Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. BC369531, Mel Red Recana, Judge.
Keller, Price & Moorhead and Jeffrey C. Sparks for Defendants and Appellants.
Arent Fox, Richard D. Buckley, Jr., and Paul A. Rigali for Plaintiff and Respondent.
SUZUKAWA, J.
After the parties to a contract arbitrated the breach of contract claim of plaintiff L.A. Arena Funding, LLC (L.A. Arena), the superior court confirmed the arbitrator’s award against defendant D.N. Concrete Pumping, Inc. (D.N. Corp.). The superior court then granted the petition of D.N. Corp.’s president, Daniel Navarro, who was not a party to the agreement or to the arbitration, to confirm a purported award that absolved him of all liability under the contract. The superior court entered a judgment confirming the purported award in favor of Navarro and awarded him attorney fees and costs as the prevailing party under the contract.
In L.A. Arena’s prior consolidated appeals from the judgment and order in favor of Navarro, we reversed both the judgment and order, and awarded L.A. Arena its costs as the prevailing party on appeal. On remand, the trial court awarded L.A. Arena, as the prevailing party in an action on a contract that contains a provision for the recovery of attorney fees as costs, its fees and costs against D.N. Corp. and Navarro. It amended the judgment to incorporate the postremand order for fees and costs.
In the present appeal from the amended judgment and postremand order for fees and costs, appellants D.N. Corp. and Navarro contend that because Navarro was not a party to the agreement or to the arbitration, he is not subject to the contract’s provision for fees and costs. They also dispute the amount of the costs award. Finding no error, we affirm.
BACKGROUND
L.A. Arena provides licenses for seating at the Los Angeles Staples Center. In 2003, L.A. Arena granted D.N. Corp. a license for two premier seats during the 2003-2004 and 2004-2005 seasons at the Staples Center (the agreement or contract). Navarro, D.N. Corp.’s president, signed the agreement as president of “D&N Concrete Pump, ” a fictitious business name (the D&N dba).
When the contract’s 2004-2005 license renewal fee was not paid, L.A. Arena filed a breach of contract action against the D&N dba. D.N. Corp., which owns the D&N dba, moved to compel arbitration of L.A. Arena’s complaint pursuant to the agreement’s arbitration clause. L.A. Arena opposed the motion on the ground that Navarro, as the sole proprietor of the D&N dba, was the true licensee.
The superior court granted D.N. Corp.’s motion to compel arbitration without determining whether D.N. Corp. or Navarro owned the D&N dba. The court left it to the arbitrator to determine that issue.
After considering the parties’ evidence, the arbitrator found that D.N. Corp. owned the D&N dba and determined that the parties to the contract were L.A. Arena and D.N. Corp. In that context, the arbitrator stated that there was “no basis to hold Daniel Navarro personally liable under the Agreement or this Award.” The arbitrator entered a breach of contract award for L.A. Arena against D.N. Corp.
L.A. Arena petitioned to confirm the arbitrator’s award and enter judgment against D.N. Corp. The trial court granted the petition and entered a judgment confirming the award against D.N. Corp. The court also awarded L.A. Arena its attorney fees and costs against D.N. Corp. as the prevailing party under the following provision in the agreement: “In the event any legal action is taken under this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees, costs of arbitration and all other costs reasonabl[y] related to enforcement of its rights under this Agreement.”
Navarro then petitioned to confirm a purported award in his favor, based on the arbitrator’s finding that there was “no basis to hold Daniel Navarro personally liable under the Agreement or this Award.” Navarro alleged in the petition that, as a party to the contract, he was entitled to attorney fees and costs. In his supplemental brief, Navarro argued that although the issue of his liability as D.N. Corp.’s alter ego was never submitted to the arbitrator, the arbitrator had resolved all conceivable issues in his favor by stating in the award “that all claims not expressly raised or granted were denied.”
