Filed 8/31/18 San Benito County Water District v. McAlpine CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

SAN BENITO COUNTY WATER DISTRICT,

Plaintiff and Respondent,

v.

RANDALL MCALPINE,

Defendant and Appellant.

H044258

(San Benito County

Super. Ct. No. CL-13-00437)

In this action, the San Benito County Water District (Water District or SBCWD) sought to recover overdue, unpaid groundwater charges and attorney fees and costs of collection from defendant Randall McAlpine, individually and doing business as McAlpine Lake & Park (defendant). Defendant paid $25,000 to the Water District under protest following the trial court’s issuance of a preliminary injunction that went into effect unless and until such payment was made. By motion, the Water District sought an award of reasonable attorney fees and costs associated with collection of defendant’s past due account, relying upon a local regulation (SBCWD Code of Regs., § 4.44.010, subd. C). The court granted the Water District’s motion for attorney fees and costs, but it awarded less than the full amount requested. A signed, written order awarding attorney fees and costs of collection to the Water District was subsequently filed on February 14, 2017.

In this appeal, the issue whether the Water District’s levy of the groundwater charges on defendant violated article XIII D of the California Constitution is not before this court. That constitutional article was added by Proposition 218, known as the “Right to Vote on Taxes Act,” in 1996. (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) text of Prop. 218, §§ 1, 4, pp. 108-109.) Proposition 218 restricted the authority of local governments, including special districts, to impose general and special taxes and property-related assessments, fees, and charges.

On appeal, defendant maintains that the attorney fees and costs award was erroneous and must be reversed because (1) the Water District was not the prevailing party in this action since the groundwater charges were paid under protest and a “Proposition 218 lawsuit” was subsequently filed, (2) the award contravened the “pay first, litigate later” policy codified in California Constitution, article XIII, section 32, (3) the Water District incurred some of the attorney fees while the action was classified as a limited civil case and there was no evidence that the Water District provided a prelitigation notice to defendant as mandated by Code of Civil Procedure section 1033, subdivision (b)(2), and (4) the requested attorney fees were “grossly excessive, duplicative, and unreasonable.”

We have determined that defendant’s specific appellate contentions are without merit. Accordingly, we will affirm the award of attorney fees and costs, which was in essence a final judgment in this case.

I

Procedural History

The Water District initially filed a limited civil case against defendant, individually and doing business as McAlpine Lake & Park. The complaint alleged a cause of action for breach of contract and common counts.

As to the breach of contract cause of action, the complaint averred that, on or about November 2006, the Water District and defendant and McAlpine Lake & Park entered into a written agreement in which defendant agreed to abide by the Water District’s requirements pertaining to Zone 6 groundwater charges and to pay the Water District’s rates and charges for pumping Zone 6 groundwater. It alleged: “Zone 6 is the Zone of Benefit created by [the Water District] to receive and distribute/percolate imported water from the San Felipe Division of the Central Valley Water Project. [The Water District] levies a groundwater charge in Zone 6 as authorized by law. Defendant is subject to said groundwater charge. Defendant obtained a drilling permit from [the Water District] to drill a well in Zone 6. . . . Defendant did·in fact drill a well in Zone 6 and registered the well with the [the Water District].” It alleged that defendant breached the agreement by “[f]ailing to pay the groundwater charges levied by the [Water District] for water pumped by [d]efendant in Zone 6.”

As to the common counts, the complaint alleged that, within the last four years, defendant and McAlpine Lake & Park had become indebted to the Water District “on an open book account for money due” and “for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay [the Water District].” It alleged that $13,050.26 was “due and unpaid” and that the Water District was “entitled to attorney fees by an agreement or a statute” “according to proof. (CC 1717.5)”

Defendant filed an answer containing a general denial and affirmative defenses, which included the defense that the Water District’s charges assessed against him violated sections 1, 2, 3, and 4 of California Constitution, article XIII D.

