FRANSON, J.
A six-year-old boy was bitten by a bat inside a Payless ShoeSource store in a Bakersfield shopping center. The boy's guardian ad litem sued appellant Payless ShoeSource, Inc. (Payless). The action settled for $125,000, with Payless contributing $100,000 and the property owner, respondent Hopper Properties, L.P. (Hopper), contributing the remaining $25,000. Hopper was not named as a defendant in the guardian's action against Payless, but Payless filed a cross-complaint against Hopper for breach of contract and total or partial indemnity. The Payless cross-action was tried to the court without a jury and resulted in a judgment in favor of Hopper (i.e. no recovery for Payless). The judgment included an award to Hopper of $247,480.05 in attorney fees and $10,798.50 in costs. Payless appeals from the judgment against it in its cross-action against Hopper.
Payless contends that the trial court (1) erred in concluding that Payless's lease with landlord Hopper did not require Hopper to indemnify Payless for loss suffered by Payless due to the bat bite. As we shall explain, we find no error in that conclusion. Payless also contends that the trial court (2) erroneously admitted into evidence a Payless response to an interrogatory from the plaintiff in the guardian's underlying action against Payless; (3) abused its discretion in awarding $247,480.05 in attorney fees to Hopper; and (4) the trial court should have disqualified itself from the case, even though no motion for disqualification was ever made in the trial court. As we shall explain, the interrogatory response was inconsequential, there was no abuse of discretion in the attorney fee award, and the court did not err in failing to disqualify itself on its own motion. We affirm the judgment.
Payless's first amended cross-complaint included causes of action for "Breach of Written Contract" (first), "Breach of Contract Implied by Law" (second) and "Total and/or Partial Indemnity" (third). Despite the title of the second cause of action, it alleges that Payless "failed to perform all necessary obligations pursuant to Exhibit A," which is the written lease between tenant Payless and landlord Hopper. Therefore, the second cause of action was in essence duplicative of the first, and as the trial court's statement of decision expressly observed, the first two causes of action "are governed and determined by the terms of the Lease." Payless's first and second causes of action were largely concerned with whether Payless could recover approximately $35,000 it claimed it had expended in remediation of a bat infestation at the store, and another $79,000 for profits Payless claimed it lost when the store was temporarily ordered closed by the County Health Department after the boy was bitten by the bat. The trial court ruled that there was no breach of the lease agreement, but also ruled that Payless had failed to prove its alleged damages for remediation costs and lost profits. Although Payless asserts in its brief on appeal that it incurred these alleged remediation costs and lost profits, Payless has not included in the record on appeal the documentary evidence on which it relied at trial in its attempt to prove these purported damages, and does not contest on this appeal the trial court's finding that Payless failed to prove them. Thus, the only item of damages in issue on this appeal is the $100,000, which the parties stipulated Payless paid to the boy's guardian ad litem in settlement of the guardian's action against Payless.
An indemnity clause in the lease (about which we will say more in our later discussion of that issue) placed responsibility for injuries occurring inside the Payless store on the tenant (Payless) "except to the extent the same are caused by the negligence or willful misconduct of Landlord or its agents, servants, or employees." Payless thus attempted to hold Hopper responsible for the bite by attempting to show that the boy's bat bite was caused by Hopper's negligence. The evidence on that issue was accurately summarized in the court's statement of decision as follows:
"Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred. [Citation.] This obligation may be expressly provided for by contract [citation], it may be implied from a contract not specifically mentioning indemnity [citation], or it may arise from the equities of particular circumstances [citations]. Where ... the parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity. [Citation.]" (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628.) The lease's indemnity clause, at Section 10.01 of the lease, states:
Section 10.04 of the lease, mentioned in Section 10.01, pertains to a waiver by the parties of rights each may have against the other for damage to property arising from "a loss covered or which would generally be covered by all risk or fire and extended coverage insurance." Neither party contends that Section 10.04 applies in this case to exempt Hopper from any liability it might otherwise have, so we need say nothing more about Section 10.04.
