Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. PES-98-270533.
HAERLE, J.
I. INTRODUCTION
This is an appeal from a judgment of the San Francisco probate court awarding attorney fees and costs totaling slightly under $90,000 in favor of petitioner and respondent Robinson and against objector and appellant Hellen. It was entered in a probate proceeding that has been going on since 1998. Appellant, an attorney representing herself, raises a substantial number of objections to the attorney fees order (19 in her opening brief and 11 in her reply brief), none of which we find to be meritorious. We thus affirm the probate court’s judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Even though the issue raised in this appeal is relatively simple, i.e., did the probate court err in granting the order and entering the later judgment awarding the attorney fees and costs, because this has been such a long-running and acrimonious proceeding, some (abbreviated) background facts are necessary.
A. Background.
Thomas and Lucy Washington were married in 1971. Thomas died in May 1998 and Lucy in December of the same year. There promptly ensued an extended dispute between their two estates as to which of the decedents (and hence, thereafter, which of the estates) owned the real property located at 1908-1910 Divisadero Street in San Francisco. During that period, and regarding that dispute, respondent Robinson was the administrator of Thomas’s estate, being probated in the San Francisco County probate court, and appellant Hellen the executor of Lucy’s estate, an estate in probate in the Sacramento County probate court. Another significant party in the instant litigation was a now-deceased San Francisco real estate broker named Claudia Cramer, who entered into a one-year real estate listing agreement (Listing Agreement) with Hellen to try to sell the Divisadero Street property. The term of this agreement was from March 17, 2006, to March 17, 2007.
We shall now quote from the “Factual Background” section of Probate Judge Mary Wiss’s order of April 30, 2010 (the order underlying the judgment being appealed, hereafter April 2010 order), as to the specific disputes at issue before us. In so doing, we will either insert in brackets or add in footnotes both some corrections and a few additional facts that are pertinent to this appeal.
It is not necessary to a resolution of this appeal to recite all of the disputes that occurred between the two estates from 1998 until their resolution by the probate court’s orders of 2009 and 2010 (described below). But what is pertinent regarding them is that, from 2000 to 2002, appellant Hellen, acting as (apparently) first an attorney for the Executor of Lucy Washington’s estate and later as both attorney and executor, filed at least five petitions or motions in the Thomas Washington estate proceeding, including at least two attacks on the jurisdiction of the San Francisco probate court. Judge David Ballati also specifically noted the many litigious actions of Hellen in his 2009 decision noted below. He also noted that it was Hellen’s position (albeit not proven by her in the 2009 hearing before him) that “she is the sole beneficiary of the Estate of Lucy E. Washington.”
“The gravamen of all matters before the Court stems from a dispute over Cramer’s entitlement to a real estate commission in the amount of $108,000 and $15,000 for services to prepare the property for sale. $123,000 is presently held in escrow.
“On March 17, 2006, Hellen, as Executor of the Estate of Lucy Washington, and Cramer, a realtor, entered into a contract... to sell real property owned by Lucy’s Estate located at 1908-1910 Divisadero Street, San Francisco (‘The Listing Agreement’). The contract gave Cramer the exclusive right to sell the property for one year from March 17, 2006 to March 17, 2007. At the time the contract was entered into, Cramer was aware that Lucy’s estate was engaged in litigation with Thomas’s Estate over ownership of the Divisadero Street property. The litigation was resolved in a mediation whereby the Estate of Thomas Washington became the sole owner of the property in consideration for $682,000 paid to the Estate of Lucy Washington. Additionally, the Essential Terms to the settlement [hereafter Settlement Agreement] provided that the property would be sold subject to the [Listing Agreement] with Cramer and Lucy’s Estate to satisfy any obligations to Cramer.
“Following the mediation, the Estate of Thomas Washington offered Cramer the opportunity to act as realtor for the sale of the property. Cramer declined. Another real estate agent was employed and the property was sold in December 2006 for $1,805,000. Cramer then sought a 6% commission on the sale of the property plus $15,000 owed by Hellen to Cramer for services [performed by Cramer] to enhance and improve the property to maximize its resale value. Hellen and Cramer arbitrated the dispute over Cramer’s entitlement to the commission and claim for services which resulted in Cramer being awarded the full amount she requested plus attorney fees and costs for a total award of $135,245. [Fn. omitted.] Robinson was not a party to the arbitration.
Six percent of the $1,805,000 sale price plus the $15,000 owed to Cramer for her services totals $123,300, and thus accounts for the $123,000 held in escrow, the entitlement to which was litigated before Judge Ballati.
Such was the case notwithstanding the fact that Robinson’s attorneys had specifically requested to be informed regarding, and to be allowed to participate in, the arbitration.
“Hellen subsequently petitioned the Court in Lucy’s Estate San Francisco Superior Court PTR-07-290202, for an order to Turn Over Funds in Possession of Trustee and Beneficiaries of the Thomas Washington Estate and to Impose Constructive Trust over the funds due to Cramer from the sale of the real property pursuant to the arbitration. Hellen also moved for Summary Judgment or in the alternative Summary Adjudication in Lucy’s Estate seeking the same relief. On February 9, 2009, the Court denied Summary Judgment and Summary Adjudication. The Petition to Turn over Funds, which addressed the same issue was taken off calendar.
