Opinion
H044958
04-15-2020
THANH-TAM T. PHAM, Plaintiff and Respondent, v. HIEU M. NGUYEN et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 113-CV-256810)
This is an appeal by defendants and appellants Hieu M. Nguyen and Be Saigon Plaza, LLC (BSP LLC) from a postjudgment order awarding attorney fees of $182,000. (Hereafter Nguyen and BSP LLC are sometimes collectively referred to as appellants.) In the underlying action, following a lengthy court trial, judgment was entered against appellants and in favor of plaintiff and respondent Thanh-Tam T. Pham (Pham) in the amount of $455,000. We affirmed the trial court's judgment on November 5, 2019. (Pham v. Nguyen (Nov. 5, 2019, H044041 [nonpub. opn.]) (Pham I).)
Pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a), we take judicial notice of the opinion in Pham I, supra, H044041. (See ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 73, fn. 3; see also Flatley v. Mauro (2006) 39 Cal.4th 299, 306, fn. 2 [judicial notice of court materials appropriate to " 'help complete the context of this case' "].)
After entry of judgment, Pham filed a motion for attorney fees, which was opposed by appellants. In an order filed July 25, 2017 (the order), the court granted the motion and awarded Pham attorney fees in the amount of $182,000. Appellants challenge the order on appeal. Finding no error, we will affirm.
I. APPELLANTS' NONCOMPLIANT BRIEF
Our consideration of the merits of this appeal is impaired by appellants' material noncompliance with the rules of appellate procedure. As discussed below, this noncompliance may be generally categorized as appellants' failure in their opening brief (1) to provide a summary of the procedural history and summary of facts of this case, and (2) to include proper citations to the record.
A. No Statement of Procedural History or Summary of Facts
The opening brief of appellants is not in compliance with the California Rules of Court. The brief does not include a requisite summary of the relevant procedural history of the case, including a plain statement of "the nature of the action, the relief sought in the trial court, and the judgment or order appealed from." (Cal Rules of Court, rule 8.204(a)(2)(A).) Although the opening brief has a section entitled "facts and procedures" (capitalization and emphasis omitted), there is no discussion of the procedural history of the case (e.g., summary of claims, defenses, trial, judgment, or postjudgment proceedings) with citations to the record. (See William Jefferson & Co., Inc. v. Orange County Assessment Appeals Bd. No. 2 (2014) 228 Cal.App.4th 1, 6, fn. 2 (William Jefferson & Co., Inc.) [finding "opening brief is 'seriously defective' because it fails to provide either a statement of facts or a summary of the relevant procedural history"].)
All further rule references are to the California Rules of Court.
In addition, an appellant is required in its opening brief to "[p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2)(C).) Although the "facts and procedures" (capitalization and emphasis omitted) section of appellants' brief includes an argumentative discussion of claimed facts with limited citations to the record, this does not satisfy the California Rules of Court of providing this court with " 'a summary of the significant facts limited to matters in the record.' " (William Jefferson & Co., Inc., supra, 228 Cal.App.4th at p.6, fn. 2, italics added; see Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166 [summary of facts in opening brief noncompliant because "recitation was not in summary style, was overly lengthy, and included irrelevant information and argument"].)
B. Failure to Include Proper Record Citations
Appellants' opening brief is replete with statements of specific factual matters they allege support their position. This includes four pages in an introductory section in which appellants set forth the purported facts of the underlying dispute. Other than a citation to four trial exhibits and one block page reference to the reporter's transcript, appellants provide no citations to the record supporting their claimed facts. The defective nature of the opening brief is exemplified further by appellants' discussion of the specifics of Pham's claim for attorney fees that is the subject of this appeal. Although it is apparent from the brief that there was a written motion for attorney fees containing specific information and contentions, and that there was written opposition by appellants, nowhere in the opening brief does appellant cite to the clerk's transcript to assist this court in locating those pleadings or the specific contentions made therein. Indeed, appellants' noncompliance is so profound that the opening brief contains neither a citation to the clerk's transcript referencing the court's order granting attorney fees, nor a description of any of the details of that order.
