Opinion
D036167.
7-8-2003
WHISPERING RIDGE HOMEOWNERS ASSOCIATION, Plaintiff and Respondent, v. ABDUL WAHEED CHAUDRY, Defendant and Appellant.
In accord with an order of the Supreme Court under Government Code section 68081, we rehear defendant Abdul Waheed Chaudrys appeal of the portion of a judgment after court trial awarding attorney fees to plaintiff Whispering Ridge Homeowners Association (Association) as the prevailing party in Associations lawsuit to enforce its recorded declaration of covenants, conditions and restrictions (CC&Rs). (Civ. Code, § 1354.) Upon rehearing the matter, we conclude that on this record Chaudry has not demonstrated any reversible judicial error. Hence, we do not disturb the portion of the judgment awarding Association attorney fees.
Government Code section 68081 provides that before a court of appeal renders a decision "based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing."
All further statutory references are to the Civil Code unless otherwise specified.
Section 1354, subdivision (a) provides: "The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both."
Section 1354, subdivision (f) provides: "In any action specified in subdivision (a) to enforce the governing documents, the prevailing party shall be awarded reasonable attorneys fees and costs. Upon motion by any party for attorneys fees and costs to be awarded to the prevailing party in these actions, the court, in determining the amount of the award, may consider a partys refusal to participate in alternative dispute resolution prior to the filing of the action."
I
INTRODUCTION
We state the facts in the light most favorable to Association as the party prevailing in the superior court. (Huntington Landmark Adult Community Assn. v. Ross (1989) 213 Cal. App. 3d 1012, 1018, 261 Cal. Rptr. 875.)
As coowner with his brother of a lot in the common interest development managed by Association, Chaudry refused to landscape his yard as required by Associations controlling CC&Rs and related rules. Association sent Chaudry various letters stating his failure to landscape his lot constituted a violation of the CC&Rs. In April 1998, Chaudrys brother was personally served with a request for alternative dispute resolution (ADR) involving the matters later at issue in this lawsuit, but Chaudrys brother never responded to such request. (§ 1354, subd. (b).)
At article XVI, section 10, Associations CC&Rs contained an attorney fees clause providing: "In the event of any controversy or claim respecting this Declaration, or in connection with the enforcement of this Declaration, the prevailing party shall be entitled, in addition to all expenses, costs and damages, to reasonable attorneys fees, whether or not such controversy or claim is litigated and prosecuted to judgment."
Although Associations right to attorney fees is not dependent on section 1717, a "provision for attorney fees in a declaration of restrictions constituting a binding equitable servitude is a `contract within the meaning" of that statute. (Mackinder v. OSCA Development Co. (1984) 151 Cal. App. 3d 728, 738, 198 Cal. Rptr. 864.)
In June 1998 Association filed this lawsuit against Chaudry based upon his refusal to landscape his yard. Associations complaint was accompanied by a certificate of service of Associations April 1998 ADR request, including a statement that Chaudrys brother never responded to the request. Association pursued claims for nuisance, injunction and declaratory relief.
Chaudrys brother was also a defendant in the superior court but is not party to this appeal.
During the course of this lawsuit, Chaudry was generally unwilling to cooperate with Associations counsel. Chaudry refused to stipulate that he owned a home in the development managed by Association. Chaudry also refused to stipulate to the authenticity of Associations CC&Rs. Further, throughout the litigation, Association made several offers to settle, including an offer to waive more than $ 7,000 in attorney fees if Chaudry would plant grass on his lot.
In July 1999, after a court trial on the merits of this lawsuit, a judgment was entered favoring Association on all causes of action in its complaint (the underlying judgment). The underlying judgment required Chaudry to comply with Associations governing documents and landscape his lot. The underlying judgment also stated that under section 1354 and Associations governing documents, the court found Association to be the prevailing party and ordered Chaudry "to pay reasonable attorneys fees and costs pursuant to Noticed Motion." Chaudry appealed the underlying judgment.
Consistent with the underlying judgment, Association proceeded to file a memorandum of costs and, over Chaudrys opposition, was awarded costs of $ 884.04. Also consistent with the underlying judgment, Association moved for attorney fees. In May 2000, after protracted litigation involving ex parte hearings, continuances and Chaudrys challenges to three judges, Judge Murphy held a three-hour hearing on Associations request for attorney fees. Based upon that hearing, in June 2000 Judge Murphy entered a subsequent judgment (June 2000 judgment) that included an award of $ 22,473.22 attorney fees and $ 884.04 costs to Association as the prevailing party under section 1354 and Associations governing documents. Chaudry filed this appeal of the June 2000 judgment.
Contrary to Chaudrys suggestion, the issue of costs was properly before the trial court.
At the hearing on Associations attorney fees motion, Chaudry repeatedly characterized Associations "whole case" as "fabrication."
In September 2001, on Chaudrys appeal of the underlying judgment, we reversed the judgment with respect to Associations nuisance claim but affirmed the remainder of the judgment. (Whispering Ridge Homeowners Association v. Chaudry (Sep. 25, 2001, D034624 [nonpub. opn.]) (Whispering Ridge).) In doing so, we rejected Chaudrys claims of error involving discovery disputes; irregularities by Association with respect to its internal "pre-suit" procedures; Chaudrys equitable defenses of waiver, laches and estoppel; and Chaudrys limitations defense. (Ibid.) We also awarded attorney fees on the appeal of the underlying judgment to Association as the prevailing party under section 1717, section 1354, subdivision (f), and the attorney fees clause of the CC&Rs. (Whispering Ridge, supra.)