“Cramer then filed a Petition for Confirmation of Arbitration Award against the Estate of Lucy Washington in both San Francisco and Sacramento County Superior Courts. Robinson sought to intervene as a real party in interest. The San Francisco Superior Court granted the application to intervene. (San Francisco Superior Court No. CPF-08-508758). On October 28, 2008 the Honorable Patrick J. Mahoney issued an Order denying the Petition for Confirmation of the Arbitration Award. Judge Mahoney vacated the Arbitration Award pursuant to CCP §1286.2(a)(1).
Although supposedly included in the record filed with us, we have been unable to find a copy of the October 2008 order of Judge Mahoney in that record. However, we note that Robinson’s counsel argued to Judge Wiss that “Judge Mahoney saw right through the charade and not only denied the Petition to Confirm the Arbitration Award but went a step further and vacated the colluded Arbitration Award.” It is apparent to us, from her April 2010 order, that Judge Wiss agreed with this conclusion.
“Robinson, on behalf of Thomas’s Estate, filed a Petition for Instructions and Declaratory Relief on October 3, 2008. Cramer filed a Cross-Petition for Declaratory Relief seeking a declaration that Hellen paid Cramer $60,000 and owes Cramer another $63,300 plus legal fees and costs. The trial on Robinson’s Petition and Cramer’s Cross-Petition was held before the Honorable David L. Ballati, sitting without a jury, on February 27, March 4 and 5, 2009.
“Judge Ballati’s Findings and Order was filed on May 22, 2009. On May 29, 2009 a Notice of Entry of Order was mailed to all parties. The Court found that Cramer knew, at the time she entered into the [Listing Agreement] with Hellen, that there were two lis pendens recorded against the property and also knew that there was a dispute as to ownership of the Divisadero property. Additionally, the Court found that Cramer declined the offer by the Estate of Thomas Washington to represent the property as realtor. The Court held that the one-year contract [i.e., the Listing Agreement] between Cramer and Hellen was void at its inception, barred by Probate Code §§10150 and 10538, and that an exclusive right to sell property cannot exceed 90 days. While extensions may be granted in 90-day increments, the total period cannot exceed 270 days. The Court further found that Cramer is not entitled to a 6% commission on the sale of the real property because the transfer of the property from the Estate of Lucy Washington to the Estate of [Thomas] Washington did not trigger the ‘withdrawal from sale clause’ in the [Listing Agreement]. The court ordered that Cramer take nothing on her Cross-Petition and that the monies held in escrow be delivered to Robinson, in the amount of $108,000 and Hellen in the amount of $15,000. The Court also found that Robinson was the prevailing party. The issue of attorney fees was bifurcated and the Court reserved jurisdiction over the issue of attorney fees and costs.”
B. The Substance of the April 2010 Order.
Hellen moved to set aside or modify Judge Ballati’s May 22, 2009, order. Judge Wiss denied that motion in her April 2010 order. Nothing regarding that denial is challenged by Hellen in this appeal.
Except that, in her opening brief, Hellen purports to challenge Judge Wiss’s finding that her October 9, 2009, Notice of Intention to Move for New Trial/Vacate/Modify the Order of May 22, 2009, was untimely. She does so on the basis that a stipulation filed on June 26, 2009, somehow made her October 9, 2009, motion timely. We have examined the stipulation cited by Hellen and conclude that it did no such thing.
What is at issue here is the matter noted in the last two sentences of the April 2010 order, i.e., the “bifurcated... issue of attorney fees and costs.” Some additional background on that issue is relevant: In June 2009, i.e., a month after the entry of Judge Ballati’s order, Robinson filed an application for an award of attorney fees. This application was later supplemented by Robinson and was also the subject of scores of filings by both Hellen and Cramer opposing the application and by Robinson supporting it. The matter was then argued before Judge Wiss on February 24, 2010, and was, as noted, the principal subject of her April 2010 order.
Although both Robinson and Hellen claimed to be the prevailing parties in the matter litigated before Judge Ballati, the latter found Robinson to be the prevailing party in his May 2009 order. Judge Wiss agreed in her April 2010 order, despite the opposition of both Hellen and Cramer. In so ruling, she relied principally on Civil Code section 1717 (section 1717) and cases decided under it. She also ruled that the same was true (i.e., Robinson was the prevailing party) for purposes of costs pursuant to Code of Civil Procedure section 1032.
Judge Wiss then went on to consider whether Robinson was legally entitled to attorney fees in light of the fact that the only contractual basis for an attorney fees award was the Listing Agreement between Cramer and Hellen. Because Robinson was not a signatory to that agreement, the court considered whether the reciprocity provision of section 1717 applied to Robinson. The court concluded it did, finding that that provision authorized awarding Robinson fees for two petitions that had been the subject of her fee request, namely (1) her petition for declaratory relief regarding the validity of the Listing Agreement, and (2) Cramer’s petition for confirmation of the arbitration award. In both instances, Hellen and Cramer took the position that Robinson had stepped into the shoes of Hellen and thus assumed Hellen’s obligation under the Listing Agreement. Thus, the court reasoned, if Hellen and Cramer had prevailed on their theories, they could have recovered fees against Robinson. Therefore, pursuant to the principle of reciprocity, Robinson was herself entitled to attorney fees for prevailing on both of these petitions.
However, Judge Wiss also found that Robinson was not entitled to recover attorney fees because of her opposition to Hellen’s Petition to Turn Over Funds in Possession of Trustee and Beneficiaries and Impose Constructive Trust. The court reasoned that that petition was based on the Settlement Agreement rather than the Listing Agreement, and that the former did not contain an attorney fees provision.
