Opinion
E076858
06-29-2022
COMPANION ANIMAL PROTECTION SOCIETY et al., Plaintiffs and Appellants, v. PUPPIES4LESS et al., Defendants and Respondents.
Pease Law and Bryan W. Pease for Plaintiffs and Appellants. No appearance by Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. MCC2000802 Craig Riemer, Judge. Affirmed.
Pease Law and Bryan W. Pease for Plaintiffs and Appellants.
No appearance by Defendants and Respondents.
OPINION
FIELDS J.
I. INTRODUCTION
Plaintiffs and appellants Companion Animal Protection Society (CAPS) and Robert McCormack (collectively, plaintiffs) filed a civil action seeking to enforce alleged violations of Health and Safety Code section 122354.5, which generally requires pet stores to obtain animals only from nonprofit animal shelters or rescue groups. They alleged that defendant and respondent Select Puppies, Inc. (SPI) and its owner, defendant and respondent Brian Mohrfeld (Mohrfeld), obtained puppies from breeders located out of state and delivered those animals to retail pet stores in California, fraudulently representing them to be rescue animals. Plaintiffs also named the owners and operators of three retail pet stores that allegedly received animals from SPI and Mohrfeld as defendants in the action. Respondents Puppies4Less and Anita Chavira are among these named defendants.
After purportedly entering into settlement agreements with some of the defendants, plaintiffs voluntarily dismissed their complaint and sought an award of attorney fees against the nonsettling defendants pursuant to Code of Civil Proceduresection 1021.5. The trial court denied the motion, concluding that plaintiffs failed to establish that they were successful parties within the meaning of section 1021.5 and further failed to establish any causal connection between the litigation and any voluntary changes in the behavior of the nonsettling defendants. Plaintiffs appeal from this order.
Undesignated statutory references are to the Code of Civil Procedure.
We conclude plaintiffs have forfeited any claim of error by failing to identify the correct standard of review and further failing to cite to the record for many of the factual assertions in support of their arguments. We further conclude that, even in the absence of forfeiture, substantial evidence in the record supports the trial court's findings of fact. We appreciate the importance of section 1021.5 in ensuring that attorneys who perform work furthering the public interest are reasonably compensated for their efforts. Nevertheless, the statutory scheme still places the burden on the party seeking fees to support the request with an evidentiary showing and, as we explain, that burden was not met in this case. As such, we find no abuse of discretion in the trial court's decision to deny plaintiffs' request for attorney fees, and we affirm the order.
II. FACTS AND PROCEDURAL HISTORY
A. Pleadings
On June 5, 2020, plaintiffs filed a civil complaint against SPI, Mohrfeld and eight other defendants. According to the complaint, SPI is an Iowa corporation owned by Mohrfeld, which obtains puppies from breeders in order to supply them to various pet stores to be sold as rescue animals. The remaining defendants, including Puppies4Less and Chavira, are businesses and individuals alleged to have sold puppies obtained from SPI. Plaintiffs alleged that this business arrangement violated Health and Safety Code section 122354.5, which mandates that retail pet stores selling dogs must obtain animals only from nonprofit shelters or rescue groups.
Based on these factual allegations, plaintiffs alleged causes of action for (1) violation of the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.); (2) unfair competition law (Bus. & Prof. Code, §17200 et seq.); and (3) fraud. Plaintiffs' prayer for relief sought (1) an injunction to prohibit defendants from falsely representing that their puppies were" 'rescue puppies' "; (2) an injunction to prohibit defendants from selling any dogs, cats, or rabbits in the state of California; (3) damages; (4) restitution; and (5) reasonable attorney fees pursuant to section 1021.5.
Defendants Puppies4Less and Chavira were not named as defendants in the fraud cause of action. The claim was alleged only on behalf of plaintiff McCormack, who purportedly purchased a puppy supplied by SPI from a store owned by defendants other than Puppies4Less and Chavira.
Multiple pet store defendants, including Puppies4Less and Chavira, filed answers to the complaint. SPI and Mohrfeld never filed a responsive pleading and never appeared in the action.
