Filed 4/2/13 Horak v. South Shores Development CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

JACK HORAK et al.,                                                      B238973

                   Plaintiffs and Appellants,                           (Los Angeles County
                                                                        Super. Ct. No. BC379704)
         v.

SOUTH SHORES DEVELOMENT CORP.
et al.,

                   Defendants and Appellants.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Yvette
M. Palazuelos, Judge. Affirmed.


         Law Office of Ken I. Karan and Ken I. Karan for Plaintiffs and Appellants.


         Law Offices of Larry W. Weaver and Susan C. Watts for Defendants and
Appellants.
       This is the second time this matter is before us. The case stems from claims filed
by Jack and Teresa Horak (collectively “Horaks”) against South Shores Development
Corporation doing business as Lanikai Lane Mobile Home Park and Jed Robinson
(Robinson) (collectively “South Shores”), after South Shores served the Horaks with a
“Sixty (60) Day Notice to Terminate Possession” of their tenancy (60-day notice) in the
Lanikai Lane Mobilehome Park (the park).1 The Horaks requested that the 60-day notice
be withdrawn “on the grounds of discrimination and breach of contract.” They moved
out of their mobilehome, yet continued to market the property for sale. The Horaks sued
South Shores after they came to believe that South Shores was blocking their ability to
sell their mobilehome.
       In their second amended complaint (SAC), filed July 24, 2008, the Horaks alleged
six causes of action against South Shores for: (1) declaratory relief, seeking a declaration
that the purported termination of their lease was a nullity and that the lease was still in
full force and effect; (2) slander of title, based on South Shores’s representations to third
parties that the Horaks no longer had rights to the property; (3) breach of contract, based
on South Shores’s issuance of a false 60-day termination letter and refusal to authorize
sale of the property; (4) breach of the implied covenant of good faith and fair dealing; (5)
intentional interference with prospective economic advantage; and (6) negligent
interference with prospective economic advantage.
       A bench trial was held in January 2009. Following trial, a decision was rendered
on the merits in favor of South Shores, including $85,000 in attorney fees. The Horaks
appealed, and in July 2010 we issued an unpublished opinion in Horak et al. v. South
Shores Development Corp. et al. (Jul. 23, 2010, B216698) (hereafter Horak v. South
Shores I). We reversed the trial court’s decision on the first cause of action as to Teresa
Horak only, finding that her tenancy was not terminated by operation of the 60-day notice




1      Robinson was the chief executive officer of South Shores Development Corp.

                                              2
to terminate.2 As to Teresa’s remaining causes of action, we remanded for
reconsideration in light of our decision on the first cause of action. The judgment was
affirmed in full as to Jack, with directions to the trial court to reconsider the attorney fee
award in light of our opinion. We further determined that Teresa was entitled to her costs
in connection with that first appeal.
       Upon remittitur, the trial court requested briefing and argument from both parties.
The trial court then issued an amended judgment re-entering judgment against Teresa as
to the second through sixth causes of action and re-entering the attorney fee award of
$85,000 in favor of South Shores.
       The Horaks now appeal from the amended judgment.3 South Shores cross-appeals
from the award of costs and fees entered in favor of Teresa after the first appeal.
       We find no error in the court’s amended judgment or in the order awarding Teresa
her costs and fees incurred in the first appeal. We therefore affirm the trial court’s
judgment in full.
                                        CONTENTIONS
       In their direct appeal from the amended judgment, the Horaks argue: (1)
reconsideration of a judgment on remand from an appeal requires a trial court that did not
hear the evidence to retry the matter; (2) burdens on the park application process violate
the Mobilehome Residency Law (MRL) (Civ. Code, § 798 et seq.); (3) the amended
judgment is not based on substantial evidence; (4) the judgment should be reversed for
failing to specify judgment for Teresa on the first cause of action; (5) the MRL compels
the imposition of monetary penalties for South Shores’s violations; and (6) Teresa is the
prevailing party under the MRL and is entitled to her attorney fees.


2      Jack Horak and Teresa Horak will be referred to individually as Jack and Teresa,
for ease of reference.

3      Since the original judgment was affirmed in full as to Jack, we question whether
he has standing to appeal from the amended judgment, which concerned only Teresa.
However, South Shores has not raised this issue, therefore we continue to address the
Horaks in plural.
                                               3
       In its cross-appeal, South Shores challenges the trial court’s ruling granting Teresa
$43,534.29 in costs and attorney fees after the first appeal of this matter.
                              FACTUAL BACKGROUND
       The Horaks are a married couple. Pursuant to a rental agreement entered into on
or about July 1, 1997 (lease), South Shores rented to the Horaks a mobilehome space in
the park, located at 6550 Pronto Drive, Space No. 108, Carlsbad, California. The Horaks
purchased the mobilehome on the mobilehome space, in which they resided with their
two sons. At all relevant times, South Shores owned the mobilehome park. The lease
was explicitly governed by the MRL.
       On May 9, 2006, the Horaks gave notice to South Shores of their intention to sell
their mobilehome in the park. The notice informed South Shores that the Horaks were
selling because of breaches by South Shores in its duties to properly maintain the park
and preserve the quiet enjoyment of the park.
       On June 8, 2006, Jack was involved in a confrontation with another resident of the
park. The police were called, and Jack was arrested. Charges were filed against Jack, but
later dismissed.
       On June 19, 2006, South Shores prepared the 60-day notice, which was addressed
to “Jack Horak and All Residents in Possession” of the property. The notice was served
on the Horaks on June 24, 2006. The notice described the altercation between Jack and
the other park resident, and provided that “[f]or all the above-described reasons, the
management and residents of Lanikai Lane Mobilehome Park have found your conduct
totally undesirable and a substantial annoyance to every resident of the Park.” The notice
demanded that, within 60 days, the Horaks quit the premises and either sell their
mobilehome to an approved purchaser or remove it from the premises. After receiving
the notice, the Horaks disputed it in writing, asking that the notice “be taken back” on the
grounds of discrimination and breach of contract by South Shores. The Horaks indicated
that they would be moving out of the mobilehome in July 2006 but that they would “still
be a mobile home owner as well as an active member of the HOA and a Board of
Director until our home is sold.”

