Filed 11/3/14 Sampson v. The Richardson Group CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


FLOYD A. SAMPSON,

     Plaintiff and Appellant,                                          G049174

                   v.                                                  (Super. Ct. No. 30-2010-00384267)

THE RICHARDSON GROUP, INC., et al.,                                    OPINION

     Defendants and Respondents.



                   Appeal from postjudgment orders of the Superior Court of Orange County,
Geoffrey T. Glass, Judge. Motion to Augment the record. Orders affirmed. Motion
denied.
                   Floyd A. Sampson, in pro. per., for Plaintiff and Appellant.
                   Chambers Law Firm and Dan E. Chambers for Defendants and
Respondents.


                                             *               *               *
              Plaintiff Floyd A. Sampson, doing business as Sampson Electric, appeals
from two postjudgment orders. The first order awarded defendants The Richardson
Group (TRG), and its president, Kimm A. Richardson, attorney fees of $27,355 and costs
of $3,105.37 for successfully opposing plaintiff’s earlier appeal from the judgment.
(Sampson v. The Richardson Group, Inc. (Jan. 30, 2013, G046234) [nonpub. opn.].) The
second order denied plaintiff’s motion to consolidate this case with TRG’s two prior
declaratory relief actions that had challenged the amount of a stop notice plaintiff served
on the owner of a construction project.


                    FACTS AND PROCEDURAL BACKGROUND


              The County of Orange contracted with TRG to rehabilitate and expand a
county facility. In turn, TRG entered into an agreement with plaintiff to perform
electrical work on the project. The electrical subcontract contained a clause authorizing
TRG to recover attorney fees in any action on the agreement.
              A dispute arose over the amount owed to plaintiff for his work on the
project. In March 2010, plaintiff served the County with a stop notice, claiming over
$202,000 under the electrical subcontract. He also sued TRG, Richardson, and others on
the subcontract. The complaint alleged Richardson was personally liable for TRG’s
actions under an alter ego theory. Richardson subsequently moved for summary
judgment. The trial court granted the motion and dismissed him from the action.
              In September, TRG filed a declaratory relief action against plaintiff
claiming the amount sought in his stop notice was excessive. (The Richardson Group,
Inc. v. Sampson (Super. Ct. Orange County, 2010, No. 30-2010-00411946.) The trial
court ruled the declaratory relief action was procedurally defective. Later, TRG
voluntarily dismissed this action.



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              It then filed a second declaratory relief action seeking the same relief. (The
Richardson Group, Inc. v. Sampson (Super. Ct. Orange County, 2011, No. 30-2011-
00471350.) After a hearing, the trial court entered an order acknowledging: (1) “the
parties do not dispute” plaintiff was owed $141,200 for his work on the project and that
TRG was entitled to a credit for payments it made to material suppliers on plaintiff’s
behalf, and (2) “the real amount in controversy” was approximately $21,000.
              After a nonjury trial, the court entered judgment for TRG. It also declared
TRG to be the prevailing party and denied plaintiff’s motion to vacate the judgment.
Subsequently, the court awarded TRG attorney fees of $6,000. In January 2012, TRG
filed a request to dismiss its second declaratory relief action.
              Plaintiff appealed the judgment. He challenged the pretrial order
dismissing Richardson, the judgment, and the denial of his postjudgment motion. In
January 2013, this court issued an opinion affirming the trial court’s rulings.
              Upon remand, TRG and Richardson filed a motion seeking nearly $92,000
in attorney fees and costs for the prior appeal. Two days later, plaintiff filed a motion to
consolidate this action with TRG’s declaratory relief actions and requested the trial court
issue an order determining the “Overall Prevailing Party” in all three actions. The court
granted defendants’ motion, awarding them $27,355 in fees and $3,105.37 in costs. It
denied plaintiff’s motion to consolidate.


                                       DISCUSSION


1. Introduction
              Plaintiff’s notice of appeal refers to the trial court’s August 27, 2013
minute order granting defendants’ motion for attorney fees and costs for the prior appeal.
This order is an appealable ruling. (Citizens Against Rent Control v. City of Berkeley