B. Temporary Restraining Order and Unsuccessful Request for Preliminary Injunction
On June 12, 2020, plaintiffs sought a temporary restraining order on an ex parte basis to prohibit Puppies4Less "from selling puppies in a pet store in violation of Health and Safety Code section 122354.5." Puppies4Less opposed the request principally on the ground that there was no future act to enjoin, arguing that it was not aware SPI had misrepresented the source of any puppies and further arguing that it was confident SPI would correct any misunderstanding and provide properly sourced rescue animals in the future. The trial court granted the temporary restraining order and issued an order to show cause with respect to a preliminary injunction.
In response to the trial court's order to show cause, Puppies4Less and Chavira filed a nonopposition to the issuance of a preliminary injunction, provided that the act enjoined remained only as to the purported violations of Health and Safety Code section 122354.5. Again, they took the position that they never had any intention of knowingly violating the statute and, thus, did not oppose issuance of a preliminary injunction purportedly enjoining such an act.
However, no preliminary injunction ever issued. The register of actions suggests that the order to show cause was discharged, and the temporary restraining order was terminated on procedural grounds. Thereafter, plaintiffs sought a second temporary restraining order and requested the trial court issue an order to show cause regarding issuance of a preliminary injunction against Puppies4Less. However, the trial court denied the request. Plaintiffs did not include the order denying the request or a transcript of the hearing as part of the record on appeal.
C. Voluntary Dismissal and Request for Attorney Fees
On December 22, 2020, plaintiffs voluntarily dismissed their complaint with prejudice.
On February 22, 2021, plaintiffs filed a motion requesting an award of attorney fees pursuant to section 1021.5 against SPI, Morhfeld, Puppies4Less, and Chavira. In a memorandum of points and authorities, plaintiffs claimed they had entered into settlements with all of the defendants except the four against whom they sought an award of attorney fees. According to the memorandum, plaintiffs were successful parties within the meaning of section 1021.5 because their settlement agreements prohibited settling defendants from obtaining any further animals from SPI, and plaintiffs also confirmed Puppies4Less had closed permanently as a result of their lawsuit. However, none of the declarations or documentary evidence submitted with the motion addressed any of these assertions.
Four of the declarations set forth plaintiffs' investigative efforts prior to the filing of Puppies4Less and Chavira's Answer. Two declarations were from attorneys who attested to the billable hours spent on the litigation. With respect to the documents submitted with the motion, four of the exhibits were submitted to support the claim that SPI had procured and delivered breeder puppies in violation of Health and Safety Code section 122354.5. Two of the exhibits were corporate documents showing the corporate ownership of SPI and Puppies4Less. The final two exhibits were proofs of service and a notice of rejection of plaintiffs request for default.
On April 8, 2021, the trial court indicated its tentative decision was to deny the motion for attorney fees. Specifically, the trial court observed that plaintiffs had not obtained a judicial resolution of any of their claims; there was no evidence to show any of the four nonsettling defendants had engaged in a change in behavior; and there was no evidence to show that any purported change in behavior was motivated by plaintiffs' litigation. Plaintiffs did not request oral argument or appear at the time of hearing on their motion and, as a result, the trial court adopted its tentative ruling as its final ruling. Plaintiffs appeal from the order denying their motion.
III. DISCUSSION
A. General Legal Principles and Standard of Review
" 'The Legislature adopted section 1021.5 as a codification of the private attorney general doctrine of attorney fees developed in prior judicial decisions.'" (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 979-980 (Sweetwater).) Under the statute, "a court may award attorneys' fees to a successful party against one or more opposing parties in an action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit . . . has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." (§ 1021.5.) Generally, "[t]he determination of whether a party has met the requirement for an award of fees and the reasonable amount of such an award are matters best decided by the trial court in the first instance." (Sweetwater, at pp. 980.)
In this case, it is undisputed that plaintiffs filed a voluntary dismissal and did not obtain a judicial resolution of the claims alleged in their complaint. "[A] plaintiff who has not succeeded in obtaining 'a judicial resolution' . . . or 'a judicially recognized change in the legal relationship between the parties' . . . must obtain attorney fees under the catalyst theory, or not at all." (Vasquez v. State of California (2008) 45 Cal.4th 243, 260.) Under this theory, "a plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense . . . and; (3) that the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit." (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608 (Tipton-Whittingham).)
