Harris v. University Village Thousand Oaks CCRC CA2/6

Filed 3/21/22 Harris v. University Village Thousand Oaks CCRC CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

ADRIAN HARRIS et al., 2d Civil No. B311972
(Super. Ct. No. 56-2015-
Plaintiffs and Appellants, 00472965-CU-NP-VTA)
(Ventura County)
v.

UNIVERSITY VILLAGE
THOUSAND OAKS CCRC LLC
et al.,

Defendants and Respondents.

In a previous appeal, we reversed the judgment that
had confirmed an award after arbitration in favor of University
Village Thousand Oaks (UVTO). We remanded this case to the
trial court for trial. (Harris v. University Village Thousand Oaks
CCRC LLC (2020) 49 Cal.App.5th 847 (Harris 1).) On remand,
the trial court denied, without prejudice, appellants’ pretrial
motion for costs and attorney’s fees incurred in opposing and
conducting the arbitration proceedings. We conclude that the
interlocutory order denying costs and attorney’s fees without
prejudice is not appealable. Accordingly, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants Adrian Harris, Sonya Harris, David
Clark, Jennifer Andrews-Clark,1 and Robert James were
residents of UVTO. Upon admission, they signed Residence and
Care Agreements with UVTO (“the agreements”). The
agreements for the Harrises and the Clarks included arbitration
clauses that provided (with insignificant wording variations):
“Each party shall bear its own costs and fees in connection with
the arbitration.” With minor variations in wording, the
agreements for the Harrises and Clarks also provided that: “If
any party brings any action or administrative proceeding to
enforce, protect, or establish any right or remedy with respect to
this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys’ fees. Arbitration is an action for purposes
of this Section.” The record does not include James’s agreement.
Appellants sued respondents2 for conversion,
negligence per se, negligence, intentional and negligent infliction
of emotional distress, fraudulent and negligent
misrepresentation, false advertising, unfair competition, elder
abuse, and declaratory relief. The trial court ordered arbitration
over appellants’ objection. UVTO prevailed in the arbitration

1 David Clark was substituted as successor in interest for
appellant Jennifer Andrews-Clark, who died during the pendency
of this appeal. (Code Civ. Proc., § 377.11; Cal. Rules of Court,
rule 8.36(a).)

2Respondents, collectively referred to herein as UVTO, are
University Village Thousand Oaks CCRC LLC; Life Care
Services LLC; Continuing Life, LLC; Ryan Exline; and Warren
Spieker.

2
and the trial court confirmed the arbitration award.
In Harris 1, we concluded that the arbitration clauses
were void. We reversed the judgment, remanded for trial, and
awarded appellants their costs on appeal.
On remand, appellants filed memoranda of costs and
a pretrial motion for: (1) costs on appeal ($16,854.78), (2)
attorney’s fees on appeal ($290,660), (3) costs related to
arbitration ($71,531.76), and (4) attorney’s fees related to
arbitration ($838,410). The trial court denied the respondents’
motion to tax costs on appeal and awarded $16,854.78, as
requested. The court denied the other costs and the attorney’s
fees as premature, “WITHOUT PREJUDICE to plaintiffs[]
renewing the motion upon the final adjudication of this action.”
Trial on the merits is pending.
This appeal challenges the trial court’s denial of costs
and attorney’s fees.3 UVTO filed a motion to dismiss the appeal,
which appellants opposed. We consolidated the motion to dismiss
with our consideration of the briefs on appeal.
DISCUSSION
Statutory basis for appeal
Appellants purport to appeal pursuant to Code of

3 For purposes of this appeal, we consider “costs” as
separate from “attorney’s fees.” (Compare Cal. Rules of Court,
rules 3.1700, 3.1702, 8.278(d) [distinguishing costs from
attorney’s fees] with Code Civ. Proc., § 1033.5, subd. (a)(10)
[listing attorney’s fees as a recoverable cost when authorized by
contract or law] and Civ. Code, § 1717, subd. (a) [attorney’s fees
are “an element” of costs].)

