Filed 12/31/14 City of La Verne v. Gonzalez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


CITY OF LA VERNE,                                                    B254777

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC464193)
         v.

MICHEL GONZALEZ et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Michael
Johnson, Judge. Affirmed.


         Wallin, Kress, Reisman & Kranitz, Robert L. Kress, Cary S. Reisman, for Plaintiff
and Respondent.


         Michel Gonzalez, David Snow in pro. per., for Defendants and Appellants.




                                                   *         *         *
       Michel Gonzalez (Gonzalez) and David Snow (Snow) (collectively, defendants)
challenge the trial court’s order awarding attorneys fees under Civil Code section 1717 to
the City of La Verne (City). Because the City achieved its litigation objectives, we
conclude that the trial court did not abuse its discretion in awarding fees and accordingly
affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
       In 2007, the City and defendants agreed to settle defendants’ ongoing lawsuit
against the City by signing a Settlement Agreement and Mutual Release (Agreement).
Two provisions of the Agreement are relevant to this appeal: (1) defendants agreed to
convert the apartment on their property back into a garage within nine months; and (2)
the parties agreed that attorneys fees could be awarded to a “prevailing party” who sued
to enforce the Agreement. After nearly four years went by with defendants yet to
complete the conversion, the City sued them seeking (1) specific performance of the
Agreement, (2) injunctive relief, and (3) disgorgement of the rents defendants were
improperly collection for renting out what should be a garage.
       Following an unreported bench trial, the trial court granted the City’s prayer for
specific performance and issued a permanent injunction. Both orders required defendants
to evict their tenant and to convert the apartment back into a garage, on pains of having to
disgorge rents collected after the date of judgment. The court also determined that the
City was “the prevailing party in this litigation”, and thus entitled to attorney’s fees under
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the Agreement. The court subsequently awarded fees of $35,438.
       Defendants timely appealed.
                                       DISCUSSION
       Defendants level three attacks at the trial court’s ruling: (1) the trial court erred in
declaring the City to be the “prevailing party” entitled to attorney’s fees; (2) the trial


1      Although the amount of fees was not determined until after defendants filed their
notice of appeal, we have jurisdiction over the trial court’s judgment regarding the City’s
entitlement to fees. (R.P. Richards, Inc. v. Chartered Construction Corp. (2000) 83
Cal.App.4th 146, 158.)

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court was duped by the City into signing an order that did not accurately reflect its oral
ruling; and (3) the Agreement was a product of duress. The City argues that we may not
hear any of these claims because defendants did not have a reporter or request a statement
of decision. The absence of a record is not a bar when the record we do have is enough
to “permit effective appellate review.” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93,
99-100.) We are able to evaluate defendants’ first contention on the basis of the City’s
complaint and the trial court’s judgment. However, we cannot evaluate the remaining
issues because facts are required to rebut the presumption of regularity that attaches to a
court’s signing of its orders and to the finality of judgments (Evid. Code, § 664; People v.
Alleghany Casualty Co. (2007) 41 Cal.4th 704, 715-716 & fn. 7 [no collateral attack of
judgment unless court lacked “‘fundamental jurisdiction’ [citation]”]), and defendants
have presented no such facts.
       Civil Code section 1717 empowers a court to award attorney’s fees “incurred to
enforce [a] contract” to a “prevailing party” if that “contract specifically provides [for]
attorney’s fees and costs.” (Civ. Code, § 1717, subd. (a).) Where, as here, a party
achieves less than a total victory, the trial court has discretion whether to declare that
party the “prevailing party.” (Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th
431, 439-440.) In exercising this discretion, the court is to “‘compare the relief awarded
on the contract claim . . . with the parties’ demands on those same claims and their
litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and
similar sources.’” (In re Tobacco Cases I (2013) 193 Cal.App.4th 1591, 1603, quoting
Hsu v. Abarra (1995) 9 Cal.4th 863, 876 (Hsu).) “‘[I]n determining litigation success,
courts should respect substance rather than form . . . .’” (Ibid., quoting Hsu, at p. 877.)
       In this case, the City sued defendants to get them to comply with the Agreement,
and the trial court ordered them to do so with orders of specific performance and a
permanent injunction. Defendants nevertheless contend that the City did not prevail
because the court did not order defendants to disgorge $78,000 in rents, which defendants
contend dwarfs the $24,000 value of the garage/apartment. Defendants do not explain
how they arrive at the $24,000 value, but it is ultimately irrelevant because the trial court

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did not abuse its discretion in discerning that the equitable relief was the “substance” of
the City’s action and in declaring the City to be the “prevailing party” on that basis. The
trial court perceived the disgorgement remedy to be secondary, so much so that it ordered
a similar disgorgement as a sanction for noncompliance with the primary relief—namely,
the orders of specific performance and the permanent injunction.
       There was no abuse of discretion.
                                      DISPOSITION
       The judgment is affirmed. The City is entitled to costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                            _______________________, J.
                                                    HOFFSTADT
We concur:




____________________________, P. J.
              BOREN


____________________________, J.
              CHAVEZ




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