Filed 4/14/20 Goins v. Williams CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

WALTER GOINS,

Plaintiff and Respondent,

v.

SHARON WILLIAMS,

Defendant and Appellant.

A152828

(Alameda County

Super. Ct. No. RG15789060)

WALTER GOINS,

Plaintiff and Appellant,

v.

SHARON WILLIAMS,

Defendant and Appellant.

A153632

(Alameda County

Super. Ct. No. RG15789060)

In case No. A152828, defendant Sharon Williams (Williams) appeals a judgment in favor of plaintiff Walter Goins (Goins), arguing that a finding she acted in bad faith as required under the Oakland Tenant Protection Ordinance (TPO) (Oakland Ord. No. 13265, adding §§ 8.22.670 et seq. to Oakland Mun. Code) was not supported by substantial evidence. In case No. A153632 Goins appeals from an order awarding him attorney fees after the trial court ruled against Williams. He also appeals an award of costs to Williams’s property manager and codefendant Lizabeth Palomata (Palomata). Goins contends the trial court abused its discretion when it significantly reduced his attorney fee award and erred in awarding Palomata costs. Williams cross-appeals the award of attorney fees.

We consolidate the appeals but dismiss Williams’s appeal from the judgment for lack of jurisdiction. In affirming Goins’s entitlement to a fee award, we conclude the trial court’s decision that Williams violated the TPO is supported by substantial evidence. We also conclude the court’s decision to reduce Goins’s request for attorney fees was within its discretion, but we vacate the award of costs to Palomata.

I. FACTS AND PROCEDURAL BACKGROUND
II.
Walter Goins has been a residential tenant of a property owned by Williams since 2001. In October 2015, Goins sued Williams and Palomata, alleging, among other things, they breached the implied warranty of habitability (Civ. Code, § 1941.1), were committing a nuisance, and violated the TPO. Goins sought both injunctive relief and damages. In April 2017, Williams cross-complained against Goins for injunctive relief and damages due to his alleged negligent damage to the residence, acts of nuisance, and fraud. Williams and Palomata were represented by the same attorneys.

A. May 2017 Bench Trial, Statement of Decision, and Judgment
B.
During a five-day bench trial, Goins presented evidence that between 2012 and 2015, his rental unit was in a general state of disrepair and had defective appliances and plumbing, exposed electrical wiring (both inside and outside of the building), overgrown vegetation, a deteriorating deck and exterior stairs, and other conditions that were hazardous and that violated the Oakland Building Maintenance Code (Oakland Mun. Code, §§ 15.08 et seq.).

For example, in 2012, before Goins had even filed his complaint, the City of Oakland issued a Notice of Violation to Williams regarding the poor condition of the eaves on the property. The repairs were never made, and the roof on the structure ultimately failed, causing the kitchen ceiling to collapse. Similarly, in January 2015, a fire at a neighboring building owned by Williams caused substantial damage to Goins’s unit, including burned exteriors and broken windows, none of which had been repaired. Goins presented uncontradicted expert testimony that many of these substandard conditions on the property were readily observable from the outside of the building and could have been remediated.

In July 2017, the trial court issued a five-page tentative decision which found that “Plaintiff’s expert testimony in this proceeding was uncontradicted as to code violations[,] . . . established breaches of the implied warranty of habitability[, and] established the elements of a nuisance and violations of Oakland’s Tenant Protection ordinance.” However, the court rejected Goins’s additional claims that Williams engaged in unfair business practices, was negligent, and breached the implied covenant of quiet enjoyment. The court declined to award Goins damages because it found he had interfered with Palomata’s and Williams’s attempts to remedy some of the deficiencies, but it noted that it would later issue an injunction “to remediate substantial conditions regarding habitability as referenced in [Civil Code section] 1941.1” for untenantable dwellings. It further instructed that the tentative decision would become the statement of decision unless either party, “specifies those principal controverted issues as to which the party is requesting a Statement of Decision or makes proposals not included in this Tentative Decision.”

On September 1, 2017, the trial court entered a judgment in favor of Goins and against Williams, but not Palomata, on the complaint; and in favor of Goins and against Williams on her cross-complaint. The judgment also awarded Goins costs against Williams that were to be determined “according to law and [the Code of Civil Procedure].” On December 13, 2017, the court declined to issue an injunction because the parties had cured many of the habitability issues established at trial, and instead ordered several repairs and scheduled a case management conference.