The Water District subsequently filed a first amended complaint for damages, injunctive relief, and declaratory relief, reclassifying the action as an “unlimited civil case.” The first amended complaint stated that the Water District was seeking “recovery of delinquent groundwater charges, together with interest and costs of collection, including attorneys’ fees,” and “preliminary and permanent injunctive relief barring McAlpine from pumping any groundwater unless and until he pays all sums currently owed to the Water District, and further barring McAlpine from pumping groundwater in the future whenever he is delinquent in the payment of any future groundwater charges owed to the Water District, and declaratory relief.”

The first amended complaint stated: “On August l7, 1977, the Water District established a zone of benefit of approximately 48,000 acres within San Benito County known as Zone 6. In doing so, the Board of Directors determined that lands within Zone 6 would benefit from the importation and distribution of water received from the Bureau of Reclamation’s San Felipe Project. McAlpine Lake & Park is located within the boundaries of Zone 6.” That complaint alleged: “Under a contract with the Bureau of Reclamation, the Water District imports water from the San Felipe Project and distributes it within Zone 6. That water is used within Zone 6 for both agricultural and municipal purposes. The importation and distribution of San Felipe Project water within Zone 6 both reduces demand on groundwater supplies within Zone 6 and supplements local groundwater supplies through recharge, thereby benefitting all groundwater users within Zone 6.” It further stated that “McAlpine pumps groundwater from three groundwater wells located within an area that benefits from the Water District’s distribution of imported water.” It alleged: “McAlpine uses one well to supply water for domestic uses. McAlpine uses two other wells to fill and maintain the water level of and cool water temperatures in a lake at McAlpine Lake & Park. McAlpine stocks the lake with fish, and charges a fees [sic] for camping and fishing at the lake.” That complaint averred that, “[u]nder section 70-7.1 of the . . . Act, the [Water] District’s Board of Directors is authorized to levy and collect a groundwater charge for the production of groundwater supplies within a zone or zones that will benefit from the recharge of underground water supplies or the distribution of imported water in such zone or zones.”

The first amended complaint contained a statutory cause of action to collect delinquent groundwater charges pursuant to provisions of the San Benito County Water District Act. (See West’s Ann. Wat.-Appen. (1999 ed.) ch. 70, p. 148 et seq.) It alleged: “Subdivision C of Section 4.44.010 of the Water District’s Code of Regulations provides that ‘district customers shall be liable for reasonable attorneys’ fees and all other costs associated with the collection of past due accounts.’ Water District has incurred attorneys’ fees and other costs associated with collection of McAlpine’s past due account, and such fees and costs will continue to accrue until this matter is resolved.” It further alleged that the Water District had been “damaged by McAlpine’s failure and refusal to pay groundwater charges, in the amount of the unpaid charges, interest, and collection costs including attorneys’ fees, in an amount according to proof.”

That complaint also contained causes of action for injunctive and declaratory relief and a common count for an open book account to recover money due for groundwater pumping. Its prayer for relief sought (1) “damages in the amount of all delinquent groundwater charges, plus interest,” (2) “recovery of all reasonable attorneys’ fee and costs incurred by the Water District in connection with the collection of unpaid groundwater charges, interest and costs, including all fees and costs incurred in prosecuting this litigation, in an amount according to proof,” (3) injunctive relief, including preliminary and permanent injunctions, enjoining defendant from further pumping of groundwater until he had paid all delinquent groundwater charges, prejudgment interest, costs and attorney fees, and (4) declaratory relief.

Defendant filed an answer containing a general denial and affirmative defenses to the first amended complaint, including the affirmative offense that the Water District’s charges assessed against him violated California Constitution, article XIII D, sections 1, 2, 3, and 4.

