Stone v. Mitchell CA1/4

Filed 10/16/15 Stone v. Mitchell CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ROLAND STONE et al., Plaintiffs and Appellants, A132335 v. JOHN C. MITCHELL, (San Francisco County Super. Ct. No. CGC08479284) Defendant and Respondent.

This is the second time this case has been before us. As we explained in the first appeal, Stone v. Mitchell (December 10, 2013, A131442 [nonpub. opn.] (Stone I)), “[p]laintiffs Roland and Jane Stone1 bought an apartment building (the building or the property) from defendant John Mitchell, believing its 10 apartments could all be legally rented out. They later learned that a larger unit had been divided into two without a building permit, and therefore only nine of the units were legally permitted. They brought this action against Mitchell for breach of contract, negligence, and negligent misrepresentation. On the negligence claim, the jury found in plaintiffs’ favor, but also determined the Stones were 60 percent responsible for their injuries. The jury found in Mitchell’s favor on the other two claims.” The jury found plaintiffs had suffered damages of $111,400, and in the judgment, the trial court reduced this amount by

1 We shall refer to Roland Stone as ‘Stone,’ and Roland and Jane Stone collectively as ‘the Stones’ or ‘plaintiffs.’

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60 percent to account for plaintiffs’ comparative fault.2 Both plaintiffs and Mitchell appealed, and in Stone I, we affirmed the judgment. Plaintiffs brought a motion for contractual attorney fees, requesting approximately $212,800 in fees. The trial court awarded fees in the amount of $85,000. Plaintiffs have appealed that order. They contend the trial court improperly reduced their fees to account for their lack of success on two of their three causes of action and the jury’s apportionment of fault on their successful claim. We shall affirm the order. I. BACKGROUND The sales contract between Mitchell and the Stones included the following provision: “In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller. . . .” Based on this provision, plaintiffs moved for attorney fees and submitted evidence they had incurred attorney fees of approximately $212,800. In his opposition, Mitchell pointed out that plaintiffs were unsuccessful in their causes of action for contract and negligent misrepresentation and the jury found that plaintiffs were primarily responsible for their own losses; therefore, Mitchell argued, “Plaintiffs should be denied any award of attorney fees, and, at the least, should not be awarded more than one third (prevailing on one cause of action out of three) less sixty percent (60%) (the percentage the jury determined that Plaintiffs were contributorily negligent).” Similarly, at the hearing on the motion, Mitchell’s counsel argued that the court should consider plaintiffs’ lack of success on two of their three causes of action and limited success on the remaining claim and should award, at most, 40 percent of one-third of the attorney fees plaintiffs incurred. The trial court awarded attorney fees of $85,000. It did not explain, either at the hearing on the motion or in its written order, how it arrived at this figure.