Filed 9/30/16 Lan v. Comcast CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE




TOM LAN,

         Plaintiff and Appellant,
                                                                            A147025
         v.
                                                                            (Alameda County
COMCAST CORPORATION, LLC,                                                   Super. Ct. No. RG13681816)

      Defendant and Respondent.
____________________________________/

         Tom Lan appeals from trial court orders granting Comcast Cable Communications
Management, LLC’s (Comcast) motion for Labor Code section 98.2 attorney fees and
denying his motion to vacate the attorney fee award.
         We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         Comcast terminated Lan, and he filed a claim with the California Labor
Commissioner, which awarded him $19,348.02. Lan challenged the Labor
Commissioner’s decision in the superior court. In late 2013, following a de novo bench
trial, the court reversed the Labor Commissioner’s award and entered judgment for




                                                             1
Comcast. The court also awarded Comcast attorney fees pursuant to section 98.2,
subdivision (c).1 Lan appealed, and this court affirmed. (Lan I, supra, A140039/
A149398.)
       Upon remittitur, Comcast filed a motion for $87,444.10 in attorney fees pursuant
to section 98.2, claiming it was entitled to attorney fees incurred in Lan I for
“successfully defending” the trial court’s 2013 judgment. Comcast argued its attorney
fees were reasonable; in a supporting declaration, Comcast’s attorney described the time
she spent litigating Lan I and attached time records. Lan’s opposition did not address
Comcast’s entitlement to attorney fees, except to argue Comcast could not recover such
fees because his “unpaid wage claim” was “still in appeal processes.”
       Lan did not contest the tentative ruling and it became the court’s final decision.
The court partially granted the motion and awarded Comcast $77,400 in section 98.2
attorney fees. It determined the attorney fees were reasonable and that “a significant
portion” of the “fees were incurred dealing” with Lan’s “unorthodox tactics[.]” The court
later denied Lan’s motion to vacate the attorney fee award.
                                       DISCUSSION
       Section 98.2, subdivision (c) provides: “If a party seeking review by filing an
appeal to the superior court is unsuccessful in the appeal, the court shall determine the
costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess
that amount as a cost upon the party filing the appeal.” The “‘purpose and intent behind
section 98.2(c) is to discourage frivolous and unmeritorious appeals from the
commissioner’s awards, regardless of whether they are taken by employers or
employees.’ [Citation.]” (Arneson v. Royal Pacific Funding Corp. (2015) 239


1
        We grant Comcast’s unopposed request for judicial notice of certain court records
–– including our opinion –– in Lan’s prior appeal, Lan v. Comcast Corporation, LLC
(Apr. 24, 2015, A140039/A149398) [nonpub.opn.] (Lan I)). (Evid. Code, §§ 452, 459.)
All undesignated statutory references are to the Labor Code. Section 98.2, subdivision
(c) provides for an award of attorney fees and costs against a party who appeals the Labor
Commissioner’s award through a trial de novo in the superior court and is “unsuccessful
in the appeal[.]”
                                              2
Cal.App.4th 1275, 1279, fn. 5.) “‘[S]ection 98.2(c) is designed to penalize appealing
employers and employees who turn to the courts after rejecting what, in retrospect, was a
reasonable commissioner’s award.’ [Citation.]” (Ibid.)
       Here, section 98.2 authorized Comcast to recover attorney fees incurred in
successfully litigating Lan I, the appeal from the trial court’s 2013 judgment. Lan does
not argue otherwise. “‘[I]t is established that fees, if recoverable at all –– pursuant either
to statute or parties’ agreement –– are available for services at trial and on appeal.’
[Citations.] Indeed, appellate courts have consistently permitted a successful party to
recover attorney fees incurred on appeal when a statute expressly permits such an award
in the trial court or other lower tribunal.” (Morcos v. Board of Retirement (1990) 51
Cal.3d 924, 927 [“statutes authorizing attorney fee awards in lower tribunals include
attorney fees incurred on appeals of decisions from those lower tribunals”]; see also Gipe
v. Superior Court (1981) 124 Cal.App.3d 617, 626 [“proceedings” under section 98.2
include a conventional appeal following a trial de novo]; Tabarrejo v. Superior Court
(2014) 232 Cal.App.4th 849, 869-870 [awarding section 98.2 attorney fees incurred in
appellate writ proceeding following trial court challenge to Labor Commissioner’s
ruling].)
       “‘“‘An order granting . . . an award of attorney fees is generally reviewed under an
abuse of discretion standard of review[.]” [Citations.]’”’ [Citation.]” (Carpenter &
Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 378.) There was no abuse of
discretion here, and we reject Lan’s contention that insufficient evidence supports the
attorney fee award. Comcast supported its attorney fee motion with evidence
establishing the reasonableness of the hours claimed and the attorney’s hourly rate.
       Lan claims the attorney fee award must be reversed because the court granted
Comcast’s motion without holding a hearing. We disagree. The tentative ruling was
published pursuant to Alameda County Superior Court Local Rule 3.30(d), which
incorporates the procedure outlined in California Rules of Court, rule 3.1308(a)(1), and
provides the tentative ruling will “become the ruling of the court” unless a party provides
timely notice of its intention to appear at the scheduled hearing. (Super. Ct. Alameda

                                              3
County, Local Rules, rule 3.30(d).) Because Lan did not contest the tentative ruling or
indicate his intention to appear at the scheduled hearing, the tentative ruling became final
without a hearing.2 (See Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 870,
fn. 5.) Finally, we reject Lan’s claim that the court lacked jurisdiction to award attorney
fees.
                                      DISPOSITION
        The orders awarding Comcast $77,400 and denying Lan’s motion to vacate the
attorney fee award are affirmed. Comcast is entitled to costs on appeal.




                                                 _________________________
                                                 Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




2
       Lan devotes a substantial portion of his brief to challenging the trial court’s 2013
judgment and its original attorney fee award. We rejected these claims in Lan I and do
not revisit them here. We also decline to consider Lan’s complaints about our decision in
Lan. I. Finally, we admonish Lan for his inexcusable personal attacks on the trial court
and Comcast. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1176.)
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