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Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Patrick Corrigan et al vs Jill Kent

Case No: 1189394
Hearing Date: Tue Jul 30, 2013 9:30

Nature of Proceedings: Motion Enforce Settlement Agreement/Additional Atty Fees

Motion to enforce settlement. RULING: No fees are awarded. The parties resolved all substantive issues, and have left only the issue of attorneys’ fees to be determined at the hearing. MOTION: [The substantive issues other than fees have been resolved, and only the portions of the brief related to fees are addressed.] Plaintiffs seek fees of $22,590.50, for services from 1/9/13 to 1/24/13, plus additional fees for the hearing on this motion in the amount of $1,432.50, for a total of $24,023.00. Plaintiffs assert that the contempt proceedings were initiated on 9/12, and set for hearing on 12/11. On that date, the parties stipulated that defendant would not be found in contempt if the trees and hedge were brought into compliance by the end of the year, and that plaintiffs were the prevailing party for purposes of entitlement to fees and costs. The Court set a compliance hearing for 1/29. The vegetation was partially reduced, but remained noncompliant by 1/13. On 1/10/13, defendant signed a stipulation resolving complaint and amending judgment, stipulating to paying fees and costs totaling $17,920.50, incurred up to 1/8/13. Fees incurred after that date were not resolved. Defendant failed to reduce the foliage to compliant levels, and failed to pay the fees and costs, and the matter was set for a 2/5/13 hearing. When defendant had not complied by that date, the Court set a 2/19/13 hearing. At the hearing, defendant stipulated that she was in contempt of the 2007 judgment and of the order to pay fees, and that the contempt could be purged by compliance. Plaintiffs rely on a transcript of that proceeding to claim that defendant stipulated that any additional attorneys’ fees and costs to be claimed by plaintiffs for failure to purge her contempt by March 11 would be by noticed motion. Plaintiffs’ counsel sent then-defense counsel, Eric Kitchen, a draft Ruling on Contempt of court. However, defendant changed counsel, and it was sent to her new counsel. The attorneys conferred between 3/8 and 3/15, and revisions were discussed, but they could not reach an agreement on the wording. The parties submitted a status report on the purging of the contempt on 3/14/13. On 3/21, plaintiffs filed a declaration regarding the proposed ruling on the contempt. At the 3/26 hearing, it was determined defendant had purged the contempt by paying the previously awarded fees and reducing the foliage to compliant levels. Plaintiffs now seek the fees incurred from 1/9/13 on. First, fees are a matter of right under the contempt proceeding. A court has inherent power to punish a contempt, and the penalty must be sufficient to enable the courts to vindicate their authority and maintain the dignity and respect due to them. In re Garner (1918) 179 Cal. 409, 412-413. CCP § 178 authorizes the court to impose punishment for contempt. Under CCP § 1218(a), if the court determines that a party against whom contempt charges have been brought is guilty of the contempt, the guilty party may also be ordered to pay the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred in connection with the proceeding. Defendant admitted plaintiffs’ entitlement to fees, did not timely purge her contempt, and did not offer to pay the fees requested and incurred after 1/9/13. Second, fees and costs should be awarded per the stipulation of the parties. Exhibit 6 is the transcript of the proceedings on 12/11/12. Defendant stipulated in open Court to plaintiffs’ right to fees and costs and that fees could be claimed by law and motion proceedings. Exhibit 7 is the transcript of the 2/19/13 proceedings, wherein defendant and her then- counsel, Mr. Kitchen, agreed that any additional fees and costs not covered by the payment of the $17,920.50 would be handled by way of motion. The contempt was not timely purged, and defendant stipulated to the payment of additional fees for attorney time spent after 1/9/13. Third, paralegal fees are awardable as a component of attorneys’ fees. OPPOSITION First, plaintiffs are not entitled to attorneys’ fees. It is defendant’s position that the right to fees was governed by the stipulation entered into at the 2/19/13 contempt hearing. Defendant asserts that there were four components to the stipulation: (1) defendant would permit entrance to her property to allow a survey to be conducted, (2) defendant would pay plaintiff $17,920.50 in fees, (3) defendant would make any required reductions in the height of her foliage, and (4) if defendant did not comply