Kenne v. Community Corp. of Santa Monica CA2/3

Opinion

Filed 8/18/26 Kenne v. Community Corp. of Santa Monica CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

KATHLEEN A. KENNE, B348722 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. SC128551) v. COMMUNITY CORP. OF SANTA MONICA, INC., et al., Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, Lisa Sepe-Wiesenfeld, Judge. Affirmed. Kathleen A. Kenne, in pro. per., for Plaintiff and Appellant. Schonbuch Hallissy and Bernadette Castillo Brouses for Defendants and Respondents.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ This appeal—appellant Kathleen Kenne’s third— challenges a postjudgment order awarding defendants approximately $35,000 in appellate attorney fees. We find no error, and thus we affirm. FACTUAL AND PROCEDURAL BACKGROUND I. Background. Kenne, a former tenant of Community Corporation of Santa Monica (CCSM), filed the present action against CCSM and five of its officers and employees (collectively, defendants) in December 2017. Kenne’s 109-page complaint alleged that defendants evicted her in retaliation for exercising her rights “to speak, associate, organize, petition, inquire, request, dispute, complain, demand, inspect and investigate” CCSM’s management of Kenne’s apartment complex. It asserted 14 causes of action, including breach of lease, retaliatory eviction, and violation of the Santa Monica City Charter. In October 2021, the trial court granted terminating sanctions against Kenne. It entered a judgment of dismissal in November 2021. Kenne appealed from the judgment (Kenne v. Community Corp. of Santa Monica et al. (April 26, 2024, B317722) [nonpub. opn.]). This court affirmed and awarded defendants their appellate costs. II. Defendants’ attorney fee motion. In August 2024, defendants filed a motion for attorney fees of $106,788. Defendants noted that an award of appellate costs includes appellate attorney fees if authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Pursuant to Civil Code section 1942.5, subdivision (i), a court “shall award 2 reasonable attorney’s fees to the prevailing party” in an action for retaliatory eviction if either party requested attorney fees. Santa Monica Municipal Code, article XXIII, section 2304 (SMMC § 2304) similarly provides for an award of attorney fees to a prevailing party in a wrongful eviction action. Defendants asserted that Kenne’s complaint alleged wrongful eviction in violation of Civil Code section 1942.5 and SMMC section 2304. All of Kenne’s causes of action “flow[ed] from the allegation that they wrongfully retaliated and harassed Kenne for her tenant-related activities,” and the judgment against Kenne was an unqualified win for defendants. Further, Kenne sought attorney fees in her complaint, and defendants sought attorney fees in their answer. Defendants thus contended that they were entitled to an award of their appellate attorney fees. In a declaration submitted in support of defendants’ motion, attorney Bernadette Brouses, a partner with Schonbuch Hallissy, LLP (formerly Daniels, Fine, Israel, Schonbuch & Lebovits, LLP) asserted that her firm had expended 110 hours defending the judgment on appeal and she expected to expend an additional 22 hours drafting and arguing the attorney fee motion. Although Brouses’s firm had negotiated reduced rates with defendants ($235/hour for Brouses, $170/hour for associates, and $95/hour for law clerks), the prevailing rates for attorneys of comparable skill and experience in the Los Angeles area was $809/hour for partners, $672/hour for associates, and $412/hour for law clerks or paralegals. Thus, defendants sought attorney fees of $106,788 (132 hours x $809/hour). Kenne filed a motion to strike the attorney fee motion, contending it was not timely served. In support, she stated in a 3 declaration that defendants never served her with the fee motion or supporting documents “at any time before, on or after August 23, 2024.” (Italics and bolding omitted.) Separately, she asked the court to sanction defendants $100,000 for their alleged violations of the service requirements. Kenne also filed a substantive opposition to defendants’ fee motion. Among other things, she contended that defendants did not prevail on the complaint; although Civil Code section 1942.5 permitted an award of attorney fees to the prevailing party in a retaliatory eviction case, only one cause of action alleged retaliatory eviction; and any award of fees pursuant to Civil Code section 1942.5 had to be apportioned among the 14 causes of action and the five defendants. On November 22, 2024, the trial court continued the hearing and ordered defendants to re-serve Kenne with the moving papers. Defendants filed an opposition to Kenne’s motion to strike and for sanctions in April 2025. In a supporting declaration, attorney Brouses stated that her assistant had electronically served Kenne with the fee motion at the email address that appeared on Kenne’s pleadings and at which they had served Kenne for years. After receiving the motion to strike, Brouses confirmed with her assistant that the email had not “ ‘bounce[d]’ back.” Brouses further stated that her assistant was not currently able to submit her own declaration because she was on medical leave through June 21, but that if requested by the court her assistant would submit a declaration after her return from medical leave. Attached to Brouses’s declaration was proof of electronic service on Kenne of the fee motion by Brouses’s assistant, Charlene Washington, on August 23, 2024, and a copy 4 of Washington’s August 23, 2024 email to Kenne transmitting the fee motion and supporting documents and providing a link to copies of the documents in a Dropbox folder. On June 13, 2025, the trial court (1) denied Kenne’s motions to strike and for sanctions, and (2) granted defendants’ motion for fees. As to sanctions, the court said it would have no basis to sanction defendants for a purported failure to timely serve a motion; instead, it would simply deny the motion as untimely. As to the motion to strike, the court said there was evidence that Brouses’s legal assistant served Kenne with the attorney fee motion by email on August 23, 2024, and that Kenne had previously requested email service of all documents and pleadings. Moreover, the court had continued the hearing on the attorney fee motion to address any service issues, and Kenne’s opposition to the fee motion, which addressed the motion on the merits, “makes clear that [Kenne] ultimately received the motion and had sufficient time to oppose the motion, and if she did not, she had sufficient time to obtain a copy of the motion.” With regard to defendants’ fee request, the court noted that Code of Civil Procedure section 1033.5 permits a party to recover reasonable attorney fees when authorized by contract, statute, or law. Kenne’s complaint alleged retaliatory eviction in violation of Civil Code section 1942.5, and thus defendants were entitled to recover attorney fees under that section. The court declined to apportion defendants’ attorney fees among Kenne’s various causes of action because “[Kenne’s] retaliatory eviction claims were the basis of the entire action . . . [and] it is not clear how the Court could apportion the work based on the nature of the work performed for this appeal.”