3
Civil Procedure4 sections 904.1, subdivision (a)(2), and 1294,
subdivision (e). We conclude that neither section authorizes this
appeal.
An appealable order or judgment “is a jurisdictional
prerequisite to an appeal.” (Jennings v. Marralle (1994) 8
Cal.4th 121, 126.) “The right to appeal is wholly statutory.
[Citation.]” (Dana Point Safe Harbor Collective v. Superior Court
(2010) 51 Cal.4th 1, 5.)
Section 904.1 “‘essentially codifies the “one final
judgment rule,”’’” which “‘is based on the theory that piecemeal
appeals are oppressive and costly, and that optimal appellate
review is achieved by allowing appeals only after the entire
action is resolved in the trial court. Ordinarily, there can be only
one final judgment in an action and that judgment must dispose
of all the causes of action pending between the parties.
[Citation.]’” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002)
96 Cal.App.4th 1357, 1365-1366.) The order here denying costs
and fees is a nonappealable interlocutory order because “‘“further
. . . judicial action on the part of the court is essential to a final
determination of the rights of the parties.”’” (In re Marriage of
Corona (2009) 172 Cal.App.4th 1205, 1216.)
Subdivision (a)(2) of section 904.1 authorizes an
appeal “[f]rom an order made after a judgment.” But our reversal
of the judgment in Harris 1 “create[d] a situation where no
judgment is deemed to have been entered.” (Apex LLC v.
Korusfood.com (2013) 222 Cal.App.4th 1010, 1015.) “Our
judgment in [the prior appeal] is not a judgment made appealable
under Code of Civil Procedure section 904.1, subdivision (a)(1).”

4
Undesignated statutory references are to the Code of Civil
Procedure.

4
(Ibid.) Because there has been no appealable judgment, appeal of
the order denying fees is not authorized as “‘an order made after
a judgment.’” (Ibid.)
Markart v. Zeimer (1925) 74 Cal.App. 152, upon
which appellants rely, does not help them. It permitted an
appeal from denial of a motion to tax costs on appeal. (Id. at p.
158.) Here, there is no appeal from the superior court’s order
awarding the costs on appeal we authorized in Harris 1.
Moreover, Markart was based on former section 963, which
allowed an appeal “from any special order made after final
judgment.” (Stats. 1923, ch. 366, § 2.) Former section 963 did
“not expressly restrict its operation as to appeals from special
orders after final judgments to those made after final judgments
of the superior court.” (Markart, at p. 158.) But current law does
so; it expressly restricts appeals to an order after an appealable
judgment. (§ 904.1, subd. (a)(2).)
Nor is the trial court’s order appealable pursuant to
section 1294, subdivision (e), which authorizes appeal of “a
special order after final judgment” in an arbitration case. As in
Fleur du Lac Estates Assn. v. Mansouri (2012) 205 Cal.App.4th
249, 257, our ruling in Harris 1 reversing the arbitration award
“did not put a definitive end to the proceeding,” and “was not the
equivalent of the final judgment in this proceeding.” In Fleur du
Lac, the denial of a petition to compel arbitration was not deemed
to be a final judgment because it did not preclude a second
petition for arbitration. Likewise, our ruling in Harris 1 was not
a final judgment because it resulted in remand for trial. As in
Fleur du Lac, the appeal here must be dismissed.
Costs and attorney’s fees on appeal
Appellants contend they may now appeal from the