                                              4
       The Horaks moved out of the property while they marketed it for sale. They
tendered rent checks every month, which South Shores never cashed. The Horaks also
continued to pay property taxes from May 2006 to the time of trial.
       The Horaks’ lease contained a provision requiring that any prospective buyer
obtain approval from the management of the park before the Horaks could actually sell
the property. Thus, as the Horaks marketed their property, they sent prospective buyers
to the management of the park for approval. Teresa testified that she referred at least six
prospective buyers to South Shores for park approval. When her buyers never returned to
finalize the sale, Teresa became concerned that South Shores was unlawfully withholding
approval of prospective buyers.
                               PROCEDURAL HISTORY
       The Horaks filed suit against South Shores on October 25, 2007. The SAC, filed
July 24, 2008, became the operative complaint in the action.
       Trial commenced on January 12, 2009. On March 17, 2009, the trial court entered
judgment on the merits in favor of South Shores on all causes of action. South Shores
brought a motion for attorney fees, which the trial court granted in the amount of
$85,000.
       The Horaks appealed, contending that: (1) the trial court erred in determining that
Teresa’s tenancy was properly terminated by South Shores based on the actions of Jack;
(2) substantial evidence did not support the trial court’s finding that the actions of Jack
amounted to a “substantial annoyance” under Civil Code section 798.56; (3) the trial
court erred in excluding evidence of the alleged potential buyers of the Horaks’
mobilehome; (4) the trial court erred in excluding evidence of South Shores’s treatment
of other allegedly offending residents of the mobilehome park; and (5) the trial court
erred by denying sanctions in the form of attorney fees after granting the Horaks’ motion
to compel discovery. In Horak v. South Shores I, this court held that the trial court erred
in determining that Teresa’s tenancy had been terminated by service of the 60-day notice.
The trial court judgment on the first cause of action for declaratory relief was reversed as
to Teresa only. As to Teresa’s remaining causes of action, the matter was remanded for

                                              5
reconsideration in light of the decision on the first cause of action. As to Jack, the
judgment was affirmed in full. The trial court was also directed to reconsider the award
of attorney fees to South Shores in light of the appellate opinion. Teresa was granted her
costs on appeal.
       Remittitur was filed in the superior court on September 28, 2010. The Horaks
filed an affidavit of prejudice pursuant to Code of Civil Procedure section 170.6 against
the original trial judge, Hon. William F. Fahey, on October 14, 2010. The matter was
reassigned.
       After reviewing written briefs and hearing arguments of counsel, on November 30,
2011, the trial court entered an amended judgment in favor of South Shores as to the
second, third, fourth, fifth and sixth causes of action. The previous attorney fee award of
$85,000 was re-entered in favor of South Shores.
       On February 24, 2012, the trial court determined that South Shores was the
prevailing party in the reconsideration after remand and awarded South Shores $45,800
plus costs in the amount of $140. On the same date, Teresa was awarded her costs and
fees from the first appeal, in the total amount of $43,534.29.
       On January 30, 2012, the Horaks filed their notice of appeal. On March 1, 2012,
South Shores filed a notice of appeal from the order dated February 24, 2012 granting
Teresa her attorney fees in the first appeal. The parties stipulated to consolidate the
appeals, and filed a request with this court. We granted the request for consolidation.
                                       DISCUSSION
I. The Horaks’ direct appeal
       A. The trial court lacked jurisdiction to re-try the matter on remand
       When the matter was remanded after the first appeal, the Horaks urged the trial
court to interpret this court’s remand directions as unqualified. The Horaks argued that
the remand directions vacated the appealed judgment and all associated rulings and
permitted them a new trial. South Shores disagreed, pointing out that the directions in the
remittitur were to merely reconsider the second through sixth causes of action in light of
our determination that Teresa’s tenancy had not been terminated.

