FYBEL, J.
After a bench trial, the trial court found Lake Forest BodyCentre (the BodyCentre) to be a public nuisance, and to be in violation of California's Red Light Abatement Law (Pen. Code, § 11225 et seq.). The court issued a permanent injunction prohibiting the parties from operating the BodyCentre for purposes of prostitution, lewdness, or assignation, and entered an abatement order closing the business for one year. The owners and managers of the BodyCentre were assessed civil penalties, and were ordered to pay attorney fees to the City of Lake Forest (the City), which had pursued the nuisance action. This appeal ensued.
We affirm the judgment. Substantial evidence supported the trial court's findings that the BodyCentre constituted a public nuisance and violated the Red Light Abatement Law. An earlier unlawful detainer action against the BodyCentre by its landlord did not act as collateral estoppel or res judicata barring the nuisance action. None of the other arguments raised on appeal of the judgment has merit.
The postjudgment order awarding attorney fees and costs is affirmed in part and reversed in part. The award of costs in favor of the City is affirmed. The portion of the order granting the motion for attorney fees, however, must be reversed. The City failed to meet its initial burden to establish the reasonableness of the fees sought. The trial court specifically found that the billing statements offered in support of the motion were "redacted beyond comprehension." The court erred by awarding attorney fees based on the record, which contained incomprehensible billing statements and was otherwise insufficient.
The BodyCentre is a massage establishment located in the City. Christine Vo owned the BodyCentre until 2000, and has remained one of its managers. Charlie Abujudeh bought the BodyCentre from Vo in 2000. In 2007, after the City notified Abujudeh of its intent to revoke his massage establishment license, Abujudeh purported to transfer his interest in the BodyCentre to Julie Ho, contingent on Ho obtaining a license to operate it as a massage establishment. Ho is Abujudeh's sister-in-law, and is also Vo's daughter.
Aubrey Cardarella began working at the BodyCentre in April 2005. Cardarella used the name Krystal while at work. On her first day of work, a customer asked Cardarella to masturbate him. When she refused, Vo "scolded" her and threatened not to provide Cardarella with customers. Cardarella testified, "[e]very single customer who came there asked me the same kind of [sexual] favor." Customers also asked Cardarella to engage in sexual intercourse. If Cardarella refused to perform a sexual service, the customer would get mad, and she would see him talk to Vo. Cardarella eventually decided to perform sexual acts for customers, because she needed the money and feared being fired. The customers for whom Cardarella performed sexual acts returned to see her "[v]ery frequently."
Cardarella was arrested for performing sexual acts at the BodyCentre, and ultimately pled guilty to one count of violating Penal Code section 647, subdivision (b)—solicitation of or engaging in an act of prostitution. Vo called Cardarella and asked her to come back to work after her arrest. Cardarella worked for three more months, but then quit "[b]ecause I got scared, and I realized that if I—if something happened to me again, I won't be around to raise my daughter."
From May through July 2006, the Orange County Sheriff's Department conducted an undercover investigation of the BodyCentre. On May 24, 2006, sergeant Kevin Bieker made an appointment for a massage at the BodyCentre; he identified the massage technician as Cardarella. Inside the massage room, Bieker undressed, lay face down on the table, and covered his buttocks with a pillowcase. While performing the massage, Cardarella removed the pillowcase and massaged Bieker's buttocks. When Cardarella asked Bieker if he wanted her to focus on any particular part of his body, he pointed to his crotch. Cardarella told him she could not do that, because she was concerned she would get fired.
Bieker made another appointment with Cardarella on May 30, 2006. Cardarella again removed the pillowcase covering Bieker's buttocks during the massage. Bieker testified, "she continued to massage like we call it [the] gluteal fold right between the cheeks of your buttocks," and continued "all the way down to [the] anus, occasionally [brushing] up against [the] scrotum." Cardarella had Bieker turn over on the table, placed the pillowcase over his genitals, and continued the massage. Bieker testified Cardarella "said something to the effect, I think she said `you want,' as she was like pointing looking at my crotch." Bieker said yes, so Cardarella removed the pillowcase, got some oil, and began masturbating him. Bieker asked how much, and Cardarella indicated $40. After a few seconds, Bieker sat up and told Cardarella he wanted to have sex with her. Cardarella told him it would cost $100. Bieker told her he did not have enough money, so she should just finish the regular massage. Cardarella offered to finish masturbating him, but Bieker said he would wait until "next time." Bieker asked Cardarella about the next time, and "[s]he said something to the effect of have sex. And I said yes. And then she nodded her head yes."
Bieker obtained another appointment on June 9, 2006, with "Julia," whom he later identified as Jaclyn Ledinh. Bieker undressed, lay face down on the massage table, and placed a pillowcase over his buttocks. When Ledinh came into the massage room, she removed the pillowcase, and straddled Bieker's back as she gave him a massage. Ledinh massaged "down along between the cheeks of my buttocks, all the way down," massaged Bieker's bare buttocks, and "when she was between my legs, she brushed up against my scrotum a couple times." Ledinh had Bieker turn over, while he was still uncovered. She offered to masturbate him for $40, and Bieker said "sure." Ledinh began to massage his genitals. Bieker stopped Ledinh by claiming to have recently passed a kidney stone, and told her, "[w]hat I really wanted was oral sex. I pointed to her mouth." Ledinh responded that oral sex was $80, but Bieker said he did not have enough money, and she should just continue the regular massage. Ledinh also told Bieker he could have sex for $100.
