Vilela v. Rodriguez CA2/6

Filed 6/22/16 Vilela v. Rodriguez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOHN VILELA, 2d Civil No. B262442 (Super. Ct. No. 56-2012-00418078- Plaintiff and Appellant, CU-FR-VTA) (Ventura County) v.

DELIA RODRIGUEZ et al.,

Defendants and Respondents.

Plaintiff John Vilela appeals an award of $239,824 in attorney fees to defendants Delia Rodriguez; Richard Cabo; Drinks America Holdings, Ltd.; Elements Spirits, Inc.; Worldwide Spirits, Inc.; Worldwide Beverage Imports, LLC; Frederico Cabo; and Timothy Owens, after they prevailed in Vilela's declaratory relief, breach of fiduciary duties and fraud action. We conclude, among other things, that 1) the trial court did not abuse its discretion by granting relief to defendants' counsel for not timely filing the motion for attorney fees (Code Civ. Proc., § 473); 2) the court's act of drawing a line through the words "attorneys' fees" in the initial judgment did not preclude the court from later awarding attorney fees after defendants filed their motion for fees; 3) defendants established their entitlement to attorney fees; and 4) the court erred by awarding defendants $4,400 more than defendants requested for attorney fees. We modify the award by reducing it from $239,824 to $235,424. As so modified, we affirm.

FACTS Vilela entered into a "Subscription Agreement" to invest $250,000 to purchase 12 percent of the shares of Elements Spirits, Inc. (Elements), a company that intended to sell "Kah," a brand of tequila. Vilela claimed that agreement "provided [him] with the right to acquire the Kah trademark in the event that Elements were to fail within two years." The agreement contained an attorney fee provision relating to litigation. To fund the high legal costs of that litigation, Elements sold 51 percent of the company to Worldwide Spirits, Inc. (Worldwide). Vilela claimed Worldwide and other individuals, including Cabo, Owens and Rodriguez, "took control of Elements," and diminished his "legal rights" and the value of his investment. He contended they conspired to "steal Elements' sole asset, the Kah trademark, for themselves" and "loot the company of its assets and income generating ability." Vilela filed a complaint for damages and equitable relief. He alleged causes of action against defendants for conspiracy to defraud, breach of fiduciary duty, removal of Directors, conversion, declaratory relief, and fraudulent transfer. He claimed he was entitled to a declaratory judgment that he owned "12% of all the issued and outstanding equity interests of Elements" as provided by the Subscription Agreement. At the conclusion of a court trial, the trial court entered judgment for defendants. We have no reporter's transcript of the trial record. After the entry of judgment, counsel for defendants filed a motion for attorney fees based on the attorney fee clause in the Subscription Agreement. The motion was filed a few days beyond the 60-day time period for filing an attorney fee motion. The trial court granted relief from the untimely filing under Code of Civil Procedure section 473 based on counsel's claim of a mistake in calculating the filing period. The court awarded attorney fees to defendants in the amount of $239,824. DISCUSSION Granting Relief for the Untimely Filing of the Motion for Attorney Fees Defendants' motion for attorney fees, filed more than 60 days after the notice of entry of judgment (Cal. Rules of Court, rule 3.1702(b)), was untimely. Vilela