Asphalt Professionals v. Emaron Homes CA2/6

Filed 2/27/14 Asphalt Professionals v. Emaron Homes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

ASPHALT PROFESSIONALS, INC., 2d Civil No. B248837 (Super. Ct. No. SC044181) Plaintiff and Respondent, (Ventura County)

v.

EMARON HOMES, LLC et al.,

Defendants and Appellants.

Defendants Emaron Homes, LLC, Fairland Construction, Inc., and Real Estate Spectrum, Inc. (hereafter appellants) appeal orders denying their motion for attorney fees after they prevailed on a bifurcated phase of this case against plaintiff Asphalt Professionals, Inc. (API). The trial court ruled their motion was untimely. Appellants filed a motion for relief under Code of Civil Procedure section 473 based on their counsel's mistake about the court's procedure involving the timing of attorney fee motions.1 The court denied relief. We conclude, among other things, that appellants' motion for attorney fees was not untimely; and 2) alternatively, the trial court should have granted relief to appellants under section 473. We reverse. FACTS API filed an action against T.O. IX, LLC, the appellants and other defendants. It alleged causes of action for breach of a construction contract, quantum

1 All statutory references are to the Code of Civil Procedure.

meruit and fraud involving services API provided on a T.O. IX housing development project. It alleged the appellants were alter egos of T.O. IX and other defendants. The trial court bifurcated the case into three phases: phase one--breach of contract and quantum meruit causes of action; phase two--whether the appellants and other defendants were alter egos of T.O. IX and others; phase three--fraud causes of action. The fraud causes of action remain to be tried. Appellants allege that "[w]hile named as parties in Phase III, there is no evidence that [they] ever made any representation" to API. In 2010, API prevailed against T.O. IX on phase one. Appellants' counsel represented the defendants who were alleged to be alter egos on phase two of the case. They included the three current appellants. On December 23, 2011, the trial court found some of the defendants were alter egos, but appellants were not. Appellants' counsel appealed on behalf of the defendants found to be alter egos. On December 19, 2012, we reversed the judgment that found defendants Regina Leon and the Leon Family Trust to be alter egos. On January 18, 2013, we modified our opinion and also reversed as to defendant Regina Leon in her capacity as the trustee of the Leon Family Trust. On January 23, 2013, appellants' counsel filed a motion for attorney fees in the trial court for the three defendants who prevailed on appeal. He also sought attorney fees for the current appellants who had also prevailed on the alter ego issue in the trial court. The trial court awarded attorney fees for the defendants who prevailed on appeal. The trial court denied the current appellants attorney fees. It ruled their fee motion was untimely. It referred to an earlier proceeding in 2010. It found appellants were bound by a procedure to determine attorney fees to which they had agreed. At that hearing, API's attorney asked the court whether API could file a motion for attorney fees after prevailing on phase one of the case. He was concerned that another judge would try