Filed 8/4/20 Haskayne v. Meyers CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DEREK HASKAYNE,

Plaintiff,

v.

KATHERINE L. MEYERS et al.,

Defendants and Appellants;

CLARA RAMIREZ et al.,

Interveners and Respondents.

G058177

(Super. Ct. No. 30-2015-00792311)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Sheila Fell, Judge. Request for judicial notice denied. Order affirmed.

Huston McCaffrey, Shawn P. K. Huston for Defendants and Appellants.

Cottle Keen Lopiccolo & Heyde, Julie M. Lopiccolo and Dana M. Heyde for Interveners and Respondents.

Defendants Katherine Meyers (Meyers) and Robert Stanley (Stanley; collectively defendants) appeal from an order awarding interveners Clara Ramirez and Lee Valdez (interveners) attorney fees and costs in the approximate amount of $36,200. Defendants argue interveners were not the prevailing parties under Civil Code section 1717 (section 1717) or Code of Civil Procedure section 1032 (section 1032) because interveners dismissed their complaint in intervention and prevailed only based on an “improper” order. They further contend that even if interveners were the prevailing parties, they are not entitled to attorney fees because they failed to mediate or arbitrate their claims as required and they could not have prevailed on their intervention complaint. Finally, they assert the amount of fees and costs awarded was excessive.

We find none of these arguments persuasive and affirm the order.

Defendants request we take judicial notice of a portion of the register of actions (ROA) in Ramirez v. Meyers (Super. Ct. Orange County, 2017, No. 30-2017-00898102), a related case (Related Case). Defendants claim the ROA is relevant because it shows the relative timing of events, intervention was precluded in the instant case, and defendants were the prevailing party in the Related Case. We deny the request because the ROA is not relevant. We do not need the ROA to show the timing of events. Further, even if we were to grant the request, we would only take judicial notice of the existence of the documents listed, not the truth of their contents. “‘A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute.’” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364.) We do not have the documents before us and have no way of knowing their contents or whether we could properly take judicial notice of the truth of their contents. “‘Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.’” (Ibid., italics omitted.)

FACTS AND PROCEDURAL HISTORY

This dispute arises out of the partition, sale, and purchase of residential real property in Orange (Property). In 1999 plaintiff Derek Haskayne (plaintiff) and Meyers entered into a written purchase agreement (Haskayne Contract) for the Property. The Haskayne Contract stated only Meyers initially would be on title for purposes of obtaining a loan to purchase the Property. Plaintiff, who paid half the down payment, was to be put on title “at the earliest possible time.” Eventually a dispute arose between plaintiff and Meyers, and, according to Meyers, plaintiff “walked away” from the Property. Plaintiff was never put on title.

In February 2015 defendants listed the Property. When plaintiff learned of this he recorded the Haskayne Contract and filed this partition action (Partition Action); defendants filed a cross-complaint. In September 2015 Meyers and interveners entered into a residential purchase agreement (Purchase Agreement) for interveners to purchase the Property for $560,000 The Purchase Agreement contained an attorney fees provision awarding fees to the prevailing party in a dispute or action arising out of the agreement. Shortly after escrow opened defendants disclosed to interveners escrow could not close due to the pendency of the Partition Action.

After a bench trial in the Partition Action, in June 2016 the court ruled in favor of plaintiff, ordering the Property to be partitioned. In August the court amended its ruling by adding: “The court was advised during trial that the [P]roperty is in escrow for the sale thereof. The [c]ourt further confirms that the sale should be completed consistent with this Amended Judgment.” Judgment (Judgment) was entered in December 2016. The court retained jurisdiction of the case to ensure compliance with the terms.

In January 2017 pursuant to an order to show cause as to why escrow should not be ordered to be closed, the court ordered plaintiff and defendants to cooperate to expedite closing the escrow.

At the same time interveners filed the complaint in the Related Action for damages and specific performance. When a notice of related action was filed, the judge to which the instant Partition Action was assigned removed the Related Action from the judge to whom it had been assigned. Subsequently, based on a peremptory challenge filed by Stanley under Code of Civil Procedure section 170.6, the Related Action was transferred back to the judge to whom it had originally been assigned.

In May 2017, the sale not completed, interveners filed an ex parte application to intervene in the Partition Action and sought specific performance. The court granted only the application to intervene (Intervention Order). It ruled “[f]urther relief may be sought by different procedure.”