                                              6
       The trial court agreed with South Shores. It interpreted our remand directions to
mean that it should reconsider its verdict on the remaining five causes of action in light of
our determination that Teresa’s tenancy remained intact. The trial court did not interpret
our remand directions as an unqualified reversal.
       On appeal, the Horaks challenge the trial court’s decision that it was not
authorized to order a new trial. The question of whether the trial court correctly
interpreted our opinion is an issue of law subject to de novo review. (In re Groundwater
Cases (2007) 154 Cal.App.4th 659, 674 [“[t]he interpretation of the language of a judicial
opinion is a legal determination, and it is therefore subject to de novo review”].)
              1. Applicable law
       “‘A reviewing court has authority to “affirm, reverse, or modify any judgment or
order appealed from, and may direct the proper judgment or order to be entered, or direct
a new trial or further proceedings to be had.” (Code Civ. Proc., § 43.) The order of the
reviewing court is contained in its remittitur, which defines the scope of the jurisdiction
of the court to which the matter is returned.’ [Citations.] ‘The trial court is empowered
to act only in accordance with the direction of the reviewing court; action which does not
conform to those directions is void.’ [Citation.]” (Ayyad v. Sprint Spectrum, L.P. (2012)
210 Cal.App.4th 851, 859 (Ayyad).)
       Thus, the rule requiring a trial court to follow the terms of the remittitur is
jurisdictional. “The issues the trial court may address in the remand proceedings are
. . . limited to those specified in the reviewing court’s directions, and if the reviewing
court does not direct the trial court to take a particular action or make a particular
determination, the trial court is not authorized to do so. [Citations.]” (Ayyad, supra, 210
Cal.App.4th at pp. 859-860.)
       “In short, when an appellate court remands a matter with directions governing the
proceedings on remand, ‘those directions are binding on the trial court and must be
followed. Any material variance from the directions is unauthorized and void.’
[Citation.]” (Ayyad, supra, 210 Cal.App.4th at p. 860.)


                                              7
              2. The trial court correctly concluded it could not order a new trial
       The language contained in the remittitur filed in the superior court specified that
the trial court’s judgment on Teresa’s cause of action for declaratory relief was reversed.
It further directed that Teresa’s remaining causes of action should be reconsidered in light
of the opinion. The judgment was affirmed in full as to Jack, with further directions that
the trial court reconsider its attorney fee award in light of the opinion.
       This language does not constitute an unqualified reversal. The directions
restricted the proceedings below to a reconsideration of Teresa’s remaining causes of
action, to the extent that they might be affected by our decision that her tenancy had not
been terminated. The trial court’s jurisdiction did not extend to any issues outside the
scope of these specific directions. In particular, the trial court had no jurisdiction to
authorize a new trial.
       The Horaks argue that the trial court has the power to order a new trial after
remand as long as ordering a new trial is not a material variance from the directions of
the appellate court. In support of this claim, the Horaks cite three cases, none of which
support this contention. On the contrary, all three cases confirm the trial court’s
conclusion that it had no power to vary from the appellate court’s directive. (See
Hampton v. Superior Court of Los Angeles County (1952) 38 Cal.2d 652, 655-656 [“The
order of the appellate court as stated in the remittitur, ‘is decisive of the character of the
judgment to which the appellant is entitled. The lower court cannot reopen the case on
the facts, allow the filing of amended or supplemental pleadings, nor retry the case, and if
it should do so, the judgment rendered thereon would be void’”]; In re N.M. (2008) 161
Cal.App.4th 253, 264 [“The trial court must follow the directions of the appellate court
and cannot modify or add any conditions to the judgment as directed. . . . Any action that
does not conform to those directions is void”]); Karlsen v. Superior Court (2006) 139
Cal.App.4th 1526, 1530 (Karlsen) [“The trial court is empowered to act only in




                                               8
accordance with the direction of the reviewing court; action which does not conform to
those directions is void” (original italics)].)4
       The Horaks further argue that if the trial court’s acceptance of their Code of Civil
Procedure section 170.6 challenge was proper, then it must be true that the remand in this
case anticipated a new trial.
       The trial court’s acceptance of the Horaks’ peremptory challenge was not proper.
As the Horaks admit, peremptory challenges after remand are only appropriate when the
trial judge in the prior proceeding is “assigned to conduct a new trial on the matter.”
(Code Civ. Proc., § 170.6, subd. (a)(2).) We did not order a new trial on remand,
therefore the peremptory challenge should not have been granted. (See Karlsen, supra,
139 Cal.App.4th at p. 1530 [by granting motion pursuant to Code of Civil Procedure
section 170.6 after a remand with specific directions, “the trial court acted in excess of its
jurisdiction”].) However, the Horaks may not object to the trial court’s action in granting
the peremptory challenge when they made a deliberate tactical choice to file the
peremptory challenge. An error which an appellant has invited is not reversible error.
(Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1).5

4       In their reply brief, the Horaks cite Bank of America v. Superior Court (1990) 220
Cal.App.3d 613. In the quoted section of Kruse, the court was discussing the general rule
that an unqualified reversal has the effect of remanding a case for new trial on all issues.
The court stated that a limited exception to that rule “should not be applied in cases such
as this, where the prior opinion does not unmistakably express an intent to bar retrial.”
(Id. at p. 623.) The discussion in Kruse is inapplicable where, as here, the prior appeal
did not result in an unqualified reversal.