The April 2010 order continued by applying the lodestar method of awarding attorney fees to Robinson. Judge Wiss denied several items of fees claimed by Robinson’s attorneys because they were for services not covered by the attorney fees clauses at issue; she concluded by awarding attorney fees of $58,571.13 to attorneys Cullen & Wood and $9,525 to attorney Burton McGovern. The court also ruled that the fees were chargeable against both the Estate of Lucy Washington (for which Cramer had acted as a real estate agent) and Cramer, i.e., that they were jointly and severally liable, and then concluded by stating: “To the extent there are insufficient assets of the Estate of Lucy Washington to satisfy the obligation, and to the extent the assets of Lucy’s Estate have been distributed to Hellen, Helen [sic: Hellen] is liable.”
Judge Wiss concluded her April 2010 order by (1) granting Hellen’s motion to tax the costs claimed by Robinson and her attorneys because it had been filed prematurely, but allowing it to be refiled under California Rules of Court, rule 3.1700(a)(1) if done in a “timely” manner (which it was); (2) substituting Andrew Cramer as successor-in-interest to the Estate of Claudia Cramer (who died in October 2009), but only to the extent “his liability was limited to the extent he succeeded in interest to the property of the estate”; and (3) ruling on three separate requests for judicial notice filed by Hellen after Judge Ballati’s March 2009 order.
On July 21, 2010, in response to a motion for a new trial filed by Robinson, Judge Wiss entered an order partially modifying her April 2010 order. In addition to making a few minor corrections to the earlier order, the July 21 order made two significant substantive changes to it. First, Judge Wiss reversed a portion of her earlier ruling and found that Robinson was also entitled to attorney fees relating to Hellen’s July 2007 Petition to Turn Over Funds in Possession of Trustee and Beneficiaries and Impose Constructive Trust. The court noted that Hellen had brought this action based on the Settlement Agreement which, itself, contained no attorney fees provision but which did contain a clause providing as follows: “ ‘The Administrator CTA of the Estate of Thomas Washington [Robinson] shall proceed immediately to sell the property subject to the listing agreement with Claudia Cramer (satisfying any obligations to Cramer) and shall be in charge of the sale.’ ” (Emphasis in the July 21, 2010, order.)
As a result of the modifications of her April 2010 order contained in Judge Wiss’s July 21, 2010, order, hereafter any and all references to the April 2010 order will mean to that order as modified by the July 21, 2010, order.
Judge Wiss characterized this July 2007 petition by Hellen as “another attempt to require Thomas’s Estate to pay Cramer’s commission under the Listing Agreement, ” an agreement which of course contained an attorney fees clause. That petition was, Judge Wiss reiterated, an attempt “to force Robinson to pay [Hellen] the commission under her [Listing Agreement] with Cramer as a result of the Arbitration Award.... [¶]... The entire course of litigation between these parties since the [December 2006] sale of the property has been over the sales commission allegedly due to Cramer and Cramer and Hellen’s attempt to collect [that] commission.”
Secondly, the July 21, 2010, order increased the lodestar attorney fees for Administrator Robinson’s attorneys by slightly under $19,000, resulting in an increased attorney fees award of $86,908.83. The new (now timely) cost bill approved by the court amounted to $2,643.60.
A judgment based upon and incorporating the rulings in these orders was executed and filed on August 26, 2010. Pursuant to it, the total amount of attorney fees and costs due from Hellen to Robinson is $89,552.43. Perhaps the most important part of the judgment is paragraph 6 thereof, which provides: “[T]he attorney’s fees are chargeable against the Estate of Lucy Washington and Claudia Cramer. To the extent that there are insufficient assets of the Estate of Lucy Washington to satisfy the obligation and to the extent that the assets of Lucy’s Estate have been distributed to Loretta Hellen, Loretta Hellen is personally liable.”
Included in the judgment were provisions requiring the company holding the escrowed funds to release to Robinson the $108,000 (plus accrued interest) owed her per the earlier rulings of Judge Ballati, and to do the same regarding the $15,000, again plus accrued interest, owed to Hellen. As noted earlier, Hellen is not appealing from these portions of the judgment and, from the record before us, we do not know if those funds have in fact been released.
A timely notice of appeal from that judgment was filed by Hellen a few weeks later. That notice specifically states that her appeal is limited to “attorneys fees/costs as to Estate of Lucy E. Washington/Executor Hellen only.”
III. DISCUSSION
A. Hellen Was Subject to the Attorney Fees Clausein the Listing Agreement.
The obvious starting place is the attorney fees clause at issue. As noted by both Judges Ballati and Wiss, it is a simple, two-line clause in the March 17, 2006, Listing Agreement between Hellen, as Executor of the Estate of Lucy Washington, and Cramer Realty. As noted above, that agreement gave Cramer a one-year “exclusive” right to sell the Divisadero Street property.
The following provision appeared on page 3 of that agreement: “15. Attorney Fees: In any action, proceeding or arbitration between Owner and Broker regarding the obligation to pay compensation under the Listing Agreement, the prevailing Owner or Broker shall be entitled to reasonable attorney fees and costs, except as provided in paragraph 19A.” Although Robinson was not a party to this agreement, Judge Wiss ruled that she was the prevailing party on the petitions at issue and, under the relevant law, was entitled to attorney fees pursuant to section 1717. The previous year, in his decision on the merits of the disputes between Robinson on the one hand and Cramer and Hellen on the other, Judge Ballati had also ruled that Robinson was the prevailing party.