On July 14, 2006, sergeant Joseph Balicki received a massage from Xiao Ping Feng. Feng removed the sheet covering Balicki, revealing his buttocks, and massaged his buttocks. Feng also began masturbating Balicki. Later that day, the Orange County Sheriff's Department made an enforcement visit to the BodyCentre. Six arrests were made: Cardarella and Ledinh were arrested for solicitation of prostitution, and four other employees were arrested for other offenses, such as performing massages without a license and resisting or obstructing a peace officer. As noted ante, Cardarella pled guilty to one count of violating Penal Code section 647, subdivision (b). Ledinh was convicted by a jury of violating the same statute.
On April 17, 2007, the City notified Abujudeh of its intent to revoke his license to operate a massage establishment. In June 2007, Abujudeh transferred the ownership of the BodyCentre to Ho. An administrative hearing officer revoked Abujudeh's license on June 28. On August 7, the city council upheld the revocation.
In October 2007, the sheriff's department began a second undercover investigation of the BodyCentre. On October 4, Yue Cui gave a massage to investigator John Gentile, during which she massaged Gentile's exposed buttocks. On October 11, Khiem Pham gave Gentile a massage, during which she failed to cover Gentile with a towel, massaged his exposed buttocks and genitals, agreed to and did masturbate Gentile in exchange for money, and exposed her breasts to Gentile in exchange for money. On the same day, investigator Jim Horne received a massage from Feng, during which she exposed and massaged Horne's buttocks and genitals. Also on the same day, investigator Brad Fowler received a massage from Sharon Hanh Doan. Doan exposed and massaged Fowler's buttocks and genitals; agreed to and did masturbate Fowler; removed her smock to reveal her panties and brassiere, which exposed part of her breasts; and climbed on top of Fowler and rubbed her body against his in a grinding motion.
The sheriff's department conducted another enforcement visit to the BodyCentre on October 11, 2007, during which Doan was arrested for solicitation of prostitution and performing a massage without a valid license.
A third undercover investigation of the BodyCentre was conducted in January 2008. On January 31, Huong Begley gave a massage to Fullerton Police Officer Jose Flores. During the massage, Begley removed the towel covering Flores's buttocks, leaving him completely nude, and massaged his buttocks. After the massage, Flores asked Begley if she performed "full service" massages. Begley responded that Flores should be quiet and they could not do that "right now" because the police might come to the BodyCentre. Begley was not licensed as a massage technician on January 31, 2008.
On the same day, Feng gave a massage to Fullerton Police Detective Adam Park. Feng exposed and massaged Park's buttocks. Feng also touched Park's penis through a towel. Park thought this action indicated Feng was trying to determine if he "wanted to continue with anything possibly in a sexual nature." But when Park asked, "how much," Feng said, "I don't do that."
A third enforcement visit occurred on January 31, 2008. In addition to Begley, three others working at the BodyCentre that day lacked a valid massage technician's license. Vo claimed they were working under the chiropractor's license exception. However, no chiropractor was on the premises, and no medical paperwork was found for the customers serviced by the unlicensed massage technicians.
On January 8, 2008, the City advised Ho of its intent to revoke her massage establishment license. An administrative hearing officer revoked Ho's license, and the city council upheld the revocation.
In November 2007, the City sued the BodyCentre, Ho, Abujudeh, El Toro Plaza, L.P. (El Toro) (the BodyCentre's landlord), and Vo to abate a public nuisance (the public nuisance action).
In February 2008, El Toro provided a three-day notice to quit the premises to Ho, Vo, and Abujudeh. In the notice, El Toro claimed Ho, Vo, and Abujudeh had violated paragraph 5 of the parties' lease through the following: "The use of the Premises for an unlawful purpose, i.e. criminal activities (prostitution and solicitation); [¶] Massages performed by unlicensed individuals; [¶] Maintaining, committing, or permitting the maintenance or commission of a nuisance upon the Premises; [¶] Violating or permitting the violation of the Lake Forest Municipal Code; [¶] Violating or permitting the violation of the Red Light Abatement Act; [¶] Engaging in or allowing conduct that injures the reputation of the Premises and of the property of which the Premises is a part." El Toro filed an unlawful detainer complaint against Ho, Vo, and Abujudeh in March 2008 (the unlawful detainer action).