C. Goins’s Motion for Prevailing Party Attorney Fees
D.
On October 30, 2017, Goins moved for an award of $318,314 in attorney fees he incurred litigating his complaint and defending against Williams’s cross-complaint. Following a hearing, the trial court determined that Goins prevailed on a substantial portion of his request for relief under the TPO. On December 13, 2017, the court awarded Goins $49,875 as reasonable attorney fees incurred in connection with his TPO cause of action.

E. Motion for Costs Payable by Goins
F.
On December 11, 2017, Williams’s attorney moved for $11,615.65 in costs but did not specify whether the motion was filed on behalf of Palomata, Williams, or both. The trial court denied Goins’s motion to strike the costs and awarded Palomata $5,810.32.

G. Notices of Appeal
H.
Williams appealed the September 1, 2017 judgment (case No. A152828). Goins appealed the December 13, 2017 attorney fee award and cost determination (case No. A153632). Williams cross-appealed from the December 13, 2017 order and the December 8, 2017 order on her motion to tax costs (case No. A153632).

II. DISCUSSION
III.
A. Lack of Appellate Jurisdiction in Case No. A152828
B.
As a preliminary matter, the September 1, 2017 judgment (case No. A152828) is not appealable. Although identified as a judgment, this order did not address all the issues in controversy. It left several open for future determination, including the issuance of “an injunction in favor of Plaintiff Goins at a subsequent hearing with respect to the nuisances and breaches of the implied warranty of habitability and Oakland’s TPO.”

“A judgment is the final determination of the rights of the parties in an action or proceeding.” (Code of Civ. Proc., § 577.) Code of Civil Procedure, “[s]ection 904.1, subdivision (a) allows appeal ‘[f]rom a judgment, except . . . an interlocutory judgment.’ . . . [T]he rule codified in this provision, known as the one final judgment rule, precludes an appeal from a judgment disposing of fewer than all the causes of action extant between the parties, even if the remaining causes of action have been severed for trial from those decided by the judgment. ‘A judgment that disposes of fewer than all of the causes of action framed by the pleadings, however, is necessarily “interlocutory” [citation], and not yet final, as to any parties between whom another cause of action remains pending.’ ” (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1101.)

“ ‘ “[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.” ’ ” (Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 996.) Because the court contemplated further actions essential to a determination of the rights of the parties (Ibid.), the September 1, 2017 order was not a final judgment.

We therefore dismiss the appeal in case No. A152828 for lack of appellate jurisdiction. (See Daugherty v. City and County of San Francisco (2018) 24 Cal.App.5th 928, 942 [“ ‘An appealable judgment or order is essential to appellate jurisdiction, and the court, on its own motion, must dismiss an appeal from a nonappealable order’ ”].)

C. The Trial Court Properly Determined Goins was the Prevailing Party Entitled to Attorney Fees.
D.
The December 13, 2017 ruling (case No. A153632) is a final judgment appropriate for appellate review. As of that time, the court entered its order directing injunctive relief and had determined the parties’s rights to costs and fees. We thus address the parties’s arguments in this appeal and cross-appeal challenging the awards of costs and fees.

Curiously enough, in her opening brief on cross-appeal, Williams challenges the award of attorney fees to Goins by arguing the September 1, 2017 judgment was interlocutory and thereby not appealable. This argument states that because the court reserved issuing injunctive relief on September 1, even though it did not issue an extensive injunction, it was premature to award fees to Goins as the prevailing party. Moreover, Williams argues that she is the prevailing party because Goins neither was awarded damages nor obtained an injunction. Nonsense. The court determined on Goins’s complaint that he proved Williams breached the implied warranty of habitability and proved a claim of nuisance and violations of the TPO. The court also entered judgement in favor of Goins and against Williams on her cross-complaint. Goins was the prevailing party.

