218,000 for loss of use damages. The jury did not award any punitive damages.
Judgment in the amount of $43,770 was entered and Andersen timely appealed. Andersen filed a memorandum of costs, and Pacific Asian filed a motion to tax costs. The trial court granted the motion to tax costs in part, and awarded costs to Andersen in the amount of $11,854.66. Andersen appealed from that order.
Andersen also filed a motion for an award of attorney fees. The trial court awarded Andersen attorney fees in the amount of $80,000. Andersen also appealed from the attorney fees order.
Pacific Asian filed an unopposed motion to consolidate the three appeals, which this court granted.
DISCUSSION
I.
EXCLUSION OF WIRE LOOM EVIDENCE
The trial court sustained Pacific Asian's objection to Andersen's evidence regarding the allegedly defective wire loom, on the ground the evidence was not relevant to the issues of the case. We review an evidentiary ruling for abuse of discretion. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.) Andersen concedes the defective wire loom is not mentioned in the complaint, but argues the general allegations that Pacific Asian failed to remedy defective items on the vessel and that the vessel was not fit for boating or cruising encompassed the defective wire loom. The trial court did not err in sustaining Pacific Asian's objection to evidence that was not relevant to any issue then in the case.
After Pacific Asian's objection to the wire loom evidence was sustained, Andersen filed a motion for leave to amend the complaint. Pacific Asian opposed the motion, and the trial court denied it.
We review the trial court's denial of the motion for leave to amend the complaint for abuse of discretion. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) Trial courts "must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. [Citation.] However, '"even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial."' [Citation.]" (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746, italics added.)
The motion for leave to amend the complaint stated, "[t]he purpose of the [first amended complaint] is to set forth specific facts and matters that have come to the attention of plaintiff only during the discovery process'' (Italics added.) Elsewhere, under the heading "Plaintiff Has Not Delayed Unreasonably in Seeking Leave to File the First Amended Complaint," Andersen stated, "[t]he issue of the flammable looms was first known to the plaintiff[] in November of 2009." Nowhere does Andersen explain why he waited from November 2009 to April 23, 2010 to seek leave to amend the complaint to add the new claims.
The motion for leave to amend also sought to add another claim to the complaint: "The draft of the vessel significantly exceeded what was represented to Plaintiff and promised to him." On appeal, Andersen does not raise any arguments regarding this issue.
Pacific Asian argues the amendment of the complaint would have prejudiced it for several reasons. First, Pacific Asian argues the addition of the wire loom claim would have raised issues of federal preemption which had not been researched or briefed. (We note that the issue before us is not whether Andersen's claims would actually be preempted by federal law, but whether the potential of federal preemption issues arising during trial could have caused prejudice.)
Andersen argues in his reply brief that Pacific Asian failed to raise the issue of federal preemption in the trial court, and this court therefore may not consider the issue. Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839, on which Andersen relies, provides: "Only the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit." Even if this case could be extended to apply to the opposition to a motion for leave to amend a complaint during trial, we would conclude the opposition to the motion for leave to amend was based on the prejudice that would result from the late amendment of the complaint, of which potential federal preemption issues are a part.
The Federal Boat Safety Act of 1971 (46 U.S.C. § 4301 et seq.) (the FBSA) applies to recreational water vessels, such as the vessel. The FBSA includes the following preemption language: "Unless permitted by the Secretary [of Transportation] under section 4305 of this title, a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment (except insofar as the State or political subdivision may, in the absence of the Secretary's disapproval, regulate the carrying or use of marine safety articles to meet uniquely hazardous conditions or circumstances within the State) that is not identical to a regulation prescribed under section 4302 of this title." (46 U.S.C. § 4306.)
The portion of the FBSA addressing penalties and injunctions for violation of its terms includes the following language: "Compliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law." (46 U.S.C. § 4311(g).)
