Filed 9/21/16 Lambert v. Francis CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


DIANE RENEE LAMBERT,                                                 H041665
    Cross-complainant and Respondent,                               (Santa Clara County
                                                                     Super. Ct. No. 1-03-CV011268)
         v.

JOANIE FRANCIS et al.,

         Cross-defendants and Appellants.



         This case is before us for the third time. Appellants and Century 21 Alpha agents
Joanie Francis and Rich Robinson challenge what they characterize as an improper post-
judgment award of statutory attorney’s fees to respondent Diane Renee Lambert. They
argue (1) that Lambert’s October 17, 2014 “Motion for Recovery of Attorney’s Fees,
Costs and Expenses” was untimely, (2) that the statutory time period for filing a fees
motion was not stayed by the filing of an appeal or by Century 21 Alpha’s bankruptcy,
(3) that “at the very least” the award of fees that Lambert incurred on appeal must be
reversed, (4) that if the fees award is not reversed it should be reduced by 50 percent, and
(5) that the costs award to Lambert must be reversed. We affirm.
                                      I. Background1
                                        A. Dalton I
       Plaintiffs Vera Dalton and William Corbin (collectively, the buyers) purchased a
house from Lambert.2 Francis and Robinson represented the buyers as well as Lambert
in the transaction. The buyers sued Lambert and Francis and Robinson based on a
misrepresentation that the property, which used a dilapidated septic system, was
connected to the public sewer. The buyers prevailed in a 2005 jury trial and obtained a
damages award against all defendants. In a post-judgment order dated
December 16, 2005, the trial court awarded the buyers $50,000 in attorney’s fees and
costs against all defendants. The court ruled that Lambert was entitled to indemnification
from Francis and Robinson for damages and attorney’s fees and costs awarded to the
buyers against her.
       All parties appealed from the December 16, 2005 order. This court held that the
trial court lacked jurisdiction to enter the order. The court reversed the order, directed the
trial court to reinstate an earlier post-judgment order, and remanded the case for further
proceedings. The court also ruled that the parties should bear their own costs on the
Dalton I appeal.




1
       The facts are taken in large part from our prior decisions in this matter. (Dalton v.
Century 21 Alpha (Dec. 20, 2007, H029904 [nonpub. opn.] (Dalton I); (Dalton v. Francis
(July 11, 2014, H033247 [nonpub. opn.] (Dalton II).) Francis and Robinson note that we
took judicial notice in Dalton II of the Dalton I decision. They ask that we now take
judicial notice of the Dalton II decision. We grant the unopposed request. On our own
motion, we also take judicial notice of the Dalton I decision. (Evid. Code, §§ 451, subd.
(a); 452, subds. (a); D’Arrigo Bros. of California v. United Farmworkers of America
(2014) 224 Cal.App.4th 790, 795, fn.1.)
2
       The plaintiffs are no longer involved in the case.


                                              2
                               B. Proceedings on Remand
       On April 16, 2008, the trial court issued an order restating its earlier post-
judgment order. The parties filed various motions seeking clarification of the
April 16, 2008 order. On June 13, 2008, the trial court awarded the buyers $262,905.50
in contractual attorney’s fees and costs against Lambert. The court ruled that Lambert
was entitled to “total implied equitable indemnity” from Francis and Robinson for the
entire amount. The court also ruled that Lambert could recover her own attorney’s fees
and costs from Francis and Robinson under the tort of another doctrine.


