Filed 7/25/22 Peng v. F.M. Tarbell CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BO PENG, B317907
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCP00416)
v.
F.M. TARBELL CO.,
Defendant and
Respondent.
APPEAL from postjudgment orders of the Superior Court of
Los Angeles County, Michael P. Linfield, Judge. Affirmed as
modified.
Bo Peng, in pro. per., for Plaintiff and Appellant.
Benjamin K. Griffin for Defendant and Respondent.
******
This is the third appeal in this matter. In the first appeal,
we affirmed a judgment concluding that a real estate agent who
fell outside of the statutory definition of an “employee” was not
entitled to unpaid wages under the Labor Code. (Peng v. F.M.
Tarbell Co. (Dec. 24, 2020, B304763) [nonpub. opn.] (Peng I).) In
the second appeal, we upheld as valid an award of $73,639.03 in
attorney fees and costs incurred during the proceedings giving
rise to that judgment. (Peng v. F.M. Tarbell Co. (May 27, 2021,
B307484) [nonpub. opn.] (Peng II).) In this appeal, the real estate
agent seeks to overturn the imposition of an additional $64,170 in
attorney fees and $434.30 in costs against him. The agent is
correct that the trial court abused its discretion in awarding a
sizable portion of the attorney fees—namely, $38,115. We
accordingly reduce the trial court’s postjudgment order by this
amount.
1
FACTS AND PROCEDURAL BACKGROUND
I. Regarding the First Appeal
A. The agreement
Bo Peng (plaintiff) is a licensed real estate agent. In April
2015, he signed an Independent Contractor Agreement (the
agreement) with F.M. Tarbell Company (Tarbell). In the
agreement, plaintiff agreed that (1) he was associating with
Tarbell solely as an independent contractor and not as an
“employ[ee],” (2) his “only remuneration” would be the
commission he earned for facilitating the sale or purchase of real
estate, and (3) “the prevailing [party]” “[i]n any action,
proceeding, or arbitration between” himself and Tarbell “arising
1 We draw these facts from our prior opinions in this matter,
Peng I and Peng II.
2
from or related to” the agreement “shall be entitled to reasonable
attorney’s fees and costs.”
In November 2017, Tarbell terminated the independent
contractor arrangement with plaintiff.
B. Proceedings before the labor commissioner
In August 2018, plaintiff filed a complaint with the labor
commissioner in which he asserted that he was an “employee” of
Tarbell and that $20,168.01 worth of commissions he was owed
constituted “unpaid wages” under Labor Code section 201, which
also triggered his entitlement to “waiting time penalties” under
Labor Code section 203. A hearing officer for the labor
commissioner awarded plaintiff no relief after finding he was not
an “employee” of Tarbell.
C. Plaintiff’s lawsuit, bench trial, and plaintiff’s
first appeal
In February 2019, plaintiff filed a complaint in superior
court seeking an “appeal de novo” pursuant to Labor Code section
98.2. Following a one-day bench trial in January 2020, the trial
court directed a verdict for Tarbell based on the independent
finding that plaintiff was an “independent contractor,” not an
employee entitled to unpaid wages or waiting time penalties.
The court entered judgment for Tarbell and against plaintiff, and
found Tarbell to be “the prevailing party in this case.”
Plaintiff appealed. In an unpublished opinion issued
December 24, 2020, we affirmed the judgment for Tarbell. (Peng
I, supra, B304763.) On March 25, 2021, we issued the remittitur
stating that “Tarbell is entitled to its costs on appeal.”
II. Regarding the Second Appeal
In February 2020, the month after Tarbell prevailed before
the trial court, it filed a memorandum of costs and a motion for
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attorney fees for the amounts it incurred in connection with the
proceeding before the labor commissioner and the “appeal de
novo” proceeding in the trial court.
In August 2020, the trial court ruled that Tarbell was
entitled to those costs and fees based on Civil Code section 1717
and the attorney fees clause in the agreement. The court then
awarded Tarbell its costs and entered an amended judgment
awarding Tarbell $72,519.03 in attorney fees.
Plaintiff appealed. In an unpublished opinion issued on
May 27, 2021, we affirmed the amended judgment awarding
Tarbell its prevailing party attorney fees and costs. (Peng II,
supra, B307484.) On August 13, 2021, we issued the remittitur
stating that “Tarbell is entitled to its costs on appeal.”
III. Regarding This (The Third) Appeal
2
On September 21, 2021, Tarbell filed a motion to recover
additional attorney fees falling into two categories: (1) fees
coming to $40,770, which Tarbell claimed it incurred in
connection with plaintiff’s second appeal, and (2) fees coming to
$23,400, which Tarbell claimed it incurred in connection with
enforcing the underlying judgment in its favor. On the same day,
Tarbell also filed a memorandum of costs seeking $434.30
incurred in connection with plaintiff’s second appeal.