The opening brief includes citations to the reporter's transcript of the hearing on the attorney fees motion. This is unsatisfactory, as the sources of the evidence in support of, and in opposition to, the motion for attorney fees are the written motion and opposition, respectively. (See People v. Richardson (2008) 43 Cal.4th 959, 1004 [statements and arguments of counsel are not evidence].)
Appellants' failure to include citations to the record in their appellate brief constitutes a violation of rule 8.204(a)(1)(C), which requires that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 406-407; see also Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451 (Yeboah) [factual statements in briefs "not supported by references to the record may be disregarded" by the reviewing court].)
" 'We are a busy court which "cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when his [or her] brief makes no reference to the pages where the evidence on the point can be found in the record." ' [Citations.]" (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.) We will therefore disregard appellants' factual contentions purporting to represent the evidence adduced below for which they have failed to provide citations to the record. (Yeboah, supra, 128 Cal.App.4th at p. 451.)
II. PROCEDURAL BACKGROUND
Portions of the procedural background presented here are taken from our discussion in Pham I, supra, H044041.
Our understanding of the procedural history of this case is limited, due to appellants' failure in their noncompliant opening brief to provide such history, and their failure to cite to the clerk's transcript concerning the postjudgment proceedings. Based upon what is available before us, the relevant procedural history follows.
Pham filed the instant lawsuit against appellants on April 28, 2014. In her first amended complaint (complaint), Pham alleged six causes of action: (1) breach of contract, the Mutual Investment Purchase Agreement (MIPA); (2) breach of contract, the Agent Authorization Agreement (AAA); (3) negligent misrepresentation; (4) intentional misrepresentation; (5) fraud; and (6) rescission of contract, the MIPA.
After a six-day court trial in the fall of 2015, and after submission of posttrial briefs, the court filed its tentative decision on April 21, 2016. The court thereafter ordered Pham to elect the remedy or either damages or rescission with respect to her claims that appellants breached the MIPA and the AAA. Pham elected to recover monetary damages. On August 18, 2016, the court filed the judgment in favor of Pham, finding that (1) Pham was entitled to recover $300,000 on the first cause of action for breach of contract (the MIPA); (2) Pham was entitled to recover $155,000 on the second cause of action for breach of contract (the AAA); (3) Pham would take nothing on the third, fourth, and fifth causes of action; (4) Pham had elected to forgo rescission under the sixth cause of action; and (5) Pham was entitled as the prevailing party to attorney fees and costs and could seek an award of interest under Civil Code section 3287, subdivisions (a) and (b).
On September 6, 2016, Pham filed a memorandum of costs in which she claimed statutory costs totaling $5,252.95, plus attorney fees "VIA MOTION." In October 2016, Pham filed a motion for attorney fees, including a memorandum of points and authorities and a supporting declaration. Appellants filed opposition to the motion. Pham thereafter filed a second motion for attorney fees in April 2017. Appellants opposed that motion also.
Appellants failed in their briefing to explain why Pham filed two separate attorney fee motions that were opposed by appellants; indeed, they failed to even identify either of the two motions themselves. It is apparent from the record that after Pham filed her first motion, the court conducted two hearings in which it required counsel to meet and confer to determine whether they could resolve their differences as to Pham's request for attorney fees, and her request for costs and interest; this order included a deadline for the filing of separate motions by the parties (i.e., a motion for attorney fees by Pham, and appellants' opposition to Pham's memorandum of costs) in the event the parties were unable to reach agreement. Because the parties did not resolve their disputes, Pham filed her second motion for attorney fees, and appellants simultaneously filed their motion challenging Pham's memorandum of costs. We therefore treat Pham's second motion for attorney fees and appellants' opposition to that motion as the operative pleadings here.
After hearing argument on June 22, 2017, the court filed its order on July 25, 2017. As discussed in greater detail, post, the court concluded that Pham was entitled to recover her attorney fees incurred in connection with the first and second causes of action for breach of the MIPA and breach of the AAA, respectively. The court concluded further that the attorney fees awardable were based upon the contingent fee agreement between Pham and her attorney under which 40 percent of the net recovery in the litigation would be due if the case proceeded to trial. Therefore, the court concluded, Pham was entitled to recover from appellants $182,000 in attorney fees.