In October 2002, in a now-vacated decision (October 2002 decision), we affirmed the portion of the June 2000 judgment awarding attorney fees to Association. In January 2003, the Supreme Court granted Chaudrys petition for review and transferred the cause with directions that we vacate our October 2002 decision and rehear the matter pursuant to Government Code section 68081. In accord with the Supreme Courts order, we vacated our October 2002 decision and invited the parties to submit supplemental briefing on the question whether the doctrines of res judicata, collateral estoppel or law of the case precluded Chaudry from raising issues that were determined, or could have been determined, in the related appeal on the merits of the underlying judgment in Whispering Ridge, supra, D034624. We also granted Chaudrys request to include in his supplemental briefing the issue whether the attorney fees award improperly included the amount of $ 1,900 previously sought unsuccessfully by Association as discovery sanctions. We denied Chaudrys request to include in his supplemental briefing the issue of witness credibility. After filing supplemental briefing, the parties again presented oral argument to this court.
In ordering a rehearing under Government Code section 68081, the Supreme Courts order did not specify the issue forming the basis for our October 2002 decision that was not proposed or briefed by any party. However, Chaudrys petition for review focused on the issues of res judicata, collateral estoppel and law of the case.
We denied Chaudrys request for further briefing on the issue of witness credibility because that issue had been addressed at length in Chaudrys original briefs. Indeed, the major thrust of Chaudrys original briefs was that Associations counsel lied on numerous occasions during this litigation so as to warrant application of the doctrine of unclean hands. As discussed ante, in adjudicating Associations attorney fees motion, the trial court heard, considered and properly rejected those claims of attorney misconduct.
We note that Chaudrys original opening brief asserted his "primary contention on the fee issue" was that Associations counsel "had engaged in a pattern of materially misleading conduct in the attainment of the [underlying] judgment upon which an award of fees was sought"; and such behavior "constituted inequitable conduct for purposes of a defense to the underlying claim and the motion for an award of fees."
Although not expressly using the terms "res judicata," "collateral estoppel" or "law of the case," Associations original respondents brief asserted that (1) the attorney fee hearing occurred after entry of the underlying judgment that held Association was the prevailing party entitled to attorney fees upon noticed motion; (2) "this court has already considered the merits of the underlying litigation, and affirmed the judgment"; and (3) Chaudrys appeal "simply reargues the merits of the underlying judgment." Associations brief also asserted that at the attorney fee hearing (1) most of Chaudrys arguments opposing Associations fee request pertained to the "propriety of the trial"; (2) the superior court properly disregarded Chaudrys arguments about the underlying judgment; and (3) the judge correctly told Chaudry that an attack on the underlying judgment would be appropriate on appeal of that judgment but not during the attorney fee motion hearing. Further, Associations brief characterized as unsupported by any applicable authority Chaudrys argument that the court at the attorney fee hearing should have reconsidered the merits of the underlying judgment ordering him to install landscaping.
Finally, Chaudrys original reply brief asserted that at the attorney fee hearing (1) the record was "replete with instances of clearly misleading" factual allegations bearing on the "procedural and substantive legitimacy of the underlying action" and on Associations claim that the requested fees were necessary or reasonable; (2) the court had an "affirmative duty" to consider Chaudrys claims that Associations "pattern" of "misleading and unethical conduct" in "the attainment of the underlying judgment" "tainted" the judgment and any resulting attorney fee award; (3) the court reversibly erred by failing to consider and make factual determinations on Chaudrys claims based on the unclean hands doctrine that Associations counsels purportedly "misleading conduct in the attainment of the underlying judgment should operate as a bar to recovery of fees"; and (4) by not overcoming Chaudrys claims of legal error in the rendition of the judgment, Association failed to demonstrate its requested attorney fees were reasonably "incurred in an action which was lawfully and equitably pursued in the first instance."
II
DISCUSSION
Seeking reversal of the portion of the June 2000 judgment awarding attorney fees to Association as the prevailing party, Chaudry contends the superior court committed numerous errors involving his various assertions of purportedly material misconduct by Associations counsel. Chaudry also contends the amount of the attorney fees award was unreasonable. However, as we shall explain, Chaudry has not demonstrated any reversible judicial error with respect to Associations counsels asserted misconduct. Further, Chaudry has not shown the court abused its discretion with respect to the amount of the attorney fees award. Accordingly, we must uphold the June 2000 judgment.
A
No Reversible Judicial Error Involving Associations Counsels Asserted Misconduct
In contending the superior court erred in granting Associations motion for attorney fees, Chaudrys opening and supplemental briefs argue the court improperly failed to consider whether an attorney fees award should be precluded by Associations counsels purported materially misleading and unethical conduct in prosecuting the merits of its underlying case, including assertedly false and fraudulent statements that Association had complied with necessary prelawsuit procedures and statutory requirements designed to avoid the unnecessary expenditure of attorney fees. Chaudry also argues the trial court abused its discretion in "summarily" dismissing his "allegations as irrelevant to the question of an appropriate fee award, primarily on the ground that all such contentions were only relevant to an appeal from the underlying judgment." Chaudry concludes that in light of the various purported discrepancies and falsities uttered by Associations counsel "related to critical issues leading to the underlying judgment," the court should have applied the equitable doctrine of unclean hands as a defense to Association s underlying claims and to bar Association from receiving attorney fees "for a judgment obtained on fraudulent proof."