5 The court stated that it had reviewed the billing sheets and found that the work performed by defendants’ attorneys was reasonable. However, the court declined to award fees at the rate of $809 per hour as requested, finding this was an “unreasonably high rate given the nature of this action and the nature of the work performed.” Instead, the court awarded fees “at the rate of $300 per hour.” The court further excluded 3.1 hours billed by a law clerk, and awarded six hours (rather than the 22 hours requested) for time spent preparing the fee motion. The court thus awarded fees for 119.3 hours, at a rate of $300 per hour, for a total of $35,790. Kenne timely appealed from the June 13, 2025 order.1 DISCUSSION I. Legal standards. Code of Civil Procedure section 1033.5, subdivision (a)(10) provides that attorney fees are recoverable as costs if authorized by “contract,” “statute,” or “law.” Civil Code section 1942.5 prohibits retaliatory evictions, and further provides that the court “shall award reasonable attorney’s fees to the prevailing party” in a retaliatory eviction action seeking damages “if either party requests attorney’s fees upon the initiation of the action.” (Id., subds. (a), (i).) An attorney fee award is calculated using the lodestar method. Under that method, the trial court “first multipl[ies] the number of hours reasonably expended on the litigation by a 1 Kenne separately appealed from the costs award. We affirmed. (Kenne v. Community Corp. of Santa Monica et al. (Jan. 30, 2026, B345478) [nonpub. opn.].)

6 reasonable hourly rate of compensation.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 697.) “The amount of an attorney fee to be awarded is a matter within the sound discretion of the trial court.” (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) Accordingly, our review “must be highly deferential to the views of the trial court.” (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239.) California Rules of Court, rule 3.1702(c)(1) and 8.278(c)(1), set out the procedure for seeking appellate attorney fees— namely, by filing a motion for fees in the superior court within 40 days after the issuance of the remittitur. We review an attorney fee award for an abuse of discretion. (G.F. Galaxy Corp. v. Johnson (2024) 100 Cal.App.5th 542, 551; Valenti v. City of San Diego (2023) 94 Cal.App.5th 218, 231.) Under this standard, “ ‘ “[t]he trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” ’ (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100.)” (G.F. Galaxy, at p. 551.) II. Kenne has not established that the trial court abused its discretion by awarding defendants attorney fees. Kenne asserts that the trial court abused its discretion by awarding attorney fees because the award was not supported by fact or law. Her contention lacks merit. First, Kenne contends that the trial court erred by purporting to award fees under Code of Civil Procedure section 1033.5 because that section does not authorize awards of appellate attorney fees. Kenne cites no authority for this proposition, thus forfeiting it. (Wiley v. Kern High School Dist.