5       For the same reason, we reject the Horaks’ misleading complaints that the
proceedings were unfair because “the trial judge hearing the evidence at trial was not
available to enter an amended judgment.” There is no evidence that the original trial
judge was unavailable. Instead, the record reveals that the Horaks took specific action to
ensure that the trial judge that heard the evidence did not make the limited
reconsiderations ordered on remand. In spite of this, the Horaks go so far as to complain
that “Entry of an amended judgment by a second judge who had not heard the evidence at
trial denies Appellants of a full and fair trial.” It is axiomatic that under these
circumstances, the Horaks cannot be heard to complain that they were deprived of fair
consideration of the issues on remand. It was the Horaks’ invited error which caused
                                                   9
       South Shores also did not object to the grant of the peremptory challenge at any
stage of the proceedings. Therefore, any objection to the grant of the peremptory
challenge by either party has been forfeited.6
       The Horaks contend, as they did in their first appeal, that they should have been
permitted to present a certain witness, Richard Shirek, who was excluded from trial on
the ground that his name was not disclosed in discovery as it should have been. In the
first appeal of this matter, we held that the trial court did not abuse its discretion in
excluding that witness on the ground of willful failure to respond to discovery. The
Horaks are not entitled to a new trial simply because they continue to perceive error in
that ruling.
       The trial court on remand correctly concluded that our directions did not constitute
an unqualified reversal. The trial court also correctly understood its task to be limited to
a reconsideration of the remaining causes of action as to Teresa in light of our opinion
that her tenancy was not terminated by the 60-day notice. The trial court limited its
actions to those consistent with our directions, therefore no error occurred.



removal of the original trial judge and required a different judge to handle the
reconsideration. In addition, the Horaks cannot now complain that the findings made by
the first judge were insufficient. Having failed to challenge the original trial court’s
statement of decision in the first appeal, the Horaks may not do so now. (See People v.
Senior (1995) 33 Cal.App.4th 531, 535-536 [all available arguments must be raised in an
initial appeal from a judgment].)

6       While the trial court acted in excess of its jurisdiction in granting the motion
pursuant to Code of Civil Procedure section 170.6, this judicial act did not exceed the
court’s fundamental jurisdiction over the subject matter or the parties to the case. Thus,
the court’s act of granting the peremptory challenge is subject to forfeiture if done with
the consent of the parties. (In re Marriage of Hinman (1992) 6 Cal.App.4th 711, 716-717
[“‘In its most fundamental or strict sense, lack of jurisdiction means “an entire absence of
power to hear or determine the case, an absence of authority over the subject matter or
parties.” [Citations.] But in its ordinary usage the word encompasses many other
situations, including judicial acts in excess of jurisdiction. [Citation.] While the
fundamental type of jurisdiction can never be conferred by consent of the parties, the
latter type is often subject to principles of consent and waiver. [Citations.]’”].)
                                               10
       B. The record supports the amended judgment
       The Horaks further contend that the evidence does not support the trial court’s
amended judgment in favor of South Shores on the second through sixth causes of action.
       We first discuss the standard of review. The Horaks correctly state that certain
issues such as liability and causation may present pure questions of law subject to
de novo review on appeal where the facts are not contested. However, the Horaks argue
that we should evaluate any conflicting evidence in the record under the substantial
evidence standard. We disagree. The substantial evidence test is appropriate where the
appellate court must review questions concerning the establishment of historical or
physical facts. (Crocker National Bank v. City and County of San Francisco (1989) 49
Cal.3d 881, 888.) Because it involves a review of factual findings, the substantial
evidence standard of review is appropriately applied where this court must defer to the
fact finder’s assessment of a witness’s credibility. (Harustak v. Wilkins (2000) 84
Cal.App.4th 208, 213.) Witness credibility was not an issue on remand, and the trial
court did not assess the credibility of any witnesses in reaching its decision. As the trial
court correctly stated: “this court is not reconsidering whether Judge Fahey correctly
found the facts but whether the facts Judge Fahey found, in light of the appellate
directive, support the verdicts.”
       The matter was remanded for reevaluation in light of our legal conclusion that
Teresa’s tenancy was not terminated by South Shores’s 60-day notice. Thus, the
outcome of this appeal turns on whether Teresa’s legal status as a tenant has any effect on
her remaining causes of action. While this is a mixed question of law and fact, the
predominant issue is legal: whether the change in Teresa’s status, as decided on appeal,
affects the outcome of her remaining causes of action. This inquiry requires “a critical
consideration, in a factual context, of legal principles.” (Crocker National Bank, supra,
49 Cal.3d at p. 888.) We therefore find that the de novo standard of review is more
appropriate. (Ibid.; see also Harustak v. Williams, supra, 84 Cal.App.4th at p. 213
[de novo standard of review appropriate if there are mixed questions of law and fact but
legal issues predominate].)

