LEIGH ROBINSON, Plаintiff and Respondent, v. U-HAUL COMPANY OF CALIFORNIA, et al., Defendants and Appellants.
Nos. A141396, A145828
First Dist., Div. Four
Oct. 18, 2016
7 Cal. App. 5th 304
Alston & Bird, James R. Evans, Jr., and Ryan T. McCoy for Defendants and Appellants.
Law Offices of Freeman & Freeman, Rebecca J. Freeman, Matthew C. Freeman and Molly A. Gilardi for Plaintiff and Respondent.
OPINION
STREETER, J.-
I. INTRODUCTION
Nearly 10 years ago, appellant U-Haul Company of California (UHC)1 sued respondent Leigh Robinson, one of UHC‘s independent dealers, for breach of contract and unfair competition after he terminated their contract and began renting Budget trucks from what was formerly a UHC dealership (Robinson I). UHC alleged a covenant not to compete in the UHC dealer contract prohibited Robinson from offering the products of UHC‘s competitors while a Yellow Pages ad, running at UHC‘s expense, was still promoting Robinson‘s business as a U-Haul dealership. Robinson filed a cross-complaint seeking to “avoid enforcement of the covenant not to compete by, among other things, seeking a judicial declaration that it was void due to fraud in the inducement.2
After UHC lost its request for a preliminary injunction and dismissed its complaint, Robinson filеd a separate action alleging malicious prosecution by UHC in the prior lawsuit and violation by U-Haul of
In their consolidated appeals from Robinson II, the U-Haul defendants argue (1) the trial court committed reversible error in issuing a permanent injunction because UHC had voluntarily abandoned enforcement of the covenant not to compete in California, and (2) the court abused its discretion in awarding attorney‘s fees to Robinson аs a private attorney general because Robinson‘s request for fees was filed late. We conclude the injunction was properly entered and the court did not abuse its discretion in allowing Robinson to file a late motion for attorney‘s fees. We therefore affirm the judgment and the award of fees.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Relationship Between the Parties
In 2001, Robinson purchased Downtown Self Storage, a self-storage business in Fairfield, California. On August 1, 2001, he signed a standard form dealer contract with UHC and renewed the contract three years later. Under the dealer contract, UHC and Robinson agreed that he would rent U-Haul vehicles and equipment at his storage facility and they would share the rental income. UHC also agreed to promote and advertise Robinson‘s storage business as a U-Haul rental location, including Yellow Pages advertisements using the U-Haul trademark.
UHC‘s standard dealer contract included a “Noncompetition Covenant” requiring Robinson to refrain from competing with UHC by representing U-Haul‘s competitors while the Yellow Pages ad remained in print: “Dealer warrants, covenants and agrees that... Dealer. shall not represent or render any service either on its own behalf or in any capacity for the duration of the then-existing or contracted-for telephone directory listing(s) for the Dealer Location.” An addendum to the contract extended the “Noncompetition Covenant” for another year after expiration of the advertising, which could leave a dealer unable to rent competitors’ trucks for two years or more. Covenants not to compete are, with limited exceptions, illegal under California law. (
Between 2001 and 2006, UHC advertised Downtown Self Storage in the Fairfield and Vacaville area Yellow Pages as a place where consumers could find U-Haul rental vehicles and equipment. UHC paid for the dealer ads on an annual basis, placing the orders several months before the directory listings were published.
B. The Proceedings in Robinson I
In December 2006, UHC filed its complaint in Robinson I in Solano County Superior Court against Robinson in docket No. FCS028840. UHC asserted causes of action for unfair competition, breach of contract, and specific performance. UHC‘s lawsuit alleged that Robinson was impermissibly offering Budget trucks for rent at the same time that UHC‘s Yellow Pages ad identified Robinson‘s business as a U-Haul dealership. In addition to damages, restitution, an accounting, attorney‘s fees and costs, UHC sought preliminary and permanent injunctions requiring Robinson to discontinue his relationship with Budget and to refrаin from entering into business with any other competitor of UHC until a year after the Yellow Pages ads expired.
Robinson filed a cross-complaint for declaratory relief and breach of contract. He alleged UHC had breached the dealer contract in various material ways, relieving him of the obligation to comply with the covenant not to compete. He further alleged the covenant not to compete was void based on fraud in the inducement, and he sought a judicial declaration to that effect.