However, various claims made by Chaudry based on the theory that the unclean hands doctrine constituted a defense invalidating Associations underlying claims and precluding an attorney fees award are barred under the doctrine of law of the case as rejected in our opinion in Whispering Ridge, supra, D034624, affirming the underlying judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 (Griset); People v. Stanley (1995) 10 Cal.4th 764, 786-787, 897 P.2d 481 (Stanley); George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291 (Arakelian); People v. Shuey (1975) 13 Cal.3d 835, 842-844, 120 Cal. Rptr. 83, 533 P.2d 211 (Shuey).) Further, Chaudrys other claims based on Associations counsels purportedly unclean hands were heard, considered and expressly or implicitly rejected by the superior court. On this record Chaudry has not shown that judicial error, if any, involving those claims was reversible as prejudicial, to wit, that an outcome more favorable to Chaudry would likely have resulted absent any such error. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069, 232 Cal. Rptr. 528, 728 P.2d 1163 (Pool); People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 (Watson); In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 (McLaughlin).)
The existence of error alone is insufficient to overturn a judgment. (Pool, supra, 42 Cal.3d at p. 1069.) "A defendant must also show that the error was prejudicial (Code Civ. Proc., § 475) and resulted in a `miscarriage of justice (Cal. Const., art. VI, § 13). [Citation.] `"[A] `miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the `opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."" (Ibid.)
1
The Doctrine of Law of the Case
As noted, in accord with the Supreme Courts order under Government Code section 68081, we invited the parties to submit supplemental briefing on the question whether the doctrines of res judicata, collateral estoppel or law of the case precluded Chaudry from raising issues that were determined, or could have been determined, in the appeal on the merits of the underlying judgment in Whispering Ridge, supra, D034624. The parties have done so.
The doctrine of law of the case applies "to a decision of an appellate court in the same case." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 896, p. 930.) In particular, the "doctrine of law of the case applies to later proceedings in the same case." (Griset, supra, 25 Cal.4th at p. 701.) Further, the doctrine of law of the case "may be applied wherever there was a prior appeal in the same case." (9 Witkin, supra, § 909, p. 944.)
The related "doctrines of res judicata and collateral estoppel apply to later litigation to give conclusive effect to a former judgment or an issue determined in a former proceeding." (Griset, supra, 25 Cal.4th at pp. 701-702.)
""The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, . . . and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular."" (Stanley, supra, 10 Cal.4th at p. 786.) "The principal reason for the doctrine is judicial economy. `Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial rule were not adhered to in a later appellate proceeding." (Ibid.)
In essence, under the doctrine of law of the case, a "decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." (9 Witkin, Cal. Procedure, supra, Appeal, § 895, p. 928.) However, application of the doctrine of law of the case is "subject to the qualifications that `the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision." (Shuey, supra, 13 Cal.3d at p. 842.) An "unjust decision" may be deemed to result from application of the doctrine "where there has been a `manifest misapplication of existing principles resulting in substantial injustice [citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation]." (Stanley , supra, 10 Cal.4th at p. 787.) Hence, "the unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination." (Ibid .; accord, Arakelian, supra, 49 Cal.3d at p. 1291.)
In our opinion in Whispering Ridge, supra, D034624, affirming the underlying judgment favoring Association on the merits of its claims for injunctive and declaratory relief, we expressly concluded that for purposes of section 1717, section 1354, subdivision (f), and the attorney fees clause of the CC&Rs, Association was "the prevailing party on appeal because notwithstanding Chaudrys success on the nuisance issue, [Association] preserved the objective of the litigation—an order requiring him to landscape his yard." (Whispering Ridge , supra [under § 1717, subd. (b)(1) "the prevailing party is `the party who recovered a greater relief in the action on the contract"], citing Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574 [under § 1354, the prevailing party is the party who "prevailed on a practical level"] (Heather).) In doing so, we necessarily determined as a matter of law that Association had also been the prevailing party in the superior court. (Shuey, supra, 13 Cal.3d at pp. 843-844 ["While it is true that law of the case `does not extend to points of law which might have been but were not presented and determined on a prior appeal . . . it is nonetheless clear that in the present instance the relevant matters were disposed of in the first appeal"].)
The doctrine of law of the case, "as the name implies, is exclusively concerned with issues of law and not fact." (Shuey, supra, 13 Cal.3d. at p. 842). However, under these circumstances involving our affirming the underlying judgment in Whispering Ridge, supra, D034624, we may properly deem binding in this appeal the factual findings mentioned in Whispering Ridge. (Cf. Mueller v. J. C. Penney Co. (1985) 173 Cal. App. 3d 713, 719, 219 Cal. Rptr. 272 ["A significant factor in determining whether a judgment is sufficiently final for collateral estoppel purposes is whether the decision was in fact reviewed on appeal"; "To be final for purposes of collateral estoppel, the decision need only be immune, as a practical matter, to reversal or amendment"]; Muktarian v. Barmby (1968) 264 Cal. App. 2d 966, 968, 70 Cal. Rptr. 903 ["the law stated by an appellate court in a decision, necessary to that decision, becomes the law of the case on a retrial, but the rule does not apply conversely, that is, all findings not mentioned by the opinion are not thereby approved"].) Significantly, unlike the reversal in Muktarian, our decision in Whispering Ridge affirmed the portions of the underlying judgment entitling Association to attorney fees as the prevailing party.