Appellants filed a timely notice of appeal from the order awarding attorney fees.
III. DISCUSSION
A. Standard of Review
The determination of the appropriate amount of attorney fees to be awarded is within the discretion of the trial court. (Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522.) "The trial judge is in the best position to evaluate the services rendered by an attorney in his [or her] courtroom; his [or her] judgment will not be disturbed on review unless it is clearly wrong. [Citation.]" (Ibid.)
B. No Error in Award of Attorney Fees
The arguments in appellants' opening brief are difficult to follow. They are largely a recasting, and in many instances, a verbatim repetition, of the arguments made in her opposition to the motion below. (See In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408 ["Appellate work is most assuredly not the recycling of trial level points and authorities."].) As we understand them, appellants' arguments are as follows: (1) because Pham had a contingency fee agreement under which 40 percent of any recovery she received at trial would be paid to her attorney, the court erred in awarding fees over and above the amount of her damages recovery, i.e., any attorney fee award should be credited against the total judgment of $455,000; (2) the court erred in awarding attorney fees based upon Pham's recovery under the AAA, because that agreement contained no provision calling for an award of attorney fees to the prevailing party in the event of litigation; (3) the hours spent by Pham's counsel as claimed in the motion were excessive; (4) Pham's evidentiary showing in support of her fee request was deficient; and (5) any action on the attorney fee motion should be stayed, pending the resolution of the appeal of the underlying judgment.
We have identified these arguments from the "argument" (capitalization omitted) section of appellants' opening brief. In an earlier section of that brief entitled "facts and procedures" (capitalization and emphasis omitted), appellants assert undeveloped arguments without citation to supporting legal authority that are largely duplicative of contentions made in the argument section of the brief. To the extent any unsupported arguments in the earlier section of the brief are not also contained in the "argument" section, we will disregard them. (See Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 377, fn. 3 [appellate court "may disregard assertions or contentions not raised in a properly headed argument"].)
We address these claims of error below, concluding that the trial court did not abuse its discretion and that the order awarding attorney fees should be affirmed.
1. Crediting of Attorney Fee Award Against Recovery
As recited in the order, the MIPA contained a provision calling for the recovery of attorney fees in actions arising out of the agreement. The MIPA provided in part that " 'in the event that any action, suit or proceeding is instituted concerning or arising out of this Agreement or any transaction contemplated hereunder, the prevailing party shall recover all of such party's costs and attorney fees incurred in each such action, suit or proceeding.' " The court below concluded that the measure of attorney fees awardable to Pham as the prevailing party in the litigation was her contingent fee agreement with her attorney under which she was required to pay 40 percent of the net recovery if the case proceeded to trial. The court concluded that Pham was thus entitled to recover attorney fees from appellants in the amount of $182,000. The trial court further rejected appellants' contention that, because Pham was obligated under her contingency agreement to pay her attorney 40 percent of the damages recovered, the attorney fees awarded should be inclusive of the damages. It held that there was "no basis to support [appellants'] argument that [Pham] must pay the attorney fees from the sums recovered on her [f]irst and [s]econd [c]auses of [a]ction."
Appellants, in one paragraph, argue that the attorney fees awarded in the case should be paid from the damages award, effectively netting Pham $273,000. After providing a short discussion of the nature of contingent fee agreements, appellants simply state—and repeat the statement—that the attorney fees awarded to Pham as the prevailing party should be paid from the damage award; appellants offer nothing in support of their position in their opening brief. There is no development of this argument. Nor is there any legal authority cited by appellants supporting it. The appellate court has no obligation to "develop the appellants' arguments for them." (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) Where a party makes an argument in an appellate brief in perfunctory fashion, the appellate court will deem that argument abandoned. (Nisei Farmers League v. Labor & Workforce Development Agency (2019) 30 Cal.App.5th 997, 1018 (Nisei Farmers).) Further, appellants' failure to cite any legal authority in support of its position causes us to "treat the issue as abandoned" on this basis as well. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).)
