Opinion
A141948 A143527
02-28-2017
EUGENE SCHNEIDER, Plaintiff and Appellant, v. GILLIAN HALL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG09445056)
Plaintiff Eugene Schneider is an attorney who represented two individual plaintiffs in a civil lawsuit against defendant Gillian Hall. Schneider is now the assignee of his clients' interest in the lawsuit, which resulted in a money judgment against Hall. The judgment was renewed in February 1999 pursuant to Code of Civil Procedure section 683.120, thereby extending the enforceability of the judgment for 10 years from the date the renewed judgment was filed. A second application for renewal of judgment was submitted in October 2007, but the court clerk rejected the application on the ground certain documents were missing. Schneider inadvertently failed to realize the second application had been rejected by the clerk and, as a result, did not resubmit the application with the documents requested.
We refer to the parties to this appeal, Eugene Schneider and Gillian Hall, by their last names. When we mention "the plaintiffs," we mean Schneider's clients who were the plaintiffs in the civil lawsuit against Hall that resulted in the money judgment.
Further statutory references are to the Code of Civil Procedure unless designated otherwise.
Upon discovering the second application for renewal of judgment had not been filed, Schneider initiated a separate action to enforce the judgment in April 2009, eventually asserting a claim for declaratory relief seeking an order deeming the second application for renewal of judgment filed as of the date it was rejected by the clerk in 2007. After a court trial, the trial court found in favor of Schneider and ordered the second application for renewal of judgment deemed filed nunc pro tunc as of October 23, 2007.
Hall appeals from the trial court's order and judgment. She contends the clerk of the court had authority to reject the second application on the ground it did not comply with statutory requirements (although that was not reason given by the clerk), and the trial court should not have granted Schneider relief because he slept on his rights.
Schneider cross-appeals, arguing the trial court erred in denying his motion for attorney fees.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Judgment and Applications for Renewal of Judgment
On March 26, 1993, following entry of default against Hall, a judgment was entered in Tourkow et al. v. Hall, Alameda County Case No. 679905-0 (Tourkow). Schneider was the plaintiffs' attorney. The Tourkow judgment was for $175,160.20 and specified the amount was for (1) general damages from breach of contract, statutory violations, fraud, and false representations, (2) punitive damages, and (3) contractual attorney's fees. The allegations underlying Tourkow are not apparent from the record.
On February 4, 1999, Schneider filed an application for renewal of the Tourkow judgment on behalf of the plaintiffs. With interest and costs after judgment and the fee for filing the renewal application, the renewed judgment amount was $277,696.70. The filing of the application automatically renewed the judgment and extended the period of enforceability of the judgment for 10 years from the date the application was filed. (§ 683.120, subd. (b).)
"The statutory renewal of judgment is an automatic, ministerial act accomplished by the clerk of the court; entry of the renewal of judgment does not constitute a new or separate judgment. 'Filing the renewal application (and paying the appropriate filing fee, Gov.C. § 70626(b)) results in automatic renewal of the judgment. No court order or new judgment is required. The court clerk simply enters the renewal of judgment in the court records.' " (Goldman v. Simpson (2008) 160 Cal.App.4th 255, 262, fn. omitted.)
On October 23, 2007, Schneider submitted a second application for renewal of the Tourkow judgment on behalf of the plaintiffs (sometimes referred to as the "second application"). With interest and costs after judgment and the fee for filing the second application, the renewed judgment amount was $519,758.28. Schneider used Judicial Council form EJ-190 (rev. Jan. 1, 2002), "APPLICATION FOR AND RENEWAL OF JUDGMENT." He identified the plaintiffs and defendant (Hall) by name and listed the case number, the date the original judgment was entered, and the date the judgment previously was renewed. He left blank section two of the form, which asked for the judgment debtor's name and last known address. However, the attached proof of service showed the second application was mailed to Hall at four different addresses in Oakland.
