Opinion
G054432
12-05-2018
HOT RODS, LLC, Plaintiff and Respondent, v. NORTHROP GRUMMAN CORPORATION, Defendant and Appellant.
Lewis Brisbois Bisgaard & Smith, Ernest Slome and Thomas A. Teschner for Defendant and Appellant. Jackson Tidus, Michael L. Tidus, Kathryn M. Casey and Charles M. Clark for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2009-00118853) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Lewis Brisbois Bisgaard & Smith, Ernest Slome and Thomas A. Teschner for Defendant and Appellant. Jackson Tidus, Michael L. Tidus, Kathryn M. Casey and Charles M. Clark for Plaintiff and Respondent.
* * *
Defendant Northrop Grumman Corporation (Northrop) appeals after a judgment of $117,050 in damages, $1,344,823.80 in attorney fees, and $258,390 in costs in favor of plaintiff Hot Rods, LLC (Hot Rods). Northrop argues that a referee incorrectly determined Hot Rods was the prevailing party, and that even if it was, the attorney fees award is excessive and an abuse of discretion. We conclude that both the prevailing party determination and the amount of fees awarded were within the referee's discretion and therefore affirm.
I
FACTS
This case has already been before us twice. The first time, we affirmed the denial of Northrop's anti-SLAPP motion. (Hot Rods, LLC v. Northrop Grumman Systems Corporation (Mar. 8, 2012, G044976) [nonpub. opn.].) Most recently, we considered Northrop's appeal after judgment. (Hot Rods, LLC v. Northrop Grumman Systems Corp. (2015) 242 Cal.App.4th 1166 (Hot Rods II).) A more complete version of the underlying facts is set forth in that opinion.
Simply put, this case involves environmental contamination of a property in Anaheim that was sold by Northrop to Dan and Kathy Welden, who assigned their interest to Hot Rods, an LLC owned entirely by the Weldens. (Hot Rods II, supra, 242 Cal.App.4th at p. 1172.) The trial court, pursuant to a referee's recommendation, originally awarded Hot Rods $1,116,450 in damages plus $2,091,130 in attorney fees and costs. (Id. at pp. 1174-1175.) The court also granted Hot Rods' request for declaratory relief, finding an indemnity clause in the relevant contract covered both first and third party claims. (Id. at p. 1182.)
This court affirmed in part and reversed in part. For a number of reasons, we reversed the bulk of the damage award. The Purchase and Sale Agreement (PSA) between the parties included a sentence in its integration clause stating: "'The Parties further intend that this Agreement constitutes the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial proceedings involving this Agreement.'" (Hot Rods II, supra, 242 Cal.App.4th at pp. 1175-1177.) We concluded the referee erroneously interpreted the PSA between the parties to permit the introduction of extrinsic evidence at trial. (Ibid.) We found, due to the absence of this extrinsic evidence and for other reasons, including a lack of substantial evidence, that only $117,050 of the original damage award could be upheld. (Id. at p. 1185.) We also affirmed the award of declaratory relief with respect to the indemnity clause. (Id. at p. 1182.) Because most of the judgment was reversed, including most of the damage award, we reversed the attorney fees award as well. "We remand for consideration anew of the prevailing party determination and the amount of any attorney fee award." (Id. at p. 1185.)
On remand, the matter was assigned to the referee to consider the issues relating to attorney fees. Both parties submitted briefs. Evidentiary objections were also submitted. The referee heard oral argument before ruling.
The referee sustained most of Northrop's evidentiary objections. Nonetheless, the referee ultimately concluded that the evidence supported a finding that "a significant portion of time (86%) was spent on discovery re (1) breach of contract and (2) indemnity, causes of action on which plaintiff prevailed. Likewise, a significant portion of time (77%) of trial testimony was also spent on these successful causes of action. Hot Rods devoted 30 pages (out of 31 pages) (97%) of the "'Legal Argument'" section of its Responding brief to Northr[o]p's appeal of the Judgment after trial." Accordingly, the referee found Hot Rods was the prevailing party. The referee further found the fees charged to be reasonable, and awarded fees in the amount of $1,344,823.80. This was computed as 60 percent of the fees for trial, posttrial work, the appeal in Hot Rods II, and the motion for attorney fees. The referee also awarded Hot Rods its costs (which were not contested) of $258,390. This, along with the award on the merits and the declaratory relief finding, became the final judgment.
Northrop now appeals.
