Filed 4/7/21 Ghannoum v. Sevier CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SAMIR GHANNOUM et al.

,

Plaintiff s and Appellant s ,

v.

JULIA K. SEVIER

,
Defendant and Respondent

. B304026

(Los Angeles County Super. Ct. No. EC064044 )

APPEAL from a n order of the Superior Court of Los Angeles County, William D. Stewart , Judge. Affirmed. Law Office of Zulu Ali & Associates and Donovan Fleming for Plaintiffs and Appellants. Anthony A. Sears for Defendant and Respondent.2 Plaintiffs and appellants Samir Ghannoum (Samir) and
Mohamed Ghannoum (Mohamed) 1 (collectively, plaintiffs ) appeal from a post

- judgment order awarding defendant and respondent Julia K. Sevier ( defendant ) $93,913.85 in attorney fees following a jury trial and entry of judgment in defendant’s favor on all of plaintiffs’ causes of action

. We affirm the attorney fees order.

BACKGROUND On March 9, 201 2
, defendant and Mohamed signed a residential lease agreement (the lease) for a room in a h ouse owned by plaintiffs

. Paragraph 37 of t he lease contained a mediation provision, under which the parties agreed to “mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, be fore resorting to court
action.

. . . If, for any dispute or claim to which this paragraph applies, any party commences an a ction without first attempting to resolve the matter through mediation, or refuses to mediate after a reque st has b een made, then that party shall not be entitled to recover attorney fees , even if they would otherwise be
available to th at party in any such action .” Paragraph 38 of the
lease provided that , subject to paragraph 37, the prevailing party in any action “shall be entitled to reasonable attorney fees and
costs.”
Pursuant to the lease mediation provisions, plaintiffs sent a written demand for mediation to defendant o n April 2, 2015

. Plaintiffs’ demand was sent by mail to an address in Virginia and
stated that plaintiffs would file an action for conversion and trespass to chattels if defendant refused to mediate or failed to

1 Because appellants share the same surname, we refer to them individually by their first names to avoid confusion.3

respond within seven days. Defendant , through her attorney, responded in a letter dated April 14, 2015 stating that she was agreeable to mediation. However, p laintiffs did not proceed with mediation but filed
this a ction against defendant for conversion and trespass to
chattels on May 7, 2015

. Plaintiffs alleged in their complaint
that the y rented a room to defendant on March 9, 2012, and
evicted her in May 2013. Plaintiffs further alleged that when
defendant moved out of the premises, she removed and damaged $39,300 worth of plaintiffs’ property. After a two

- day trial, the jury returned a verdict in
defendant’s favor on all causes of action. Defendant filed a motion for attorney fees as the prevailing party, seeking fees in the amount of $116,527.10. In opposition to the motion, plaintiffs argued that
defendant had not complied with their mediation demand and
that she was therefore not entitled to recover attorney fees.
Plaintiffs further argued that the amount of fees claimed was unreasonable.
Defen dant’s motion for attorney fees was heard on
N ovember 15, 2019. At the conclusion of the hearing, t he trial court issued a written ruling awarding defendant $93,913.85 in attorney fees. The record on appeal contains no reporter’s transcript of that heari ng. Plaintiffs filed a motion for reconsideration on
November 25, 2019, arguing , for the first time, that because Samir was not a signatory to the lease, she should not be liable for any portion of the attorney fees. Defendant’s opposition to the motion included a copy of the deed to the rental premises,4

showing that at the time of the lease, plaintiffs owned the property as “ h usband and w ife as j oint t enants.”
Plaintiffs’ motion for reconsideration was heard and denied

on January 3, 2020. The record contains no reporter’s transcript of the hearing. The trial court’s written ruling states that
because plaintiffs failed to comply with the affidavit requiremen ts of Code of Civil Procedure section 1008, and failed

to explain why the issue for reconsideration was not raised during the previous motion for attorney fee s, the court lacked jurisdiction to consider plaintiffs’ motion

. This appeal followed.

DISCUSSION
Plaintiffs contend t he attorney fees order should be
reversed as to Samir because she was not a signatory to the leas e. Plaintiffs further contend the attorney fees award was improper
because the causes of action on which defendant prevailed

-- conversion and trespass to chattel

— did not arise under the lease

.

I. Fees against non signatory
P laint i ff s failed to argue in their opposition to defendant’s
motion for attorney fees that a fee award was improper against Samir, a nonsignatory to the lease. Their failure to do so
forfeited the claim on appeal. “Failure to raise specific challenges in the trial court forfeits the claim on appeal. ‘“‘[I]t is fundamental that a reviewing court will ordinarily n ot consider claims made for the first time on appe al which could ha v e been but were not presented to the trial court. ’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the
trial court

. Generally, issues raised for the first time on appeal5

which were not litigated in the tr ial court are waived. [Citations. ]’ ” [Citation.] ’ ” ( Pre mier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4 th 550, 564 ( Premier Medical ) .)
Plaintiffs’ unsuccessful attempt to raise th e nonsignatory argument in their motion for reconsideration did not av ert the
forfeitur e. The trial court found that because plaintiffs fail ed to comply with the affidavit requirements of Code of Civil Procedure section 1008, subdivision (a), and failed t o indicate to the trial court the reasons the nonsignatory argument was not raised during the previous, fully briefed , attorney fees motion, the trial

court lacked jurisdiction to consider the motion for
reconsideration. The nonsignatory issue was not litigated in the
trial court . It was accordingly forfeited on appeal. ( Premier Medical, supra, 163 Cal.App.4 th at p. 564.)

II. Causes of action a rising unde r the lease
P laintiffs argue for the first time in this appeal that the conversion and trespass to chattel c auses of action on which defendant prevailed were not claims “arising out of” the lease within the meaning of the lease’s attorney fees provision

. Their failure to raise this argument in the trial court below forfeits the issue on appeal. ( Premier Medical, supra, 163 Cal.App.4 th at

p. 564.)
Even absent such forfeiture , the argument is not well
taken. Contractual attorney fees may be recovered on a claim for conversion based on a contract. ( Mustachio v. Great Western
Bank (1996) 48 Cal.App.4 th 1145, 1151.) The allegations in plaintiffs’ complaint indicate that the ir claims for conversion and trespass to chattel are based on the lease

. P laintiffs allege d the6

existence of a lease between them and defendant, that they evicted defendant from the premises, and that defendant removed and damaged plaintiffs’ property when vacating the premises

. The lease s tates that defendant was obligated upon vacating the premises to return the premises , including any furniture, furnishings, appliances, landscaping, and fixtures therein, in the same condition as at commencement of the lease

term . The lease further states that breac h of these obligations
shall constitute breach of the lease

. Plaintiffs’ prayer for relief in their complaint include d a request for attorney fees. The causes of action on which defendant prevailed were claims arising under
the lease. Defendant accordin gly was entitled to recover her attorney fees as the prevailing party on those claims.

III. Other arguments
We do not address arguments plaintiffs raise for the first time in their reply brief

– (1) defendant’s failure to timely respond to plaintiffs’ demand for mediation waived her claim for attorney fees under the lease

, (2) the fees awarded were excessive
and uncon scionable , and (3) the trial court abused its discretion by not adjudicating the nonsignatory issue in plaintiffs’ motion
for reconsideration. Plaintiffs waived these arguments by failing
to raise them in their opening brief on appeal . ( Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4 th 847, 894, fn. 10.)7 DISPOSITION The order awarding defendant her attorney fees is affirmed. Defendant shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.
CHAVEZ

We concur:

_______________________, P. J.
LUI

________________________, J.
ASHMANN

- GERST