Schneider used a similar Judicial Council form in the previous renewal application filed February 4, 1999. In that application, he entered Hall's name and an address on Trestle Glen Road in section two.
The clerk did not file the second application, and instead returned it to Schneider with a cover sheet that provided, "The enclosed document is returned for the reason(s) marked below." "Other" was checked, and the following was handwritten: "(1) copy of judgment not enclosed. (2) Also missing subsequent documents: memo of cost after judgment & Notice of Renewal of Judgment (3) check enclosed." The cover sheet was dated October 31, 2007. Schneider's office apparently received the returned documents on November 2, 2007.
Schneider did not resubmit the second application with copies of the documents the clerk requested. He later alleged that the returned renewal application "was inadvertently filed in [the plaintiffs'] file rather than being processed and resubmitted," and this "error was not discovered until April 1, 2009."
Current Litigation
On April 1, 2009 (10 years and 56 days after the renewal of judgment of February 4, 1999), Schneider initiated the current action by filing, on behalf of the plaintiffs, a complaint for enforcement of judgment against Hall. In September 2013, Schneider moved to prosecute the action in his own name based on the plaintiffs' assignment to him of their interest in the judgment underlying the enforcement action.
In November 2013, Schneider filed a fourth amended complaint, the operative complaint, alleging two causes of action. The first cause of action was for enforcement of judgment. The second cause of action was for declaratory relief seeking "a declaration that the plaintiff's assignors' [sic] second application for renewal of judgment be deemed filed as of October 31, 2007 and that the judgment was renewed on October 23, 2007." Schneider alleged the second application was properly presented to the court for filing, but the "clerk of court improperly refused to file the Renewal of Judgment."
On March 4, 2014, the court held a bench trial. Schneider did not pursue the first cause of action for enforcement of judgment, and the court deemed the claim stricken at Schneider's request. The trial proceeded only on the declaratory relief cause of action, and the only witness was Hall. The parties agreed on the admission into evidence of five documents: (1) the Tourkow judgment entered on March 26, 1993, (2) the renewal of judgment filed on February 4, 1999, (3) the second application for renewal of judgment submitted to the clerk on October 23, 2007, (4) the clerk's cover sheet rejecting the second application dated October 31, 2007, and (5) the original complaint in the action, filed April 1, 2009. In addition, the court admitted a blank Judicial Council form EJ-190 (the form Schneider used in the second application for renewal of judgment).
The trial, which lasted about one and a half hours, was not reported. Hall requested a statement of decision.
Statement of Decision
The trial court "did not find [Hall's] testimony informative or persuasive as she had a very limited ability to recollect and generally appeared to be guessing." However, it did find that Hall resided at an address on Woodruff Avenue in Oakland from 1998 to the present.
The trial court found the Toukow judgment was entered on March 26, 1993, the judgment "has not been satisfied in whole or part," and a renewal of judgment was entered February 4, 1999. A second application for renewal of judgment was submitted to the clerk on October 23, 2007. Section two of the Judicial Council form was not completed, but the application "included a proof of service on [Hall] at four addresses, including [the Woodruff Avenue address] where she resided at the time." The court further found, "On October 31, 2007, the Clerk, without any judicial oversight or review, rejected the October 23, 2007 Application for Renewal. The rejection indicates it was rejected because a copy of the judgment was not enclosed and subsequent documents, including a memorandum of costs after judgment, were missing."
In its legal analysis, the court determined that the reasons given by the clerk for returning the second application were "not valid bases for refusing to file the Application for Renewal. Even if the clerk had the authority to deny the filing, the clerk could not have done so for the reasons stated in the rejection. Further, the lack of a memorandum of costs after judgment resulted in an error of $27 in the total amount of the judgment stated in the Application for Renewal and this error is not sufficient to invalidate the Application for Renewal or to justify the clerk's refusal to file it."