The Water District moved for a preliminary injunction against defendant. By written order filed on June 15, 2016, the trial court issued a preliminary injunction. It enjoined defendant during the pendency of the action from “engaging in, committing, or performing, directly or indirectly, by any means whatsoever the pumping of any groundwater at McAlpine Lake and Park unless and until [he] pays $25,000 together with interest thereon at the judicial rate of 10% simple interest per annum from and after May 12, 2016 on the unpaid balance until paid in full.” The order stated that sums paid by defendant thereunder were “deemed to be paid under protest.” It reserved for trial the issues of the full amount owed by defendant to the Water District, including collection costs and attorney fees.

The minute order for the June 22, 2016 settlement conference reflected that defendant intended to pay the delinquent water fees under protest to avoid the preliminary injunction and would likely pursue administrative remedies and that the issue of attorney fees would be resolved by a motion yet to be filed by the Water District. Defendant paid $25,000 under protest to the Water District.

The Water District moved for attorney fees and costs pursuant to California Rules of Court, rule 3.1702, which sets forth the procedure for claiming “statutory attorney’s fees and claims for attorney’s fees provided for in a contract” (rule 3.1702(a)) “for services up to and including the rendition of judgment in the trial court.” (Rule 3.1702(b).) The Water District argued that under its regulation, it was entitled to an award of reasonable attorneys’ fees and all other costs associated with collection of past due accounts. It requested an award of “reasonable attorney fees and costs incurred in litigating” this matter.

At the September 8, 2016 hearing on the motion for attorney fees and costs, the Water District’s counsel asserted that defendant’s payment of $25,000 had rendered moot the Water District’s remaining claims aside from its claim for attorney fees and costs and that the Water District was the prevailing party because it had achieved its litigation objectives, implying that it was unnecessary to go to trial to resolve the amount of overdue groundwater charges owned by defendant. The Water District’s counsel asked for a ruling on its motion prior to any dismissal of the action to avoid “a jurisdictional issue.” Defendant’s counsel argued that the trial court could not award attorney fees and costs because the Water District’s other claims were still pending and suggested that the court dismiss the case and retain jurisdiction under section 664.6 (entry of judgment pursuant to stipulated settlement). The court indicated that it was conditionally dismissing the case to deal with the concerns of defendant’s counsel and that there was “nothing remaining under [the Water District’s] complaint for relief other than [its] request for . . . [an] award of attorney fees and costs.” It allowed defendant to file supplemental opposition to the Water District’s motion and the Water District to file a reply memorandum.

In written opposition to the Water District’s motion, defendant argued that the motion was premature because there was no judgment yet, that the Water District was not the prevailing party because groundwater charges had been paid under protest and would “be the subject of a forthcoming Proposition 218 lawsuit,” that attorney fees incurred by the Water District while the action was classified as a limited civil case were not recoverable absent proof that the Water District had advised defendant in accordance with subdivision (b) of section 1033, that attorney fees recoverable in an action based on a book account were limited to $1200 under Civil Code section 1717.5, and that the amount of attorney fees that the Water District had requested were “grossly excessive, duplicative, and unreasonable.”

The Water District’s reply to defendant’s supplemental memorandum requested attorney fees and costs of $99,269.87, which included attorney fees of $96,569.87. The reply stated: “The Water District filed this action to collect unpaid and delinquent groundwater pumping charges, and on June 23, 2016 McAlpine paid those charges. The only remaining relief the Water District seeks in this case is a judgment for the costs and attorneys’ fees that the Water District incurred to collect the groundwater charges, which McAlpine has refused to pay. That relief can be decided on this motion.”

On October 6, 2016, the trial court orally granted the Water District’s motion for attorney fees and costs, but it awarded less than requested. The court found that some of the attorney fees being requested were duplicative. The October 6, 2016 minutes reflected the order.

Defendant filed a notice of appeal from the order issued on October 6, 2016.