5
trial court’s denial of their motion for attorney’s fees incurred on
appeal. We disagree.
On appeal, “[u]nless the court orders otherwise, an
award of costs neither includes attorney’s fees on appeal nor
precludes a party from seeking them under rule 3.1702.” (Cal.
Rules of Court, rule 8.278(d)(2).) “Rule 8.278(d)(2) . . .
underscores the distinction between trial costs, which may
include attorney fees, and appellate costs, which do not. . . .
‘[A]ny decision on allocation of appellate costs is irrelevant to a
later motion for fees in the trial court.’ [Citation.]” (Stratton v.
Beck (2018) 30 Cal.App.5th 901, 910-911, italics omitted.)
“The provisions allowing costs on appeal . . . are
entirely separate from the contractual provision for fees and do
not depend on the party winning the appeal being the ultimate
prevailing party.” (Presley of Southern California v.
Whelan (1983) 146 Cal.App.3d 959, 962.) A “well settled rule
exclud[es] attorney fees from the costs a party winning an appeal
may recover under section 1034 [citations].” (Ibid.)
Costs ordered by the appellate court are
“conceptually separate” from costs and fees on appeal awarded by
a trial court pursuant to some other authority. (Lucky United
Properties Investment, Inc. v. Lee (2013) 213 Cal.App.4th 635, 655
[costs and fees pursuant to anti-SLAPP statute].) Here, the
source of attorney’s fees sought by appellants resides in the
underlying contracts, not in our disposition in Harris 1.
Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th
681 (Barnes) held that following an appeal reversing a judgment,
a trial court order partially taxing appellant’s costs was not
appealable, for two reasons. First, no judgment had been
entered. (Id. at pp. 683-684.) Second, because “the case is

6
presently awaiting trial,” the order taxing costs was “not
sufficiently final.” (Id. at p. 685.) This reasoning precludes the
appeal here of the pretrial order denying attorney’s fees on
appeal.
Krikorian Premiere Theatres, LLC v. Westminster
Central, LLC (2011) 193 Cal.App.4th 1075 (Krikorian), upon
which appellants rely, declined to follow Barnes and held that an
order denying in part a motion to tax costs on appeal was
appealable. (Krikorian, at p. 1083.) The court reasoned that the
award of costs on appeal “‘“finds its origin in the order of an
appellate . . . [c]ourt.”’” (Ibid.) Here, no party appealed from the
trial court’s award of costs on appeal. Because our order in
Harris 1 did not originate any award of attorney’s fees, Krikorian
does not authorize an appeal of the trial court’s denial of
attorney’s fees following remand but before trial.
In Rostack Investments, Inc. v. Sabella (2019) 32
Cal.App.5th 70, 79, the court referred to Barnes as “an outlier”
and stated the prevailing view that “an order taxing appellate
costs (or an order denying a motion to tax those costs) is
immediately appealable,” even when trial following remand is
still pending. The reason is that the appellate court’s ruling
“represents an independent judgment” and “it is the appellate
court, not the trial court, that is the source of the award,”
notwithstanding the trial court’s role in setting the amount.
(Rostack, at pp. 78-79.) But here, any award of attorney’s fees
would originate with the trial court, not the appellate court.
Thus, appellants may not appeal from the interlocutory order
denying attorney’s fees on appeal.
Trial court and arbitration costs and fees
Nor does appeal lie from the denial of costs and

7
attorney’s fees connected with appellants’ opposition in the trial
court to the motion to compel arbitration, or for the arbitration
itself. Like the denial of attorney’s fees on appeal, denial of the
other costs and fees is not appealable as an order after judgment
because there is no appealable judgment. (§§ 904.1, subd. (a)(2),
1294, subd. (e).)
Appellants contend the petition for arbitration was a
separate equitable action that was resolved in their favor in
Harris 1 and is now final. They rely on Squire’s Department
Store, Inc. v. Dudum (1953) 115 Cal.App.2d 320 (Squire’s).
Squire’s is inapposite.
In Squire’s, the lessor sued the lessee for fraud.
(Squire’s, supra, 115 Cal.App.2d at p. 322.) The lessee filed a
petition to compel arbitration as a second lawsuit under a
different case number. (Id. at p. 325.) The Court of Appeal held
that the order denying the petition for arbitration and dismissing
that action “operated as a final judgment and as such is
appealable.” (Id. at p. 330.) The lessee could also appeal the
order awarding costs to the lessor (including a portion of the
arbitrator’s fee) “as a special order made after final judgment.”
(Id. at p. 331.)5
A similar result was reached in Otay River
Constructors v. San Diego Expressway (2008) 158 Cal.App.4th
796 (Otay). Because the defendant in Otay defeated an
independent petition for arbitration, and the arbitration clause
was “the only contract claim at issue in the action,” the defendant

5After Squire’s, the law was changed to provide that when
a lawsuit has been filed, the arbitration petition must be filed in
the same lawsuit. (§ 1292.4; Frog Creek Partners, LLC v. Vance
Brown, Inc. (2012) 206 Cal.App.4th 515, 521, fn. 4 (Frog Creek).)

