Filed 10/8/13 Borrelli v. Scott CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



RALPH BORRELLI, JR.,                                                D062904

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. 37-2010-00071060-
                                                                    CU-BC-CTL)
PAUL SCOTT,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Ronald L.

Styn, Judge. Affirmed.



         Joseph C. La Costa for Defendant and Appellant.

         Mowbray Law Firm and Rebecca Lack Mowbray for Plaintiff and Respondent.

         Defendant Paul Scott (Scott) appeals a judgment apportioning his attorney's fees

and awarding him 30 percent of his total fees. Because the trial court did not abuse its

discretion, we affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND

       In December 2001, Plaintiff Ralph Borrelli, Jr., leased a 4,000-square-foot

commercial building to I.Q. Billiards, Inc. (I.Q. Billiards). Scott and his wife, Susan

Scott (together, the Scotts), operated I.Q. Billiards in the rented space until October 2009,

when they closed the business and vacated the property more than 14 months before the

lease expired. In the process of moving, Scott, his companions, or both damaged or

vandalized the property. On October 7, 2010, Borrelli sued I.Q. Billiards and the Scotts

for breach of contract. Although Borrelli later amended his complaint to recover for the

damage to his property, the amended complaint continued to assert a single cause of

action for breach of contract.

       On December 7, 2011, the trial court convened a bench trial. At the conclusion of

Borrelli's case-in-chief, the Scotts moved for judgment under Code of Civil Procedure

section 631.8. The court granted the Scotts' motion in part. The court found Borrelli had

not presented sufficient evidence that the Scotts were I.Q. Billiards's alter egos and

accordingly found they could not be held personally liable for the corporation's breach of

the lease. However, the court denied the motion on the property damage issue, finding

there was sufficient evidence to infer that the property was damaged either directly by

Scott or with his knowledge and consent. Trial proceeded on the property damage issue.

At the close of trial, the court granted Borrelli's motion to amend his complaint to allege a

trespass cause of action to conform to proof. The court then found I.Q. Billiards had

breached the lease agreement and awarded $45,000 in damages plus $7,200.82 in interest

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to Borrelli. The court further found Scott liable for $38,000 in damage to Borrelli's

property. Finding no evidence of Susan Scott's involvement with the property damage,

the court dismissed her from the case.

       On June 29, 2012, the court granted in part Scott's posttrial motion for attorney's

fees because the lease contained an attorney's fees provision. The court awarded

$11,650.99 to Scott for his defense of the breach of contract cause of action. To calculate

this amount, the court began with $58,255 the Scotts incurred in defending the case. The

court then allocated two-thirds of the total amount to Scott because his involvement in the

case was greater than Susan Scott's involvement. Finally, the court apportioned 30

percent of Scott's two-thirds share to the breach of contract cause of action. The court

apportioned the fees in this manner because Scott had not shown that the alter ego issue

was common to both the breach of contract and trespass claims. The court also noted that

"the focus at trial was the amount of damages - which evidence was the same as to both

the trespass and breach of contract claim against Paul Scott . . . ."

       The court entered judgment on September 28, 2012. On October 19, Scott timely

appealed from the judgment.

                                STANDARD OF REVIEW

       "Once a trial court determines entitlement to an award of attorney fees,

apportionment of that award rests within the court's sound discretion. [Citations.] We

review the court's decisions for abuse of discretion. [Citation.] The court abuses its

discretion whenever it exceeds the bounds of reason, all of the circumstances before it

being considered. The burden is on the party complaining to establish that discretion was

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clearly abused and a miscarriage of justice resulted." (Carver v. Chevron U.S.A., Inc.

(2004) 119 Cal.App.4th 498, 505.)

                                        DISCUSSION

       The sole issue on appeal is whether the court abused its discretion when it

apportioned 30 percent of Scott's total attorney's fees and reduced his fee award to

$11,650.99. "Where a cause of action based on the contract providing for attorney's fees

is joined with other causes of action beyond the contract, the prevailing party may

recover attorney's fees . . . only as they relate to the contract action." (Reynolds Metals

Co. v. Alperson (1979) 25 Cal.3d 124, 129 (Reynolds).) "Attorney's fees need not be

apportioned when incurred . . . on an issue common to both a cause of action in which

fees are proper and one in which they are not allowed." (Id. at pp. 129-130.) "Depending

on the particular circumstances, however, a court may 'apportion fees even where the

issues are connected, related or intertwined.' " (In re Tobacco Cases I (2013) 216

Cal.App.4th 570, 586; see also Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th

431, 443.)

       Here, the court correctly recognized that Scott was eligible to recover fees

incurred in defense of the breach of contract cause of action but not for the trespass cause

of action. The court further correctly found that unlike in Reynolds, the alter ego issue

was not common to both claims. The record confirms that Borrelli pursued two distinct

legal theories at trial. First, he sought to pierce I.Q. Billiards' corporate veil and hold

Scott personally liable, as the corporation's alter ego, for I.Q. Billiards's breach of

contract. Second, Borrelli sought damages in tort against Scott directly for damage done

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to Borrelli's property. The issue of whether Scott acted as the corporation's alter ego did

not overlap with whether he damaged the building. Thus, once the court granted Scott's

motion for judgment and found he was not I.Q. Billiards's alter ego, Borrelli shifted his

focus to the physical damage done to his property. Accordingly, the court's finding that

Scott "must apportion the attorney's fees [he sought] in defense of the breach of contract

cause of action under the general rule set forth in Reynolds" was a proper application of

Reynolds. Apportionment was proper here because Scott was not entitled to fees incurred

in defense of the tort-based cause of action.

       Scott argues that "[t]here was simply no basis in law" to apportion fees because

the issue of damages was common to both the contract and tort claims. Although the

court noted that "the focus at trial was the amount of damages" and the "evidence [of the

amount of damages] was the same as to both the trespass and breach of contract claim

against Paul Scott," California law grants courts discretion to "apportion fees even where

the issues are connected, related or intertwined." (El Escorial Owners' Assn. v. DLC

Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1365.) While the Supreme Court in

Reynolds instructed that courts "need not" apportion fees when common issues exist, it

did not preclude courts from doing so. (Reynolds, supra, 25 Cal.3d at pp. 129-130.) At

their discretion, courts may apportion fees until the common issues are so intertwined that

apportionment is not possible or practicable. (Heppler v. J.M. Peters Co. (1999) 73

Cal.App.4th 1265, 1297 [" 'The recognized barrier to segregation for purposes of

calculating fee awards is inextricably intertwined issues.' "]; see also Abdallah v. United

Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [holding the trial court reasonably found

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that various claims were " ' "inextricably intertwined" ' [citation], making it

'impracticable, if not impossible, to separate the multitude of conjoined activities into

compensable or noncompensable time units' "].) Here, although the evidence of damages

was common to Borrelli's two claims, the court found that apportionment was possible

"based on [its] familiarity with this matter . . . ." The court did not believe the issues

were so inextricably intertwined to prevent it from apportioning fees. In light of the

deferential standard of review and the trial court's first-hand experience with this case, the

court's finding did not exceed the bounds of reason.

                                       DISPOSITION

       The judgment is affirmed. Borrelli is awarded appeal costs.



                                                                         MCCONNELL, P. J.

WE CONCUR:



HALLER, J.



MCINTYRE, J.




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