In opposition to Navarro’s petition, L.A. Arena argued that because the alter ego theory was not submitted to the arbitrator and because Navarro was not a party to the agreement or to the arbitration, the trial court lacked jurisdiction to confirm a purported award in his favor. L.A. Arena pointed out that Navarro’s petition conflicted with his declaration, which D.N. Corp. had submitted in support of its motion to compel arbitration, that he was not a party to the agreement.
The trial court granted Navarro’s petition and confirmed a purported award absolving him of all personal liability under the agreement. After entering a judgment confirming the purported award in favor of Navarro, the court granted Navarro’s motion for attorney fees and costs as the prevailing party under the agreement.
L.A. Arena filed separate appeals from the judgment and order in favor of Navarro. In the consolidated appeals, we concluded that because Navarro was not a party to the agreement or to the arbitration, the judgment confirming the purported award in his favor was void. (L.A. Arena Funding, LLC v. D. N. Concrete Pumping, Inc. (Oct. 28, 2009, B210649) [nonpub. opn.]). In light of our reversal of the judgment, we also reversed the order granting Navarro his fees and costs, and we awarded L.A. Arena its costs as the prevailing party on appeal.
On remand, L.A. Arena moved for contractual attorney fees and costs incurred in the prior appeal and Navarro’s petition. (Citing Code. Civ. Proc., §§ 1021, 1032, 1033.5; Civ. Code, § 1717.) In opposition, Navarro and D.N. Corp. argued that because Navarro was not a party to the agreement or to the arbitration, he could not be held liable for fees or costs under the agreement. Navarro and D.N. Corp. also moved to tax costs and, in particular, sought to reduce the cost of the reporter’s transcripts from $2,275 to $115.
On April 20, 2010, the trial court entered the order that is the subject of this appeal. The April 20 order awarded L.A. Arena its contractual attorney fees and costs against Navarro and D.N. Corp. The court concluded that Navarro, by persuading the trial court (albeit erroneously) to award him fees and costs as the prevailing party under the contract, was liable for L.A. Arena’s fees and costs under the reciprocity provisions of Civil Code section 1717.
Civil Code section 1717, subdivision (a) provides in relevant part: “(a) 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.
In the April 20 order, the superior court awarded L.A. Arena $51,780.77 in attorney fees, consisting of $28,255.70 incurred in the prior appeal and $20,250.77 incurred in connection with Navarro’s petition. The court also awarded L.A. Arena $1,605 in costs for the reporter’s transcripts, after deducting a $670 credit ($2,275 - $670 = $1,605).
The amounts do not add up to $51,780.77. By our calculation, $20,250.77 + $28,255.70 = $48,506.47.
On May 17, 2010, the trial court entered an amended judgment that incorporated the April 20 order for fees and costs. According to the amended judgment, Navarro and D.N. Corp. are jointly and severally liable for $28,255.70 in attorney fees and $1,605 in costs incurred by L.A. Arena in the prior appeal. In addition, Navarro is individually liable for $20,250.77 in attorney fees incurred by L.A. Arena in connection with Navarro’s petition to confirm the purported award.
Navarro and D.N. Corp. timely appealed from the April 20, 2010 order for fees and costs and the May 17, 2010 amended judgment.
DISCUSSION
I. Navarro Is Liable for Contractual Attorney Fees Under Section 1717
Navarro contends that he is not liable for contractual attorney fees because he was not a party to the agreement or to the arbitration. His contention, which raises purely a question of law and involves no disputed facts, is subject to de novo review. (Topanga and Victory Partners v. Toghia (2002) 103 Cal.App.4th 775, 779-780; Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 669.)