The court then addressed the statutory requirements for an application for renewal of judgment. Under section 683.140, an application "shall include all of the following": (1) "[t]he title of the court where the judgment is entered and the cause and number of the action," (2) "[t]he date of the entry of the judgment and of any renewals of the judgment and where entered in the records of the court," (3) "[t]he name and address of the judgment creditor and the name and last known address of the judgment debtor," and (4) "[i]n the case of a money judgment, the information necessary to compute the amount of the judgment as renewed."
The court found that the second application "clearly satisfie[d] requirements 1, 2, and 4." Regarding the third requirement, the court explained: "As to the sole remaining requirement, [the application] does not have the name and last known address of the judgment creditor. As Section 683.140 does not provide a penalty or consequence for noncompliance, and there is no suggestion that the Legislature intended to strip the court [of] jurisdiction, the language requiring the name and address of defendant should be considered directory (not mandatory) and the lack of strict compliance does not render the proceedings void. [Citations.] Nonetheless, [Hall] argues that the Application for Renewal was properly rejected for filing due to the failure to include the debtor name and address on the form. The Court does not find this argument persuasive. [Schneider] proved that the Application for Renewal was sent to plaintiff [sic] under her name and at an address where she clearly resided at the time. While [Hall] stated that she does not remember receiving the Application for Renewal, her memory was very hazy and she said it looked 'familiar.' The Court does not find [Hall's] testimony credible and finds that she was served the Application for Renewal. [¶] Therefore, the issue is whether prejudice resulted from any technical defects. The Court finds that there was no prejudice as the underlying complaint in this case was filed on April 1, 2009, only 56 days after the expiration of the February 4, 1999 Renewal of Judgment. Although [Hall] claims that paying some undefined amount of attorney fees is a prejudice, the Court finds it is not a prejudice, and, if it were, any prejudice did not result from any misconduct by [Schneider]."
The trial court found in favor of Schneider and against Hall and ordered the second application for renewal of judgment "shall be deemed filed nunc pro tunc as of the date of the Clerk's receipt of said Application, October 23, 2007."
DISCUSSION
A. Hall's Appeal: The Trial Court's Order Deeming the Second Application for Renewal of Judgment Filed as of the Date it was Presented to the Clerk
Hall contends the clerk's refusal to file the application was proper because the clerk had authority to reject Schneider's second application for renewal of judgment on the ground the application omitted information made mandatory by section 638.140. Hall further argues the trial court was precluded from granting Schneider relief. We conclude the trial court properly deemed the second application for renewal of judgment filed October 23, 2007, the date it was submitted to the court for filing.
We apply the substantial evidence standard to the trial court's factual findings, and we review questions of law de novo. We also review "mixed questions of fact and law [that] require 'a critical consideration, in a factual context, of legal principles and their underlying values' " independently. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1421.) Our review in this case is de novo because the questions whether the clerk could properly reject the second application when it was submitted for filing and whether the trial court had authority to order the second application deemed filed as of the date it was submitted are primarily legal.
"Government Code section 69846.5 provides that '[t]he clerk of the superior court shall endorse on each paper filed with the court the day, month, and year it is filed.' " (Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1273 (Carlson).) "[A] paper is deemed filed when it is deposited with the clerk with directions to file the paper." (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 778 (Rojas).)
"The functions of the clerk are purely ministerial." (Rojas, supra, 67 Cal.App.4th at p. 777.) Whether a document presented for filing "has legal merit is a determination to be made by a judge, not the clerk's office." (Voit v. Superior Court (2011) 201 Cal.App.4th 1285, 1287 (Voit).) Thus, for example, a "clerk has no discretion to reject a complaint that substantially conforms to the local rules." (Rojas, supra, 67 Cal.App.4th at p. 777.) Instead, "[w]here . . . the defect, if any, is insubstantial, the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity." (Ibid., italics added.)