8
was entitled to attorney’s fees incurred before litigating the same
claims pursuant to another contract. (Id. at p. 807.) In Otay, the
court held that the order denying attorney’s fees and costs was
appealable as “‘[a] special order after final judgment’” pursuant
to section 1294, subdivision (e). (Otay, at p. 801.)
But neither Squire’s nor Otay authorizes the appeal
here. No independent lawsuit for arbitration was filed, let alone
terminated, and the merits of the only lawsuit filed by appellants
have not been determined.
Petitions to compel arbitration filed in an existing
lawsuit were the subject of Frog Creek, supra, 206 Cal.App.4th
515. There, the defendant filed two petitions to compel
arbitration, based on different versions of the contract. The
Court of Appeal denied arbitration in the appeal of the first
petition but upheld the right to arbitrate in the appeal of the
second petition. After arbitration, the trial court awarded
attorney’s fees to both parties based on their respective appellate
victories. The Court of Appeal held that there can be only one
prevailing party entitled to attorney’s fees regarding “contractual
claims involving the same contract,” and reversed the award of
attorney’s fees to plaintiff. (Id. at pp. 527, 547.) The court
distinguished cases allowing fees after “a party defeats an
independent petition to compel arbitration” because there, “the
action is terminated,” “‘even though the merits of the parties’
underlying contractual disputes have not yet been resolved . . . .’”
(Id. at pp. 533-534, some italics added.)
The purported appeal here is not from “‘discrete legal
proceeding[s]’” in an independent petition to compel arbitration,
but is instead “‘an interim ruling, where further proceedings in
the same litigation [are] contemplated.’” (Frog Creek, supra, 206

9
Cal.App.4th at p. 535, italics omitted.) And unlike Frog Creek,
the purported appeal taken here is from an order declining to
order the payment of money made before resolution of the merits
of the lawsuit. Moreover, the Frog Creek opinion does not discuss
whether the order granting fees was appealable. “‘“‘It is
axiomatic that cases are not authority for propositions not
considered.’” [Citations.]’” (Tate v. Wilburn (2010) 184
Cal.App.4th 150, 159, fn. 8.)
Appellants’ reliance on DisputeSuite.com, LLC v.
Scoreinc.com (2017) 2 Cal.5th 968, is misplaced. There, our
Supreme Court affirmed the denial of attorney’s fees following
dismissal of the California case based on forum non conveniens.
The court held that because the “interim victor[y]” did not resolve
the merits of the lawsuit, there was no “prevailing party” entitled
to attorney’s fees pursuant to Civil Code section 1717.
(DisputeSuite.com, at p. 977.) Like Frog Creek, the court did not
discuss appealability.
Collateral order doctrine
Appellants contend that cases allowing appeal of
interim awards of costs or fees authorize the appeal here. We are
not persuaded.
The collateral order doctrine allows appeal of “an
interlocutory order collateral to the main issue, dispositive of the
rights of the parties in relation to the collateral matter, and
directing payment of money or performance of an act.” (In re
Marriage of Skelley (1976) 18 Cal.3d 365, 368.) The collateral
order doctrine allows appeal of orders to pay money, not orders
denying requests for costs or fees. (Pacific Corporate Group
Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 306.)
As discussed above, Krikorian held that an order