                                             11
          As set forth below, we find no error in the trial court’s determination that Teresa’s
status as a non-terminated tenant did not affect the outcome of her remaining causes of
action.
                 1. Slander of title
          The elements of a cause of action for slander of title are: (1) false and
unprivileged disparagement; (2) of title to property; and (3) resulting in actual pecuniary
damage. (Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 419 (Glass).) The trial
court concluded that the Horaks failed to show that there was any disparagement of the
title to Teresa’s property. In addition, the trial court determined that Teresa failed to
establish that she suffered any damages from any purported disparagement of title. Thus,
the trial court concluded, Teresa’s status as a non-terminated tenant does not change the
original ruling against Teresa on this cause of action.
          In discussing disparagement of title, the court pointed out that there was no
evidence that any potential buyer was ever informed that Teresa did not hold title to the
property. The Horaks argue that there was evidence in the record suggesting that South
Shores’s staff was instructed to tell any prospective purchaser of Teresa’s interest in her
lease to contact South Shores’s attorney in order to obtain an application. The Horaks
claim that the reasonably foreseeable effect of this instruction on potential buyers would
be “to walk away from the transaction to avoid buying a lawsuit.” The trial court found
this argument was too speculative to support a ruling in favor of Teresa on this cause of
action.
          The Horaks also claim that there was testimony suggesting that South Shores
informed members of the public that Teresa had no tenancy to transfer. However, the
cited portions of the record do not support the Horaks’ claim. Thus, the trial court
properly concluded that Teresa failed to establish this element of the tort of slander of
title.
          In finding that Teresa suffered no damages from any purported disparagement of
title, the trial court relied upon the first trial court’s statement of decision, in which the
court pointed to Teresa’s testimony that “she did not receive a bona fide offer from any of

                                                12
the people with whom she was negotiating to sell the mobilehome.” By failing to point
to evidence of a bona fide purchaser, the trial court concluded, Teresa failed to establish
that she suffered any actual pecuniary injury as a result of any alleged slander of title.
          The Horaks argue that evidence of a specific buyer was not necessary to a finding
of slander of title. The Horaks cite Glass for the proposition that disparagement may
cause pecuniary loss if widely disseminated where, “‘but for the disparagement, [the]
land or other thing might with reasonable certainty have found a purchaser.’” (Glass,
supra, 12 Cal.App.3d at p. 424.) The principle stated in Glass is not relevant. The trial
court found that there was no public disparagement of Teresa’s title at all -- much less
widely disseminated disparagement.
          Under the circumstances, we find that the trial court did not err in finding in favor
of South Shores on the second cause of action for slander of title. Although Teresa’s
tenancy was not terminated by the 60-day notice, the Horaks failed to establish two
essential elements of the tort of slander of title: disparagement and damages. The record
supports the trial court’s ruling that our decision as to Teresa’s legal status had no effect
on the outcome of this cause of action. No error occurred.
                 2. Breach of contract/breach of implied covenant of good faith and fair
dealing
          The Horaks’ claims for breach of contract and breach of implied covenant of good
faith and fair dealing require that the Horaks prove that they suffered damage from any
such breach. (See Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116
Cal.App.4th 1375, 1391, fn. 6 [elements of breach of contract are: (1) existence of
contract; (2) plaintiffs’ performance or excuse for nonperformance; (3) defendants’
breach; and (4) resulting damage]; Smith v. City and County of San Francisco (1990) 225
Cal.App.3d 38, 49 [elements of cause of action for breach of covenant of good faith and
fair dealing are: (1) existence of contractual relationship; (2) implied duty; (3) breach;
and (4) causation of damages].) Based on its review of the evidence, the trial court
concluded that the Horaks failed to establish this essential element of these causes of
action.

                                                13
       The trial court noted that Teresa established a breach of the lease agreement
because the 60-day notice was an improper attempt to terminate her tenancy. However,
the trial court found that because Teresa was not evicted from her home, the breach did
not cause any actual damage to Teresa.
       The Horaks argued below, as they argue on appeal, that the damage arose from
South Shores’s disparaging statements to members of the public that Teresa had no
tenancy to transfer. However, the trial court concluded that the record did not support the
Horaks’ claim that such disparaging statements were made.
       Without any evidence of damages, Teresa’s cause of action for breach of contract
fails. Where the evidence does not support a cause of action for breach of contract, the
evidence also does not support a cause of action for breach of the implied covenant of
good faith and fair dealing. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336,
1344.) There was no error in the trial court’s decision in favor of South Shores on these
two causes of action.
              3. Intentional and negligent interference with prospective economic
advantage
       In order to prevail on her causes of action for the torts of intentional or negligent
interference with prospective economic advantage, Teresa was required to prove that
South Shores intentionally or negligently interfered with her ability to market or sell her
property. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 241
[elements of intentional interference with prospective business relationship are: (1)
economic relationship between plaintiff and third party; (2) probability of future
economic benefit to the plaintiff; (3) defendant’s knowledge of the relationship; (4)
defendant’s intentional acts designed to disrupt the relationship; (5) defendant engaged in
independently wrongful act beyond disruption of economic relationship; (6) actual
disruption of the relationship; and (7) economic harm to the plaintiff]; North American
Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786 [elements of negligent
interference with prospective economic relations are: (1) economic relationship between
the plaintiff and a third party; (2) a reasonably probable economic benefit to the plaintiff;