Although acknowledging that the appeal at issue in Whispering Ridge, supra, D034624, arose from the "substantive equitable judgment" favoring Association while the "instant appeal relates to the awarding of attorney fees thereafter," Chaudrys supplemental opening brief asserts that no contention raised in this appeal is barred by the ruling in Whispering Ridge. Specifically, citing Arakelian, supra, 49 Cal.3d 1279, andRutledge v. Rutledge (1955) 134 Cal. App. 2d 689, 286 P.2d 429, Chaudry contends the doctrine of law of the case is inapplicable here because the evidence involved in his appeal of the attorney fees award was assertedly "substantially different in a material respect" from the evidence involved in his appeal of the underlying judgment in Whispering Ridge. However, although to establish the inapplicability of the doctrine of law of the case Chaudry was required to point out the "particulars" in which the evidence in this appeal differed materially from that in Whispering Ridge, Chaudry failed to do so. (Rutledge, at p. 694.) Instead, Chaudry has simply made vague and conclusory characterizations about the evidence. Chaudrys supplemental opening brief also contends that the issues involved in this appeal were not determined in Whispering Ridge since such issues assertedly arose out of new facts that did not exist or were not relevant at the time he appealed the underlying judgment. However, Chaudry has not precisely identified any new evidence or explained why any such evidence could not have been presented in the underlying trial on the merits. (Rutledge, at p. 694.)
Further, Chaudry has failed to establish exceptional circumstances sufficient to warrant departure from the doctrine of law of the case. More particularly, Chaudry has not shown a "manifest misapplication of the law resulting in `substantial injustice [citation] or an intervening change in the law." (Stanley, supra, 10 Cal.4th at p. 787.) Hence, our decision affirming the underlying judgment in Whispering Ridge, supra, D034624, must "stand as the law of the case." (Stanley, at p. 787.) Thus, under the doctrine of law of the case, Association is indisputably the prevailing party in this lawsuit for purposes of entitlement to recovery of attorney fees. (Ibid.; Shuey, supra, 13 Cal.3d at p. 842; 9 Witkin, Cal. Procedure, supra, Appeal, §§ 896, 899, 914, pp. 930, 934-935, 950-951.) Accordingly, Chaudry may not relitigate on this appeal the issue of Associations entitlement to attorney fees. Instead, on this appeal Chaudry may properly litigate only the amount of fees reasonably incurred by Association.
Since Chaudry has not demonstrated the presence of exceptional circumstances warranting departure from the law of the case doctrine, even if we were to make an independent determination on Associations entitlement to attorney fees as the prevailing party at trial, we would conclude the superior court acted within its discretion in ruling that Association was entitled to such fees. (Heather, supra, 21 Cal.App.4th at p. 1574.)
2
Chaudrys Specific Assertions of Associations Counsels Purported Misconduct
In any event, as we shall explain, Chaudrys contentions involving Associations counsels purported unclean hands and bearing on the issue of Associations entitlement to attorney fees are without merit. Specifically, Chaudry has made various contentions that the superior court should have denied Association attorney fees because of asserted instances of misconduct by Associations counsel. As detailed below, some of those claims have been heard, considered and properly expressly or implicitly rejected by the superior court. The remaining claims are barred by the law of the case.
(a)
Assertions Properly Rejected by Superior Court
The superior court heard, considered and expressly or implicitly rejected Chaudrys claims that Association should be denied attorney fees because of the following instances of misconduct by Associations counsel consisting of the making of assertedly false statements and purported subornation of perjury.
(1) In a declaration filed in connection with Chaudrys motion for new trial, Associations counsel assertedly characterized falsely Chaudrys trial testimony involving receipt of the April 1998 ADR request.
(2) In a declaration filed in connection with Associations "original" attorney fees motion in the superior court, Associations counsel made a statement about service of the April 1998 request for ADR that assertedly conflicted with a statement made by Associations counsel in the certificate of service of that request.
(3) In support of Associations "renewed" motion for attorney fees, Associations counsel filed a declaration containing assertedly false statements involving Chaudrys unwillingness to cooperate "in any regard" with Associations counsel that assertedly conflicted with statements in other declarations previously submitted by Associations counsel.
(4) In two declarations supporting Associations attorney fees motion and in testifying at the hearing on such motion, Associations counsel assertedly made false statements involving whether challenged language in the proposed interlocutory judgment had been taken "verbatim from the courts transcript." In particular, although Associations counsel assertedly indicated by letter dated and apparently served by mail on April 26, 1999, that the proposed interlocutory judgment was being forwarded for Chaudrys review, the court reporter apparently did not prepare and certify the trial transcript until May 14, 1999.
(5) Associations counsel assertedly suborned perjury by telling trial witness Benold he did not have to tell the truth and threatening Benold if he did not follow the position of Associations board in this controversy.
(6) Immediately before the underlying trial began, Associations counsel described the parties agreements involving production of witness lists and exhibits. In doing so, Associations counsel assertedly misled the court willfully by falsely stating Chaudry had failed to provide the required information, a misrepresentation that assertedly caused the court to issue a minute order essentially barring Chaudry from producing evidence at trial.
To the extent that Chaudrys claims about Associations counsels purported subornation of perjury with respect to trial witness Benold and purported misrepresentations to the superior court immediately before commencement of trial were intended to attack the underlying judgment, those claims could not properly be made at the attorney fees hearing. Instead, such claims could properly be raised by motion for new trial as Chaudry actually did in the new trial motion he brought and lost.
(7) Despite knowing that two earlier court rulings had denied assertedly Associations requests for attorney fees as discovery sanctions, Associations counsel assertedly made an "end run" around those denials "under the guise of a post judgment overall fee demand" by "fraudulently" seeking and being awarded more than $ 1,900 attorney fees assertedly for those "very fee sanctions."