Following a bench trial in the unlawful detainer action, the court ruled that El Toro had failed to prove a violation of the lease by a preponderance of the evidence. The court also found that Ho, Vo, and Abujudeh had proven by a preponderance of the evidence that El Toro was barred by waiver and estoppel from prosecuting the unlawful detainer action. The court did so on the grounds (1) El Toro knew at the time the lease was renegotiated in July 2007 that Abujudeh's license had been revoked; and (2) in August 2007, El Toro was advised in writing by the City of its investigation of the BodyCentre, and of the municipal code and Penal Code violations that had occurred, but did not take action and continued to accept rent from Ho, Vo, and Abujudeh, until February 2008. Additionally, the court found Ho, Vo, and Abujudeh had abated any alleged unlawful activities, because no evidence of any violations after October 11, 2007 was presented at the trial of the unlawful detainer action. Finally, the court found that the three-day notice to quit was not precise or clear. The court therefore entered judgment in favor of Ho, Vo, and Abujudeh on October 7, 2008. One week after judgment was entered in the unlawful detainer action, the City dismissed El Toro from the public nuisance action.
After a bench trial in the public nuisance action, the court found the BodyCentre to be a public nuisance, and to be in violation of the Red Light Abatement Law. The court entered judgment against the BodyCentre, Ho, Vo, and Abujudeh on January 29, 2010, permanently enjoining them, "their agents, officers, employees, anyone acting on their behalf, and their heirs and assignees, from using, conducting, allowing, permitting, or granting permission to make use of the Lake Forest BodyCentre or the premises where it is located . . . for purposes of prostitution, lewdness, or assignation." The judgment included an abatement order that closed the BodyCentre for one year, during which time it would remain within the court's custody. The court further directed that all fixtures and moveable property used in conducting the nuisance, including massage tables, massage supplies, table showers, office supplies, furniture, and appliances, must be removed and sold. A 19-page statement of decision was also filed by the trial court on the same date.
The trial court assessed civil penalties of $25,000 each against the BodyCentre, Abujudeh, Ho, and Vo, pursuant to Penal Code section 11230, subdivision (b). The court also granted the City's motion for attorney fees pursuant to Civil Code section 3496, subdivision (b), and awarded the City its attorney fees in the total sum of $456,962.11.
The BodyCentre, Ho, Vo, and Abujudeh timely appealed. In October 2011, Ho moved to dismiss her appeal. We will refer to Ho in the remainder of the opinion only as necessary. In the remainder of this opinion, we will refer to the BodyCentre, Vo, and Abujudeh collectively as Appellants.
Appellants argue that the judgment must be reversed because the trial court failed to make four requested findings in its statement of decision.
The "`fail[ure] to make findings on a material issue which would fairly disclose the trial court's determination'" may result in reversible error. (Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) However, if the judgment is otherwise supported by the evidence, it will not be reversed unless the omitted finding would trump other findings and is supported by substantial evidence. (Ibid.) The trial court is not required to address every issue identified in a request for a statement of decision; only the principal controverted issues need be addressed. (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.) Principal or material issues are those "which [are] relevant and essential to the judgment and closely and directly related to the trial court's determination of the ultimate issues in the case." (Kuffel v. Seaside Oil Co. (1977) 69 Cal.App.3d 555, 565.) The trial court is not required to address how it resolved intermediate evidentiary conflicts during trial. (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1126.)
The first requested finding reads: "40. What is the legal effect and consequences of plaintiff's dismissal of the landlord, El Toro Plaza, L[.]P. with prejudice." Appellants contend the trial court was required to make a finding on this issue because they "needed a determination that, given [the] Landlord's dismissal from the case, there should ha[ve] been no prohibition against allowing a new user or tenant to occupy the premises." The judgment states, in relevant part: "Pursuant to California Penal Code section 11230(a)(1), an order of abatement hereby issues, to close the Lake Forest BodyCentre for a period of one year, during which time [the BodyCentre, Abujudeh, Ho, and Vo], their agents, officers, employees, anyone acting on their behalf, their heirs and assignees, successors in interest, and subsequent owners, commercial lessees or agents who acquire the Lake Forest BodyCentre or the premises where it is located—the property located at 23331 El Toro Road, Suite 100, Lake Forest, California—shall be enjoined from using, conducting, allowing, permitting, or granting permission to make use of the Lake Forest BodyCentre or said premises for any purpose whatsoever." The judgment further provides that during the one-year period, the premises would remain in the custody of the trial court. Implicit in the judgment is a clear determination that there should be and was a prohibition against a new tenant occupying the premises, which is consistent with the language of Penal Code section 11230. Any failure to make a specific finding on this issue is harmless.
The three remaining findings that Appellants complain were not included in the statement of decision relate to the effect of the three warrantless entries of the BodyCentre by the sheriff's department.
Throughout their opening appellate brief, Appellants point to findings in the statement of decision, which they contend are inaccurate, or unsupported by evidence. Appellants do not explain how the inclusion of any of those factual findings prejudiced them. Nevertheless, we have not considered those findings in analyzing whether the judgment is supported by the evidence.
Appellants argue there was insufficient evidence as a matter of law to support the trial court's finding that they violated the Red Light Abatement Law. The Red Light Abatement Law provides, in relevant part: "Every building or place used for the purpose of . . . lewdness, assignation, or prostitution, and every building or place in or upon which acts of . . . lewdness, assignation, or prostitution, are held or occur, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance." (Pen. Code, § 11225, subd. (a).)