                                             14
(3) defendant knew of the existence of the relationship and was aware, or should have
been, that if defendant did not act with due care, its actions would interfere with the
relationship and cause the plaintiff to lose the probable future economic benefit; (4) the
defendant was negligent; (5) the negligence caused damage to plaintiff because of actual
interference or disruption; and (6) plaintiff lost in whole or in part the economic benefit
or advantage reasonably expected from the relationship].)
       As explained above, the trial court found that the Horaks failed to establish at trial
that South Shores interfered in any way with Teresa’s ability to sell and market her
property. There was no evidence that any potential buyer was ever incorrectly informed
that Teresa had no tenancy to transfer. There was no evidence that Teresa had a
prospective business relationship with any specific buyer, or that South Shores or its
attorney ever disrupted any such relationship. Because the Horaks failed to establish this
essential element of these two causes of action, our decision as to Teresa’s legal status
had no effect on the outcome of these two causes of action. The trial court did not err in
deciding these two causes of action in favor of South Shores on remand.
       C. The trial court did not abuse its discretion in declining to find that Teresa
was the prevailing party on reconsideration after remand
       After the initial trial of this matter, the trial court entered judgment in favor of
South Shores on all causes of action and awarded South Shores reasonable attorney fees
in the amount of $85,000 as the prevailing party. Attorney fees were initially sought
under Civil Code sections 1717 (contractual attorney fees) and 798.85 (providing
statutory attorney fees to the prevailing party on any action arising out of the MRL).
       After partially reversing the judgment, and remanding for reconsideration, this
court directed the trial court to reconsider the award to South Shores of $85,000 in
attorney fees. On remand, the trial court determined that judgment should remain in
favor of South Shores and against Teresa on the second through sixth causes of action.
The trial court concluded that South Shores remained the prevailing party on the matter
as a whole and that the $85,000 award of attorney fees in favor of South Shores was still
proper. While acknowledging that the judgment against Teresa was reversed on the first

                                              15
cause of action, the trial court cited Mann v. Quality Old Time Service, Inc. (2006) 139
Cal.App.4th 328, 342 for the proposition that “attorney fees need not be reduced for work
on unsuccessful claims if the claims ‘are so intertwined that it would be impracticable, if
not impossible, to separate the attorney’s time into compensable and noncompensable
units.’ [Citations.]” The trial court also noted that Teresa suffered no damages from
South Shores’s improper notice of eviction.
       Teresa challenges the trial court’s ruling. She argues that she is the prevailing
party under the MRL, and that enforcement of the MRL does not hinge on the recovery
of damages.
       A trial court’s determination of the prevailing party is subject to an abuse of
discretion standard of review. (Ritter & Ritter, Inc. Pension & Profit Plan v. The
Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 126 (Ritter & Ritter) [“The
trial court’s determination of the prevailing party for purposes of awarding attorney fees
is an exercise of discretion which should not be disturbed on appeal absent a clear
showing of abuse of discretion”].)
       We find no abuse of discretion in the trial court’s ruling. The court set forth the
factors which it was required to consider under both Civil Code sections 1717 and
798.85. Citing Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1097,
the court noted that under Civil Code section 1717 it was required to “compare the extent
each party succeeded and failed to succeed as to their contentions, and the relief awarded
on contract claims, with the parties’ demands on those claims and their objectives, as
disclosed by pleadings and briefs, and similar sources.” Under Civil Code section
798.85, the court indicated that it had no discretion to deny prevailing party status where
one of the following statutory factors applies: “‘“[1] the party with a net monetary
recovery, [2] a defendant in whose favor a dismissal is entered, [3] a defendant where
neither plaintiff nor defendant obtains any relief, and [4] a defendant as against those
plaintiffs who do not recover any relief against that defendant” . . .’ [Citation.]” (See
Code Civ. Proc., § 1032, subd. (a)(4).)


                                              16
           Based on these legal principles, the trial court determined that South Shores
remained the prevailing party under both Civil Code sections 1717 and 798.85. The court
explained that the only cause of action upon which either plaintiff received judgment was
Teresa’s claim for declaratory relief. However, she was not entitled to any relief on this
claim because it did not result in any damages.
           If a trial court’s exercise of discretion is not erroneous as a matter of law, we will
not disturb it. (In re Marriage of De Prieto (2002) 104 Cal.App.4th 748, 759.) We find
no abuse of discretion in the trial court’s ruling that South Shores remained the prevailing
party in this matter under both Civil Code sections 1717 and 798.85. Therefore, the trial
court did not err in reentering the original attorney fee award in favor of South Shores.
           D. The trial court did not err in declining to award monetary penalties under
the MRL
           The Horaks argue that the trial court abused its discretion when it declined to
award Teresa statutory penalties against South Shores for its violation of the MRL.
Under Civil Code section 798.86, subdivision (a), “[i]f a homeowner or former
homeowner . . . is the prevailing party in a civil action,” the homeowner may be awarded
“an amount not to exceed two thousand dollars ($2,000) for each willful violation of this
chapter by the management.” The Horaks argue that South Shores willfully violated
Civil Code section 798.55, subdivision (b)(1), which provides: “The management may
not terminate or refuse to renew a tenancy, except for a reason specified in this article
. . . .”
           The Horaks cite several other provisions of the MRL which, they claim, South
Shores willfully violated, including Civil Code section 798.56, which provides that a
tenancy shall only be terminated for one or more of certain enumerated reasons; Civil
Code section 798.57, which states that the management shall set forth in a notice of
termination the specific facts describing the reason for the termination; and Civil Code
section 798.74, which provides for the transfer of tenancy to a buyer of a mobilehome in
the park in accordance with the MRL. Teresa requests that this court find nine