The "burden is on the appellant in every case to show that the claimed error is prejudicial, i.e., that it has resulted in a miscarriage of justice. [Citation.] Injury . . . must appear affirmatively upon the courts examination of the entire record. `. . . Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a "miscarriage of justice."" (McLaughlin, supra, 82 Cal.App.4th at p. 337.) However, on this record Chaudry has not met his burden to demonstrate prejudicial judicial error involving Associations counsels assertedly false statements or purported subornation of perjury to warrant reversal of the attorney fees award. (Pool, supra, 42 Cal.3d at p. 1069; Watson, supra, 46 Cal.2d at p. 836; McLaughlin, at p. 337.) Further, as an appellate court, we generally may not reassess the credibility of witnesses or reweigh the evidence presented to the trial court. (Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 703 (Camarena).) "Decisions respecting the credibility of witnesses and the acceptance of or weight to be given their testimony, unless obviously false or inherently improbable, are not subject to review on appeal." (Cottle v. Gibbon (1962) 200 Cal. App. 2d 1, 6, 19 Cal. Rptr. 82 (Cottle).) Thus, to "warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions." (Estate of Moore (1956) 143 Cal. App. 2d 64, 72, 300 P.2d 110 (Moore).)
On this record Chaudry has not shown that any of Associations counsels assertedly false statements was either "obviously false" or "inherently improbable." (Cottle, supra, 200 Cal. App. 2d at p. 6.) Instead, Chaudry simply "brushes aside testimony" he characterizes as not credible. (Ibid.) Further, Chaudry has not made a sufficient showing to warrant our reassessing the credibility of statements by Associations counsel challenged for their assertedly contradictory contents. (Camarena , supra, 54 Cal.App.4th at p. 703; Cottle, supra, 200 Cal. App. 2d at p. 6; Moore, supra, 143 Cal. App. 2d at p. 72.) "It was within the province of the trial judge to consider the contradiction in such manner as he deemed proper; to reject the whole testimony as unworthy of belief or to accept that part thereof which he concluded represented the truth. [Citation.] Contradictions in the testimony of a witness do not require its total rejection." (Cottle, at pp. 6-7.) Moreover, devoid of any demonstrated substantial evidentiary support in the record is Chaudrys claim that Associations counsel engaged in fraud with respect to including in Associations request for attorney fees amounts assertedly representing denied discovery sanctions. Hence, Chaudry cannot show any reversible judicial error with respect to such purported fraud. (Pool , supra, 42 Cal.3d at p. 1069; Watson, supra, 46 Cal.2d at p. 836; McLaughlin, supra, 82 Cal.App.4th at p. 337.)
(b)
Assertions Precluded by Doctrine of Law of the Case
The remainder of Chaudrys claims that Association should be denied attorney fees because of its counsels asserted misconduct are barred by the doctrine of law of the case.
(1) Since Associations counsel submitted proof that Associations amended CC&Rs had been served on a "clearly described . . . recipient" assertedly not matching Chaudrys description, Association failed to comply with the "pre-suit procedural requirement" to serve those CC&Rs upon Chaudry.
(2) Since there was assertedly discrepancy involving dates on the proof submitted by Associations counsel that the final warning letter had been served, Association failed to comply with the "procedural prerequisites to suit" that required service of three noncompliance letters from Association.
(3) Associations asserted tampering with trial witness Benold purportedly affected Benolds testimony bearing on whether Association had abandoned its effort to compel Chaudry to landscape his property.
(4) In response to Chaudrys demand for production of documents, Associations counsel assertedly misrepresented the state of available discovery by initially claiming privilege and later asserting the demanded documents did not exist.
However, each of those claims is barred under the doctrine of law of the case as expressly rejected in our opinion on Chaudrys appeal of the underlying judgment in Whispering Ridge, supra, D034624. (Griset, supra, 25 Cal.4th at p. 701; Stanley, supra, 10 Cal.4th at pp. 786-787; Shuey, supra, 13 Cal.3d at pp. 842-844.) Specifically, in rejecting Chaudrys claim of defective service assertedly violating Associations "internal `pre-suit procedures," we stated the "court did not abuse its discretion in relying on the proof of service even though it did not accurately describe Chaudrys physical appearance." (Whispering Ridge , supra.) We also stated that Chaudry had "shown no prejudice from any procedural irregularity of the Association, and indeed, the record shows he had actual notice of the landscaping requirement." (Ibid.) Similarly, we concluded with respect to the three notices of violation that "Chaudry had shown no prejudice from any procedural irregularity of the Association, and indeed, the record shows he had actual notice of the landscaping requirement." (Ibid.) Further, the doctrine of law of the case precludes Chaudrys claim about Benolds abandonment testimony because we rejected Chaudrys claim of abandonment. Finally, we concluded that "Chaudry was not improperly denied discovery." (Ibid.)
Specifically, in Whispering Ridge, supra, D034624, in deeming unavailing "Chaudrys contention the court erred by rejecting his equitable defenses of waiver, laches and estoppel," we stated: "These doctrines present factual questions for the trial courts determination in light of all the circumstances, and its rulings will not be disturbed on appeal if they are supported by substantial evidence. [Citations.] [P] Chaudrys theories are that the Association unduly delayed in enforcing the CC&Rs—since his violation of the landscaping requirement began in 1986—and relinquished its enforcement rights by once treating the landscaping issue as `dead and forgiving his fines. However, he cites no authority for the proposition that the board members in place when the rules were amended in November 1996 were bound by any reluctance of former board members to pursue Chaudry. The evidence shows the new board members questioned whether it could be proven that Chaudry was served with a copy of the original rules, and thus they began efforts anew to obtain his compliance. [P] Moreover, Chaudry suffered no disadvantage by having his fines forgiven. He claimed he relied on the Associations conduct by relinquishing a claim against a landscaper he hired in 1993, who [performed] no work but absconded with a $ 10,000 deposit. The supposed reliance, however, was not reasonable. The courts findings against Chaudry on the estoppel, waiver and laches defenses are amply supported by the evidence."
