Opinion
H041638
02-01-2017
EARL & REIMER APC et al., Plaintiffs, Cross-defendants, and Respondents, v. JOHN KLIMEK, Defendant, Cross-complainant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-12-CV230539)
Appellant John Klimek retained respondents Earle & Reimer, a Professional Corporation, and attorney Pauline Reimer in a complex marital dissolution case. Klimek then refused to pay Earle & Reimer approximately $32,480 in legal fees. The fee dispute was sent to arbitration, and Earle & Reimer rejected the arbitration award and requested a trial de novo on the fee issue. Klimek cross-complained, alleging causes of action for legal malpractice and breach of fiduciary duty. Earle & Reimer responded to the cross-complaint and served discovery requests on Klimek. Klimek failed to respond to the discovery requests and made evasive answers, prompting Earle & Reimer to file several motions to compel, which were granted by the trial court below. After a hearing, the trial court ultimately ordered issue, evidence, and terminating sanctions dismissing Klimek's cross-complaint and striking certain affirmative defenses. The trial court also awarded Earle & Reimer monetary sanctions for reasonable attorney fees incurred as a result of Klimek's misuse of the discovery process under Code of Civil Procedure section 2023.030.
Respondents in this case are Earle & Reimer and Pauline Reimer, who is an attorney at Earle & Reimer. Collectively, we will refer to respondents as "Earle & Reimer" for clarity.
Unspecified statutory references are to the Code of Civil Procedure.
Earle & Reimer's complaint proceeded to trial. Judgment was entered in favor of Earle & Reimer in the sum of $32,480. Citing the terms of the attorney fee agreement between Klimek and Earle & Reimer, Earle & Reimer moved for reasonable attorney fees in the amount of $166,545. Earle & Reimer argued the attorney fees should be awarded in addition to the fees that had already been ordered as discovery sanctions. The trial court granted Earle & Reimer's request in its entirety, and defendant appealed. For the reasons set forth below, we reverse the trial court's order, because it failed to deduct the attorney fees already awarded as discovery sanctions from its later fee award.
Klimek appealed this judgment, which this court affirmed in Earle & Reimer APC et al. v. Klimek (H041037, July 5, 2016 [nonpub. opn.]).
BACKGROUND
1. The Underlying Action and the Cross-complaint
In May 2007, Klimek retained Earle & Reimer in a complex marital dissolution matter. The attorney fee agreement between Klimek and Earle & Reimer provided that a prevailing party in a legal action to enforce the terms of the fee agreement would be entitled to recover reasonable attorney fees. Subsequently, Klimek failed to pay Earle & Reimer $32,480 in legal fees. The fee issue was submitted to arbitration, but Earle & Reimer rejected the arbitration award and requested a trial de novo on the issue.
After Earle & Reimer filed its complaint against Klimek seeking unpaid fees, Klimek responded by filing a cross-complaint alleging causes of action for legal malpractice and breach of fiduciary duty. In order to respond to Klimek's cross-complaint, Earle & Reimer served Klimek with various discovery motions.
2. The Various Discovery Motions
a. Motion to Compel Further Answers to Interrogatory Set One
On March 15, 2013, Earle & Reimer served Klimek with a set of specially-prepared interrogatories requesting that Klimek identify various facts and documents supporting his cross-complaint for legal malpractice and breach of fiduciary duty. Klimek responded to the interrogatories by referencing section 2030.230, which provides that an answer to an interrogatory may specify the writings from which the answer may be derived or ascertained. Klimek's response referred Earle & Reimer to its own client files for Klimek and the documents submitted in connection with the fee arbitration.
On June 4, 2013, Earle & Reimer moved for an order compelling further answers to its special interrogatories and for sanctions. On August 14, 2013, Klimek filed an ex parte application to continue the motion, which the court denied. Klimek did not otherwise oppose the motion.