Paragraph 19A of the agreement dealt with “Mediation” and is thus irrelevant here, as no mediation was ever undertaken.
Our colleagues in the Sixth District appropriately summarized the applicable standard of review in Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894 (Blickman). They wrote: “A request for an award of attorney fees is largely entrusted to the discretion of the trial court, whose ruling ‘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.] The trial court exercises a particularly ‘wide discretion’ in determining who, if anyone, is the prevailing party for purposes of section 1717[, subdivision] (a). (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1158 [(Sears)]....) To overturn that determination on appeal, the objecting party must demonstrate ‘a clear abuse of discretion.’ [Citation.] However, the ‘determination of the legal basis for an award of attorney fees’ is a ‘question of law’ which the reviewing court will examine de novo. [Citation.]”
The first issue we must address on this appeal is whether the probate court was correct in its ruling that, even though Robinson was not a party to the Listing Agreement between Hellen, as Executor of the Lucy Washington Estate, and Cramer, the real estate broker, she is still legally entitled to an award of attorney fees; we agree with the probate court’s conclusion in this regard.
As noted earlier, appellant Hellen raises 19 points of alleged error by the probate court in her opening brief and 11 such points in her reply brief; some of these overlap, but most do not. Put another way, many of the arguments made in Hellen’s reply brief were notadvanced by her in her opening brief to us. We will not discuss these issues in either the order (much less manner) argued by appellant. However, in our overall discussion we will endeavor to address them all, albeit some briefly in footnotes, and the most spurious ones in part III, D, post.
As noted above, the Listing Agreement of March 17, 2006, was between Hellen, a Sacramento attorney serving as Executor of the Lucy Washington Estate, and Cramer. Hellen specifically signed that agreement as Executor. As such, she was at least five years into a dispute with the executor of the Thomas Washington Estate, the probate matter pending in the San Francisco probate court, a dispute over which estate now owned the Divisadero Street property. That dispute had morphed into litigation via the filing by Robinson, on October 3, 2008, of a Petition for Instructions and Declaratory Relief. Although that petition did not specifically name any individuals as adverse parties, the allegations of the petition made it clear that it involved a dispute between Robinson, on the one hand, and Hellen and Cramer, on the other, as to who was entitled to the escrowed/undistributed $123,000 from the proceeds from the December 2007 sale of the Divisadero Street property. Robinson’s October 2008 petition took the position that Cramer was not entitled to any of that money, including the 6 percent commission on the sale (again, a sale consummated by another broker) she was claiming.
On November 4, 2008, Hellen filed not only a response to Robinson’s petition, but also her own request for declaratory relief. The latter request specifically included demands for a declaration that she was owed $62,450 from the $123,000 in escrow and Cramer the balance of those funds. Hellen supplemented this filing the following month with a supporting memorandum of points and authorities arguing the positions of both herself and Cramer against the position of Robinson (and, of necessity, the Thomas Washington estate) as to who was entitled to what from the escrowed $123,000. She then filed a trial brief arguing the same general points in February 2009. Both of these pleadings argued that both she and Cramer were entitled to monies from the escrowed funds. When the matter got to a hearing before Judge Ballati in February and March 2009, Hellen was identified in the court minutes as a “Respondent/Cross-petitioner.”
As noted in Judge Wiss’s April 2010 order, Judge Ballati’s May 2009 Findings and Order came down entirely on the side of Robinson in the declaratory relief/cross-declaratory relief action he had heard for three trial days the previous months. He ruled that (1) Cramer was entitled to no monies from the escrowed $123,000, (2) Robinson, qua Administrator of the Thomas Washington Estate, was entitled to $108,000, and (3) Hellen was entitled to the remaining $15,000 to reimburse her for the same sum that she had paid Cramer in 2007. The penultimate sentence of that ruling was “Petitioner, Rita Robinson, Administrator with the Will Annexed of the Estate of Thomas W. Washington, is the prevailing party.”
On these facts, we conclude that, even though Robinson was not a party to the contract containing the attorney fees clause, she is nevertheless entitled to an award of attorney fees.
A logical starting point on this subject is our Supreme Court’s decision in Hsu v. Abbara (1995) 9 Cal.4th 863 (Hsu). That case involved a judgment in a real property breach-of-sale-contract action in which the defendant property owners prevailed in a suit brought by prospective buyers, but where the trial court ruled that the defendants could not recover fees pursuant to an attorney fees provision in the written agreement because no contract had in fact ever been formed. Both the trial court and the appellate court denied the winning property owners-and-sellers an award of attorney fees under section 1717. The Supreme Court held—unanimously—that this was error and remanded the matter for further proceedings. In so ruling, the court commenced its decision by agreeing with the implicit premise of the parties to the dispute that there was no “special significance to the trial court’s finding that no contract of sale was ever formed.” This was a correct conclusion, the court said, because section 1717 “would fall short of [its] goal of full mutuality of remedy if its benefits were denied to parties who defeat contract claims by proving that they were not parties to the alleged contract or that it was never formed. To achieve its goal, the statute generally must apply in favor of the party prevailing on a contract claim whenever that party would have been liable under the contract for attorney fees had the other party prevailed.” (Hsu at pp. 870-871.)