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(1986) 181 Cal.App.3d 213, 223; see Harbour Landing-Dolfann, Ltd. v. Anderson (1996)
48 Cal.App.4th 260, 262-263 [reviewing order ruling on a party’s right to attorney fees
incurred in a prior appeal].)
              The same day, the trial court denied plaintiff’s motion to consolidate
this action with TRG’s prior declaratory relief actions. Plaintiff had argued the prior
actions were relevant to the question of who was the overall prevailing party in this
litigation. A ruling on a consolidation request is not independently appealable (State
Farm Etc. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432), but it is an
“intermediate ruling . . . which involves the merits or necessarily affects the judgment or
order appealed from,” and thus also subject to appellate review (Code Civ. Proc., § 906).
              The bulk of plaintiff’s argument in his opening brief concerns the validity
of the trial court’s pretrial dismissal of Richardson and the judgment for TRG entered
after trial. Our prior decision affirming the trial court on all grounds constitutes the law
of the case. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309.) “Litigants
are not free to continually reinvent their position on legal issues that have been resolved
against them by an appellate court.” (Id. at p. 312.)
              Claiming defendants succeeded on the summary judgment motion and at
trial by both presenting false evidence and concealing or suppressing relevant evidence,
plaintiff argues the dismissal of Richardson and the judgment for TRG were the result of
fraud. The record does not support plaintiff’s contention. But even if it did, the fraud
was intrinsic in nature and not a basis to vacate the now final judgment. “The prior
judgment[] having been rendered by a competent court with jurisdiction of the parties and
subject matter in accordance with procedural due process constitute[d a] valid, final
judgment[],” and “is not subject to collateral attack.” (Kachig v. Boothe (1971) 22
Cal.App.3d 626, 636; see Cedars-Sinai Medical Center v. Superior Court (1998) 18
Cal.4th 1, 10 [“After the time for seeking a new trial has expired and any appeals have



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been exhausted, a final judgment may not be directly attacked and set aside on the ground
that evidence has been suppressed, concealed, or falsified; in the language of the cases,
such fraud is ‘intrinsic’ rather than ‘extrinsic’”].) Consequently, we decline to reconsider
the validity of these rulings.
              Since plaintiff’s motion to augment seeks to present documents solely
relevant to his attack on the order granting Richardson’s summary judgment motion and
the underlying judgment, we deny that request.


2. The Motion to Consolidate
              We review a ruling on a motion to consolidate for abuse of discretion.
(Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.)
Plaintiff claims the rulings on TRG’s declaratory relief actions were favorable towards
him and when the sum he recovered in the second action is compared with what the trial
court awarded TRG after trial, it is clear he was the prevailing party. The court denied
the consolidation motion because the declaratory relief actions had been dismissed and
thus, were no longer pending.
              The trial court properly exercised its discretion in this case. Code of
Civil Procedure section 1048, subdivision (a) authorizes a court to consolidate
“actions . . . pending before the court” where the cases “involve[e] a common question of
law or fact.” (Italics added.) “An action is [only] deemed to be pending from the time of
its commencement until its final determination upon appeal, or until the time for appeal
has passed, unless the judgment is sooner satisfied.” (Code Civ. Proc., § 1049.) In this
case, TRG dismissed its first declaratory relief action in May 2011 and the second
declaratory relief action in January 2012. Thus, as the court concluded they were no
longer pending when plaintiff filed his motion to consolidate in July 2013.
              Plaintiff argues the superior court clerk’s entry of TRG’s requests for
dismissal was improper. He is wrong. “[W]here no affirmative relief has been sought in

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the pleadings, the privilege of dismissing belongs to the plaintiff and may be exercised by
him without the knowledge of the other parties or the consent of the court.” (Roski v.
Superior Court (1971) 17 Cal.App.3d 841, 845; Code Civ. Proc., § 581, subd. (b)(1)
[plaintiff may dismiss action “upon written request . . . to the clerk . . . at any time before
the actual commencement of trial”].) This right is “absolute” and “[n]either the clerk nor
the trial court has any discretion in the matter.” (O’Dell v. Freightliner Corp. (1992) 10
Cal.App.4th 645, 659.) Further, “‘pretrial procedures not determinative of the case do
not preclude voluntary dismissal.’” (Gogri v. Jack In The Box, Inc. (2008) 166
Cal.App.4th 255, 262.)
              Plaintiff argues the trial court’s order in the second declaratory relief action
constituted a “final judgment” and thus the “clerk[’]s dismissal [of it] was an improper
administrative act.” Even assuming he is correct, the court’s ruling on the consolidation
motion was correct. The declaratory relief order was entered on July 25, 2011. No
appeal was taken from it. Thus, the order became final no later than January 23, 2012.
(Cal. Rules of Court, rule 8.104(a)(1)(C).)