                                        C. Dalton II
       Francis and Robinson noticed an appeal from the June 13, 2008 order. Century 21
Alpha declared bankruptcy a week later. The bankruptcy stay caused the trial court to
take Francis’s and Robinson’s then-pending motion to strike and/or tax costs claimed by
Lambert off calendar. Francis and Robinson re-noticed their motion to strike and/or tax
Lambert’s costs when the bankruptcy stay was lifted in 2011.3 On November 7, 2011,
the trial court issued an order largely denying their motion. Francis and Robinson filed a
separate appeal from the November 7, 2011 order.
       This court ordered both appeals considered together for briefing, oral argument,
and decision. We reversed the trial court’s June 13, 2008 order and remanded the case
with directions that the trial court enter a new order (1) vacating its April 16, 2008 order;
(2) awarding the buyers $262,905.50 in costs and contractual attorney’s fees against
Lambert; (3) denying Lambert’s motion for equitable indemnity from Francis and
Robinson for that amount; and (4) granting Lambert’s motion to recover her own


3
       A permanent stay of proceedings against Century 21 Alpha was entered when its
chapter 11 reorganization plan was approved in 2011. Century 21 Alpha is no longer
involved in this case.


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attorney’s fees and costs as tort of another damages from Francis and Robinson. We also
modified the trial court’s November 7, 2011 costs order to disallow Lambert’s recovery
of $1,550 in filing and motion fees incurred and affirmed the order as modified. We
ruled that the parties should bear their own costs on the Dalton II appeal. The remittitur
issued on August 26, 2014.


                               D. Proceedings on Remand
       On October 17, 2014, Lambert filed a motion to recover $195,983.32 in attorney’s
fees, costs, and expenses from Francis and Robinson. Her motion papers made it clear
that she sought recovery of that amount not pursuant to contract or statute but instead as
damages under the tort of another doctrine. Lambert’s counsel submitted a detailed
declaration supporting the amounts claimed.
       Francis and Robinson opposed the motion. They argued that it was untimely
under California Rules of Court, rule 3.1702, that the time period for filing a fees motion
was not stayed by Century 21 Alpha’s bankruptcy or by the Dalton I appeal, that Lambert
was not entitled to recover fees that she incurred on appeal because “[t]he ruling by the
Court of Appeal on both occasions was that each party shall bear their own costs on
appeal,” and that Lambert’s claim for costs should be stricken “because the issue of costs
has already been litigated and decided.” Francis and Robinson also argued that any
award of attorney’s fees should be reduced by 50 percent because Lambert “incurred
$104,060.01 in attorney’s fees on a simple damage claim which the jury decided was
only worth $85,495.”
       Lambert argued in reply that her motion was timely because her entitlement to tort
of another damages was not finally established until the remittitur issued on
August 26, 2014. She explained that the trial court’s post-remittitur order directing her to
submit a motion for attorney’s fees and costs was filed on October 2, 2014, and that her
motion was filed 15 days later. She reiterated that she was seeking damages suffered as a
                                              4
result of Francis’s and Robinson’s tortious conduct, not statutory or contractual attorney’s
fees.
        At the November 13, 2014 hearing, Lambert’s trial counsel repeated that Lambert
sought damages under the tort of another doctrine. He argued that her motion was timely
because “the issue that went up on appeal was entitlement” to tort of another damages,
“and I do not see how the measure of those damages could be separated from the
entitlement [to] those damages. Until Lambert was entitled to those damages, we could
not move the . . . trial court to determine the amount of those damages.”
        Counsel for Francis and Robinson characterized Lambert’s argument as
“shameful.” He asserted that Lambert’s counsel was “try[ing] to get in this motion
another $65,000 in fees and costs for working the appeal when the Appellate Court said
he didn’t get them.” Counsel maintained that Lambert’s motion sought statutory
attorney’s fees and costs. “We’re not talking about some esoteric theory of damages.
He’s asking for attorney’s fees in this matter.”
        The trial court took the matter under submission and subsequently granted
Lambert’s motion. The court’s November 13, 2014 order stated that Lambert “shall
recover her own attorney’s fees and costs in the amount of $195,008.32 as tort of another
damages . . . .” Francis and Robinson filed a timely notice of appeal.


                                       II. Discussion
                    A. California Rules of Court, Rule 3.1702(b)(1)4
        Francis and Robinson contend that Lambert’s motion was untimely under rule
3.1702(b)(1). We disagree.