The essence of the holding in Hsu was that attorney fees may be awarded to a prevailing party under section 1717 when the lawsuit involved a contract that was never actually finalized, but nonetheless formed the underlying premise for the suit. But Hsu was just the beginning of the road that is relevant for present purposes. Since that decision, several of our sister courts have used the same reasoning to confirm awards of attorney fees under section 1717 to non-signatories to agreements containing attorney fees clauses. Those decisions include Korech v. Hornwood (1997) 58 Cal.App.4th 1412, 1419 (Korech) and Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 450-451 (Franzia).
Despite the fact that Judge Wiss relied heavily on these cases in her April 2010 order and respondent Robinson does also in her brief to us, neither case is cited much less discussed in either of Hellen’s briefs to us. Two other cases holding that attorney fees may be allowed under section 1717 to non-signatories to a contract, Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128, and California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 608, are also neither cited nor discussed by Hellen.
Korech was a suit brought by electrical subcontractors who had done work on a shopping center owned by the Hornwoods, but had not been paid for that work. After a court trial, judgment on the merits was entered in favor of the defendant Hornwoods, who then filed a post-trial motion for attorney fees. The trial court granted their motion, finding them to be the prevailing parties under section 1717. The appellate court affirmed and, in so doing, first posed this question: “Can plaintiffs be held liable for fees pursuant to Civil Code section 1717 when it was found that no contract existed between them and the Hornwoods?” (Korech, supra, 58 Cal.App.4th at p. 1418.)
The court promptly answered this question in the affirmative, stating: “[A]n award of attorney fees pursuant to Civil Code section 1717 is proper when it is determined that the party sued is not a party to the contract or that no enforceable contract was ever formed, as long as the plaintiff would have been allowed attorney fees if it had prevailed in enforcing the contractual obligation. [Citation.]” (Korech, supra, 58 Cal.App.4th at pp. 1418-1419.) The court thus affirmed the trial court’s order awarding the Hornwoods, the defendant-shopping center owners, attorney fees.
Franzia is an opinion authored by our new Chief Justice, then Associate Justice Cantil-Sakauye of the Third District Court of Appeal. It involved, originally, a lawsuit between plaintiff-construction contractor Dell Merk and defendant and cross-complainant Franzia, the owner of the property on which Dell Merk was supposed to construct a “heavy equipment showroom.” (Franzia, supra, 132 Cal.App.4th at p. 445.) The contracts between those parties did not contain an attorney fees clause (id. at p. 450), but this soon became irrelevant because, shortly after Franzia filed its cross-complaint, Pacific State Bank (Bank), which was providing financing to Dell Merk under an agreement containing such a clause, intervened in the action. The Bank sought to recover from Franzia “amounts previously paid by Franzia to Dell Merk as well as monies allegedly still owed and payable by Franzia to Dell Merk.” (Id. at p. 445.) The Bank was unsuccessful in this effort, and the court entered judgment against it; it then awarded Franzia attorney fees and costs of over $200,000. (Ibid.)
The Third District affirmed the award of attorney fees to Franzia, payable by the Bank. Justice Cantil-Sakauye explained why such an award was appropriate notwithstanding the fact Franzia was not a signatory to that contract: “We conclude Franzia was entitled to attorney fees and costs for its defense of Bank’s claim of breach of the obligation to pay for failure to make the first progress payment jointly payable to Dell Merk and Bank. Since Bank only challenges Franzia’s entitlement to its fees and not the amount of the award and since it appears the trial court reduced the originally requested fees to eliminate fees solely attributable to Franzia’s action against Dell Merk, we shall affirm the amended judgment. [¶] ‘[I]n cases involving nonsignatories to a contract with an attorney fee provision, the following rule may be distilled from the applicable cases: A party is entitled to recover its attorney fees pursuant to a contractual provision only when the party would have been liable for the fees of the opposing party if the opposing party had prevailed.’ [Citation.] That is, Franzia is entitled to recover its attorney fees only if it would have been liable for Bank’s attorney fees if Bank had prevailed.” (Franzia, supra, 132 Cal.App.4th at p. 451.)
After examining the contracts at issue, the court found that one of the two contracts met that requirement, i.e., that the Bank could have recovered attorney fees under it if it had prevailed and that, therefore, it was liable to the non-signatory Franzia for such fees pursuant to the same contract and the law under section 1717.
As Judge Wiss reasoned, the same principle applies here. Although Robinson was not a party to the March 2006 Listing Agreement between Hellen and Cramer (1) she was a cross-petitioner for declaratory relief in an action brought to interpret and apply that contract; (2) as Judge Wiss correctly noted, “[a]n action for declaratory relief is an action ‘on the contract’” and such an action “warrants attorney fees to the extent that the action is meant to enforce or invalidate the contract” under the law as summarized in Turner v. Schultz (2009) 175 Cal.App.4th 974, 979-980; (3) in her briefs to Judge Ballati in the declaratory relief action, Hellen strongly supported the positions taken by real estate agent Cramer regarding the latter’s right (as opposed to the right of Robinson) to much of the escrowed $123,000; (4) both Hellen and Robinson, as competing administrators/executors, were parties to the handwritten September 29, 2006, Settlement Agreement between the two estates, an agreement which terminated the mediation of that year and provided for the division between those estates of the net proceeds from the subsequent (December 2006) sale of the Divisadero Street property; (5) that Settlement Agreement specifically provided that, qua administrator of Thomas’s estate, Robinson had to sell the Divisadero Street property “subject to the listing agreement with Claudia Cramer”; (6) Robinson was also a party to Hellen’s July 6, 2007, “Petition to Turn Over Funds in Possession of Trustee and Beneficiaries of Trust and to Impose Constructive Trust, ” an action later abandoned after the (allegedly “colluded”) arbitration award was vacated by Judge Mahoney but which, at the time, sought to make Thomas’s estate pay Cramer’s real estate commission; and (7) Robinson successfully intervened in and thus became a party to Cramer’s June 23, 2008, Petition for Confirmation of Arbitration Award against Lucy’s estate, a petition filed in both San Francisco and Sacramento Superior Courts but later, as noted above, denied by Judge Mahoney in the former court.