"' "On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion." '" (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213; see Sweetwater, supra, 36 Cal.App.5th at p. 980 ["We will uphold the trial court's decision . . . unless the trial court abused its discretion."]; Vosburg v. County of Fresno (2020) 54 Cal.App.5th 439, 460 ["The abuse of discretion standard of review applies to a superior court's decision on a motion for attorney fees under section 1021.5."].) However," '[t]he abuse of discretion standard is not a unified standard [and] the deference it calls for varies according to the aspect of a trial court's ruling under review.' [Citation.] When the trial court's resolution of a question of law is challenged, its legal conclusion is reviewed de novo. [Citation.] When the trial court's findings of fact are challenged, the findings are reviewed for substantial evidence." (Vosburg, at p. 460.)
B. Plaintiffs' Challenge Is Premised Upon Attacking the Trial Court's Findings of Fact
On appeal, plaintiffs contend that we should apply the de novo standard of review to the aspect of the trial court's ruling under review because "it is a legal question whether the elements of [section] 1021.5 are met." We disagree. In this case, the trial court denied plaintiffs' motion on two grounds: (1) there was no evidence that any of the identified defendants had actually provided any of the relief sought by plaintiffs in the litigation; and (2) there was no evidence that any purported change in behavior was caused by plaintiffs' litigation. As we explain, these are factual findings based upon the trial court's review of the evidence and, as a result, this aspect of the trial court's ruling should be reviewed for substantial evidence.
"[A] party seeking an award of . . . section 1021.5 attorney fees must first be determined to be 'a successful party.'" (Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513, 521 (Yucaipa).) In Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, the California Supreme Court set forth the procedure necessary to establish successful party status in a catalyst case. As explained by the high court: "When a lawsuit has been mooted . . ., some development of the factual record is required in order to prevail on a catalyst theory. At the very least, a plaintiff must establish' "the precise factual/legal condition that [it] sought to change or affect"' as a prerequisite for establishing the catalytic effect of its lawsuit. . . . When the suit is mooted early in its prosecution, . . . it may generally be established during the attorney fee proceeding by declarations, or, at the discretion of the trial court, by an abbreviated evidentiary hearing." (Graham, at pp. 576-577.) Thus, when a party seeks an award of fees under a catalyst theory, the determination of successful party status is a question of fact to be resolved based upon a review of evidence. This aspect of the trial court's ruling is reviewed for substantial evidence. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.)
Likewise, Courts of Appeal, including this court, have concluded that a trial court's finding on the issue of causation is reviewed for substantial evidence. (Yucaipa, supra, 238 Cal.App.4th at p. 520-523 [applying substantial evidence standard to review of the trial court's causation determination on a request for attorney fees under a catalyst theory]; Cates v. Chiang (2013) 213 Cal.App.4th 791, 808 (Cates) [same].) Thus, because the trial court's ruling in this case rests entirely on two findings of fact, we review the record to determine whether such findings are supported by substantial evidence.
Additionally, we observe that plaintiffs, as the parties seeking an award of fees, bore the burden of proof. (Bui v. Nguyen (2014) 230 Cal.App.4th 1357, 1365-1366 ["The moving party bears '[t]he burden [of] establish[ing] each prerequisite to an award of attorney fees under section 1021.5.' "]; Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2010) 187 Cal.App.4th 376, 381 [burden is on claimant to establish successful party status].)" 'In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.'" (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) Instead," 'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. . . . Specifically, . . . whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '" (Ibid.; see Garcia v. KND Development 52, LLC (2020) 58 Cal.App.5th 736, 744-745.)
Thus, because plaintiffs bore the burden of proof to establish each prerequisite necessary to support an award of attorney fees under section 1021.5, we review the record under this modified substantial evidence standard.