7 (2024) 107 Cal.App.5th 765, 772, fn. 6 (Wiley) [absence of citation to authority forfeits contention]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [same].) On the merits, Code of Civil Procedure section 1033.5 authorizes an award of attorney fees when authorized by contract, statute, or law, without distinguishing between fees incurred in the trial court and on appeal. A statute authorizing an award of attorney fees in the trial court “ordinarily authorizes an award of fees incurred on appeal unless the statute specifically provides otherwise.” (Baer v. Tedder (2025) 115 Cal.App.5th 1139, 1150.) Code of Civil Procedure section 1033.5 does not so provide. Thus, as in the trial court, attorney fees on appeal are recoverable under Code of Civil Procedure section 1033.5 if authorized by contract, statute, or law. (Ibid.; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2025), ¶ 14:113 [as in trial court litigation, attorney fees on appeal are recoverable if authorized for contract, statute, or law pursuant to Code Civ. Proc., § 1033.5].) Second, Kenne asserts the trial court erroneously believed that an award of attorney fees was mandatory, not optional. As best we are able to discern, Kenne’s claim is based on the language of the trial court’s order—that defendants “are entitled to fees here.” (Italics added.) We do not understand this statement to mean that the trial court believed it was compelled to award fees, but rather that defendants had demonstrated an entitlement to fees under the facts of this case. This accurately states the law. Third, Kenne asserts that defendants were not entitled to attorney fees on appeal because they did not serve her with the motion and supporting documents within 40 days of the issuance 8 of the remittitur, as the statute required. But the trial court concluded otherwise, and we must uphold that conclusion if it is supported by substantial evidence. (E.g., Akella v. Regents of University of California (2021) 61 Cal.App.5th 801, 814 [“ ‘Only if no reasonable person could reach the conclusion reached by the [trial court], based on the entire record before it, will a court conclude that the [court’s] findings are not supported by substantial evidence’ ”]; McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1106 [“Under the substantial evidence standard of review, we may not reverse a trial court’s ruling unless the appellant shows the evidence required the trial court to reach a different conclusion”].) Here, substantial evidence supports the trial court’s conclusion that defendants timely served Kenne with the fee motion. The proofs of service attached to the fee motion and declaration attested under penalty of perjury that Kenne was electronically served with the motion and supporting documents on August 23, 2024, which was less than 40 days after the remittitur was issued. Further, in opposition to Kenne’s motions to strike and for sanctions, attorney Brouses stated in a declaration that her assistant had electronically served Kenne with the fee motion at the email address that appeared on Kenne’s pleadings and at which they had served Kenne for years. Brouses further stated that after she received the motion to strike, she confirmed with her assistant that the email had not “ ‘bounce[d]’ back.” And, Brouses explained that her assistant was not submitting her own declaration because she was on medical leave, but that she would do so at the court’s request after she returned from leave. Taken together, the proof of service and declaration constitute 9 substantial evidence in support of the court’s finding that Kenne was properly served. Fourth, Kenne contends the trial court erred by failing to apportion defendants’ attorney fees among her various causes of action—that is, between the causes of action that alleged retaliatory eviction and those that did not. We do not agree. When a claim for which attorney fees are recoverable is joined with claims for which such fees are not recoverable, the trial court may apportion the fees between them. Our Supreme Court has explained: “A litigant may not increase his recovery of attorney’s fees by joining a cause of action in which attorney’s fees are not recoverable to one in which an award is proper. . . . [¶] Conversely, [the] joinder of causes of action should not dilute [the] right to attorney’s fees. Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129–130, italics added; see also Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1178 [“ ‘ “Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units” ’ ”]; Drouin v. Fleetwood Enterprises (1985) 163 Cal.App.3d 486, 493 [“Attorneys fees need not be apportioned between distinct causes of action where plaintiff’s various claims involve a common core of facts or are based on related legal theories”].) Here, Kenne asserts that the trial court erred by concluding that it need not apportion defendants’ fees because all of Kenne’s causes of action were based on the same essential 10 allegations—that is, that her eviction was retaliatory. Kenne urges this was error because “only 2 (two) causes” of the 109-page complaint addressed retaliatory eviction. In fact, claims of retaliatory eviction pervade Kenne’s complaint. The complaint’s introductory allegations are illustrative: “17. . . . Defendants (and their attorneys) conspired to, among other things, to actually, constructively and/or tortuously [sic] evict Plaintiff from her long-term apartment home in the City of Santa Monica, and her possessory interest in the Property after 24 year[s], . . . in direct retaliation for and for no other good cause, based on Plaintiff’s oral and written complaints, petitions, investigations, inspections, inquiries, and requests for documents, and requests for certain legal, financial and accounting information . . . . “18. Said ongoing conspiracy, and retaliation since in and before January 2016 has ultimately resulted in the filing, commencement, and prosecution of the limited unlawful detainer action filed on behalf of [CCSM] by Defendants . . . . Said UD action was filed against Plaintiff without any just cause . . . . [¶] . . . [¶] “20. The UD action, and all prior acts by Defendants since in or about September 2013 to date, was in direct retaliation for Plaintiff’s ongoing and continuous exercise of her protected legal rights to speak, associate, organize, petition, inquire, request, dispute, complain, demand, inspect and investigate CCSM’s intentional or grossly reckless breaches, acts, errors, omissions, torts, fraud, extortion and concealment, by Plaintiff to Defendants, and with her long-term co-tenants, neighbors, and various other City of Santa Monica and County of Los Angeles governmental offices, departments, and agencies . . . since in and 11 before October 5, 2014, and continuing until as recently as December 15, 2017, including, inter alia, violations of Civil Code §§ 1942.5 and 1945, [Code of Civil Procedure] §§1161 (3), 1161.5, the local Santa Monica eviction-control ordinance Measure RR, and the City of Santa Monica’s longstanding public policy against Landlord-Tenant Harassment. “21. . . . [T]he filing of the UD action, and all acts by Defendants immediately before and after the commencement of the UD action to date, were done in bad-faith and as a poorly disguised pretext for their true motives, which is, inter alia, to wrongfully evict Plaintiff and regain possession of her unit after 24 years to increase the rent, remove Plaintiff, and specifically to silence Plaintiff, to prevent Plaintiff from assisting or advising her co-tenants, and to specifically retaliate against Plaintiff for her lawful exercise of her legal rights, and those of her co- tenants, against Defendants including CCSM as set forth in this Complaint. [¶] . . . [¶] “23. Said UD action is not for any legitimate reason, but is intended to ultimately silence Plaintiff and prevent her from addressing or petitioning redress of her grievances against Defendants . . . and to ultimately cause Plaintiff to be constructively, wrongfully or actually evicted from her home of over 24 years, based solely on Defendants’ falsified, self-serving, legally and factually unsupported notices and letters to Plaintiff, as part of a larger conspiracy, a premediated pretext and subterfuge, to avoid certain tenant concerns and complaints, to ignore necessary repairs, and to continue to fraudulently conceal certain financial information from Plaintiff, by creating a material breach when none exists, and none has existed or been caused by Plaintiff for over 24 years.”