The trial court’s formal written order filed February 14, 2017 stated that the Water District was entitled to recover reasonable attorney fees and costs pursuant to section “4.44.01©” [sic] of its regulations. The order awarded attorney fees of $82,762 and costs of $3,117.37, for a total award of $85,879.37, which was less than the full amount requested.

Apparently, on April 17, 2017, defendant separately filed a “Verified Petition For Writ Of Mandate, Declaratory Relief, Injunctive Relief, Restitution, and Accounting” (writ petition) against the Water District in San Benito County Superior Court (San Benito County Superior Court, case No. CV-17-00050). Defendant included a copy of the writ petition in the appellant’s appendix filed in this appeal. The writ petition alleged that the groundwater charges constituted assessments that violated section 4 of Article XIII D of the California Constitution. Among other relief, the writ petition sought “a writ of mandate directing the SBCWD to refrain from collecting groundwater pumping charges from McAlpine and to refund monies previously paid.”

II

Discussion

A. Claim that Attorney Fees Award Contravened Constitutional Policy

Defendant contends that the attorneys fee award contravened the “pay first, litigate later” policy codified in California Constitution, article XIII, section 32, and the purposes of Proposition 218. We find this contention meritless.

California Constitution, article XIII, section 32, commonly referred to as the “pay first, litigate later” rule (Water Replenishment Dist. of Southern California v. City of Cerritos (2013) 220 Cal.App.4th 1450, 1464-1465 (Water Replenishment District of Southern California)), states: “No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature.” (Italics added.) The California Supreme Court has explained: “Article XIII, section 32 provides that an action to recover an allegedly excessive tax bill may be brought ‘[a]fter payment of [that] tax . . . .’ Additionally, the section bars a court from issuing any ‘legal or equitable process . . . against this State or any officer thereof to prevent or enjoin the collection of any tax.’ Read together, these two portions of section 32 establish that the sole legal avenue for resolving tax disputes is a postpayment refund action. A taxpayer may not go into court and obtain adjudication of the validity of a tax which is due but not yet paid.” (State Bd. of Equalization v. Superior Court (1985) 39 Cal.3d 633, 638 (State Bd. of Equalization).) “The important public policy behind this constitutional provision ‘is to allow revenue collection to continue during litigation so that essential public services dependent on the funds are not unnecessarily interrupted.’ [Citation.]” (Ibid.)

Thus, “an action for refund may not be maintained until the full amount claimed due for a given reporting period is paid.” (State Bd. of Equalization, supra, 39 Cal.3d at p. 643, fn. omitted.) In addition, “any legal action or defense seeking ‘prepayment adjudication that would effectively prevent the collection of a tax [is] barred.’ (McKendry v. County of Kern (1986) 180 Cal.App.3d 1165, 1170.)” (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 661.) “This constitutional limitation rests on the premise that strict legislative control over the manner in which tax refunds may be sought is necessary so that governmental entities may engage in fiscal planning based on expected tax revenues. (See State Bd. of Equalization v. Superior Court (1985) 39 Cal.3d 633, 638.)” (Woosley v. State of California (1992) 3 Cal.4th 758, 789.)

Defendant has not explicitly argued, either in proceedings below or in this appeal, that the allegedly delinquent groundwater charges that the Water District sought to collect in this action were taxes within the meaning of article XIII, section 32. “ ‘Unlike a special assessment, a tax can be levied “ ‘without reference to peculiar benefits to particular individuals or property.’ ” [Citations.]’ ” (Silicon Valley Taxpayers Assn., Inc., supra, 44 Cal.4th at p. 442.) Neither has defendant shown that the Water District is a state agency or that its board members are state officers for purposes of article XIII, section 32. (But see Water Replenishment District of Southern California, supra, 220 Cal.App.4th at p. 1468 [as a matter of public policy, the “pay first, litigate later” rule applied to a city].)