C. Plaintiffs Have Forfeited Their Claim of Error
" 'In every appeal, "the appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment," '" and "[w]hen . . . an appellant fails to fulfill this duty[,] the claim is forfeited." (Oak Valley Hospital Dist. v. State Dept. of Health Care Services (2020) 53 Cal.App.5th 212, 237.)" '[I]f one is going to make a "the-facts-compel-that-I-win-as-a-matter-of-law" argument, one's brief must fairly state all the evidence.'" (Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, 650-651.) Not only must the appellant present a fair summary of the evidence, he must also provide a citation to the record to support factual or evidentiary references. (Cal. Rules of Court, rule 8.204(a)(1)(C); Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 589 (Alki Partners) ["An appellant who fails to cite accurately to the record forfeits the issue or argument on appeal that is presented without the record reference."].)
Here, our review of plaintiffs brief on appeal leads us to conclude that their depiction of the facts and evidence before the trial court is far from accurate, let alone a fair summary of the record. Even a cursory review of plaintiffs' brief reveals they have made numerous assertions of fact accompanied by no citations to the record.Additionally, upon closer review, plaintiffs also repeatedly cite to their own pleading allegations and a memorandum of points and authorities filed in the trial court as "evidence" in support of their arguments. Neither are appropriate citations for the purpose of supporting a factual assertion. (Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133, 154-155 ["[P]leadings are allegations, not evidence . . . ."]; Alki Partners, supra, 4 Cal.App.5th at p. 590 ["Citing points and authorities filed in the trial court is not appropriate support for factual assertions in a brief."].) Under such circumstances, plaintiffs' brief cannot be considered an accurate representation of the facts or the evidence, let alone a fair summary.
For example, the introduction and summary of facts in the opening brief contain multiple assertions of fact that are accompanied by no citations. Likewise, plaintiffs have made numerous factual assertions in support of their arguments that are not accompanied by record citations.
The "facts" section of the opening brief contains at least three paragraphs of asserted facts that cite only to the allegations of plaintiffs' complaint as support. On more than one occasion, plaintiffs cite only to a memorandum of points and authorities filed in the trial court as the evidentiary support for a fact.
For this reason, we conclude that plaintiffs have forfeited their claims of error with respect to the trial court's order denying their request for attorney fees, and these reasons alone support affirmance of the order.
D. Reversal Is Not Warranted Even Absent Forfeiture
1. By Applying an Incorrect Standard of Review, Plaintiffs Have Failed To Meet Their Burden on Appeal
First, having clarified that the correct standard of review is the abuse of discretion standard and having further clarified that, under this standard, plaintiffs must show that the trial court's findings of fact are not supported by substantial evidence, we must conclude that plaintiffs have failed to meet their burden demonstrating reversible error.
By taking the position that the trial court's findings of fact should be reviewed de novo, plaintiffs have failed to tailor their arguments to the applicable standard of review."' "Arguments should be tailored according to the applicable standard of appellate review," '" and" 'failure to acknowledge the proper scope of review is a concession of lack of merit.'" (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.) "When an appellant fails to apply the appropriate standard of review, the argument lacks legal force," and "the appellant fails to show error in the judgment." (People v. Foss (2007) 155 Cal.App.4th 113, 126; Bates v. Rubio's Restaurants, Inc. (2009) 179 Cal.App.4th 1125, 1135 [An appellant who fails to address the proper standard of review fails to meet its burden to show reversible error.].) Thus, by directing all of their arguments to an incorrect standard of review, plaintiffs are unable to meet their burden demonstrating reversible error.
Moreover, even when the correct standard of review is applied, our review of the record also leads us to conclude that plaintiffs' challenge also fails on the merits. Plaintiffs' motion for attorney fees was unopposed and, therefore, the evidence that was presented by plaintiffs was uncontradicted and unimpeached. Nevertheless, as explained below, it is clear that plaintiffs' evidentiary showing was not of such character and weight as to compel a judicial finding in their favor.
"Even assuming the underlying facts are undisputed, it remains the trial court's duty to consider those facts and the circumstances of the case . . . in determining whether the requirements were satisfied for an award of attorney fees under section 1021.5, and we can reverse the court's determination only if there is no reasonable basis for it. . . . [I]n reviewing the trial court's decision, we defer to its reasonable inferences when two or more inferences can reasonably be drawn from the undisputed facts." (Carian v. Department of Fish & Wildlife (2015) 235 Cal.App.4th 806, 816.)