II
DISCUSSION
Standard of Review
Most matters regarding attorney fees are reviewed for abuse of discretion, including the court's determination as to which, if any, party prevailed (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94; Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1154), and the amount of the award (Hill v. Affirmed Housing Group (2014) 226 Cal.App.4th 1192, 1197-1198).
"'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339.)
Governing Statutory Principles
The default for attorney fees not specifically provided for by statute is commonly referred to as "'the American rule,'" under which each party pays its own fees. (Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1142.)
Several statutes that abrogate that rule are relevant here. Code of Civil Procedure section 1021 permits parties to "'contract out' of the American rule by executing an agreement" that allocates attorney fees. (Trope v. Katz (1995) 11 Cal.4th 274, 279.) It states, in relevant part: "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 . . . ." (Code Civ. Proc., § 1021.)
Civil Code section 1717, subdivision (a), states in pertinent part: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." This section "applies only to actions that contain at least one contract claim." (Santisas v. Goodin (1998) 17 Cal.4th 599, 615 (Santisas).)
Subsequent statutory references are to the Civil Code unless otherwise indicated.
Thus, it is up to the parties to determine the scope of the attorney fee award; if they so agree, it may encompass both contract and tort causes of action. "If a contractual attorney fee provision is phrased broadly enough . . . it may support an award of attorney fees to the prevailing party in an action alleging both contract and tort claims: '[P]arties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract.' [Citation.]" (Santisas, supra, 17 Cal.4th at p. 608; see Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 818; Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708.)
Applicability of Section 1717
The PSA stated that "[a]ny controversy or dispute between the parties to this Agreement . . . regarding the construction, interpretation, application or performance of the terms or conditions of this Agreement, or in any way arising under this Agreement . . ." would be decided pursuant to the reference procedures set forth in Code of Civil Procedure section 638, et. seq. It further stated that "[t]he prevailing party shall be entitled to reimbursement of its reasonable attorneys' fees and costs from the other party, including all reasonable attorneys' fees and costs relating to an appeal from a judgment of the Referee." Northrop concedes this broad attorney fee clause "covers all of the claims made by Hot Rods."
Northrop argues that section 1717, which governs attorney fees in actions on a contract, does not apply here. It asserts: "The provisions of section 1717 are superseded when an attorney fee provision in an agreement between the parties encompasses both contract and noncontract claims (as is the case here)." That is not quite accurate, however. Section 1717 applies to claims which include at least one contract claim. (Santisas, supra, 17 Cal.4th at p. 615.) "If an action asserts both contract and tort or other noncontract claims, section 1717 applies only to attorney fees incurred to litigate the contract claims." (Ibid.) If the attorney fee provision in this case was limited to only claims on the contract, only the fees spent litigating the contract claims could be awarded, subject to the law regarding apportionment. But that is not the case here.
The primary case Northrop relies on to assert that section 1717 does not apply here is readily distinguishable. In Maynard v. BTI Group Inc. (2013) 216 Cal.App.4th 984, the plaintiff sued for breach of contract and a number of tort claims. The contract had a broad attorney fee provision. The plaintiff won on a tort claim while the defendant prevailed on the breach of contact cause of action. (Id. at p. 989.) The trial court awarded the plaintiff attorney fees and denied the defendant's request, rejecting the argument that the defendant had succeeded in defending the contract claims, making it the prevailing party under section 1717. (Ibid.)
The appellate court affirmed, finding that because of the broad language of the attorney fee provision, the plaintiff was entitled to her fees under Code of Civil Procedure section 1021 because she had the greater net recovery. (Maynard v. BTI Group Inc., supra, 216 Cal.App.4th at pp. 988, 992.) Thus, because the plaintiff had only recovered on a tort cause of action, section 1717 never came into play at all. (Id. at p. 993.)
That is not the case here. The attorney fee provision at issue, as Northrop concedes, covers all of Hot Rods' claims. And those claims, as Northrop also admits, were based on the PSA: "Hot Rods prevailed on only two issues: (1) The interpretation of the environmental indemnity provision in the [PSA] as covering both third party and first party claims; and (2) in recovering (first party) damages of $117,050 under this indemnity provision." Because Hot Rods did recover on its claims under the PSA, section 1717 is applicable here.
Even if we were reviewing this matter entirely under Code of Civil Procedure section 1021, the result would not change.
Prevailing Party
Section 1717, subdivision (b)(1), addresses prevailing party determinations in the context of attorney fee awards based on contractual provisions. It states: "The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. . . . [T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section." (§ 1717, subd. (b)(1).)