In June 2007, UHC filed a motion for a preliminary injunction, and Robinson opposed it, primarily based on the theory that the noncompetition covenant was void under
In February 2008, the trial court (Judge Paul L. Beeman) in Robinson I denied Robinson‘s motion for summary judgment on his declaratory relief cause of action in part because it was moot in light of the fact that UHC had waived enforcement of the noncompetition clause against Robinson. As for Robinson‘s contention that UHC‘s misconduct was “capable of repetition, yet evading review,” the court ruled that Robinson had failed to produce “sufficient admissible evidence that U-HAUL had, or currently has, cases against other dealers pending in which U-HAUL attempted or is attempting to enforce non-competition covenants without a reasonable expectation that the dealer used or is using its trade secrets.”
UHC‘s motion for summary judgment remained pending at that time, as Robinson was seeking to reopen discovery to locate additional litigation between UHC and its dealers. Robinson сlaimed he had found through his own investigation a number of lawsuits against dealers that UHC had failed to disclose in discovery. Robinson was granted limited additional discovery on that basis in May 2008. UHC‘s summary judgment motion in Robinson I was never ruled upon because Robinson ultimately dismissed his cross-complaint for declaratory relief before there was a ruling. UHC unsuccessfully sought recovery of attorney‘s fees in Robinson I, with the court determining in May 2013 that UHC was not the prevailing party.
C. The Trial in Robinson II
On June 9, 2008, while Robinson I was still pending, Robinson filed Robinson II as a class action in docket No. FCS031532.4 He alleged causes of action against the U-Haul defendants for malicious prosecution and violation of the UCL. Through his UCL claim, Robinson sought to permanently enjoin the U-Haul defendants from including the covenant not to
In August 2013, the court tried the malicious prosecution cause of action in Robinson II together with the UCL cause of action bеfore a jury, with the trial structured so that the jury would decide only the malicious prosecution action, while the court would decide the UCL claim. (See Hodge v. Superior Court (2006) 145 Cal.App.4th 278, 284–285 [51 Cal.Rptr.3d 519] [no jury trial on UCL claims].) At the conclusion of the trial, the court determined as a matter of law that the noncompetition covenant was illegal in California and that U-Haul knew this at the time it inserted the noncompetition clause into its dealer contracts. The judge said: “First off, the clause is void and unenforceable as a matter of law. [Section] 16600 was the law predated these events herein by many, many years. Their only reason to put a void contract clause in a contract is to mislead people. U-Haul knew when it put that in its contract that [section] 16600 of the [Business and Professions] [C]ode was in existence. That statute was clear. [] Why would you possibly put something in a contract where the law says it‘s void? You do that so you can cause somebody to think that that clause is, in fact, valid when it isn‘t. So it is void and unenforceable as a matter of law.” U-Haul does not challenge this ruling on appeal.
Throughout both Robinson I and the trial in Robinson II, UHC attempted to defend its noncompetition covenant, claiming Robinson had misappropriated UHC‘s trade name and trade secrets. (See Muggill v. Reuben H. Donnelley Corp. (1965) 62 Cal.2d 239, 242 [42 Cal.Rptr. 107, 398 P.2d 147]; Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853, 863 [27 Cal.Rptr.2d 573].) On August 22, 2013, the jury found, among other things, that UHC did not reasonably believe Robinson was misusing trade secrets or confidential information when it filed Robinson I and that U-Haul did not reasonably believe Robinson‘s renting Budget trucks would confuse its customers while the Yellow Pages ad was running. The jury awarded Robinson compensatory damages of $195,310 on his malicious prosecution claim, but awarded no punitive damages, and the court entered judgment thereon.
In September and October 2013, the parties submitted briefing and additional supporting documentation on Robinson‘s UCL cause of action. Robinson argued he was entitled to judgment on that claim, asked the court to grant an injunction, and requested attorney‘s fees. Robinson introduced into evidence an order of the Federal Trade Commission (FTC) dated in 1987 that prohibited UHI and its subsidiaries from initiating or participating in any
On October 1, UHC filed a motion for judgment on the UCL cause of action, arguing an injunction was unauthorized because Robinson lacked standing under the UCL and such claims were in any case moot because UHC had abandoned all attempts to enforce the noncompetition covenant in California. In support of its position, UHC filed the declaration of Kristine Campbell (in-house counsel for UHC) attesting: “In 2010, UHC modified its Dealer Contracts to make the noncompetition clause void where prohibited.” She added, “Since the dismissal of Robinson I, UHC has not attempted to enforce the noncompetition clause in California and currently has no pending cases seeking enforcement of the noncompetition clause in California.” And finally, “Sincе 2010, UHC‘s corporate policy has been, and continues to be, that it will neither threaten nor bring any action against its independent dealers to enforce the covenant not to compete contained in the dealer contract. UHC has advised its dealers of this policy.” Robinson‘s attorneys, in fact, were able to turn up anecdotal evidence from several dealers who claimed they had not been so notified.