2. The Evidence Did Not Compel a Finding That Plaintiffs Were Successful Parties
"A successful party is one who '" 'succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" [Citation.]' . . . To determine whether a party is 'successful,' courts look at the outcomes the parties sought in commencing the action, the situation before the party commenced the suit, and the situation today." (People v. Investco Management & Development LLC (2018) 22 Cal.App.5th 443, 457-458.) "Put another way, courts check to see whether the lawsuit initiated by the plaintiff was 'demonstrably influential' in overturning, remedying, or prompting a change in the state of affairs challenged by the lawsuit." (Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 363 (Karuk).)
The problem in this case is that plaintiffs presented no evidence from which the trial court could have determined that any behavior by the nonsettling defendants had actually changed at the time plaintiffs dismissed their suit. Plaintiffs submitted six declarations in support of their request for attorney fees, yet none of the declarations set forth any facts regarding the status of any nonsettling defendant at the time plaintiffs dismissed their case.
Four of the declarations set forth the plaintiffs' investigative efforts prior to the filing of Puppies4Less and Chavira's Answer. Two declarations were from attorneys who attested to the billable hours spent on the litigation. While one of the attorneys attached several documents to his declaration, his declaration stated that these documents were important to establish the relationship of the defendants prior to plaintiffs' filing of suit.
In a memorandum of points and authorities, plaintiffs asserted that they "caused Select Puppies, Inc. and Brian Mohrfeld to stop supplying puppies for sale to Villaggio Family Pets and Town Puppies by obtaining a settlement with those stores," and that the litigation had caused Puppies4Less to close permanently. However, none of the declarations submitted by plaintiffs addressed the existence or terms of any settlement with any party. Nor did the declarations make any mention of whether any of the defendants were still doing business in any capacity.
Additionally, as the trial court correctly observed, the purported settlements did not involve any of the defendants against whom plaintiffs sought an award of fees. Thus, even if plaintiffs had produced actual evidence of a settlement with some of the named defendants, such evidence would not establish a voluntary change in behavior on the part of nonsettling defendants.
In essence, plaintiffs claim that they "achieved complete victory" in the case was based entirely upon the unverified, unsupported statements of counsel made in a memorandum of points and authorities. Even on appeal, plaintiffs cite to nothing in the record in support of their claims other than this memorandum of points and authorities. "Matters set forth in points and authorities are not evidence." (Alki Partners, supra, 4 Cal.App.5th at p. 590; see Brehm Cmtys. v. Superior Court (2001) 88 Cal.App.4th 730, 735.) Nor would it have been appropriate for the trial court to rely on such statements in order to grant plaintiffs' motion. (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578 ["The only evidence the trial court should [consider] and which we may consider . . . is that contained in the declarations filed in support of . . . the motion. The matters set forth in . . . memoranda of points and authorities are not evidence and cannot provide the basis for the granting of [a] motion."].)
To the extent plaintiffs rely on the fact that they obtained a temporary restraining order against Puppies4Less, "procedural success during the course of the litigation is insufficient to justify . . . attorney fees where the ruling is later vacated or reversed on the merits." (Marine Forests Society v. California Coastal Com. (2008) 160 Cal.App.4th 867, 877; Karuk, supra, 183 Cal.App.4th at p. 366 [Prevailing on a procedural matter did not justify an award of fees because "it was not a significant issue."].) As the trial court observed, the temporary restraining order in this case was terminated months prior to the dismissal of the litigation. Further, the record shows that plaintiffs attempted to obtain a new temporary restraining order and order to show cause why a preliminary injunction should not be issued, but their requests were denied. Thus, in the context of this case, the fact that a temporary restraining order was initially issued does not suggest plaintiffs ultimately obtained a favorable outcome on any significant issue.
Plaintiffs' showing in the trial court was simply not of such character and weight as to compel a finding that they had achieved any success in the litigation. Indeed, "[i]f there is no evidence upon an issue, the finding should be against the party who has the burden of proof." (Ellenberger v. City of Oakland (1943) 59 Cal.App.2d 337, 339; see Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 880 ["The party having the burden of proof must offer evidence so that the trier may have a basis for finding in his favor."].) In the absence of any admissible evidence to show plaintiffs had succeeded on a significant issue, the trial court did not err in concluding that plaintiffs failed to meet their burden to establish they were successful parties for the purpose of obtaining an award of attorney fees under a catalyst theory.
