Opinion
A151579
08-09-2018
BARNABA BIENKOWSKI et al., Plaintiffs and Appellants, v. RICKY LAM, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. CGC-13-534099)
In an underlying action, appellants (Tenants) sued their landlord, alleging their rentals were uninhabitable illegal dwelling units. Tenants named Ricky Lam, the landlord's brother-in-law, as a defendant, contending he was an undisclosed partner of the landlord. In a prior appeal, we affirmed summary judgment for Lam, concluding Tenants failed to raise a triable issue regarding his liability. (Bienkowski v. Lam (Dec. 1, 2016, A145551) [nonpub. opn.].) On remand, Lam sought attorney fees under fee provisions in Tenants' written leases and Civil Code section 1717, as well as under fee-shifting provisions in section 1942.4 and San Francisco's rent ordinance (S.F. Admin. Code, § 37.1 et seq.; hereafter Rent Ordinance). The court awarded almost all of Lam's requested fees without written explanation. We modify the award to account for an apparent double-counting error and otherwise affirm.
Appellants include Barnaba Bienkowski, Julia Dickinson, Kyla Ferguson, Antoinette Flores, Matthew Flores, and Janet Villanueva. On their civil case information statement, appellants also identify Juan Delgado as an appealing plaintiff, but the register of actions in the record of appeal No. A145551 (of which we take judicial notice pursuant to Evid. Code, §§ 452, subd. (d), 459, subd. (a)) shows Delgado was dismissed from the action without prejudice in 2013, he was not named as a plaintiff in the operative third amended complaint, and appellants (who failed to include a register of actions in their appellants' appendix for the instant appeal; see Cal. Rules of Court, rule 8.122(b)(1)(F), 8.124(b)(1)(A)) do not demonstrate he was added as a plaintiff at any later time. Although Delgado appears in the caption of the fee order under review, such captioning does not make him a party to the action or this appeal.
Undesignated statutory references are to the Civil Code.
I. BACKGROUND
In September 2013, Tenants sued Lam, Lawrence Choy, Christina Sutton and unnamed Doe defendants. As alleged in their operative May 2014 third amended complaint, Tenants rented units in two San Francisco properties (Properties) at various times between 2008 and 2010. Only Choy signed Tenants' leases as "Owner" or "Landlord." However, Choy's brother-in-law, Lam, was the alleged "beneficial owner" of the Properties and Tenants claimed both Choy and Lam were "liable for constructing . . . illegal units and allowing the illegal units to be rented to [Tenants] with full knowledge of their illegality," failing to maintain the units in habitable condition, and ratifying the actions of Sutton, a property manager. Tenants brought causes of action for negligence, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, violation of the Rent Ordinance, intentional infliction of emotional distress, fraud, and violation of section 1942.4. The trial court granted Lam summary judgment and we affirmed. Tenants had failed to raise a triable issue on whether Lam was a partner of Choy in a real estate enterprise that included rental of the Properties. (Bienkowski v. Lam, supra, A145551.)
While the prior appeal was pending, Lam moved for attorney fees, but the parties agreed to continue hearing on the motion until the appeal was resolved. After the remittitur issued in 2017, Lam filed an "amended" motion that purported to incorporate by reference his original moving papers and "supplement" them with arguments regarding fees on appeal. Lam served the amended motion on March 14, 2017—15 court days before the scheduled April 5, 2017 hearing, but one day short of the 16-court-day requirement. Lam sought attorney fees pursuant to section 1717 for prevailing on Tenants' contract claims, based on fee provisions in the Tenants' written leases; Rent Ordinance section 37.9, subdivision (f) for prevailing on the Rent Ordinance claims; and section 1942.4, subdivision (b), for prevailing on the section 1942.4 claim. He sought a total fee award of $48,815. Tenants opposed the motion on procedural and substantive grounds discussed post. Following a hearing and limited supplemental briefing, the court awarded Lam $47,938 in a summary written order.
"Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing." (Code Civ. Proc., § 1005, subd. (b).) Lam's counsel later explained that his office practice software failed to account for a court holiday (Cesar Chavez Day).