In postarbitration judicial proceedings such as Navarro’s petition to confirm the purported award, an “award of costs pursuant to [Code of Civil Procedure] section 1293.2, including attorney fees when authorized by contract, is mandatory. (Corona v. Amherst Partners (2003) 107 Cal.App.4th 701, 707 [‘A court must award costs in a judicial proceeding to confirm, correct or vacate an arbitration award.’]; Carole Ring & Associates v. Nicastro (2001) 87 Cal.App.4th 253, 260... [‘the superior court was required to award [the prevailing party] reasonable attorney fees and costs for postarbitration judicial proceedings, pursuant to the statutory scheme governing arbitration.’].)” (Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508, 513.) For that reason, Navarro, who persuaded the superior court that he was a party to the contract and to the arbitration, recovered his fees and costs as the prevailing party in an action on the contract.
The question we now face is whether Navarro, who was not a party to the agreement or to the arbitration, is subject to the agreement’s provision for fees and costs. In general, such provisions are enforceable only between the contracting parties. (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 379-380 (Real Property).) Nevertheless, courts have applied “the reciprocity principles of Civil Code section 1717... in actions involving signatory and nonsignatory parties. (Reynolds Metal Co. v. Alperson [(1979)] 25 Cal.3d [124, ] 128.)” (Real Property, supra, at p. 380.) In Real Property, the court reviewed the relevant cases and distilled the following exception: “A party is entitled to recover its attorney fees pursuant to a contractual provision only when the party would have been liable for the fees of the opposing party if the opposing party had prevailed. Where a nonsignatory plaintiff sues a signatory defendant in an action on a contract and the signatory defendant prevails, the signatory defendant is entitled to attorney fees only if the nonsignatory plaintiff would have been entitled to its fees if the plaintiff had prevailed.” (Id. at p. 382, italics added.)
This case falls within the above exception because Navarro, a nonsignatory (in the sense that he signed solely in a representative capacity), would have been entitled to attorney fees and costs against L.A. Arena had he prevailed. Navarro argues, however, that because his petition was not an action on the contract, section 1717 does not apply. (See Topanga and Victory Partners v. Toghia, supra, 103 Cal.App.4th at p. 780 [§ 1717 applies only to actions on contracts that include a provision for the recovery of attorney fees as costs].) The contention lacks merit. Under the circumstances, it is clear that his petition was an action on the contract. Navarro not only petitioned to confirm a purported award absolving him of all personal liability under the contract, but he recovered his fees and costs as the prevailing party under the contract.
Navarro contends that the April 20 order violated the law of the case that was established in our prior opinion. (Citing Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309-310 [once an appellate court decides a point of law that is necessary to the decision of the case, that point of law is conclusively established unless an exception applies].) We do not agree. In the prior appeal, we did not consider whether Navarro would be liable for attorney fees under the reciprocity principles of section 1717. That issue did not arise until the case was remanded and L.A. Arena, consistent with our disposition, sought to recover its costs, including attorney fees, pursuant to the agreement.
Navarro also asserts that because we reversed the prior judgment in his favor as void for lack of jurisdiction, the April 20 order must also be reversed as void for lack of jurisdiction. In support of this assertion, Navarro has taken certain language from our prior opinion out of context. He argues that because we reversed the prior judgment as “void for lack of jurisdiction over Navarro as a non-party, ” he is not a party to these proceedings and the superior court lacked personal jurisdiction over him to enter the April 20 order, which must be reversed under the law of the case doctrine.
Navarro’s reliance on the doctrine of the law of the case is unavailing. When the superior court was presented with Navarro’s petition to confirm the purported award, it had only four alternatives under Code of Civil Procedure section 1286: (1) to confirm the award as made; (2) to correct the award and confirm it as corrected; (3) to vacate the award; or (4) to dismiss the proceeding. The first three options were inapplicable because there was no award in favor of Navarro to be confirmed, corrected, or vacated. Accordingly, the court’s sole option was to dismiss the proceeding. It simply had no jurisdiction to do otherwise.