with Nos. 1-3 and purge her contempt, plaintiff could seek additional fees, costs, or penalties. Defendant argues that a stipulation is a contract, governed by usual rules of contractual construction. Under those rules, the language of a contract governs its interpretation, if the language is clear and explicit, and does not involve an absurdity. Defendant argues that Mr. Grokenberger’s words were clear and explicit, and indicated that any additional fees, costs or penalties and any attorneys’ fees would be handled in the next appearance if the purge did not occur. Since the purge occurred, plaintiff is not entitled to fees. Defendant asserts that the only way that plaintiffs’ interpretation of the language would be plausible is if the language was uncertain or ambiguous. Plaintiffs, as promisors, agreed to allow defendant to purge the contempt if defendant performed certain obligations. Under California law, the inquiry in interpreting an ambiguous term of the contract considers not the subjective belief of the promisor, but the objectively reasonable expectation of the promissee. Bank of the West v. Superior Court(1992) 2 Cal.4tth 1254, 1264-1265. Further, where uncertainty exists, the language of the contract should be interpreted most strongly against the party who caused it to exist. CC § 1645. Since plaintiffs drafted the language, any ambiguities are construed against them. Second, even if plaintiffs were entitled to request attorneys’ fees, the award of fees is not merited. Plaintiffs seek an award of fees under CCP § 1218(a). The purpose of the statute governing punishment for contempt is not to vindicate the opposing party’s rights, but to preserve the dignity and authority of the court (H.J. Heinz, Co. v. Superior Court (1954) 42 Cal.2d 164, 174-176) and to encourage parties to enforce contempt violations and to comply with court orders. Rickley v. Goodfriend (2012) 207 Cal.App.4th 1528. While a court has inherent authority to punish a contempt, it is a drastic remedy which should be used only when necessary in order to maintain law and order. Uhler v. Superior Court (1953) 17 Cal.App.2d 147, 156. A contempt judgment is to be construed in favor of the accused. Id. Good faith is not a defense to a charge of contempt, but must be considered by the court in determining the appropriate penalty. Conn. V. Superior Court (1987) 196 Cal.App.3d 774, 788. The record shows defendant’s attempted compliance with the 2007 judgment, including regular monthly maintenance of foliage heights against a story stick. Further, defendant performed each obligation under the stipulation, and her contempt was purged. Third, defendant asserts that plaintiffs are not entitled to all fees requested. (A) A difference in interpretation of the law does not merit punishment. Plaintiffs are seeking more than $22,000 in fees related to the contempt hearing, most of which are related to resolving the issue of whether they are entitled to their fees, or whether fees are waived by defendant’s purge of her contempt. In seeking defendant’s attorney’s agreement in a proposed draft ruling on contempt, plaintiff’s attorney sought to go beyond the language of the stipulation to insert a new paragraph stating that plaintiff could file a noticed motion for the additional fees incurred in preparing for and establishing the contempt. Defendant objected to the language, noting the language was not in the stipulation, and fees were not available because defendant purged her contempt. That was the main issue in dispute, resulting in the filing of the motion. Interpreting the language of the oral stipulation created a legitimate difference of opinion with respect to a close question of law. Punishment for contempt should not be used to resolve close questions of law. If defendant is responsible for fees associated with resolving a legitimate dispute over the language of the oral stipulation, defendant would be at the mercy of plaintiffs’ attorneys, who could use that advantage to prejudice defendant’s rights. Parties acting in good faith should be free from the fear that a legitimate objection to an oppressive or inappropriate proposed term in a document will not subject them to the punishment of a fee award. (B) Defendant made good faith offers of settlement. Defendant may be summoned at any time to answer an allegation that she is in contempt of the 2007 judgment. The cost of defending herself exceeds the costs of accommodating plaintiffs’ demands, regardless of whether she is actually in contempt, and this invites the possibility of abuse by plaintiffs. In 3/13, counsel discussed the status of the various cases, and Mr. Grokenberger then indicated the amount of fees in question totaled $11,700. In an effort to resolve the matter, and