Opinion
B302827
05-19-2023
CARMEN FUENTES et al., Plaintiffs and Appellants, v. JONATHAN BETUEL et al., Defendants and Respondents
Law Offices of Ilia Serpik and Andrei V. Serpik, for Plaintiffs and Appellants. Bartlett Barrow and Brian P. Barrow, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEALS from a judgment and order of the Superior Court of Los Angeles County No. BC655251, Elizabeth R. Feffer, Judge. Affirmed in part and remanded in part.
Law Offices of Ilia Serpik and Andrei V. Serpik, for Plaintiffs and Appellants.
Bartlett Barrow and Brian P. Barrow, for Defendants and Respondents.
EDMON, P. J.
Plaintiffs Carmen Fuentes, About Time Catering, Inc., and Carson Catering, Inc. (plaintiffs) appeal the trial court's grant of summary judgment and summary adjudication in favor of defendants Jonathan Betuel and Rhea Espino (defendants) on plaintiffs' causes of action for breach of a confidentiality agreement and intentional interference with prospective economic advantage. Because we agree that plaintiffs failed to create a triable issue regarding either cause of action, we affirm the judgment in favor of defendants.
Plaintiffs also appeal the trial court's attorney fee award in favor of defendants. Although we reject some of plaintiffs' contentions regarding the trial court's attorney fee award, we remand the attorney fee award to the trial court to clarify its award and make any necessary modifications.
FACTUAL AND PROCEDURAL BACKGROUND
Fuentes owned and operated About Time Catering, Inc. and Carson Catering, Inc. Carson Catering operated a food truck commissary for approximately 34 food catering trucks, and leased the property where the commissary was located (commissary property). About Time Catering is a fleet owner that operated food trucks which used the Carson Catering commissary. Edward Younan is Fuentes's husband and owner of Avalon Foods, Inc., also a food truck commissary.
I. The confidentiality agreement
Between June 2015 and February 2016, Betuel had discussions with Fuentes and Younan about purchasing About Time Catering and Avalon Foods. Espino was going to be Betuel's business partner in the potential venture.
As part of those discussions, About Time Catering and Betuel entered into a confidentiality agreement. The confidentiality agreement recited that in "connection with the consideration by each party hereto of a possible transaction with the other party hereto and/or its subsidiaries, affiliates or divisions . . . each party is prepared to make available to the other party certain Confidential Information (as defined below)." Further, the agreement provided that as "a condition to such Confidential Information being furnished to the other party . . ., each party agrees to treat any Confidential Information concerning the other party in accordance with the provisions of this Agreement." Subsection 1(a) of the agreement stated that "[t]he term 'Confidential Information' for each party shall mean all information concerning such party . . ., irrespective of the form or medium of communication."
Importantly, subsection 1(b) of the confidentiality agreement provided:
"[n]otwithstanding subsection (a), the term 'Confidential Information' shall not include information which:
(i) is or becomes generally available to the public other than as a result of a disclosure by the receiving party or its Representatives;
(ii) was within the receiving party's possession prior to its being furnished to it, provided that the source of such information was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information; or
(iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source is not bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information; provided, however, in each case, such Confidential Information shall not be disclosed or used until thirty (30) days after written notice of intent to disclose or use is given to the disclosing party along with the asserted grounds for disclosure or use."
Section 2 of the confidentiality agreement restricted the parties' use of "Confidential Information," and provided, among other things, that "[e]ach party and its Representatives: (i) shall use the Confidential Information solely for the purpose of evaluating a possible transaction between the parties and shall not use, directly or indirectly, the Confidential Information to create, develop, or modify products or services that would compete with or be used in lieu of the disclosing party's products or services or in any manner otherwise detrimental to the disclosing party."
After executing the confidentiality agreement, Betuel began investigating the books and records of About Time Catering and Avalon Foods. Younan provided various documents to Betuel, including the lease for the commissary property. Fuentes also gave Betuel a tour of the Carson Catering facility. During that tour, Fuentes introduced Betuel to her longtime manager, Rene Gomez, and showed Betuel the improvements she had made to the commissary property to make it compliant with health and safety standards.
The parties never reached an agreement regarding the sale of About Time Catering and Avalon Foods.
II. Negotiations over commissary property lease
In late 2016, Fuentes began negotiating to renew the lease for the commissary property, which was scheduled to expire in March 2017. The commissary property is held in trust by the Balch Family Trust and Diane Brown is the owner. Fuentes negotiated over the lease with Ernest "Scott" Brown, Diane Brown's husband. Both Diane and Scott are real estate agents.
For the sake of clarity and convenience, and intending no disrespect, we refer to Scott Brown and Diane Brown by their first names.
Unbeknownst to Fuentes, by late November 2016 the Browns were talking to Betuel about leasing the commissary property to him. In fact, months before first speaking with Betuel the Browns had become frustrated with the terms offered by Fuentes for a new lease. They had even contacted a realtor to help them find a tenant.
Betuel had asked his then-attorney, H. Jason Cohen, for assistance with locating contact information for owners of various commissaries in and around Los Angeles, including the commissary property, because Betuel was interested in operating a commissary. According to Cohen, on or about November 21, 2016, he utilized an Internet service called "PropertyShark.com" to obtain a report about the commissary property. The property report identified the Balch Family Trust as the owner of the property, listed Diane as the property representative, and provided Diane's address. Cohen then conducted an Internet search and located a Web site for "Napa Realtors Scott and Diane Brown," which included their contact information and listed the same address that was listed on the property report from PropertyShark.com. Cohen emailed his research results to Betuel on November 21, 2016.
A property record from the Los Angeles County Recorder's Office likewise identified the Balch Family Trust as owner of the commissary property, and Diane Brown as the trustee.
According to Scott, Betuel first contacted him about the commissary property in late November 2016. Betuel testified at his deposition that Scott told him the commissary property was available, that Scott no longer wanted to work with the current tenants, and that he was open to offers. On November 26, 2016, Scott emailed Betuel and provided him with information about the commissary property. Among other things, Scott identified the estimated square footage of the commissary property; stated that the commissary property had been leased to Carson Catering and used as a food truck commissary; and noted that the property had a warehouse with refrigeration and freezer rooms for food storage and exterior ice making machines. Scott further informed Betuel that the present lease expired on March 30, 2017, and that Carson Catering was considering extending the lease. Scott told Betuel that the "rate should be in the neighborhood of .30 to .38 per sq ft" for the property. Scott also provided Betuel with a copy of the existing lease agreement with Carson Catering, although exactly when he provided the lease to Betuel is unclear from the record. On December 22, 2016, Scott sent a letter to Fuentes and Younan notifying them that the current lease for the commissary property would expire on March 31, 2017, and would not be renewed, and that they would be required to surrender the property at the expiration of the lease.
