California Court of Appeal Mar 13, 2014 No. D062784Unpublished
Filed 3/13/14 Zock v. Esparza CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROBERT NORMAN ZOCK, D062784 Individually and as Trustee, etc.,
Plaintiff and Appellant, (Super. Ct. No. 37-2011-00090286- v. CU-OR-CTL)
SCOTT J. ESPARZA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, John S.
Meyer, Judge. Reversed in part, affirmed in part, and remanded with directions.
Olsen Law Offices and Christopher Alexander Olsen for Plaintiff and Appellant.
No appearance for the Defendants and Respondents.
Plaintiff and appellant Robert Norman Zock, individually and on behalf of the
R.N. Zock Family Trust, appeals from a judgment awarding Civil Code section 17171
attorney fees to defendants Scott J. Esparza, Scott J. Esparza & Co. Bail Bonds, and
Continental Heritage Insurance Co. on a finding that defendants were the prevailing
parties. Zock contends the trial court abused its discretion in making its prevailing party
determination because he achieved his main litigation objective and recovered the greater
net monetary judgment in the action.
None of the defendants have filed a respondent's brief in this matter. California
Rules of Court, rule 8.200 states: "Each respondent must serve and file a respondent's
brief." (Cal. Rules of Court, rule 8.200(a)(2).) This rule provides that if the respondent
does not timely file a brief, this court "may decide the appeal on the record, the opening
brief and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).)
We elect to do so, and will not treat defendants' failure to file a respondent's brief as a
default or an admission that the trial court erred. (In re Marriage of Riddle (2005) 125
Cal.App.4th 1075, 1078, fn. 1.) Rather, the better practice is to examine the record on the
basis of Zock's brief and reverse only if prejudicial error is found. (See In re Bryce C.
(1995) 12 Cal.4th 226, 232-233.) Undertaking that analysis, Zock has shown a
prejudicial abuse of discretion. The judgment to the extent it declares defendants to be
the prevailing parties for purposes of section 1717 attorney fees is without any reasonable
1 All further statutory references are to the Civil Code. 2
basis or supporting evidence. Accordingly, we reverse that part of the judgment and
remand with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2011, Zock on behalf of himself and the R.N. Zock Family Trust sued
defendants for fraud, breach of contract, breach of the implied covenant of good faith and
fair dealing, wrongful foreclosure, elder abuse, declaratory relief, injunctive relief, and an
accounting. In part, he alleged that after he negotiated to secure a $145,000 bail bond for
his daughter, Danielle Zock, Scott J. Esparza & Co. Bail Bonds, doing business as
ACME Bail Bonds (Acme), demanded a $14,500 renewal fee despite the fact, among
others, that Acme's agents had agreed to waive the fee when the bail bond agreement was
executed. The bail bond agreement executed by Zock provides in part that he would
agree "[t]o pay the Second Party or Surety, in the event that it is necessary for them to
institute suit for a breach of this agreement, a reasonable attorney's fee which shall, in no
event, be less than the sum of twenty-five dollars ($25.00)."
The matter proceeded to a bench trial on all of Zock's causes of action. Zock's
counsel explained at the outset that the primary relief his client sought was a judicial
declaration that he was not bound by the annual renewal fee. His theory was that,
notwithstanding the written bail agreement, defendants had waived their right to recover
that fee. Defendants' position was that they did not waive the fee, and had an enforceable
integrated contract obligating Zock to pay it. During the course of trial, the court
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confirmed that "the only issue in this case is waiver."2 To that end, Zock testified that
the person with whom he met from Acme, Cathy Kessler, spoke with her manager,
William Burns, who instructed her to tell Zock they would waive the fees to renew the
bond so it would not be a concern for him. Kessler testified she told Zock Acme would
waive the renewal fee. Burns similarly testified he instructed Kessler to do so after she
spoke with Esparza.
In closing arguments, Zock's counsel argued that the "very narrow issue in this
case is whether or not the parties agreed to [an] annual renewal fee." He pointed out that
every person present during the bond's negotiation agreed that the fee had been waived.
Counsel reiterated that "primarily the remedy that plaintiffs are looking for [is] that the
annual renewal fee not be enforced, that the plaintiffs be allowed to pay off the other
amounts that are costs that were associated . . . ."3
Thereafter, the court entered a judgment (1) that Zock take nothing on his
complaint against defendants; (2) awarding Acme $4,6604 against Zock on behalf of
2 "The Court: So the only issue in this case is waiver. [¶] [Zock's counsel]: Exactly that's exactly right. [¶] The Court: Right? [Zock's counsel]: Yes."
3 Zock's counsel argued the case was "not about going after Mr. Esparza [and] not going after [Acme]. . . . What's in dispute is the annual renewal fee. . . . So to that extent plaintiffs simply request that the court order that the annual renewal fee not be enforced, and that we just move on with everything else from there."