Hsu v. Abbara (1995) 9 Cal.4th 863 (Hsu), with some additional guidance from Scott Co. v. Blount Inc. (1999) 20 Cal.4th 1103 (Scott), provides the governing law for determining a prevailing party. In Hsu, which concerned a residential real estate transaction, the sellers won a clear victory, but the trial court denied them contractual attorney fees. The California Supreme Court ultimately reversed, determining the sellers were entitled to their fees because they had obtained a "'simple, unqualified win.'" (Hsu, supra, 9 Cal.4th at p. 876.) When the case provides a mixed result, the trial court is to examine the case as a whole and compare the extent to which each side won or lost: "Accordingly, we hold that in deciding whether there is a 'party prevailing on the contract,' the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by 'a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.'" (Ibid.) This determination is to be made without reference to the disposition of the noncontract claims. (Id. at pp. 873-874.) Hsu also held that the trial court, when determining litigation success, "should respect substance rather than form, and to this extent should be guided by 'equitable considerations.'" (Id. at p. 877.)
Scott clarified that when the result was mixed, the winning party was not entitled to fees as a matter of right: "When a party obtains a simple, unqualified victory by completely prevailing on or defeating all contract claims in the action and the contract contains a provision for attorney fees, section 1717 entitles the successful party to recover reasonable attorney fees incurred in prosecution or defense of those claims. [Citation.] If neither party achieves a complete victory on all the contract claims, it is within the discretion of the trial court to determine which party prevailed on the contract or whether, on balance, neither party prevailed sufficiently to justify an award of attorney fees." (Scott, supra, 20 Cal.4th at p. 1109.)
Northrop asserts that Hot Rods was awarded only a "miniscule portion" of the relief it sought, and therefore the referee abused its discretion when it determined Hot Rods was the prevailing party. It claims Hot Rods' "demands" were over $8.2 million in damages, citing a footnote in Hot Rods' closing brief discussing prejudgment interest. Two pages later in that same document, Hot Rods states it is requesting approximately $5.6 million in damages plus prejudgment interest. Whichever amount is accurate, however, there is no question that Hot Rods' win here was definitely short of a complete victory.
The question, then, is whether the referee's decision is so far outside the bounds of reason that it must be reversed as an abuse of discretion. "An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] This standard of review affords considerable deference to the trial court provided that the court acted in accordance with the governing rules of law. We presume that the court properly applied the law and acted within its discretion unless the appellant affirmatively shows otherwise. [Citations.]" (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158.)
Northrop, while it pays lip service to this deferential standard of review, fails to discuss its import in the cases it argues as precedent. For example, it discusses Jackson v. Homeowners Assn. Monte Vista Estates-East (2001) 93 Cal.App.4th 773. In that case, a homeowner sued a homeowners association. The court altered one paragraph of the governing documents, and thereafter, the parties settled, reserving the attorney fee issue for the court. Ultimately, the plaintiffs were not granted injunctive relief and received a settlement of $2,500. The court denied attorney fees, concluding that "[b]oth sides" had a good argument as to why they should be the prevailing party. The Court of Appeal affirmed, finding no abuse of discretion. (Id. at p. 788.)
This case does not help Northrup; indeed, it only demonstrates the exceedingly high bar a party must clear to reverse a trial court's prevailing party determination. Northrop cites several more cases that upheld the trial court's decision to designate a prevailing party, while not citing any in which an abuse of discretion was demonstrated by the appellant. (See City of Emeryville v. Robinson (9th Cir. 2010) 621 F.3d 1251; Berkla v. Corel Corp. (9th Cir. 2002) 302 F.3d 909.) Indeed, our research seems to indicate that a reversal is more likely when the court fails to designate a prevailing party, but should. (See also, e.g., De La Cuesta v. Benham (2011) 193 Cal.App.4th 1287, 1290 (De La Cuesta); Silver Creek, LLC. v. BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533, 1541.)
Other cases Northrop mentions or relies on were decided before Hsu and the 1987 statutory amendments to section 1717. Those cases are, therefore, of little help to us as they do not apply Hsu's standards. (Silver Creek, LLC. v. BlackRock Realty Advisors, Inc., supra, 173 Cal.App.4th at p. 1541 [reliance on pre-Hsu cases was misplaced when considering proper standard for determining prevailing party].) Nonetheless, all three of them are cases in which the trial court's prevailing party finding was upheld as a proper exercise of discretion. (Hilltop Investment Associates v. Leon (1994) 28 Cal.App.4th 462, 468; Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394, 1397; Nasser v. Superior Court (1984) 156 Cal.App.3d 52, 59-60; Kytasty v. Godwin (1980) 102 Cal.App.3d 762, 774.)
