Opinion
A151582
06-27-2018
ANEESH GUPTA, Plaintiff and Appellant, v. EDDY CHOY et al., Defendants and Respondents.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on June 27, 2018, be modified as follows:
1. On page 3, the portion of footnote 4 beginning "He asserted this court" and ending "(See part II.B., post.)" is deleted and replaced with the following:
We disagree. The only case cited by Gupta involving two conflicting statutory fee-shifting provisions is Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047. That case, however, did not establish a blanket rule that unilateral fee-shifting provisions prevail over bilateral provisions. Rather, the Turner court engaged in a multistep analysis to determine which provision should govern. And it ultimately concluded awarding defense fees "would frustrate the purposes of the unilateral fee-shifting provisions . . . and in this case impose a crushing fee award on civil rights plaintiffs who did not even seek damages from defendant." (Id. at p. 1071.) Gupta has made no effort to engage in such an analysis or explain why enforcement of the fee-shifting provision in SFRO section 37.9 in this instance would undermine the purpose of SFRO section 37.10B. In fact, Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, suggests
otherwise. That case found another unilateral fee-shifting provision of SFRO section 37.10B unconstitutional, in part, because it was contrary to the bilateral fee-shifting provision in Civil Code section 1942.4. (Id. at pp. 1297-1299.) Finally, we note the trial court awarded a lesser amount than requested by the Choys. It is possible the trial court did, in fact, exclude fees related to the SFRO section 37.10B allegations. Gupta offers no evidence to demonstrate otherwise. (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 69, fn. 2 ["As the reviewing court, we must resolve all conflicts, and draw all inferences in favor of the judgment."].)
The modification does not change the appellate judgment. (Cal. Rules of Court, rule 8.264(c)(2).)
Appellant's petition for rehearing is denied. Dated:
/s/_________
Margulies, Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. CGC14540554)
Aneesh Gupta sued Eddy Choy and Maria Choy (the Choys) regarding his tenancy in an unpermitted unit owned by their son, Lawrence Choy. Gupta voluntary dismissed the Choys without prejudice on the eve of trial. Gupta now appeals from the trial court's postjudgment award of attorney fees to the Choys. We affirm the trial court's order.
We shall refer to Lawrence Choy by his first name to avoid confusion with defendants Eddy Choy and Maria Choy.
I. BACKGROUND
Gupta filed a first amended complaint against numerous defendants, including the Choys for negligence, habitability, quiet enjoyment, violation of the San Francisco Rent Stabilization and Arbitration Ordinance (SFRO), violation of Civil Code sections 1950.5 and 1942.4, fraud, intentional infliction of emotional distress, and constructive eviction. The complaint alleged all defendants, including the Choys, "participated in leasing the property," "are liable for constructing the illegal unit and allowing the illegal unit to be rented to [Gupta]," and are "liable for failure to address [Gupta's] reasonable and necessary repair requests." The complaint also includes allegations regarding his security deposit, utilities, and removal of the unit's kitchen. While the complaint alleges Gupta entered into a written lease for the property with Lawrence, it also asserts, "At all pertinent times a landlord-tenant relationship existed between [Gupta] and the Defendants," and "each Defendant . . . was and is the agent, employee, servant, subsidiary, partner, member, associate, or representative of each other Defendant . . . ." All nine causes of action, including the fourth cause of action (violation of the SFRO) and eighth cause of action (violation of Civ. Code, § 1942.4), are specifically alleged against the Choys.
The SFRO is located in chapter 37 of the San Francisco Administrative Code.
Two days after trial was scheduled to begin, Gupta voluntarily dismissed the Choys without prejudice. The Choys subsequently filed a motion seeking $25,250 in attorney fees. Their motion alleged they were prevailing parties, which entitled them to recover fees under SFRO sections 37.9 and 37.10 and Civil Code section 1942.4. In discussing the reasonableness of their fee request, the Choys sought an hourly rate of $400 for their lead counsel, Richard Beckman's, services.
Gupta opposed the motion, arguing the Choys were not entitled to recover fees under either statute or contract. Gupta alleged the Choys were neither his landlords nor prevailing parties, and submitted a declaration stating the Choys were dismissed only because he decided to focus on his claims against Lawrence. Gupta also contested the $400 per hour rate requested by the Choys because the billing statements submitted in support of their motion reflected a lower hourly rate for Beckman.