Appellants' argument in their opening brief is, with minor nonsubstantive changes, a verbatim recitation of its written opposition below. (See In re Marriage of Shaban, supra, 88 Cal.App.4th at p. 408 [criticizing practice on appeal of "recycling of trial level points and authorities"].)
In any event, appellants' claim has no substantive merit. Were we to conclude that Pham may not recover attorney fees beyond the damages awarded to her, thereby giving her a net award of only $273,000, this would result in (1) rendering nugatory the attorney fee clause in the MIPA; and (2) needlessly placing litigants suing on a contract containing an attorney fee provision in different classes, depending on whether the litigant has an agreement with his or her attorney that is on an hourly or contingency basis. As the trial court correctly found, there is no legal or reasoned basis to conclude that Pham may not recover attorney fees from appellants under the MIPA beyond the damage award in the underlying judgment.
2. Claimed Error in Attorney Fee Award under the AAA
The trial court concluded that because the MIPA contained a provision entitling the prevailing party in an action " 'concerning or arising out of this Agreement or any transaction contemplated hereunder' " to recover its attorney fees, and "because the MIPA and the [AAA] either arose 'out of this Agreement' or were a 'transaction contemplated' under that agreement, [Pham] is entitled to recover attorney fees in connection with her [f]irst and [s]econd [c]auses of [a]ction." Appellants argue that because attorney fees were sought by Pham only under the MIPA, which included an attorney fee provision in the event of litigation under it, and there was no attorney fee provision under the AAA, attorney fees were not awardable under the AAA. We reject appellants' position.
Appellants' contention is the undeveloped assertion that attorney fees were not recoverable under the AAA because that agreement contained no attorney fee provision. We deem this perfunctory argument abandoned. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018.) Additionally, the argument is abandoned because appellants have cited no legal authority to support it. (Benach, supra, 149 Cal.App.4th at p. 852.)
Even were we to consider the merits of appellants' abandoned argument, we would reject it. The MIPA included a broadly-worded attorney fee clause which provided that the prevailing party would be entitled to recover "all . . . costs and attorney fees incurred" "in the event that any action, suit or proceeding is instituted concerning or arising out of this Agreement or any transaction contemplated hereunder." (Italics added.) The court found that the AAA either arose out of the (MIPA) agreement or it was a transaction contemplated by that agreement. The trial court, having presided over a six-day trial that resulted in a judgment in Pham's favor, was uniquely situated to determine whether, based upon the evidence presented, the AAA was an agreement that arose out of the MIPA or was part of a transaction contemplated by it. For appellants' part, they offer no argument, and cite to no evidence in the record, to negate these findings. " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics.) As an appellate court, we "must infer the trial court . . . made every factual finding necessary to support its decision." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 61.)
Pham's counsel references and purports to quote from portions of the trial court's findings of fact issued prior to entry of judgment to support Pham's assertion that the court reasonably concluded that the MIPA and the management work Pham agreed to perform under the AAA were intertwined. Pham does not cite to the appellate record to support this claim as required by rule 8.204(a)(1)(C). No such findings were part of the appellate record herein. Moreover, we are aware, as we stated in Pham I, that the trial court issued a tentative decision after trial that ultimately became its statement of decision as reflected in the judgment. (Pham I, supra, H044041 [pp. 2-3].) That statement of decision was also not included as part of the appellate record in the prior appeal. (Ibid.)
There is no support for appellants' contention here that the attorney fees awarded to Pham should effectively be apportioned between the claims under the MIPA and under the AAA, i.e., that Pham is entitled to recover attorney fees only for the claims under the MIPA. As has been explained: " ' " Attorney'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." [Citations.] "Attorney[']s fees need not be apportioned between distinct causes of action where plaintiff's various claims involve a common core of facts or are based on related legal theories." [Citation.] Apportionment is not required when the issues in the fee and nonfee claims are so inextricably intertwined that it would be impractical or impossible to separate the attorney's time into compensable and noncompensable units.' [Citation.]" (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 417 (Harman).) The trial court specifically rejected the contention that attorney fees should be apportioned. The court held that no apportionment was appropriate here, citing the principles of Harman, that "[a]ttorney fees need not be apportioned between distinct causes of action where the plaintiff's various claims involve a common core of facts or are based on related legal theories."