On January 17, 2014, Judge Harry S. Kinnicutt filed his “Order after Hearing on Plaintiff‘s Motions.” The judge found in favor of Robinson on his UCL claim but limited relief to “issuance of a permanent injunction against UHAUL prohibiting it from instituting, or threatening to institute, judicial proceedings to enforce against any former or current dealers the non-competition covenant in its dealer contracts.” Judge Kinnicutt ruled Robinson‘s UCL claim was not moot because it presented an issue of broad public interest that was likely to recur. Although the court did not expressly rule that Robinson met the standing requirements of
On January 22, 2014, the court entered its final judgment in favor of Robinson on bоth the malicious prosecution and UCL claims, and the clerk served notice of entry on January 24, 2014. Although Robinson was awarded the damages found by the jury in the malicious prosecution cause of action, the only remedy provided under the UCL was the injunction described above. In the final judgment the court ordered that Robinson “shall also recover attorneys’ fees against” U-Haul on the UCL claim, but the court left blank spaces where the amounts of such fees were apparently intended to be designated. On March 21, 2014, the U-Haul defendants timely appealed from the judgment.
III. DISCUSSION
A. Permanent Injunction Precluding UHC from Enforcing Covenant
UHC contends the court erred in issuing a permanent injunction because (1) there was “no evidеnce” supporting a continuing violation by UHC, so as to justify an injunction; (2) Robinson lacked standing; (3) Robinson‘s UCL claim did not, in fact, present an issue of broad public interest; (4) the denial of Robinson‘s motion for summary judgment as moot in Robinson I operated through collateral estoppel to bar the issuance of a permanent injunction in Robinson II; and (5) the court erroneously excluded the testimony of one of its witnesses who would have testified that UHC had stopped enforcing the covenant not to compete in California.
1. There Was Substantial Evidence Supporting the Court‘s Factual Findings, and Issuance of the Injunction Was Not an Abuse of Discretion.
” ‘The grant or denial of a permanent injunction rests within the trial court‘s sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.] The exercise of discretion must be supported by the evidence and, “to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, [we] reviеw such factual findings under a substantial evidence standard.” ’ ” (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 647 [199 Cal.Rptr.3d 705].) Here, there is a dispute about the facts, including whether UHC‘s claim to have abandoned its past practices was made in good faith. We approach such issues with deference.
The trial court summarized its reasons for issuing the injunction as follows: “UHAUL apparently had followed a policy for years of threatening to enforce, and instituting proceedings to enforce, those covenants. In late 2007, faced with ROBINSON‘s cross-complaint in the first case, UHAUL carved out an exception for ROBINSON alone (although UHAUL claims, and ROBINSON has no evidence to the contrary, that UHAUL has not sued any other former dealers since bringing the 2007 first case against ROBINSON). Then, in 2010, after ROBINSON in 2008 had filed this second case, UHAUL
One of the central legal questions in this case is whether a party to a lawsuit can avoid having a permanent injunction issued against it by voluntarily undertaking to do what the injunction would require. There is case authority saying an injunction may be denied on that basis. (Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1020 [112 Cal.Rptr.3d 607]; Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 465 [30 Cal.Rptr.3d 210]; Midpeninsula Citizens for Fair Housing v. Westwood Investors (1990) 221 Cal.App.3d 1377, 1393 [271 Cal.Rptr. 99] [injunction would serve no purpose where the “challenged policy was withdrawn nearly four years ago, and nothing in the record indicates any intention... to reinstate it“].) But simply because a requеst for permanent injunctive relief may be denied based on voluntary submission to its terms does not mean such a request must be denied on that basis. U-Haul nevertheless claims there was “no evidence” before the trial court warranting an injunction. Nelson held that a party seeking an injunction must present “actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.” (Nelson, supra, at p. 1020.) Here, the evidence of U-Haul‘s past practice, coupled with evidence of the half measures it took in lieu of eliminating altogether the noncompetition covenant in its California contracts, amounted to substantial evidence to support any factual findings necessary to or implicit in the issuance of the injunction.