The court held an initial hearing on the fee motion. Following oral argument, the court requested supplemental briefing regarding whether the Choys were landlords, specifically in light of SFRO section 37.2, subdivision (h) and the agency and landlord-tenant allegations contained in paragraphs 14 and 21 of the complaint. After a subsequent hearing on the motion, the court granted the Choys' motion. The court concluded the Choys were the " 'prevailing party' " under SFRO sections 37.9, subdivision (f) and 37.2, subdivision (h) and awarded $19,200 in fees. Gupta timely appealed.
Gupta failed to include the notice of appeal and the notice of election in his appendix, in violation of California Rules of Court, rules 8.122(b)(1)(A) and 8.124(b)(1)(C). These documents are in the court file, however. Although we do not condone Gupta's failure to comply with the applicable rules, we augment the record with the notice of appeal and notice of election on our own motion. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
II. DISCUSSION
Gupta challenges both the Choys' entitlement to attorney fees and the amount of fees awarded. We address each issue in turn. A. The Choys' Entitlement to Attorney Fees
The trial court concluded the Choys were the prevailing party under SFRO section 37.9, subdivision (f) and Civil Code section 1942.4, and awarded statutory fees in the amount of $19,200. The court did not award contractual fees based on the lease agreement, and the Choys concede they are not seeking such fees. As such, we need not address whether the Choys could recover fees under the lease agreement or Civil Code section 1717. Instead, our review is limited as to whether the Choys have a statutory right to attorney fees.
While the Choys also argue they are entitled to fees under SFRO section 37.10, it appears that section was not a basis for the trial court's award, and the Choys did not appeal from that decision. At oral argument, Gupta's counsel argued the trial court erred by not expressly addressing SFRO section 37.10's fee provision. He asserted this court should either remand the issue or decide it de novo. We disagree, and conclude we need not address SFRO section 37.10. Even assuming Gupta is correct that the Choys are not entitled to recover fees under that provision, we conclude the trial court was not obligated to apportion fees. (See part II.B., post.)
SFRO section 37.9 and Civil Code section 1942.4 pertain to tenant evictions and collection of rent. Subdivision (f) of SFRO section 37.9 provides, "Whenever a landlord wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Sections 37.9 and/or 37.10A as enacted herein, the tenant or Rent Board may institute a civil proceeding" for various penalties including injunctive relief and damages. Civil Code section 1942.4 precludes a landlord of substandard housing from collecting rent. (Id., subd. (a)(1).) Most importantly for the purposes of this case, SFRO section 37.9 and Civil Code section 1942.4 provide that the court "shall" award reasonable attorney fees and costs to the prevailing party in an action brought under these statutes. (SFRO, § 37.9, subd. (f); Civ. Code, § 1942.4, subd. (b)(2).) Such language makes an award of attorney fees to the prevailing party mandatory, assuming there is a prevailing party. (Hsu v. Abbara (1995) 9 Cal.4th 863, 872.)
Gupta contends any statutory award under SFRO section 37.9, subdivision (f) or Civil Code section 1942.4 is improper because the Choys were neither his landlords nor "prevailing part[ies]." We disagree.
1. "Landlord" Under SFRO Section 37.9 , Subdivision (f) , and Civil Code Section 1942 .4
Gupta contends neither SFRO section 37.9 nor Civil Code section 1942.4 apply to the Choys because they were not his landlords. Putting aside the fact that Gupta believed them applicable when he filed his complaint, we do not find his argument particularly persuasive.
Under the SFRO, the term "landlord" is not limited to only those individuals in a lease agreement with tenants. Rather, "landlord" is defined as "An owner, lessor, sublessor, who receives or is entitled to receive rent for the use and occupancy of any residential rental unit or portion thereof in the City and County of San Francisco, and the agent, representative or successor of any of the foregoing." (SFRO, § 37.2, subd. (h), italics added.) Gupta does not dispute the Choys were, at a minimum, acting as Lawrence's agents. And as agents, the Choys expressly fall within the definition of "landlord" under the SFRO and are subject to SFRO section 37.9, subdivision (f).
However, unlike the SFRO, Civil Code section 1942.4 does not define "landlord." Neither party cites any authority for whether the Choys are landlords under this section. Nor are we aware of such authority. "Long-standing rules of statutory construction, as repeated in People ex rel. Allstate Insurance Co. v. Muhyeldin (2003) 112 Cal.App.4th 604, prohibit us from rewriting the statute by inserting words of our own: ' " '[I]t still remains true, as it always has, that there can be no intent in a statute not expressed in its words, and there can be no intent upon the part of the framers of such a statute which does not find expression in their words.' [Citations.] . . . 'Words may not be inserted in a statute under the guise of interpretation.' " ' " (In re Brandy R. (2007) 150 Cal.App.4th 607, 610.) The plain language of the statute applies to "A landlord who violates this section." (Civ. Code, § 1942.4, subd. (b)(1).) Nothing in the language suggests section 1942.4 was intended to apply to agents or representatives thereof. (Compare Civ. Code, § 1942.4, subd. (b)(1) ["A landlord who violates this section is liable . . . ."] with Civ. Code, § 1942.5, subd. (h) ["Any lessor or agent of a lessor who violates this section shall be liable . . . ."].) As such, we cannot conclude an agency relationship is sufficient to find the Choys entitled to fees under Civil Code section 1942.4.