The trial court's reduction of Lam's fee request apparently reflected attorney time spent in a meeting with Choy, who had settled with Tenants and assumed his own costs. Neither party contests the deduction on appeal.
II. DISCUSSION
A. Procedural Arguments
Tenants raised two procedural objections to Lam's fee motion in the trial court: Lam improperly attempted to incorporate legal arguments from his original moving papers, and Lam failed to serve the renewed motion a full 15 days before the hearing on the motion. On appeal, they also claim the trial court's "order is defective where it fails to designate a prevailing party or any explanation as to its basis." We conclude the first two arguments are forfeited on appeal, and the third does not warrant reversal because Tenants fail to establish prejudice.
1. Forfeited Arguments
In the trial court, Tenants argued that, without improper incorporation by reference of arguments from his original moving papers, Lam's amended motion failed to cite sufficient legal authority or provide sufficient legal analysis to support his fee request. Tenants also argued the original moving papers failed to cite sufficient authority or provide sufficient analysis. The trial court chose to address Lam's arguments on the merits. On appeal, Tenants argue Lam "did not apply any of the statutes or contract to his situation" and "offered no actual analysis that he would have been liable for attorney[] fees even if [Tenants] proved he was a partner . . . ." Tenants do not expressly argue on appeal that the fee award should be reversed on the procedural ground Lam improperly incorporated arguments from his original moving papers. More importantly, they cite no legal authority that the trial court lacked discretion to consider incorporated arguments. Therefore, the procedural argument is forfeited. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["[w]hen 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"].)
We address the sufficiency of Lam's legal authority and legal arguments post.
Tenants fault the trial court for failing to make an express prevailing party determination or explain the basis for its fee award in its written order. Tenants cite no legal authority for the proposition the court had a duty to make express findings nor do they provide legal argument applying established legal principles to the facts of this case. This argument is forfeited. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)
2. Timeliness of Notice
Tenants have preserved their timeliness argument, and the record shows the renewed motion was not timely served. Lam does not dispute this fact. However, this "irregularity is not reversible. 'The principal purpose of the requirement to file and serve a notice of motion a specified number of days before the hearing ([Code Civ. Proc.,] § 1005, subd. (b)) is to provide the opposing party adequate time to prepare an opposition. That purpose is served if the party appears at the hearing, opposes the motion on the merits, and was not prejudiced in preparing an opposition by the untimely notice.' " (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 828-829.) We review the trial court's assessment of prejudice for abuse of discretion. (See Hilliard v. Lobley (1989) 216 Cal.App.3d 638, 640-641 [reviewing dismissal based on prejudicial delay in service of summons for abuse of discretion].) At the hearing on the motion, Tenants' counsel informed the court, "I had just finished a three-week trial at the time, and we [were] swamped." He argued an additional day would have been "a significant amount of time" to improve the opposition papers. He cited a specific omission attributable to the lack of time—failure to cite authority in support of his allocation argument—and the court allowed later written submission of the citation. Tenants' counsel did not bring any other omissions or errors to the court's attention during or following the hearing, and he does not argue on appeal he was precluded from raising any specific argument or citing any specific authority due to untimely service of the motion. We therefore conclude Tenants have not shown sufficient prejudice to justify reversing the fee award because it was untimely served. B. Substantive Claims
As noted ante, Lam argued he was entitled to attorney fees under the fee provision of the written leases and the reciprocal effect of section 1717, and also under the fee-shifting provisions of section 1942.4 and Rent Ordinance section 37.9. The trial court awarded fees without explanation. Tenants argued below and argue again on appeal that (1) Lam only litigated issues related to tort claims for which he had no entitlement to fees; (2) Lam was not entitled to fees under the written leases because he did not show liability under the leases as Choy's partner, and the leases were unenforceable illegal contracts; (3) Lam was not entitled to statutory fees under section 1942.4 or Rent Ordinance section 37.9 because he failed to show liability for fees under those statutes as Choy's partner; (4) attorney hours should have been allocated between claims that did and did not support entitlement to fees; and (5) the amount of fees was not reasonable because the claimed hours were not fully supported by Lam's billing records. On appeal, Tenants further argue the unilateral fee-shifting provision of Rent Ordinance section 37.10B bars an award of fees for overlapping work pursuant to contract or bilateral statutory provisions because such a fee award would undermine the public policy behind that unilateral fee provision. (See Carver v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 498, 504-506 (Carver).) We address these arguments in turn.