The rule is the same for other papers submitted to a court for filing. In United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 914 (UFW), a union submitted a petition for writ of review to an appellate court on the last day for seeking such review under Labor Code section 1160.8. The clerk's office returned the petition to the union without filing it on the ground it did not comply with a Rule of Court requiring a table of authorities. The parties opposing the union (an employer and the Agricultural Labor Relations Board) argued the clerk properly refused to file the defective document based on a violation of the Rules of Court and as a result, the union's petition was untimely. (Ibid.)
The California Supreme Court rejected this result: "It is indeed arguable that the omission of a required verification is a technical defect which is properly within the clerk's scrutiny. Nevertheless, it cannot be the rule that the timeliness of a petition depends on whether the clerk catches such technical defects. Accordingly, we conclude that 'filing' for purposes of compliance with the time limits of Labor Code section 1160.8 means what it does in all other contexts: actual delivery of the petition to the clerk at his place of business during office hours. [Citations.] Thus, it is the filer's actions that are scrutinized in determining whether a petition was timely filed. Rejection of the petition by the clerk under rule 46 [of the California Rules of Court, renumbered rule 8.18] for a technical defect cannot undo a 'filing' that has already occurred. This is not to say, however, the reviewing court could not later order dismissal if a party has not undertaken timely correction of defects noted. We hold only that a defective petition may not be dismissed for untimeliness . . . when it is delivered to the appropriate clerk's office during office hours within the time limits set therein." (UFW, supra, 37 Cal.3d at p. 918, italics added.)
"To summarize: state law is clear that a paper is deemed filed when it is presented to the clerk for filing in a form that complies with [California Rules of Court,] rule 201 [renumbered rule 2.100]. If a paper is thus presented, the clerk has a ministerial duty to file it." (Carlson, supra, 68 Cal.App.4th at p. 1276; see Voit, supra, 201 Cal.App.4th at p. 1287.)
This rule provides, "The rules in this chapter prescribe the form and format of papers to be filed in the trial courts," and no trial court may enforce any local rule "concerning the form or format of papers." (Cal. Rules of Court, rule 2.100(a) and (b).)
There is an exception to this rule when there is a filing fee. In Duran v. St. Luke's Hospital (2003) 114 Cal.App.4th 457, 459 (Duran), the court recognized, "An unbroken line of decisions by our Supreme Court holds that it is mandatory for court clerks to demand and receive the fee required by statute before documents or pleadings are filed." In other words, a clerk's ministerial duties include the authority to reject a paper submitted for filing when the paper is not accompanied by a required fee.
Hall contends the clerk in this case could have properly rejected Schneider's application for renewal of judgment for noncompliance with section 683.140 (although the clerk actually rejected it for other reasons). But Hall cites no authority for the proposition that clerks have the authority to reject papers for alleged statutory noncompliance. To the contrary, a clerk has a ministerial duty to file a paper presented for filing unless the paper does not comply with the form and format requirements of the California Rules of Court, or the required fee is not paid. (Carlson, supra, 68 Cal.App.4th at p. 1276; Mito v. Temple Recycling Center Corp. (2010) 187 Cal.App.4th 276, 280 (Mito); Duran, supra, 114 Cal.App.4th at p. 459.) Hall makes no claim that Schneider's application violated form and format requirements or that Schneider failed to pay a required fee. Consequently, her contention that the clerk had authority to reject the application is without merit.
The cases Hall cites for her contrary position are unavailing. Three of the cases are distinguishable because they involve the failure to pay a required fee. (Duran, supra, 114 Cal.App.4th 457; Kientz v. Harris (1953) 117 Cal.App.2d 787; Davis & Son v. Hurgren & Anderson (1899) 125 Cal. 48.) The remaining case, Hartford Accident & Indemnity Co. v. Gonzalez (1994) 31 Cal.App.4th 51, was superseded by the California Rules of Court as recognized in Mito, supra, 187 Cal.App.4th at p. 280.)