2 Though the motion was filed by Tarbell, the caption on the
motion states that the attorney represents “Redwood Lending
Services, a California corporation,” an entity having nothing to do
with this case. This is clearly a typographical error. However,
this is not the first time Tarbell’s attorney has made similar
errors that have injected unnecessary confusion into these
proceedings. (See Peng II, supra, B307484 [Tarbell incorrectly
captioned title of motion and provided incorrect date of service on
memorandum of costs].)
4
Plaintiff opposed Tarbell’s motion and also filed a separate
motion to tax the entirety of the attorney fees and costs requested
by Tarbell.
Following further briefing and two hearings in November
2021, the trial court awarded Tarbell the full amount of its
requested fees and costs, and denied plaintiff’s motion to tax.
Plaintiff filed this timely appeal.
DISCUSSION
In his briefing on appeal, plaintiff argues that (1) the
underlying judgment should be vacated as “void,” (2) the two trial
court judges who have presided over his case as well as the
author of this opinion are part of a “multi-judge corruption ring”
bribed by Tarbell, and (3) the trial court abused its discretion in
its most recent attorney fees and cost orders.
We need not tarry long with plaintiff’s first two sets of
arguments. Plaintiff’s first argument fails because the
underlying judgment is not “void.” Plaintiff has not argued—and
cannot succeed in arguing—that the trial court lacked
“fundamental” “jurisdiction” over the subject matter or the
parties. (People v. American Contractors Indemnity Co. (2004) 33
Cal.4th 653, 660.) Because the judgment is at most voidable, the
doctrine of res judicata precludes us from revisiting it once more.
(People v. Silva (1981) 114 Cal.App.3d 538, 549-550 [res judicata
bars subsequent attacks on a nonvoid judgment]; cf. Rochin v.
Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228,
1239 [“[t]he doctrine of res judicata is inapplicable to void
judgments”].) Plaintiff’s second argument is premised, not on
3
any facts, but rather on the logic, “I lost, therefore the judicial
3 Plaintiff asserts without any support that the author of this
opinion acted improperly by unilaterally transferring the initial
appeal in this case from Division One to Division Two. Plaintiff’s
5
officers who presided over my trial, post-trial matters, and appeal
4
must be biased against me.” This does not constitute bias.
(Code Civ. Proc., § 170.2, subd. (b); Kreling v. Superior Court
(1944) 25 Cal.2d 305, 312.)
In examining plaintiff’s third set of arguments, we review
the trial court’s award of attorney fees and costs for an abuse of
discretion but review de novo the court’s underlying statutory
authority to do so. (La Mirada Ave. Neighborhood Assn. of
Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149,
1156; Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th
454, 460; Hooked Media Group, Inc. v. Apple Inc. (2020) 55
Cal.App.5th 323, 338.)
speculation is contradicted by the official docket in this case,
which shows that this transfer was performed by the
Administrative Presiding Justice (who has not been on any the
panels of justices in Division Two deciding plaintiff’s three
appeals) pursuant to authority granted by California Rules of
Court, rule 10.1000(b), to reassign plaintiff’s first appeal from
Division One to Division Two because Division Two had already
decided plaintiff’s earlier November 2019 writ petition (B302455).
4 Plaintiff’s further allegations that these judicial officers
have been “bribed” is the type of disparaging rhetoric that is
sanctions-worthy. (See Cal. Rules of Court, rule 8.276; see In re
S.C. (2006) 138 Cal.App.4th 396, 422 [“[d]isparaging” a bench
officer “is a tactic that is not taken lightly”; “it is contemptuous
for an attorney to make the unsupported assertion that the judge
was ‘act[ing] out of bias toward a party’”].) Despite plaintiff’s
conduct, we nevertheless decline to impose sanctions at this time.
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I. Attorney Fees and Costs Incurred in Connection
with Plaintiff’s Second Appeal
A. Governing Law
1. Award of costs on appeal
The party who prevails in a civil appeal is ordinarily
entitled to have the losing party reimburse it for certain costs
reasonably incurred during that appeal. (Cal. Rules of Court,
rule 8.278(a)(1), (d)(1).) The prevailing party bears an initial
burden of establishing a prima facie case, and carries that burden
by filing a verified cost bill in the trial court within 40 days after
the appellate court issues the remittitur. (Cal. Rules of Court,
rule 8.278(c)(1); Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 855; Ladas v. California State Auto. Assn.
(1993) 19 Cal.App.4th 761, 774.) The losing party then bears the
burden of making a “proper[] object[ion]” to specific costs in a
motion to tax. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258,
1265.)
2. Award of attorney fees on appeal
A prevailing party’s entitlement to the recovery of its costs
on appeal does not automatically entitle that party to recover its
attorney fees on appeal. (Cal. Rules of Court, rule 8.278(d)(2).)
