Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC274700. Warren L. Ettinger, Judge.
Law Office of John G. Warner and John G. Warner for Defendants and Appellants.
Law Office of Henry John Matusek II and Henry John Matusek II for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
This is the second appeal in this matter. It involves a challenge to the trial court’s determination of the prevailing party, whether defendants Rodney Benn and Rodney Benn Productions, Inc. (RBP) are entitled to recover their attorney’s fees pursuant to a contractual attorney fee clause and as prevailing parties in plaintiff’s Civil Code section 3344 action, and whether the defendants are entitled to attorney’s fees in the first appeal and in this appeal.
Plaintiff Leanne Matusek moved to dismiss this appeal because RBP’s corporate powers were suspended when the notice of appeal was filed. Although RBP later obtained a certificate of revivor and reinstated its corporate powers, its corporate status has again been suspended, making the invalid notice of appeal a ground for granting the motion to dismiss. We therefore grant the motion to dismiss the appeal of RBP.
We conclude that the trial court properly found that a unity of interest existed between Benn and RBP. This unity of interest gave the trial court discretion to determine an award of costs under Code of Civil Procedure section 1032 as between the parties, and the trial court properly determined that Matusek was the prevailing party in the action against Benn and RBP. No abuse of discretion occurred in the trial court’s award of costs against Benn and RBP.
Unless otherwise specified, statutes in this opinion will refer to the Code of Civil Procedure.
Defendants claim they were entitled to recover attorney’s fees pursuant to a contractual attorney fee clause in a contract between another defendant, Richard Murad, and the American Federation of Television and Radio Artists (AFTRA). The Benn defendants, however, did not sign that contract, and the clause in that contract upon which they rely was not an attorney fee clause. It was an indemnification clause, which did not cover Matusek’s action against Benn and RBP. Thus Benn and RBP cannot claim attorney’s fees pursuant to the AFTRA contract.
We also conclude that the trial court’s award of attorney’s fees pursuant to Civil Code section 3344 was not an abuse of discretion. We reject the Benn defendants’ request to recover statutory attorney’s fees pursuant to Civil Code section 3344 incurred in the first appeal in this matter, and in this appeal. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The Murad defendants (Murad, Inc.; Murad Skin Research Laboratories, Inc.; Murad DRTV, Inc.; and Richard Murad) and the Benn defendants (RBP and Rodney Benn) contracted to create an infomercial about a Murad skin product. Defendants hired plaintiff Matusek to appear in the infomercial. Matusek completed the infomercial, but later sued the Murad and Benn defendants on causes of action including breach of contract and intentional misrepresentation. The Murad defendants cross-complained against Matusek and other defendants purporting to serve as Matusek’s talent manager.
Jury verdict:
After trial, a jury returned a general verdict in favor of Matusek. The verdict awarded no damages as against Rodney Benn, $296 in damages as against RBP, $43,864.07 in damages as against Murad, Inc., and $6,000 in damages as against Richard Murad, for total compensatory damages of $50,160.07. Regarding punitive damages, the jury verdict found that all four of these defendants acted with intentionally fraudulent conduct. The jury verdict as to punitive damages awarded $15,000 as to RBP, $250,000 as to Murad, Inc., and $65,000 as to Richard Murad for total punitive damages of $330,000. The jury verdict, however, awarded no punitive damages as to Rodney Benn.
Post-Trial Motions:
Defendants made post-trial motions. The trial court granted the Murad defendants’ motion for judgment notwithstanding the verdict (JNOV) and motion for new trial. The trial court further found there was insufficient evidence to justify the verdicts or to justify the damages awarded, that there was no evidence of fraud and no evidence to support the punitive damages award, and that there was no basis for the jury’s finding Richard Murad personally liable to Matusek. The trial court granted the Benn defendants’ motion to reduce the jury verdict, those defendants’ motion for new trial, and the Benn defendants’ motion to reduce the punitive damages award against RBP from $15,000 to $1,200.
New Judgment:
On August 20, 2004, the trial court entered a new judgment in favor of the Murad defendants and Rodney Benn individually, and which awarded Matusek $1,496 against RBP.