3. The Award of Attorney Fees
              The trial court awarded attorney fees incurred in the earlier appeal based on
the attorney fee clause in the electrical subcontract between plaintiff and TRG. (Civ.
Code, § 1717, subd. (a).) In Harbour Landing-Dolfann, Ltd. v. Anderson, supra, 48
Cal.App.4th 260, this court held “because contractually authorized attorney fees are now
listed as costs under Code of Civil Procedure section 1033.5, . . . they may . . . be
requested . . . of the trial court upon issuance of the remittitur,” and it “has jurisdiction to
award them, regardless of the lack of specific instructions in the opinion or the
remittitur.” (Id. at pp. 264-265.)
              Other than his attack on the validity of the underlying judgment, plaintiff
does not dispute TRG’s right to recover its attorney fees and costs in the prior appeal.

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However, he does challenge Richardson’s entitlement to attorney fees. Plaintiff argues
Richardson was dismissed from the action by the pretrial order granting summary
judgment without making a request for attorney fees, and, in any event, was not a party to
the electrical subcontract. Defendants contend Richardson is entitled to an attorney fee
award because he “had to incur” them “to defend the trial court’s ruling on the motion for
summary judgment” in the prior appeal.
              The reasonableness of an order awarding attorney fees is reviewed for
abuse of discretion, but whether a contractual attorney fee provision applies is a question
of law that we review under a de novo standard. (Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, 1615.) This case involves the latter issue.
              Initially, we note there is some doubt about whether the attorney fee award
includes a separate amount for Richardson’s defense. The notice of motion states
defendants were seeking “an award of attorneys[] fees and costs awarded on appeal to
TRG.” The first argument in the attached memorandum of points and authorities is
entitled, “TRG Is Entitled to Recover Its Fees . . . Incurred in the Appeal.” (Boldface
omitted.)
              But even if the award contains a separate fee award for Richardson, we find
no error. In the prior appeal, plaintiff challenged the summary judgment order dismissing
Richardson. Our prior opinion upheld the trial court’s conclusion that plaintiff had failed
to establish he was entitled to recover additional sums for his work under the electrical
subcontract. As a result, since plaintiff had alleged Richardson was liable solely under an
alter ego theory, we held our ruling in TRG’s favor mooted plaintiff’s claims against
Richardson.
              In Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, the defendants
were shareholders and directors of a corporation that owned a subsidiary. The
corporation endorsed promissory notes for the subsidiary which were delivered to the



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plaintiff. Each note contained an attorney fee clause. Subsequently, both the corporation
and the subsidiary went bankrupt. Alleging they were the alter egos of the bankrupt
entities, the plaintiff sued the defendants on the notes. The defendants prevailed and
were awarded attorney fees.
              Although the Supreme Court reversed the amount of the award, it held the
defendants were entitled to recover the portion of the attorney fees incurred to defend
against the action on the promissory notes. “Had plaintiff prevailed on its cause of action
claiming defendants were in fact the alter egos of the corporation . . ., defendants would
have been liable on the notes. Since they would have been liable for attorney’s fees
pursuant to the fees provision had plaintiff prevailed, they may recover attorney’s fees
pursuant to [Civil Code] section 1717 now that they have prevailed.” (Reynolds Metals
Co. v. Alperson, supra, 25 Cal.3d at p. 129.)
              Here, plaintiff sued Richardson in an action on the electrical subcontract
alleging he was personally liable as TRG’s alter ego. He succeeded in challenging
plaintiff’s alter ego theory and TRG ultimately prevailed on the merits, both at trial and
on appeal.
              Of course, since plaintiff represented himself in this action, had he
succeeded in recovering for the balance of the services he claimed were due to him under
the subcontract, plaintiff would not have been entitled to an award of attorney fees.
(Trope v. Katz (1995) 11 Cal.4th 274, 292.) But Trope also noted, “Any litigant who
chooses to represent himself in an action to which [Civil Code] section 1717 applies
necessarily assumes the risk that he may be required to pay his opponent’s attorney fees
if he does not prevail, even though he will not be compensated for his own time and
effort regardless of the result.” (Id. at p. 289.) Plaintiff’s decision to represent himself in
this litigation should not bar Richardson’s right to recover attorney fees when he was
sued on a theory he was personally liable on an agreement that authorized a prevailing



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party to recover attorney fees. Thus, we conclude the award of attorney fees in this case
is appropriate.


                                     DISPOSITION


              The motion to augment the record is denied. The orders are affirmed.
Respondents shall recover their costs on appeal.




                                                   RYLAARSDAM, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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