Moreover, the measure of damages awarded is not the only method of determining litigation success. "[I]t must be presumed the trial court has also been empowered to identify the party obtaining 'a greater relief' by examining the results of the action in relative terms: the general term 'greater' includes '[l]arger in size than others of the same kind' as well as 'principal' and '[s]uperior in quality.' [Citation.]" (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1151.) Section 1717 "expressly contemplates some sort of comparison of respective results: Otherwise the Legislature would not have defined 'prevailing party' as the party obtaining 'a greater relief' (italics added)—a comparative term." (De La Cuesta, supra, 193 Cal.App.4th at p. 1295.) We must, therefore, look at the entire extent of the victory won by Hot Rods.
A substantial part of that victory was the declaratory relief judgment. As we noted in Hot Rods II, paragraph 16.2 of the PSA stated: "'With respect to the Seller's ownership and/or operation of the Real Property including the acts or omissions of Seller's employees, agents, or contractors before or after the Closing, Seller hereby agrees to indemnify, defend by legal counsel selected and retained by Seller, and reasonably approved by Buyer, and hold the Buyer and Buyer's lenders . . . harmless from and against any claims, demands, penalties, fees, fines, liability, damages, costs, losses, or other expenses including, without limitation, reasonable environmental consulting fees and reasonable attorney fees arising out of (a) any Environmental Action(s) and/or Remediation involving an environmental condition or liability involving the Real Property caused by an act or omission of Seller and its employees, agents and contractors before or after the Closing; (b) any personal injury (including wrongful death) or property damage (real or personal) arising out of Hazardous Materials used, handled, generated, transported, disposed, or released by Seller and its employees, agents and contractors at the Real Property before or after the Closing. This Environmental Indemnity is in addition to any rights or remedies of Buyer and Seller under section 3.3.'" (Hot Rods II, supra, 242 Cal.App.4th at pp. 1177-1178, fn. omitted.)
"Northrop argued during trial, and continues to do so here, that the indemnity provision applied only to third party claims and does not permit Hot Rods to sue for its own damages. The referee concluded: 'This is a reasonable argument in most indemnity actions but it does not apply here. Paragraph 16.2 is much broader than third party claims. This conclusion is supported by the text of the paragraph. . . . The consistent course of conduct during the negotiations and during the initial claims demonstrates that both sides interpreted the [agreement] to include damages or losses sustained by Hot Rods due to environmental contamination.'" (Hot Rods II, supra, 242 Cal.App.4th at p. 1178.) We found that "[t]he extremely broad language here, such as 'any claims, . . . damages, costs, losses' does not suggest the parties intended to limit the provision to third party claims." (Id. at p. 1182.) Ultimately, we concluded: "It is also clear from the entirety of the contract that the environmental condition of the property was a primary concern of Hot Rods. The agreement itself incorporated by reference a long list of environmental due diligence materials and representations from Northrop regarding environmental conditions on the property. Hot Rods was given time under the agreement to perform an inspection or investigation of environmental conditions. The reasonable inference was that Hot Rods wanted to make certain that it would not be responsible for covering the costs of environmental problems or cleanup, either directly or indirectly, and that Northrop was willing to so guarantee. Thus, interpreting the indemnity clause to cover both first and third party claims is consistent with the overall intent of the agreement. [¶] Accordingly, the declaratory judgment, which finds Northrop liable for first and third party claims as contemplated by the agreement, is affirmed." (Ibid.)
This was a significant victory for Hot Rods; indeed, it may have been more important than any monetary award. Hot Rods argues that "Northrop's refusal to adhere to its obligations under the indemnity provision and the resulting uncertainty (not only as to costs but also use of the Property) was the catalyst for Hot Rods' claims." We find this point well taken. Indeed, given Northrop's position that the indemnity clause only applied to third party claims, the declaratory relief judgment is the whole ball game. It is the victory that allows Hot Rods predictability going forward, whether it is determining how it might use the property, or certainty for a future buyer if it decides to sell.
As to the damage award, it was certainly far less than Hot Rods wanted. But we must also consider "the reality of litigation, almost universally recognized: Attorneys tend to err on the side of overstating the extent of the claims being presented on their client's behalves." (De La Cuesta, supra, 193 Cal.App.4th at p. 1295.) Further, courts may consider "the unique facts and circumstances of each case." (Id. at p. 1296.) The referee concluded, based on the evidence presented in the attorney fee motion, that "a significant portion of time" was spent on discovery regarding the breach of contract and indemnity causes of action, on which Hot Rods prevailed. Further, significant time was spent on these causes of action in terms of trial testimony and the amount of pages devoted to the issue on appeal. Given the circumstances here, we find the referee did not "exceed[] the bounds of reason" resulting "in a miscarriage of justice" (Mejia v. City of Los Angeles, supra, 156 Cal.App.4th at p. 158), as to its prevailing party determination.