Carson Catering stayed at the commissary property for several months after the lease expired. The Browns thus brought an unlawful detainer action, resulting in a judgment in their favor.
The statement of decision in the unlawful detainer action described the events leading up to the Browns' decision not to lease the commissary property to Fuentes and Younan. According to the statement of decision, the Browns commenced negotiations over the lease with Fuentes and Younan in October 2016 and sought a rent increase to bring it closer to market rents. Although Scott sent a number of different drafts of proposed leases to Fuentes and Younan, none of them was signed by any party.
By mid-November, Fuentes and Younan were still proposing to pay less than Scott had offered, and Scott became frustrated with the negotiations. Thus, on November 15, 2016, Scott emailed Younan and said that while" '[w]e value you and [Fuentes] and appreciate your long term tenancy, . . . our best option is to drop the idea of an extension for now and put the property on the market for lease and see what happens. According to the [r]ealtors we let the lease rate slip below market over the years.'" Even so, the commissary property was never listed for sale or lease.
Sometime before December 2, 2016, Fuentes informed Scott that she remained interested in leasing the commissary property. Then, on December 2, 2016, Scott sent Fuentes a lease for the commissary property for her to execute. However, just over an hour after transmitting the proposed lease, Scott called Fuentes and told her to "hold off on the lease." Five days later, Scott emailed Fuentes and confirmed that" 'we are still not prepared to offer a new lease just now.' "
Betuel ultimately obtained the lease for the commissary property. The terms of his lease included a longer duration and $1,000 more in monthly rent than the draft lease sent to Fuentes on December 2, 2016.
III. Trial court proceedings
Plaintiffs filed suit against Betuel, Espino, and the Brownsin March 2017. Their verified first amended complaint asserted twelve causes of action. Of those twelve causes of action, the following seven were brought against defendants: breach of confidentiality agreement, inducing breach of contract, intentional interference with contractual relations, intentional interference with prospective economic relations, injunctive relief, quiet title, and declaratory relief. The complaint sought damages, including punitive damages, attorney fees, and costs.
Plaintiffs named Diane as trustee of the Balch Family Trust, and Scott as trustee of the Brown Family Trust. The first amended complaint alleged the two trusts were the owners and landlords of the commissary property.
After the court in the unlawful detainer action issued a decision in favor of the Browns, plaintiffs dismissed their causes of action against the Browns and related trusts. Plaintiffs also dismissed some of their causes of action against defendants, leaving only their causes of action against defendants for breach of the confidentiality agreement, intentional interference with prospective economic relations, and injunctive relief. The cause of action for breach of the confidentiality agreement was brought by About Time Catering and Carson Catering against Betuel and Espino. It alleged that Betuel and Espino used confidential information disclosed to them pursuant to the confidentiality agreement-including the location of the commissary property, the fact that the commissary property was available for lease, whom to contact about the lease, and the terms of the lease-to enter into a lease agreement for the commissary property in competition with About Time Catering and Carson Catering. The cause of action further alleged that Betuel and Espino "began approaching About Time [Catering] and Carson Catering's clients and vendors, who Betuel and Espino identified through receipt of confidential information, to lure them to do business" with Betuel and Espino. The cause of action alleged that the confidential information used by Betuel and Espino "was not generally available to the public."
The cause of action for intentional interference with prospective economic relations was brought by Fuentes, About Time Catering, and Carson Catering against Betuel and Espino. It alleged that Betuel and Espino intentionally interfered with the economic relationship between the Browns and the Balch Family Trust on the one hand, and Fuentes, About Time Catering, and Carson Catering on the other, by inducing the Browns to lease the commissary property to Betuel and Espino. According to the cause of action, Betuel and Espino used information acquired pursuant to the confidentiality agreement to induce the Browns to lease the commissary to them, in competition with Fuentes, About Time Catering, and Carson Catering.
Plaintiffs titled this cause of action "Intentional Interference with Prospective Economic Relations." We understand this cause of action to be identical to a cause of action also referred to as intentional interference with prospective economic advantage (see Della Penna v. Toyota Motor Sales, U.S.A. (1995) 11 Cal.4th 376, 378 (Della Penna); Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6), and thus use the terms interchangeably.
Defendants moved for summary judgment and summary adjudication on the three remaining causes of action. Regarding the cause of action for breach of the confidentiality agreement, defendants argued, among other things, that because they did not use any information that was deemed confidential under the terms of the confidentiality agreement, there was no breach of the agreement. Concerning the cause of action for intentional interference with prospective economic relations, defendants argued that the cause of action was barred by the competition privilege.
The trial court granted both summary judgment and summary adjudication in favor of defendants on the remaining causes of action, including those for breach of the confidentiality agreement and intentional interference with prospective economic relations, and entered judgment in favor of defendants.
Although the trial court cited and discussed defendants' arguments that they did not rely on information that was confidential under the terms of the confidentiality agreement, and that their conduct was not otherwise wrongful because of the competition privilege, it is unclear from the trial court's statement of decision whether it granted summary adjudication on these grounds. In any event, because we review the trial court's ruling, not its rationale (see Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878), and both parties have briefed these issues on appeal, the issues are properly before us. The trial court also granted summary adjudication on the other remaining cause of action for injunctive relief. Plaintiffs do not appeal that ruling.
Defendants moved for attorney fees following entry of judgment. The trial court awarded defendants attorney fees of $113,745.00.
Plaintiffs timely appealed both the judgment and the attorney fees award. We consolidated both appeals.
DISCUSSION
We first review plaintiffs' challenges to the trial court's grant of summary adjudication on their causes of action for breach of the confidentiality agreement and intentional interference with prospective economic relations. Next, we review plaintiffs' challenges to the trial court's attorney fee award.
I. Summary adjudication A. Standard of review
Summary adjudication is proper if the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to prevail on a cause of action as a matter of law. (Code. Civ. Proc., § 437c, subds. (c), (f)(1)-(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant moving for summary adjudication has the initial burden to show the plaintiff cannot establish one or more elements of the challenged cause of action or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant makes a sufficient showing, the burden then shifts to the plaintiff to demonstrate a triable issue of material fact exists as to the cause of action. (Ibid.) A triable issue of fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion. (Aguilar, at p. 850.)