First, there is no hard-and-fast rule that a party‘s discontinuance of illegal behavior makes injunctive relief against him or her unavailable. “While voluntary cessation of conduct may be a factor in a court‘s exercise of its equitable jurisdiction to issue an injunction, it is not detеrminative....” (People ex rel. Feuer v. Superior Court (Cahuenga‘s the Spot) (2015) 234 Cal.App.4th 1360, 1385 [184 Cal.Rptr.3d 809].) Similarly, Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 929 [130 Cal.Rptr. 1, 549 P.2d 833] (Palsson) held: “[T]he voluntary discontinuance of alleged illegal practices does not remove the pending charges of illegality from the sphere of judicial power or relieve the court of the duty of determining the
Second, UHC‘s lawsuit against Robinson was not an isolated one. Based on the court‘s finding that U-Haul knew when it inserted the noncompetition covenant into the contract that the clause was illegal in California,5 it appears UHC had acted in knowing violation of the law over a period of many years. UHC‘s own letter to Robinson in October 2006 said the company had a “policy of... aggressively protect[ing] its legitimate business interests by seeking to enforce the non-competition provisions.” This statement was borne out by Robinson‘s evidence of other lawsuits UHC had filed against its dealers over a period of ten years before UHC sued Robinson. Evidence of such an ingrained, long-term, knowingly illegal corporate practice provides support for a finding of likely repetition in the future.
Third, even when UHC revised its standard dealer contract in 2010, it did not purge the offending covenant from its California contracts. The court explicitly found that inserting the words “void where prohibited” into the language of the dealer‘s contract was insufficient to solve the problem. It also found insufficient evidence of across-the-board notification of current dеalers to support a finding that UHC had corrected its anticompetitive behavior.
Fourth, UHC‘s change in policy came only after it lost its motion for a preliminary injunction in Robinson I and after the complaint in Robinson II was filed. And despite the purported change in policy in 2010, UHC continued to insist at trial in Robinson II that its noncompetition covenant was valid and enforceable. It thus changed its policy only when threatened with an injunction. On this record, the trial court found that UHC‘s promise
As we read Judge Kinnicutt‘s orders and judgment, the injunction was a response in part to U-Haul‘s resistance to amending its policies, and its persistence in pursuing its anticompetitive litigation strategy over the years, up to the time it initiated the lawsuit in Robinson I and even throughout the trial in Robinson II. The injunction eliminates a practice that is now shrouded in uncertainty and plagued by a troubling past. We have no reason to overturn the trial court‘s decision to issue an injunction, as it did not result from lack of evidence, legal error, or an abuse of discretion.
2. Robinson Had Standing
UHC claims Robinson lacks standing to seek an injunction against U-Haul under the UCL because he cannot show he personally suffered injury as a result of U-Haul‘s alleged unfair competition, citing
Amalgamated Transit, supra, 46 Cal.4th 993 dealt with the changes in standing requirements ushered in by voter initiative in 2004 under Proposition 64.6 (Amalgamated Transit, at p. 1000.) That case involved a labor union that
We agree with Robinson that he has standing in this action because he was sued by UHC in Robinson I to enforce the covenant not to compete and incurred attorney‘s fees and costs as a result. The alleged unfair business practice in this case was not just the inclusion of the noncompetition covenant in UHC‘s dealer contracts, but the strategic use of litigation and threatened litigation to achieve its anticompetitive purpose. Robinson successfully showed that Robinson I was part of a pattern of business activity in which UHC sought to intimidate its former dealers from setting up business relations with UHC‘s competitors. (Cf. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 108-113 [101 Cal.Rptr. 745, 496 P.2d 817] [collection agency‘s pattern of intentionally commencing litigation in improper venues for the purpose of impairing its adversaries’ ability to defend such suits was an “unlawful business practice” under predecessor to
3. The Court‘s Finding of a Broad Public Interest Was Supported by the Record and Was Not an Abuse of Discretion
A major thrust of UHC‘s briefing is that this litigation is moot. UHC acknowledges, however, that ” ‘[i]f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its
abolish the portions of the UCL... that made suing under them easier than under other comparable statutory and common law torts, it was not intended to make their standing requirements comparatively more onerous.” (Id. at p. 335.)