Tenants also argue for the first time on appeal that Lam failed to produce written leases with fee provisions covering all Tenants, producing only two leases covering four of them. This new argument requires Lam "to defend for the first time on appeal against a new theory that 'contemplates a factual situation the consequences of which are open to controversy and were not put in issue' " below. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) In any event, we need not address this argument because it would not lead to reversal of the fee award, which is supported by fee-shifting statutes for the reasons explained post.
" 'On appeal this court reviews a determination of the legal basis for an award of attorney fees de novo as a question of law.' " (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 821.) "The amount of an attorney fee to be awarded is a matter within the sound discretion of the trial court." (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)
1. Litigated Issues
Tenants argue Lam was not entitled to fees under the leases or the fee-shifting statutes because the only issues litigated in the summary judgment proceeding—vicarious liability and duty—were relevant only to Tenants' negligence claim. We disagree with Tenants' characterization of the summary judgment proceeding.
Tenants alleged in their complaint that Lam was liable on each cause of action as a "beneficial owner" of the Properties. As explained in our prior opinion, Tenants responded to Lam's discovery requests with factual allegations that amounted to a single legal theory of liability: essentially, they alleged Lam was a partner with Choy in a real estate enterprise that included the Properties. Tenants adhered to that theory in their opposition to Lam's summary judgment motion and on appeal. Although the trial court mentioned "vicarious liability" and "duty" in its order granting summary judgment to Lam, we were not bound by the trial court's reasoning. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) Our opinion did not address vicarious liability or duty, but applied partnership law and affirmed the summary judgment in its entirety. Essentially, we held that the sole ground of liability proposed by Tenants as to all of their claims—partnership liability—was not supported by Tenants' evidence as a matter of law. Lam was therefore entitled to judgment in his favor on all of Tenants' claims on this single ground (absence of partnership liability), which was common to all claims against him. (Bienkowski v. Lam, supra, A145551.)
Thus, contrary to Tenants' argument, Lam did in fact prevail on the claims on which he based his fee motion.
2. Statutory Fees
Tenants' complaint alleged that Lam violated Rent Ordinance section 37.9 by attempting to recover possession of the premises for impermissible reasons and without providing prior notice in writing. Rent Ordinance section 37.9, subdivision (f) provides: "Whenever a landlord wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Section[] 37.9 . . . , the tenant . . . may institute a civil proceeding for injunctive relief . . . . The prevailing party shall be entitled to reasonable attorney's fees and costs pursuant to order of the court." Tenants concede this is a mandatory bilateral fee-shifting provision. (See Hsu v. Abbara (1995) 9 Cal.4th 863, 872 ["[t]he words 'shall be entitled' reflect a legislative intent that a party prevailing on a contract receive attorney fees as a matter of right . . . whenever the statutory conditions have been satisfied"].) However, they argue Lam failed to demonstrate he would have been liable under this ordinance as a "beneficial owner" had Tenants prevailed on the claim.
Lam did not need to make any specialized argument because his lack of liability was self-evident. Rent Ordinance section 37.2, subdivision (h) defines "landlord" to include an "owner . . . entitled to receive rent . . . and the agent, representative . . . of the foregoing." Tenants identified Lam as an "owner" and specifically alleged he collected rent for Choy. Further, under Tenants' partnership theory of Lam's liability, tenants asserted (in their self-described "boilerplate definition of the term 'Defendants' ") that Lam was variously an agent of the owner, an owner, or a "beneficial owner" of the Properties; in those alleged roles Lam would have been entitled to receive Tenants' rent payments either directly or as the agent of his partner, Choy. (See Chambers v. Kay (2002) 29 Cal.4th 142, 151 [partnership generally "connotes co-ownership in partnership property, with a sharing in the profits"].) Therefore, Lam was entitled to recover his fees as the prevailing party on the Rent Ordinance section 37.9 claim.