Legally, the most important of the involvements of Robinson in the controversy over the real estate sales commission Cramer was claiming was the Settlement Agreement Robinson and Hellen agreed to in September 2006. That agreement was, according to Judge Ballati’s May 2009 decision in this case, prepared by Hellen’s then-attorney, Paul Melbostad. It specifically states in its fourth handwritten paragraph: “The Administrator CTA of the Estate of Thomas Washington [e.g., Robinson] shall proceed immediately to sell the property subject to the listing agreement with Claudia Cramer (satisfying any obligations to Cramer) and shall be in charge of the sale.” (JA, tab 3, Exh. B.) (Emphasis supplied.) As Judge Wiss noted, indeed several times in her April 2010 order: “Throughout all proceedings, Hellen has asserted that Thomas’s Estate is bound by the language in the Settlement Agreement that ‘The Administrator CTA of the Estate of Thomas Washington shall proceed immediately to sell the property subject to the [Listing Agreement] with Claudia Cramer (satisfying any obligations to Cramer) and shall be in charge of the sale’” and, additionally, “that the Divisadero property was transferred to the Thomas Washington Estate subject to the Listing Agreement and the Thomas Washington Estate is responsible for satisfying any obligations to Cramer arising out of the Listing Agreement.” As a result, Judge Wiss concluded: “Here, Robinson was placed in the shoes of Hellen because Thomas Washington’s Estate took the property subject to the [Listing Agreement] with Cramer. Thus, reciprocity exists entitling Robinson to attorney fees on the contract.”
This fact makes rather remarkable Hellen’s (very abbreviated) argument to this court that: “The integrity/viability of the Settlement Agreement remains unlitigated.” We find nothing in the record to suggest that Hellen ever asserted to either probate court judge that the Settlement Agreement was then, or ever was, “non-viable.”
We agree: throughout the probate of the two estates, Thomas’s estate by administrator Robinson and Lucy’s estate by executor and attorney Hellen, there was—especially during the critical years of 2006-2008—an ongoing battle between their overseers regarding which estate was entitled to sell, and thereby receive the proceeds from, the Divisadero Street property. Absolutely central to this dispute was how much, if any, commission Hellen’s clear ally, broker Cramer, was entitled to. The property was, pursuant to the Settlement Agreement, sold in December 2006—and, as per the Settlement Agreement, sold pursuant to the terms of the Listing Agreement. The issue of Cramer’s entitlement to a commission from that sale was explicitly resolved by Judge Ballati in his May 2009 order in favor of Robinson and against Hellen and Cramer.
As respondent Robinson’s counsel observe, correctly we believe, in their brief to us: “All of the actions of Loretta Hellen and Claudia Cramer since January 5, 2007, have been an attempt to gain a commission for Claudia Cramer arising out of the [Listing Agreement] which contains the attorney’s fee clause.”
In sum, because of (1) the many actions Hellen brought against Robinson in the course of this controversy, (2) the combination of the attorney fees clause of the Listing Agreement and paragraph 4 of the Settlement Agreement, and (3) the law summarized above regarding the circumstances when it is not necessary for the recovering party to be a signatory to an agreement containing an attorney fees clause, the fact that Robinson was not a signatory to the Listing Agreement is not controlling. We agree with the probate court that, under these facts and the applicable law, Robinson was entitled to attorney fees in this litigation.
We thus reject Hellen’s argument that Robinson failed to “prove by a preponderance of the evidence” that paragraph 15 of that agreement was “reciprocal.” Nor are we persuaded by Hellen’s theory that the reciprocity principle is inapplicable because Judge Wiss failed to make “findings” that Hellen and Cramer intended for an “outsider” to benefit from the attorney fees provision. First, this theory was improperly raised for the first time in appellant’s reply brief. Second, it rests on an erroneous version of these facts and is unsupported by relevant authority.
B. Robinson Was the Prevailing Party in the Litigation.
The next issue—actually framed as many separate issues in Hellen’s briefs to us—is whether Judges Ballati and Wiss were correct in finding that Robinson was the prevailing party in the litigation between the two estates and, hence, qua Administrator of Thomas’s Estate, she was entitled to attorney fees.
Hellen’s first argument on this score is that Robinson and her attorneys never filed a motion or notice of motion seeking a ruling that she was the prevailing party. This argument simply lacks merit. As many of Hellen’s own pleadings to the probate court make clear, the “prevailing party” issue, including specifically the entitlement of such a party to attorney fees, was very much before that court. Indeed, we have located no fewer than three pleadings filed and signed by Hellen in which she claims to be the prevailing party and entitled to attorney fees.
Notwithstanding Hellen’s many arguments to the contrary, it is clear, as both Judges Ballati and Wiss held, that Robinson was and is the prevailing party in this matter. As noted earlier, that determination is subject to an abuse of discretion standard of review. (See Sears, supra, 60 Cal.App.4th at p. 1158, and other authority cited therein.)