(c)
Conclusion
In sum, since on this record Chaudry has not demonstrated any reversible judicial error involving his claims of Associations counsels purported materially misleading conduct, the superior courts determination that Association was entitled to attorney fees as the prevailing party at trial must be upheld. (Heather, supra, 21 Cal.App.4th at p. 1574.)
B
Attorney Fees Award Was Reasonable in Amount
The superior court acted within its discretion in awarding Association attorney fees in the amount of $ 22,437.22. (Del Cerro Mobile Estates v. Proffer (2001) 87 Cal.App.4th 943, 950 (Del Cerro).) As the Supreme Court has observed, the ""experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong."" (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) As we shall explain, without merit are Chaudrys assertions that Associations demands for attorney fees were inflated and thus not reasonable within the meaning of section 1354, subdivision (f).
1
First, Chaudry contends the attorney fees award improperly included $ 5,760 for fees incurred by Association between January 23, 1998, and December 4, 1998. However, on this record Chaudry has not shown error with respect to that component of the award.
In September 1999 Association filed its original attorney fees motion and sought $ 12,882.25 fees. In October 1999, after Chaudry had filed opposition and Association had submitted a reply, the court (Judge Robert J. ONeill) issued a tentative ruling that would have awarded Association $ 6,672.25 attorney fees. In doing so, Judge ONeill stated that since the issue of ADR had "apparently" not been raised with Chaudry until the case management conference on December 4, 1998, any failure of Chaudry to consent to ADR or other resolution sought by Association before that date should not be construed against Chaudry in determining the amount of attorney fees to be awarded to Association as the prevailing party.
In claiming error with respect to the $ 5,760 fees incurred by Association between January and December 1998, Chaudry relies on the finding in Judge ONeills October 1999 tentative telephonic ruling that Association had not raised the issue of ADR until December 1998. However, after Judge ONeill issued that tentative telephonic ruling, Chaudry responded by filing a declaration asserting Judge ONeill was biased against him. In November 1999 Judge ONeill recused himself and withdrew his tentative telephonic ruling. Hence, the finding in Judge ONeills tentative telephonic ruling involving the ADR issue was no longer operative when, after additional litigation, Judge Murphy eventually made his award that included the challenged $ 5,760 for fees incurred by Association between January and December 1998. Accordingly, on this record Chaudry has not demonstrated any judicial error with respect to inclusion of those fees in the ultimate award.
2
With respect to a matter included in his supplemental briefing with our permission, Chaudry contends the attorney fees award improperly included $ 1,900 for fees assertedly constituting discovery sanctions despite two earlier rulings denying such sanctions. However, on this record Chaudry has not demonstrated any judicial error with respect to those $ 1,900 attorney fees.
In our opinion affirming the underlying judgment in Whispering Ridge, supra, D034624, we noted with respect to the first disputed discovery matter: "On October 23, 1998, Chaudry served a request for the inspection of documents on the Association, and on November 17, 1998, it served him with its response. On January 14, 1999, Chaudry moved to compel a further response." Further, as the record shows, in opposing Chaudrys motion to compel a further response, Association sought sanctions of $ 750 representing its counsels time spent in researching, opposing and appearing at the hearing on such motion. On February 11, 1999, the superior court denied Chaudrys motion to compel a further response "as it was not filed and served within 50 days of service" of Associations response, "as required by Code of Civil Procedure Section 2031, subdivision (l )." The court also found that a letter written by Associations counsel on November 25, 1998, did not constitute a supplemental response extending the time for Chaudry to file the motion to compel a further response. However, the court denied Associations request for sanctions because (1) Associations opposition to Chaudrys motion was apparently not properly served, (2) it had not been determined whether there was substantial justification for Chaudrys motion since the court had denied Chaudrys motion without reaching its merits; and (3) the untimeliness of Chaudrys motion was "apparent from the moving papers and did not need to be raised by way of opposition." Moreover, the superior court noted that "even if sanctions were otherwise appropriate, the amount sought is clearly excessive in light of the brevity of the opposing papers."
Code of Civil Procedure section 2023, subdivision (b) provides in relevant part: "To the extent authorized by the section governing any particular discovery method or any other provision of this article, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process. [P] (1) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this article, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust."
Code of Civil Procedure section 2031, subdivision (l) provides in relevant part: "The party making the demand may move for an order compelling response to the inspection demand. The court shall impose a monetary sanction under Section 2023 against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to an inspection demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust."
On March 26, 1999, in the second discovery matter in dispute, the superior court denied Associations motion for an order establishing admissions and for $ 600 monetary sanctions representing attorney fees incurred in preparing for and appearing at the hearing on such motion. (Code Civ. Proc., § 2033, subd. (k).) In denying Associations request for an order establishing admissions, the court found Chaudry had served substantially complying responses on March 17, 1999. Further, the court denied Associations sanctions request since it was "unable to conclude that [Chaudrys] failure to timely serve responses was intentional and thus necessitated the filing of this motion in light of his statement that he never received the requests for admissions."
Code of Civil Procedure section 2033, subdivision (k) provides in relevant part: "The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Section 2023. The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with paragraph (1) of subdivision (f). It is mandatory that the court impose a monetary sanction under Section 2023 on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion."