Appellants contend that because acts of prostitution were not habitually practiced at the BodyCentre, no Red Light Abatement Law violation occurred. They cite several cases in which the number of lewd acts or acts of prostitution was far greater than in the present case. (See People v. Pacific Landmark, LLC (2005) 129 Cal.App.4th 1203, 1208 [36 arrests for prostitution and other related offenses during course of 16 months]; City of Signal Hill v. Owens (1984) 154 Cal.App.3d 118, 121 [11 arrests for prostitution in one year]; People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1983) 33 Cal.3d 328, 331 (American Art) [building was "`nerve center'" for prostitution, although no sexual acts occurred there]; People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46, 48 & fn. 1 [46 arrests for indecent exposure, or soliciting or engaging in lewd acts in public].) None of these cases, however, sets a minimum number of arrests for prostitution or acts of lewdness, which are required to justify the application of the Red Light Abatement Law. The statute itself does not use the "`habitually practiced'" language that has been read into it by some cases. (See, e.g., People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 61; People v. Barbiere (1917) 33 Cal.App. 770, 775.) The use of the word "acts" in the statute means that more than one act of lewdness, assignation, or prostitution must be shown. (People ex rel. Hicks v. Sarong Gals, supra, at p. 50 ["A single incident of prostitution is insufficient to bring a building under the Red Light Abatement Law"].) There was evidence before the trial court of far more than a single act of lewdness or prostitution.
A recent case interpreting the Unlawful Liquor Sale Abatement Law (Pen. Code, § 11200 et seq.) is instructive. The language of that statute, which tracks the language of the Red Light Abatement Law, reads as follows: "Every building or place used for the purpose of unlawfully selling, serving or giving away any spirituous, vinous, malt or other alcoholic liquor, and every building or place in or upon which such liquors are unlawfully sold, served or given away, is a nuisance which shall be enjoined, abated and prevented, whether it is a public or private nuisance." (Pen. Code, § 11200.)
In People v. Schlimbach (2011) 193 Cal.App.4th 1132, the state brought an action against a restaurant/bar for selling alcohol to obviously intoxicated patrons, and the trial court granted summary judgment against the restaurant. On appeal, Schlimbach, the owner of the restaurant/bar, argued, "a few isolated incidents do not establish that the property was `used for the purpose' of unlawful alcohol sales." (Id. at pp. 1139-1140.)
The court explained: "Schlimbach, focusing solely on the first clause of [Penal Code section 11200], argues that her bar could not be `used for the purpose' of unlawfully selling alcohol when there were only a handful of unlawful sales among (presumably) tens of thousands of lawful sales. `Used for the purpose,' according to Schlimbach, must refer to a primary use of the building, not an incidental one. Yet even if Schlimbach were correct in this interpretation, she overlooks the remainder of the statutory language, which also declares as a nuisance any building `in . . . which such liquors are unlawfully sold.' While `used for the purpose' could conceivably relate to a primary use, `in . . . which' simply refers to the events taking place at the location. Thus, even if Le Blanc Café was not primarily used for the unlawful sale of alcohol, the five undisputed incidents of unlawful alcohol sales establish that Le Blanc Café was a location in which alcohol was unlawfully sold. Moreover, it is not simply that five unlawful sales of alcohol occurred at the location which rendered it a nuisance. These sales occurred after the police had contacted Schlimbach and provided [Standardized Training for Alcohol Retailers] training for her staff. In addition to these sales, there were many incidents of drunk driving in which the driver indicated that he or she had been drinking at Le Blanc Café. Police also received numerous complaints from neighboring residents and businesses. Taken together, this is not a situation in which an injunction was sought because of five isolated incidents. The evidence demonstrates that Le Blanc Café was a place where, as a matter of course, alcohol was sold to obviously intoxicated people, and constituted a nuisance. Thus the location was described by the statute." (People v. Schlimbach, supra, 193 Cal.App.4th at pp. 1142-1143.)
Similarly, in this case, there was ample evidence that, under the Red Light Abatement Law, the BodyCentre was a place in which acts of lewdness, assignation, or prostitution had occurred as a matter of course, and was therefore a nuisance. The testimony of Cardarella and the undercover peace officers amply established that, at a minimum, multiple acts of lewdness had occurred at the BodyCentre. That some of those acts occurred after one or more enforcement visits by the sheriff's department, after the City revoked Abujudeh's license to operate the BodyCentre, and after the public nuisance action was filed, is further evidence the public nuisance action was based on sufficient evidentiary support.
Appellants also argue the evidence supporting the Red Light Abatement Law violation was too weak, because it was based primarily on the uncorroborated testimony of one former employee—Cardarella. Appellants are wrong. Cardarella's testimony was corroborated by the observations and experiences testified to by officers Bieker, Balicki, Gentile, Horne, Fowler, Flores, and Park. Many of those incidents occurred after one or both of the first two enforcement visits of the BodyCentre. And, although only two arrests for prostitution were made, numerous other arrests were made and citations issued for other legal violations.
Appellants argue the public nuisance action was barred by the equitable defenses of res judicata and collateral estoppel. The applicability of these doctrines is a question of law that we review de novo. (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1561 & fn. 18.)