First Appeal:
Matusek appealed the judgment. In our opinion (Matusek v. Murad et al., (Jul. 5, 2006, B176883) [nonpub. opn.]) (Matusek I), this court found that Matusek presented substantial evidence in support of her causes of action for breach of contract and fraud and reversed the order granting the Murad defendants’ motion for JNOV. This court found that the trial court erroneously granted JNOV as to the award of punitive damages against Murad, Inc., and ordered reinstatement of the punitive damages award against Murad, Inc. This court found that the trial court did not err by finding no personal liability of Richard Murad, and affirmed the order granting JNOV in favor of Richard Murad personally. This court found that the order granting motions for new trial filed by the Murad and Benn defendants violated section 657 and was therefore null and void. This court found that the trial court correctly ordered a reduction in the punitive damages award against RBP from $15,000 to $1,200. This court found that the Federal Labor Management Relations Act did not preempt Matusek’s breach of contract cause of action, and that the trial court did not err by granting Matusek’s motion for nonsuit on the Murad defendants’ cross-complaint. This court rejected Matusek’s request to impose joint and several liability on the Benn and Murad defendants. This court’s judgment reversed the trial court judgment and remanded the matter with instructions that the trial court enter a new and different judgment in favor of Matusek and against Murad, Inc. in conformity with the jury verdict awarding $43,864.07 in compensatory damages and $250,000 in punitive damages, and against RBP awarding Matusek $296 in compensatory damages and $1,200 in punitive damages. This court’s judgment further instructed the trial court to enter judgment in favor of individual defendants Murad and Benn on Matusek’s third amended complaint, and to enter judgment in favor of three cross-defendants (who purported to serve as Matusek’s talent manager) on the Murad defendants’ cross-complaint. This court’s judgment awarded Matusek costs on appeal.
Amended Judgment:
On October 27, 2006, the trial court filed an amended judgment in conformity with this court’s judgment in Matusek I.
On November 20, 2006, Benn and RBP filed a motion for attorney’s fees on appeal. On December 1, 2006, Benn and RBP moved for contractual attorney’s fees pursuant to Civil Code section 1717, and for statutory attorney’s fees pursuant to Civil Code section 3344, subdivision (a). On that date Benn and RBP moved to strike Matusek’s memorandum of costs, or in the alternative to tax costs.
Judgment Pursuant to Remittitur: The trial court’s judgment pursuant to remittitur filed on September 28, 2007, ordered as follows:
Damages and alter ego finding:
Matusek v. Murad defendants:
Matusek to have judgment against all Murad defendants jointly and severally in conformity with the jury verdict award of $43,864.07 in compensatory damages and $250,000 in punitive damages.
Matusek v. RBP and Benn individually:
a. Matusek to have judgment against RBP for $296.00 in compensatory damages and $1,200 in punitive damages.
b. Rodney Benn was the alter ego of RBP and was jointly and severally liable to Matusek on the judgment to the same extent as RBP.
Prevailing party findings:
Matusek v. Murad defendants: Judgment that Richard Murad individually and the Murad corporate defendants were united in interest and Matusek was the prevailing party in the action against those defendants pursuant to section 1032, subdivision (a)(4). Matusek was to have judgment for costs of suit against the Murad defendants.
Matusek v. RBP and Benn individually: Judgment that Benn individually and RBP were united in interest and Matusek was the prevailing party pursuant to section 1032, subdivision (a)(4). Matusek was to have judgment for costs of suit against the Benn defendants.
No defendant was entitled to prevailing party costs pursuant to section 1032, subdivision (a)(4). Matusek was awarded pre-judgment costs of suit in the amount of $15,432.52.
Costs on Appeal—First Appeal (Matusek I):
Plaintiff Matusek was to recover and have judgment for costs of appeal against the Murad defendants and the Benn defendants. Plaintiff was awarded costs of appeal in the amount of $5,778.09.
Statutory attorney fees pursuant to Civil Code section 3344 :
Matusek v. Richard Murad individually: Judgment ordered that Richard Murad, having prevailed on non-suit as to the fifth cause of action in Matusek’s third amended complaint, was awarded $4,536 in reasonable costs and attorney fees incurred to defend the statutory cause of action arising under Civil Code section 3344.
Matusek v. Benn defendants: Judgment ordered that Rodney Benn individually and RBP, having prevailed on non-suit as to the fifth cause of action in Matusek’s third amended complaint, was awarded $4,536 each, for a total of $9,072 in reasonable costs and attorney’s fees incurred to defend the statutory cause of action arising under Civil Code section 3344.
