Defendant Failed To Support Its Sole Argument, Raised For The First Time On Appeal, With Evidence, Analysis Or Authority – Thus Waiving Its Only Argument On Appeal – And Its Sole Argument Asked The Appellate Court To Second-Guess The Trial Court’s Evaluation Of The Evidence.
In KJ Investment Group v. American Heritage College, Case No. G058647 (4th Dist., Div. 3 January 4, 2021) (unpublished), prevailing plaintiff in a commercial lease action – based on the attorney fees clause in the parties’ lease agreement – moved for almost $145,000 in attorney fees, inclusive of a 1.5 multiplier, plus almost $11,000 in costs pursuant to Civ. Code § 1717 and Code Civ. Proc. Civ. § 1033.5. Defendant opposed – arguing only that attorney fees must be reasonable and that plaintiff over-litigated the case. After reductions for time spent by anyone other than plaintiff’s two lead attorneys and rejection of the 1.5 multiplier, the trial court awarded plaintiff $80,411.50 in fees based on its calculation of reasonable time spent by the two attorneys.
On appeal, defendant argued for the first time that no fees or costs should be awarded to plaintiff because its principal provided inaccurate testimony at trial that was attributable to it counsel – thereby violating Business and Professions Code § 6068 requiring attorneys ‘“never to seek to mislead the court or any judicial officer by an artifice or false statement of fact or law.”’ (§ 6068(d).)
In a 3-0 opinion, authored by Justice Goethals, the 4/3 DCA affirmed. Plaintiff’s sole contention was not supported with evidence, analysis or authority – constituting a waiver of plaintiff’s argument on appeal. The 4/3 DCA also noted that plaintiff’s argument would fail even if it had not been waived because it asked the panel to presume the trial court was misled by false evidence, and that it could not second-guess the trial court’s evaluation of the evidence. (People v. Hovarter, 44 Cal. 4th 983, 996 (2008); In re Marriage of Arceneaux, 51 Cal.3d 1130, 1133 (1990).)
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