Tenants' argument that Lam failed to demonstrate he would have been liable under section 1942.4 as a "beneficial owner," had Tenants prevailed on the section 1942.4 claim, fares no better. Tenants' complaint alleged Lam violated section 1942.4. Tenants do not dispute that this section provides a reciprocal entitlement to attorney fees to the prevailing party. (§ 1942.4, subd. (b).) Although a "landlord" is not defined for purposes of section 1942.4, Tenants' partnership theory of Lam's liability in our view again leads inexorably to the conclusion that Lam would have been properly characterized as a co-landlord of the Properties had Tenants prevailed.
3. Effect of Rent Ordinance Section 37.10B, a Unilateral Fee-Shifting Provision
In the same cause of action in which Tenants alleged Lam violated Rent Ordinance section 37.9, they alleged he violated Rent Ordinance section 37.10B by engaging in various forms of prohibited tenant harassment, which included terminating their tenancy, failing to perform maintenance or repairs, and disturbing their right to quiet use and enjoyment. Rent Ordinance section 37.10B, subdivision (c)(5) permits civil actions for damages for tenant harassment and provides "a prevailing plaintiff shall be entitled to reasonable attorney's fees and costs pursuant to order of the court" (italics added). This, of course, is a unilateral fee-shifting provision favoring plaintiffs, and Lam did not argue in the trial court he was entitled to fees under this statute. Tenants argue for the first time on appeal the trial court erred in awarding Lam fees for any attorney hours that were intertwined with defense of the Rent Ordinance section 37.10B claim because such an award undermines the public policy under the ordinance's unilateral fee-shifting provision. We consider this argument since it raises purely a question of law. (See Ward v. Taggart, supra, 51 Cal.2d at p. 742 [" 'a change in theory is permitted on appeal when 'a question of law only is presented on the facts appearing in the record' "].)
In Carver, supra, 119 Cal.App.4th 498, the court held that a prevailing defendant could not collect contract fees for hours spent defending both contract claims and Cartwright Act antitrust claims because doing so would undermine the legislative purpose of the Cartwright Act's unilateral fee-shifting provision favoring plaintiffs. (Id. at p. 504.) "[N]onreciprocal fee provisions 'are created by legislatures as a deliberate stratagem for advancing some public purpose, usually by encouraging more effective enforcement of some important public policy.' [Citations.] The public policy implicit in the unilateral fee-shifting provision of [the Cartwright Act] is to encourage injured parties to broadly and effectively enforce the Cartwright Act 'in situations where they otherwise would not find it economical to sue.' [Citation.] . . . [¶] In light of these public policy considerations, we conclude the unilateral fee-shifting provision . . . prohibits an award of attorney fees for successfully defending Cartwright Act and non-Cartwright Act claims that overlap." (Ibid.; see Wood v. Santa Monica Escrow Co. (2007) 151 Cal.App.4th 1186, 1190-1192 [following Carver and holding unilateral fee provision in elder abuse statute precluded award of contract fees on intertwined work].)
Our Supreme Court cited Carver with apparent approval in Jankey v. Lee (2012) 55 Cal.4th 1038, first noting the "general rule is that where a non-fee-shifting claim overlaps with a fee-shifting claim, it does not limit fee awards under the fee-shifting claim." (Id. at p. 1056.) The court went on to state, in dicta, that "[a]n exception may arise where to award fees on the fee-shifting claim would impair legislative policies implicated by the respective claims." (Ibid., citing Carver, supra, 119 Cal.App.4th at pp. 504-506.) The Jankey court, however, rejected a claim that a mandatory reciprocal fee shifting provision under the California Disabled Persons Act (DPA) (§ 54 et seq.) was preempted by the more stringent standard of the federal Americans with Disabilities Act (42 U.S.C. § 12101 et. seq.), which allows defendants' fees only for responding to frivolous claims and makes fee recovery discretionary. (Jankey, at pp. 1042, 1047, 1054.)