Judgment was entered in favor of Matusek and three other cross-defendants on the Murad cross-complaint.
Benn and RBP filed timely notices of appeal from the judgment. Matusek has filed a motion to dismiss the appeal of defendant RBP.
ISSUES
1. Matusek has moved to dismiss the appeal of RBP because RBP was a suspended corporation when it filed its notice of appeal.
2. Benn claims he was a prevailing party at trial and was entitled to recover all of his costs, including attorney’s fees, incurred during trial court proceedings.
3. RBP also claims it was a prevailing party at trial and was entitled to recover all its costs, including attorney’s fees, incurred during trial court proceedings.
4. Benn and RBP claim they are entitled to recover contractual attorney’s fees pursuant to Civil Code section 1717.
5. Benn and RBP claim the amount of statutory attorney’s fees awarded pursuant to Civil Code section 3344 was arbitrarily too low.
6. Benn and RBP claim they are entitled to attorney’s fees incurred in the previous appeal, Matusek I, and in this appeal.
DISCUSSION
1. Matusek’s Motion to Dismiss RBP Is Granted
Plaintiff Matusek moves to dismiss the appeal of defendant RBP for having filed a notice of appeal when its corporate status was suspended.
a. Facts
On February 2, 2006, the Secretary of State of the State of California suspended the corporate powers, rights and privileges of Rodney Benn Productions, Inc. pursuant to provisions of the California Corporations Code.
After the filing of this court’s opinion in Matusek I on July 5, 2006, the trial court entered a judgment pursuant to remittitur on September 28, 2007. Notice of entry of judgment was served on March 11, 2008. RBP filed a notice of appeal from the September 28, 2007, judgment on March 14, 2008. A corrected notice of appeal filed on March 17, 2008, stated that the appeal was taken by Benn and RBP.
As of June 20, 2008, reinstatement never having been effected, the powers, rights, and privileges of RBP remained suspended.
Matusek filed a first motion to dismiss on June 27, 2008, on the ground that RBP was a suspended corporation which could not pursue an appeal to an adverse judgment. This court deferred a ruling on the motion to permit RBP to remove its corporate suspension. After RBP provided this court with a certificate of good standing on September 4, 2008, this court denied the motion to dismiss on September 10, 2008.
Matusek filed this second motion to dismiss the appeal on January 28, 2009, arguing that the suspension of RBP’s corporate status when RBP filed its notice of appeal made the filing of the notice of appeal a void act which cannot be extended or revived after the time to file a notice of appeal expired.
b. The Motion to Dismiss Must Be Granted Because RBP Has Again Become a
Suspended Corporation
If tax, penalty, or interest is not paid, “the corporate powers, rights and privileges of a domestic taxpayer may be suspended, and the exercise of the corporate powers, rights and privileges of a foreign taxpayer in this state may be forfeited[.]” (Rev. & Tax. Code § 23301.) The purpose of the statutory suspension of a corporation in Revenue and Taxation Code section 23301 is to prohibit the delinquent corporation from enjoying the ordinary privileges of a corporation in good standing (Boyle v. Lakeview Creamery Co. (1937) 9 Cal.2d 16, 19) and to induce the corporation to pay its taxes (Peacock Hill Assn. v. Peacock Lagoon Constr. Co. (1972) 8 Cal.3d 369, 371).
A suspended corporation may be relieved from the suspension or forfeiture by paying taxes and obtaining a certificate of revivor. (Rev. & Tax. Code §§ 23305, 23305a.) By obtaining a certificate of revivor, the reinstated corporation can validate most otherwise invalid prior proceedings in the case. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 218.)
During the period that a corporation is suspended for failure to pay taxes, it may not prosecute or defend an action and it may not appeal from an adverse judgment. (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306; Boyle v. Lakeview Creamery Co., supra, 9 Cal.2d at pp. 20-21.) Where a suspended corporate appellant receives an opportunity to reinstate its corporate status but fails to obtain a certificate of revivor, that corporation’s appeal must be dismissed. (Gar-Lo, Inc. v. Prudential Sav. & Loan Assn. (1974) 41 Cal.App.3d 242, 245.) Here RBP revived its corporate status in 2008, but has again become a suspended corporation. Its appeal must therefore be dismissed. This court grants Matusek’s motion to dismiss the appeal of RBP.