We need not, however, rely on such an agency relationship. Gupta alleged in his first amended complaint the Choys were his landlords. That complaint asserts the Choys "participated in leasing the property" and "At all pertinent times a landlord-tenant relationship existed between [Gupta] and the [Choys]." With regard to the Civil Code section 1942.4 allegations, Gupta alleged the Choys "continued to demand and collect rent and/or do other acts which are set forth in Civil Code section 1942.4[, subdivision] (a)"—i.e., conduct specifically tied to the landlord in this code section. Gupta is thus bound by these allegations. "[A] pleading party may be bound by the factual allegations it makes in a complaint, even if the complaint is not verified. 'It is presumed that even an unverified pleading is filed with the consent of the client and should be regarded as an admission.' [Citations.] This is consistent with the nature and purpose of a pleading, whether verified or not: ' "An admission in the pleadings is not treated procedurally as evidence," ' because ' "it is fundamentally different from evidence: It is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues." ' " (Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 131-132, fn. omitted; accord, Continental Ins. Co. v. Lexington Ins. Co. (1997) 55 Cal.App.4th 637, 646 [" '[A] plaintiff may not discard factual allegations of a prior complaint, or avoid them by contradictory averments, in a superseding, amended pleading.' "].) In the absence of any showing of mistake or inadvertence by the pleading party, we see no injustice in holding a party to the truth of its unverified factual allegations.
Accordingly, the trial court properly considered the Choys "landlords" for purposes of applying the attorney fee provisions of SFRO section 37.9 and Civil Code section 1942.4.
2. "Prevailing Party" Under SFRO Section 37.9 , Subdivision (f) and Civil Code Section 1942 .4
Gupta next argues the Choys are not "prevailing parties" under these statutes. Gupta and the Choys both agree this determination falls within the court's discretion. Accordingly, the trial court is required to evaluate which party, if either, "was the prevailing party 'on a practical level.' " (Galan v. Wolfriver Holding Corp. (2000) 80 Cal.App.4th 1124, 1129 (Galan).) This calls for a "pragmatic approach," requiring "consider[ation of] the extent to which each party realized its litigation objectives." (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1264.)
Because the decision to award attorney fees is left to the discretion of the trial court, we review for abuse of discretion. (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.) " ' "[D]iscretion is abused whenever . . . the court exceeds the bounds of reason, all of the circumstances before it being considered." [Citation.]' [Citation.] 'In deciding whether the trial court abused its discretion, "[w]e are . . . bound . . . by the substantial evidence rule. [Citations.] . . . The judgment of the trial court is presumed correct; all intendments and presumptions are indulged to support the judgment; conflicts in the declarations must be resolved in favor of the prevailing party, and the trial court's resolution of any factual disputes arising from the evidence is conclusive." ' " (Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1154 (Salehi).)
Gupta first contends the trial court failed to analyze whether the Choys are "prevailing parties" under the standard set forth in Galan, supra, 80 Cal.App.4th 1124. However, the lack of detail in the trial court's order does not mean the court failed to consider this issue. To the contrary, the trial court received briefing and heard arguments from the parties regarding whether the Choys were prevailing parties under Galan. Absent any showing by Gupta that the trial court ignored these issues, we must presume the court properly considered them. (Accord, Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 88 ["Although the trial court provided little insight into its analysis, the order . . . is presumed to be correct, and all intendments and presumptions are indulged to support the order on matters as to which the record is silent."].)
Gupta next contends the Choys should not be considered the prevailing party because the dismissal was based on a strategic decision to focus on Lawrence. He analogizes his dismissal to that in Galan, supra, 80 Cal.App.4th 1124. There, the plaintiffs entered into a settlement agreement with the prior owners of their residence, agreeing as part of the settlement to dismiss their claims against the current owner, who had purchased the building from one of the settling defendants. (Id. at p. 1126.) The settling defendants apparently insisted on this dismissal because the current owner had filed suit against them in connection with the sale. In turn, the plaintiffs had no strong incentive to pursue the current owner because there were questions about the collectability of a judgment against it. (Ibid.) The trial court denied an award of prevailing party attorney fees to the current owner, notwithstanding the plaintiffs' voluntary dismissal. (Ibid.) The Court of Appeal affirmed, rejecting the argument the current owner was a prevailing party as a matter of law because it had been dismissed. The court found no abuse of discretion in the trial court's conclusion there was no prevailing party, noting the settlement did not exonerate the current owner, the plaintiffs had reached a satisfactory settlement with the other defendants, and the plaintiffs could have decided as a practical matter it was not worth the further expense of pursuing the current owner. (Id. at p. 1129.)