4
        All further references to rules are to the California Rules of Court.


                                               5
       Rule 3.1702 provides that “[a] notice of motion to claim attorney’s fees up to and
including rendition of judgment in the trial court . . . must be served and filed within the
time for filing a notice of appeal . . . .” (Rule 3.1702(b)(1).) By its express terms, the
rule “applies in civil cases to claims for statutory attorney’s fees and claims for attorney’s
fees provided for in a contract.” (Rule 3.1702(a).) Lambert sought neither. She sought
tort of another damages. Rule 3.1702 says nothing about tort of another damages. The
rule has no application here.
       Francis and Robinson nevertheless maintain that “[r]ule 3.1702 applies to all
motions for attorney’s fees, not just motions for statutory attorney’s fees and claims for
attorney’s fees provided for in a contract.” They quote a statement to that effect from
Sanabria v. Embrey (2001) 92 Cal.App.4th 422 (Sanabria), but their reliance on
Sanabria is misplaced.
       “Language used in any opinion is of course to be understood in the light of the
facts and the issue then before the court, and an opinion is not authority for a proposition
not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524.) Sanabria says
nothing about tort of another damages or when a motion claiming such damages must be
filed. The Sanabria court considered whether former rule 870.2 (renumbered as rule
3.1702 eff. Jan. 1, 2007) governed motions for attorney’s fees filed after voluntary
dismissals. The court explained that the issue arose because the former rule related the
time for filing a fees motion to the time for filing a notice of appeal. Because voluntary
dismissals are generally not appealable, “some cases have speculated, in dicta, that
perhaps . . . rule 870.2 is inapplicable to motions for attorney fees following voluntary
dismissals, and there is therefore no time period within which such motions must be
filed.” (Sanabria, supra, 92 Cal.App.4th at p. 427.)
       In rejecting such speculation, the Sanabria court discussed the legislative history
of the rule and in particular, an amendment that was proposed in 1992 and later adopted.
The court specifically noted that the proposed amendment addressed “the procedure for
                                              6
all claims for attorney fees under statute or contract.” (Sanabria, supra, 92 Cal.App.4th
at p. 427, italics added.) The court found it “apparent” from the legislative history that
“any omission in the language of the rule with respect to setting forth time limits for
moving for attorney fees after the entry of voluntary dismissal was wholly inadvertent.”
(Id. at pp. 428-429.) The court concluded that former rule 870.2 governed the Sanabria
defendants’ motion for attorney’s fees, which was not filed within 60 days after service
of the plaintiff’s notice of entry of dismissal and was therefore untimely. (Sanabria, at
pp. 428-429.) In the context of the facts of the Sanabria case, the court’s statement that
former rule 870.2 “was adopted in order to provide time limits within which all motions
for attorney fees in civil cases must be made” provides no support for Francis’s and
Robinson’s position. (Sanabria, at p. 428.)


                                  B. Stay Pending Appeal
       Francis and Robinson contend that the time for filing Lambert’s fees motion was
not stayed by the filing of the Dalton I appeal. They assert that “numerous cases . . . hold
that trial courts retain jurisdiction to rule on motions for attorney’s fees even after a
notice of appeal has been filed.” The cases that they string cite do not advance their
position. Those cases are easily distinguished because all of them addressed motions to
recover statutory or contractual attorney’s fees. (Nazemi v. Tseng (1992) 5 Cal.App.4th
1633, 1641 [motion to recover contractual attorney’s fees as an item of costs not
automatically stayed by filing of an appeal]; In re Marriage of Askmo (2000) 85
Cal.App.4th 1032, 1039 [trial court’s power to enforce temporary support orders and
attorney’s fee orders in marriage dissolution cases continues during the pendency of any
appeal]; Sherry H. v. Thomas B. (1988) 203 Cal.App.3d 1500, 1502 [appeal from
paternity judgment does not divest trial court of jurisdiction to award statutory attorney’s
fees]; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360 [trial court retains
jurisdiction to award statutory attorney’s fees.].) Those cases are inapposite because
                                               7
Lambert did not seek statutory or contractual attorney’s fees. (Roberts v. City of
Palmdale (1993) 5 Cal.4th 363, 372 [“Obviously, cases are not authority for propositions
not considered therein.”].)