Even assuming arguendo that article XIII, section 32, or at least its underlying public policy, applied to this collection action, defendant has not shown that the award of attorney fees and costs, as authorized by section 4.44.010 subdivision C of the SBCWD regulations, contravened the “pay first, litigate later” rule. As the District points out, if defendant had paid the allegedly overdue water charges before commencement of this collection action, this action would have been unnecessary and the Water District “would not have incurred related attorneys’ fees and costs.” We agree with the Water District that, as a matter of common sense and logic, the court’s award of attorney fees and costs does not contravene the “pay first, litigate later” rule, but rather reinforces the rule. If defendant had adhered to the rule, the Water District would not have been impelled to bring this collection action to protect its interests.

Defendant also suggests that Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310 (Agnew) fully applies to this case, implying that consequently he should not have been required to pay attorney fees and costs before raising a Proposition 218 claim. Defendant misconstrues the Agnew case.

In Agnew, a declaratory relief action, the primary issue was the validity of a policy of the State Board of Equalization that required any taxpayer to pay the accrued interest on a tax deficiency assessment, in addition to paying the tax itself, before the Board would consider the taxpayer’s claim for a refund of sales and use taxes. (Agnew, supra, 21 Cal.4th at p. 313.) The California Supreme Court reviewed the history of California Constitution, article XIII, section 32 and Revenue and Taxation Code section 6931, which was a part of the Sales and Use Tax Law (Rev. & Tax. Code, § 6001 et seq.) and statutorily prohibited courts from preventing or enjoining collection of any tax under the Sales and Use Tax Law. (See Agnew, supra, at pp. 322-333.)

The Supreme Court in Agnew determined that “[i]nterest does not become an integral part of the taxes to which [California Constitution,] article XIII, section 32 and [Revenue and Taxation Code] section 6931 refer when those taxes become delinquent.” (Agnew, supra, 21 Cal.4th at p. 333.) The court held that “the Board’s policy impermissibly burden[ed] a taxpayer’s right to seek refund of taxes by requiring payment of accrued interest as well as the tax.” (Id. at p. 334.) Thus, Agnew concluded that California Constitution, article XIII, section 32, did not require a taxpayer to pay accrued interest on a tax deficiency before seeking an administrative refund or bringing a subsequent action for refund of taxes. (Agnew, supra, at p. 314.)

But defendant did not voluntarily pay the delinquent groundwater charges and then seek a refund. Rather, the Water District had to bring a lawsuit to recover the charges allegedly owed by defendant and the attorney fees and costs associated with collection. Moreover, the object of the Water District’s action was not to “prevent or enjoin the collection of any tax” (Cal. Const., art. XIII, § 32) or to require payment of such attorney fees and costs as a precondition to the Water District’s consideration of a pending claim for a refund. Agnew is not on point.

B. Claim that Water District Not Prevailing Party

Defendant argues that the Water District is not the prevailing party because he paid $25,000 under protest, he filed a separate lawsuit to invalidate the groundwater charges and obtain a refund of amounts paid, and this action did not obtain “practical finality on the substantive issues.”

We first note that defendant has not challenged on appeal the Water District’s election to seek attorney fees and costs associated with such collection by way of motion in the present case. In any event, assuming the trial court awarded attorney fees and costs pursuant to section 1032 and impliedly determined that the Water District was the prevailing party as it had argued, defendant has not asserted that the trial court’s conditional dismissal order constituted a dismissal entered in his favor within the meaning of section 1032, subdivision (a)(4). (See ante, fn. 7.) Rather, his argument is that the Water District was not the prevailing party because he paid $25,000 under protest after the court issued the preliminary injunction and there was no “practical finality on the substantive issues.”