This court adopted an approach similar to Carver when faced with a conflict between bilateral and unilateral fee-shifting provisions in related statutes. In Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047 (Turner), the defendant had prevailed against claims brought under the DPA and the Unruh Civil Rights Act (Unruh Act) (§ 51 et seq.). An attorney fee provision applicable to the Unruh Act, section 52, is a unilateral fee-shifting provision in favor of plaintiffs. (Turner, at p. 1958 & fn. 7.) Two attorney fee provisions potentially applied to actions under the DPA, a unilateral provision similar to section 52 (§ 54.3) and a bilateral provision applicable to actions for injunctive relief (§ 55). (Turner, at pp. 1058-1059.)
We concluded the statutes were in conflict on the issue of whether a prevailing defendant could recover fees for defending claims that arose under all three of the fee provisions, where the work was inextricably intertwined and could not be allocated to specific claims. (Turner, supra, 193 Cal.App.4th at pp. 1059-1060.) "Section 55 on its face would permit defendant to recover fees for attorney hours spent defending claims under the Unruh Act and section 54.3, but sections 52 and 54.3 reflect the Legislature's intent that prevailing defendants not receive a fee award for such attorney hours." (Turner, at p. 1064.) Applying relevant canons of statutory interpretation, we concluded that the later enactment of sections 52 and 54.3 created "an implied exception to a prevailing defendant's right to recover fees under section 55 in the circumstances of this case." (Turner, at p. 1069; see id. at pp. 1065-1066.) "[L]ike the unilateral fee-shifting provisions in Carver . . . , the fee provisions in sections 52 and 54.3 serve the well established public purpose of encouraging private enforcement of disability rights law." (Turner, at p. 1069.) Moreover, the Unruh Act " ' "must be construed liberally in order to carry out its purpose" to "create and preserve a nondiscriminatory environment in California business establishments . . . ." ' " (Ibid.) Finally, "when the Legislature amended sections 52 and 54.3 in 1992, it indicated that it sought to make California's disability rights law at least as strong as federal law. . . . To conclude that section 55 should prevail would be contrary to that intent, because it would create a potential fee liability that does not exist under the federal scheme." (Turner, at p. 1070.)
We held: "[W]here a defendant prevails against a plaintiff who sought relief under section 55 as well as under section 52 and/or section 54.3, the defendant may not obtain an attorney fee award under section 55 for attorney hours inextricably intertwined with hours spent defending claims under section 52 and/or section 54.3. . . . [O]ur decision does not foreclose a defendant from seeking an award under section 55 for hours that it can show were not intertwined with defense of a cause of action with a unilateral fee-shifting provision; those are the only hours that represent additional litigation expenses due to inclusion of a request for relief under section 55." (Turner, at p. 1073, fns. omitted; see Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1426-1431 [holding unilateral fee shifting provision in Labor Code trumps broader bilateral provision].)