In Sprietsma v. Mercury Marine (2002) 537 U.S. 51, 54-55 (Sprietsma), the United States Supreme Court considered whether a wrongful death case was preempted by the FBSA; the deceased had been struck by the propeller of an outboard motor that was not protected by a propeller guard. The court first held that a common law wrongful death action was not expressly preempted by the FBSA, based on the statutory language. (Sprietsma, supra, at p. 63.) The court next considered whether the wrongful death lawsuit was implicitly preempted by the enactment of the FBSA, on the grounds Congress intended federal law to occupy the field exclusively (Sprietsma, supra, at pp. 64, 68-70), or by the Coast Guard's decision not to adopt a regulation requiring propeller guards on motorboats (id. at pp. 65-68); the court rejected both of those arguments. "Absent a contrary decision by the Coast Guard, the concern with uniformity does not justify the displacement of state common-law remedies that compensate accident victims and their families and that serve the Act's more prominent objective, emphasized by its title, of promoting boating safety." (Id. at p. 70.)
Andersen cites Sprietsma in support of his argument that the wire loom claim was not preempted by the FBSA. Specifically, Andersen argues that 46 United States Code section 4306 applies only to state laws and regulations, not to claims for breach of contract, and that the savings clause of section 4311(g) applies. We agree that under Sprietsma, a claim for breach of contract based on the inclusion of an allegedly defective wire loom is probably not expressly preempted by the FBSA. (See Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 526 ["a common-law remedy for a contractual commitment voluntarily undertaken should not be regarded as a 'requirement . . . imposed under State law'" that would be preempted under a federal statute].) The rule of Sprietsma, however, would require the trial court in the first instance to analyze whether the wire loom claim was implicitly preempted, either because Congress intended to occupy the field exclusively, or because a proposed regulation regarding wire looms in recreational water vessels was not adopted by the appropriate agency. Andersen claims in his reply brief that "the Coast Guard has promulgated regulations regarding electrical equipment [but n]one of those regulations pertain to whether or what type of loom is required." Andersen did not cite any of those regulations to us, however. Whether the breach of contract claims were ultimately determined to be preempted by the FBSA, the parties would have been required to address, and the trial court would have been required to conduct, the necessary analysis of the language of the FBSA, its legislative history, and the proposed and enacted regulations related to it.
Second, Pacific Asian argues it would have been unfairly surprised by the addition of the wire loom issue during trial. Andersen argues Pacific Asian could not have been surprised by the addition of the wire loom claim during trial, because Pacific Asian became aware the wire loom on its boats was defective in 2005. Awareness of issues relating to one's own products cannot equate to knowledge that those issues are being raised in litigation regarding an alleged breach of contract. The trial court noted this point when Andersen's counsel first raised the possibility of amending the complaint to add the wire loom issue:
"[Andersen's counsel]: . . . In terms of the fairness, the deposition of [Pacific Asian's expert witness], among other things, establishes that [Pacific Asian] was aware of this wire loom issue.
"The Court: That doesn't mean it was subject to the litigation.
"[Andersen's counsel]: Understood. . . . But . . . responding to the defendant's claim of unfair surprise, this is a situation where the defendant was aware of the inadequacy of the loom.
"The Court: It doesn't mean that we're preparing for trial on this subject. It's not in your complaint."
Andersen also argues the wire loom claim was encompassed by the complaint, and therefore could not have been a surprise to Pacific Asian. Andersen notes that the complaint alleged Pacific Asian breached the contract by failing to properly install the electrical wiring system in accordance with the contract requirements, and the wire loom is part of the vessel's electrical system. The allegations in the complaint regarding the vessel's electrical wiring system, however, are very specific, and do not cover the wire loom issue. In relevant part, the complaint alleges: "By agreement of the parties, the written contract contained provisions not in Defendant [Pacific Asian]'s standard sales contract, including among other matters, the following: [¶] . . . Defendant [Pacific Asian] agreed that all wire ends and terminals in the Vessel's electrical system would be numbered to match the numbering on all electrical diagrams. [¶] . . . [¶] . . . Defendant [Pacific Asian]'s company policy is to not agree to number wire ends to match electrical diagrams and that they never intended to perform such numbering. [¶] . . . [¶] . . . Among the major work which Defendant [Pacific Asian] failed to complete was the numbering of the Vessel's wire ends and terminals. [¶] . . . [¶] . . . Defendant [Pacific Asian] failed to deliver the Vessel in conformance with the contract specifications, including without limitation, the following particulars: [¶] . . . [¶] . . . The Vessel's wire ends and terminals were not numbered." We reject Andersen's claim that issues regarding the wire loom were encompassed by the specific allegations that the contract required the wire ends and terminals to be numbered, just because both involve the vessel's electrical system.