Hopper made no contention in this case that the $100,000 paid by Payless in the settlement with the injured boy's guardian was not a Payless "liabilit[y] due to ... injury to person(s)" within the meaning of Section 10.01 of the lease. When a party seeking indemnity (here Payless) has settled a claim by a third party (here the boy's guardian ad litem), "[t]he settlement is presumptive evidence of liability of the indemnitee and of the amount of liability" to that third party. (Peter Culley & Associates v. Superior Court (1992) 10 Cal.App.4th 1484, 1497.) This presumption may be overcome by proof from the party from whom indemnity is sought (here Hopper) that the settlement was unreasonable (ibid.), but Hopper attempted no such showing here.
The trial court correctly noted that under Section 10.01 of the lease, the "premises" is defined to include the "store building," which is where the injury to the boy occurred, and that under the third sentence of Section 10.01 of the lease, the tenant (Payless) is responsible for injury to a person "occurring in the Premises, except to the extent the same are caused by the negligence or willful misconduct of Landlord or its agents, servants or employees." Payless made no contention or showing that there was any willful misconduct by Hopper. Instead, Payless contended that Hopper's negligence in failing to remedy the bat infestation before the May 16, 2006, bat bite was the cause of the boy's injury. The trial court, as the trier of fact, concluded otherwise. Notwithstanding the evidence presented at trial showing that Payless's own actions exhibited an acknowledgment of its (not Hopper's) responsibility to eliminate the bat infestation in or behind the Payless sign, Payless contends that the court erred in concluding that "Payless, not Hopper, was responsible under the Lease for removing the bats living in or behind the sign."
Just as it did in the trial court, Payless cites various provisions of the lease and argues that these various provisions require a conclusion that Hopper, not Payless, was responsible for removal of the bats. We need not dwell on this contention in any detail because the trial court further concluded, as the trier of fact, that even if Hopper had some obligation under the lease to remove the bat infestation, the failure to remove the bat infestation was not the cause of the bat bite. The court's statement of decision stated "the evidence which would appear to most closely touch on the issue of causation, the open front doors of the Payless' store, suggests that Payless is here responsible. [¶] Payless presented no evidence that the bats entered the store anywhere but through the front doors. Payless was responsible for maintaining the doors under the Lease." The evidence showed that Payless kept its front door open during business hours, and included photographic evidence of the open front door. The door was located directly below the "Payless ShoeSource" sign on the front of the building, and was left open despite Payless's knowledge, for at least several weeks before the May 16, 2006, bat bite, of a bat infestation in or behind the sign above the front door. In order for Payless to be indemnified by Hopper under Section 10.01 of the lease, Payless had to demonstrate that its loss was "caused by the negligence ... of Landlord ...." Payless failed to prove this causation, and thus was not entitled to be indemnified by landlord Hopper.
Payless contends the court erred in admitting into evidence its answer to a form interrogatory propounded to it by the boy's guardian in the main action against Payless. Because the cross-complaint is a different action from the underlying personal injury complaint (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 134), Payless appears to be correct. More importantly, however, any error in the admission of the interrogatory response was clearly harmless. We restate here three basic principles of appellate review.
First, "[t]he burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal." (Coleman v. Farwell (1929) 206 Cal. 740, 741.)
Second, error is not prejudicial unless it results in a miscarriage of justice. Article 6, section 13 of the California Constitution states: "No judgment shall be set aside ... in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." Similarly, with regard to erroneous admission of evidence, Evidence Code section 353 states: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] ... [¶] (b) The court which passes upon the effect of the error or errors is of the opinion ... that the error or errors complained of resulted in a miscarriage of justice." (In accord, see also People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; and People v. Champion (1995) 9 Cal.4th 879, 918.)
