Opinion
B229912
01-25-2012
KIMBERLY KEMPTON et al., Plaintiffs and Appellants, v. CAROLYN COOPER et al, Defendants and Respondents.
Charles G. Kinney, in pro. per., and for Plaintiffs and Appellants. Plotkin Marutani & Kaufman, Jay J. Plotkin, Nancy O. Marutani; Borton Petrini and Matthew J. Trostler for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC363261)
APPEAL from orders of the Superior Court of Los Angeles County, Victor E. Chavez, Judge. Affirmed.
Charles G. Kinney, in pro. per., and for Plaintiffs and Appellants.
Plotkin Marutani & Kaufman, Jay J. Plotkin, Nancy O. Marutani; Borton Petrini and Matthew J. Trostler for Defendants and Respondents.
INTRODUCTION
In a previous appeal by plaintiffs Kimberly Kempton and Charles Kinney, this court affirmed a judgment for Carolyn Cooper, Michael Olivares, and other defendants, found that defendants (including Cooper and Olivares) were entitled to attorney's fees on appeal, and remanded the matter to the trial court to determine the amount of those attorney fees. Kempton and Kinney appeal from the orders awarding attorney's fees and costs to Cooper and Olivares. We conclude that plaintiffs have not shown that defendants' cost memorandum was untimely filed or that defendants waived their right to costs on appeal. Plaintiffs also have not shown that the award of attorney's fees incurred in the previous appeal was an abuse of discretion. We affirm the orders awarding attorney's fees and costs to defendants Cooper and Olivares.
FACTUAL AND PROCEDURAL HISTORY
Plaintiffs Kimberly J. Kempton and Charles G. Kinney, owners of real property at 3525 Fernwood Avenue in Silver Lake, sued neighboring property owners Carolyn Cooper, Michael Olivares, Karen Numme, Jeffrey Harris, Judy Harris, and Ben Harris for invasion of privacy and for injunctive relief. A jury found that defendants did not intentionally invade plaintiffs' privacy, and the trial court denied plaintiffs' request for injunctive relief under Code of Civil Procedure sections 526 and 527.6. Judgment was entered for defendants, and the trial court determined that each defendant was a prevailing party and that defendants were to recover costs of suit. Cooper and Olivares (whom we will refer to collectively as Cooper) moved for an award of attorney's fees pursuant to sections 527.6, subdivision (i) and 1033.5, subdivisions (a)(10) and (c)(5). The trial court determined that the action proceeded in part pursuant to section 527.6, granted the motion for attorney's fees and costs, and awarded Cooper attorney's fees of $50,000 and costs of $7,407.29.
Unless otherwise specified, statutes in this opinion will refer to the Code of Civil Procedure.
Plaintiffs Kinney and Kempton appealed from the judgment and from the post-judgment orders awarding attorney's fees. Cooper cross-appealed from the order awarding attorney's fees. In its nonpublished opinion Kempton et al. v. Harris (May 24, 2010, B210894) (Kempton I), this court affirmed the judgment and the order awarding attorney's fees to Cooper. In the cross-appeal, this court found no abuse of discretion in the trial court's apportionment of attorney's fees and its limitation of that award to fees incurred in the injunctive relief action. This court also found that defendants, including Cooper, were entitled to statutory attorney's fees on appeal, and remanded the matter to the trial court to determine the amount of that attorney fee award.
On September 23, 2010, Cooper filed a motion for an award of attorney's fees and costs of $53,440 associated with the Kempton I appeal. The motion argued that although apportionment of an attorney fee award for the trial was appropriate because the statutory authority for those fees, section 527.6, was not claimed by plaintiffs until more than a year after filing their complaint, apportionment of attorney's fees on appeal was no longer an issue because Cooper was forced to defend 100 percent of the appeal. Kempton and Kinney's opposition to the motion for attorney's fees argued that Cooper did not prevail on their cross-appeal, failed to allocate their requested attorney's fees between those incurred as a respondent as distinct from those incurred as a cross-appellant, gave no detail as to those fees, and were not entitled to attorney's fees on the cross-appeal because they did not prevail in that cross-appeal.
On November 23, 2010, the trial court ordered that Cooper be awarded attorney's fees of $53,440 and costs of $2,745.26.
On November 24, 2010, the trial court found that in the Kempton I remittitur, the Court of Appeal awarded statutory fees on appeal to defendants but did not award statutory fees on the cross-appeal and found against defendants on that cross-appeal. The trial court ordered the cost award of $2,745.26 vacated and ordered Cooper to file a revised cost memorandum to be directed solely at costs incurred in responding to the primary appeal and not to include costs associated with the cross-appeal.
On December 7, 2010, Cooper filed a cost memorandum for $1,410 in costs. On December 17, 2010, Kempton and Kinney filed a motion to tax or strike costs. On January 19, 2011, the trial court denied plaintiffs' motion for an order to tax or strike costs. On January 19, 2011, Kempton and Kinney filed a timely notice of appeal from the order granting attorney's fees. On January 31, 2011, Kempton and Kinney filed an amended notice of appeal from the January 19, 2011, order granting costs of $1,410.
An order awarding or denying costs or attorney's fees is appealable. (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 693.)