Similar allegations were raised in the causes of action for fraud.
Third, Pacific Asian argues the amendment to the complaint would have been prejudicial because "[t]he specific material specifications on the wire loom material that was key to the plaintiff's argument was located with Taiwan shipyards and Taiwan or Chinese material suppliers, none of whom were parties to the action, and there was no time to obtain those records in an admissible form for presentation at trial." (Although Pacific Asian does not provide any record reference to support this statement, Andersen does not dispute its accuracy.) Andersen faults Pacific Asian for failing to conduct additional discovery after the issue of the wire loom defect was first raised during Andersen's expert witness's deposition. But Andersen does not explain why Pacific Asian had any responsibility to seek to reopen discovery after the wire loom issue was raised, when Andersen did not file his motion for leave to amend the complaint until after trial had commenced.
The original trial date was December 14, 2009. Therefore, the discovery cutoff date was no later than November 16, 2009. (The 30th day before trial, November 14, 2009, fell on a Saturday.) (Code Civ. Proc., § 2024.020, subd. (a).) Expert discovery was to be completed no later than November 30, 2009. (The 15th day before trial fell on a Sunday.) Pacific Asian's expert was deposed on December 1, 2009, after the expert discovery cutoff date. The continuance of the trial date did not reopen the expert or nonexpert discovery proceedings. (Id., § 2024.020, subd. (b).) Neither party filed a motion to reopen discovery after the continuance of the trial date. (Id., § 2024.050, subd. (a).)
The trial court did not abuse its discretion by denying Andersen's motion for leave to amend the complaint to add new claims during trial.
II.
LOSS OF USE DAMAGES
Andersen argues the trial court erred by prohibiting him from recovering loss of use damages on his breach of contract and breach of warranty claims. Whether a party is entitled to recover a type of damages is a legal issue we review de novo. (Electrical Electronic Control, Inc. v. Los Angeles Unified School Dist. (2005) 126 Cal.App.4th 601, 610; CUNA Mutual Life Ins. Co. v. Los Angeles County Metropolitan Transportation Authority (2003) 108 Cal.App.4th 382, 391.)
A plaintiff may not recover damages for loss of use based on a claim of breach of contract or breach of warranty for an accepted consumer good unless such damages are actually incurred. (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 756.) Andersen did not incur any expenses to obtain a replacement vessel for the time the vessel was not available to him; thus, the trial court did not err in denying his claim for loss of use damages in the phase of the trial devoted to contract and warranty damages. Andersen's arguments to the contrary are unavailing.
Andersen cites Malinson v. Black (1948) 83 Cal.App.2d 375 and Story v. Gateway Chevrolet Co. (1965) 237 Cal.App.2d 705, as cases in which the trial court permitted recovery of loss of use damages although the plaintiff did not incur actual damages by hiring a replacement item. However, Malinson was a negligence case arising from an automobile accident, and Story was a case involving rescission of contract, so neither is on point.
Additionally, both Malinson v. Black and Story v. Gateway Chevrolet Co. were decided before the enactment of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) (the Song-Beverly Act), discussed post.
Andersen also argues the Song-Beverly Act and California Uniform Commercial Code sections 2714 and 2715, on which Bishop v. Hyundai Motor America relied, do not apply in this case.