We find Galan distinguishable. There, the plaintiffs achieved much of their litigation objectives prior to dismissing the current owner through its settlement with the prior owner. (Galan, supra, 80 Cal.App.4th at p. 1129.) Gupta, however, has not identified any such victory. Instead, Gupta acknowledges he faces a complicated trial against Lawrence—a defendant in bankruptcy.
This case is more closely analogous to Salehi, supra, 200 Cal.App.4th 1146. While Salehi did not arise under Civil Code section 1942.4, it applied the same " 'practical level' " standard for determining the prevailing party in a claim for statutory attorney fees. There, the plaintiff was involved in two similar lawsuits against a condominium association. (Salehi, at p. 1151.) Three days prior to the scheduled trial in Salehi, but after the conclusion of trial in the other lawsuit, the plaintiff filed a voluntary dismissal of most claims on the alleged basis that her expert was ill and unavailable. (Ibid.) At approximately the same time, a statement of decision was rendered in the other lawsuit granting judgment to the association. (Ibid.) The defendant argued the plaintiff dismissed her claims because she realized she would lose at trial and unsuccessfully sought statutory attorney fees in connection with the dismissed claims. (Id. at p. 1152.) The Court of Appeal reversed, holding: "Even though Salehi's dismissals were based on reasons unrelated to 'the probability of success on the merits' [citation], it is unfair to deprive Association of its reasonable attorney fees. Because of Salehi's dismissals, Association 'realized its litigation objectives.' " (Id. at p. 1156.)
Similarly, in Intelligent Investments Corp. v. Gonzalez (2016) 1 Cal.App.5th Supp. 1 (Intelligent Investments), a landlord filed an unlawful detailer action and then voluntarily dismissed the action prior to trial. (Id. at p. Supp. 3.) The tenant sought statutory attorney fees, which the trial court denied. (Ibid.) On appeal, the court reversed, holding: "As a result of plaintiff's dismissal of its action seeking 'to recover possession of a rental unit,' defendant 'achieved one hundred percent' of his own litigation objectives. He is therefore entitled to an award of attorney fees." (Id. at pp. Supp. 8-9.)
As in Salehi and Intelligent Investments, the Choys' objective in the litigation was a defense judgment. As a result of the voluntary dismissals, they achieved this objective. Conversely, Gupta has not demonstrated he achieved any of the relief he sought at the time of the dismissals. Unlike the Galan plaintiffs, who entered into a settlement with other defendants, Gupta received nothing in return for dismissing the Choys. Nor does the record on appeal reflect any pretrial victories he achieved. On this "practical level," the trial court did not abuse its discretion in finding the Choys to be the prevailing party.
The Choys submitted a declaration stating that prior to the dismissal, Gupta sought to obtain either a mutual release or a waiver of any malicious prosecution claims in exchange for dismissing them from the action. The Choys rejected all of these offers.
Finally, Gupta argues the Choys are only entitled to recover fees if they would have been obligated to pay fees had they lost. Gupta cites no authority for this proposition and we thus consider it waived. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [reviewing court may treat argument as waived where appellate brief fails to provide legal authority for position taken].)
Based on the record before us, we cannot conclude the trial court abused its discretion in concluding the Choys were the prevailing party.
3. Impact of Lease Provision
Finally, Gupta contends any statutory award is improper because the lease agreement states each party shall bear their own attorney fees. However, as he concedes, the Choys were not parties to his lease agreement and thus are not bound by its terms. (See BRE DDR BR Whittwood CA LLC v. Farmers & Merchants Bank of Long Beach (2017) 14 Cal.App.5th 992, 1003 ["the provisions cannot form a binding contract on a nonparty to the lease"].)