without admitting any obligation to do so, defendant made several offers to pay a portion or all of the $11,700 requested by plaintiffs, but plaintiffs rebuffed each offer. The only thing served by plaintiffs’ refusal to accept the offer was that plaintiffs’ fees increased dramatically. Time expended after defendant’s settlement offer was not reasonably spent, and is not recoverable. Awarding plaintiffs fees would only reward their untoward behavior. No reply has yet been logged into the Court’s computer as of 2:00 p.m. July 29. ANALYSIS: Plaintiffs assert that they are entitled to post-1/9/13 fees for the contempt proceedings, and that defendant agreed at the 2/19 hearing that they could seek them. Defendant, on the other hand, asserts that the stipulation entered into the record on 2/19 reflected that no fees would be sought if defendant was able to purge her contempt. Plaintiffs’ motion also appears to contend that they are entitled to fees because the contempt was not purged by the 3/11/13 date agreed upon in the stipulation. However, a 3/18/13 status report from both parties states that, as of that date, the surveyor’s calculations identifying the locations where vegetation required further reduction had not yet been received. At the 3/26/13 hearing, defendant was found to have purged her contempt by making the required reductions. Therefore, there does not appear to be any information before the Court that the failure to meet the 3/11 deadline was defendant’s fault. In its relevant portion, the transcript of the 2/19 hearing reveals the following (unless otherwise noted, questions are being asked by Mr. Grokenberger, and answered by defendant Kent): “Q. And so, in light of these admissions, you are stipulating that the Court would have a good and sufficient factual basis for finding an indirect contempt as to the hedge and at least one of the trees covered by the judgment; is that correct? A. Yes. Q. And that pursuant to the stipulation of the parties and request to the Court that she will have until March 11 to purge the contempt by reduction of any tree and the hedge to the judgment heights, if necessary, and we have acknowledged that you have made some cuts already; is that correct? A. Yes. Q. And that between now and sometime this week we will be meeting with Mr. Steve Davis, who was identified in the stipulation and order of January 22 – that’s when it was filed – to determine the heights of the hedge, as well as the trees, covered by the judgment, and those calculations showing, based on the GPS location of the topography and the trees, those will be added pursuant to our stipulation filed on January 22 to the judgment, which will then confirm the purged contempt prior to the return date. Is that correct? That was a long – let’s do it this way. Let’s do it this way. We further stipulate that we will all be meeting with Steve Davis, the appointed surveyor, who will determine the heights of the hedge and the trees and those calculations will be added to the judgment; is that correct? A. Yes. Q. Okay. And that the 17,000 that is due under the January 22 order will be paid on or before the return date of, and we’re looking at having this all done by March 11, according to your calendar, so that will be paid also as a condition of purging the contempt; correct? A. Yes. Q. Finally, with regard to, then, the continued hearing, and she will have through March 11 to do the reduction, so you can set a time after that, we agree that procedurally, then, any additional fees, costs or any penalties that the Court might consider if purge does not occur, that will be handled by way of the next appearance. And the attorney’s fees will be handled by way of motion work; okay? So, is that agreeable, Mr. Kitchen? [Emphasis added.] MR. KITCHEN: Yes, sir. MR. GROKENBERGER: And, Miss Kent, you are in agreement with your counsel and with what’s been stated? MS. KENT: Yes.” There does not appear to me to be any way that the “additional fees” the Court might consider “if purge does not occur” could refer to anything other than the fees which had been incurred from January 2013 up to that point. Defendant had been ordered to pay fees of $17,920.50 in January. As part of the purge of the contempt, she in fact made that payment. Having purged the entire contempt, it would appear that she should not be held accountable for any further attorneys’ fees. Plaintiffs’ counsel, Mr. Grokenberger, is the one who put the language on the record with respect to additional fees that the Court might consider “if the purge does not occur.” Had he intended for fees from 1/8/13 to be sought by way of motion work regardless of the purge, that language does not make sense.
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