Simple arithmetic makes clear that there was no abuse of discretion here. Notwithstanding multiple actions and cross-actions filed by both Hellen and Cramer, Robinson, qua Thomas’s estate administrator, was adjudged by Judge Ballati to be entitled to $108,000 of the $123,000 of escrowed funds and Hellen entitled to the balance ($15,000) to reimburse her for that same amount she had already paid Cramer. Cramer herself was entitled to no funds from the escrow account.
In her briefs to us, Hellen totally confuses this issue. Thus, she argues in two separate sections of her opening brief that she was the prevailing party as against Cramer. But the litigation before Judge Ballati focused on the issue of to whom the escrowed $123,000 should be disbursed. Judge Ballati ruled—in a ruling not appealed from by Hellen—that Robinson, again qua Administrator of Thomas’s Estate, was entitled to almost 90 percent of those funds. The fact that Cramer (then, apparently, quite ill) got nothing more from the escrowed $123,000 is irrelevant because, as Judge Ballati found and the record confirms (1) Hellen had previously paid Cramer $15,000 for expenses she had incurred in getting the Divisadero Street property ready for sale (an amount Judge Ballati ruled was thus properly reimbursed to Hellen) and (2) Cramer was not the broker who ultimately sold the property in December 2006, and thus was not entitled to any commission under the Listing Agreement. In short, the litigation before the probate court in 2009 and 2010 was, for all intents and purposes, between the two estates, i.e., between Robinson and Hellen.
Hellen argues—indeed, many times in her briefs to us—that Judge Wiss did, in fact, abuse her discretion, especially in her finding that, in the ongoing litigation before her and, previously, Judge Ballati, Hellen and Cramer were essentially aligned together, with Robinson on the other side. But the correctness of this implicit premise of Judge Wiss’s April 2010 order is made manifest by the many pleadings filed by both Hellen and Cramer before Judge Ballati, all contending that Cramer was entitled to the 6 percent commission on the sale of the property, a sale consummated by an entirely different broker. It is also confirmed by Judge Wiss’s findings that, throughout “all proceedings, ” it was Hellen’s position that, notwithstanding the Settlement Agreement providing that Thomas’s Estate had the right to sell the Divisadero Street property, such a sale must be performed pursuant to the March 2006 Hellen-Cramer Listing Agreement, i.e., with Cramer getting any commission therefrom. Finally, that alignment is confirmed in Hellen’s briefs to us, where she continues to argue that it was “deception” on the part of Robinson and her attorneys that kept Cramer from recovering her allegedly deserved 6 percent commission on the sale of the Divisadero Street property.
It is also noteworthy that in the later-vacated and allegedly “colluded” arbitration between Hellen and Cramer, Cramer was represented by Hellen’s original attorney, Paul Melbostad. Hellen specifically agreed to that, and thereafter represented herself.
C. There Was No Abuse of Discretion in the Award of Attorney Fees to Robinson.
Abuse of discretion is, of course, also our standard of review of a ruling by the trial court of an award of attorney fees. (See, e.g., PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM).) There was no such abuse in the probate court’s finding that Robinson and her attorneys were entitled to the amount of attorney fees and costs awarded, i.e., $89,552.43. In so finding, Judge Wiss examined, not once but twice, the billings submitted by Robinson’s attorneys. She denied the entire $6,600 of one portion of the claimed fees and reduced other portions of those fees by over $65,000.
Hellen contends that the award was improper because Robinson failed to establish that she is responsible to her attorneys for the payment of their fees. This contention is based on the incorrect premise that Robinson could not have “incurred” these fees unless she used personal funds to pay her attorneys. “[I]n cases involving a variety of statutory fee-shifting provisions, California courts have routinely awarded fees to compensate for legal work performed on behalf of a party pursuant to an attorney-client relationship, although the party did not have a personal obligation to pay for such services out of his or her own assets.” (Lolley v. Campbell (2002) 28 Cal.4th 367, 373; see also Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1036, and other similar authority cited in both.)
In her reply brief, Hellen also contends that the fee award was “not reasonable.” We could easily disregard the arguments advanced to support this vague theory, as they were not set forth in appellant’s opening brief to us. We chose not to do so, however, as these arguments are easily disposed of. As noted earlier, in awarding attorney fees under section 1717 or costs under Code of Civil Procedure section 1032, a court has wide discretion. (See Blickman, supra, 162 Cal.App.4th at p. 894 & PLCM, supra, 28 Cal.4th at p. 1095. Our examination of Judge Wiss’s April 2010 order discloses not a trace of any abuse of discretion in the amount of attorney fees awarded Robinson.
D. Hellen’s Many Other Arguments are Either Incomprehensible or Frivolous.
As noted earlier, Hellen’s briefs to us contain many, many arguments--19 in her opening brief, 11 in her reply brief. We have addressed most of the substantive and/or rational ones above. But we feel compelled to mention a few of the others, i.e., those that either (1) have little or no bearing on the merits of this appeal and/or (2) are either incomprehensible or spurious or a little of both. Thus:
1. Hellen takes pains to make personal attacks on all three of the probate judges involved in this litigation. Thus, according to her, Judge Wiss made a “toxic” error in one of her findings, Judge Ballati “overreached the parameters of the bifurcated issues” in his order of “May 22, 209 [sic: 2009]” by “gratuitously” including various findings, and Judge Mahoney’s ruling setting aside the arbitration award was “TAINTED BY HIS UNDISCLOSED BIAS AGAINST ATTORNEY PAUL MELBOSTAD, ” then Cramer’s attorney. (AOB 37.) Not only are these attacks unfortunate, but the latter two are particularly deplorable because the appeal before us, as specifically noted by appellant herself, is directed entirely to the attorney fees awarded by Judge Wiss in her April 2010 order and the judgment which followed from it.