The Song-Beverly Act provides additional protections for purchasers of consumer goods. "[T]he Song-Beverly Act is strongly pro-consumer . . . . [Citation.] The Act also makes clear its pro-consumer remedies are in addition to those available to a consumer pursuant to the Commercial Code [citation] and the Unfair Practices Act [citation]. The Act 'is manifestly a remedial measure, intended for the protection of the consumer; it should be given a construction calculated to bring its benefits into action. [Citation.]' [Citation.]" (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990.) The vessel falls within the Song-Beverly Act's definition of consumer goods.
Page 12 (Civ. Code, § 1791, subd. (a) ["'Consumer goods' means any new product . . . that is used, bought, or leased for use primarily for personal, family, or household purposes"].) The Song-Beverly Act makes clear that it is to be interpreted in tandem with the California Uniform Commercial Code. "The provisions of this chapter shall not affect the rights and obligations of parties determined by reference to the Commercial Code except that, where the provisions of the Commercial Code conflict with the rights guaranteed to buyers of consumer goods under the provisions of this chapter, the provisions of this chapter shall prevail." (Civ. Code, § 1790.3.)
Andersen correctly argues that Civil Code section 1793.2, subdivision (d)(2) does not apply in this case. That subdivision, by its terms, applies only to new motor vehicles; the statutory definition of "new motor vehicle" does not include the vessel. (See Civ. Code, § 1793.22, subd. (e)(2).)
The remainder of the Song-Beverly Act and the provisions of the California Uniform Commercial Code, however, still apply. The Song-Beverly Act provides: "(a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief. [¶] (b) The measure of the buyer's damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2, and the following: [¶] . . . [¶] . . . Where the buyer has accepted the goods, Sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform." (Civ. Code, § 1794, subds. (a), (b)(2).)
The clear language of California Uniform Commercial Code sections 2714 and 2715 precludes Andersen from recovering loss of use damages on his contract and warranty claims because he did not incur any expense nor did he suffer any loss that could not reasonably have been prevented by cover. Section 2714 provides: "(1) Where the buyer has accepted goods and given notification . . . he or she may recover, as damages for any nonconformity of tender, the loss resulting in the ordinary course of events from the seller's breach as determined in any manner that is reasonable. [^] (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. [¶] (3) In a proper case any incidental and consequential damages under Section 2715 also may be recovered." Section 2715 provides: "(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach. [¶] (2) Consequential damages resulting from the seller's breach include [¶] (a) Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and [¶] (b) Injury to person or property proximately resulting from any breach of warranty."
Andersen argues he was not required to incur actual expenses to recover his loss of use damages because it was not reasonable for him to have obtained cover. Andersen cites two cases from other jurisdictions in support of this argument. In Shavers v. Massey-Ferguson, Inc. (11th Cir. 1987) 834 F.2d 970, 971, the plaintiffs purchased a tractor and accessories for the tractor from the defendants. The tractor was defective. (Ibid.) On appeal, the defendants challenged the jury's award of damages for the loss of value of the accessories as consequential damages. (Id. at p. 973.) The appellate court affirmed the damages award, despite the fact the plaintiffs had not incurred any expenses to cover. "We conclude that any error on this second assertion was harmless. MFI sold both the Tractor and the Accessories to the Shavers, and therefore was clearly in a position to know that the Tractor had to function for the Shavers to realize the value of the Accessories. The opportunities for the Shavers to 'cover' were extremely limited. It would hardly be reasonable to require the Shavers to have obtained a second large tractor in order to use the Accessories; that would have been very expensive relative to the cost of the Accessories." (Id. at pp. 973-974.) Shavers does not address whether the plaintiffs were entitled to recover damages for loss of use of the tractor, as opposed to the accessories. Because the accessories were unusable without an operational tractor, and because the cost to obtain a replacement tractor vis-a-vis the cost of the accessories was so high, the appellate court correctly found it was not reasonable to require the plaintiffs to cover in order to recover damages for the loss of use of the accessories. For Shavers to be on point, Andersen's claims would have to be for damages due to loss of use of some accessory to the vessel, not the loss of use of the vessel itself.