Thus, in its declarations supporting its two unsuccessful requests for discovery sanctions, Association essentially asserted it had incurred a total of $ 1,350 in attorney fees with respect to the disputed discovery matters. In support of its successful motion as the prevailing party in this lawsuit, Association submitted billing statements effectively indicating it had incurred at least some $ 1,350 in attorney fees with respect to the two discovery disputes. The issue is whether the court properly included the $ 1,350 in the attorney fees award challenged in this appeal.
As noted, Chaudry contends generally that the appealed attorney fee award improperly included some $ 1,900 in fees incurred by Association in the two disputed discovery matters. More particularly, Chaudry contends Association claimed and was awarded the "actual amount" of $ 1,942.50. However, in light of our determination the entirety of the attorney fees award must be affirmed, we need not ascertain the precise amount of fees Association incurred in the discovery disputes.
Association contends the appealed attorney fees award properly included fees Association incurred in connection with the two disputed discovery matters because the legal standard for such award—"the prevailing party shall be awarded reasonable attorneys fees and costs" (§ 1354, subd. (f))—differed from the standard for attorney fees awarded as discovery sanctions—"engaging in conduct that is a misuse of the discovery process" (Code Civ. Proc., § 2023, subd. (b)). Regardless of any difference in the standards, the record indicates that in denying Associations requests for attorney fees as discovery sanctions, the trial court effectively concluded that at least some portion of the fees sought by Association had not been necessarily or reasonably incurred. However, when awarding attorney fees to Association as the prevailing party in this lawsuit, the court was not bound by its earlier findings with respect to whether the attorney fees sought by Association as discovery sanctions were necessarily or reasonably incurred. Instead, since "no appellate court in this litigation ever actually determined the question" whether the fees Association sought as discovery sanctions were necessarily or reasonably incurred, the doctrine of law of the case "cannot apply." (Lennane v. Franchise Tax. Bd. (1996) 51 Cal.App.4th 1180, 1186 (Lennane).) Hence, in including the fees incurred by Association with respect to the disputed discovery matters in the award of attorney fees to Association as the prevailing party in this lawsuit, the trial court could properly find those discovery-related fees to be reasonable. Chaudry has not shown that the court "exceeded the bounds of reason in so holding" (id. at p. 1189) or that its finding was otherwise ""clearly wrong"" (Ketchum, supra, 24 Cal.4th at p. 1132).
Similarly, the doctrine of res judicata could not apply because "the first ruling was not in a former action [citations], a requirement which would also apply should we view the issue one of `collateral estoppel [citation]." (Lennane, supra, 51 Cal.App.4th at p. 1185; Tippett v. Terich (1995) 37 Cal.App.4th 1517, 1523, fn. 2 ["Intermediate determinations, such as rulings on motions and interlocutory orders, are not conclusive"]; 7 Witkin, Cal. Procedure (2003 supp.) Judgment, § 280, p. 192 ["Res judicata gives conclusive effect to a former judgment only when the former judgment was in a different action; an earlier ruling in the same action cannot be res judicata, although it may be `law of the case if an appellate court has determined the issue"].)
3
Chaudry contends the attorney fees award improperly included $ 2,327 for fees incurred by Association in opposing Chaudrys motion for new trial. Specifically, Chaudry contends Associations counsels work product with respect to such opposition consisted of only four written pages. However, the record indicates Associations counsel also attended hearings related to Chaudrys motion for new trial.
4
Chaudry also contends Associations counsel charged more that $ 4,000 for Associations attorney fees motion itself. However, Chaudry has not identified any specific assertedly improper item included in that amount. (Stoll v. Shuff (1994) 22 Cal.App.4th 22, 25, fn. 1.)
5
Finally, Chaudry contends the attorney fees award improperly included some $ 8,100 to $ 9,000 fees incurred by Association between the September "1998" filing of its original attorney fees motion that sought only $ 12,882.25 fees and the March "2001" filing of its renewed motion that sought $ 21,069.72 fees, an interval characterized by Chaudry as a period when "nothing happened" in this case "remotely supporting the inflated request in the renewed motion." However, review of this lawsuits procedural history relevant to the award of attorney fees to Association as the prevailing party reveals that ample litigation occurred in this case from September 1999 until March 2000.
The record indicates Association actually filed its original attorney fees motion in September 1999 and its renewed motion in March 2000.
Specifically, on September 23, 1999, Association filed its original attorney fees motion and sought $ 12,882.25 fees. The next day, Association filed its reply to Chaudrys motion to tax costs Association had claimed in its cost memorandum. In October 1999 Chaudry filed opposition to Associations attorney fees motion. Association filed a reply to Chaudrys opposition. Judge ONeill issued a tentative telephonic ruling awarding Association $ 6,672.25 attorney fees. Chaudry responded by filing a declaration asserting Judge ONeill was biased against him. In November 1999 Judge ONeill recused himself and withdrew his tentative telephonic ruling.
In February 2000 Association filed a new attorney fees motion that sought $ 21,069.72 and was calendared for hearing before Judge Sammartino. In March 2000 Chaudry filed a peremptory challenge to Judge Sammartino and requested continuance of the hearing on Associations new attorney fees motion. Chaudry also filed opposition to Associations motion and a renewed request for continuance. Judge Sammartino granted Chaudrys peremptory challenge.