3. The Evidence Did Not Compel a Finding That Any Voluntary Change in Behavior Was Causally Related to the Litigation
With respect to Puppies4Less and Chavira, plaintiffs also contend that the temporary restraining order caused these defendants to close their store permanently. As we have already detailed, plaintiffs presented no evidence from which the trial court could conclude that either of these defendants had permanently closed their business. While the trial court made the same observation, it also found that "no evidence [was] offered that the reason that [Puppies4Less] was closed was related to the [temporary restraining order] months before." We also find no error in this conclusion.
"[T]here must be a causal connection between the plaintiffs' lawsuit and the relief obtained in order to justify a fee award under section 1021.5 to a successful party." (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1291; see Leiserson v. City of San Diego (1988) 202 Cal.App.3d 725, 735 ["The trial court must find a 'causal connection between the plaintiffs' lawsuit and the relief obtained in order to justify a fee award under section 1021.5 to a successful party.' "]; see Vasquez v. State of California (2008) 45 Cal.4th 243, 253 ["[A] defendant's voluntary decision to change its behavior necessarily raises the question whether the plaintiff's legal work in fact caused the change and thus deserves to be rewarded with fees."].)
Here, even assuming the trial court accepted the representation that Puppies4Less and Chavira had permanently closed their business, there was no evidence to suggest their motivation for doing so. In fact, in light of plaintiffs' apparently unsuccessful effort to obtain a subsequent temporary restraining order or preliminary injunction, any connection between a business's closing and an otherwise terminated temporary restraining order appears tenuous at best. Thus, even assuming a business had closed permanently, the evidence actually before the trial court was not of such character and weight as to require a finding that plaintiffs' litigation was a catalyst in motivating this decision.
4. Plaintiffs' Argument They Would Have Succeeded on the Merits Is Irrelevant
The majority of plaintiffs' brief on appeal is focused on arguing that, had they continued to litigate their case, they would have been entitled to an injunction against SPI and Mohrfeld. Even if true, it is unclear why plaintiffs believe this would entitle them to reversal of the trial court's order denying their request for attorney fees.
While plaintiffs' brief at times refers to "defendants" without differentiating between the various parties, we presume plaintiffs intend this argument to apply only to SPI and Mohrfeld. Plaintiffs cannot reasonably argue they "would have been entitled" to an injunction against Puppies4Less and Chavira, where the record shows plaintiffs actually attempted to obtain a further restraining order and preliminary injunction against these defendants but were unsuccessful in doing so. Further, review of the trial court's order denying plaintiffs' second request for temporary restraining order and request for an order to show cause regarding a preliminary injunction would be beyond the scope of this appeal, as plaintiffs have not appealed from that order.
Under the catalyst theory, the question of whether "the lawsuit had merit" is considered separately from whether "the lawsuit was a catalyst motivating the defendants to provide the primary relief sought." (Yucaipa, supra, 238 Cal.App.4th at p. 521 [listing elements separately]; see Tipton-Whittingham, supra, 34 Cal.4th at p. 608 [same].) Because the trial court concluded that plaintiffs failed to establish that their lawsuit was a catalyst motivating defendants to provide the primary relief sought, it had no occasion to consider the separate element of whether plaintiffs' lawsuit had merit. Nor was it required to consider this element in denying fees, as the failure to establish any single element would justify denial of a fee request. (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 191 [consideration of all the factors unnecessary where a party fails to establish one of them]; Cates, supra, 213 Cal.App.4th at pp. 811-812, 826 [reversing order awarding attorney fees against one party for failure to meet causation prong of catalyst theory].)
The trial court found that plaintiffs failed to establish a separate element required to obtain attorney fees under a catalyst theory and, as we have already explained, the trial court's findings were supported by substantial evidence. Thus, even assuming that plaintiffs' showing was sufficient to establish the merits of their claim for injunctive relief against SPI and Mohrfeld, this would not warrant reversal of the trial court's order.
IV. DISPOSITION
The order is affirmed. Plaintiffs to bear their own costs on appeal.
We concur: McKINSTER Acting P. J., RAPHAEL J.