Johnson Law Firm and J. Craig Johnson for Plaintiffs, Cross-Defendants, and Appellants. Stevens Law and Margaret P. Stevens for Defendants, Cross-Complainants, and Respondents.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. MCC1400959 No. RIC1411084 David M. Chapman, Judge.
Johnson Law Firm and J. Craig Johnson for Plaintiffs, Cross-Defendants, and Appellants.
Stevens Law and Margaret P. Stevens for Defendants, Cross-Complainants, and Respondents.
RAMIREZ P. J.
This is a consolidated case, comprising two complaints and two cross-complaints. In a bifurcated trial, a jury awarded the plaintiffs $13,132.15 against one defendant and $1,723.23 against another defendant; the trial court then awarded the plaintiffs an additional $50,000 against the first defendant.
The plaintiffs then filed a motion for $755,350 in contractual attorney fees. The defendants raised multiple arguments in opposition; they asked the trial court to award a lesser amount of fees and, alternatively, to deny fees altogether. The trial court denied the motion in its entirety, without (as far as the record shows) stating reasons.
The plaintiffs appeal. In their opening brief, they attack one - and only one - of the multiple arguments that the defendants raised below for denying fees. In their brief, the defendants argue that the plaintiffs have failed to refute those other arguments. In their reply brief, the plaintiffs belatedly address some of these other arguments.
Because the plaintiffs failed to address the defendants' other arguments in their opening brief, we must affirm.
STATEMENT OF FACTS
GI Excellence, Inc. (GI) is a medical practice specializing in gastroenterology.
In September 2013, GI entered into four separate agreements: (1) an employment agreement with Dr. Manmeet S. Padda; (2) a recruitment agreement with Dr. Padda and Loma Linda University Medical Center-Murrieta (Loma Linda); (3) an employment agreement with Dr. Haritha Reddy Chelimilla; and (4) a recruitment agreement with Dr. Chelimilla and Fallbrook Hospital.
The employment agreements had no attorney fee clause. In his employment agreement, Dr. Padda agreed to indemnify GI against claims by Loma Linda.
The recruitment agreements had an attorney fee clause but no similar indemnity clause. The attorney fee clauses applied only to actions arising out of the recruitment agreements themselves.
Specifically, the attorney fee clause in Dr. Padda's recruitment agreement applied to any action "to enforce any provision of this Agreement or to seek a declaration of the rights of the parties hereunder or as a result of any breach or threatened breach of any provision of this Agreement ...." The attorney fee clause in Dr. Chelimilla's recruitment agreement applied to any "action to enforce the terms and provisions of this Agreement ...."
Dr. Padda worked for GI until June 2014, then quit. Dr. Chelimilla worked for GI until July 2014, then quit.
STATEMENT OF THE CASE
In June 2014, GI filed an action against Dr. Padda. In November 2014, GI filed an action against Dr. Chelimilla. Both actions asserted causes of action for breach of the employment agreements and the recruitment agreements and for indemnity.
Dr. Milan Chakrabarty and Dr. Indraneel Chakrabarty are owners, officers, and directors of GI. They are also plaintiffs, cross-defendants, and appellants in this case. Because their interests are aligned with GI's, we disregard their separate status. Thus, references to GI may or may not include them, unless specified.
A cause of action against Dr. Padda for defamation was voluntarily dismissed.
Dr. Padda and Dr. Chelimilla (Doctors) filed cross-complaints against GI. They asserted causes of action for intentional and negligent misrepresentation, violation of Labor Code 970 (a form of misrepresentation), indemnity, and declaratory relief. In their answers, they also asserted misrepresentation as an affirmative defense.
A special motion to strike (Code Civ. Proc., § 425.16) causes of action for defamation, invasion of privacy, and intentional and negligent interference with prospective economic advantage was granted. Causes of action for breach of the employment agreement and the recruitment agreement, for termination in violation of public policy, and for violation of Labor Code section 210 were involuntarily dismissed before trial.
In December 2014, Loma Linda filed an action against GI and Dr. Padda, for breach of his recruitment agreement. All three actions were consolidated.
According to GI, Fallbrook did not file a similar action only because it went out of business.
In October 2017, Loma Linda's claims were settled. GI paid Loma Linda $50,000, and Loma Linda dismissed its complaint against both GI and Dr. Padda.
GI asserts that it and Dr. Padda both settled with Loma Linda and each made a separate $50,000 payment. That may be so, but it cites no support for it in the record, and we have found none. Fortunately, the point is not material.
The remaining claims were bifurcated; the contract and misrepresentation claims were tried to a jury, and the indemnity claims were tried to the court.
The jury found that:
(1) Dr. Padda breached his recruiting agreement.
(2) Dr. Padda breached his employment agreement.
(3) GI's damages from Dr. Padda's breaches of contract were $13,132.15.
