Opinion
A150027
05-29-2018
EUGENE SCHNEIDER, Plaintiff and Appellant, v. ERIC DEAM, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG14710757)
Attorney Eugene Schneider appeals the denial of a motion seeking approximately $42,000 in contractual attorney fees in a dispute with his former client, respondent Eric Deam. We affirm the order denying his request for attorney fees.
BACKGROUND
The convoluted history of this case is summarized in respondent's brief, and we presume the parties' familiarity with it. As relevant here, we note the following.
Schneider initiated this litigation in January 2014 by filing a complaint for the recovery of $1,613.80 in unpaid legal fees, in connection with his representation of Deam in a neighbor dispute. The same claim was already pending against Deam in a small claims court action Schneider had filed nearly two years earlier (No. RS-12621535).
The two retainer agreements attached to Schneider's complaint (dated 2008 and 2009) contained identical attorney fees provisions. Located within a section addressing the subject of Schneider's billing practices, they stated: "With respect to our fees and the costs for which you are responsible, our billing practices are as follows: [¶] . . . [¶] A service charge of 1 1/2 percent per month is added to any balance unpaid for more than one month. In the event of legal proceedings as to any account, the prevailing party is entitled to attorney's fees." (Italics added.)
Subsequently, in September 2014, Deam filed a 22-page cross-complaint praying for damages in excess of $815,000 dollars. He pled six causes of action: for malicious prosecution, abuse of process, rescission, fraud, breach of contract, and misrepresentation. After a demurrer was sustained, in part with leave to amend, he filed a 26-page amended cross-complaint alleging three causes of action: for fraud, rescission and breach of contract. The trial court subsequently sustained Schneider's demurrer to the cross-complaint without leave to amend and ordered Schneider dismissed from the action as a cross-defendant.
After dismissal of Deam's amended cross-complaint, Schneider filed a motion requesting $42,265.85 in legal fees pursuant to Civil Code section 1717 and the contractual fee agreement. He sought to recover fees in connection with Deam's pursuit of his cross-claims, commencing with the initial cross-complaint and up to and including the sustaining of the demurrer to the amended cross-complaint. The motion was opposed on numerous grounds, and denied after an unreported hearing for reasons not reflected in the record.
Although the record does not reflect that Schneider's complaint has been disposed of, we have jurisdiction over this appeal. The order dismissing Deam's cross-complaint was itself a final appealable judgment, because Schneider's complaint must be resolved as a limited civil action and so any resulting judgment will be appealable as a matter of right only to the appellate division of the superior court. (See Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1135-1136; Code Civ. Proc., § 904.2.) And because the cross-complaint's dismissal was a final judgment, the attorney fee ruling that followed is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). Were the attorney fee ruling non-appealable, we would exercise our discretion in any event to treat the notice of appeal as a petition for writ of mandamus; the appeal is fully briefed, neither party is urging us to dismiss the appeal as premature, and judicial efficiencies favor prompt disposition of the matter.
DISCUSSION
Before turning to the issues, we reiterate some fundamental principles governing our review. " '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.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) One aspect of an appellant's burden is to furnish, and appropriately discuss, pertinent legal authority. (See Cinema West, LLC v. Baker (2017) 13 Cal.App.5th 194, 218-219.) We are not required to address arguments that the appellant has not supported with pertinent legal authority and analysis. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 981-982; see also Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10 ["an appellant is required to not only cite to valid legal authority, but also explain how it applies in his case"].) Simply put, an appellate brief must contain a cogent legal argument, supported by appropriate authority. (See Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 150.)
In his opening brief, Schneider challenges the denial of his request for attorney fees on three grounds. He contends the ruling was wrong, first, because he was the prevailing party under Civil Code section 1717, arguing that he achieved greater relief in the action than his client did. This "prevailing party" argument also includes two subsidiary points (i.e., that he prevailed by having successfully vacated the results of a mandatory attorney fee arbitration that took place in the midst of these proceedings, and that the trial court has no discretion under Civil Code section 1717 to deny attorney fees to a prevailing party). Second, he maintains he is entitled to legal fees pursuant to Business and Professions Code section 6203, subdivision (c) which governs mandatory attorney fee arbitrations—a point that is forfeited because he did not raise this issue below (see In re Aaron B. (1996) 46 Cal.App.4th 843, 846), and is doubly forfeited because it is presented on appeal in a single conclusory sentence devoid of any analysis. (See Cinema West, LLC v. Baker, supra, 13 Cal.App.4th at pp. 218-219; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 130.) And third, he maintains that the amount of fees he requested was reasonable.
Schneider has failed to meet his burden of demonstrating he was entitled to an award of legal fees. His briefing leapfrogs over that question, and instead launches straight to a discussion of prevailing party status which puts the cart before the horse. Schneider has not addressed the scope of the attorney fees provision in the retainer agreements, much less demonstrated that it applies to this dispute (whether sounding in contract or in tort). Yet, as reflected by authority Schneider himself cites in his reply brief, Civil Code section 1717 does not apply unless there is an applicable attorney fee provision that authorizes the recovery of contractual attorney fees in the proceeding at hand. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 896-903 [affirming order denying attorney fees].) As stated by our Supreme Court, again in authority Schneider himself cites, "If a contractual attorney fee provision is phrased broadly enough . . . it may support an award of attorney fees to the prevailing party in an action alleging both contract and tort claims: '[P]arties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract.' " (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.) But Schneider has not explained, much less persuasively demonstrated, how an attorney fees provision that applies "[i]n the event of legal proceedings as to any account" concerning his law firm's billings ("our fees and the costs for which you are responsible") applies to any of the causes of action Deam asserted against him in either version of the cross-complaint, much less to all of the causes of action. The question is by no means clear (and, indeed, Deam opposed the motion below on the ground the fee clause is inapplicable). Schneider's failure to address this just assumes away, out of sight, a fundamental step in the analysis, and by doing so he necessarily fails to meet his burden on appeal of persuading us his motion should have been granted.
Finally, we also deny Deam's request for contractual attorney fees on appeal. In arguing the merits of this appeal, Deam has taken the position that Civil Code section 1717 does not apply because his cross-complaint was not an action on a contract; therefore it's difficult to see how we can credit his argument, for purposes of requesting an award of his own legal fees on appeal, that Civil Code section 1717 does apply. In any event, Deam's attorney fees request fails for the same reason that Schneider's appeal does: Deam hasn't shown us that the attorney fees provision applies either.
DISPOSITION
The order denying appellant's motion for attorney fees is affirmed. Respondent shall recover his statutory costs of appeal.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.