The remedy when a clerk improperly refuses to file a paper, as happened in this case, is for the court to deem the paper filed as of the date it was presented to the clerk for filing. (UFW, supra, 37 Cal.3d at p. 918; Mito, supra, 187 Cal.App.4th at p. 278; Rojas, supra, 67 Cal.App.4th at p. 778; Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172-1173.) Accordingly, the trial court properly deemed the second application for renewal of judgment filed as of October 23, 2007, the date it was submitted to the court for filing.
Hall argues the trial court was precluded from granting relief because Schneider had sufficient time to cure the defects and resubmit his application. Her only support for this claim is the maxim of jurisprudence, "The law helps the vigilant, before those who sleep on their rights." (Civ. Code, § 3527.) Schneider responds with another maxim, "No one should suffer by the act of another" (Civ. Code, § 3520), so he should not lose his right to enforce the Tourkow judgment as a result of the clerk's error in not filing his second application. We reject Hall's claim. She offers no authority for her position that the trial court was precluded from granting relief, and as we have discussed, the trial court had the power to deem the second application for renewal of judgment filed as of the date it was presented to the clerk for filing. (See UFW, supra, 37 Cal.3d at p. 918; Mito, supra, 187 Cal.App.4th at p. 278; Rojas, supra, 67 Cal.App.4th at p. 778; Rapp v. Golden Eagle Ins. Co., supra, 24 Cal.App.4th at pp. 1172-1173.) B. Hall's Appeal: Statutes of Limitations
Hall contends the statutes of limitations of sections 683.020 and 337.5 bar this action because it was brought more than 10 years from the renewal of judgment filed on February 4, 1999. "Normally, we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived." (Bialo v. Western Mut. Ins. Co. (2002) 95 Cal.App.4th 68, 73.)
Section 683.020 provides a 10-year period of enforcement for a money judgment. More precisely, section 683.120 provides a 10-year enforcement period for a renewed judgment. (See OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2008) 168 Cal.App.4th 185, 191 [a renewal filed under section 683.120 " 'does not create a new judgment or modify the present judgment,' but merely extends the enforceability of the judgment—in effect, it resets the 10-year enforcement clock"].) Section 337.5 provides a 10-year statute of limitations for an action upon a judgment.
Here, Hall concedes the trial court's statement of decision does not indicate that she raised this issue at trial, but she claims she argued the issue in her trial brief. Not so. In her trial brief, Hall argued only that the first cause action for enforcement of judgment was barred by the 10-year statute of limitations. She never argued either section 683.020 or section 337.5 barred Schneider's second cause of action for declaratory relief, which was the only cause of action that went to trial. Since Schneider's first cause of action was deemed stricken before trial, there is no reason to infer Hall raised the 10-year statutes of limitation during the court trial.
We note that Hall's request for a statement of decision initially asked for a statement on two controverted issues. The first issue was whether Hall had been absent from the state between February 4, 1999, and April 1, 2009, in excess of 56 days because the 10-year statute of limitations for an action to enforce a judgment, Schneider's first cause of action, would have been tolled for the period Hall was not in California. (See § 351; Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1283-1284.) But the first issue was lined out by hand and initialed by Hall's attorney. Presumably, Hall deleted the request for a statement of decision regarding the tolling of the statute of limitations after Schneider announced that he would not go forward with his first cause of action at trial. Hall requested a statement regarding only whether "[Schneider's] second application for renewal of judgment be deemed filed as of Oct. 31, 2007 and that the judgment was renewed on Oct. 23, 2007." Nothing in this request indicates Hall raised either section 683.020 or section 337.5 as a bar to Schneider's second cause of action.
While appellate courts do have discretion to consider a legal issue raised for the first time on appeal, they "are more inclined to do so when matters of important public interest or public policy are involved." (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1654.) In this case, "we perceive no pressing public interest or policy in favor of reaching the issue." (Ibid.)