"`As generally understood, "[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy." [Citation.] . . . "In its primary aspect," commonly known as claim preclusion, it "operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]" [Citation.] . . . "The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]"' [Citation.]" (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.)
"`Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings.' [Citation.] The doctrine applies `only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] The party asserting collateral estoppel bears the burden of establishing these requirements.' [Citation.] `Even assuming all the threshold requirements are satisfied, however, our analysis is not at an end. We have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting.' [Citation.]" (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943-944.)
The success on the merits by Ho, Vo, and Abujudeh in the unlawful detainer action brought by El Toro does not bar the public nuisance action under either res judicata or collateral estoppel, for reasons we will explain.
The City was not a party to the unlawful detainer action. Appellants contend the City was nevertheless in legal privity with El Toro. "The concept of privity for the purposes of res judicata or collateral estoppel refers `to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights [citations] and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is "sufficiently close" so as to justify application of the doctrine of collateral estoppel. [Citations.]' [Citations.] `"This requirement of identity of parties or privity is a requirement of due process of law." [Citation.] "Due process requires that the nonparty have had an identity or community of interest with, and adequate representation by, the . . . party in the first action. [Citations.] The circumstances must also have been such that the nonparty should reasonably have expected to be bound by the prior adjudication. . . ."' [Citations.] [¶] Our Supreme Court has recognized that: `Privity is not susceptible of a neat definition, and determination of whether it exists is not a cut-and-dried exercise. [Citations.]' [Citations.] In the final analysis, the determination of privity depends upon the fairness of binding appellant with the result obtained in earlier proceedings in which it did not participate. [Citation.] `"Whether someone is in privity with the actual parties requires close examination of the circumstances of each case." [Citation.]' [Citation.] The issue of privity before us is a legal one, presented on undisputed facts, so we undertake a de novo review of the trial court's decision. [Citation.]" (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1069-1070 (Citizens).)
In Citizens, the appellate court concluded a public interest group's complaint for implied dedication of a public recreational easement was barred by res judicata due to a settlement agreement and subsequent judgments in two lawsuits to which the public interest group had not been a party. (Citizens, supra, 60 Cal.App.4th at pp. 1058, 1062.) The California Attorney General, the California Coastal Commission, and the State Lands Commission had represented the public as a whole in litigating the other two lawsuits, and entering the settlement agreement, and, therefore, had represented the public interest group. (Id. at p. 1070.) Because those state agencies had "zealously pursued the rights of the public to use the Bolinas Sandspit," the settlement agreement and final judgments had a preclusive effect over the public interest group's later action for the same rights of access. (Id. at p. 1072.)
The adequacy of representation by the party in the first lawsuit is measured "`by inference, examining whether the . . . party in the suit which is asserted to have a preclusive effect had the same interest as the party to be precluded, and whether that . . . party had a strong motive to assert that interest.'" (Citizens, supra, 60 Cal.App.4th at p. 1071.) Did El Toro have the same interest in the unlawful detainer action as the City had in the public nuisance action? The answer is no. There is not sufficient evidence before us that El Toro and the City had a community of interest in the unlawful detainer action, that the City's rights were being adjudicated in the unlawful detainer action, or that El Toro was providing adequate representation of the City's interests, if any.
This case stands in contrast to Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 680, where a private, nonprofit organization whose mission was to "protect[] the public from, and educat[e] the public about, harmful products and business practices," sued ExxonMobil (and other oil companies) on behalf of the public for violating Proposition 65 (the first lawsuit). A second lawsuit was filed by another consumer interest group, also purporting to act on behalf of the public; the court approved a settlement of the second lawsuit. (Consumer Advocacy Group, Inc. v. ExxonMobil Corp., supra, at pp. 680-681.) In the first lawsuit, the appellate court reversed summary judgment, which had been granted based on res judicata, but concluded the parties were in privity, because the plaintiff in the second lawsuit "was representing the interests of the general public, not just its own interests." (Id. at p. 692.) In the present case, El Toro was not representing the interests of the general public in the unlawful detainer action, but rather was representing its own interests to recover possession of the property.
Also distinguishable is California Physicians' Service v. Aoki Diabetes Research Institute (2008) 163 Cal.App.4th 1506, 1510, in which a health care provider sued Blue Shield for breach of contract, seeking reimbursement for medical services provided to Blue Shield's members. The trial court collaterally estopped Blue Shield from arguing the provider's services were experimental and therefore not covered by the plan, because a prior administrative proceeding had determined the services were not experimental. (Ibid.) Blue Shield was not a party to that prior administrative proceeding. (Id. at p. 1521.) The parties to the administrative proceeding were the California Public Employees' Retirement System (CalPERS) and self-funded preferred provider organizations created by CalPERS for its members, for which Blue Shield served as a third party administrator for approval, processing, and payment of health care insurance claims. (Id. at pp. 1518-1519.) Blue Shield determined in 1998 that the provider's treatments were experimental and stopped paying for them, causing subscribers to contest the coverage decisions through the administrative proceeding. (Id. at p. 1519.)