12 In short, allegations of retaliatory eviction run throughout Kenne’s complaint. The trial court thus did not abuse its discretion by refusing to apportion defendants’ attorney fees between those incurred to litigate Kenne’s Civil Code section 1942.5 claims and those incurred to litigate other causes of action. Fifth, Kenne alleges that the trial court erred by awarding attorney fees for work not related to the appeal. Kenne does not identify any such fees with specificity, and thus she has forfeited this claim. “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564; see also Sonoma Land Trust v. Thompson (2021) 63 Cal.App.5th 978, 985 [quoting Premier].) Sixth, Kenne contends that the trial court erred by awarding attorney fees at $300 per hour because Brouses’s actual billing rate was $235 per hour. But as noted above, an attorney fee award is calculated using the lodestar method—that is, multiplying the number of hours reasonably expended by a “reasonable hourly rate of compensation.” (Syers Properties III, supra, 226 Cal.App.4th at p. 697.) The reasonable hourly rate “is that prevailing in the community for similar work.” (Tidrick v. FCA US LLC (2025) 112 Cal.App.5th 1147, 1157; see also Baer v. Tedder, supra, 115 Cal.App.5th at p. 1159 [same].) Kenne does not suggest that $300 per hour is greater than the prevailing hourly rate in the relevant community, but only that it is more 13 than counsel had agreed to charge these defendants. A trial court does not abuse its discretion by awarding greater hourly rates than those an attorney charges her client so long as the rate is reasonable. (See, e.g., Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1260 [“ ‘The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below- market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel’ ”]; Baer, at p. 1159 [amount client agreed to pay lawyer “does not . . . place a cap on the amount of an attorney’s fees award”].) Finally, Kenne contends that the trial court erred by awarding appellate attorney fees because defendants “had no underlying pre-trial [fee] award.” Kenne’s contention assumes that appellate attorney fees can be awarded only if a trial court also awards attorney fees for work done in connection with trial court proceedings—but Kenne cites no authority to support this claim. The contention therefore is forfeited. (Wiley, supra, 107 Cal.App.5th at p. 772, fn. 6; In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.) For all the foregoing reasons, the trial court did not abuse its discretion by awarding defendants attorney fees of $35,790.

14 DISPOSITION The June 13, 2025 order is affirmed. Defendants are awarded their appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ASHWORTH, J.* We concur:

ADAMS, Acting P. J.

HANASONO, J.

* Retired Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.