                                                 17
unspecified violations of the MRL, entitling her to statutory penalties in the amount of
$18,000.
       First, to the extent that the Horaks did not seek imposition of statutory penalties
against South Shores in the first trial or appeal of this matter, the point is forfeited. (See
People v. Senior, supra, 33 Cal.App.4th at pp. 535-536 [all available arguments must be
raised in an initial appeal from a judgment].) Teresa has failed to provide a citation to the
record of the first appeal showing that she has preserved this issue, and it was not
something that the trial court was specifically directed to consider on remand. Thus, the
trial court was not authorized to consider it, and properly declined to do so. (Ayyad,
supra, 210 Cal.App.4th at p. 859 [“‘The trial court is empowered to act only in
accordance with the direction of the reviewing court; action which does not conform to
those directions is void.’ [Citation]”].)
       Further, even if it had been proper for the trial court to consider this issue, the trial
court did not find that Teresa was “the prevailing party” in the remand action, as required
for imposition of penalties. (Civ. Code, § 798.86, subd. (a).) Nor did the trial court find
that South Shores willfully violated the cited statutes. We assume that the trial court
made the findings necessary to support any decision implied in the judgment.
(Homestead Supplies, Inc. v. Executive Life Ins. Co. (1978) 81 Cal.App.3d 978, 984 [“we
must presume in favor of the judgment every finding of fact necessary to support it
warranted by the evidence”].) 7 We will not disturb a trial court’s discretionary decision

7       Teresa argues that the trial court’s refusal to exercise its discretion is itself an
abuse of discretion. First of all, as set forth above, Teresa has failed to convince us that
the trial court had the authority to consider this issue. Further, we find the cited
authorities irrelevant. Teresa first cites Morris v. Harper (2001) 94 Cal.App.4th 52, in
support of her argument. The case involved a writ of mandamus against Harper, the
acting director of the California Youth Authority, to require him to comply with state law
by obtaining licenses for certain correctional treatment centers. (Id. at pp. 55-56.)
Harper argued that the writ of mandate was improperly issued because, among other
things, it was an improper attempt to control his discretion over the manner by which he
provides medical and mental health care services to the wards in the California Youth
Authority’s custody. (Id. at p. 62.) The Court of Appeal disagreed, stating “[a] refusal to
exercise discretion is itself an abuse of discretion.” (Id. at pp. 62-63.) The case is
                                              18
on this issue absent a clear abuse of discretion, and the burden is on the complaining
party to establish an abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
Teresa has failed to convince us that the trial court abused its discretion in declining to
award her statutory penalties.
       In sum, Teresa has failed to meet her burden of showing that any error occurred.
       E. The remaining issues are forfeited
              1. Burdens on the park application process
       The Horaks attempt to raise a question of law in this second appeal which they did
not raise in the first appeal. Specifically, the Horaks seek a determination of whether the
MRL forbids adding criteria to those set forth in the law for obtaining an application for
park residency. The Horaks present this as a pure question of law, not related to the
resolution of any disputed facts.
       Having failed to raise this legal issue in the first appeal, the Horaks may not do so
now. (See People v. Senior, supra, 33 Cal.App.4th at pp. 535-536 [all available
arguments must be raised in an initial appeal from a judgment].)
              2. Revision of the judgment
       Teresa complains that the amended judgment is not specific with regard to who
prevailed on the first cause of action. She argues that the judgment should be reversed
for failing to specify judgment in her favor on the first cause of action. However, Teresa
presents absolutely no legal authority in support of this argument. In addition, Teresa
fails to provide any citation to the record indicating that she objected to the trial court’s
amended judgment below.



completely irrelevant and does not support Teresa’s claim that the trial court here
improperly refused to exercise discretion to impose statutory penalties. Teresa also cites
Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176-177, in
which the trial court declined to exercise its discretion to determine a prevailing party and
instead determined that there was no prevailing party. The appellate court concluded that
the trial court’s failure to exercise its discretion to determine a prevailing party
constituted an abuse of discretion. (Id. at p. 176.) Here, the trial court did exercise its
discretion on that point and concluded that South Shores was the prevailing party.
                                              19
       Thus, Teresa has forfeited this issue. (See, e.g., Nelson v. Avondale Homeowners
Assn. (2009) 172 Cal.App.4th 857, 862 [when an appellant asserts a point “‘but fails to
support it with reasoned argument and citations to authority, we treat the point as
waived’”]; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [reviewing
court may disregard contentions unsupported by citation to the record]; Estate of Hoffman
(1963) 213 Cal.App.2d 635, 639 [appellant has responsibility to support claims of error
with citation and authority; this court is not obligated to perform that function on the
appellant’s behalf].) “‘The burden is on the appellant in every case affirmatively to show
error and to show further that the error is prejudicial.’” (Conner v. Rose (1963) 219
Cal.App.2d 327, 329.) Teresa has failed to meet this burden, therefore reversal is not
warranted.
II. South Shores’s cross-appeal
       In the first appeal of this matter, we reversed the first cause of action as to Teresa
and remanded the remaining causes of action for reconsideration in light of that ruling.
Because the matter was partially reversed and remanded as to Teresa, we concluded that
she was entitled to her costs of appeal. Teresa sought her costs and attorney fees incurred
in the successful appeal, and the trial court awarded both costs and attorney fees to Teresa
in the amount of $43,534.29. In its cross-appeal, South Shores challenges the trial court’s
order awarding Teresa her attorney fees on appeal. We reject South Shores’s arguments,
and affirm the award.8