Substantively, there must also be a statute or contract providing
for the award of such fees. (Id., rules 8.278(d)(2), 3.1702(c).)
Where, as here, the prevailing party has established its
substantive entitlement to attorney fees before the trial court,
that party may also “request fees attributable to [prevailing on] a
subsequent appeal.” (Butler-Rupp v. Lourdeaux (2007) 154
Cal.App.4th 918, 923, 927; American City Bank v. Zetlen (1969)
272 Cal.App.2d 65, 67.) Procedurally, the prevailing party on
appeal must file a motion in the trial court requesting the
contractually authorized attorney fees, and must do so no more
than 40 days after the appellate court has issued the remittitur
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on that appeal. (Cal. Rules of Court, rules 3.1702(c)(1), 8.278,
subd. (c)(1).)
B. Analysis
1. Costs
The trial court did not abuse its discretion in awarding
Tarbell the $434.30 in costs it incurred in connection with
plaintiff’s second appeal. Tarbell established its prima facie case:
Tarbell prevailed in the second appeal; Tarbell filed a verified
memorandum of costs; and Tarbell filed that memorandum less
than 40 days after our remittitur issued. Although plaintiff filed
a motion to tax, his motion did not establish that the costs
Tarbell sought were not recoverable.
Plaintiff resists this outcome with two arguments.
First, he contends that Tarbell did not timely serve its
memorandum of costs. Plaintiff is wrong. Tarbell served its
memorandum one day shy of the 40-day cutoff.
Second, plaintiff contends that the trial court erred
procedurally by awarding Tarbell its costs at the first hearing
(regarding Tarbell’s motion for attorney fees), even though it did
not hear any argument on plaintiff’s motion to tax until a second,
subsequent hearing. Plaintiff is correct that the trial court erred
in awarding costs prior to the second hearing at which the cost
issue was argued, but this error was not prejudicial because the
trial court reaffirmed its cost ruling after the second hearing.
Because the trial court’s procedural misstep did not affect the
propriety of the court’s cost award, we have no basis to reverse.
2. Attorney fees
The trial court abused its discretion in awarding Tarbell
the entirety of the $40,770 in attorney fees Tarbell attributed to
work on plaintiff’s second appeal. That is because the award
includes a significant amount of fees—specifically, $14,715—that
the billing records unequivocally show were incurred while
8
litigating matters other than the second appeal, such as plaintiff’s
5
first appeal and unrelated trial court matters. Tarbell is not
entitled to recover fees incurred on the first appeal (for such
things as preparing for and attending oral argument or dealing
with rehearing on that appeal) because the 40-day deadline for
recovering any attorney fees regarding that appeal expired back
in May 2021, four months before Tarbell filed its motion for
attorney fees in September 2021. Although a trial court is
authorized, for good cause, to extend the 40-day deadline (Cal.
Rules of Court, rule 3.1702(d)), the trial court never expressly
extended that deadline here, and Tarbell never made a showing
6
of good cause to do so.
5 This amount of nonrecoverable attorney fees reflects
Tarbell’s counsel’s $450 hourly rate for a total of 32.7 hours on
the following dates: October 1, 2020 (0.90), October 16, 2020
(0.30 and 0.30), October 22, 2020 (2.7), October 23, 2020 (4.5),
October 26, 2020 (2.3), October 28, 2020 (0.9), October 29, 2020
(0.3), November 13, 2020 (0.5), November 16, 2020 (1.4),
November 17, 2020 (0.9), November 23, 2020 (0.2), December 8,
2020 (0.9 and 1.4), December 16, 2020 (3.6 and 0.5), December 24,
2020 (2.3), January 4, 2021 (3.2), January 7, 2021 (0.3), January
8, 2021 (0.2 and 0.2), January 30, 2021 (3.6), February 22, 2021
(0.5), March 24, 2021 (0.1 ad 0.2), and March 25, 2021 (0.5).
6 In its September 2021 motion for attorney fees, Tarbell
requested that, if technical difficulties related to the COVID-19
pandemic prevented the clerk’s office from filing the motion, an
extension to file that motion should be granted beyond September
21, 2021. But Tarbell never asked the court to extend that
deadline to seek fees for the first appeal, which had by that time
already expired.
9
Tarbell offers no arguments to contest our conclusion that
it sought and recovered $14,715 in supposed appellate attorney
fees to which it was not entitled.
Plaintiff more broadly argues that Tarbell is not entitled to
any attorney fees incurred in connection with the second appeal.
However, for the reasons noted above, plaintiff has not carried
his burden of showing legal and factual error beyond the error we
have identified.