The language of the statute the appellate court was interpreting, Alabama Code section 7-2-715(2)(a), was identical to the language of California Uniform Commercial Code section 2715, subdivision (2)(a).
In Stark v. Patalano Ford Sales, Inc. (1991) 30 Mass.Ct.App. 194, 196 [567 N.E.2d 1237, 1239], the plaintiff bought a Ford truck, and "made it known that he was buying the [truck] for his personal use, to transport a rear-mounted recreational 'camper body' for camping trips." The plaintiff immediately began experiencing problems with the truck; he returned the truck to the dealer on multiple occasions for service under the express warranty, and also performed repair work on his own. (567 N.E.2d at p. 1239.) The plaintiff sued the dealer and the manufacturer for breach of warranty, among other claims. (Ibid.) The trial court instructed the jury regarding damages for a breach of warranty claim by tracking Massachusetts General Laws chapter 106, section 2-714(2), which contains identical language to California Uniform Commercial Code section 2714, subdivision (2). (567 N.E.2d at p. 1241.) In addition to the difference between the truck's purchase price and its value, as testified to by the plaintiff (zero), plus the amount of the plaintiffs out-of-pocket expenditures, the jury's damages award included over $26,000, which the plaintiff attributed "to his consequential damages, suffered as a result of his loss of use of the truck." (Id. at pp. 1241-1242.) "There is no question that Stark proved the loss of the use of the truck. It was, however, his burden also to prove the amount of his damages from that loss. Although a remand of the case is required because of the erroneous dismissal of the . . . claim against Ford, we do not enlarge the remand to include the opportunity for Stark to submit evidence as to the dollar value of his loss of use. The fact that Stark failed in his burden of proof the first time is insufficient basis upon which to provide him with a second chance." (Id. at p. 1242.) Because the plaintiff had failed to offer evidence of his loss of use damages, the appellate court did not address the defendants' argument that the plaintiff's "failure to seek 'alternative transportation' for his camping trips precludes him from recovering consequential damages." (Id. at fn. 5.) Stark is not on point because it specifically refused to consider the issue that is before us—whether the buyer's failure to cover precludes the recovery of consequential damages for loss of use.
Finally, Pacific Asian argues any error regarding loss of use damages during phase 2 of the trial was harmless, because Andersen was permitted to present evidence of and argue for loss of use damages during phase 3 of the trial, and the jury awarded damages for loss of use. Andersen counters that the damages awarded in phase 3 of the trial were the result of a compromise by the jury, and that the damages for loss of use would have been greater if he had been allowed to request them during phase 2. Specifically, Andersen argues that because the jury voted nine to three in favor of liability on the fraud claims, and then voted 12 to zero to award damages for loss of use at a far lower amount than demanded, the jury must have agreed to award a small amount of damages to obtain the votes of enough jurors to get the necessary votes for liability.
We presume the jury's verdict was proper. "Plaintiff argues that the smallness of the verdict indicates that it was the result of compromise. This implies that the jury acted improperly. He overlooks the fact that the jury did not give full credence to his story, a prerogative which was theirs under the law. The presumption is that the jury acted properly. [Citation.] Since we must view the matter in the light most favorable to supporting the judgment, we must accept the presumption in favor of the regularity of the verdict in the absence of any contrary showing rather than the hypothesis that it acted illegally." (Kraut v. Cornell (1959) 175 Cal.App.2d 528, 533-534.)