10
denying in part a motion to tax costs on appeal was appealable as
an order after judgment. The court further stated, “Separately
and alternatively, however, even assuming an order taxing costs
is no longer appealable as an order after judgment, we believe it
is appealable under the collateral order doctrine.” (Krikorian,
supra, 193 Cal.App.4th at p. 1083.) “The effect of an order
denying a motion to tax costs, in whole or in part, is that the
moving party must pay the costs allowed.” (Id. at p. 1084.) The
court declined to “decide whether an order taxing all costs, and
thus awarding zero, would be immediately appealable.” (Id. at p.
1084, fn. 3.)
Krikorian is consistent with Lachkar v. Lachkar
(1986) 182 Cal.App.3d 641, 645, fn. 1, and Acosta v. Kerrigan
(2007) 150 Cal.App.4th 1124, 1128, fn. 4, which allow appeals of
attorney’s fee awards for successful motions to compel arbitration
as “an order requiring an aggrieved party immediately to pay
money or perform some other act.” But none of these cases
authorize an appeal of an interlocutory order denying costs and
fees.
In Apex LLC v. Korusfood.com, supra, 222
Cal.App.4th at p. 1015, fn. 1, the court noted the split of
authority between Barnes and Krikorian regarding whether a
trial court order granting attorney’s fees on appeal was
appealable pursuant to section 904.1, subdivision (a)(2). The
court declined to decide which case to follow because the order to
pay fees was appealable as a collateral order. (Apex, at p. 1015,
fn. 1.) But the appeal here does not challenge an order to pay.
Nor is appeal authorized by Patterson v. Superior
Court (2021) 70 Cal.App.5th 473, cited by appellants. The
agreement in Patterson, unlike the agreements here, specifically

11
required that a party resisting arbitration pay all fees, costs, and
expenses incurred by the other party to compel arbitration. (Id.
at p. 479.) But the case arose from a writ of mandate, not an
appeal. And the writ vacated an order to pay fees, not an order
denying fees without prejudice.
More recently, Division 7 of the Second Appellate
District held that an order denying attorney’s fees was not a
collateral order because it did not direct the payment of money.
(Sanchez v. Westlake Services, LLC (2022) 73 Cal.App.5th 1100,
1108.) In Sanchez, the trial court awarded costs and
prejudgment interest, but because there was no attempt to
appeal that portion of the court’s order, the order denying
attorney’s fees was not appealable as a collateral order. (Ibid.)
The same result follows here.
Action on a contract
Finally, appellants contend the order denying
attorney’s fees and costs is appealable because the arbitration
petition was the only contractual claim made, and it was resolved
in their favor. We reject this contention. Indeed, we need not
determine whether arbitrability was the sole contractual claim
because the denial of attorney’s fees and costs, without prejudice,
was not an order following an appealable judgment.
Appellants rely on Hsu v. Abbara (1995) 9 Cal.4th
863, which stated that pursuant to Civil Code section 1717, “the
determination of prevailing party for purposes of contractual
attorney fees was to be made without reference to the success or
failure of noncontract claims.” (Hsu, at pp. 873-874.) There, the
contractual and noncontractual claims involved different parties.
The contractual claims (a complaint filed by potential buyers
against the sellers seeking specific performance of a purported

12
sales contract) were bifurcated for trial from the noncontractual
claims (a cross-complaint by the sellers against their real estate
agents for negligence, breach of fiduciary duty, and breach of the
listing agreement). (Id. at p. 867.) The sellers sought attorney’s
fees following trial on the complaint in which the court granted
judgment in their favor. The court stated, “a party who is denied
direct relief on a claim may nonetheless be found to be a
prevailing party if it is clear that the party has otherwise
achieved its main litigation objective.” (Id. at p. 877.) Hsu is
inapposite here because no party has “achieved its main litigation
objective.” (Ibid.) Moreover, the issue in Hsu was the trial
court’s discretion to award fees, not appealability.
In summary, regardless of whether arbitrability was
the only contractual issue presented below, the denial of costs
and fees, without prejudice to renewal upon resolution of the
merits, is not an appealable order.
DISPOSITION
The appeal is dismissed. Respondents shall recover
their costs on appeal.
NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J. PERREN, J.

13
 Matthew P. Guasco, Judge

Superior Court County of Ventura

______________________________

Law Office of Glenn A. Harris and Glenn A. Harris
for Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, Jeffrey A. Miller,
Tracy D. Forbath, Bryan R. Reid and Judith M. Tishkoff for
Defendants and Respondents.