Opinion
A147960
09-05-2018
JASON EVERETT THOMPSON et al., Plaintiffs, Cross-defendants and Respondents, v. DEAN GREGORY ASIMOS, Defendant, Cross-complainant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. CGC-11-514980)
After extensive litigation, the trial court held defendant Dean Asimos in contempt for failing to comply with an injunction entered by the court. As part of the contempt judgment, the court ordered that Asimos pay to plaintiff Jason Thompson the reasonable attorney fees and costs incurred by Thompson in connection with the contempt proceedings, as determined by the court on the filing of an appropriate motion. After Thompson filed his fee motion, the court awarded him $62,785.37 in fees and costs.
In his appeal of the fee award, Asimos argues (1) the contempt judgment was improperly entered and therefore provides no basis for the fee award, and (2) the court abused its discretion by awarding excessive fees. We will not address the propriety of the contempt judgment or Thompson's resulting entitlement to fees, because Asimos was obligated to present any appellate challenge to that judgment by filing a petition for extraordinary writ relief. As to the amount of the fee award, we find no abuse of discretion. We therefore affirm.
I. BACKGROUND
The parties are familiar with the procedural background of the present dispute, which we described in detail in the published and unpublished portions of our prior opinion in this matter, Thompson v. Asimos (2016) 6 Cal.App.5th 970 (certified for partial publication) (Thompson I).
In November 2015, the trial court entered both an order and a judgment finding Asimos in contempt for willfully disobeying the court's injunction requiring him to sign documents necessary to release to Thompson certain funds held by a third party. In the order and in the judgment, the court directed that Asimos pay the reasonable attorney fees and costs incurred by Thompson in initiating and litigating the contempt proceedings, as determined by the court on the basis of a motion to be filed by Thompson.
Thompson filed his fee motion in January 2016, requesting an award of $64,027.35. Thompson supported the motion with a declaration from one of his attorneys describing the work performed by counsel during the contempt proceedings, specifying the billing rates for the attorneys who worked on the matter and summarizing how the requested fees and costs were calculated. The declaration attached time records for the attorneys involved.
Asimos filed an opposition to the motion, arguing that both the hourly rates charged by Thompson's counsel and the number of hours billed were excessive.
After a hearing, the court disallowed certain categories of fees and costs and awarded a total of $62,785.37. Asimos appealed.
II. DISCUSSION
A. The Contempt Judgment and Thompson's Entitlement to Fees
"A judgment of contempt is not appealable. (See Code Civ. Proc., § 904.1, subd. (a) [appeal may not be taken from a 'judgment of contempt that is made final and conclusive by Section 1222']; [Citation.].) The proper method to challenge a contempt order is to seek extraordinary writ relief, either through a petition for a writ of habeas corpus, certiorari, or prohibition." (In re M.R. (2013) 220 Cal.App.4th 49, 64-65.)
As we noted in our prior opinion, and as Asimos acknowledges in his appellate brief, he did not file a writ petition challenging the trial court's contempt judgment. (Thompson I, supra, A140096 [nonpub. part of par. pub. opn.], p. 17, fn. 8.) The judgment therefore is final. (Ibid.) We will not address Asimos's challenges to the validity of the contempt judgment or to the court's determination as part of that judgment that Asimos would pay Thompson's reasonable attorney fees and costs incurred in connection with the contempt proceedings. (See Code Civ. Proc., § 1218, subd. (a) [party adjudged guilty of contempt for violation of court order "may be ordered" to pay the reasonable attorney fees and costs of the party that initiated the contempt proceeding].)
At the February 4, 2016 hearing on the fee motion in the trial court, Asimos's counsel told the court that Asimos did not have the financial resources to file a writ petition challenging the contempt judgment.
In our prior opinion, we denied Thompson's motion to dismiss Asimos's appeal of the underlying judgment (entered after a bench trial on the merits of the parties' business dispute) on the basis of the "disentitlement" doctrine. (Thompson I, supra, A140096 [nonpub. part of par. pub. opn.], pp. 14-17.) Although Asimos repeatedly failed to comply with the court's injunction, we noted that, in the precise procedural context presented, there was some doubt as to whether the court had jurisdiction to adjudge him guilty of contempt when it did. (Id. at pp. 15-17 & fn. 8.) We therefore withheld "the equitable remedy of appellate disentitlement" and proceeded to the merits of Asimos's appeal. (Id. at p. 17 & fn. 8.) We stressed, however, that we were not passing on the validity of the contempt judgment itself, which we stated was "final" because Asimos did not challenge it by filing a writ petition. (Id. at p. 17, fn. 8.)
We find no extraordinary circumstances supporting Asimos's request that we treat his appeal of the court's February 4, 2016 fee order as a writ petition challenging the earlier judgment of contempt. (See Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1349 [appellate court's discretion to treat an appeal as a writ petition "should be exercised only in extraordinary circumstances"].) In particular, we note the obligation to seek writ relief was clear. (Code Civ. Proc., §§ 904.1, subd. (a)(1), 1222.) We will dismiss the appeal to the extent it purports to challenge the contempt judgment or Thompson's resulting entitlement to attorney fees and costs. (See Sears, supra, 131 Cal.App.4th at pp. 1349-1350 [dismissing portion of appeal raising challenge that should have been raised by writ].)
B. The Amount of the Fee Award
We find no abuse of discretion by the trial court in setting the amount of fees and costs. (See Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 488 [fee awards reviewed for abuse of discretion].) " 'The "experienced trial judge is the best judge of the value of professional services rendered in [her] court, and while [her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong." ' " (Ibid.)
As noted, Thompson supported his fee motion with a declaration from his counsel outlining the work performed in connection with the contempt proceedings and explaining the calculation of the amounts requested, and counsel also submitted detailed time records. The court considered the motion carefully. At the hearing on the fee motion, after noting it had reviewed the moving and opposition papers, the court questioned Thompson's counsel about specific portions of the fee request and about particular cost items. The court ultimately excluded some of the requested amounts from its final award. We find no basis in the record for Asimos's assertion that the court did not spend sufficient time reviewing the fee request and considering its reasonableness. We also are not persuaded by Asimos's brief argument that the court's failure to exclude or reduce certain components of the fee request constituted an abuse of the court's broad discretion here.
As Asimos notes in his appellate brief, the court permitted him to make a statement at the fee hearing, and he asked the court to reduce the award based on equitable considerations, including his financial circumstances. We find no abuse of discretion by the court in declining to modify the award based on these factors.
C. Appellate Fees
In his appellate brief, Thompson includes a brief request for an award of attorney fees and costs incurred in the present appeal. We will award Thompson his costs as prevailing party in this appeal. (Cal. Rules of Court, rule 8.278(a), (d)(1).) Appellate attorney fees or additional appellate costs may be awarded by the trial court in its discretion, upon an appropriate motion in that court. (Code Civ. Proc., § 1218, subd. (a) [party adjudged guilty of contempt "may be ordered" to pay attorney fees and costs]; see In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 320 [directing that request for appellate fees be presented to trial court].)
III. DISPOSITION
The appeal is dismissed to the extent it purports to challenge the November 13, 2015 contempt judgment and Thompson's resulting entitlement to attorney fees and costs incurred in the contempt proceedings. The trial court's February 4, 2016 order setting the amount of fees and costs is affirmed. Thompson shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a), (d)(1).) Any request for appellate attorney fees or additional appellate costs may be presented to the trial court.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Schulman, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------