In April 2018, escrow still not having closed, the court appointed a partition referee to conclude the sale and disburse the proceeds. Subsequently, when the partition referee petitioned for instructions as to whether he could have the Property sold to interveners, the court asked the parties to brief the issue. Defendants argued the Judgment should be stricken. Plaintiff argued the Property should be sold to the highest bidder. The judge advised she would confer with the judge handling the Related Action to determine which case should proceed.

In July 2018 interveners filed a complaint in intervention (Intervention Complaint) in this Partition Action. In November 2018 the court ruled the partition referee was to comply with the Judgment and complete the sale to interveners. A few days late r the court ordered escrow to close (2019 Order). In January 2019 sale of the Property to interveners was completed.

In March 2019, defendants filed a demurrer and motion to strike the Intervention Complaint. Before the hearing, interveners dismissed the Intervention Complaint.

Interveners then filed a motion for attorney fees and costs (Interveners’ Attorney Fees Motion) accompanied by a declaration of counsel in support, which set out the time spent, attorney rates, fees charged, and costs incurred. The motion was brought pursuant to section 1717 and section 1032 and the provision for attorney fees in the Purchase Agreement. Interveners argued they prevailed because the 2019 Order to close escrow was a final judgment in their favor on the merits.

Defendants opposed Interveners’ Attorney Fees Motion, arguing interveners were not prevailing parties because they dismissed the Intervention Complaint, the 2019 Order was not a final judgment, and interveners were required to mediate the dispute before filing the Intervention Complaint and to arbitrate the dispute.

The court issued a tentative ruling, a copy of which is not in the record, granting Interveners’ Attorney Fees Motion. After a hearing, in June 2019 the court confirmed the tentative ruling, awarding interveners $36,206.02 in attorney fees and costs against defendants, finding the time spent and rates were reasonable.

After the Interveners’ Attorney Fees Motion was filed and argued but before the court ruled, defendants filed their own motion for attorney fees and costs (Defendant’s Attorney Fees Motion), claiming they were the prevailing parties under the terms of the Purchase Agreement because interveners dismissed the Intervention Complaint and did not recover any monetary damages. Interveners filed an opposition. Defendants also filed a motion for reconsideration of the ruling granting Interveners’ Attorney Fees Motion, to which interveners filed an opposition. Before the motions were heard, defendants filed their notice of appeal and the court, finding the motions were “‘embraced’” or “‘affected by’” the appeal, stayed the matter.

DISCUSSION

1. Appellate Procedure and Standard of Review

“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) An adequate record is required to show error. (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) “‘Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellants].’” (Jameson, at p. 609.)

Since defendants seek to raise issues that require “consideration of the oral proceedings in the superior court,” they were required to provide a reporter’s transcript. (Cal. Rules of Court, rule 8.120(b); all further references to rules are to the California Rules of Court.) When there is no reporter’s transcript we have no idea what occurred during the hearing, and we cannot determine the sufficiency of the evidence or whether the court abused its discretion. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362 (Oliveira.) “[N]or can we assess the merits of [any] contentions about certain rulings or statements made by the trial court during the hearings in question.” (Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228-1229, fn. omitted (Rhule).) Where there is no court reporter present for a hearing, the proper method to provide a record of oral proceedings is a settled statement. (Rules 8.120(b)(3), 8.137.)

We review the legal basis for an award of attorney fees and costs de novo based on the applicable statutes and the contract’s provisions. (J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1, 21, fn. 18; Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1139.) We review the prevailing party determination and the amount of fees and costs awarded for abuse of discretion. (Pont v. Pont (2018) 31 Cal.App.5th 428, 440 [attorney fees]; Berkeley, at p. 1139 [costs].) We give the court’s ruling considerable deference. (Ibid.) Where the record is silent we indulge all intendments and presumptions and resolve any ambiguities in favor of affirmance (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 882 (Ellis)) and we presume the court applied the law correctly and exercised its discretion properly unless the appellant affirmatively shows the contrary (Pont, at p. 440). We do not reverse absent “‘“a manifest abuse of discretion, a prejudicial error of law,”’” or lack of substantial evidence to support the factual findings. (Medina v. South Coast Car Co., Inc. (2017) 15 Cal.App.5th 671, 683.)

2. Prevailing Parties

Section 1717, subdivision (a) provides: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract . . . , shall be entitled to reasonable attorney’s fees in addition to other costs.”

Section 1032 provides: “(a) As used in this section, unless the context clearly requires otherwise: [¶] . . . [¶] (4) ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court . . . .”

Defendants argue interveners are not the prevailing parties because they dismissed their Intervention Complaint. And the result, they assert, is a final judgment in defendants’ favor. Defendants contend, based on the dismissal, they are the prevailing parties under sections 1717 and 1032. These arguments fail.