We review the grant of a motion for summary adjudication de novo, in the same manner as we would on an appeal from the grant of summary judgment. (Schofield v. Superior Court (2010) 190 Cal.App.4th 154, 156; see Aguilar, supra, 25 Cal.4th at p. 860.) "[W]e must independently examine the record to determine whether triable issues of material fact exist." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In so doing, "we must view the evidence in a light favorable" to the nonmoving party, "liberally construing her evidentiary submission while strictly scrutinizing [the moving party's] own showing, and resolving any evidentiary doubts or ambiguities" in the nonmoving party's favor. (Id. at p. 768.) We consider "all the evidence set forth in the moving and opposition papers," except that to which objections were made and properly sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432.) "We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale." (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)
B. The trial court properly granted summary adjudication of plaintiffs' cause of action for breach of the confidentiality agreement
The trial court properly granted summary adjudication in favor of defendants on plaintiffs' cause of action for breach of the confidentiality agreement. We affirm the trial court's decision on the ground that plaintiffs failed to create a triable issue of material fact that defendants used confidential information in breach of the confidentiality agreement.
The trial court granted summary adjudication on this cause of action on several independent grounds. It ruled that Carson Catering could not enforce the confidentiality agreement because it was not a party to the confidentiality agreement, not an "affiliate" of a party to the agreement, and not a third-party beneficiary under the agreement. The court similarly ruled that Espino could not be liable under the confidentiality agreement because she was not a party to it. Additionally, the court ruled that the cause of action was barred by collateral estoppel based on the unlawful detainer action. Last, the court ruled that plaintiffs failed to establish damages with certainty and that their damages claim was barred by unclean hands. Because we affirm the grant of summary adjudication on this cause of action on a separate ground, we need not address these issues. However, we note that plaintiffs, while challenging nearly all these rulings, have not appealed the grant of summary adjudication in favor of Espino. Also, plaintiffs request that we take judicial notice of the complaint and answer in the unlawful detainer action. They contend those pleadings are relevant to our evaluation of whether collateral estoppel applies here. Because we do not reach the issue of collateral estoppel, we deny plaintiffs' request for judicial notice. (See State Comp. Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442 [denying request for judicial notice "on the ground that the materials are not relevant to our determination of the issues on appeal"].)
Plaintiffs' cause of action for breach of the confidentiality agreement is one for breach of contract. The elements of a cause of action for breach of contract "are the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant and damages." (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.)
As noted, plaintiffs' complaint alleged defendants breached the confidentiality agreement by using confidential information disclosed to them, including the "location of the [commissary property], the knowledge that the [commissary property] [was] available and whom to contact, and the terms of the lease, to enter into a lease agreement" for the commissary property in competition with plaintiffs. Plaintiffs further alleged that defendants "began approaching" the clients and vendors of About Time and Carson Catering, whom defendants "identified through receipt of the confidential information, to lure them to do business with" defendants. Finally, plaintiffs alleged that the confidential information used by defendants "was not generally available to the public."
i. Defendants showed the absence of a triable issue regarding plaintiffs' cause of action for breach of the confidentiality agreement
Defendants showed that the information described in plaintiffs' complaint was publicly available or became available on a non-confidential basis from a source other than the disclosing party and was thus excluded from the definition of "Confidential Information" under section 1(b)(i) and (iii) of the confidentiality agreement. As a result, defendants demonstrated the absence of a triable issue that their use of such information was a breach of the confidentiality agreement.
First, although the complaint alleged that the location of the commissary property was confidential, Fuentes admitted during her deposition that the location was printed on the side of all of Carson Catering's trucks. Plaintiffs also conceded the issue in their reply brief, acknowledging that "the location of the commissary [property] is undisputedly publicly available." Because the commissary property location was "generally available to the public other than as a result of a disclosure by the receiving party," its location was not "Confidential Information" under section 1(b)(i) of the confidentiality agreement.
Next, defendants produced a record from the Los Angeles County Recorder's Office identifying the Balch Family Trust as the owner of the commissary property and Diane as the trustee. Defendants also submitted the declaration of Cohen, Betuel's former attorney, describing how he obtained information about the commissary property from "PropertyShark.com," including that its owner was the Balch Family Trust and that Diane was its representative. Thus, it was readily inferable from public records that neither Fuentes, Carson Catering, nor About Time Catering was the owner of the property. Thus, this information was also not "Confidential Information" under section 1(b)(i) of the confidentiality agreement.
Cohen's declaration also established that he did a simple Internet search to locate Diane and found a site listing the Browns at the same address as was listed in the PropertyShark.com record. Thus, the Browns' contact information was also publicly available, and therefore not "Confidential Information" under section 1(b)(i) of the confidentiality agreement. Underscoring that point, Diane's declaration stated that as real estate agents, she and Scott had a practice "to make [their] contact information available to the public through websites and other advertising."
Last, defendants submitted Scott's declaration, who stated that he gave Betuel the then-current lease for the commissary property after Betuel contacted him to discuss the property. Defendants also produced a November 26, 2016 email from Scott to Betuel which described the commissary property, including its square footage, and identified the lease term and monthly rent sought by the Browns. As a result, such information was not "Confidential Information" under section 1(b)(iii) of the confidentiality agreement, because it "bec[ame] available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives ...."
Together, such evidence contravened the basic premise of plaintiffs' cause of action, namely, that defendants used "Confidential Information," as defined by the confidentiality agreement, to learn about and secure the commissary property lease. To the contrary, defendants' evidence showed that the disputed information was either "generally available to the public other than as a result of a disclosure by the receiving party or its Representatives," or "available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives," and thus not "Confidential Information" under sections 1(b)(i) and (iii) of the confidentiality agreement. The burden thus shifted to plaintiffs to show a triable issue of material fact regarding breach of the confidentiality agreement.
ii. Plaintiffs failed to show the existence of a triable issue regarding their cause of action for breach of the confidentiality agreement
Plaintiffs contend they created a triable issue of material fact regarding breach of the confidentiality agreement in several respects. For the reasons discussed below, we disagree.
