Filed 11/4/13 Salazar v.Salazar 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOEL SALAZAR, D061716

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2007-00055630-

CU-BC-NC)

ALBERT SALAZAR,

Defendant and Appellant.

APPEALS from an order of the Superior Court of San Diego County,

Jacqueline M. Stern, Judge. Affirmed in part; reversed in part with directions.

Randall C. Sterling, for Defendant and Appellant Albert Salazar.

The Law Offices of Charles D. Nachand, Charles D. Nachand and Richard B.

Hudson, for Plaintiff and Appellant Joel Salazar. Albert Salazar appeals an order enforcing a settlement agreement he entered into

with his brother, Joel Salazar.1 His opening brief, however, violates basic rules of

appellate practice, and thus he has forfeited the matter. In any event, he purports to raise

a jurisdictional issue on behalf of a third party, which he lacks standing to do.

Joel also appeals, contending the trial court erred by denying him contractual

attorney fees as the prevailing party before he even filed a motion for fees. We agree

with him, and reverse the order in part with directions.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996 Joel and Albert formed a partnership and acquired three parcels of

property in San Diego County. In 2005 they agreed that Albert would purchase Joel's

interest in the properties for $300,000. A note secured by a deed of trust and a deed of

trust with assignment of rents were prepared, but Albert did not sign them. Joel signed a

deed quitclaiming his interest in the properties to Albert, and it was recorded.

In 2007 Joel sued Albert for breach of contract, fraud, and related counts, alleging

Albert's nonpayment. The complaint also alleged Albert had encumbered two of the

three properties that were to secure the note.

On January 9, 2009, the terms of a settlement agreement were recited on the

record. Albert was to pay Joel a total of $300,000. He was to pay Joel $250,000 within

90 days, and he was to sign a $50,000 promissory note in favor of his parents, Alberto

1 To avoid confusion, we refer to the parties and other family members with the same surname by their first names.

2 and Rachel Salazar, and pay them in a lump sum on December 30, 2009. The record

states, "It's the intent of the parties that this note is fully enforceable and nonwaivable. If

the parents, or either of them, should waive the performance obligation or payment, then

the obligation and payment revert back in favor of [Joel]. If either of the parents is

deceased, then it will be paid to the survivor when due." The court retained jurisdiction

over the matter. Albert signed a "Note Secured by Deed of Trust" the same date.

In January 2012 Joel brought a motion to enforce the settlement agreement under

Code of Civil Procedure section 664.6.2 Albert had paid Joel the $250,000, but he had

not paid the $50,000 note. Alberto had died, and thus it was owed to Rachel. Albert had

sold the property securing the note without giving Rachel any of the $100,000 down

payment and he had "attempted to negotiate the extension of payment with his mother,

and ha[d] promised to pay her through the sale of other property in Mexico." Rachel told

her sons "she wanted nothing to do with it [the $50,000], it was not her money." She told

Joel's attorney she "would not go to Court, and did not want to deal with the Court." The

attorney submitted a declaration that stated the "parents were solely gratuitous

beneficiaries. . . . It was [Joel's] money and being paid on behalf of [Joel] pursuant to the

settlement."

The trial court did not consider Albert's opposition brief, because he presented it in

pro per. He had counsel of record and had not submitted a substitution of attorney form.

2 Further undesignated statutory references are to the Code of Civil Procedure unless otherwise specified.

3 Neither Albert nor his attorney appeared at the hearing. After taking the matter under

submission, the court granted the motion, finding Albert breached the settlement

agreement and the note secured by a deed of trust reverted to Joel because Rachel "has

waived performance and/or payment of the obligation." The court denied Joel

contractual attorney fees on the ground he had not followed the correct procedure.

I

Albert's Appeal

A

Albert has filed a three-page opening brief, which violates basic rules of appellate

practice. It does not develop any particular argument; cite the record, with minor

exception; or cite any supporting legal authority. Each brief shall "[s]upport any

reference to a matter in the record by a citation to the volume and page number of the

record where the matter appears." (Cal. Rules of Court, rules 8.204(a)(1)(C) &

(a)(2)(C).)3 The "appellate court can treat as waived, forfeited or meritless any issue that,

although raised in the briefs, is not supported by pertinent or cognizable legal argument

or proper citation of authority." (Eisenberg et al., Cal. Practice Guide: Civil Appeals

and Writs (The Rutter Group 2012) ¶ 9.21, p. 906; Cahill v. San Diego Gas & Electric

Co. (2011) 194 Cal.App.4th 939, 956.) We deem Albert's appeal forfeited.

In any event, the opening brief does not challenge the sufficiency of the evidence

to support the court's order or raise any other claimed error as to Albert. Rather, its sole

3 Further rule references are to the California Rules of Court.

4 contention is that the trial court lacked personal jurisdiction over Rachel because she was

not a party to the action and thus it could not adjudicate her interest in the $50,000 note.

Albert, however, cites no authority for the proposition he has standing to pursue an

argument on her behalf.

In his reply brief, Albert attempts to challenge the sufficiency of the evidence to

show that Rachel waived payment, asserting declarations by Joel and his attorney were

hearsay. We deem arguments made for the first time in the reply brief, however, to be

waived. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 799.)

Further, Albert has waived the argument because he cites no law on the hearsay rule and

exceptions thereto, or on the substantial evidence standard of review.