(4) Dr. Chelimilla breached her recruiting agreement.
(5) Dr. Chelimilla breached her employment agreement.
Technically, it found that Dr. Chelimilla breached the implied covenant of good faith and fair dealing in both agreements.
(6) GI's damages from Dr. Chelimilla's breaches of contract were $1,723.23.
(7) GI did not make an intentionally false representation and did not violate Labor Code 907.
(8) GI did make a negligently false representation, but the Doctors were not damaged.
In a bench trial on the indemnity claims, the trial court awarded GI $50,000.00 against Dr. Padda on an express indemnity theory.
The trial court entered judgment awarding GI these amounts, with prejudgment interest. It also found that GI was the prevailing party.
GI then filed a motion for an award of $755,350 in attorney fees against the Doctors. In their opposition, the Doctors argued:
(1) The attorney fee clauses applied to the contract claims but not the misrepresentation claims.
(2) The attorney fee clauses applied only to claims arising out of the recruitment agreements.
(3) Dr. Padda was not liable for fees incurred in the Loma Linda action.
(4) GI did not prevail on most of its claims.
(5) The verdict against Dr. Chelimilla ($1,723.23) was within small claims court jurisdiction.
(6) The verdict against Dr. Padda ($13,132.15) was within limited civil jurisdiction.
(7) GI unreasonably failed to engage in settlement negotiations.
They also argued that the fee motion was untimely. However, they withdrew this argument, by stipulation, before the hearing.
After hearing argument, the trial court denied the motion.
THE DENIAL OF ATTORNEY FEES
GI contends that the trial court abused its discretion by denying its motion for attorney fees. The Doctors respond, among other things, that GI has forfeited this contention by addressing only one of the alternative arguments for denying the motion that they raised below.
As far as the record shows, the trial court did not state any reasons for its ruling. At the hearing on the motion, it did make comments and ask questions that could be viewed as expressing an opinion on the merits. Nevertheless, "'[a] judge's comments in oral argument may never be used to impeach the final order, however valuable to illustrate the court's theory they might be under some circumstances.' [Citation.]" (Silverado Modjeska Recreation &Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 300.) Also, at the end of the hearing, the trial court adopted its tentative ruling, which may have stated reasons. However, the parties have not included the tentative ruling in the appellate record.
"'A judgment or order of the lower court is presumed correct.... [E]rror must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Subject to exceptions not applicable here, "an appealed judgment or order correct on any theory will be affirmed, even though the trial court's reasoning may have been erroneous; i.e., appellate courts will not review the reasons for the trial court's decision. [Citations.]" (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021) ¶ 8:214, p. 8-166.) "'An appellant . . . forfeits an issue by failing to raise it in his or her opening brief.' [Citation.]" (Dameron Hospital Assn. v. AAA Northern California, Nevada &Utah Ins. Exchange (2022) 77 Cal.App.5th 971, 982.)
These rules, in combination, mean that GI must challenge all of the reasons that the Doctors raised below for denying the fee motion. We may affirm based on any unchallenged reason, because it is presumed correct, with no need for analysis.
In its opening brief, however, GI argues only that the trial court erred by denying the motion based on Code of Civil Procedure section 1033, subdivision (a). It wholly fails to address the other arguments that the Doctors raised below.
This subdivision provides: "Costs . . . shall be as determined by the court in its discretion in a case other than a limited civil case . . . where the prevailing party recovers a judgment that could have been rendered in a limited civil case."
Admittedly, the Doctors' other arguments all went to whether the attorney fees should be apportioned - as between contract claims and tort claims; as between claims arising out of the recruitment agreements and other claims; as between claims on which GI did and did not prevail; and as between fees incurred before and after GI failed to engage in settlement negotiations. However, the Doctors further argued that, because GI had not carried its burden of proving which fees were recoverable, the trial court should refuse to award it any fees whatsoever. As a legal proposition - i.e., leaving aside the complex and detailed factual question of whether GI actually carried its burden - this argument was by no means frivolous. (See In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 694-697; Guillory v. Hill (2019) 36 Cal.App.5th 802, 811-812.)
Although GI does address the Doctors' other arguments, to some extent, in its reply brief, this is a day late and a dollar short. "We generally do not consider arguments raised for the first time in a reply brief. [Citation.]" (Raceway Ford Cases (2016) 2 Cal.5th 161, 178.) '"'"Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission."'"' [Citation.]" (Donorovich-Odonnell v. Harris (2015) 241 Cal.App.4th 1118, 1141.)
Accordingly, we must affirm based on GI's failure to address the Doctors' other arguments in its opening brief.
The order appealed from is affirmed. The Doctors are awarded costs on appeal against GI (including Dr. Milan Chakrabarty and Dr. Indraneel Chakrabarty).
We concur: SLOUGH, J., FIELDS J.