Ebrahimpour v. Pasco CA2/2 ( 2021 )

Filed 4/7/21 Ebrahimpour v. Pasco CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MEHRDAD EBRAHIMPOUR et al., B303983
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC559500)
v.
EDWARD PASCO et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephanie M. Bowick, Judge. Affirmed.
Vivoli Saccuzzo and Michael W. Vivoli for Plaintiffs and
Appellants.
Law Offices of Roger G. Honey and Roger G. Honey for
Defendant and Respondent MGK Consulting, Inc.
Retz & Aldover and Kirk J. Retz for Defendants and
Respondents James Marquardt and Kevork Kahwajian.
Plaintiffs and appellants Mehrdad Ebrahimpour and Saeed
Ebrahimpour (collectively, appellants) appeal from orders
awarding $113,850 in attorney fees through trial to defendant
and respondent MGK Consulting, Inc. (MGK), $58,250 to MGK in
attorney fees on appeal, and $36,890 in attorney fees on appeal to
defendants and respondents James Marquardt and Kevork
Kahwajian.1 We affirm the trial court’s orders.
BACKGROUND
This is the second appeal in this dispute. In the prior
appeal, appellants and co-plaintiff Edward Pasco2 challenged the
judgment entered against them on their individual and
derivative claims for breach of fiduciary duty, judicial dissolution,
and usurpation of MGK’s corporate opportunities. (Pasco v. MGK
Consulting (Mar. 27, 2019, B281144) [nonpub. opn.] (Pasco).)
Appellants’ derivative claims were based on their status as
alleged shareholders of MGK and as members of Sherman
Realty, an LLC that owns the real property on which MGK
operates its business. The judgment included the trial court’s
findings that appellants failed to prove they were shareholders of
MGK, that Marquardt or Kahwajian stole MGK’s corporate
opportunities, that Marquardt should be ousted from Sherman
Realty, or that Sherman Realty should be dissolved. The
judgment included attorney fees awards of $113,850 to MGK and
1 MGK, Marquardt, and Kahwajian are referred to
collectively as respondents.
2 Pasco is not a party to this appeal.
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Sherman Realty,3 and $93,500 to Marquardt and Kahwajian,
pursuant to attorney fees provisions in a June 10, 2011
memorandum of agreement concerning MGK (the memorandum
of agreement), and in Sherman Realty’s operating agreement.
We reversed the judgment, but only to the extent that it awarded
respondents attorney fees under the Sherman Realty operating
agreement. The matter was remanded to the trial court to
determine the amount of fees to be awarded solely under the
memorandum of agreement. (Pasco, supra, B281144.)
The remittitur was issued on May 28, 2019. The trial court
set a status hearing that took place on June 3, 2019. At that
hearing, appellants’ then attorney stated that he intended to file
a motion to be relieved as counsel. Counsel for all parties
accordingly stipulated to extend the time to file attorney fees
motions to August 19, 2019. Based on the parties’ oral
stipulation, the trial court reset all deadlines to be coordinated
with the new hearing date.
On July 25, 2019, MGK filed two motions for attorney fees,
one requesting $113,850 in fees incurred through trial and the
other requesting $69,150 in fees incurred in the prior appeal. On
August 6, 2019, Marquardt and Kahwajian filed a motion
requesting $60,155 in attorney fees incurred in the prior appeal.
In their oppositions to the motions, appellants argued that
respondents’ motions were untimely because they were not filed
within 40 days after issuance of the remittitur. Appellants
further argued that the fees incurred by respondents should be
apportioned equally between claims concerning MGK’s
memorandum of agreement and claims involving Sherman
Realty’s operating agreement; and because Sherman Realty’s
3 Sherman Realty is not a party to this appeal.
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operating agreement did not authorize a fee award in this case,
appellants should be liable for only one-half of any fees awarded.
Appellants also claimed the amounts sought by MGK and by
Marquardt and Kahwajian for fees incurred in the prior appeal
were duplicative and excessive.
In reply, counsel for respondents submitted a declaration
stating that the parties had orally stipulated to an extension of
time for filing the attorney fees motions to allow appellants’
former attorney to file a motion to be relieved as counsel. At the
November 6, 2019 hearing on the attorney fees motions the trial
court heard argument from the parties and took the matter under
submission.
In written rulings issued on December 3, 2019, and
December 4, 2019, the trial court found the attorney fees motions
were timely filed because the parties had orally stipulated to an
extension of time. The trial court rejected appellants’ argument
that the fee awards should be apportioned between MGK and
Sherman Realty. The court found that appellants’ claims “were
inextricably intertwined as between Sherman and MGK,” that
“the same witnesses, documents and evidence were involved and
presented as to each of the allegations regardless of [appellants’]
legal theory or claim,” and that apportionment between Sherman
and MGK was neither possible nor appropriate. The trial court
found that the $113,850 fee award was reasonable as to MGK.