The criteria by which we judge a verdict claimed to be the product of compromise are set forth in Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 840-841: "'Verdicts are sometimes rendered in personal injury or death actions that, in view of the evidence of injuries, suffering, and medical and other expenses, are clearly inadequate. Common experience suggests that these are the result of compromise, some jurors believing that the evidence fails to establish liability, but yielding to the extent of agreement on a small recovery. It would be unfair to the defendant to ignore this unmistakable evidence of compromise and to accept the verdict for the plaintiff at face value as a determination of liability. Accordingly, it is well settled that the error calls for a general new trial, and a limited order is an abuse of discretion. [Citations.]' [Citation.] Other indicators of a compromise verdict are (1) a close verdict; (2) jury requests for readback; (3) jury indecision whether the plaintiff should recover a certain amount or nothing; (4) a subsequent jury election to straddle and award a compromise recovery in a lesser amount than that to which plaintiff would be entitled if plaintiff prevailed; and (5) a short trial. [Citations.] When this sort of 'unmistakable evidence' [citation] is present, 'the only reasonable conclusion' to be drawn 'is that the jurors compromised the issue of liability' [citation]. It is an abuse of discretion to grant only a partial new trial when liability is close, the damages are inadequate, and the jury returns a nine-to-three verdict, all of which signal that the verdict was probably the result of a compromise of the liability issue. [Citation.] [¶] The record contains abundant evidence of such a verdict. The evidentiary portion of the trial was relatively short—approximately three and a half days. The jury deliberations were relatively long—a further three days. The expert witnesses held diametrically opposed views concerning Kannappan's adherence to the applicable standard of care during the delivery. Additionally, the jury rendered a nine-three verdict on liability; a jury deadlock had occurred on the first full day of deliberations; the court subsequently had given a deadlocked-jury admonition; there had been a later mistaken verdict; and still further deliberations had been conducted." (Fn. omitted.)
The evidence in this case does not support the conclusion that the jury's relatively small damages award in phase 3 of the trial was the result of a compromise verdict. The damages awarded were far less than what was sought, but this is not a case of serious physical or near fatal injuries resulting in very small damages. (See Leipert v. Honold (1952) 39 Cal.2d 462, 468-470 [nature and extent of serious injuries suffered in car accident were not disputed, but jury was originally unable to reach verdict on liability, finally voting nine to three in favor of the plaintiff at 12:33 a.m., after deliberating since 11:30 a.m. the previous day]; Hamasaki v. Flotho (1952) 39 Cal.2d 602 [verdict for $1,000 despite stipulated special damages of $817.10 in auto accident case where six-year-old victim nearly killed (id. at pp. 604-605); order granting limited new trial motion provided it would be denied if the defendants would consent to judgment of $7,500, reflecting "great disparity between the jury's determination and that of the judge [which] provides an additional and striking indication that the jurors could not agree on the liability issue and that those who believed defendants were liable consented to inadequate damages in return for the votes of those who had decided that defendants should pay nothing" (id. at p. 607)].) Although the jury found in favor of Andersen on the fraud claim, it did not find Pacific Asian acted with oppression or malice.
The length of time the jury deliberated was not excessive when compared to the time spent in trial. Phase 1 of the trial lasted five and one-half days, and the jury deliberated for less than four hours. Phase 2 of the trial lasted for three and one-half hours, and the jury deliberated for one and one-half hours. Finally, phase 3 of the trial lasted one day, and the jury deliberated for less than two and one-half hours. During its deliberations, the jury did not request any readbacks of testimony, request help regarding the instructions, or show any signs of indecision or deadlock. Nothing in the record before us would support Andersen's claim that the jury's damages verdict on the fraud claims was the product of a compromise by the jury.
III.
COSTS
Andersen requested costs in the total amount of $57,358.42; the amount of $49,503.76 was for deposition costs. Andersen's request for costs included only the single, summary page of the Judicial Council of California memorandum of costs form. The trial court granted Pacific Asian's motion to tax costs in part: "As more fully discussed on the record, the court taxes line item number 4 (deposition costs) by the amount of $45,503.75 and denies the balance of the motion." We review the award of costs for abuse of discretion. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1556.)
On our own motion, we augment the record on appeal with the minute order from the hearing on Pacific Asian's motion to tax costs, dated July 27, 2010, which was filed in the case of Andersen v. Pacific Asian Enterprises, Inc. (Super. Ct. Orange County, No. 07CC11282). (Cal. Rules of Court, rule 8.155(a)(1)(A).)