                                   C. Bankruptcy Stay
       Francis and Robinson next contend that Lambert’s fees motion was untimely even
if Century 21 Alpha’s August 15, 2008 bankruptcy filing stayed all proceedings in the
trial court. They assert that Lambert could have filed her fees motion before
August 15, 2008, and in any event should have filed it within 60 days after the
bankruptcy stay was lifted in 2011. We reject the argument. The 60-day rule on which
Francis and Robinson rely applies to motions for statutory or contractual attorney’s fees.
(Rule 3.1702.) We have already decided that the rule has no application here.


                        D. Attorney’s Fees Incurred on Appeal
       Francis and Robinson next contend that the trial court’s award to Lambert of
attorney’s fees incurred on appeal must “at the very least” be reversed because this
court’s ruling “on both [the Dalton I and Dalton II appeals] was that each party shall bear
their own costs on appeal.” The argument lacks merit. Francis and Robinson continue to
confuse the right to recover statutory or contractual attorney’s fees as an item of costs
(Code Civ. Proc., § 1033.5, subd. (a)(10)) with the right to recover attorney’s fees as tort
of another damages. In the tort of another context, “we are not dealing with ‘the measure
and mode of compensation of attorneys’ but with damages wrongfully caused by
[Francis’s and Robinson’s] improper actions.” (Prentice v. North American Title
Guaranty Corp. (1963) 59 Cal.2d 618, 621 (Prentice).) In Dalton II, we explained the
distinction between statutory and contractual attorney’s fees on the one hand and tort of
another damages on the other hand. (Dalton II, supra, H033247.) We need not repeat
that explanation here. This court’s prior rulings that the parties should bear their own
                                              8
costs on appeal do not affect Lambert’s entitlement to recover her attorney’s fees on
appeal as tort of another damages. (Ibid.)


                                 E. Allegedly Excessive Fees
       Francis and Robinson next contend that the trial court abused its discretion in
awarding Lambert $104,060.01 in attorney’s fees incurred in the trial court on “a simple
damage claim which the jury decided was only worth $85,495.” They assert that that
amount should be reduced by 50 percent because Lambert “failed to justify her attorney’s
fees” and the award was “clearly excessive.” We disagree.
       We reject the contention that Lambert “failed to justify” the attorney’s fees she
incurred in the trial court. Her trial counsel submitted a sworn declaration that explained
his firm’s hourly billing rates as compared to rates charged by comparable local firms.
He attached itemized billing statements that described the specific tasks performed by
him or by his legal assistant under his supervision, the dates on which those tasks were
performed, the amount of time spent on each, and the fee charged. This evidence was
more than adequate to support the trial court’s determination of the “reasonably
necessary” attorney’s fees to which Lambert was entitled as damages under Prentice.
(Prentice, supra, 59 Cal.2d at p. 620.) “[T]he trial court has broad authority to determine
the amount of a reasonable fee.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1095 (Drexler).) “ ‘The “experienced trial judge is the best judge of the value of
professional services rendered in his court . . . .” ’ ” (Ibid.) Consequently, “ ‘[t]he amount
to be awarded in attorney’s fees is left to the sound discretion of the trial court.’ ” (Ibid.)
That determination “ ‘ “will not be disturbed unless the appellate court is convinced that it
is clearly wrong.” ’ ” (Ibid.)
       Francis’s and Robinson’s argument that Lambert incurred $104,060.01 in
attorney’s fees on a “simple damage claim” that the jury decided was “only worth
$85,495” does not allow us to say that the amount the trial court awarded was clearly
                                               9
wrong. (Drexler, supra, 22 Cal.4th at p. 1095.) In Stokus v. Marsh (1990) 217
Cal.App.3d 647 (Stokus), the court affirmed an award of $75,000 in attorney’s fees to the
plaintiff, who recovered possession and damages in an unlawful detainer action that was
“tenaciously over-litigated.” (Id. at pp. 651, 653.) The court held that the amount was
“reasonable in light of the work required to be done” although the plaintiff recovered
only $6,166 in damages. (Id. at pp. 651, 654.)
       This case too was “ ‘tenaciously litigated,’ ” as the trial court expressly found.
(Dalton II, supra, H033247.) The trial court noted that the case “ ‘went through three
mediation sessions.’ ” (Ibid.) “Almost three dozen depositions were taken. ‘Nine experts
were called as witnesses.’ Trial took 11 days.” (Ibid.) In these circumstances, Francis’s
and Robinson’s argument that the jury awarded the plaintiffs less than the amount
Lambert incurred in attorney’s fees does not persuade us that the trial court abused its
discretion in awarding her those fees.
       Francis and Robinson identify no other basis on which we might conclude that the
trial court abused its discretion in determining the amount of fees to which Lambert was
entitled under Prentice. Nowhere in their briefs is there any argument that the hourly
rates charged by Lambert’s trial counsel’s firm were unreasonable, that any task
performed was unnecessary, or that the amount of time expended on any task was
inappropriate, unreasonable, or duplicative.
       Nowhere in the record before us is there any evidence that Francis and Robinson
raised any specific objection in the trial court to the rates charged, the hours spent, or the
work performed. This is fatal to their claim that the trial court’s award of $104,060.01 in
attorney’s fees incurred in the trial was “clearly excessive.” “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
                                               10
Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) Francis’s and Robinson’s
failure to properly raise their excessive fees argument in the trial court has forfeited the
argument on appeal. (Ibid.)