Tenants argue the same rationale should apply to the unilateral fee-shifting provision of Rent Ordinance section 37.10B, precluding fee recovery for inextricably intertwined contract fees and fees claimed under the bilateral statutory fee-shifting provisions, Rent Ordinance 37.9 and section 1942.4. Tenants fail, however, to demonstrate that any policy objectives of Rent Ordinance section 37.10B would be frustrated by permitting the reciprocal fees otherwise expressly permitted by the Rent Ordinance and by state law. Tenants cite, in a cursory fashion, the salutary public purposes of the Rent Ordinance generally: "The Rent Ordinance was adopted in June 1979 in order to address problems created by a shortage of decent, safe and sanitary housing in the City and County of San Francisco. (§ 37.1.) The Ordinance addresses these problems by, among other things, imposing rent increase limitations for tenants in occupancy (§ 37.3) and limiting the grounds pursuant to which a landlord may lawfully recover or endeavor to recover possession of a residential rental unit from a tenant. (§ 37.9.)" (Baba v. Board of Supervisors (2004) 124 Cal.App.4th 504, 509.) But, unlike the conflicting provisions of the DPA and Unruh Act addressed in Turner, Tenants do not attempt to establish that Rent Ordinance sections 37.9 and 37.10B are so " ' " 'irreconcilable, clearly repugnant, and so inconsistent that [they] cannot have concurrent operation' " ' in this circumstance." (Turner, supra, 193 Cal.App.4th at p. 1068.) In reaching our conclusion in Turner, we considered the purposes of both the Unruh Act and the DPA, and we examined the legislative history of the relevant statutes, including the later enactment of the unilateral fee provisions. (Id. at pp. 1068-1071.) Tenants provide none of that context, nor do they provide any basis to conclude that San Francisco legislators or voters intended Rent Ordinance section 37.10B, dealing with tenant harassment, to be an implied exception to the bilateral fee-shifting provision in section 37.9 provided elsewhere in the same Rent Ordinance, much less that these local ordinances somehow override the bilateral state-law fee-shifting policy of section 1942.4. Tenants do not discuss the legislative history of any of these statutes. They cite no case law on the interplay of the statutes, and they offer no legal analysis grounded in the specific wording or purposes of the statutes with respect to one another. Tenants have simply not met their burden of showing that the public policy exception to awarding fees for overlapping claims (Jankey v. Lee, supra, 55 Cal.4th at p. 1056) of necessity applies in this case.
Since this claim was not raised below, the trial court had no occasion to determine if any of the fees incurred in defense of other claims were "inextricably intertwined" with defense of Tenants' fourth cause of action which includes the Rent Ordinance violation allegations.
We also observe that adopting Tenants' suggested interpretation of the Rent Ordinance would encourage artful pleading by plaintiffs, virtually ensuring inclusion claims for violation of Rent Ordinance section 37.10B regardless of merit, to thereby preclude any fee liability should the entire action fail, while preserving the right to fees if successful. --------
4. Fees Based on Contract
The basic rules governing entitlement to reciprocal contract fees were established decades ago in Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124. Tenants make several arguments to defeat Lam's claim for entitlement to reciprocal contract fees. Having concluded that Lam's motion for fees is independently supported by statutory fee-shifting provisions, we need not address Tenants' theories. Nevertheless, we have considered them and find them meritless.
5. Allocation
Tenants argue the trial court erred in failing to allocate Lam's attorney hours between claims that did and did not entitle him to a fee award. They fail to acknowledge, however, the well-established rule that a party entitled to recover fees on a particular claim may recover all such fees even if the underlying work was intertwined with work on claims that did not entitle him to fees. "[A] plaintiff's joinder of causes of action should not dilute its right to attorney's fees. Attorney's fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed." (Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at pp. 129-130 [contractual fee entitlement]; see Akins v. Enterprise Rent-A-Car Co., supra, 79 Cal.App.4th at p. 1133 [statutory fee entitlement].)
6. Amount of Fees
In his original fee motion, Lam requested $27,815 in fees for work already performed based on actual billing records and "an additional amount of somewhere between $2,000.00 and $2,500.00 for preparing this motion, replying to opposition and attending the hearing on the motion." He requested that the latter amount "be liquidated, and added to the existing billed time sheet, to 'round out' a fee award to $30,000.00 . . . ." In his "amended" motion, Lam requested the original $30,000 plus $16,815 in fees incurred on appeal as reflected in actual billing records, and another $2,000 in "anticipated fees for amended motion" for a total of $48,815. In their opposition to the amended motion, Tenants complained about the $2,000 estimate in the original fee request as unsupported by billing records, and they renew this objection on appeal.
We agree the fee award should be reduced by $2,000. Lam requested $2,000 in fees on fees (i.e., fees for litigating the fee motion) both in the original motion, which was never litigated, and the amended motion, which was. By Lam's own accounting, therefore, these hours were double counted.
III. DISPOSITION
The fee order is modified to reduce the amount of fees awarded to $45,938.00. As modified, the order is affirmed. Tenants shall bear Lam's costs on appeal.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.