The only support for Andersen's request for $49,503.76 in deposition costs was the summary page of the memorandum of costs form. The summary page did not list the names of the deponents, or break out the costs of taking, transcribing, travelling to and from, or videotaping any of the depositions. Andersen argues that verification of the summary page was sufficient to establish the reasonable necessity of the costs claimed, citing Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267, and Wegner et al., California Practice Guide: Civil Trials and Evidence (The Rutter Group 2010) ¶ 17:131.1, in support. While those authorities make clear that "[t]here is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum" (Jones v. Dumrichob, supra, at p. 1267), none stands for the proposition that almost $50,000 in deposition costs can be requested in a memorandum of costs without providing any explanation of how those costs were incurred.
Indeed, Nelson v. Anderson supports the trial court's conclusion in this case. In dealing with a request for costs for service of process fees, the court held: "Whether and in what amount the expenses for service of process are allowed depends upon who served the process and what amount is allowed to a public officer in this state for such a service. [Citation.] Since MPG's memorandum of costs does not state how the subpoenas were served, it cannot be determined from the face of the cost bill whether the items are proper. The verified cost bill was therefore insufficient, MPG had the burden to establish the necessity and reasonableness of the service costs, but did not do so." (Nelson v. Anderson, supra, 72 Cal.App.4th at p. 132.) Similarly, here, the verified cost bill did not specify how the costs were incurred, and, therefore, Andersen did not meet his burden to establish the necessity and reasonableness of the deposition costs.
The trial court did not abuse its discretion in taxing a portion of the deposition costs.
IV.
ATTORNEY FEES
The contract between Andersen and Pacific Asian contains an attorney fees provision: "In the event a dispute arises between the parties concerning this Purchase Agreement, the prevailing party shall be entitled to receive attorney's fees incurred by it in connection therewith."
Andersen's motion for attorney fees requested $560,236.47. The motion was supported by declarations of Andersen and his attorneys, and by the submission of counsel's billing statements. Pacific Asian's opposition to the motion did not dispute Andersen was entitled to recover contractual attorney fees as the prevailing party, but argued the attorney fees requested were unreasonable. After a hearing, the trial court issued a minute order: "Based on the many considerations discussed at length on the record, the court now rules as follows: attorney fees awarded to plaintiff in the amount of $80,000."
We review the trial court's order awarding attorney fees for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) "[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. . . . The reasonable hourly rate is that prevailing in the community for similar work. [Citations.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary." (Ibid.) After the lodestar has been determined, the trial court "'shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the [Civil Code] section 1717 award so that it is a reasonable figure.'" (Id. at pp. 1095-1096.)
In EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 772-773, the appellate court affirmed the trial court's order reducing the requested attorney fees from the lodestar figure of $50,000 to $5,000, based on equitable principles. "After determining the lodestar figure of $50,000, the trial court was entitled to consider whether that sum should be reduced to a reasonable figure under the applicable equitable principles. [Citation.] It did just that, finding that (1) [the defendants] engaged in conduct that made much of the litigation unnecessary and; (2) as a result, most of the lodestar figure represented attorney fees that were unreasonable." (Id. at pp. 774-775, fn. omitted.) The appellate court therefore held the trial court had the discretion to "reduce a prevailing party's contractual attorney fees to the extent they were unnecessary." (Id. at p. 775.) The court further noted that it was rejecting "a rule that would allow a trial court to reduce a prevailing party's contractual attorney fees for purely subjective reasons, such as its views on the merits of a case, or antipathy toward a party, her counsel, or counsel's litigation strategy. Nor do we intend that fees may be reduced solely to punish a party for such reasons. As just discussed, our holding is based solely on the undisputed finding that, given how the case unfolded at trial, the bulk of appellants' fees was unnecessary." (Id. at fn. 5.)