The appellate court affirmed the trial court's decision that collateral estoppel barred Blue Shield from relitigating the experimental nature of the treatments in the later litigation. As is relevant to this discussion, the appellate court held, "Blue Shield had an identity or community of interest with CalPERS. As the trial court noted, `Blue Shield was the health plan administrator for CalPERS and as the administrator, Blue Shield stood in for CalPERS and made coverage decisions which were at issue in the prior proceedings. The denial of coverage for [the treatments] was the same, simultaneous decision that Blue Shield made with respect to its own insured members. Moreover, the interests of Blue Shield in the present action, and CalPERS in the prior action, were the same community of interests. Both parties' interests were to deny coverage and payment for [the treatment] to members for services provided by [the health care provider].' The administrative law judge also apparently saw a community of interest between Blue Shield and CalPERS; the decision refers to `[t]he allegations made by Blue Shield and CalPERS, that [the treatment] is still experimental . . . .'" (California Physicians' Service v. Aoki Diabetes Research Institute, supra, 163 Cal.App.4th at p. 1522.) In the present case, by contrast, the City does not have the same identity or community of interest with El Toro that Blue Shield had with CalPERS. There is no evidence that the City stepped into El Toro's role, or that the City was contracted by El Toro to perform some function El Toro would otherwise perform as Appellants' landlord.
Appellants cite numerous facts and circumstances they claim, in toto, establish legal privity between the City and El Toro in the unlawful detainer action. Because the trial court found that privity had not been established, the question on appeal is whether that finding is supported by substantial evidence; it is. Nevertheless, we will consider Appellants' evidentiary arguments.
In August 2007, the City advised El Toro in writing about the results of its investigation of the BodyCentre, and encouraged El Toro to protect its own rights by investigating whether the lease had been violated and taking "appropriate measures." In that letter, the City also threatened to sue El Toro for maintaining a public nuisance. The City made good on its threat to sue El Toro in November 2007. Appellants claim, "City gave [El Toro] an open extension that lasted nearly one year to October 15, 2008 when City dismissed [El Toro] with prejudice. Such a long open-extension screams the existence of some subrosa agreement or arrangement." Appellants provide no evidence supporting its contention that an open extension to respond to the complaint in the public nuisance action proves the City was in privity with El Toro in the unlawful detainer action.
Appellants also argue that because the breaches of the lease alleged in the unlawful detainer action "mirrored" the City's allegations in the public nuisance action, pursuing the unlawful detainer action was "legal suicide" on the part of El Toro, which would be trying to prove the same allegations against Ho, Vo, and Abujudeh that the City would try to prove against El Toro in the public nuisance action. To the contrary, pursuing the unlawful detainer action was El Toro's best hope of establishing a defense in the public nuisance action. El Toro's success in the unlawful detainer action would have removed Appellants from the premises, which would effectively have abated the nuisance. Regaining possession of the premises would have prevented the inevitable result of the public nuisance action—the court taking custody of the premises for a period of one year. And, given the discretionary nature of the civil penalties available under Penal Code section 11230, subdivision (b) (which are discussed post), El Toro's pursuit of the unlawful detainer action was in its best interests to avoid or minimize civil penalties.
Appellants contend the City provided documents to El Toro's counsel for use at the trial of the unlawful detainer action. In support of this contention, Appellants point to a letter from the City's counsel acknowledging receipt of a copy of the unlawful detainer action complaint, and providing copies of documents produced by the City in the public nuisance action. Nothing in the appellate record indicates this was not merely an exchange of discovery among the parties in the public nuisance action. The City also provided El Toro with copies of advertisements placed by the BodyCentre in a local newspaper. Provision of documents does not establish the City was in privity with El Toro in the unlawful detainer action, however.
Two sheriff's investigators (Michelle Hill and Gentile) testified at the unlawful detainer action trial, having been subpoenaed by El Toro. Gentile brought another witness (Fowler) to testify at the unlawful detainer action trial, but the court refused to allow Fowler to testify because he was not on the witness list. Unlike Appellants, we believe those facts tend to show that the City was not in privity with El Toro in the unlawful detainer action.
Finally, Appellants argue the trial court erred in sustaining attorney-client privilege objections to communications between the City and El Toro. To the extent Appellants raise this issue in their appellate briefs, they fail to identify any instance of the trial court sustaining an objection based on the attorney-client privilege regarding communications between the City and El Toro, rather than between the City and its counsel, or between El Toro and its counsel.
Whether the claims or issues in two different proceedings are identical is determined by considering the primary rights at issue in each. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.) A primary right "is simply the plaintiff's right to be free from the particular injury suffered." (Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682.)