The parties have cited no cases articulating the standard of review on the “broad public interest” determination, and we have located none. Issues of justiciability, such as mootness, are generally reviewed de novo. (Panoche Energy Center, LLC v. Pacific Gas & Electric Co. (2016) 1 Cal.App.5th 68, 99 [205 Cal.Rptr.3d 39] [ripeness]; K.G. v. Meredith (2012) 204 Cal.App.4th 164, 174 [138 Cal.Rptr.3d 645] [mootness reviewed de novo where facts are undisputed]; Gilb v. Chiang (2010) 186 Cal.App.4th 444, 457-461 [111 Cal.Rptr.3d 822] [justiciability]; Biodiversity Legal Foundation v. Badgley (9th Cir. 2002) 309 F.3d 1166, 1173 [appellate courts “review mootness, a question of law, de novo“].) But since the broad public interest exception to mootness is an exercise of the court‘s ” ‘inherent discretion’ ” (Johnson v. Hamilton, supra, 15 Cal.3d at p. 465), the determination arguably could be subject to an abuse of discretion standard of review. (See Application Group, supra, 61 Cal.App.4th 881 at p. 893 [“Whether an action is justiciable is... a matter entrusted to the sound discretion of the trial court“].) We need not decide which standard applies, as we would reach the same result under any standard.
UHC claims there is no California case finding a noncompetition clause to present an issue of broad public concern. That ignores Palsson, upon which the court below relied. While Palsson did nоt deal directly with a covenant not to compete, its holding is pertinent here because it dealt with a private entity‘s curtailment of employment opportunities through policies adopted in its bylaws.
In Palsson, an association of real estate brokers and sales associates, to which three-quarters of brokers in the county belonged, denied Palsson‘s application for membership—and hence his access to the multiple listing service (MLS)—because he was primarily employed as an airline engineer and sold real estate only part-time. (Palsson, supra, 16 Cal.3d at p. 924.) Under the association‘s bylaws, a salesman had to be “primarily engaged in the real estate business” in order to join, and members were prohibited from employing or sharing office space with anyone denied membership. (Ibid.) Thus, a part-time salesman faced not only denial of access to the MLS, but also denial of “employment with 75 percent of the residential brokers in Marin County.” (Id. at p. 925.) When Palsson contested the board‘s decision denying him membership, the board sought a deсlaratory judgment that its bylaws were valid. (Id. at pp. 923-925.)
Palsson also mentioned that “the importance of the questions involved [was] partly shown by the appearance of the California Association of Realtors, the Attorney General, and the District Attorney of Los Angeles County through amicus briefs,” and because there were a number of similar cases pending in various trial courts. (Palsson, supra, 16 Cal.3d at p. 930.) While those may have been factors influencing the court‘s decision in Palsson, we do not think the applicability of the broad public interest exception can legitimately turn on whether amicus curiae briefs were filed, whether any other parties intervened in the action, or whether there were currently pending actions elsewhere in the state asserting similar positions. The presence of such factors may provide support for a finding of broad public interest, but their absence does not prove the opposite. We have already discussed the trial court‘s reasons for issuing the injunction in this case, which were sound.
As a secondary argument, UHC contends that the “small number of independent dealers in California” is too limited a group to qualify under the “broad public interest exception.” According to Robinson, UHC has approximately 1,000 California dealers, and UHC offers no contrary evidence. We are aware of no rule establishing how many members of the public must be affected in order for the “broad public interest” exception to apply. To our way of thinking, a population of 1,000 dealers, together with past dealers and prospective dealers, makes up a sufficient segment of the public to qualify as a “broad” swath. We hasten to add, however, that here the court found the anticompetitive impact of the covenant spread to more than just dealers. The trial court found the threat to competition extended to the dealers’ customers and to the truck rental market in general. UHC‘s enforcement and threats to enforce the covenant in California negatively affected its competitors by denying them rental outlets for their trucks and hurt the rental market
4. Collateral Estoppel
UHC next contends Judge Beeman‘s ruling in February 2008 in Robinson I denying Robinson‘s motion for summary judgment on mootness grounds should have operated to collaterally estop Robinson from obtaining an injunction against UHC in Robinson II. Whether collateral estoppel applies is a question of law reviewed de novo. (Duarte v. State Teachers’ Retirement System (2014) 232 Cal.App.4th 370, 389, fn. 11 [181 Cal.Rptr.3d 169].) “At its most fundamental, ‘[i]ssue preclusion, or collateral estoppel, ” ‘precludes relitigation of issues argued and decided in prior proceedings.’ ” ’ ” (City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 227 [169 Cal.Rptr.3d 51] . . . .)” (Id. at p. 389.) Collateral estoppel applies only if all of the following conditions are met: (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party agаinst whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82 [70 Cal.Rptr.3d 817] (Zevnik).)