When the opinion is read in the proper context of the applicable law and issues that were under consideration, it is clear we did not hold that the trial court lacked jurisdiction over the parties or to decide the petition. Rather, it lacked jurisdiction to confirm the award, because confirmation was not authorized by statute under the facts of the case. Although the trial court erred by confirming the purported award in Navarro’s favor, it clearly never lacked personal jurisdiction over Navarro, who had invoked the court’s jurisdiction by filing his petition. (See Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52 [“a party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance and waived all objections to defects in service, process, or personal jurisdiction”].)
Navarro’s reliance on Hsu v. Abbara (1995) 9 Cal.4th 863 is misplaced. Navarro cites Hsu for the proposition that section 1717 does not apply to this case, but the case does not support his position. It does not address the reciprocity principles of section 1717, the basis for awarding L.A. Arena its attorney fees. Similarly, his reliance on Snoffer v. City of Los Angeles (1936) 14 Cal.App.2d 650 is also misplaced. The court in that case explained that when a cause is remanded with directions to enter a particular judgment, the trial court must enter judgment in conformity with the appellate court order. It may not reopen the case on the facts, accept amended or supplemental pleadings, or retry the case. And if it should do so, any ensuing judgment would be void. The above principles are of no assistance to Navarro because, in the prior appeal, we awarded L.A. Arena its costs and the trial court therefore had jurisdiction to entertain L.A. Arena’s postremand motions for fees and costs.
II. The Award of Costs Is Supported by Substantial Evidence
When costs are incurred in superior court to enforce an arbitration award, the prevailing party is entitled to recover its costs in accordance with the general statutory provisions for costs. (Code Civ. Proc., §§ 1293.2, 1021 et seq.; Austin v. Allstate Ins. Co. (1993) 16 Cal.App.4th 1812, 1815-1816.)
“The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021)... of this code.” (Code Civ. Proc., § 1293.2.)
D.N. Corp. and Navarro contend that the $1,605 award of costs for the reporter’s transcripts should have been further reduced to $115, which was the cost incurred by D.N. Corp. for the same transcripts. For the reasons that follow, the contention lacks merit.
The applicable standard is the substantial evidence standard of review. “The trial court’s exercise of discretion in granting or denying a motion to tax costs will not be disturbed if substantial evidence supports its decision. (Jewell v. Bank of America (1990) 220 Cal.App.3d 934, 941.) Whether a cost is reasonable presents a question of fact for the trial court. (See Bank of Idaho v. Pine Avenue Associates (1982) 137 Cal.App.3d 5, 19.) When an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom; where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1412.) This rule applies also to declarations. (Ibid.)” (Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 39.)
In this case, L.A. Arena submitted a verified memorandum of costs and declaration that supported an award of $2,275 for the reporter’s transcripts. It later reduced its request to $1,605, in order to reflect its receipt of a $670 refund ($2,275 - $670 = $1,605).
In his supporting declaration, L.A. Arena’s attorney Richard D. Buckley, Jr., explained that the $2,275 amount was based on the total deposits paid for seven transcripts (7 deposits x $325 = $2,275).
The verified memorandum of costs and declaration provided substantial evidence to support the trial court’s award of $1,605 for the transcripts. (See Jeffers v. Screen Extras Guild, Inc. (1955) 134 Cal.App.2d 622, 623 [a verified memorandum of costs constitutes substantial evidence to support a claim for costs].) Even if we assume that the record contains some conflicting evidence to support a different amount, we must draw all reasonable inferences in favor of the award. (Lubetzky v. Friedman, supra, 228 Cal.App.3d at p. 39.) Accordingly, Navarro and D.N. Corp. have failed to carry their burden of establishing a lack of substantial evidence to support the award.
DISPOSITION
The April 20, 2010 order for fees and costs and the May 17, 2010 amended judgment are affirmed. L.A. Arena is awarded its costs on appeal.
We concur: WILLHITE, Acting P.J. MANELLA, J.
“Where a contract provides for attorney’s fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.
“Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.”
Section 1717, subdivision (b) provides in relevant part: “(b)(1) 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. Except as provided in paragraph (2), the 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.”