C. There is Substantial Evidence Supporting the Finding that Williams Acted in Bad Faith.

Williams also argues the award of attorney fees against her must be reversed because the finding that she violated the TPO was not supported by substantial evidence. She argues the Statement of Decision is ambiguous and lacks any express determination regarding bad faith, a required finding under the ordinance. Although the trial court offered Williams the opportunity to identify principal controverted issues or make proposals for inclusion in the Statement of Decision, Williams did not file a supplemental response nor is there any indication the court held a hearing on objections. (See Code Civ. Proc., § 634.) If anything, a review of the record demonstrates that Williams expressed a preference for the July 2017 Statement of Decision rather than the September 1, 2017 form judgment, because it “was very detailed and the Judgment form does not reflect the details.”

Williams thus waived her right to argue the Statement of Decision is deficient, and we imply that the trial court made the requisite findings under the TPO to support the court’s determination of liability and award of fees. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134 [“if a party does not bring such deficiencies [in a statement of decision] to the trial court’s attention, that party waives the right to claim on appeal that the statement was deficient . . . and hence the appellate court will imply findings to support the judgment”].)

Further, as the party challenging the sufficiency of the evidence, Williams was required to “ ‘ “fairly summarize all of the facts in the light most favorable to the judgment” ’ ” rather than simply citing the evidence most favorable to her position. (Contra Costa County v. Pinole Point Properties, LLC (2015) 235 Cal.App.4th 914, 934.) Because Williams fails to set forth all material evidence here, we may affirm the trial court’s determination on that basis alone. (Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 998 [forfeiting review for the failure to “set out all evidence pertinent to that determination”].)

Upon our independent review of the evidence, Williams cannot prevail on the merits. When we review a judgment for substantial evidence, we “ ‘accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment,’ ” and we do not “ ‘reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.’ ” (Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 488.) Rather, we ask whether “there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)

Here, the trial court credited Goins’s expert’s testimony as establishing the elements of the TPO—notice to the landlord, and the landlord engaging in proscribed conduct including the failure to perform repairs and maintenance required by various housing or health laws. (Oakland Mun. Code, §§ 8.22.640, subd. (A), 8.22.650.) Goins’s expert visited the property three times— once in July 2015, once in September 2016, and once in May 2017. He testified that the property was in similar disrepair on each visit. The record shows significant habitability violations inside and outside of Goins’s unit, both before and after he filed his lawsuit. Although Williams argues there is no evidence she acted in bad faith because she was actively remediating the property, the record contains evidence that Williams did not undertake her repairs until just before the court’s judgment. Moreover, the record shows that Goins complained by leaving notes at Williams’s appliance business that were delivered to Williams. The lack of response to Goins’s complaints coupled with the last-minute efforts to remediate the deficiencies at the premises support the trial court’s finding of bad faith.

Thus, because Williams cannot demonstrate the court’s findings lack substantial evidence, we affirm the finding that Goins is a Prevailing Tenant under the Tenant Protection Ordinance and reject her request to vacate the December 13, 2017 attorney fee award. (Oakland Mun. Code, § 8.22.670, subd. (D)(2) [“In any civil action brought pursuant to the TPO, the prevailing Tenant is entitled to recover the Tenant’s reasonable attorney’s fees”]; Galvan v. Wolfriver Holding Corp. (2008) 80 Cal.App.4th 1124, 1128 [the court has broad discretion to determine which party is a prevailing party within the meaning of statutes authorizing attorney fees].)

D. The Trial Court Did Not Abuse Its Discretion in Reducing Goins’s Attorney Fee Award

Goins’s attorneys sought $318,314 in fees, but the court awarded only $49,875. Goins contends the trial court abused its discretion by reducing the hourly rate for one attorney—a partner at the firm—and significantly reducing the number of compensable hours supporting the fee award. We disagree.

Under the lodestar method, attorney fees are calculated by first multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate of compensation. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132.) “We review the amount of attorney fees awarded for abuse of discretion,” and “[a]n attorney fee award will not be set aside ‘absent a showing that it is manifestly excessive in the circumstances.’ ” (Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 544.) Where the only issue is the amount of fees awarded, “ ‘it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)

Among the factors the trial court must consider in making a fee award is “the labor and necessity for skilled legal training and ability in trying the case.” (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507.) “When apprised of the pertinent facts, a trial court may rely on its own experience and knowledge in determining the reasonable value of the attorney’s services.” (Ibid.) We conclude the trial court properly relied on its own knowledge in reducing the amount of fees sought by Goins.