Moreover, the reply brief argues that even though Rachel was not a party at the

trial court, she may appeal the order. It cites In re FairWageLaw (2009) 176 Cal.App.4th

279, 285, which explains, "Nonparties who are aggrieved by a judgment may appeal from

it." Rachel, however, did not file a notice of appeal, and again, Albert cites no authority

for the proposition he has standing to pursue her interests.

B

Joel seeks sanctions under section 907, which provides: "When it appears to the

reviewing court that the appeal was frivolous or taken solely for delay, it may add to the

costs on appeal such damages as may be just." We decline to award sanctions, because

Joel has not complied with rule 8.276, which requires that a party seeking sanctions for a

frivolous appeal bring a noticed motion, to include a declaration supporting the amount of

5 the sanction sought, "before any order dismissing the appeal but no later than 10 days

after the appellant's reply brief is due." (Rule 8.276(b)(1) & (2).)

II

Joel's Appeal

In his appeal, Joel contends the court erred by denying him attorney fees before he

even brought a motion for them. "On appeal this court reviews a determination of the

legal basis for an award of attorney fees de novo as a question of law." (G. Voskanian

Construction, Inc. v. Alhambra Unified School Dist. (2012) 204 Cal.App.4th 981, 995.)

We agree with Joel's analysis.

When the settlement agreement was read into the record, the court stated: "[I]f

you all have to come back to court and there's another legal difficulty, the court in its

discretion could authorize attorney fees and costs to whatever the court determines is the

prevailing party, as long as the fees and costs are reasonable. Is that sort of understood

by this? It's understood in the code." Albert's attorney responded, "Yes. That's an

agreement," and Joel's attorney responded, "We will make that an agreement and part of

this." Further, the $50,000 promissory note provides, "[i]f action be instituted on this

Note, the undersigned [Albert] promises to pay such sum as the Court may adjudge as

attorney's fees."

In his reply memorandum of points and authorities, Joel argued "attorney's fees

and costs . . . should be awarded (Memorandum of Costs) when Plaintiff prevails on this

Motion." The court's tentative ruling states, "Plaintiff's request for an award of fees and

costs is denied. Plaintiff did not request fees and costs until the reply brief which is too

6 late as Defendant cannot respond to that request. In addition, Plaintiff counsel's

supporting declaration did not set out the amount being sought or any details regarding

how that amount was determined, such as the tasks performed, the time expended and

Counsel's hourly rate. [¶] In the reply Plaintiff indicates that fees and costs will be

sought via Cost Memo. However, a cost memo is not the proper vehicle for recovering

attorney's fees."

At the hearing, Joel argued he was entitled to attorney fees, and under the Code of

Civil Procedure he intended to file a memorandum of costs accompanied with a motion

for fees. The court responded, "You're wrong. I mean, I don't know how to say it nicely.

You're wrong. That's not the way to request the fees." The court issued a final minute

order identical to the tentative one insofar as attorney fees are concerned. The court's

formal order provides, "Plaintiff's request for fees is denied as the request was not made

in the moving papers, and was not supported by sufficient Declaration of counsel."

However, Joel was not required to submit a motion for attorney fees with his

moving papers, before the merits of his motion were adjudicated. Section 1032,

subdivision (b), provides that the "prevailing party is entitled as a matter of right to

recover costs in any action or proceeding." Section 1033.5, subdivision (a)(10), provides

that attorney fees, as authorized by contract, statute, or law, are an item of recoverable

costs. When contractual attorney fees are an item of costs, the party seeking fees shall

bring a noticed motion. (§ 1033.5, subd. (c)(5).) Under rule 3.1702(b)(1), a motion for

contractual fees "must be served and filed within the time for filing a notice of appeal

under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a

7 limited civil case."4 The court's denial of fees before he even filed a motion was

improper. The court's order should have designated Joel the prevailing party on the

contract and noted his entitlement to fees was subject to a subsequent motion proceeding.

Additionally, the court's tentative and final minute orders state: "The Court also

notes that Plaintiff's counsel expressly stated on the record that fees for this matter would

be capped at $1,500.00. . . . The fact Judge Maino later reiterated that the Court could

award fees in its discretion has no bearing on the fact the parties expressly agreed the fees

would not exceed $1,500.00 for this motion."5

While this finding is not included in the court's formal order, we address it for the

court's convenience on remand. We conclude the court misread the reporter's transcript

from the settlement agreement hearing. The $1,500 cap on attorney fees refers

exclusively to Albert's obligation to pay Joel $250,000. After discussing the $250,000

obligation, Judge Maino stated the "counsel seeking that entry of judgment may request

up to $1500 in attorney's fees for providing notice and making calculations and providing

the declarations and submitting the judgment." The parties agreed that if Albert defaulted

on the $250,000 obligation, Joel could obtain a judgment to enforce the settlement

agreement in an ex parte proceeding, which would naturally be less expensive than a

4 Pending these appeals, the parties have signed a stipulation extending the time within which Joel must bring a fee motion, as provided in rule 3.1702(b)(2).

5 Judge Runston G. Maino presided over the settlement conference on January 9, 2009, and placed the terms of the agreement on the record.

8 noticed motion. This motion, which had to be noticed in the regular course, pertained to

the $50,000 note, and no attorney fees cap for that matter was stated on the record.

DISPOSITION

The order is reversed to the extent it denies Joel attorney fees or purports to cap

fees at $1,500. The matter is remanded for further proceedings on the issue. In all other

respects, the order is affirmed. Joel is entitled to costs on appeal.

MCCONNELL, P. J.

WE CONCUR:

MCDONALD, J.

O'ROURKE, J.

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