3. Assertion of Excessive Hours Claimed
Appellants contend that the attorney fees claimed by Pham's counsel were excessive. They assert, without elaboration, that (1) Pham's attorney admitted there were fees sought that were "related to a separate and distinct case"; (2) "specific details about hours incurred for duties performed [were] not . . . provided with [the] motion"; and (3) Pham's counsel admitted he had included "fees for future work that has not been incurred or taken place." We reject these arguments.
First, appellants have failed to provide citations to the record in support of their assertions of fact, and their position is therefore deemed forfeited. (In re S.C., supra, 138 Cal.App.4th at pp. 406-407.) Second, appellants' argument is deemed abandoned because it is asserted in a perfunctory manner (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018), and is unsupported by legal authority (Benach, supra, 149 Cal.App.4th at p. 852). Moreover, since Pham's claim for attorney fees was based upon the factual assertion that she was obligated under her contingent fee agreement with her attorney to pay him 40 percent of her damages recovery, or $182,000, issues concerning the precise number of hours expended by Pham's counsel were not relevant to the fee award.
4. Claimed Deficient Evidentiary Showing
Appellants argue that Pham "failed to provide substantial supporting evidence for the fees claims and for this reason the motion could be denied [sic], but most certainly should be reduced." This perfunctory argument is abandoned. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018.) In any event, it lacks merit.
Appellants' argument in their opening brief is a verbatim recitation (changing "Plaintiff" to "Respondent") of its written opposition below.
Appellants' contention ignores what occurred below during the three hearings in which the court addressed Pham's motion for attorney fees. At the first hearing, after some discussion between counsel and the court off the record, the court confirmed with Pham's counsel that he was electing to seek recovery of fees based upon his contingency fee agreement with his client of 40 percent of her recovery at trial. Because—the court recited—Pham was not seeking fees based upon an hourly rate multiplied by the number of hours worked, it concluded that it did not see a need for Pham's counsel to present detailed billing records for all time he expended on the case. The court left open the possibility that if, after reviewing the matter—including assessing the argument of Pham's counsel that the contingent fee sought was a reasonable fee—it needed detailed billing records, it would give the parties the opportunity to present supplemental submissions.
At the third hearing on June 22, 2017, counsel for Pham addressed appellants' argument that the motion was deficient because there was no showing of the precise number of hours Pham's attorney devoted to the litigation. Counsel for Pham argued, "on at least two occasions, the court informed us that we were going to operate on the basis of assuming it was percentage." The court responded that this was a correct statement, noting that the court had advised Pham's counsel previously that he did not need to submit proof of the number of hours spent on the case, assuming the court ultimately made a finding that the measure of Pham's recovery in the motion was 40 percent of the recovery as provided in Pham's contingent fee agreement with her attorney. Appellants' counsel in his argument did not reassert his contention in his written opposition that the motion was inadequate because it did not include a detailed presentation of the attorney hours spent in the litigation.
The basis for Pham's request for attorney fees was her contingent fee arrangement with her attorney, and the court properly concluded that, based upon this agreement, 40 percent of Pham's recovery was the appropriate measure of attorney fees awardable to Pham as the prevailing party. Because the MIPA contained a broad provision stating that "the prevailing party shall recover all of such party's costs and attorney fees" (italics added), the court did not err by accepting Pham's request for attorney fees without the submission of detailed billing records.
5. Request for Stay
Appellants argue that it would be appropriate for this court to stay this appeal until the completion of the appeal of the underlying judgment. Appellants cite no legal authority to support this position, and it is therefore deemed abandoned. (See In re Marriage of Abargil (2003) 106 Cal.App.4th 1294, 1300-1301.) The argument in any event is moot, since the appeal of the underlying judgment was disposed of by the filing of our opinion in Pham I, supra, H044041, on November 5, 2019.
IV. DISPOSITION
The order of July 25, 2017, in which the court, inter alia, awarded attorney fees to Pham in the amount of $182,000, is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
GROVER, J.