It is well established the analysis of who prevailed under section 1717 is different from the analysis under section 1032. (Zintel Holdings, LLC v. McClean (2012) 209 Cal.App.4th 431, 438 (Zintel).) Under section 1717, subdivision (b)(1), the prevailing party is the party who obtained greater relief on the contract. Section 1032 deals with an award of costs and “the definition of ‘prevailing party’ in section 1032 ‘is particular to that statute and does not necessarily apply to attorney fees statutes or other statutes that use the prevailing party concept.’” (Marina Pacifica Homeowners Assn. v. Southern California Financial Corp. (2018) 20 Cal.App.5th 191, 208.) Because neither the reporter’s transcript from the hearing nor the tentative ruling on the Interveners’ Attorney Fees Motion is in the record and the minute order granting the award of attorney fees merely states fees are awarded based on the tentative ruling, we do not know on which statute the court relied to award fees. Therefore, we must indulge all presumptions in favor of interveners (Ellis, supra, 218 Cal.App.4th at p. 882) and presume the court correctly applied the law (Pont, supra, 31 Cal.App.5th at p. 440). And, as we will explain, interveners are the prevailing parties under both section 1717 and section 1032 in any event.

As to section 1717, when one party obtains a “‘simple, unqualified win’” on the contract claims, the court must award attorney fees to that party. (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.) Such is the case here. Interveners’ primary litigation objective was to purchase the Property pursuant to the Purchase Agreement. They achieved that objective when the sale of the Property to them was consummated. Thus, we conclude they prevailed on their primary litigation objective.

Even if the result here could be classified as mixed, it was not an abuse of discretion for the court to find interveners realized their litigation objective. When there is a mixed result, the court uses “a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 622.) The court has broad discretion on this point, and we do not disturb it unless there has been a clear abuse of such discretion. (Zintel, supra, 209 Cal.App.4th at p. 439.) No such abuse of discretion appears.

In their reply brief and at oral argument defendants asserted intervenors could not be the prevailing parties because section 1717, subdivision (b)(2), provides, “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”

But we do not consider arguments made for the first time in a reply brief unless good cause for the delay is shown. (Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388.) Defendants have not shown any cause at all, let alone good cause. Thus, the section 1717, subdivision (b)(2) argument is forfeited.

Even on the merits, however, the section 1717, subdivision (b)(2) claim would fail. The Intervention Complaint was dismissed after the purchase of the Property was consummated. Interveners had achieved their litigation goal and there was no need for the Intervention Complaint to go forward. So dismissal of the Intervention Complaint was not the typical dismissal of an action before judgment is rendered, thereby relieving defendants of liability. Here defendants were liable to sell the Property to Interveners. The subsequent dismissal of the Intervention Complaint was merely a cleanup of the litigation, a ministerial act. The litigation was over by the time the dismissal was filed.

Defendants next rely on section 1032, subdivision (a)(4), which defines a prevailing party as “a defendant in whose favor a dismissal is entered.” They argue they were the prevailing parties under this section as well because interveners dismissed the Intervention Complaint. Not so.

Again, defendants’ argument impermissibly elevates form over substance. As noted above, the Intervention Complaint was dismissed after interveners achieved their litigation goal and the case was over. Section 1032, subdivision (a)(4) gives the court discretion to determine the prevailing party when a party recovers nonmonetary relief “and in situations other than as specified.” Such is the case here.

Besides, defendants could not be the prevailing parties. They did not achieve their litigation objectives. Contrary to their claim, dismissal of the Intervention Complaint was not a “clear victory” for them. They won nothing.

In a related argument, defendants contend interveners could not be the prevailing parties under the Intervention Complaint because interveners “benefitted from an ancillary order” before they intervened. To be clear, we presume defendants mean the Judgment when they refer to an ancillary order. The argument has no merit.

Although the Judgment ordered the sale of the Property to be completed, defendants did not comply. The Judgment was entered in June 2016. Six months later escrow had not closed and the court entered an order for plaintiff and defendants to cooperate to close it. Five months after that interveners moved to intervene. A year later, in April 2018, the court appointed a partition referee to conclude the sale. During this time defendants sought to overturn the Judgment, and plaintiff sought to sell the Property to the highest bidder. In July 2018 interveners filed the Intervention Complaint. In November 2018 the sale had still not closed and the court issued an order to close escrow. It was not until January 2019 that the sale finally closed. Plainly, interveners did not get the relief they sought merely from issuance of the Judgment.