Plaintiffs raise three main arguments. First, they dispute the trial court's observation that they failed to "identify any particular 'confidential information' disclosed, other than the fact of a lease (something readily subject to inference from public records, which would show that Plaintiff Fuentes was not the title owner to the [commissary property])." Second, they contend a triable issue exists as to whether defendants obtained the Browns' contact information from public sources, and whether defendants obtained the lease itself from Scott. Last, plaintiffs contend that, even if defendants obtained all of the disputed information from non-confidential sources, the confidentiality agreement required defendants to give plaintiffs 30-days' notice prior to using such information.
We begin with plaintiffs' contention that there is a triable issue regarding whether defendants obtained the Browns' contact information from public sources. Plaintiffs insist that defendants could not have determined that the Browns represented the Balch Family Trust or located the Browns without plaintiffs having disclosed the lease to Betuel. Plaintiffs note that the property title was held by the Balch Family Trust and did not identify Scott. They also note that Scott testified at his deposition that he did not know how Betuel obtained his contact information. Last, they emphasize that the commissary property had never been listed or marketed.
None of this evidence creates a triable issue that defendants relied on "Confidential Information" to locate the Browns. Even though Scott was not listed on the property title, Diane was. And the PropertyShark.com record listed Diane's address, which matched the contact information for the Browns that Cohen later found from an Internet search. That Scott did not know how Betuel obtained his contact information is thus irrelevant. Last, that the property had not been listed for sale or lease did not undermine the evidence that Scott informed Betuel that the commissary property was available for lease once Betuel contacted him.
Nonetheless, plaintiffs contend there is a triable issue about whether Betuel relied on Cohen's research, obtained from publicly available sources, to contact the Browns. They argue that although Cohen stated in his declaration that he emailed Betuel his public records research on November 21, 2016, the records from PropertyShark.com indicate they were obtained on November 22, 2016. We are not swayed by plaintiffs' implicit argument, i.e., that even if defendants showed they contacted the Browns by using information that was available from public sources, defendants still had to show they obtained the information from public sources and not the lease. This is not how we interpret the confidentiality agreement.
We have doubts about plaintiffs' assertion that the PropertyShark.com record shows it was obtained on November 22, 2016. The record at issue is a one-page report described by Cohen as a "true and correct print out of my past purchases from PropertyShark.com, which includes a purchase for property information on the [commissary property]." The report has a heading stating "Purchased On," a block of redaction below it, the date "11/22/2016" below the redaction, the address of the commissary property below the date, and a further block of redaction below the address. Plaintiffs do not point to any evidence describing this record, such as testimony from Cohen describing the record further, the basis for the redactions, or its date of purchase. We are thus left guessing whether the date of "11/22/2016" corresponds to the date of the record's purchase or something else, especially given the unexplained redactions.
Section 1(b)(i) of the confidentiality agreement excludes from the definition of "Confidential Information" any information which "is or becomes generally available to the public other than as a result of a disclosure by the receiving party or its Representatives." Defendants' evidence clearly showed that the Balch Family Trust's ownership of the commissary property, Diane's status as the representative of the Balch Family Trust, and the Browns' contact information was publicly available information. Such information was therefore not "Confidential Information" under section 1(b)(i). Hence, even if Betuel first contacted the Browns based on contact information he learned from the lease, and not Cohen's research, the information was not "Confidential Information" under the straightforward terms of the confidentiality agreement.
Next, we reject plaintiffs' claim that there is a triable issue about whether defendants learned about the terms of the lease directly from Scott. Plaintiffs rely on an incomplete excerpt from Betuel's deposition transcript in which he appears to describe an initial telephone conversation with Scott regarding the commissary property. According to the excerpt, Betuel testified that Scott said the commissary property "may be available [and] that he no longer wanted to work with the current tenants . . . and he would be open to offers. He didn't tell me where he was in the negotiations or anything. That's all I knew." At most, this excerpt shows that Scott did not reveal the terms of the then-existing lease during the initial conversation between him and Betuel. It hardly creates a triable issue regarding whether Scott ever provided the lease to Betuel.
In their reply brief, plaintiffs highlight that Scott's declaration failed to identify exactly when he gave the then-current lease to Betuel. Plaintiffs argue this ambiguity creates a triable issue regarding whether Betuel relied on lease terms before they were made available by Scott, when such information was still "Confidential Information." We do not address this argument, raised for the first time in plaintiffs' reply brief. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [" 'Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.' "].)
Plaintiffs also challenge the trial court's finding that the only "Confidential Information" they provided to defendants was the fact of the lease. Plaintiffs point to Younan's declaration, which showed that he provided Betuel with the commissary property lease during their negotiations. Relying on Fuentes's declaration, plaintiffs also note that Fuentes gave Betuel a tour of the commissary property and showed him improvements that were made to comply with health and safety requirements, including a "walk in cooler and freezer" and "an ice house and refrigeration system." Last, plaintiffs note that during the same tour Fuentes introduced Betuel to Gomez, Carson Catering's manager, who was later hired by Betuel. Plaintiffs argue that the terms of the lease, the unique features of the commissary property, and Gomez's identity constituted "Confidential Information" because it was all information that was not generally available to the public.
Plaintiffs also note that the lease included Scott's contact information. We have already explained our conclusion with respect to that issue.
We conclude such evidence does not create a triable issue regarding breach of the confidentiality agreement. Scott's declaration established that he provided the lease to Betuel once Betuel contacted him to discuss the commissary property. Similarly, after Betuel contacted Scott, Scott emailed Betuel and informed him that the commissary property included various features to accommodate food trucks, including a warehouse with refrigeration and freezer rooms for food storage, and exterior ice making machines. At that point, information about the lease terms and the unique features of the commissary property was not "Confidential Information" because it became "available to [Betuel] on a non-confidential basis from a source other than the disclosing party" in accordance with section 1(b)(iii) of the confidentiality agreement.
Fuentes also described showing Betuel a "computerized sales inventory and checkout system." It does not appear from the record that Scott informed Betuel about that system. However, as best we can tell, plaintiffs do not argue that defendants somehow used information about that system to plaintiffs' detriment in breach of the confidentiality agreement.
Nor do plaintiffs point to evidence creating a triable issue regarding defendants' misuse of such information before it became available to them from a non-confidential source. And we reject plaintiffs' tacit argument that such a triable issue exists merely because defendants had access to such "Confidential Information" before Scott provided it to them. Speculation that defendants used such information to plaintiffs' detriment before they received it from Scott is not a sufficient basis to defeat summary adjudication. (See Knapp v. Doherty (2004) 123 Cal.App.4th 76, 99 [" 'Speculation, however, is not evidence' that can be utilized in opposing a motion for summary judgment."]; Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161 [where summary judgment opposition is based on inferences, "those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork."].)