On August 16, 2013, the motion was argued and submitted to the trial court. The trial court granted Earle & Reimer's motion to compel further responses and ordered Klimek to serve answers within 20 days. The trial court then determined that Klimek's reference to section 2030.230 was vague, improperly evasive, and subject to sanctions under section 2023.030. The court noted that Earle & Reimer claimed to have spent a total of 17 hours researching and writing the memorandum of points and authorities and accompanying declarations for the motion to compel. The court concluded it could not award monetary sanctions for "anticipated fees," and determined that "a motion of this nature should take approximately 6 hours." Since Earle & Reimer's rate was $450 an hour, the court ordered sanctions in the amount of $2,700 for six hours of legal work and an additional $60 in court costs. The order directed Klimek's attorney to pay the sanctions within 20 days.
b. Motion to Compel Response to Production of Documents
On June 19, 2013, Earle & Reimer served on Klimek a demand for production of documents. Klimek failed to respond to the demand, and Earle & Reimer moved to compel a response to the demand and for sanctions. Klimek did not oppose the motion.
On October 9, 2013, the trial court granted the motion to compel. The trial court also granted Earle & Reimer's request for sanctions in the amount of $2,535, to be paid by Klimek. Earle & Reimer had represented in its request for sanctions that it had spent a total of 5.5 hours at a rate of $450 an hour in preparing the motion to compel and had incurred a total of $60 in court costs.
c. Motion for an Order Imposing Sanctions for Failure to Obey Prior Order
On October 24, 2013, Earle & Reimer filed a motion for an order imposing sanctions for Klimek's failure to obey the court's August 16, 2013 order. The motion requested terminating sanctions against Klimek dismissing Klimek's cross-complaint and striking several of his affirmative defenses, issue and evidence sanctions, and $3,075 in sanctions under sections 2023.010 and 2023.030 for reasonable attorney fees incurred in connection with preparing the motion. Klimek did not file a formal opposition to the motion.
After a tentative order granting Earle & Reimer's motion was prepared, Klimek filed a declaration attesting he had complied with the court's prior order. A hearing was held on the matter, and the parties disputed whether Klimek's answers were responsive and compliant with the court's order.
On November 22, 2013, the court granted Earle & Reimer's motion for terminating, issue, and evidence sanctions. The court also ordered Klimek to pay $3,075 of attorney fees as discovery sanctions.
d. Motion to Compel Answers to Form Interrogatories
On October 29, 2013, Earle & Reimer served on Klimek a set of form interrogatories. Answers were due on December 3, 2013, and Klimek failed to respond. On December 13, 2013, Earle & Reimer filed a motion to compel answers to its set of interrogatories. Earle & Reimer also requested monetary sanctions in the amount of $2,520 in attorney fees incurred in preparation of the motion and $60 in costs, for a total of $2,580.
On February 8, 2014, the court granted Earle & Reimer's motion to compel. It also granted Earle & Reimer's request for sanctions in part, ordering Klimek to pay $1,860 to Earle & Reimer within 20 days.
3. The Trial, Judgment, and Motion for Relief from Discovery Order
On March 17, 2014, the court held a trial on Earle & Reimer's action for unpaid legal fees. Prior to trial, Earle & Reimer made a motion in limine asking the court to enforce the November 22, 2013 order issuing evidence, issue, and terminating sanctions. The court determined the previous sanctions order precluded defendant from introducing any evidence on the issue of attorney fees. Judgment was entered in favor of Earle & Reimer in the sum of $32,480.
Thereafter, Klimek filed a motion for relief from the November 22, 2013 order granting terminating, issue, and evidence sanctions under section 473, subdivision (b), alleging the terminating sanctions were incurred solely due to attorney fault. On April 18, 2014, the trial court denied Klimek's motion for relief.
As previously noted, Klimek appealed the judgment and the motion for relief. We affirmed the trial court's judgment in Earle & Reimer APC et al. v. Klimek (H041037, July 5, 2016 [nonpub. opn.]).