The primary right to be determined in an unlawful detainer action is the right to possession. (Zimmerman v. Stotter (1984) 160 Cal.App.3d 1067, 1074.) The only issues decided in an unlawful detainer action are the right to possession and damages resulting from the unlawful detainer. (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 452.) The primary right sought to be protected in a public nuisance action is the right of other persons in the community to enjoy their property, and the public's right to health and safety. (O'Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151, 163.) It is true that in this case, the actions of the BodyCentre affecting the different primary rights of El Toro and of the City were the same, namely, acts of prostitution and violations of the Lake Forest Municipal Code. This does not mean, as Appellants argue, that the public nuisance action "concern[s] the possession of the Bodycentre real property premises for alleged acts of nuisance." Rather, the issues of a public nuisance presented by El Toro in support of its unlawful detainer action were theories upon which it claimed Ho, Vo, and Abujudeh had breached their lease with El Toro.
Abujudeh raises a separate argument on his behalf alone. He argues he cannot be liable for any violations of the Red Light Abatement Law because he sold his interest in the BodyCentre to Ho in June 2007, while the public nuisance action was not commenced until November 2007.
Abujudeh cites American Art, supra, 33 Cal.3d at page 333, for the proposition that he cannot be liable under the Red Light Abatement Law because he was no longer the owner of the business after June 2007. In that case, the defendants owned a building in which they ran a business publishing and distributing sexually explicit material. (American Art, supra, at p. 330.) The Los Angeles County District Attorney sought an injunction against the activities at the site, as well as an order closing the premises for one year. (Ibid.) In a prior appeal, the appellate court had concluded the injunction violated the defendants' rights under the First Amendment to the United States Constitution, and remanded the case to permit the trial court to fashion a new remedy. (Id. at p. 331.) While the matter was on appeal, the defendants had moved their publishing business elsewhere, and had leased the property to an unrelated company. (Ibid.) Because the nuisance had been voluntarily abated, the trial court found it could no longer impose injunctive relief, and therefore awarded damages in the value of one year's rent against the defendants. (Id. at pp. 331-332.)
The appellate court reversed the judgment, because at that time, the Red Light Abatement Law did not permit an award of damages or a monetary fine. (American Art, supra, 33 Cal.3d at pp. 333-334.) American Art does not stand for the proposition that Abujudeh could abate the nuisance as to himself alone by selling the business to Ho, thereby escaping liability under the Red Light Abatement Law. Here, the business constituting a nuisance was not closed or moved, as in American Art. The nuisance Abujudeh created was continuing, despite Abujudeh's claimed lack of involvement. Abujudeh cites no authority for the contention that he could abate a nuisance he created, only as to himself, while the nuisance continued unabated.
The current language of Penal Code section 11230 furthers this analysis. In 2002, section 11230 was amended to add subdivision (b), providing for a civil penalty as a remedy to a nuisance. (Legis. Counsel's Dig., Assem. Bill No. 1868 (2001-2002 Reg. Sess.); see Stats. 2002, ch. 1057 § 7.) One of the specific purposes of the legislation was to prevent owners of buildings constituting public nuisances from avoiding liability by selling the property or the business.
Abujudeh's claim that he had abated the nuisance as to himself is not supported by the record, in any event. The statement of decision in the unlawful detainer action (of which the trial court in the public nuisance action took judicial notice) shows that Abujudeh testified at that trial regarding the measures implemented by the BodyCentre to comply with the Lake Forest Municipal Code and various court orders. (Abujudeh sold his interest in the BodyCentre to Ho in June 2007; the unlawful detainer action trial was conducted in July 2008.) Abujudeh does not explain on appeal how he could competently testify in the unlawful detainer action about what was happening at the BodyCentre if he had, in fact, removed himself from the operation of the business more than one year earlier.
Appellants argue the trial court erred by admitting evidence obtained during the three enforcement visits at the BodyCentre. During trial, Appellants objected to the introduction of evidence obtained during the three enforcement visits, arguing that such evidence had been obtained in violation of Appellants' rights under the Fourth and Fourteenth Amendments to the United States Constitution.
In a prior opinion, this court, citing New York v. Burger (1987) 482 U.S. 691, concluded the warrantless entries into the BodyCentre by the Orange County Sheriff's Department did not violate Appellants' Fourth and Fourteenth Amendment rights because "[a]n exception to the normal warrant requirement exists when the business is in a closely regulated industry." (Abujudeh v. City of Lake Forest, supra, G041857.) This rule of law, necessary to our decision in the prior opinion, is the law of the case. Because Appellants do not identify any new evidence presented at trial, which would remove this case from the rule of New York v. Burger, our previous holding was therefore binding on the trial court during the trial, and is now binding on this court on appeal.
Our Supreme Court has explained: "Under the law of the case doctrine, when an appellate court `"states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal . . . ."' [Citation.] Absent an applicable exception, the doctrine `requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.' [Citation.] . . . [¶] As here relevant, the law of the case doctrine is subject to an important limitation: it `applie[s] only to the principles of law laid down by the court as applicable to a retrial of fact,' and `does not embrace the facts themselves . . . .' [Citation.] In other words, although an appellate court's legal determination constitutes the law of the case, `upon a retrial . . . that law must be applied by the trial court to the evidence presented upon the second trial.' [Citation.] Thus, during subsequent proceedings in the same case, an appellate court's binding legal determination `controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based. [Citations.]' [Citation.] Where, on remand, `there is a substantial difference in the evidence to which the [announced] principle of law is applied, . . . the [doctrine] may not be invoked.' [Citation.] Even where the appellate court reverses based on `the "sufficiency of the evidence[,"] the rule of the law of the case may not be extended to be an estoppel when new material facts, or evidence, or explanation of previous evidence appears in the subsequent trial. [Citations.]' [Citation.]" (People v. Barragan (2004) 32 Cal.4th 236, 246-247.)