2. To the same effect are Hellen’s repeated suggestions that there were procedural and substantive errors in the “arbitration proceedings.” These proceedings were effectively nullified by Judge Mahoney’s order vacating the arbitration award, and thus have nothing whatsoever to do with the attorney fees award at issue in this appeal.
3. Hellen argues about an October 26, 2010, First and Final Report and Petition for Distribution and Allowance of Statutory Attorney Fees filed by Robinson. But Hellen was and is appealing from a judgment dated two months earlier, i.e., August 26, 2010, and her notice of appeal is dated September 8, 2010. Obviously, a probate court filing of October 26, 2010, in this case is (a) not in the record before us and (b) has nothing to do with this appeal.
4. Hellen’s opening brief to us contains this remarkable heading for one of its 19 sections: “ROBINSON MAY BE AWARDED ATTORNESY [sic] FEES FROM HELLEN: ROBINSON OWES HELLEN THE DUTY TO DEFEND HELLEN.” If the first portion of this title means what it says (despite the misspelling), Hellen is apparently conceding the lack of merit in her appeal.
5. Both of Hellen’s briefs to us contain two sets of mysterious arguments about why the law (including the statutes) regarding indemnification is somehow relevant here. They are not at all, per the orders of Judges Ballati and Wiss and the legal analysis underlying those orders. The same is true regarding Hellen’s citations to, and somewhat curious reliance upon, sections 4 of both the Code of Civil Procedure and the Civil Code regarding the rules governing statutory construction, and California’s Rules of Professional Conduct.
6. Equally irrelevant, because not discussed in those orders or, apparently, argued by Hellen at any point in the probate court, is her argument to us in her reply brief that Robinson was repeatedly guilty of “deception, ” “changed her positions throughout” the extended litigation, and that her attorneys made (and continue to make) “not only knowingly and patently false but grossly and deliberately misleading” statements to both the probate court and this court.
E. Hellen’s Requests for Judicial Notice.
Hellen appeals from several denials by Judge Wiss of her requests for judicial notice, and also has asked us, by separate filings on January 13, 2011, to judicially notice several other matters. We reject both.
Judge Wiss granted most of Hellen’s requests for judicial notice, but denied three of them, i.e., that judicial notice be accorded to: (1) her request that a letter from an attorney for Robinson to her then-attorney; (2) some Sacramento County “Probate Notes... showing that Hellen was never served with Cramer’s Petition for Confirmation of the Arbitration Award in 2008”; and (3) the transcript of the oral argument before Judge Mahoney on September 15, 2008.
These requests were properly denied. In the first place, all three matters were, clearly, of little or no relevance to Judge Wiss’s ultimate decision. Second, per Hellen’s arguments to us, the last two items are relevant only to the issue of “whether Hellen is aligned with Cramer” an issue which (1) is of only minimal relevance in any event and (2) was clearly resolved in the affirmative as regards the only issue relevant to Judge Wiss’s decision: Hellen clearly sided with Cramer regarding the latter’s right to collect a substantial portion of the escrowed $123,000.
Regarding the letter between the two attorneys, that letter was authenticated by Robinson’s attorney during the hearing before Judge Ballati, but not admitted into evidence by the latter because of a hearsay objection. Judge Wiss did not err in declining judicial notice of such a document for a variety of reasons, among them being that (1) a litigant is not entitled to judicial notice under Evidence Code section 452 (the “permissive” judicial notice provision) of an attorney-to-attorney communication that was excluded at trial because of a hearsay objection and (2) such a document is not entitled to “permissive” judicial notice in any event. (See, e.g., Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6, & Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599, 605, fn. 5.)
Finally on this subject, by a “Motion and Request for Judicial Notice” filed with this court on January 13, 2011, Hellen requested this court to take judicial notice, pursuant to Evidence Code sections 452 and 453 (and, presumably, section 459, subdivision (a)), of (1) Probate Code section 1023 and (2) an October 26, 2010, “First and Final Report” of Administrator Robinson filed in the Thomas Estate proceeding over two months after the probate court’s August 2010 judgment herein. As best as we can gather from this request for judicial notice, Hellen is arguing that the October 2010 report of Robinson somehow undermines the latter’s claim for attorney fees.
For two obvious reasons, we deny that request. First of all, we do not need to take judicial notice of a California statute. Second, it is totally inappropriate for a litigant to make an evidentiary argument to us, even via a request for judicial notice, based on events—even including a court filing—occurring after the entry of the judgment being appealed from.
F. Robinson’s Request for Attorney Fees from this Court.
Via the final paragraph in respondent Robinson’s brief to this court, her attorneys ask us to award her $25,466.66 in attorney fees for their preparation of the record on appeal and that brief. Of course, an appellate court cannot conduct a hearing or receive evidence of the sort necessary to grant such a request. However, particularly under these circumstances, we have no hesitation in directing the trial court, on remand, to hear and consider respondent’s request for such additional attorney fees.
IV. DISPOSITION
The probate court’s orders and judgment are affirmed. The case is remanded to the probate court with instructions to consider respondent’s request for attorney fees for her successful defense of the judgment of that court.
We concur: Kline, P.J., Richman, J.