4. Motion for Attorney Fees
Earle & Reimer moved for an award of reasonable attorney fees on May 15, 2014, under Civil Code section 1717 and Business and Professions Code section 6204, subdivisions (d) and (e), citing the terms of the attorney fee contract between Earle & Reimer and Klimek. The motion requested a total of $166,545 in fees, which were incurred through May 15, 2014. Earle & Reimer specifically requested the fees be awarded in addition to the sanctions already ordered by the court for the various discovery violations.
Klimek opposed Earle & Reimer's request for fees, arguing both that the amount of fees requested was unreasonable and that the fees were in excess of the amount deemed reasonable by the court when it imposed discovery sanctions.
Earle & Reimer responded, arguing that contractual attorney fees awarded under the attorney fee contract between Earle & Reimer and Klimek should not be constrained by the amount awarded as discovery sanctions. During the hearing on the matter, the trial court asked both parties to submit briefs discussing whether its decision on contractual attorney fees was bound by the prior discovery orders granting attorney fees as sanctions.
Earle & Reimer submitted a supplemental memorandum of points and authorities pursuant to the trial court's request. The supplemental memorandum argued that attorney fees awarded as sanctions are based on a different rationale than other fee awards and are not meant to be fully compensatory. Therefore, Earle & Reimer insisted the trial court should not consider the previously awarded discovery sanctions as binding on its determination on the amount of attorney fees to be awarded under the attorney fee contract.
Klimek did not submit a supplemental brief. On September 12, 2014, the trial court granted Earle & Reimer's request for attorney fees in its entirety. In its decision, the court rejected Klimek's claim that the discovery orders were binding on the issue of contractual attorney fees, noting that "sanctions differ from the fees actually incurred and claimed under contract and are imposed for different purposes." Klimek appealed.
DISCUSSION
On appeal, Klimek attacks the trial court's order on attorney fees. He claims the court erred when it granted attorney fees for the various discovery motions in excess of and in addition to the sanctions of attorney fees that had already been ordered.
1. Failure to Adhere to the California Rules of Court
Before we address the merits of Klimek's claims, we first note that our review of his arguments was hampered by his failure to comply with the California Rules of Court. Klimek's brief fails to support each reference to a matter in the record by a citation to the volume and page number where the matter appears. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
For example, in his opening brief Klimek states the discovery judge found only 22.2 hours of work to be reasonable for the four discovery motions. Klimek then argues that when Earle & Reimer filed its motion for contractual attorney fees as the prevailing party, it submitted that it had spent 103.1 hours on the same discovery matters. None of these figures are supported by citations to the record. The few citations Klimek does provide are largely inaccurate and are not to the appropriate pages in his appellant's appendix. For instance, Klimek asserts that Earle & Reimer sought reasonable attorney fees in the amount of $9,900 in connection with its first motion to compel, citing to the second page of the appellant's appendix. The second page of the appellant's appendix is the proof of service for Klimek's notice of appeal.
" ' "It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations." ' [Citation.] Because '[t]here is no duty on this court to search the record for evidence' [citation], an appellate court may disregard any factual contention not supported by a proper citation to the record." (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) Thus, we may, in our discretion, strike portions of the brief that are noncompliant with the California Rules of Court and deem the unsupported arguments to be waived. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Earle & Reimer argues this court should exercise its discretion and find Klimek has waived his appellate arguments for filing a brief containing inadequate record citations. Although Earle & Reimer pointed out this deficiency in its respondent's brief, Klimek did not attempt to correct his error nor did he file a reply brief. Although we agree with Earle & Reimer that Klimek's failure to provide adequate record citations is troubling, we are able to reasonably discern Klimek's arguments on appeal. Therefore, we will address the merits of Klimek's claims. In so doing, we do not mean to minimize Klimek's failure to adhere to the California Rules of Court. We also caution Klimek that in future filings with this court, he should provide record citations as required by the California Rules of Court or risk forfeiting review of his claims.