Third, a "`miscarriage of justice' should be declared only when the court, `after an examination of the entire cause, including the evidence,' is of the `opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; in accord, see also Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) "We have made clear that a `probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; in accord, see also Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682.) This "so-called Watson standard applies generally to all manner of trial errors occurring under California law, precluding reversal unless the error resulted in a miscarriage of justice." (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 801; see also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Thus, "[a]lthough the Watson standard is most frequently applied in criminal cases, it applies in civil cases as well." (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 801.)
Payless makes no showing that there is a reasonable probability it would have obtained a more favorable result in the absence of the error. Payless has not even included the subject interrogatory and response in the record on appeal. The reporter's transcript of the trial suggests that Payless's answer to form interrogatory 15.1 related to the tenth affirmative defense Payless raised in the guardian's action: that "the alleged condition of the property set forth in plaintiff's complaint did not constitute substantial risk of injury but if any risk at all had existed it constituted merely a minor trivial or insignificant risk which did not create a dangerous condition of property and therefore these defendants are not liable for any of the alleged damages." Payless's objection to the interrogatory answer was "[r]elevance as this response [is] to plaintiff's first amended complaint, not the issues that we're here to discuss today." The court ruled "[f]or whatever it is worth, which is probably not a whole lot, I'm going to overrule the objection and I will consider the ... affirmative defense." Payless argues on appeal that the trial court relied on this interrogatory to conclude or to "imply" that Payless's settlement with the boy's guardian was "voluntary" and thus was not a "liability" within the meaning of Section 10.01 of the lease, but the trial court never so ruled, nor did Hopper ever so contend. The trial court even expressly remarked at trial, "I don't ... think ... that anybody acted as a volunteer." The issue at trial was who, Payless or Hopper, was responsible for the settlement paid by Payless to the plaintiff in settlement of the plaintiff's personal injury action, not whether that payment was a "liability" within the meaning of Section 10.01 of the lease. The fact of the settlement itself, unrebutted by any attempt to show that the settlement was unreasonable, was conclusive proof that the settlement was a "liability." (Peter Culley & Associates v. Superior Court, supra, 10 Cal.App.4th 1484.)
Section 22.06 of the lease pertains to attorney fees. It states:
Hopper moved for an award of attorney fees. It sought $262,882.05 in attorney fees, and the court awarded $247,480.05. The court explained that it viewed the approximately $15,000 difference between the amount billed by Hopper's attorneys (the $262.882.05) and the amount actually paid to them (the $247,480.05) as an "agreement" between lawyer and client that the approximately $15,000 difference was not actually incurred by the client, and the court thus awarded the lower amount.
"A trial court's exercise of discretion concerning an award of attorney fees will not be reversed unless there is a manifest abuse of discretion." (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239 (Nichols).) None appears here. The court considered attorney declarations and detailed billing records. It considered Hopper's motion; Payless's written opposition to the motion; Hopper's reply to that opposition, with that reply including 52 pages of detailed itemized billing records Payless had complained it did not previously have; a supplemental written opposition from Payless; and a supplemental written reply from Hopper. The court held a hearing on the motion, and listened to an oral presentation of the parties' arguments. Payless went through the 52 pages of itemized billing, selected various items listed, and argued that the Hopper attorneys should have expended less time than they did, or should have billed at a lower rate. The court was entirely within its discretion to reject Payless's contentions, and to award, as it did, an amount of attorney fees calculated by "the number of hours reasonably expended multiplied by the reasonable hourly rate." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The court could reasonably have awarded the entire amount requested but, apparently wanting to be sure that the fees it would award had been "incurred," awarded only the billed fees that had actually been paid.