That leaves the evidence that Betuel hired Gomez after Fuentes introduced Gomez to Betuel during the commissary property tour. But that bare sequence, standing alone, does not create a triable issue that defendants used "Confidential Information" in breach of the confidentiality agreement. Plaintiffs do not point to any evidence suggesting that Betuel solicited Gomez to work for him, as opposed to Gomez seeking employment with Betuel. Put simply, the conclusion that Betuel breached the confidentiality agreement by hiring Gomez rests on speculation, not an inference from admissible evidence.
The trial court's observation in this regard is apt: "Presumably, if any . . . former customers and employees had been approached by Betuel, due to Betuel's improper use of Confidential Information, one would presume that this relevant fact would be provided to the court, in the form of a declaration submitted under penalty of perjury. [Citation.] This is yet another incident of Plaintiffs relying on inferences unsupported by admissible evidence."
Finally, we are not convinced by plaintiffs' argument that regardless of whether the disputed information was publicly available or became available from a non-confidential source, defendants breached the confidentiality agreement by not giving plaintiffs 30-days' notice that they intended to contact Scott, negotiate over the commissary property lease, or meet with Gomez. Plaintiffs rely on the final paragraph of section 1(b) of the confidentiality agreement, which, following subparagraphs (i) through (iii) listing exclusions from the definition of "Confidential Information," states: "provided, however, in each case, such Confidential Information shall not be disclosed or used until thirty (30) days after written notice of intent to disclose or use is given to the disclosing party along with the asserted grounds for disclosure or use." (Italics added.)
Plaintiffs also claim that defendants should have given them 30-days' notice of defendants' intention to meet with plaintiffs' customers. This claim rests on a paragraph in Fuentes's declaration stating that before she vacated the commissary property, she met with her previous customers and employees and discovered that Betuel had already met with them. But the trial court sustained defendants' evidentiary objection to this evidence. We therefore do not consider it. (See Brown v. Goldstein, supra, 34 Cal.App.5th at p. 432 [" 'We consider all evidence in the moving and opposition papers, except that to which objections were properly sustained.' "].)
Missing from plaintiffs' argument is any explanation of how this restriction on the use of "Confidential Information" applies to information which, in the immediately preceding paragraphs, is excluded from the definition of "Confidential Information." In the absence of any cogent argument supporting plaintiffs' interpretation of the agreement, which is directly counter to its plain terms, we decline to interpret the 30-day notice provision as applying both to "Confidential Information" and non-confidential information.
For the foregoing reasons, we conclude that plaintiffs failed to create a triable issue of material fact regarding their cause of action for breach of the confidentiality agreement. Thus, the trial court's grant of summary adjudication on this cause of action was proper. (See Aguilar, supra, 25 Cal.4th at 850; Code Civ. Proc., § 437c, subds. (f)(1), (p)(2).)
C. The trial court properly granted summary adjudication of plaintiffs' cause of action for intentional interference with prospective economic advantage
The trial court properly granted summary adjudication in favor of defendants on plaintiffs' cause of action for intentional interference with prospective economic advantage. We affirm the trial court's decision on the ground that plaintiffs failed to create a triable issue that plaintiffs' efforts to secure the lease for the commissary property was an independently wrongful act.
Again, the trial court granted summary adjudication on this cause of action on several independent grounds. Among other things, it ruled that About Time Catering did not have any economic relationship with the Browns, and that the cause of action was barred by collateral estoppel based on the unlawful detainer action. Because we affirm the grant of summary adjudication on this cause of action on a separate ground, we need not address these issues.
The elements of a cause of action for intentional interference with prospective economic advantage are "(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant." (Youst v. Longo, supra, 43 Cal.3d at p. 71, fn. 6.) A plaintiff pursuing this cause of action "has the burden of pleading and proving that the defendant's interference was wrongful 'by some measure beyond the fact of the interference itself.'" (Della Penna, supra, 11 Cal.4th at p. 393.) "[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard." (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159 (Korea Supply).)
Plaintiffs' cause of action, described earlier, alleged that "Betuel and Espino intended to disrupt the relationship [between Fuentes, About time Catering, and Carson Catering on the one hand, and the Browns and related trusts on the other,] when they unlawfully breached the confidentiality agreement and used the information they learned through the received confidential information to induce [Browns and related trusts] to lease the [commissary property] to Betuel and Espino so they could compete with Plaintiffs."
i. Defendants showed the absence of a triable issue regarding plaintiffs' cause of action for intentional interference with prospective economic advantage
Because there was no triable issue regarding defendants' alleged breach of the confidentiality agreement, there was also no triable issue that their lease of the commissary property was an independently wrongful act for purposes of plaintiffs' cause of action for intentional interference with prospective economic advantage. As discussed below, defendants' conduct was protected by the competition privilege.
A case illustrating that privilege on similar facts is Bed, Bath &Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867 (Bed, Bath &Beyond). There, the plaintiff negotiated for a lease of retail space in a shopping center owned by the landlord. (Id. at p. 871.) Although the plaintiff signed a lease reflecting the negotiated terms of the lease, the landlord never signed the lease. Instead, the landlord leased the retail space for higher rent to the plaintiff's direct competitor. (Ibid.) The plaintiff sued the competitor for, among other things, intentional interference with prospective economic advantage. (Id. at p. 872.) The trial court granted summary adjudication in favor of the competitor based on the competition privilege. (Id. at p. 873.)
On appeal, the Court of Appeal explained that "California law has long recognized a 'competition privilege' which protects one from liability for inducing a third person not to enter into a prospective contractual relation with a business competitor. The privilege applies where' "(a) the relation [between the competitor and third person] concerns a matter involved in the competition between the actor and the competitor, and (b) the actor does not employ improper means, and (c) the actor does not intend thereby to create or continue an illegal restraint of competition, and (d) the actor's purpose is at least in part to advance his interest in his competition with the other." ....' [Citation.] In short, the competition privilege furthers free enterprise by protecting the right to compete fairly in the marketplace. One may compete for an advantageous economic relationship with a third party as long as one does not act improperly or illegally." (Bed, Bath &Beyond, supra, 52 Cal.App.4th at p. 880.)