                          F. Alleged Double Recovery of Costs
       Francis and Robinson contend that the trial court’s award to Lambert of costs in
addition to those claimed in her June 27, 2008 costs memorandum must be stricken
“because the issue of costs has already been litigated and decided” and Lambert should
not be allowed a “double recovery.” The argument lacks merit.
       There was no double recovery here. Lambert’s June 27, 2008 costs memorandum
identified $13,706.16 in costs incurred before that date. The trial court’s
November 7, 2011 order allowed that amount, but Lambert did not then recover it
because Francis and Robinson appealed from the November 7, 2011 order. In Dalton II,
we held that the amount the trial court allowed improperly included $1,550 in filing and
motion fees. We modified the November 7, 2011 order to disallow that amount and
affirmed the order as modified, thus authorizing Lambert’s recovery of $12,156.16 in
costs incurred before June 27, 2008. On remand in 2014, Lambert sought to recover
those costs plus an additional $17,569.65 in costs incurred after June 27, 2008, for a total
of $29,725.81. We reject Francis’s and Robinson’s “double recovery” argument.
       We also reject their two-sentence argument that “[t]he costs issue has already been
decided. It is res judicata and collateral estoppel.” “When a point is asserted without
argument and authority for the proposition, ‘it is deemed to be without foundation and
requires no discussion by the reviewing court.’ [Citations.] Hence, conclusory claims of
error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
       Here, the argument also fails on the merits. “Collateral estoppel precludes
relitigation of issues argued and decided in prior proceedings. [Citation.]” (Lucido v.
Superior Court (1990) 51 Cal.3d 335, 341.) The doctrine applies “only if several
                                              11
threshold requirements are fulfilled. First, the issue sought to be precluded from
relitigation must be identical to that decided in a former proceeding.” (Ibid.) That
requirement is not satisfied here. The trial court’s November 7, 2011 order addressed the
costs Lambert incurred before June 27, 2008. The order did not address the additional
$17,569.65 in costs that Lambert incurred after June 27, 2008. Because these issues are
not identical, the doctrine of collateral estoppel did not bar the trial court from
considering Lambert’s request to recover later-incurred costs. (Ibid.)


                                      III. Disposition
       The judgment is affirmed. Lambert shall recover her costs on appeal.




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                                ___________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Grover, J.




Lambert v. Francis et al.
H041665

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