In any event, Hall cites no authority that statutes of limitations bar claims when the asserted untimeliness is the result of a clerk error. As we have seen, in UFW, our high court held, "a defective petition may not be dismissed for untimeliness . . . when it is delivered to the appropriate clerk's office during office hours within the time limits set therein." (UFW, supra, 37 Cal.3d at p. 918.) In Carlson, the Court of Appeal held a complaint was "effectively filed when it was first presented to the clerk, and the statute of limitations therefore did not run" even though the clerk improperly failed to actually file the complaint at the time it was presented. (Carlson, supra, 68 Cal.App.4th at p. 1270.) Likewise, in Rojas, after the clerk improperly rejected a complaint and the statute of limitations passed, the Court of Appeal held the complaint "must be deemed filed when it was presented." (Rojas, supra, 67 Cal.App.4th at pp. 775, 778.) These cases demonstrate that the passing of a limitations period does not preclude a court from correcting a clerk's error in failing to file a paper within the limitations period, which is what happened here.
Hall raises additional new arguments in her reply brief (the trial court's order impermissibly circumvented the statute of limitations, the clerk's alleged error does not relieve Schneider of the effect of the statute of limitations). We do not consider these arguments because Hall does not explain why she did not make them in her opening brief (or with the trial court), and Schneider has no opportunity to respond. (Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388; Authority for California Cities Excess Liability v. City of Los Altos (2006) 136 Cal.App.4th 1207, 1216, fn. 2 ["For sound policy reasons, we disregard claims raised for the first time in an appellate reply brief where the appellant makes no attempt to show good cause for failing to raise the issue in the opening brief"].) C. Schneider's Cross-Appeal: Denial of Attorney Fees
In his cross-appeal, Schneider also appealed two orders granting Hall relief from default. We do not reach this issue because Schneider's attorney stated at oral argument that there was no need to if we affirm the trial court's order deeming the second application for renewal of judgment timely-filed.
After the court trial, Schneider moved for an award of attorney fees. He sought $70,350 for work he performed for the original plaintiffs and another $25,920 for work provided by a law firm, Plastiras and Terrizzi, after Schneider "changed hats and became the plaintiff" in this case. In a supporting declaration, Schneider stated that "[a]ttorney fees occurred in two components," but he did not state that he billed the plaintiffs for his services or that he incurred fees for Plastiras and Terrizzi's services.
The trial court issued a tentative ruling, which was uncontested and became the court's first order on Schneider's request for attorney fees. The court found that Schneider had established he was "entitled to recover reasonable and necessary attorney's fees incurred in enforcing the judgment" under section 685.040. This was because the action sought to enforce the Tourkow judgment, which was based on a contract that included an attorney's fees clause.
Section 685.040 provides, "The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5."
However, the trial court found that Schneider failed to show (1) that the original plaintiffs in the Tourkow case actually incurred fees for Schneider's services in the current action, (2) that he was the assignee of their rights to recover such fees, or (3) that the fees were reasonable or necessary. In opposing the request for attorney fees, Hall argued that many of tasks performed by Schneider for the original plaintiffs were not necessary or reasonable. Although the court made no ruling on Hall's argument, it observed, "there appears to be some evidence to support" it. The court further found the fees claimed for the work of Plastiras and Terrizzi "not adequately supported" because the "evidence lack[ed] foundation with regard to the claim that it was necessary and reasonable for Plastiras and Terrizzi to provide 64.80 hours of professional time or that the rate of $400 is reasonable, given the level of difficulty required by this lawsuit." Hall argued the hours claimed by the law firm were excessive, and the court again noted that some evidence appeared to support Hall's argument.
Rather than denying Schneider's motion outright for failure of proof, the trial court continued the hearing to provide Schneider an opportunity to submit additional evidence. The court directed Schneider to submit supplemental briefing and "evidence to support his motion, consistent with the court's ruling."