Moreover, Gupta offers no authority to support his claim that a lease would take precedence over a statutory fee provision. In fact, courts have concluded otherwise. Under Civil Code section 3513, "Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement." Thus, statutory rights established for a public purpose are usually unwaivable. (Arntz Builders v. Superior Court (2004) 122 Cal.App.4th 1195, 1206.) In Kelly v. Yee (1989) 213 Cal.App.3d 336, 341 (Kelly), we discussed the public purpose of the treble damage provision of SFRO section 37.9, subdivision (f), noting "lawsuits over wrongful evictions are likely to involve small amounts of money that may not justify the costs of litigation . . . . If civil remedies in aid of these tenants are to be meaningful, they must provide sufficient financial incentive to justify bringing suit."
Similar reasoning applies to the attorney fee provision. For example, in Santisas v. Goodin (1998) 17 Cal.4th 599, 615-616 (Santisas), the defendants argued they were entitled to recover fees under the lease agreement despite not being the "prevailing party" as defined in Civil Code section 1717. Our Supreme Court explicitly rejected this proposition, in part because it would be inconsistent with the Legislature's intent "to establish uniform treatment of fee recoveries . . . and to eliminate distinctions based on whether recovery was authorized by statute or by contract. A holding that in contract actions there is still a separate contractual right to recover fees that is not governed by section 1717 would be contrary to this legislative intent." (Santisas, at p. 616.)
Based on the reasoning in Kelly and Santisas, we conclude statutory fee awards serve a public purpose by ensuring uniform treatment of fee recoveries. As such, they cannot be waived by a contrary lease provision. Accordingly, the trial court properly found the Choys entitled to such fees. B. Adequacy of Attorney Fee Award
The Choys requested $25,250 in attorney fees, of which the trial court awarded $19,200. The court did not explain how it calculated this award. Gupta argues the trial court failed to apportion the fees and challenges a disparity in the Choys' counsel's billing rate. Neither contention justifies reversal.
" ' "A judgment or order of the lower court is presumed correct. . . . and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." ' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) When challenging attorney fees, "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. Cal. Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) " 'It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error.' " (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) If Gupta was dissatisfied with the court's calculation of allowable attorney fees, it was incumbent upon him to request specific findings from the trial court. (See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1250 (Taylor); accord, Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1178 [generally "a ruling on a fee motion does not require judicial explanation or a statement of decision"].)
While Gupta argues the trial court failed to apportion fees, he does not identify any specific fees he contends are not recoverable. Having failed to do so, he may not now complain of error on appeal. (Taylor, supra, 222 Cal.App.4th at p. 1251.) Moreover, it is well established that apportionment of attorney fees "is within the trial court's discretion." (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1365.) Attorney fees need not be apportioned between distinct causes of action "when incurred for representation on an issue common to both causes of action in which fees are proper and those in which they are not. [Citation.] Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units." (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.)
Here, it is reasonable to assume the trial court found the causes of action involved a common core of facts. For example, the fourth cause of action asserting a violation of the SFRO contends the Choys "engage[d] in practices designed to harm [Gupta]," "rented [Gupta] an illegal unit," "wrongfully attempted to force [Gupta] to leave the unit by refusing to make repairs, performing noisy construction in the unit, removing the unit's kitchen," "failing to provide adequate heat to the unit, failing to perform repairs and maintenance, interfering with [Gupta's] quiet use and enjoyment of the unit, failing to pay utility bills despite [Gupta] making payments for utilities along with his rent, and influencing and attempting to influence [Gupta] to vacate his unit through fraud, intimidation, or coercion." Similarly, the first and second causes of action alleged in part the Choys "engage[d] in practices designed to fail to provide habitable conditions to [Gupta]" and "breached their duty by renting [Gupta] an illegal unit." The third, fifth, seventh, eighth, and ninth causes of action also raised issues regarding the habitability of the unit, such as its legality, and issues regarding heating, construction noise and kitchen access. The overlapping nature of these allegations suggest apportionment was not feasible.
Gupta also argues the fee award must be reversed because it is based on an alleged disparity between the hourly rate charged by the Choys' counsel and that awarded by the trial court. As an initial matter, the judgment is silent as to what hourly rate was used to calculate the fee award. But even assuming the trial court used the $400 rate requested by the Choys, the award does not merit reversal. The California Supreme Court has rejected the argument "that attorney fees 'incurred' means only fees a litigant actually pays or becomes liable to pay from his own assets." (Lolley v. Campbell (2002) 28 Cal.4th 367, 374.) Instead, the proper measure is the " 'reasonable market value of the attorney's services . . . . [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel.' " (Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1260.) While Gupta argues $400 was not Beckman's actual hourly rate, he does not contend it is an unreasonable hourly rate. Based on the record before us, we cannot conclude the trial court abused its discretion if it, in fact, calculated the fee award using $400 as the reasonable hourly rate for Beckman's services.
III. DISPOSITION
The order is affirmed. The Choys may recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.