Nor did they obtain relief from the Intervention Order. The court denied the accompanying request for specific performance, noting interveners had to seek further relief using a “different procedure.” Thus, interveners were forced to file the Intervention Complaint to protect their right to purchase the Property.

In sum, interveners were the prevailing parties, notwithstanding their dismissal of the Intervention Complaint, and they are entitled to recover attorney fees and costs pursuant to the provision in the Purchase Agreement. The court did not err.

3. Other Arguments Re Propriety of Award

a. Failure to Arbitrate

Defendants contend interveners lacked standing because they failed to arbitrate pursuant to the arbitration provision in the Purchase Agreement, and as a result they could never have prevailed. On that basis, defendants claim they are the prevailing parties and ask us to dismiss the Intervention Complaint. These claims have no merit.

First, assuming without deciding whether interveners were required to arbitrate, standing is not implicated by the failure to do so. “‘A person who invokes the judicial process lacks standing if he, or those whom he properly represents, “does not have a real interest in the ultimate adjudication because [he] has neither suffered nor is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.”’” (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1001.) Interveners had an interest in adjudicating their claim to the Property. Whether or not arbitration was required goes to the forum where the dispute should be decided, not whether interveners had standing.

Second, even if interveners were not the prevailing parties, that does not mean defendants were. There is not a prevailing party in every case. (Civ. Code, § 1717, subd. (b)(1).) And the only issue before us is whether interveners were prevailing parties and entitled to attorney fees and costs, not whether defendants are prevailing parties. And, as discussed above, there is no way defendants could be the prevailing parties.

Third, even when arbitration is ordered, the complaint is stayed, not dismissed. (Code Civ. Proc., § 1281.4; Muao v. Grosvenor Properties, LTD. (2002) 99 Cal.App.4th 1085, 1093.) Finally, we could not dismiss the Intervention Complaint because it has already been dismissed.

b. Failure to Mediate

In the Purchase Agreement the parties agreed to mediate a dispute or claim arising therefrom. The Purchase Agreement stated a prevailing party would not be entitled to an award of attorney fees due to failure to mediate before commencing an action. Defendants argue interveners failed to mediate prior to filing the Intervention Complaint, thereby disqualifying them from an award of fees. We disagree.

Interveners contend the mediation provision was never triggered because they did not commence the action, plaintiff did when he filed the Partition Action. Defendants respond by asserting interveners commenced the intervention action. But in the trial court, interveners argued they needed to file the Intervention Complaint so they could file a lis pendens, an exception to the mediation requirement. Defendants argue the lis pendens was filed in connection with the Related Action, not the Partition Action. None of these arguments matter.

As noted above, neither the tentative ruling nor a reporter’s transcript for the hearing on Interveners’ Attorney Fees Motion is in the record. Thus, we cannot determine how the court ruled on the mediation issue. (Rhule, supra, 8 Cal.App.5th at pp. 1228-1229, fn. omitted.) Due to lack of an adequate record, we must resolve the issue against defendants. (Jameson, supra, 5 Cal.5th at pp. 608-609.)

c. Demurrer

Defendants assert interveners could not be the prevailing parties because the Intervention Complaint could not have withstood a demurrer. The argument is pure speculation. The court did not rule on the demurrer and we will not decide it on appeal.

d. Alleged “Improper Order”

Defendants contend the alleged “improper order” should be stricken as void. Again, we presume defendants are referring to the Judgment ordering completion of the sale. None of the reasons defendants advance warrant striking the Judgment as a whole or that portion ordering completion of the sale.

Defendants challenge the language in the Judgment stating the Property is in escrow, claiming neither the minute order after trial nor the trial transcript from the Partition Action mention an escrow. We are not persuaded.

First, this argument is factually incorrect. The amended minute order after trial did state the Property was in escrow. Further, the trial transcript in the Partition Action is not in the record and we cannot consider any claim about what was said during trial. (Rhule, supra, 8 Cal.App.5th at pp. 1228-1229, fn. omitted.) Again, with nothing in the record to the contrary we presume all necessary evidence in support of the minute order and Judgment. (Ellis, supra, 218 Cal.App.4th at p. 882.)

Defendants’ contention the Judgment was an improper final ruling in the Related Action. has several flaws. At the time of the Judgment, the Related Action had not even been filed, so there is no possibility the Judgment interfered with any ruling in that case. Plus, the Related Action was stayed. The implication is the court in the Related Action was waiting for a decision in the Partition Action. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724-725 [“‘stay is a temporary suspension of a procedure in a case until the happening of a defined contingency’”].) Thus, the Judgment did not infringe on or usurp any authority in the Related Action.