Pursuant to Penal Code section 11230, subdivision (b), "[t]he court may assess a civil penalty not to exceed twenty-five thousand dollars ($25,000) against any and all of the defendants, based upon the severity of the nuisance and its duration." In this case, the trial court imposed the maximum possible penalty against each of Appellants.
Appellants contend none of them deserved the maximum civil penalty. Appellants make the same arguments they made against their liability under the Red Light Abatement Law—the Red Light Abatement Law violations were the result of two rogue massage technicians, there was not a pattern of persistent violations, and Cardarella's testimony was not credible.
The trial court possesses broad discretion in crafting the appropriate remedy for a violation of the Red Light Abatement Law. (People ex rel. Sorenson v. Randolph (1979) 99 Cal.App.3d 183, 190.) We find no abuse of that discretion in the imposition of the civil penalties against Appellants, given the nature of the conduct occurring at the BodyCentre, and the length of time over which that conduct occurred.
We review the trial court's order awarding attorney fees for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
As our Supreme Court has held: "[Civil Code s]ection 3496
Here, the City's motion for attorney fees set forth the hours expended by its attorneys, paralegals, and law clerks, and the rate charged by each. The documents submitted in support of the motion noted, in part, "[a]ll of the professional services expended in this case have been necessary and dictated by the issues and circumstances of the case. The fees incurred and the rates charged for the work are consistent with other attorneys of similar experience and competence in this area. I believe that the fees and costs incurred by the City with Best Best & Krieger LLP are reasonable based on my 22 years of experience of practicing law in California, including specifically in the area of municipal litigation." The City attached to the motion copies of all its billing statements, which had been heavily redacted. The City did not seek any adjustment to the lodestar figure.
The trial court reduced the amount sought by the City from $777,074.20 to $525,163.30, because the City had included, in its motion, attorney fees incurred in other related cases. The court also reduced the amount of attorney fees because the motion sought recovery of fees and costs already paid by Appellants. The court therefore determined the proper lodestar amount was $507,735.67.
The trial court then reduced the attorney fees amount by 10 percent, but not for any reason authorized by the law. The trial court's tentative ruling reads, in relevant part, as follows: "All too frequently the billings are redacted beyond comprehension. Neither side provides authority for the positions taken with respect to these redactions or with respect to how the calculations may be accomplished. However, because so much of the billing is improperly redacted, the Court plans to reduce the bill by 10% off $507,735.67 to a total of $456,962.11." In its minute order, the court adopted its tentative ruling, and awarded the City attorney fees in the amount of $456,962.11.
Contemporaneous records are not required to support a motion for attorney fees. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375; Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) Without such time records or billing statements, however, a motion for attorney fees must be supported by declarations explaining, "in more than general terms, the extent of services rendered to the client." (Martino v. Denevi, supra, at pp. 559-560.)
Having reviewed the declaration of Jeffrey V. Dunn, supporting the motion for attorney fees, we conclude the City failed to meet its initial burden to establish the reasonableness of the fees incurred. The declaration provides the dates on which certain pleadings and motions were filed, but does not explain or discuss the actual work done. The declaration states, "[e]xtensive discovery was also conducted in these cases," but then states only that "the City exchanged written discovery with Body Centre in early 2008," and identifies only "[a] portion of depositions" taken and defended.
With respect to the trial of the public nuisance action, the declaration states, in full: "Beginning on September 8, 2009, the bench trial took place in Department C20 of this Court. After the conclusion of the trial on September 22, 2009, the case was taken under submission by the Court." No attempt is made to identify the number of hours devoted to pretrial preparation, list documents prepared for trial, list the dates and hours the case was in trial, or give any other explanation of the fees incurred.
Therefore, the only remaining basis for the motion for attorney fees is the billing statements themselves. However, the trial court specifically found that the billing statements were improperly "redacted beyond comprehension," and we agree. The trial court erred by reducing the attorney fees awarded, rather than by denying the motion for attorney fees. We therefore reverse the award of attorney fees.
Appellants argue their motion to strike and tax costs should have been granted. Appellants are correct that the one-page summary memorandum of costs filed by the City was insufficient, but the City submitted sufficient detail in its opposition to the motion to strike and tax costs to justify the costs awarded by the trial court. We hasten to add that the City's failure to include this support when it originally filed its memorandum of costs was improper, and the trial court would have been justified in granting the motion to strike or tax costs if the City had not rectified its error.
The judgment is affirmed. The portion of the postjudgment order awarding attorney fees is reversed, but the portion of the postjudgment order awarding costs is affirmed. In the interests of justice, because both sides prevailed in part on appeal, no party shall recover costs on appeal.
RYLAARSDAM, ACTING P. J. and MOORE, J., concurs.