2. No Abuse of Discretion Occurred in the Trial Court’s Award of Costs Against Both Benn and RBP
Benn claims that he was a prevailing party because, as defined by section 1032, subdivision (a)(4), a prevailing party “includes... a defendant as against those plaintiffs who do not recover any relief against that defendant.” As previously noted, Matusek recovered only against RBP and not against Benn individually.
Matusek responds that the judgment was in her favor and against Benn individually for $0.00 plus costs of suit, and appears to argue that the award of costs of suit makes Matusek “the party with a net monetary recovery” and thus the prevailing party under section 1032, subdivision (a)(4). Costs, however, are not damages (Jue v. Patton (1995) 33 Cal.App.4th 456, 461, disapproved on an unrelated ground in Santisas v. Goodin (1998) 17 Cal.4th 599, 622), and are not included in determining which party obtained the net monetary recovery for purposes of section 1032. It would be illogical and circular to include costs in the calculation of net monetary recovery when the determination of net monetary recovery is the basis for an award of costs.
Matusek also claims that the August 20, 2004, judgment included an erroneous reversal of the judgment as to Benn individually. Matusek I reversed that judgment, however, and it has no remaining relevance to the determination of an award of costs.
More significantly, in the September 28, 2007, judgment the trial court found that Benn individually was the alter ego of RBP and that Benn was jointly and severally liable to Matusek on the judgment to the same extent as his alter ego, RBP. The trial court further found that Benn individually and RBP were united in interest and that accordingly Matusek was the prevailing party against those defendants within the meaning of section 1032, subdivision (a)(4) and was to have judgment for costs of suit against those united defendants.
Defendants make two arguments concerning the finding that Benn was the alter ego of RBP. First, they argue that the jury made no finding of alter ego liability. It would have been error, however, to submit the alter ego question to the jury. The alter ego doctrine is equitable in nature, is not a matter for jury decision, and is particularly within the province of the trial court. (Webber v. Inland Empire Investments, Inc. (1999) 74 Cal.App.4th 884, 900, 908; Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 147-148.) Second, defendants cite a statement in Matusek I that the court would not impose personal liability on Benn to Matusek based on the legal doctrine of joint and several liability. Joint and several liability, however, is a different matter than a finding of alter ego, which arises from facts which justify the disregard of the corporate form. (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1248.)
The real issue is whether the trial court properly found that a unity of interest existed between Benn and RBP. If such a unity of interest existed, the trial court could exercise discretion to make an award of costs. Section 1032, subdivision (a)(4) states that “in situations other than as specified, the ‘prevailing’ party shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” Where two defendants are united in interest and share the same counsel, the circumstances do not fall within the specific situations in section 1032, subdivision (a)(4). In this circumstance a trial court properly exercises its discretion to determine allocation of costs between the parties. (Textron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.App.4th 1061, 1078; Slavin v. Fink (1994) 25 Cal.App.4th 722, 726.) This court will overturn the trial court’s determination only if an abuse of discretion has occurred. (Slavin v. Fink, at p. 726.)
Where the losing defendant and the winning defendant were represented by the same attorney, filed a joint answer to the complaint, and joined in the same motions and responses, they shared a unity of interest. In that circumstance the statutory prevailing party definition does not apply to the winning defendant. (Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 985.) Wakefield found that in this circumstance, the plaintiff categorically qualified as a prevailing party “as a matter of law” under section 1032, subd. (a)(4). (Id. at p. 985.)
Here Benn and RBP were represented by the same attorney throughout the litigation. Benn and RBP filed a joint answer to Matusek’s third amended complaint. Benn and RBP joined in the same motions and responses. Benn was sole owner, President, and CEO of RBP. Benn had sole authority on behalf of the corporation to enter into contracts and bind the corporation. It was Benn’s sole decision to participate in production of the Murad infomercial. The trial court correctly found that a unity of interest existed between Benn and RBP, and properly determined that Matusek was the prevailing party in the action against Benn and RBP. No abuse of discretion occurred in the trial court’s award of costs against both Benn and RBP.