In DeSaulles v. Community Hosp. of Monterey Peninsula (2016) 62 Cal.4th 1140, the California Supreme Court determined that “language in section 1032 suggests a broad understanding of the word ‘recovery.’ ” (Id. at p. 1153.) It also stated that the word “[r]elief,” like “recovery,” is a “broad term” (ibid.) and “can include money obtained through a settlement.” (Ibid.) The court concluded that “the term ‘recovery’ in section 1032(a)(4) encompasses situations in which a defendant settles with a plaintiff for some or all of the money that the plaintiff sought through litigation.” (Id. at p. 1154.) The court observed that “[t]he definition [of prevailing party] was intended to promote the equitable rule that unsuccessful plaintiffs could not evade the cost statute by dismissing their suit” but that the equitable rule “does not apply to plaintiffs that have achieved some litigation success through settlement of the case.” (Id. at p. 1153.) The court held that “a dismissal pursuant to a monetary settlement is not a dismissal in the defendant’s ‘favor’ as that term is used in section 1032(a)(4).” (Id. at p. 1158.)

The Water District recovered nonmonetary relief within the meaning of section 1032, subdivision (a)(4), when it obtained a preliminary injunction that prohibited any further groundwater pumping at McAlpine Lake & Park unless and until defendant paid $25,000, which resulted in defendant paying that sum. At the September 8, 2016 hearing, the Water District told the court that it was no longer pursuing any other relief because defendant had paid the delinquent groundwater charges, the District had achieved its litigation objective, and its remaining causes of action had been rendered moot. The trial court indicated that it was vacating the trial date and conditionally dismissing the case to allay defendant’s concern that the Water District’s claims were still “pending,” stating there was “nothing remaining under the [Water District’s] complaint for relief other than [its] request for . . . [an] award of attorney’s fees and costs.”

The issuance of the preliminary injunction had the practical effect of securing the essential relief that the District was seeking, the collection of the allegedly overdue groundwater charges. As far as we can tell, defendant’s payment under protest had no legal effect other than to warn the District that defendant disagreed with the validity of those charges and that he might take administrative or other legal action to seek a refund in the future. Defendant’s subsequent filing of a Proposition 218 lawsuit after the court had awarded attorney fees and costs to the Water District did not alter the fact that, at the time of the award in this action, the Water District had substantially realized its primary litigation objective, i.e., collection of the assertedly overdue groundwater charges. The possibility that the Water District might someday be required to disgorge defendant’s payment through a yet-to-be-filed lawsuit did not affect the Water District’s prevailing party status in this action.

We disagree with defendant that DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968 (DisputeSuite) governs this case. In DisputeSuite, the issue was “a defendant’s entitlement to attorney fees [under Civil Code section 1717] for obtaining dismissal of a contract action under the agreement’s forum selection clause.” (Id. at p. 974.) The Supreme Court recognized that “[a] procedural victory that finally disposes of the parties’ contractual dispute, such as an involuntary dismissal with prejudice and without any likelihood of refiling the same litigation in another forum, may merit a prevailing party award of fees under [Civil Code] section 1717.” (Id. at p. 981.) The court concluded that the trial court did not abuse its discretion when it denied the motion of attorney fees under Civil Code section 1717 where the dismissal of the California action on grounds of forum non conveniens was not dispositive of the merits of the contractual dispute (DisputeSuite.com, LLC, supra, at p. 981) and “where the action had been promptly refiled in the appropriate forum” (ibid.) in Florida. The court determined that, “[c]onsidering that the action had already been refiled in the chosen jurisdiction and the parties’ substantive disputes remained unresolved, the court could reasonably conclude neither party had yet achieved its litigation objectives to an extent warranting an award of fees. [Citations.]” (Id. at p. 971.)

This case is distinguishable from DisputeSuite. For one thing, the District’s request for attorney fees and costs in this case was not based on Civil Code section 1717. Civil Code 1717’s definition of prevailing party is different than the definition of prevailing party under section 1032. We are not required to “construe section 1032(a)(4) in light of Civil Code section 1717. [Citation.]” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1335, fn. 3 (Goodman).)