The trial court granted in part MGK’s motion for attorney fees on
appeal, in the reduced amount of $58,250.
The trial court similarly found that apportionment of the
attorney fees on appeal incurred by Marquardt and Kahwajian
was not appropriate or possible because the claims asserted
against them concerning MGK and Sherman Realty were
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inextricably intertwined. The court exercised its discretion to
reduce the amount of fees requested and awarded the reduced
amount of $36,890 in fees to Marquardt and Kahwajian.
This appeal followed.
CONTENTIONS ON APPEAL
Appellants contend the attorney fees awards should be
reversed because respondents’ motions for attorney fees were
untimely filed; the trial court erred by not apportioning attorney
fees between the memorandum of agreement and the Sherman
Realty operating agreement; and the fees awarded were
duplicative and excessive. Appellants further contend this court’s
decision in the prior appeal, Pasco, supra, B281144, vacated the
trial court’s previous attorney fees award of $93,500 to
Marquardt and Kahwajian. They claim that Marquardt and
Kahwajian illegally levied on appellants’ bank account to enforce
the vacated fee award and ask that we clarify in this appeal that
our decision in Pasco, supra, B281144 vacated the previous
$93,500 fee award to Marquardt and Kahwajian, and that
Marquardt’s and Kahwajian’s failure to file a timely attorney fees
motion based on the memorandum of agreement precludes them
from recovering any attorney fees incurred through entry of
judgment in this case.
DISCUSSION
I. Timeliness
California Rules of Court, rule 3.1702(c), provides that a
party claiming attorney fees on appeal must file a motion for fees
within the time required for serving and filing a memorandum of
costs under rule 8.278(c)(1). Under California Rules of Court, rule
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8.278(c)(1), a party claiming an award of costs must file a
memorandum of costs or a motion seeking such costs within 40
days of the issuance of the remittitur. In the matter presently
before this court, the remittitur was issued on May 28, 2019, and
respondents’ motions for attorney fees and costs were not filed
until July 25, 2019 (MGK) and August 6, 2019 (Marquardt and
Kahwajian).
The trial court found, however, that the motions were
timely under California Rules of Court, rule 3.1702(c)(2), which
allows parties in an unlimited civil action to extend the time for
filing an attorney fees motion by an additional 60 days. That
finding is supported by the record. The trial court’s June 3, 2019
minute order reflects the parties’ oral stipulation to continue the
hearing on the motions to August 19, 2019 and to adjust the
briefing schedule in accordance with the new hearing date.
II. Apportionment
“Once a trial court determines entitlement to an award of
attorney fees, apportionment of that award rests within the
court’s sound discretion. [Citations.]” (Carver v. Chevron U.S.A.,
Inc. (2004) 119 Cal.App.4th 498, 505.) An abuse of discretion
occurs if the trial court’s determination exceeds the bounds of
reason given the circumstances before it. (Ibid.) Generally,
“[w]here a cause of action based on the contract providing for
attorney’s fees is joined with other causes of action beyond the
contract, the prevailing party may recover attorney’s fees under
[Civil Code] section 1717 only as they relate to the contract
action. [Citations.]. . . . A litigant may not increase his recovery
of attorney’s fees by joining a cause of action in which attorney’s
fees are not recoverable to one in which an award is proper.”
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(Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.) Fees
“need not be apportioned,” however, “when incurred for
representation on an issue common to both a cause of action in
which fees are proper and one in which they are not allowed.”
(Id. at pp. 129-130.) A party prevailing on a contract claim may
also recover attorney fees incurred in defending against claims
that are inextricably entwined with or necessary to enforce the
contract claim. (Calvo Fisher & Jacob LLP v. Lujan (2015) 234
Cal.App.4th 608, 623; Siligo v. Castellucci (1994) 21 Cal.App.4th
873, 877-879; Finalco, Inc. v. Roosevelt (1991) 235 Cal.App.3d
1301, 1307.)
The trial court here determined that claims asserted
against MGK, Marquardt, and Kahwajian, on the one hand, and
against Sherman Realty, on the other, were so inextricably
intertwined that it was not possible to fairly differentiate time
spent in defending claims as between Sherman Realty and
respondents, and that apportionment was not appropriate or
possible under the circumstances. Appellants fail to establish
that this determination was an abuse of discretion.
III. Prior fee award to Marquardt and Kahwajian
We do not address appellants’ arguments concerning the
effect of our decision in the prior appeal, Pasco, supra, B281144,
on the $93,500 previously awarded to Marquardt and Kahwajian
for attorney fees they incurred through trial. That attorney fees
award is not at issue in this appeal.
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DISPOSITION
The December 3, 2019 and December 4, 2019 orders
awarding respondents their attorney fees and costs are affirmed.
Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________, J.
CHAVEZ
We concur:
_______________________, Acting P. J.
ASHMANN-GERST
________________________, J.
HOFFSTADT
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