Further, ample litigation ensued in front of Judge Murphy after Association filed its renewed motion for attorney fees by amended notice in March 2000. In April 2000 Association filed a reply to Chaudrys opposition to Associations renewed attorney fees motion. On April 17, 2000, Chaudry filed a peremptory challenge to Judge Murphy that was denied. Chaudry also filed a request for an ex parte hearing to seek a 45-day continuance of Associations renewed attorney fees motion. Three days later, Chaudry noticed another ex parte hearing involving production of a letter believed by Chaudry to constitute an ex parte communication with the court. Chaudry also requested a continuance on Associations renewed attorney fees motion. After Chaudry filed additional opposition to Associations renewed attorney fees motion, Association filed a declaration seeking additional attorney fees incurred in attending the ex parte hearings noticed by Chaudry. Association also filed a reply to Chaudrys request to unseal the letter he believed to be an ex parte communication with the court. A hearing on Associations renewed attorney fees motion was held before Judge Murphy but was continued upon Chaudrys objection that certain witnesses were absent.
Finally, in May 2000, Judge Murphy held a three-hour hearing on Associations renewed attorney fees motion. At the hearing, Chaudry challenged the amount of attorney fees sought by Association and also claimed Association had not requested ADR. The court heard testimony from Associations counsel and its property manager. The declarations of Associations counsel were also before the court. Further, Association submitted billing statements indicating the work preformed by its counsel in this case. After hearing, the court concluded Association was entitled to $ 22,437.22 attorney fees, including the requested $ 21,069.72 in fees plus $ 905 fees incurred in attending the ex parte hearings and $ 500 fees incurred in attending the hearing on Associations renewed attorney fees motion. The court then entered the June 2000 judgment awarding Association $ 22,437.22 attorney fees.
The court "removed" $ 37.50 from Associations request for fees charged for the letter believed by Chaudry to be part of "some conspiracy."
In sum, Association incurred attorney fees for its counsels services through trial on the merits of its lawsuit, including various attempts to resolve the case through settlement or ADR. Association also incurred posttrial attorney fees for its counsels attendance at hearing on the language of the underlying judgment and hearings related to Chaudrys motion for new trial. Further, contrary to Chaudrys contention that nothing happened between September 1999 and March 2000, the record indicates that during such period Associations counsel filed opposition to Chaudrys motion to tax costs; filed a reply to Chaudrys opposition to Associations original attorney fees motion; attended a hearing on such motion; and attended two hearings before Judge Sammartino. Later, Associations counsel filed a reply to Chaudrys opposition to Associations renewed attorney fees motion;; attended three ex parte hearings before Judge Murphy; and attended two hearings on Associations renewed attorney fees motion.
6
In conclusion, on this record the superior court acted in its discretion in awarding Association attorney fees in the amount of $ 22,437.22. (Ketchum, supra, 24 Cal.4th at p. 1132; Del Cerro, supra, 87 Cal.App.4th at p. 950.) Since Chaudry has not demonstrated any reversible judicial error with respect to that amount, we do not disturb the portion of the June 2000 judgment that included such attorney fees award.
C
Attorney Fees on Appeal
Association seeks attorney fees on appeal. Since we have affirmed the entirety of the portion of the June 2000 judgment awarding attorney fees to Association, Association is the prevailing party on this appeal. As the prevailing party, Association is entitled to attorney fees on appeal under section 1354, subdivision (f) and the CC&Rs attorney fees clause. "It is established that fees, if recoverable at all—pursuant either to statute or [the] parties agreement—are available for services at trial and on appeal." (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927, 275 Cal. Rptr. 187, 800 P.2d 543; Del Cerro, supra, 87 Cal.App.4th at p. 951.)
Following the initial oral argument on Chaudrys appeal, we asked the parties to submit letter briefs on the issue of Associations request for attorney fees on this appeal. Association then filed a letter brief seeking $ 7,184 attorney fees on appeal. Supporting its request, Association presented its counsels declaration and billing statements indicating the work its counsel performed in responding to this appeal. Although Chaudry filed opposition to Associations letter brief, his opposition did not identify any specific assertedly improper item included in the amount of attorney fees sought by Association or otherwise substantively challenge such claimed amount. Instead, Chaudrys opposition simply repeated his contentions on the merits of this appeal that we have rejected.
In its supplemental brief, Association renews its request for $ 7,184 attorney fees on appeal and also seeks an additional $ 5,444.35 in attorney fees it assertedly incurred in researching and preparing such supplemental brief. With respect to the merits of its now-renewed initial request, Association has made a showing, as discussed above, sufficient to establish its entitlement to $ 7,184 attorney fees on appeal. With respect to Associations request for additional attorney fees, we could remand the matter to the superior court to determine the amount, with another appeal undoubtedly to follow. However, since we are well situated to assess the reasonable amount of additional attorney fees recoverable by Association, and in the interest of bringing at least this phase of this protracted litigation to a close, we choose to exercise our power to fix attorney fees on appeal. (Security Pacific National Bank v. Adamo (1983) 142 Cal. App. 3d 492, 498, 191 Cal. Rptr. 134; Roberts v. Brian (1973) 30 Cal. App. 3d 427, 431, 106 Cal. Rptr. 360; 9 Witkin, Cal. Procedure, supra, Appeal, § 828, pp. 853-854.) While we have no doubt that Association could produce billing records and fee schedules to support its request, we note that as one would expect at this stage of this lengthy and duplicative litigation, Associations briefing consists largely of restatements of past positions and citation of well-settled law. Taking into account Associations need to respond to Chaudrys briefing as well as the almost ministerial nature of that response, we award Association approximately one-half of the amount requested for preparing its supplemental brief, or $ 2,700. Accordingly, Association is entitled to attorney fees on appeal in the total amount of $ 9,884.
III
DISPOSITION
The judgment is affirmed. Association is awarded $ 9,884 against Chaudry for attorney fees on appeal.
WE CONCUR: HUFFMAN, J., and OROURKE, J.