For another thing, in DisputeSuite, the trial court “stayed the action rather than immediately dismissing it” and gave DisputeSuite time to refile in Florida. (DisputeSuite, supra, 2 Cal.5th at p. 972.) At the time of the defendant’s motion for attorney fees, DisputeSuite had “filed suit in Florida, the more convenient forum” (ibid.) and DisputeSuite’s claims were in the process of being litigated in Florida when the California trial court denied the fee motion. (Id. at pp. 980-981.) In this case, when the trial court orally announced its award of attorney fees and costs in favor of the Water District on October 6, 2016 and when the court filed its written order on February 14, 2017, defendant had not yet filed any Proposition 218 lawsuit against the Water District. Defendant filed the writ petition on April 17, 2017.

Thirdly, unlike DisputeSuite, the trial court in this case granted, rather than denied, an award of attorney fees and costs. “Generally, a trial court’s determination that a litigant is a prevailing party, along with its award of fees and costs, is reviewed for abuse of discretion.” (Goodman, supra, 47 Cal.4th at p. 1332.) “ ‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Defendant has not demonstrated that the trial abused its discretion in this case by implicitly concluding that the District had achieved its main litigation objective of collecting overdue groundwater charges from defendant.

It was not the purpose of the Water District’s lawsuit to resolve whether the delinquent groundwater charges allegedly owed by defendant were in fact assessments within the meaning of California Constitution, article XIII D, section 4, or whether the levy of those groundwater charges complied with the constitutional requirements for levying an assessment upon real property “for a special benefit conferred upon the real property.” (Cal. Const., art. XIII D, § 2, subd. (b); see Cal. Const., art. XIII D, § 4.) The allegations of the writ petition filed by defendant on April 17, 2017 indicated that the subsequent, separate lawsuit was intended to resolve that different question.

Zuehlsdorf v. Simi Valley Unified School Dist. (2007) 148 Cal.App.4th 249 (Zuehlsdorf), a case mentioned by both parties, also supports our reasoning. In Zuehlsdorf, “[t]he trial court awarded respondent $6,344 in attorney fees pursuant to Government Code section 800.” (Id. at p. 251, fn. omitted.) “Section 800 permits a litigant who successfully challenges the determination of an administrative agency to recover attorney fees if the litigant demonstrates that the agency acted in an arbitrary or capricious manner. [Citation.]” (Id. at p. 255, fn. omitted.) David Zuehlsdorf, Jessica Zuehlsdorf’s father and guardian ad litem, filed a petition for a writ of mandate and sought injunctive relief against Jessica’s high school, school district, and an athletic league and its members to enjoin them “from preventing her from playing varsity soccer at [her high school].” (Id. at p. 252.) The trial court granted a temporary restraining order and a preliminary injunction, enjoining the defendants “from obstructing or interfering with Jessica’s participation in the varsity soccer program . . . .” (Id. at p. 254.) Jessica was “reinstated in the athletic program.” (Id. at p 251.) Although the trial court denied the application for the permanent injunction as moot, it awarded attorney fees and costs under Government Code section 800. (Zuehlsdorf, supra, at p. 254.)

On appeal in Zuehlsdorf, the appellants (the high school, the school district, and the athletic league and its individual members) challenged the award of attorney fees and costs on the ground, among others, that there was no final order or judgment on the merits and plaintiffs were not the prevailing parties. (Zuehlsdorf, supra, 148 Cal.App.4th at p. 256.) The appellate court noted that, in determining whether a party prevailed, a trial court must consider “the extent to which each party has realized its litigation objectives.” (Id. at p. 257.) The court found that Jessica’s father was “successful in his attempt to have Jessica reinstated in the program while appellants failed in their efforts to prevent her participation.” (Ibid.) It also observed that “the award of fees achieved the legislative purpose underlying the statute: to prohibit the arbitrary or capricious actions of a public entity.” (Id. at pp. 257-258.) The appellate court concluded that “[t]he trial court did not abuse its discretion in determining that respondent was a prevailing party, thus he is entitled to attorney fees under section 800.” (Id. at p. 258.)