The trial court here, in discussing EnPalm, LLC v. Teitler, during the hearing on the attorney fees motion, noted that the facts of EnPalm were different; the court found the case was nevertheless applicable because "it seems to me that the conclusion of that case was that the trial judge is not rigidly tied to a Loadstar [sic] calculation if it appears that the prevailing party's attorneys' fees are wildly out of proportion to the recovery."
Based on our reading of the reporter's transcript, the trial court had read all the papers filed in connection with the motion for attorney fees, engaged in a detailed dialogue with the parties' respective counsel, and gave both parties an opportunity to be heard during the hearing. The trial court expressly stated on the record it did not believe this was a complex case. "I must tell you, from my standpoint, it struck me as a fairly routine breach of warranty case. It didn't strike me as being highly complex. But that doesn't help me decide this case. You think the case is worth $560,000 in the nature of lawyer fees and . . . [¶] . . . [¶] . . . I don't recall that [Pacific Asian's counsel] told me what he thinks it should be worth. He just says I should base it upon the outcome and what I consider to be reasonable. [^] The way I feel about it this morning, it should be less than that. But you haven't even given me a suggestion of how I should otherwise do this calculation." The court stated and applied the correct legal principles, and we have no reason to disrupt its exercise of discretion.
V.
REQUEST FOR JUDICIAL NOTICE
Andersen filed a request for judicial notice on appeal. None of the matters of which Andersen asks us to take judicial notice was judicially noticed by the trial court. As explained, post, we grant the request as to exhibits 1, 2, 3, 10, and 11, but deny the request as to exhibits 4, 5, 6, 7, 8, and 9.
We are required to take judicial notice of three federal cases: Shavers v. Massey-Ferguson, Inc., supra, 834 F.2d 970 (exhibit 1); Sorensen v. Mink (9th Cir. 2001) 239 F.3d 1140 (exhibit 10); and Hamlin v. Charter Tp. of Flint (6th Cir. 1999) 165 F.3d 426 (exhibit 11). (Evid. Code, §§ 451, subd. (a), 459.) We will also take permissive judicial notice of the following decisional and statutory law of other states: Stark v. Patalano Ford Sales, Inc., supra, 567 N.E.2d 1237 (exhibit 2); and Alabama Code section 7-2-715 (exhibit 3). (Evid. Code, §§ 452, subd. (a), 459.)
Andersen requests that we take judicial notice of court records and filings from a case which he filed against Pacific Asian in federal court in the Central District of California. (Andersen filed that federal case based on the alleged defect in the wire loom of the vessel after the trial court in this case denied his motion for leave to amend the complaint to add that claim. According to the request for judicial notice, the federal case was dismissed on statute of limitations grounds.) Andersen contends these items are relevant to our consideration of Andersen's motion for attorney fees in this case. He argues the amount Pacific Asian recovered from Andersen in attorney fees in the federal case supports Andersen's argument that the trial court in this case abused its discretion in reducing Andersen's request for attorney fees. We deny the request that we take judicial notice of exhibits 4, 5, 6, 7, 8, and 9, because (1) these items were not before the trial court, and (2) in light of our ruling on the attorney fees order, they are irrelevant. (Evid. Code, §§ 452, subd. (d)(2), 459.)
Exhibit 4 to the request for judicial notice is the federal court's order granting Pacific Asian's motion for an award of reasonable attorney fees. Andersen argues this document is subject to mandatory judicial notice, as decisional law of the United States. An unreported court order has no precedential value (other than as the law of that case) and is therefore not decisional law of which judicial notice must be taken. (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 467, fn. 1 [California Supreme Court takes permissive judicial notice of trial court order granting motion for summary judgment under Evidence Code section 452, subdivision (d)]; Forty-Niner Truck Plaza, Inc. v. Union Oil Co. (1997) 58 Cal.App.4th 1261, 1277, fn. 7 [appellate court takes judicial notice of federal district court orders as court records, pursuant to Evidence Code section 452, subdivision (d)(2)].)
DISPOSITION
The judgment and postjudgment orders are affirmed. Respondent to recover costs on appeal.
FYBEL, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.