The cases defendants cite in support of this argument correctly state the general proposition that a judge may not change an interim ruling by another judge in the same case. But that is not the situation here. Defendants cite no authority that a judge may not make a ruling in one case that conflicts with a ruling in another case.

Also, defendants have not identified a conflicting ruling in the Related Action. Documents from that case are not in the record before us. The ROA, of which we declined to take judicial notice, would not have helped in any event. It merely lists documents, not their contents.  

Finally, no rulings in the Related Action are challenged or properly before us in this appeal, so we could not consider them even if they had been identified. (Escobar v. Flores (2010) 183 Cal.App.4th 737, 753.)

e. Due Process

Likewise, defendants’ due process claims have no merit. Defendants contend that, as a result of the Judgment ordering the sale to close, they did not have the opportunity “to prove that they were not laible [sic] to [interveners] for anything.” But as stated, there is no reporter’s transcript for the trial of the Partition Action, and we presume all evidence necessary to support the Judgment. (Ellis, supra, 218 Cal.App.4th at p. 882.) Similarly, we reject defendants’ contention no evidence or arguments were presented at the trial “as to who the Property should be sold to and why.” Again, the transcript from the trial in the Partition Action is not in the record and we cannot consider any claim about what was or was not said during trial. (Rhule, supra, 8 Cal.App.5th at pp. 1228-1229, fn. omitted.) Defendants did not meet their burden to show error based on an adequate record. (Jameson, supra, 5 Cal.5th at pp. 608-609.)

f. Escrow

We also find no merit in defendants’ claim the Judgment was based on an open escrow, which interveners allegedly cancelled. Defendants contend the “lapse” of the escrow was a material change in the facts, allowing them to object to the sale.

Defendants did not include this argument in their opposition to the Interveners’ Attorney Fees Motion and thus did not preserve the issue. (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 325.) Further, even on the merits, the record is not clear escrow was actually cancelled. The few documents on which defendants rely do not show cancellation. Had this argument been raised in the opposition, the trial court could have made a factual determination. But it had no opportunity to do so. Thus, the argument is forfeited. (Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698, 717.)

More importantly, the sale closed. This casts doubt on defendants’ claim escrow was cancelled, and in any event the argument is irrelevant. This is an appeal from an award of attorney fees and costs, not a challenge to the Judgment. The validity and enforceability of the Judgment are not before us and have no bearing on the challenged award of attorney fees and costs.

4. Amount of Fees Awarded

Trial judges have discretion to set the amount of attorney fees “‘“because they are in the best position to assess the value of the professional services rendered in their courts.”’” (McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 703.) We will not reverse or modify an award unless it is “‘“clearly wrong.’”’” (Id. at p. 704.) “Indulging all inferences in favor of the trial court’s order, as we are required to do, we presume the trial court’s attorney fees award is correct.” (Ibid.) We also review cost awards for abuse of discretion. (Charton v. Harkey (2016) 247 Cal.App.4th 730, 739.)

Defendants claim the $36,200 attorney fees and costs award is “outrageous” and challenge specific items for which attorney fees were awarded, asking they be “stricken.” These arguments lack merit.

“‘In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. Failure to raise specific challenges in the trial court forfeits the claim on appeal.’” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)

The only mention of the amount of fees in their opposition to the Interveners’ Attorney Fees Motion was in the one-paragraph conclusion, where defendants argued only that the Intervention Complaint was a copy and paste of the complaint in the Related Action, and interveners’ counsel merely attended hearings “without adding substantive motions or work.”

This was insufficient to challenge the amount of attorney fees, and as a result, defendants forfeited this claim. (Lunada Biomedical v. Nunez, supra, 230 Cal.App.4th at p. 488.) Defendants make no argument as to the amount of costs awarded and thus have also forfeited this claim. (Rule 8.204(a)(1)(B); Laboratory Specialists Internat., Inc. v. Shimadzu Scientific Instruments, Inc. (2017) 17 Cal.App.5th 755, 764.)

5. Attorney Fees on Appeal

Interveners requested we award attorney fees incurred on appeal. Because the Purchase Agreement provided for attorney fees, interveners are entitled to recover them on appeal as well as in the trial court. (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.) Upon remittitur, the trial court shall determine the amount of appellate attorney fees to be awarded to interveners.

DISPOSITION

The order is affirmed. The request for judicial notice is denied. Interveners are entitled to costs and attorney fees on appeal. The trial court shall determine the amount of attorney fees to be awarded.

THOMPSON, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.