4 This award appears to be based on a $337.50 premium tax that Acme owed to the State; $1,500 owed by Acme to the surety; a $1,381 balance on the initial premium owed by Zock; and $1,450 for one month of prorated premium. Danielle Zock testified she was willing to pay the balance owed to Acme on the initial premium, but not another premium. 4
himself and the R.N. Zock Family Trust; (3) declaring defendants to be the prevailing
parties; and (4) ordering that Acme not take action to enforce its rights under the
contracts with Zock, including the deed of trust, until 90 days from the court's entry of
judgment. Zock appeals from the judgment.
DISCUSSION
I. Standard of Review
"The trial court exercises wide discretion in determining who, if anyone, is the
prevailing party for purposes of attorney fees." (Cussler v. Crusader Entertainment, LLC
(2012) 212 Cal.App.4th 356, 366; see Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) Thus,
we review the trial court's ruling for a manifest abuse of discretion, which occurs when
the trial court acts in an " ' " ' "arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice," ' " ' " (Cussler, at p. 366) commits a
prejudicial error of law, or makes necessary findings not supported by substantial
evidence. (Silver Creek, LLC v. Blackrock Realty Advisors, Inc. (2009) 173 Cal.App.4th
1533, 1539.)
II. Prevailing Party Determination for Recovery of Section 1717 Attorney Fees
Section 1717 provides in part: "In any action on a contract, where the contract
specifically provides that attorney's fees and costs, which are incurred to enforce that
contract, shall be awarded either to one of the parties or to the prevailing party, then the
party who is determined to be the party prevailing on the contract, whether he or she is
the party specified in the contract or not, shall be entitled to reasonable attorney's fees in
addition to other costs. [¶] . . . [¶] . . . The court, upon notice and motion by a party,
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shall determine who is the party prevailing on the contract for purposes of this section,
whether or not the suit proceeds to final judgment. Except as provided in paragraph (2)
[relating to dismissal of action], the party prevailing on the contract shall be the party
who recovered a greater relief in the action on the contract. The court may also
determine that there is no party prevailing on the contract for purposes of this section."
(§ 1717, subds. (a) & (b)(1).)
"The phrase 'greater relief . . . on the contract' does not necessarily mean greater
monetary relief. [Citation.] Under . . . section 1717, the trial court has discretion to
determine who, if anyone, is the party prevailing on the contract. [Citation.]
Nonetheless, . . . section 1717 also contemplates that a party prevailing on a contract will
'receive attorney fees as a matter of right . . . whenever the statutory conditions have been
satisfied.' [Citations.] [¶] Accordingly, when the decision on a litigated contract claim
'is purely good news for one party and bad news for the other—the Courts of Appeal
have recognized that a trial court has no discretion to deny attorney fees to the successful
litigant. Thus, when a defendant defeats recovery by the plaintiff on the only contract
claim in the action, the defendant is the party prevailing on the contract under . . . section
1717 as a matter of law. [Citations.]' [Citation.] It is only when the results of the
litigation are 'mixed' that the statute 'reserve[s][to] the trial court a measure of discretion
to find no prevailing party[.]' [Citation.] Upon final resolution of the contract claims, the
trial court determines whether there is a prevailing party on the contract by comparing the
relief awarded on the contract claim with the parties' demands and their litigation
objectives." (Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th
6
796, 806, italics omitted; see Hsu v. Abbara, supra, 9 Cal.4th at p. 876; see also Silver
Creek, LLC v. Blackrock Realty Advisors, Inc., supra, 173 Cal.App.4th at pp. 1538-
1539.)
"The prevailing party determination is to be made only upon final resolution of the
contract claims and only by 'a comparison of the extent to which each party ha[s]
succeeded and failed to succeed in its contentions." (Hsu v. Abbara, supra, 9 Cal.4th at
p. 876; see De La Cuesta v. Benham (2011) 193 Cal.App.4th 1287, 1294.) "If neither
party achieves a complete victory on all the contract claims, it is within the discretion of
the trial court to determine which party prevailed on the contract or whether, on balance,
neither party prevailed sufficiently to justify an award of attorney fees." (Scott Co. v.
1134; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499-1500.) Because section 1717
does not provide otherwise, Zock is entitled to his attorney fees and costs incurred on
appeal.
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DISPOSITION
The judgment to the extent it determines defendants to be the prevailing party is
reversed. The matter is remanded with directions that the trial court declare Robert
Norman Zock on behalf of himself and the R.N. Zock Family Trust to be the prevailing
party, and for further proceedings to determine reasonable attorney fees pursuant to Civil
Code section 1717 and on appeal. The judgment is otherwise affirmed. Zock shall
recover his costs on appeal.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court abused its discretion by designating the defendants as the prevailing parties under Civil Code section 1717 because the plaintiff achieved his primary litigation objective of defeating the defendants' claim for a $14,500 renewal fee.
Issues
Did the trial court abuse its discretion in determining the prevailing party for purposes of Civil Code section 1717 attorney fees?
Did the plaintiff achieve his main litigation objective despite the defendants' recovery of a smaller, conceded amount?
Disposition. Reversed in part, affirmed in part, and remanded.
Quotations verified verbatim against the opinion
“The matter is remanded with directions that the trial court declare Robert Norman Zock on behalf of himself and the R.N. Zock Family Trust to be the prevailing party”