3. Dismissal of RBP’s Appeal Bars Its Claim That the Trial Court Erroneously Failed to Award It Costs Pursuant to Section 1033, Subdivision (a) or (b)
Although conceding that Matusek’s judgment against RBP for $1,496 made Matusek the party with the net monetary recovery, RBP argues that section 1033, not section 1032, subdivision (a)(4), governs the determination of prevailing party. RBP’s theory is that because Matusek tried this case as an unlimited civil case and recovered a judgment that could have been rendered in a limited civil case, section 1033, subdivision (a) applies and the trial court erroneously ignored that statute. The dismissal of RBP’s appeal because it is a suspended corporation, however, means that RBP cannot litigate this claim in this court and bars RBP from raising this claim of error on appeal.
4. Defendants Cannot Claim Attorney’s Fees Under Civil Code § 1717, Because Benn and RBP Were Not Parties to the AFTRA Contract and Its Indemnification Clause Did Not Cover Matusek’s Action Against Defendants
Benn and RBP claim they are entitled to recover contractual attorney’s fees pursuant to Civil Code section 1717.
Defendants rely on AFTRA agreements and the AFTRA Infomercial Term Agreement signed by Richard Murad. The AFTRA Infomercial Term Agreement contained an indemnification clause, stating: “In the event any legal action in the courts or before Administrative bodies results by reason of, or as a result of, any material or action of a performer included in the infomercial in the scope and course of his/her employment under this Contract, under the direction and control of Producer, Producer shall at all times indemnify and save the performer harmless from and against all liability, loss, damages and costs, including reasonable counsel fees, which the performer may for any cause at any time sustain or incur by reason of such performance. In the event legal action, in the courts or administratively, is taken against the performer, either jointly with the Producer or alone, the Producer shall at his/her own cost and expense and without undue delay provide the defense of the performer in all such litigations.”
The AFTRA Infomercial Term Agreement identified Murad, Inc. as Producer. The signature page also identified the Producer as Murad, Inc. and the authorized signature of the company officer was Richard Murad, Vice-President. Neither RBP nor Benn was a party to this contract.
RBP’s responses to Matusek’s requests for admissions additionally denied that RBP was a producer of the Murad Acne Complex infomercial featuring Matusek, and admitted that RBP did not enter into any written AFTRA agreements for that infomercial.
Moreover, the indemnification clause binds the Producer to indemnify the performer against liability, loss, damages, and costs, including reasonable counsel fees, which the performer may incur by reason of the employment under the contract, and to provide the defense of the performer if legal action is taken against the performer. In this action the performer, Matusek, was the plaintiff; legal action was not taken against Matusek by a third party because of her performance. Thus the indemnification clause does not apply to this dispute, and Civil Code section 1717 does not apply to the indemnification clause. “[C]ontractual third party claims indemnity clauses are not made reciprocal under Civil Code section 1717, because they do not provide for an award of attorney fees incurred in actions to enforce the contract.” (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 962-963.) RBP and Benn could not claim attorney’s fees pursuant to Civil Code section 1717, because the AFTRA indemnification clause does not cover an action to enforce the contract.
“[A]ttorney fees can only be awarded when the lawsuit (1) involves a claim covered by a contractual attorney fee clause [citation] and (2) is between the parties to that contract [citation].” (Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 544-545.) Thus Benn and RBP cannot claim attorney’s fees pursuant to this clause.
5. The Attorney Fee Award to Benn and RBP Was Not an Abuse of Discretion
Benn and RBP claim that the award of attorney’s fees pursuant to Civil Code section 3344 was arbitrarily too low. We conclude that the trial court did not err by rejecting the Benn defendants’ request for attorney’s fees incurred in defending against the first four of Matusek’s causes of action. We also find no abuse of discretion in the trial court’s determination of the amount of the attorney fee award to the Benn defendants for defense against the fifth cause of action for violation of Civil Code section 3344.