Applying the competition privilege to the facts at issue, the Court of Appeal held that the trial court did not err in granting summary adjudication to the competitor. (See Bed, Bath &Beyond, supra, 52 Cal.App.4th at pp. 881-882.) The court emphasized that the "the leasing of retail space is an area of competition between [the competitor] and the plaintiff" and that "[the competitor] did not act improperly or illegally in competing with plaintiff for the subject retail space but only offered [the landlord] a more lucrative lease." (Id. at p. 881.) As the court stressed, the only interference alleged in the plaintiff's complaint was that the competitor "offered [the landlord] more money per square foot to rent the subject retail space." (Ibid.) The court concluded that merely "offering [the landlord] a better deal" did not constitute wrongful conduct to support a cause of action for interference with prospective economic advantage. (Id. at p. 882.)
Because we have already concluded that defendants did not breach the confidentiality agreement in connection with their lease of the commissary property, their conduct is identical to the conduct of the competitor in Bed, Bath &Beyond. As in that case, defendants lawfully competed with the plaintiffs for lease of the commissary property, which was an area of competition between them as parties interested in operating a food truck commissary. And just as in Bed, Bath &Beyond, the only conduct at issue-other than the alleged misuse of confidential information, a claim we have rejected-was defendants' offer of more competitive lease terms to secure the commissary property lease. Such conduct was not independently wrongful, and thus defeated plaintiffs' cause of action. (See Bed, Bath &Beyond, supra, 52 Cal.App.4th at pp. 881-882.)
ii. Plaintiffs failed to show the existence of a triable issue regarding their cause of action for intentional interference with prospective economic advantage
Plaintiffs contend the competition privilege does not apply here for two reasons. First, they argue that defendants did not raise the issue as an affirmative defense. Second, they argue that defendants' conduct was independently wrongful because defendants relied on information obtained in breach of the confidentiality agreement to lease the commissary property. We disagree with both contentions.
In support of the argument that defendants had to plead the competition privilege as an affirmative defense, plaintiffs cite A.F. Arnold &Co. v. Pacific Professional Ins., Inc. (1972) 27 Cal.App.3d 710, 714 ["defendant's justification is an affirmative defense in the tort of interference with prospective economic advantage" (italics omitted)], and Lowell v. Mother's Cake &Cookie Co. (1978) 79 Cal.App.3d 13, 18-19 ["the defendant's justification is not an ingredient of the cause of action [for intentional interference with prospective economic advantage], but rather constitutes an affirmative defense"]. Both cases, however, predate our high court's ruling in Della Penna that "a plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant's interference was wrongful 'by some measure beyond the fact of the interference itself.'" (Della Penna, supra, 11 Cal.4th at pp. 392-393.)
Plaintiffs also cite Korea Supply in support of their argument, but it is not clear how that case supports plaintiffs here. Korea Supply did not address the competition privilege, let alone hold it was an affirmative defense.
Relying on Della Penna, the Court of Appeal in Bed, Bath &Beyond explained as follows: "Since the crux of the competition privilege is that one can interfere with a competitor's prospective contractual relationship with a third party as long as the interfering conduct is not independently wrongful (i.e., wrongful apart from the fact of the interference itself), Della Penna's requirement that a plaintiff plead and prove such wrongful conduct in order to recover for intentional interference with prospective economic advantage has resulted in a shift of burden of proof. It is now the plaintiff's burden to prove, as an element of the cause of action itself, that the defendant's conduct was independently wrongful and, therefore, was not privileged rather than the defendant's burden to prove, as an affirmative defense, that its conduct was not independently wrongful and therefore was privileged." (Bed, Bath &Beyond, supra, 52 Cal.App.4th at p. 881; see also UMG Recordings, Inc. v. Global Eagle Entm't, Inc. (C.D. Cal. 2015) 117 F.Supp.3d 1092, 1117 ["[A]fter Della Penna, the competition privilege is no longer an affirmative defense; '[i]t is . . . the plaintiff's burden to prove, as an element of its cause of action itself, that the defendant's conduct was independently wrongful.' "].)
We thus reject plaintiffs' argument that defendants were required to plead the competition privilege as an affirmative defense. Bed, Bath &Beyond makes clear that it was plaintiffs' burden to show that defendants' conduct was independently wrongful, including that it was not protected by the competition privilege.
Plaintiffs next argue that defendants' conduct was independently wrongful because defendants leased the commissary property using information obtained in breach of the confidentiality agreement. Because we have already concluded that there is no triable issue regarding defendants' alleged breach of the confidentiality agreement, we reject this argument too.Thus, because plaintiffs fail to point to evidence creating a triable issue that defendants engaged in independently wrongful conduct in connection with their lease of the commissary property, summary adjudication on this cause of action was properly granted. (See Aguilar, supra, 25 Cal.4th at 850; Code Civ. Proc., § 437c, subds. (f)(1), (p)(2).)
Plaintiffs also object to the trial court's reliance on San Francisco Design Center Associates v. Portman Companies (1995) 41 Cal.App.4th 29, at page 41, for the principle that"' "[c]ompetition in business, though carried to the extent of ruining a rival, is not ordinarily actionable, but every trader is left to conduct his business in his own way, so long as the methods he employs do not involve wrongful conduct such as fraud, misrepresentation, intimidation, coercion, obstruction, or molestation of the rival or his servants or workmen, or the procurement of the violation of contractual relations."' "
Plaintiffs further argue that even if defendants did not breach the confidentiality agreement, defendants had a common law duty to use plaintiffs' confidential information "as intended" and not for defendants' "own benefit without authority." Because no such common law duty was raised in the operative complaint, we do not address this argument. (See California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3 ["A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings."].)
Whether this correctly describes the sort of actionable wrongful conduct that is a necessary element of this cause of action is irrelevant here. As noted already, we review the trial court's ruling, not its rationale. (See Kids' Universe v. In2Labs, supra, 95 Cal.App.4th at p. 878.) Furthermore, there is no dispute that the allegedly wrongful conduct here was defendants' purported breach of the confidentiality agreement, a claim we have already rejected.
II. Attorney fees A. Background
Before addressing plaintiffs' arguments, we briefly recount the factual background relevant to the trial court's attorney fee award.