2. Overview and Standard of Review
"Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties." (§ 1021.) Civil Code section 1717 provides that reasonable attorney fees, as fixed by the court, shall be granted to a prevailing party in an action on a contract where the contract provides that attorney fees and costs shall be awarded.
" 'Trial judges are entrusted with this discretionary determination because they are in the best position to assess the value of the professional services rendered in their courts.' " (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 882.) "[T]he award of such fees is governed by equitable principles." (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774 (EnPalm).) "The first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer's hourly rate." (Ibid.) "[A]fter determining the lodestar amount, the court shall then ' "consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the [Civil Code] section 1717 award so that it is a reasonable figure." ' " (Ibid.)
"The standard of review on issues of attorney's fees and costs is abuse of discretion. The trial court's decision will only be disturbed when there is no substantial evidence to support the trial court's findings or when there has been a miscarriage of justice. If the trial court has made no findings, the reviewing court will infer all findings necessary to support the judgment and then examine the record to see if the findings are based on substantial evidence." (Finney v. Gomez (2003) 111 Cal.App.4th 527, 545, fns. omitted.)
3. Analysis
a. Improper Reconsideration of Discovery Orders
First, Klimek argues the trial court already determined in some of the prior discovery orders the number of hours that were reasonably spent working on the various motions to compel. Klimek claims these determinations were later overridden by the trial court when it granted Earle & Reimer's request for attorney fees in its entirety, which included hours in excess of what the prior discovery orders had deemed reasonable. According to Klimek, the trial court's later redetermination of the reasonableness of certain fees was erroneous.
We find Klimek has waived his argument on this point, because he fails to support it with reasoned legal argument. "It is a fundamental rule of appellate review that the judgment appealed from is presumed correct and ' " 'all intendments and presumptions are indulged in favor of its correctness.' " [Citation.]' [Citation.] An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and a presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Klimek's argument on this issue is confined to two pages in his opening brief, and the first page of argument largely consists of a summary of the underlying facts in the case. The rest of the argument is completely devoid of citations to legal authority and reasoned legal analysis. In a conclusory fashion, Klimek alleges the trial court's actions were erroneous. He does not, however, meet his burden to provide legal authority supporting his claim that the court's decision should be reversed. (Akins v. State of California (1998) 61 Cal.App.4th 1, 50 [contention waived by failure to cite any legal authority]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
The only legal authorities cited by Klimek in the entirety of his argument are to two statutes, sections 2023.010 and 1008. Klimek referenced section 2023.010 briefly as the statute under which the discovery sanctions were imposed. His reference to section 1008 similarly imparts no legal analysis. He merely cites to section 1008 when he, without any analysis, asserts that the trial court's decision on attorney fees was essentially a motion for reconsideration of the court's earlier discovery rulings without the support required under section 1008.
Furthermore, even if we were to consider Klimek's claims, we would find they are without merit. Section 1008 does not act as a bar against the trial court from reconsidering whether Earle & Reimer had reasonably spent additional hours working on the various discovery motions. On its own motion, a trial court may reconsider its prior interim orders. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 [holding that "sections 437c and 1008 limit the parties' ability to file repetitive motions but do not limit the court's ability, on its own motion, to reconsider its prior interim orders"].) Under section 904.1, an order directing payment of monetary sanctions over $5,000 is an appealable order. All of the sanctions orders issued by the trial court for Klimek's various discovery misuses were for sums of less than $5,000, rendering them interim orders that were nonappealable until a final judgment had been entered in the case.
Earle & Reimer argues the court did not actually make express findings regarding the reasonableness of the attorney fees in its discovery orders. Regardless, assuming the trial court did make such findings, Klimek's claim would still fail.
When a trial court reconsiders a previous interim order on its own motion, it must give notice to the parties that it may do so and allow the parties an opportunity to litigate and brief the issue. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 215.) In this case, to the extent the trial court can be construed as having reconsidered the prior sanctions orders, the record reflects the court did give notice to the parties that it was reconsidering the reasonableness of the amount of attorney fees awarded for the various discovery motions. Below, the court gave the parties an opportunity to brief the reasonableness of the attorney fees request and specifically asked for supplemental briefing on whether its earlier discovery orders were binding.