Based on those requirements, collateral estoppel does not apply here. Robinson did not allege a UCL violation in Robinson I, and Judge Beeman did not rule that any issues underlying a UCL action—namely, whether UHC‘s noncompetition covenant amounted to an “unlawful, unfair or fraudulent business act or practice“—would be mooted, either by the waiver of all claims against Robinson in Singleton‘s declaration, or by the later and broader disavowal of past practices throughout California, as reflected in Campbell‘s declaration. The issues raised by Robinson‘s UCL claim were different from those raised by his request for declaratory relief in Robinson I, where Robinson alleged fraud in the inducement as a basis for declaring the noncompetition covenant void. For this reason alone we may reject U-Haul‘s collateral estoppel theory. Because the issues in the two casеs were different factually and legally, and the occurrences and declarations which purportedly mooted the issues were different in scope, application of the mootness doctrine in the two cases did not involve identical issues and need not be resolved uniformly. The Campbell declaration was not even in existence at the time Judge Beeman made his mootness ruling in Robinson I, and hence he could not have determined that Campbell‘s declaration mooted the issue of the legality of UHC‘s noncompetition clause under the UCL. Nevertheless,
As noted above, one of the elements of collateral estoppel is that the decision in question be “on the merits.” (Zevnik, supra, 159 Cal.App.4th at p. 82.) A decision that a matter is moot is not a decision on the merits. (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 131–132 [41 Cal.Rptr. 468, 396 P.2d 924].) Quite the opposite, it is a decision that the merits need not be reached because thеre is no longer a live controversy. (Ibid.; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶¶ 5:21 to 5:22, pp. 5-5 to 5-6.) Perhaps one might characterize Judge Beeman‘s ruling as a decision on the merits of mootness, but it is more accurately characterized as a decision not to decide anything. Witkin describes moot cases as “[t]hose in which an actual controversy did exist but, by the passage of time or a change in circumstances, ceased to exist.” (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 21, p. 86.) The preferred disposition of a moot case on appeal is either to dismiss the appeal or to reverse the moot judgment and remand with instructions to the trial court to dismiss the action as moot, so as to avoid having the underlying judgment become subject to res judicata. (See Paul, supra, at pp. 134-135; Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 942-945 [130 Cal.Rptr.3d 520].) Because the mootness decision, by definition, is not a determination on the merits, the mootness determination in Robinson I was not binding on the court in Robinson II.
Indeed, mootness is highly situational and not readily compatible with the concept of estoppel. It is an aspect of justiciability that must be decided independently by each court with respect to the facts and legal issues before it. Accordingly, we conclude that collateral estoppel does not prohibit the injunction entered here. (Cf. Application Group, supra, 61 Cal.App.4th at pp. 884, 892-894, 909 [affirmed declaratory relief in favor of corporate plaintiff despite mootness of individual plaintiff‘s claims]; In re Stinnette (1979) 94 Cal.App.3d 800, 804 [155 Cal.Rptr. 912] [“When a case presents questions of general public interest that are likely to recur, the court may render a decision on the merits even though the issue has become moot as to the particular litigant involved.“].)
5. Exclusion of Savelle Jefferson‘s Testimony
Finally, UHC contends the trial court erroneously excluded evidence that it had voluntarily ceased enforcing its covenant not to sue in California. During
The relevance of Jefferson‘s evidence was slim at best. As explained above, evidence of discontinuance of an illegal practice does not compel the court to reject a request for an injunction. It is only one factor to consider, and it bears little weight if its credibility is doubtful. Even if marginally relevant, the court could have validly considered Jefferson‘s evidence on this point to be of such minimal significance that it could reasonably have been excluded under
More important, assuming for argument‘s sake the court should have allowed the testimony, we would find the error harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; Easterby v. Clark (2009) 171 Cal.App.4th 772, 783 [90 Cal.Rptr.3d 81] [Watson standard applies to evidentiary errors].) Before ruling on the attorney‘s fees issue, the court received the declaration of Campbell, which duplicated in substance the evidence UHC had attempted to elicit from Jefferson. The court referred to Campbell‘s declaration in its order filed January 17, 2014. Thus, it considered but rejected U-Haul‘s argument and evidence that the abandonment of its attempts to enforce the noncompetition clause made injunctive relief unavailable. Jefferson‘s testimony would have been cumulative, and it is unlikely anything he said would have made a difference to Judge Kinnicutt. The exclusion of Jefferson‘s testimony was at worst harmless error.