Although Zuehlsdorf did not involve section 1032, it lends support to our conclusion that the trial court acted within its discretion in implicitly determining that the Water District obtained the main relief that it had sought, the payment of delinquent groundwater charges owed by defendant. Defendant has not persuaded us that the trial court abused its discretion in determining that the Water District was the prevailing party.

C. Claim that Attorney Fees Incurred Before Reclassification Not Recoverable

Defendant maintains that attorney fees incurred before the action was reclassified as an unlimited civil case are not recoverable. He cites only 1033, subdivision (b)(2), which provides that, “[w]hen a prevailing plaintiff in a limited civil case recovers less than the amount prescribed by law as the maximum limitation upon the jurisdiction of the small claims court” and “[w]hen the party could not have brought the action in the small claims court, costs and necessary disbursements shall be limited to the actual cost of the filing fee, the actual cost of service of process, and, when otherwise specifically allowed by law, reasonable attorneys’ fees.” That subdivision further provides that “those costs shall only be awarded to the plaintiff if the court is satisfied that prior to the commencement of the action, the plaintiff informed the defendant in writing of the intended legal action against the defendant and that legal action could result in a judgment against the defendant that would include the costs and necessary disbursements allowed by this paragraph.” (§ 1033, subd. (b)(2).) Defendant contends that the Water District did not show in its “motion papers” that it had given the requisite prelitigation advisement and therefore defendant was not entitled to an award of any attorney fees incurred prior to the reclassification of the action as an unlimited civil case.

The first amended complaint, an unlimited civil case, superseded the original complaint. “ ‘It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. [Citations.]’ (Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 384.) ‘Such amended pleading supplants all prior complaints. It alone will be considered by the reviewing court. [Citations.]’ (O’Melia v. Adkins (1946) 73 Cal.App.2d 143, 147.)” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) Defendant has cited no authority to support his contrary position.

Thus, once the first amended complaint was filed, it became the operative pleading and the case became an unlimited civil case. Consequently, section 1033, subdivision (b)(2), did not limit the trial court’s award of attorney fees.

D. Claim that Request for Attorney Fees was Excessive and Unreasonable

Without any citation to the appellate record or any discussion of specific amounts of attorney fees requested, defendant complains that the fees requested were excessive and unreasonable, that there were a “myriad” of problems with the Water District’s request for attorney fees, that the case was “heavily over-litigated,” that the requested attorney fees bore “no relationship to the outcome in this lawsuit,” and that “[t]he fee request must be substantially reduced.” Defendant does not discuss to what extent his present claim was already addressed by the trial court’s reduced award, cite legal authority to support his assertion that certain categories of attorney fees were problematic, or offer reasoned argument establishing that specific amounts of the attorney fees awarded were excessive and unreasonable. Defendant makes conclusory, general assertions.

Apparently, defendant is “assuming this court will construct a theory supportive of” his claims, but that “is not our role.” (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley).) “It is not the function of this court to comb the record looking for the evidence or absence of evidence to support defendants’ argument. [Citations.]” (People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 879; see Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835 (Green).) “It is the duty of counsel to refer the reviewing court to the portions of the record which supports appellants’ position. [Citations.]” (Green, supra, at p. 835.) Here, defendant’s arguments are merely “general assertion[s], unsupported by specific argument.” (Stanley, supra, at p. 793; see Cal. Rules of Court, 8.204(a)(1)(B) & (C).) Consequently, we treat defendant’s contention that the Water District’s request for attorney fees was excessive and unreasonable as waived. (Stanley, supra, at p. 793.)

DISPOSITION

The order awarding attorney fees and costs is affirmed.

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ELIA, J.

WE CONCUR:

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GREENWOOD, P. J.

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MIHARA, J.

San Benito County Water District v. McAlpine

H044258