There are other limitations on a trial court's reconsideration of a prior ruling. Here, a different trial judge issued the order on the attorney fees. It is a general rule that one trial judge may not reconsider and overrule an interim ruling made by another trial judge. (In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248.) Based on the record, it appears that one of the exceptions to this rule, which occurs when there has been a change in the facts or when the judge has considered additional evidence and law, applies. (Ibid.) When Earle & Reimer requested attorney fees as the prevailing party, it submitted additional documents and evidence supporting its motion for attorney fees, including detailed billing statements and declarations attesting to the amount of time spent on certain motions. These statements were not submitted with its motions requesting discovery sanctions.
Accordingly, Klimek's claim that the trial court impermissibly reconsidered its prior ruling is without merit.
b. Reasonableness of Attorney Fees
Next, Klimek argues the trial court abused its discretion when it granted Earle & Reimer attorney fees in excess of the amount they had requested in their earlier discovery motions as sanctions.
As we previously discussed, the trial court has broad discretion when determining the amount of fees to be awarded. "The factors to be considered include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case." (EnPalm, supra, 162 Cal.App.4th at p. 774.)
Klimek argues it is clear the court abused its discretion in awarding Earle & Reimer the entirety of their requested fees, because in some instances Earle & Reimer initially requested and received substantially less fees when it moved for attorney fees as discovery sanctions. For example, Klimek argues that for one of the discovery motions, Earle & Reimer had initially claimed to have spent approximately six hours researching and writing the motion and requested six hours worth of attorney fees as discovery sanctions under section 2023.030. Later, when Earle & Reimer requested attorney fees as the prevailing party under the attorney fee agreement, it claimed it had spent approximately 54 hours on the very same discovery motion.
Again, we note that Klimek does not provide any citation to the record in support of these factual assertions.
Although the discrepancy between the claimed hours is significant, we cannot say the trial court abused its discretion when it awarded Earle & Reimer attorney fees in the full amount requested, in excess of the amounts awarded by the earlier sanctions orders. First, Earle & Reimer argues the attorney fees requested as discovery sanctions did not encompass the entire amount of work spent on each motion, as indicated by its statements that it had spent "an excess" of a certain number of hours on each discovery motion in its earlier declarations. Additionally, as noted previously, when Earle & Reimer made its requests for attorney fees as discovery sanctions under section 2023.030, it did not submit items such as detailed billing statements. When Earle & Reimer later requested attorney fees as the prevailing party, it submitted a thorough declaration itemizing the time it had spent working on each matter. It also submitted detailed billing records that showed how much time it had spent litigating the case, breaking down each item worked on by the time spent and the cost incurred. In sum, Earle & Reimer submitted evidence supporting its attorney fee request.
Klimek argues the court erred when it granted the attorney fees request in its entirety, because it awarded fees for matters that were not reasonable or necessary. In essence, Klimek is asking for us to reweigh the sufficiency of trial court's findings, which were based on the declarations and billing statements submitted with Earle & Reimer motion. That is not our role. On appeal, "[w]e may not reweigh . . . a trial court's assessment of an attorney's declaration. [Citation.] 'The trial court, with declarations and supporting affidavits, [is] able to assess credibility and resolve any conflicts in the evidence. Its findings . . . are entitled to great weight. Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court's ruling is based on oral testimony or declarations. [Fn. omitted.]' " (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1323.)
A trial court's " 'fee determination " ' "will not be disturbed unless the appellate court is convinced that it is clearly wrong." ' " ' " (G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 621.) Given the broad discretion vested in the trial court when determining an attorney fees award, we do not find the court's order to be so unreasonable as to render it beyond the bounds of reason and an abuse of discretion. The court assessed Earle & Reimer's declarations and evidence and, by granting the fees, impliedly found them to be credible and reliable. We must defer to the trial court's findings.
c. Award of Fees Already Included in Sanctions Order
We do, however, find merit in Klimek's claim that the trial court unreasonably awarded fees that were duplicative of the fees already awarded as discovery sanctions.