In response, Schneider filed a detailed statement of the work he performed, and described the course of the litigation. Attorney Basil Plastiras also provided a declaration, in which he stated, "[M]y office provided 64.80 hours of professional time at an hourly rate of $400.00, for a total of $25,920.00."
After a hearing, the trial court denied Schneider's motion. The court explained: "[Schneider] seeks to recover $70,350 for time that he spent representing the original plaintiffs, but he has not offered evidence that the original plaintiffs . . . incurred any fees charged by [him]. . . . [Schneider] offers no evidence that the original plaintiffs agreed to pay attorney's fees for his time spent on this lawsuit. The [plaintiffs'] assignments [of interest in the judgment] themselves do not show that the original plaintiffs agreed to pay [Schneider's] fees, and [he] attaches no billing statements or other evidence that the original plaintiffs 'incurred' any attorney's fees in prosecuting this action. The fact that [Schneider] cannot produce an agreement to pay for his services in this action is not surprising because the need to prosecute this action resulted from [his] failure to take reasonable steps to cure the problem with the renewal of the judgment caused by the clerk's rejection of [his] first attempt to renew the judgment on October 31, 2007. [Schneider] had until February 4, 2009 to attempt to correct the problem and obtain a renewal of the [judgment], but failed to take any action within that period of time. In the absence of a written agreement to pay attorney's fees charged by [Schneider] to prosecute this action, there is no reasonable inference that the original plaintiffs agreed to pay [him] for his time spent curing a problem for which he was at least partially responsible. For that reason, [Schneider's] request for fees in the amount of $70,350 based on time that he spent representing the original plaintiffs is DENIED."
The trial court also found that Schneider failed to provide evidence to support his claim for fees for the services of Plastiras and Terrizzi. Schneider "offer[ed] no evidence of a written agreement to pay for the services of Plastiras and Terrizzi on an hourly basis, and no other evidence that he reasonably incurred attorney's fees for time the firm spent working on this case." (Italics added.)
"To 'incur' a fee, of course, is to 'become liable' for it [citation], i.e., to become obligated to pay it." (Trope v. Katz (1995) 11 Cal.4th 274, 280.) Schneider contends the trial court erred because "the issue is not what the client might or might not have paid, but whether they were 'paid or incurred,' " and, therefore, "[t]he trial court's conclusion the clients would not have paid the charges is irrelevant and contrary to the criteria to be applied." Schneider misunderstands the trial court's ruling. The court did not deny attorney fees out of a belief the plaintiffs would have failed to pay Schneider for his services; the court denied his motion because Schneider failed to show the original plaintiffs were obligated to pay for the work he performed in the first place.
The trial court specifically requested evidence from Schneider that attorney fees in this case were incurred and gave him an opportunity to produce such evidence, but Schneider failed to do so. He offered no evidence that the original plaintiffs in the Tourkow case agreed to pay him to prosecute the current case.
Further, "a trial court has discretion to reduce a prevailing party's contractual attorney's fees to the extent they were unnecessary." (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal.App.4th 770, 775.) "[I]t seems not just equitable, but in line with the reasonable expectations of contracting parties, to deny attorney's fees that were not reasonably necessary." (Id. at p. 775, fn. 5, italics added.) Here, the trial court recognized "the need to prosecute this action resulted from [Schneider's] failure to take reasonable steps to cure the problem with renewal of the judgment caused by the clerk's rejection of [his] first attempt to renew the judgment on October 31, 2007." Schneider had 15 months to resubmit the second renewal application, but he "failed to take any action within that period of time." Permeating both its tentative ruling and denial order is the trial court's determination that attorney fees in this case were not reasonably necessary because the entire action could have been avoided had Schneider simply followed up after the clerk improperly rejected the second application for renewal of judgment. Under these circumstances, the trial court did not abuse its discretion in denying Schneider's request for attorney fees. (See Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 934 ["The usual standard of review for an award of attorney fees is abuse of discretion"].)
DISPOSITION
The judgment is affirmed. Schneider is awarded costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.