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ISSUES
Kempton and Kinney claim on appeal that:
1. Defendants did not timely file their cost memorandum or their amended cost memorandum;
2. Defendants did not allocate attorney's fees, and their reply was untimely; and
3. Kempton and Kinney should receive their attorney's fees and costs.
DISCUSSION
1. Plaintiffs Have Not Shown That Defendants' Cost Memorandum Was Untimely Filed or That Defendants' Waived Costs on Appeal
Plaintiffs claim that Cooper did not file a cost memorandum in the trial court and therefore waived any costs on the appeal. California Rules of Court, rule 8.278(c) requires a party claiming costs awarded by a reviewing court to serve and file in the superior court a cost memorandum within 40 days after notice of issuance of remittitur. The copy of the cost memorandum in the record on appeal, provided by appellants, had no superior court file stamp. The superior court civil case summary, however, shows defendants' cost memorandum filed on September 21, 2010, and defendants have provided this court with a conformed copy of the original cost memorandum filed in the superior court on September 21, 2010. Thus the cost memorandum was timely filed within 40 days of the notice of remittitur.
Kempton and Kinney's motion to tax or strike costs did not object that defendants' cost memorandum was untimely or was not filed in superior court. They therefore forfeit that claim of error on appeal. (See P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1052.)
Kempton and Kinney similarly argue that Cooper waived the right to costs because Cooper's amended cost memorandum was not filed within the 40 days required by California Rules of Court, rule 8.278(c). Cooper filed that amended cost memorandum pursuant to the trial court's November 24, 2010, order to file a revised cost memorandum to reflect costs incurred in responding to Kempton and Kinney's appeal and to exclude costs associated with Cooper's cross-appeal. Kempton and Kinney did not object to the filing of the amended cost memorandum as untimely. Filing the amended cost memorandum to comply with the trial court's order cannot form the basis of a waiver of costs on appeal.
2. Plaintiffs Have Not Shown That the Award of Attorney's Fees Incurred in the Kempton I Appeal Was an Abuse of Discretion
Kempton and Kinney claim that Cooper did not allocate attorney's fees incurred in Kempton and Kinney's appeal as distinct from attorney's fees incurred in Cooper's cross-appeal, and therefore waived any attorneys' fees on appeal.
In support of waiver, Kempton and Kinney cite California Rules of Court, rules 3.1702 and 8.278, and section 1033.5. Neither of these rules of court nor section 1033.5, however, provides authority for such a waiver.
Kempton and Kinney's other argument claims that the trial court's award erroneously failed to allocate attorney's fees. In Kempton and Kinney's appeal, Kempton I affirmed the judgment for Cooper, making Cooper the prevailing party. In Cooper's cross-appeal, Kempton I affirmed the trial court's attorney's fee award. The disposition found that defendants were entitled to attorney's fees on appeal, and remanded the matter to the trial court to determine the amount of statutory attorney's fees on appeal to be awarded to defendants.
Attorney's fees were not recoverable in Kempton and Kinney's cause of action for invasion of privacy, but were recoverable by the prevailing party in Kempton and Kinney's claim for injunctive relief pursuant to section 527.6. (§ 527.6, subd. (i).) "A litigant may not increase his recovery of attorney's fees by joining a cause of action in which attorney's fees are not recoverable to one in which an award is proper." (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.) However, "[a]ttorney's fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed." (Id. at pp. 129-130.) Where attorney's fees are authorized for some causes of action but not for others, allocation of attorney's fees is a matter within the trial court's discretion. Such discretion is abused only when the trial court's ruling exceeds the bounds of reason when all circumstances before the court are considered. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 555.)
Plaintiffs' discussion of this issue consists of a single sentence stating that Cooper did not allocate attorney's fees to plaintiffs' appeal as distinct from Cooper's cross-appeal. Plaintiffs provide no discussion or analysis of why apportionment of attorney's fees between the appeal and the cross-appeal was required, whether issues in the appeal were common to a cause of action for which fees were proper and one in which they were not allowed, and whether failure to apportion attorney's fees was an abuse of discretion. The appellant bears the burden of presenting argument and authority on each point made. (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.) Where appellant's counsel asserts a point without reasoned argument of or citations to authority for the proposition, the contention on appeal is waived and the reviewing court may deem it as meriting no discussion. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007; In re S.C. (2006) 138 Cal.App.4th 396, 408.)
3. Kempton and Kinney Are Not Entitled to Attorney's Fees or Costs on Appeal
Kempton and Kinney claim that because the trial court apportioned those costs and awarded $1,410 in costs to Cooper instead of the $2,745.26 in costs that Cooper initially requested, they prevailed in the trial court as to costs on appeal and should be awarded their attorneys' fees and costs. Because it was not raised in the trial court, that claim of error is forfeited on appeal.
Kempton and Kinney also claim that if this court rules in their favor as to unallocated attorney's fees incurred in Kempton I, they should receive attorney's fees and costs in this appeal. This court did not rule in their favor on attorney's fees and Kempton and Kinney are not entitled to attorney's fees or costs on appeal.
DISPOSITION
The orders are affirmed. Costs on appeal are awarded to defendants Carolyn Cooper and Michael Olivares.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
ALDRICH, J.