First, we reject Earle & Reimer's argument that Klimek fails to demonstrate the trial court erred when it awarded duplicate fees. Earle & Reimer surmises that because its request for attorney fees only encompassed those fees incurred before May 15, 2014, the trial court could have feasibly included in its final calculation the attorney fees incurred by Earle & Reimer after May 15, 2014, deducted the amounts that were already ordered as discovery sanctions, and coincidentally reached a total amount of $166,545, the same amount that Earle & Reimer requested in its motion.
Earle & Reimer bases its argument on the well-settled principle that " '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) When the trial court granted Earle & Reimer's request for attorney fees, it remained silent on whether it was including the amount of attorney fees that had already been awarded as discovery sanctions in its final calculations. Earle & Reimer argues the trial court's silence on this issue resolves the matter in its favor, because Klimek is unable to show error. We disagree with Earle & Reimer's characterization of the court's actions.
When it requested attorney fees as the prevailing party, Earle & Reimer specifically requested the fees be awarded in addition to the fees that were already ordered as sanctions, without any deduction for the previous sanctions. Earle & Reimer then asked for attorney fees in the amount of $166,545, a calculation that incorporated the hours spent working on the discovery motions. In its order granting the attorney fees request, the court stated that it found Earle & Reimer's request for fees in the sum of $166,545 to be reasonable based on the attached declaration and billing statements. It made no mention of considering fees incurred after May 15, 2014. And at no time did Earle & Reimer request additional attorney fees for hours worked after May 15, 2014. Based on the trial court's order and Earle & Reimer's initial request for attorney fees, we can logically infer the court impliedly agreed with Earle & Reimer's argument that the attorney fees should be awarded in addition to the discovery sanctions. Therefore, the award included fees that duplicated amounts already awarded as sanctions.
As previously discussed, a trial court is vested with broad discretion when setting a reasonable amount of fees, and its determination will not be disturbed absent an abuse of discretion. (G.R. v. Intelligator, supra, 185 Cal.App.4th at p. 621.) The trial court's award of attorney fees, which included attorney fees already awarded as sanctions, exceeded the bounds of reason.
"[M]onetary discovery sanctions payable to the opposing party are limited to the opposing party's actual costs, including attorneys' fees." (In re Marriage of Niklas (1989) 211 Cal.App.3d 28, 37.) "The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment." (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 304.) "In other words, discovery sanctions exist 'not to provide a weapon for punishment for past violations or penalty for past conduct but to secure compliance with orders of the court.' " (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.) "A discovery sanction may not place the party seeking discovery in a better position than it would have been in if the desired discovery had been provided and had been favorable." (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 332.)
Monetary discovery sanctions awarding attorney fees, like contractual attorney fee provisions, are meant to compensate parties for reasonable attorney fees incurred due to the underlying litigation. Attorney fees imposed as discovery sanctions are not meant to be punitive. Awarding attorney fees for hours that were already compensated by discovery sanctions, which are separately enforceable (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615), would frustrate the purpose of discovery sanctions and would go against the equitable principles that govern the award of contractual attorney fees (EnPalm, supra, 162 Cal.App.4th at p. 774 ["[T]he award of such fees [contractual attorney fees] is governed by equitable principles"]). In essence, Earle & Reimer would be obtaining a double recovery.
For these reasons, we must reverse the trial court's award of attorney fees. On remand, the trial court is ordered to recalculate the amount of attorney fees to be awarded to Earle & Reimer, deducting the duplicative amounts already ordered as discovery sanctions.
DISPOSITION
The order granting attorney fees is reversed. On remand, the trial court is directed to recalculate the amount of attorney fees by deducting the amount already awarded to Earle & Reimer as discovery sanctions. The parties are to bear their own costs on appeal.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Elia, J.