Following entry of judgment in their favor, defendants moved for an award of attorney fees pursuant to Civil Code section 1717 based on an attorney fees provision in the confidentiality agreement. Defendants sought a total of $126,860.00 in attorney fees based primarily on the declaration of Cameron Fredman, lead counsel for defendants, which attached billing records describing the efforts of Fredman and two other attorneys identified in the billing records as "BLW" and "SC." Plaintiffs' brief identifies "BLW" as Berna Lynn Warner, who they contend occasionally assisted Fredman in this litigation.
Defendants' motion asserted that the amount of attorney fees sought was reasonable based on the nature of the litigation, including that defendants had to bring several motions to compel discovery from plaintiffs. Defendants also emphasized that they did not seek attorney fees incurred during a 14-month period for work performed by Cohen, defendants' former attorney. They further explained that there was a" 'built-in' discount" because they did not seek fees for representing the Browns in the unlawful detainer case, even though that representation resulted in evidence used by defendants in the present case.
Plaintiffs opposed the attorney fee motion on several grounds, including that Fredman's declaration failed to provide any foundation for Warner's billing rate. Plaintiffs included with their opposition an excerpt of a declaration by Warner from an earlier attorney fee motion in the case, which described Warner's experience.
Plaintiffs further argued that the number of hours expended by defendants' counsel was excessive under the circumstances. Relevant here, they objected to 134.5 hours expended on defendants' summary judgment motion and reply, but did not identify any specific billing entries that were objectionable.
Also, plaintiffs contended that defendants sought to recover twice for work related to two motions to compel. They explained that in connection with the first motion to compel, defendants had requested $7,800.00 in attorney fees for a total of 19.5 hours of work. The court had previously awarded defendants $6,060.00 in attorney fees related to that motion. Defendants further explained that in connection with the second motion to compel, defendants had requested $10,200.00 in attorney fees for a total of 25.5 hours of work. Pursuant to a stipulation of the parties, the court had previously awarded defendants $3,000.00 in attorney fees related to that motion. Because defendants' attorney fee motion sought to recover $18,000.00 for those same 45 hours of work, plaintiffs asked to court to reduce the attorney fee award by $18,000.00.
In reply, defendants pointed out that plaintiffs' opposition included an excerpt of Warner's declaration, which described her experience. They further argued that the hours expended in the case were reasonable and necessary under the circumstances, and emphasized that defendants' counsel had already discounted their invoices to defendants in the total amount of $24,700.00. Last, regarding the attorney fees related to the two motions to compel, defendants noted that, although fees were previously awarded in connection with those motions, plaintiffs had not yet paid the awarded amounts.
According to the settled statement describing the hearing on defendants' attorney fee motion (see Cal. Rules of Court, rule 8.137), the trial court first stated that it would not award any attorney fees for work performed by "SC" because there was insufficient evidence to substantiate the reasonableness of those fees. Those fees totaled $9,500.00.
Second, the court stated it would not award attorney fees in the amount of $6,200.00 associated with the issuance of a subpoena and related motion to quash.
Third, the court stated it would include the two earlier attorney fee awards related to the discovery motions in the final attorney fee award, totaling $9,060.00. Plaintiffs' counsel objected, stating that defendants' attorney fees motion already sought fees incurred for those motions, and that defendants would get a double recovery as a result. In response, the court said it would reduce the requested attorney fee amount by $7,800.00, and then increase it by $9,060.00.
While the trial court's rationale is not described in the settled statement, it appears the court intended to avoid defendants obtaining a double recovery of attorney fees for the two discovery motions by subtracting from the award those attorney fees requested by defendants for the discovery motions and adding attorney fees previously awarded for the discovery motions. As discussed below, however, it appears to have subtracted attorney fees for only one of the two discovery motions at issue.
Following the hearing, the court issued an award of attorney fees to defendants in the amount of $113,745.00.
B. Applicable law and standard of review
Civil Code section 1717, subdivision (a), provides: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." Subdivision (a) further provides that "[r]easonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit."
Determining reasonable attorney fees under Civil Code section 1717 begins with the lodestar figure, i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The reasonable hourly rate is the one prevailing in the community for similar work. (Ibid.) The lodestar may be adjusted based on factors specific to the case to fix the fee at the fair market value for the legal services provided. (Ibid.) This "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.) In making its determination, a trial court may consider the nature of the litigation, its difficulty, the amount involved, the skill required in handling it, the skill employed, the attention given, success or failure, and other circumstances. (Id. at p. 1096.)
We generally review an order granting attorney fees for abuse of discretion. (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1319.) With respect to the amount of fees awarded, our review is highly deferential to the trial court's views. (Ibid.) That is partially because an experienced trial judge is in the best position to decide the value of professional services rendered in its court. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Notwithstanding this deferential standard of review, the trial court's exercise of discretion must be based on a proper utilization of the lodestar method, and the trial court will be found to have abused its discretion if there is no reasonable basis for its ruling or it applied the wrong standard or test. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 12391240.)
C. Plaintiffs' appeal
Plaintiffs challenge several aspects of the trial court's attorney fee award. First, they challenge the trial court's award of $17,860.00 in fees for work performed by Warner, arguing that defendants failed to provide sufficient evidence of Warner's work in the case or her reasonable hourly rate. Second, they argue that the attorney fee award reflects a double recovery of fees related to two discovery motions. Third, they argue that the award of fees for defendants' summary judgment motion was excessive. Last, they argue that the award of $113,745.00 is inconsistent with the trial court's stated rationale for the award. We address each contention in turn.
i. Warner's fees
Plaintiffs argue that defendants did not provide sufficient evidence to justify an award of attorney fees for work performed by Warner. They note that Fredman's declaration included billing records showing a total of 44.65 hours of work performed by Warner at a rate of $400.00 an hour, and argue that Fredman's declaration failed to provide a foundation regarding the hours worked by Warner or her reasonable hourly rate. Plaintiffs further emphasize that the trial court did not award fees for work performed by "SC," and should have similarly not awarded fees for Warner.
We find no abuse of discretion in the trial court's award of attorney fees for hours billed by Warner. Although Fredman's declaration failed to identify Warner or Warner's experience, such evidence was nonetheless before the trial court. With their opposition to defendants' motion, plaintiffs submitted an excerpt of a declaration from Warner, apparently filed earlier in the litigation in connection with a motion to compel brought by defendants. Warner's declaration stated that she occasionally assisted Fredman with his firm's representation of defendants, and that she charged Fredman $400.00 an hour for her services. She also described her considerable experience to support her $400.00 hourly rate.