Amount of Fees
Again, this is an issue we review for abuse of discretion, and we will not disturb that discretion unless Northrop demonstrates a "manifest abuse." (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal.App.4th 770, 774.)
Northrop's only claim of error here is that the referee incorrectly relied on a supplemental declaration by Erica M. Sorosky, one of Hot Rods' attorneys, filed in support of its request for attorney fees. Sorosky's declaration computed the percentages of time Hot Rods had spent on its successful claims, which the referee quoted in the statement of decision.
Northrop now claims this declaration, "on which the referee wholly relied . . . is not only materially misleading, it is also demonstrably false." Northrop admits it did not file any objections to this declaration, or any briefing that fleshed out its argument that this declaration was so false it could not be relied upon. It does not point out anywhere in the record where it asked for the opportunity to specifically address the facts set forth in Sorosky's declaration.
In its reply brief, Northrop asserts it could not have properly objected to the declaration, as it provided "relevant" evidence. Its failure here goes beyond the failure to file an objection, however; it did not request any opportunity to address this issue in writing, or to argue it at any length in the hearing.
At the hearing on the attorney fees motion, Northrop briefly argued the point, claiming it had come up with different percentages than the Sorosky declaration set forth. But argument is not evidence, and it did not submit any evidence, or ask for leave to submit evidence, to demonstrate Sorosky's numbers were wrong. Northrop's brief attempts to do so now, nitpicking through the declaration and the trial record, attempting to find fault with Sorosky's declaration.
Northrop's brief argument at that hearing included mischaracterizations of the declaration. Counsel argued: "[Sorosky] says in the appellate brief, one page - she says, 'One page of Hot Rods' appellate brief,' she says, 'was devoted to the negligent misrepresentation argument.'" In fact, Sorosky's declaration includes no such statement about the negligent misrepresentation argument. Northrop not only argued this issue cursorily, it did so inaccurately.
But again, its argument is not evidence, and it was for the referee to determine such factual issues at the outset. We will not do so for the first time on appeal. As this issue was not addressed with the referee, except in the most cursory fashion, we deem it waived. Trying to do an end-run around the referee's factfinding role by spending nearly a dozen pages arguing a point that was raised in a few sentences at a hearing - and never in writing - contravenes the spirit of the rule that a party cannot raise a new issue for the first time on appeal. (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1403, fn. 1.)
Further, were we to address the issue on the merits, we would also find that the referee did not abuse its discretion. Northrop asserts that the Sorosky declaration did not provide the "substantial evidence" necessary to award the amount of attorney fees ordered here. When substantial evidence is the issue, we are reminded that "'the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the findings below. [Citation.] We view the evidence most favorably to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. [Citation.] Substantial evidence is evidence of ponderable legal significance, reasonable, credible and of solid value. [Citation.]" (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.)
Sorosky's declaration did provide such evidence, and it was uncontradicted, as Northrop submitted no countervailing evidence. The declaration set forth detailed tables breaking down the discovery, trial testimony of percipient witnesses, and amount of argument at the appellate level which addressed the claims upon which Hot Rods prevailed. Sorosky affirmed, under penalty of perjury, that the calculations were accurate. She concluded that with respect to discovery propounded by both sides, 86 percent related to issues on which Hot Rods prevailed. For percipient witness testimony at trial, it was 77 percent; of Hot Rods closing trial brief, 10 of 16 pages; and of Northrop's appeal in Hot Rods II, 30 of 31 pages in the argument section related to indemnity matters. As we noted above, Northrop offered no contradictory evidence, and just a surpassingly brief oral argument on the subject.
The referee was entitled to determine the credibility of the evidence and the proper weight to afford it. We do not second guess either of these determinations. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 622.) We are not, despite Northrop's attempts to the contrary, "a second trier of fact." (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) The referee took this evidence into consideration and awarded 60 percent of the overall attorney fees sought by Hot Rods, determining this was the amount of reasonable fees expended.
Accordingly, we therefore find no abuse of discretion as to the amount of fees awarded.
III
DISPOSITION
The judgment is affirmed. Hot Rods is entitled to its costs on appeal.
MOORE, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.