8       The Horaks point out certain deficiencies in South Shores’s opening brief on
cross-appeal. Specifically, the Horaks complain that it does not contain a statement of
appealability as required by California Rules of Court, rule 8.204(a)(2)(B), and it does
not cite the standard of review. The Horaks ask that South Shores’s brief be stricken.
While we agree that South Shores’s violations of the Rules of Court are not acceptable,
we do have discretion to disregard the noncompliance in the interests of justice. (Cal.
Rules of Court, rule 8.204(e)(2)(C).) We decline to strike South Shores’s brief, and
consider its cross-appeal on the merits to the extent that the issues raised therein are not
otherwise forfeited.
                                             20
        A. Applicable law
        After remand, the successful appellant must serve a memorandum of costs in the
trial court to recover any costs awarded on appeal. (Cal. Rules of Court, rule 8.278(c).)
Where the Court of Appeal has specified that an appellant is entitled to her costs on
appeal, such an award “neither includes attorney’s fees on appeal nor precludes a party
from seeking them under rule 3.1702.” (Cal. Rule of Court, rule 8.278(d)(2).) The right
to recover attorney fees on appeal “does not arise from the rule; it arises from the
applicable statute or contract.” (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918,
925.)
        B. Prevailing party
        South Shores first argues that Teresa was not the prevailing party in the first
appeal under Civil Code sections 798.85 or 1717, thus she was not entitled to attorney
fees on appeal under those statutes. When determining the prevailing party, South Shores
argues, the court should consider all of the litigation and decide which party had greater
success on its claims. Here, Teresa appealed the judgment as to all six causes of action,
but achieved reversal on only one cause of action. Furthermore, on that one cause of
action, Teresa suffered no damages. Thus, South Shores argues, if the court examines the
appeal as a whole, Teresa failed in more of her contentions than she succeeded on.
        A trial court’s determination of the prevailing party is subject to an abuse of
discretion standard of review. (Ritter & Ritter, supra, 166 Cal.App.4th at p. 126 [“The
trial court’s determination of the prevailing party for purposes of awarding attorney fees
is an exercise of discretion which should not be disturbed on appeal absent a clear
showing of abuse of discretion”].) If a trial court’s exercise of discretion is not erroneous
as a matter of law, we will not disturb it. (In re Marriage of De Prieto, supra, 104
Cal.App.4th at p. 759.)
        Here, the trial court determined that Teresa was “clearly the prevailing party on
her appeal.” In addition, the trial court noted that it was authorized to act solely in
accordance with the directions of the reviewing court, which directed that Teresa was to


                                              21
be awarded her costs of appeal. We see no legal error in this decision, therefore we will
not disturb the ruling.
       C. Timeliness
       Next, South Shores argues that Teresa’s motion for attorney fees was not filed in a
timely manner. South Shores points to California Rules of Court, rule 3.1702(c), which
provides that a party claiming attorney fees on appeal must file a motion for fees within
the time required for serving and filing a memorandum of costs under rule 8.278(c)(1).
According to rule 8.278(c)(1), a party claiming that it is entitled to an award of costs must
file a memorandum of costs within 40 days of the issuance of the remittitur. In the matter
presently before the court, the remittitur was issued on September 28, 2010, and the
motion for attorney fees and costs was not filed until December 15, 2011.
       However, the trial court held that the motion for attorney fees was timely under
California Rules of Court, rule 3.1702(b)(1), which provides:
              “A notice of motion to claim attorney’s fees for services up to and
       including the rendition of judgment in the trial court--including attorney’s
       fees on an appeal before the rendition of judgment in the trial court--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 . . . .”

       California Rules of Court, rule 8.104 provides that a notice of appeal must be filed
within 60 days after the clerk of the superior court serves the party with a notice of entry
of judgment in the matter or 60 days after the party is served with a notice of entry of
judgment. (Cal. Rules Court, rule 8.104(a)(1) & (a)(2).)
       The judgment in this matter was entered on November 30, 2011, and Teresa’s
motion for attorney fees was filed on December 15, 2011. It was therefore timely under
California Rules of Court, rule 3.1702(b)(1).
       D. Offset
       Finally, South Shores argues that, if this court should affirm the award of attorney
fees to Teresa, then the amount awarded should be offset by the judgment for attorney
fees owed by Teresa to defendants. South Shores provides only two sentences of


                                             22
discussion on this topic, without reference to any place in the record where the issue of
offset was raised in the trial court or any citation to legal authority directing the standard
of review or applicable law for such a determination. Under the circumstances, we find
that South Shores has forfeited the issue, and we decline to address it further. (See, e.g.,
Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th at p. 862 [when an
appellant asserts a point “‘but fails to support it with reasoned argument and citations to
authority, we treat the point as waived’”]; City of Lincoln v. Barringer, supra, 102
Cal.App.4th at p. 1239 [reviewing court may disregard contentions unsupported by
citation to the record]; Estate of Hoffman, supra, 213 Cal.App.2d at p. 639 [appellant has
responsibility to support claims of error with citation and authority; this court is not
obligated to perform that function on the appellant’s behalf].)
                                       DISPOSITION
       The judgment is affirmed in full. Each side to bear their own costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                   ______________________________, J.
                                                   CHAVEZ

We concur:



_____________________________, P. J.
BOREN



_____________________________, J.
ASHMANN-GERST




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