a. Because Benn and RBP Were Not Prevailing Parties in the First Four of Matusek’s Causes of Action, the Trial Court’s Rejection of Their Request for Attorney’s Fees Was Not an Abuse of Discretion
Plaintiff’s fifth cause of action alleged a violation of Civil Code section 3344 arising from defendants’ use of Matusek’s name and likeness to advertise, sell, and solicit purchases of Murad products without Matusek’s consent. Matusek I reversed the judgment and instructed the trial court to enter a new and different judgment, inter alia, in favor of individual defendant Rodney Benn on Matusek’s third amended complaint and in favor of Matusek and against RBP. Matusek’s fifth cause of action was for violation of Civil Code section 3344, subdivision (a), which contains an attorney fee provision: “The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.” On June 16, 2004, Benn and RBP moved for statutory attorney’s fees of $144,720 as prevailing parties on Matusek’s fifth cause of action pursuant to Civil Code section 3344. The motion argued that the trial court should not apportion the attorney fee award because of other causes of action in which no statute authorized an attorney fee award to the prevailing party. Defendants argued that Matusek’s causes of action involved common facts and issues, which made it inappropriate to apportion attorney’s fees. The trial court awarded Benn and RBP attorney’s fees and costs of $4,536 each, for a total of $9,072 as prevailing parties in Matusek’s fifth cause of action.
On appeal, defendants argue based on Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124. Reynolds states that when a cause of action based on a contract providing for attorney’s fees is joined with other causes of action not based on that contract, the prevailing party may recover attorney’s fees under Civil Code section 1717 only incurred on that contract action. “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, at p. 129.) However, apportionment need not occur when the same issue is litigated in a cause of action in which fees are proper and also in a cause of action in which fees are not allowed. (Id. at pp. 129-130.)
Where the same claims and damages are asserted in other causes of action, it is not an abuse of discretion to refuse to apportion recoverable fees attributable to a claim for which an attorney’s fee award is proper from fees attributable to claims for which an attorney’s fees award is not proper. (Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 747.)
Benn and RBP argue that the issue of the unauthorized use of Matusek’s name and likeness permeated the entire case, and therefore the trial court’s apportionment of the Benn defendants’ claim for statutory attorney’s fees was an abuse of discretion. Benn and RBP claim they were entitled to all their attorney’s fees incurred from the beginning of the case through the jury trial in the amount of $162,940.06, and that the trial court’s limitation of attorney’s fees to those incurred in defending the fifth cause of action was reversible error.
Defendants cite allegations of their unauthorized use of her likeness as an item of damages in the other four causes of actions in Matusek’s third amended complaint. The breach of contract cause of action alleged that as a result of defendants’ breaches of contract, Matusek sustained damages which included, inter alia, the unauthorized use of her likeness in unauthorized media and domestic broadcasts since April 1, 2002. The fraud (intentional misrepresentation) cause of action alleged that defendants used Matusek’s likeness in other media without her authorization or consent, and alleged that Matusek sustained damages of stress, strain, and aggravation associated with the unauthorized and uncompensated use of her likeness. The fraud (negligent misrepresentation) cause of action alleged that as a result of defendants’ false representations, plaintiff sustained damages which included, inter alia, the unauthorized use of her likeness in unauthorized media and domestic broadcasts since April 1, 2002. The cause of action for unjust enrichment alleged that defendants used Matusek’s likeness without her consent to sell Murad products through the infomercial, the internet, and unauthorized creation and use of an in-house “salon loop.”
As we have found, Benn and RBP could not claim attorney’s fees in the breach of contract cause of action. Benn and RBP do not allege any basis in statute, contract, or law for an award of attorney’s fees as costs pursuant to sections 1021, 1032, and 1033.5, subd. (a)(10) for the two fraud causes of action or for the unjust enrichment cause of action.
Moreover, except for the fifth cause of action for violation of Civil Code section 3344, the trial court ordered that Matusek should have judgment on her third amended complaint against RBP for $1,496. As the party with a net monetary recovery, Matusek became the prevailing party. Because RBP was not the prevailing party on those four causes of action, RBP could not claim attorney’s fees as costs pursuant to section 1032, subdivision (b). As to Benn personally, although judgment was entered for Benn on Matusek’s third amended complaint, the September 28, 2007, judgment pursuant to remittitur found Benn was the alter ego of RBP and was jointly and severally liable to Matusek on the judgment to the same extent as his alter ego RBP, and that Benn and RBP were united in interest and Matusek was the prevailing party in the action against those defendants within the meaning of section 1032, subdivision (a)(4). Given this finding it would have been improper to award attorney’s fees as costs to Benn on the first four causes of action. We find no abuse of discretion in the trial court’s rejection of the request by Benn and RBP for an award of attorney’s fees as costs on the first four causes of action.
b. The Attorney’s Fee Award Was Not an Abuse of Discretion
Benn and RBP also argue that the trial court abused its discretion by limiting the attorney’s fees awarded in defending the fifth cause of action to the period commencing with the filing of the third amended complaint (in which the fifth cause of action first appeared) to the date on which non-suit was granted on the fifth cause of action, and by reducing the amount of attorney’s fees requested by 90 percent.