II. Attorney Fees Incurred in Connection with
Enforcing the Judgment
A. Governing Law
A judgment creditor is entitled to recover “the reasonable
and necessary costs” incurred to “enforc[e] a judgment.” (Code
Civ. Proc., § 685.040.) Recoverable “costs” include attorney fees
incurred in enforcing a judgment where, as here, “the underlying
judgment includes an award of attorney’s fees to the judgment
creditor” on the basis of a contract, statute, or law. (Id., §§
685.070, subd. (a)(6), 1033.5, subd. (a)(10); Jaffe v. Pacelli (2008)
165 Cal.App.4th 927, 935 (Jaffe).)
B. Analysis
The trial court erred in awarding Tarbell $23,400 in
attorney fees it claims to have incurred while enforcing the
underlying judgment. (Jaffe, supra, 165 Cal.App.4th at p. 934
[the issue of “whether the trial court had the authority pursuant
to [Code of Civil Procedure] section 685.040 to issue such an
award” “is a legal issue, which we review de novo”].) That is
because the billing records submitted in support of Tarbell’s
motion establish, on their face, that the fees were incurred for
two reasons that do not, as a matter of law, amount to
“enforc[ing] a judgment” within the meaning of Code of Civil
Procedure sections 685.040 and 685.070.
10
In its motion, Tarbell sought to recover fees for two
categories of “enforcement” activities: (1) defending the
underlying judgment during plaintiff’s first appeal, and (2)
seeking and litigating its motion for attorney fees that were
incurred before the labor commissioner and trial court.
As explained below, neither of these activities constitutes
an enforcement of the judgment.
1. Defending the underlying judgment
Our Supreme Court has declared that efforts by a party to
oppose an appeal from an underlying judgment are not efforts
“undertaken to enforce the judgment but to defend it against
reversal or modification.” (Conservatorship of McQueen (2014) 59
Cal.4th 602, 605, 608-610.)
2. Seeking and litigating attorney fees
When a party files a motion to obtain prevailing party
attorney fees pursuant to a contract following a judgment
declaring it to be the prevailing party, that motion is not an effort
to enforce the underlying judgment; instead, it is an effort to
amend that judgment to include a new, contract-based award of
attorney fees. Although section 685.040 authorizes a party to
obtain attorney fees incurred while enforcing that portion of a
judgment that already contains an attorney fee award (Code Civ.
Proc., § 685.040; Jaffe, supra, 165 Cal.App.4th at p. 935 [setting
forth this “requirement[] before a motion for an award of
postjudgment attorney fees may be awarded”]; Chinese Yellow
Pages Co. v. Chinese Overseas Marketing Service Corp. (2008) 170
Cal.App.4th 868, 888 [“an essential element specified in section
685.040 of recoverable reasonable and necessary fees is that the
underlying judgment must include an award of attorney’s fees”]),
the judgment in this case did not contain such an award at the
time Tarbell incurred the fees for which it is now seeking
reimbursement. The underlying judgment here simply declared
11
Tarbell’s status as a prevailing party (and, by inference, its
possible entitlement to fees if a contract or statute so provided).
(Cf. Guo v. Moorpark Recovery Service, LLC (2021) 60
Cal.App.5th 745, 747, 750-751 [judgment awarding unspecified
amount of attorney fees to prevailing party sufficient to
constitute an “award” of fees in underlying judgment]). The fees-
to-enforce-fees exception is therefore inapplicable here.
Tarbell offers no argument in its appellate briefs
challenging our conclusion that it sought and obtained $23,400 in
supposed judgment enforcement attorney fees to which it was not
entitled. Indeed, at oral argument Tarbell did not dispute that it
was awarded appellate attorney fees and judgment enforcement
fees to which it is not legally entitled. But Tarbell insists that
plaintiff waived any challenge to the unrecoverable fees. We
reject Tarbell’s argument for two reasons. First, plaintiff
sufficiently preserved a challenge to the timeliness of Tarbell’s
appellate attorney fees in the trial court. Second, because, as
noted above, the entitlement to attorney fees is a legal question
and because we have the discretion to consider legal questions for
the first time on appeal (Meridian Financial Services, Inc. v.
Phan (2021) 67 Cal.App.5th 657, 699-700), we cannot ignore the
clear legal error that resulted in Tarbell’s excessive attorney fee
award.
In light of our conclusion, we have no occasion to reach
plaintiff’s further arguments as to why Tarbell is not entitled to
its requested judgment enforcement attorney fees.
DISPOSITION
The trial court’s orders are affirmed as modified in
conformity with this opinion. Specifically, the award of costs to
Tarbell is affirmed, and the award of attorney fees to Tarbell is
modified to strike a total of $38,115 (representing $14,715 Tarbell
incurred unrelated to plaintiff’s second appeal and $23,400
12
Tarbell incurred unrelated to enforcing the judgment). The
parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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