Plaintiffs' reliance on San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, is misplaced. There, the court held that the trial court erred by relying on a supplemental declaration first submitted by the moving party with its reply. (Id. at p. 312.) Plaintiffs were not presented with Warner's declaration for the first time in defendants' reply-plaintiffs themselves submitted the evidence with their opposition.
Warner's declaration stated that she had been a member of the State Bar since 1986, was formerly a partner in the litigation department of a law firm, had taught advanced legal writing at Ventura College of Law, and had been a judge pro tempore for the Family Law Department of the Los Angeles Superior Court.
Nor are we convinced that because the trial court did not award fees for work performed by "SC," it had to do the same for the work performed by Warner. Warner's declaration describing her experience was in the record; we are not aware of any similar evidence regarding "SC."
Combined with Fredman's declaration, which explained that defendants were charged an hourly rate of $400.00 and attached billings records for all requested hours, Warner's declaration adequately supported the trial court's award of attorney fees for work billed by Warner. (See, e.g., Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1059 [rejecting challenge to lodestar award where record included declarations of counsel regarding the hours expended and reasonable rates for the work done]; Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 ["the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous"].)
ii. Double recovery for discovery motions
Plaintiffs contend the attorney fee award reflects a double recovery for fees related to two motions to compel.
As described earlier, according to the settled statement the trial court initially stated it would include in its attorney fee award two previous awards of attorney fees related to defendants' successful discovery motions. When plaintiffs' counsel objected that defendants' motion already sought fees related to those discovery motions, the court agreed to reduce the requested fee amount by $7,800.00-the amount of fees sought by defendants for one of the two discovery motions-and add $9,060.00-the amount previously awarded for both discovery motions. Plaintiffs argue that the trial court should have reduced the requested fee amount by $18,000.00, the amount sought by defendants' counsel for both discovery motions.
In response, defendants contend that plaintiffs' argument rests on an assumption about the trial court's calculation of the attorney fee award. According to defendants, because the trial court did not issue a statement of decision explaining exactly how it calculated the award, it is possible that the award was instead based "on reductions (or increases) of time and/or rate for any of the work done."
Although the settled statement does appear to support plaintiffs' view of the trial court's calculation, we cannot be sure. That is because, as discussed further below, the amount of the final attorney fee award, $113,745.00, fails to correspond to the calculations described in the settled statement. We thus cannot say for certain exactly how the trial court's final fee award accounted for the apparent double recovery issue.
In an appropriate case, a reviewing court may modify the judgment appealed from. (Code Civ. Proc., §§ 43, 906.)" 'Whenever an appellate court may make a final determination of the rights of the parties from the record on appeal, it may, in order to avoid subjecting the parties to any further delay or expense, modify the judgment and affirm it, rather than remand for a new determination.'" (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 547.)
We conclude, however, that remand is the preferable approach here. As a reviewing court, our role is to review the trial court's exercise of its discretion, not to determine appropriate attorney fee awards in the first instance. (See PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) Because the settled statement suggests the attorney fee award is inconsistent with the trial court's stated rationale for the award-by at least $10,200.00, not an insignificant amount-remand will permit the trial court to make any warranted modifications to the award and to support its calculation with adequate clarity. (See State of California v. Meyer (1985) 174 Cal.App.3d 1061, 1074 [remanding attorney fee award to trial court "for clarification" where court could not "determine how the trial court arrived" at amount awarded].) By remanding this issue, we do not decide whether any such modification is required; that will be the trial court's decision in the first instance.
iii. Summary judgment motion
Plaintiffs argue that the amount of time expended by defendants' counsel for defendants' motion for summary judgment and reply, 134.5 hours, was excessive and unreasonable, and ask that we reduce the fee award accordingly. They emphasize that those hours account for 42 percent of all hours expended in the case by defendants' counsel.
We find no abuse of discretion here. While such fees may account for 42 percent of the total fees sought by defendants' counsel, such fees do not represent 42 percent of the hours expended in this litigation. For example, defendants did not seek any fees related to the efforts of Cohen, their former attorney, for a 14-month period. Also, defendants' counsel explained in their reply in support of the fee motion that their billing invoices included more than $24,000.00 in discounts to defendants, a savings that was passed along to plaintiffs. Last, we note that defendants sought summary judgment and/or summary adjudication on nine separate grounds, necessitating a significant amount of work to present their factual and legal arguments, and that the trial court agreed with nearly all of those grounds.
We also note that Fredman's hourly billing rate of $400.00 in this action was significantly less than his hourly billing rates of $500.00 to $600.00 upheld in earlier fee awards.
More importantly, as they did below, plaintiffs fail to identify any specific billing entry that is allegedly objectionable, and instead urge that the overall amount is excessive and unreasonable. "In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice." (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564; see also Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)
Because plaintiffs have failed to identify any specific billing entry that is allegedly objectionable, and because the trial court was familiar with this case and the efforts of defendants' counsel, we find no abuse of discretion in the award of attorney fees for time expended in connection with defendants' motion for summary judgment and/or summary adjudication.
iv. Overall amount of award
Plaintiffs' final argument concerns the calculations supporting the total amount of the fee award. They note that the settled statement states that the trial court agreed to reduce fees incurred by "SC" amounting to $9,500.00; agreed to subtract $6,200.00 in fees relating to issuance of a subpoena and motion to quash; and agreed to reduce the award by $7,800.00, but increase it by $9,060.00, to address a potential double recovery related to the earlier fee awards for defendants' motions to compel. Those modifications should have resulted in a fee award of $112,420.00. Yet, the trial court awarded defendants $113,745.00 in attorney fees.
$126,860.00 [total fees sought by defendants] - $9,500.00 [fees for "SC"] - $6,200.00 [fees for subpoena and motion to quash] - $7,800.00 [fees sought for first motion to compel] + $9,060.00 [totals fees awarded for both motions to compel] = $112,420.00.
Because we are remanding the fee award to the trial court for the reasons described earlier, on remand the trial court can address this apparent inconsistency in the award. Again, by remanding the fee award to address this issue, we do not decide that a modification to the fee award is required; that will be the trial court's decision in the first instance.
DISPOSITION
The judgment in favor of defendants is affirmed. The attorney fee award is remanded to the trial court for further proceedings consistent with this opinion. Defendants are entitled to their costs on appeal.
We concur: LAVIN, J., BENKE, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.