The trial court’s limitation of the award to attorney’s fees incurred from the filing of Matusek’s third amended complaint—which alleged the fifth cause of action for the first time—to defendants’ obtaining of a non-suit corresponds to the determination of prevailing party. Benn and RBP were not prevailing parties on the other four causes of action and their attorney’s fees incurred in the defense of those causes of action before the filing of the third amended complaint and after the grant of non-suit as to the fifth cause of action should not be included in an attorney fee award. The motion for attorney’s fees by Benn and RBP sought $144,720.00 in attorney’s fees incurred from June 28, 2002, to July 9, 2004. The third amended complaint was filed on June 13, 2003, and the trial court granted non-suit on the fifth cause of action on April 27, 2004. There was no abuse of discretion in limiting the attorney fee award to fees incurred in the period in which defendants litigated the fifth cause of action.
With regard to the amount of attorney’s fees awarded to Benn and RBP for defense of the fifth cause of action, where 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 reasons when all of the circumstances before the court are considered. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 555.)
The parties seeking fees and costs bear the burden of establishing the entitlement to an award and of documenting the hours expended and hourly rates, and the court may require those parties to produce records sufficient to provide a basis for determining how much time was spent on particular claims. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) In this case the Benn defendants sought all of their attorney’s fees as costs, and thus made no attempt to identify or document how many hours were spent on defending against Matusek’s Civil Code section 3344 claim, the sole cause of action for which they were entitled to attorney’s fees, as distinguished from hours litigating the remainder of the case. The trial court has its own expertise in valuing legal services performed in a case and may make its own determination of the value of those services. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) Based on the pleadings, depositions, and other evidence of actual work performed by defense counsel, the trial court also has discretion to apportion fees and costs to be awarded pursuant to statutory authority. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.) We conclude that the trial court’s apportionment of fees, and its determination of the amount of fees, was within its discretion and we affirm that award.
6. The Benn Defendants Cannot Recover Statutory Attorney Fees Incurred in Matusek I or in This Appeal
Defendants claim that the trial court erroneously denied their request for attorney’s fees in Matusek I.
Where attorney fees are available pursuant to statute, they are available for services both at trial and on appeal. The trial court is authorized to award statutory attorney’s fees as part of costs on appeal even though the appellate court’s remittitur does not give this direction. (Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 263-264.) Section 1032, subdivision (b), however, authorizes an award of attorney’s fees as statutory costs only to a prevailing party. (See Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th 468, 472.) Moreover, as the right to recover costs is purely statutory, absent an authorizing statute no party can recover costs. (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 597.) Civil Code section 3344 provided the sole statutory basis for recovery of attorney fees as costs, and that formed the basis for the Benn defendants’ motion in the trial court to recover its attorney fees in Matusek I. In Matusek I this court expressly did not address the issue of whether the trial court erred by granting partial non-suit in favor of Benn and RBP. Therefore Benn and RBP were not prevailing parties in Matusek I as to Matusek’s Civil Code section 3344 cause of action, and the trial court properly denied those defendants’ application for statutory attorney’s fees in that appeal.
The Benn defendants’ motion in the trial court for attorney’s fees in Matusek I also relied on the first breach of contract action, but we have rejected this basis for awarding attorney’s fees, ante.
The Benn defendants also request attorney’s fees incurred as to the Civil Code section 3344 statutory cause of action in this appeal. We will deny that request.
DISPOSITION
Plaintiff Matusek’s motion to dismiss the appeal of defendant Rodney Benn Corporation is granted. Defendants’ request for attorney’s fees incurred in this appeal is denied. The judgment is otherwise affirmed. Costs on appeal are awarded to plaintiff Leeanne Matusek.
We concur: CROSKEY, Acting P. J., ALDRICH, J.
Benn and RBP, however, erroneously claim that all causes of action in the third amended complaint alleged the unauthorized use of Matusek’s name. Except for the fifth cause of action, no such allegations appear in the third amended complaint.