1. Attorney Rates
2.
Significantly, Goins did not segregate the services or number of hours the partner spent on this case when presenting his fee request to the trial court. On appeal, Goins’s states the partner contributed 134 hours defending against the cross-complaint and he assisted and provided advice on trial preparation. At his requested hourly rate of $435, the partner’s fees exceed $56,000. But the question is not whether this work was performed. Rather, the question is whether the specific tasks and time spent on the case were reasonably necessary. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 622.)

When it reduced the hourly rate of the partner from $435 to $375—the rate for the firm’s associate—the trial court explained the rate was “sufficient and reasonable as to the services” the partner provided in this case. Since “the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom” and the decision states the lower rate was reasonable for the services the partner performed, the court acted within the scope of its discretion. (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702 [finding no abuse of discretion where trial court adopted reasonable rates that exceeded the actual rates billed by insurance company attorneys].)

3. Reduction in Hours
4.
Reducing a fee award may also be appropriate when a litigant achieves partial success on claims. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249.) A court is authorized to make a reasonable estimate when an exact allocation between compensable and non-compensable claims is nearly impossible. (Track Mortgage Group, Inc. v. Crusader Ins. Co. (2002) 98 Cal.App.4th 857, 867-868.)

Here, Goins did not identify the number of hours his attorneys reasonably incurred litigating the TPO or the other successful claims, such as the implied warranty of habitability. Nor does he describe the number of hours his attorneys incurred litigating unsuccessful claims. In light of the circumstances, the trial court found “it appropriate to apportion the fees to arrive at a figure that compensates Goins for reasonable fees incurred in connection with his TPO cause of action while excluding compensation for services on non-fee bearing claims, some of which were unsuccessful.” As a result, the trial court found Goins attorneys reasonably incurred 125 hours on the merits and eight hours on the attorney fees motion, as opposed to the requested 848 hours. (See Hensley v. Eckerhart (1983) 461 U.S. 424, 436, [“If . . . a plaintiff has achieved only partial . . . success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount . . . even where the plaintiff’s claims were interrelated, nonfrivolous, and raised in good faith”]; Calvo Fisher & Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 628 [“ ‘Once a trial court determines entitlement to an award of attorney fees, apportionment of that award rests within the court’s sound discretion’ ”].) The trial court appropriately exercised its discretion in apportioning attorney fees between the efforts to litigate the TPO and the unsuccessful claims.

5. The Court Erred by Awarding Palomata Costs
6.
We agree with Goins that the trial court erred by awarding Palomata costs. “A prevailing party who is represented by the same counsel as a nonprevailing party may only recover those costs the prevailing party incurred and were reasonably necessary to the prevailing party’s conduct of the litigation, not the other jointly represented parties’s conduct of the litigation. [Citation.] Whether to award costs that were incurred by both the prevailing party and the nonprevailing party, and were reasonably necessary to the conduct of the litigation for both the prevailing and nonprevailing party, is left to the trial court’s sound discretion based on the totality of the circumstances.” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 744.)

Palomata and Williams were both represented by the same counsel in the superior court. Although the trial court appropriately determined that Palomata was a prevailing party under Code of Civil Procedure section 1032, subdivision (a)(4), it awarded Palomata costs in the absence of any application filed on behalf of Palomata and in the absence of any declarations or affidavits that Palomata actually incurred any expenses. Indeed, the trial court acknowledged the cost memo that Williams’s attorney filed “does not specify whether it was filed on behalf of Palomata or Williams or both.” Although trial courts may award costs incurred by a prevailing defendant, even if they benefited a losing codefendant, there must be some evidentiary showing the prevailing defendant incurred the costs. (See Kramer v. Ferguson (1964) 230 Cal.App.2d 237, 250 [“affidavit that the items were necessarily incurred by the successful defendant, unless controverted, is controlling”].) Accordingly, we vacate the order granting Palomata costs and otherwise affirm.

IV. DISPOSITION
V.
The appeal of the September 1, 2017 order of judgment is dismissed. The December 2017 final judgment and Order awarding attorney fees to Goins is affirmed. The December 2017 Order awarding Palomata costs is vacated. Costs on appeal shall be awarded to Goins.

_____________________________

SIGGINS, P. J.

WE CONCUR:

_____________________________

FUJISAKI, J.

_____________________________

JACKSON, J.