B. Robinson‘s Late Filing of His Motion for Attorney‘s Fees
Finally, the U-Haul defendants claim they cannot be ordered to pay Robinson‘s attorney‘s fees because he did not follow the proper procedure in seeking his fees award. Again, we disagree and affirm the trial court‘s order.
On September 6, 2013, before judgment was entered, Robinson filed a motion for contractual attorney‘s fees under the dealer contract in connection with his malicious prosecution cause of action. He also claimed in briefing that he was entitled to attorney‘s fees as a private attorney general under
The trial court issued a tentative ruling on October 4, 2013, denying Robinson‘s request for attorney‘s fees because the jury‘s verdict in his favor on the malicious prosecution cause of action was interlocutory, as judgment had not yet been entered on the UCL claim. With regard to Robinson‘s request for attorney‘s fees under
On February 5, 2014, after judgment was entered, Robinson filed a memorandum of costs seeking, amоng other costs, $1,154,738 in attorney‘s fees. UHC responded with a motion to tax costs, arguing that Robinson could not seek attorney‘s fees by way of a memorandum of costs, but instead was required to file a noticed motion. At that time, Robinson still had time to file a motion for attorney‘s fees within the 60 days permitted under California Rules of Court, rule 3.1702(b)(1) [motion must be brought within time allowed for filing notice of appeal].9 But instead Robinson simply opposed the motion to tax costs, arguing that seeking his attorney‘s fees by a memorandum of costs was appropriate because there was “no debate” he was entitled to attorney‘s fees after the final judgment ordered such recovery.
On April 3, 2014, a hearing was held on UHC‘s motion to tax costs. At the hearing, apparently in response to the court‘s tentative ruling, Robinson‘s
On June 19, 2014, the trial court issued its order on UHC‘s motion to tax costs. The court noted it had more than once advised Robinson‘s counsel that his motions for attorney‘s fees were premature and told him he had to refile the motion after final judgment. Yet Robinson had failed to file a motion for attorney‘s fees within the 60 days allowed by rule 3.1702. On that basis the court struck the entire amount requested for attorney‘s fees from Robinson‘s memorandum of costs, without prejudice to a renewed motion if Robinson sought and was granted an extension of time under rule 3.1702(d).
Robinson then filed a motion to extend time to file a motion for attorney‘s fees in which he sought to excuse his failure to timely file his attorney‘s fees motion based on his attorney‘s “mistaken view that the Court had already determined that Robinson was entitled to attorneys’ fees and that therefore any motion for attorneys’ fees would be moot.” Specifically, Robinson‘s counsel stated in a declaration under oath: “The [October 4, 2013] Tentative Ruling appeared to treat Robinson‘s Motion for Attorneys’ Fees concerning his cause of action for Malicious Prosecution separate from his request for attorneys’ fees and related briefing contained in his brief concerning his §17200 Claim. Consequently, I believed that while the former was premature, the latter was accepted as properly filed, and was considered by the Court.” Robinson‘s lawyer continued: “I believed that because the Final Judgment stated that Robinson ‘shall also be’ entitled to attorneys’ fees, the Court had deemed Robinson‘s premature Motions for Attorneys’ Fees as timely filed....”
On January 15, 2015, the trial court granted Robinson‘s motion to extend time, finding Robinson‘s “honest mistake as to the necessity tо file the attorneys’ fees motion” provided good cause to grant him more time under rule 3.1702(d). Robinson followed with a motion for a total of $1,166,430.51 in attorney‘s fees, claiming he was entitled to fees for his malicious prosecution cause of action based on a contractual provision in the dealer contract,
On May 14, 2015, the trial court denied Robinson‘s request for contractual attorney‘s fees because the malicious prosecution claim was one based in tort, not contract. On the other hand, the court granted Robinson‘s request for fees in the amount of $834,008.09 in connection with his UCL claim. It found (1) Robinson had enforced “an important right affecting the public interest, insofar as it furthered the strong California public policy in favor of free markets and against restraint of trade“; (2) Robinson‘s legal action conferred “a significant benefit on the general public or a broad class of persons, namely the many independent dealers in California engaged in the business of renting moving vans or trucks, and the multitude of California residents who move“; and (3) the necessity and financial burden of private enforcement transcended Robinson‘s personal interest in the controversy.