Five different attorneys from the firm representing Hopper worked on the case. They each had different billing rates, with the rates ranging from a high of $320 per hour to a low of $205. Payless observes that in Nichols, which was a case from Kern County, we mentioned "the local rate of $250 per hour" (Nichols, supra, 155 Cal.App.4th at p. 1238) and argues that this means a reasonable attorney rate in Kern County cannot exceed $250 per hour. Nothing in Nichols so holds. Our reference in Nichols to the local rate in Kern County was simply a reference to declarations which were presented in that case so stating. (See Nichols, supra, 155 Cal.App.4th at pp. 1237-1238.) "Opinions are not authority for issues they do not consider." (Palmer v. Ted Stevens Honda, Inc. (1987) 193 Cal.App.3d 530, 539; Stoll v. Shuff (1994) 22 Cal.App.4th 22, 27.) The declaration of attorney David J. Cooper in this case is different than the declarations submitted in Nichols, and expressly sets forth the rates charged by the attorneys involved. "The `experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong' — meaning that it abused its discretion." (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) The trial judge stated at the attorney fee hearing, "[t]here is no doubt in my mind that the dollar amount being charged, the hourly rate being charged is certainly within the marketplace in Kern County." Hopper also pointed out that the total amount billed divided by the total number of hours billed resulted in an average hourly rate of $248. This shows that most of the work was done by the lower cost attorneys (and also, in this case, by an experienced paralegal who billed at a rate much lower than the attorneys).
The court further noted, as do we, that "this case ... has been very strenuously litigated by Payless from the beginning." It is apparent that much of the work done by Hopper's counsel was done in response to requests made and procedures initiated by Payless. If a party chooses to litigate a case tenaciously tenaciously and ultimately loses, that party cannot be heard to complain about the time spent responding by the other side. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.) A court making an attorney fee award may also take into consideration "the skill employed" by the attorneys and their "success or failure." (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096) Hopper was successful in the litigation, and the quality of the representation provided by their counsel was consistently excellent. There was no abuse of discretion in the award of attorney fees.
Prior to the start of the trial in this matter, the trial court judge disclosed to counsel for Payless that he (the judge) had previously been in the private practice of law with one of the attorneys — Mr. Gary Logan — currently with the firm representing Hopper.
During the course of the trial, counsel for Payless was reading into the record a portion of the deposition testimony of a man named John Ritchie. Ritchie was vice-president of an entity called JACO Real Estate Group (JACO). The exact nature of JACO's business relationship with Hopper is not clear, but JACO appears to have been responsible for hiring M.D. Atkinson as the property manager for the shopping center. While counsel for Payless was reading from Ritchie's deposition testimony, the following occurred:
The trial then resumed. Ultimately, the court awarded nothing to Payless on the Payless cross-complaint and entered judgment in favor of Hopper.
Now, after having lost the case, Payless attempts to raise on appeal and for the first time an argument that the trial judge should have disqualified himself from the case because of the relationships he disclosed. "The matter of disqualification should be raised when the facts constituting the grounds for disqualification are first discovered and, in any event, before the matter involved is submitted for decision. [Citation.] This rule applies ... when the facts constituting the disqualification are discovered before a case is submitted for decision. The rule rests on the principle that a party may not gamble on a favorable decision." (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424-425.) Payless gambled and lost. This court will not provide it with a new stack of chips. We further observe that nothing in the record on appeal appears to us to show the existence of a ground for disqualification of the trial judge. "A judge shall be disqualified if ... [¶] ... [¶] (6)(A) For any reason [¶] ... [¶] (ii) The judge believes there is a substantial doubt as to his or her capacity to be impartial." (Code Civ. Proc., § 170.1, subd. (a)(6)(A).) After making his disclosures, Judge Palmer stated "I don't think I'm disqualified." Thus, the trial judge did not have a substantial doubt about his capacity to be impartial. Payless cites a number of statutory provisions and cases pertaining to disqualification, but points to no actual facts which would have furnished a valid ground for disqualification.
The judgment is affirmed. Costs on appeal are awarded to respondent.
WE CONCUR:
Wiseman, Acting P.J.
Detjen, J.