2. The Court Did Not Err in Granting Robinson an Extension of Time
Robinson‘s attorney does not dispute on appeal that he should have moved for an award of attorney‘s fees within 60 days after the clerk of the court served the notice of entry of judgment. (Rules 3.1702(b)(1), 8.104(a).) Still, under the circumstances, we cannot agree with UHC that the court erred in allowing a belated motion. “Rule 3.1702(d) is ‘remedial’ and is to be given a liberal, rather than strict interpretation. [Citation.]” (Lewow v. Surfside III Condominium Owners Assn., Inc. (2012) 203 Cal.App.4th 128, 135 [137 Cal.Rptr.3d 376] (Lewow).) Flexibility is built into rule 3.1702 through subdivision (d), which allows a judge “[f]or good cause” to “extend the time for filing a motion for attorney‘s fees in the absence of a stipulation or for a longer period than allowed by stipulation.” A court may grant a request for extension of time to file a motion for attorney‘s fees even if the motion is not filed until after the deadline for filing an attorney‘s fees motion under rule 3.1702. (Ibid.) Even a claim of inadvertence, if it is not prejudicial, may constitute good cause for a late filing. (Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 381 [115 Cal.Rptr. 648, 525 P.2d 88] (Pollard) [cost bill].)
A litigant faces a steep uphill battle in seeking to reverse a court‘s finding of “good cause” for an extension of time. Perhaps for that reason, UHC argues that the standard regarding an “attorney‘s mistake, inadvertence, surprise, or neglect” under
Where the standard requires “good cause” only, it has been ” ‘equated to a good reason for a party‘s failure to perform that specific requirement [of the statute] from which he seeks to be excused.’ ” (Katz v. Campbell Union High School Dist. (2006) 144 Cal.App.4th 1024, 1036 [50 Cal.Rptr.3d 839].) In the context of a motion to extend time under rule 3.1702(d), we should рay special deference to the trial court‘s view, which was informed by its personal interactions with counsel. Accordingly, a trial court‘s finding of “good cause” is generally reviewed deferentially, solely for abuse of discretion. (People v. Clark (2016) 63 Cal.4th 522, 551 [203 Cal.Rptr.3d 407, 372 P.3d 811] [good cause for criminal trial continuance]; County of Los Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th 944, 949 [185 Cal.Rptr.3d 760] [good cause for extension of time for bail bondsman to produce defendant]; Munroe v. Los Angeles County Civil Service Com. (2009) 173 Cal.App.4th 1295, 1303 [93 Cal.Rptr.3d 716] [deference paid to county agency‘s decision on lack of good cause for late filing of administrative appeal].) This same deferential standard of review applies as well to the court‘s ultimate award of attorney‘s fees under
Although Judge Kinnicutt initially believed he had been clear in advising Robinson‘s counsel to file a motion after judgment, he became convinced after hearing counsel‘s explanation that Robinson‘s counsel had made an “honest mistake” in misconstruing the court‘s earlier pronouncements. The judge‘s factual finding of an “honest mistake” is supported by the attorney‘s declaration. The judge did not abuse his discretion, and in fact exercised it judiciously by first denying fеes requested by the memorandum of costs and later granting leave to file a late motion when counsel provided a satisfactory explanation.
Counsel‘s “honest mistake of law” may constitute good cause under rule 3.1702(d), depending in large part on the reasonableness of the misconception. (See Lewow, supra, 203 Cal.App.4th at p. 135; Community Youth
Furthermore, we see no prejudice to U-Haul resulting from the procedural snafus, and no reason to grant it windfall proteсtion from attorney‘s fees exposure. It knew from before entry of judgment the legal grounds upon which fees were sought and the amount Robinson was seeking (including detailed breakdowns). The fact that there were procedural irregularities provides no basis for invalidating the award where UHC makes no attempt to show prejudice. (Pollard, supra, 12 Cal.3d at p. 381 [“In the absence of prejudice, the trial court has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a cost bill“].)
IV. DISPOSITION
The judgment is affirmed, as is the May 14, 2015 order awarding attorney‘s fees to Robinson. Robinson shall recover his costs on appeal.
Ruvolo, P. J., and Reardon, J., concurred.