Westside Investments v. Dolberry CA2/7 ( 2021 )

Filed 4/20/21 Westside Investments v. Dolberry CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
WESTSIDE INVESTMENTS, B299033
INC.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. SC121620)
v.
RENEE L. DOLBERRY et al.,
Defendants and Appellants.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Lisa Hart Cole, Judge. As to Tim
Dolberry, the appeal is dismissed. As to Renee Dolberry, the
judgment is affirmed.
Karl Siganporia for Defendants and Appellants Renee L.
Dolberry and Tim Dolberry.
Bishton Gubernick and Jeffrey S. Gubernick for Plaintiff
and Appellant.
_________________
Renee L. Dolberry and Tim Dolberry appeal the
postjudgment order awarding Westside Investments, Inc., doing
business as Marina Del Rey Toyota (MDR Toyota), $102,036.50 in
attorney fees against Renee Dolberry pursuant to an attorney fee
provision in Renee Dolberry’s automobile lease agreement. The
Dolberrys contend (1) the court erred in failing to apportion and
limit attorney fees to those incurred in connection with
Westside’s contract claim against Renee Dolberry; (2) Westside is
precluded from recovering attorney fees because the named
partner of its counsel is also a majority shareholder in Westside;
and (3) the attorney fee order is wholly disproportionate to, and
patently unreasonable in light of, the $13,479.41 net damages
awarded. We dismiss Tim Dolberry’s appeal for lack of standing.
As to Renee Dolberry, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Automobile Lease
On July 20, 2013 Renee Dolberry (Dolberry) signed an
1
agreement with MDR Toyota to lease a 2013 Toyota Highlander.
Dolberry gave MDR Toyota two post-dated checks as a down
payment and drove the Highlander off the lot the same day. The
next day Dolberry and her husband contacted the dealership to
complain about the transaction. In an email to the dealership’s
general manager, Kevin Ray, Dolberry insisted she had been
coerced into leasing a vehicle when she had been clear with MDR
Toyota she wanted to purchase one; misled into believing the
1
Our factual and procedural summary of the underlying
action borrows from our prior opinion affirming the judgment in
favor of Westside. (See Westside Investments, Inc. v. Dolberry
(June 25, 2018, B276462) [nonpub. opn.].)
2
dealership would pay the balance of her loan on her trade-in
vehicle at no cost to her; and sexually harassed by the
2
dealership’s finance manager.
In response to Dolberry’s email, Ray apologized for
Dolberry’s experience at MDR Toyota and offered her the choice
of negotiating a new purchase price for the Highlander or
rescinding the entire transaction. Ray also offered an additional
$1,000 to compensate her for any inconvenience. Dolberry
rejected that offer. She also rejected Ray’s subsequent offer of a
$4,000 reduction in the capitalized cost of the Highlander or
rescission of the lease agreement with a $4,000 cash payment,
telling Ray the offer was inadequate and she required additional
compensation. Ray responded that Dolberry would need to
return the Highlander before MDR Toyota would consider any
further request. Dolberry refused to return the Highlander and
stopped payment on the two checks she had issued as a down
payment. Although MDR Toyota initiated repossession efforts,
Dolberry and her husband, Tim Dolberry, secreted the
Highlander; and MDR Toyota was unable to locate it.
2. Westside’s Lawsuit
In November 2013 Westside sued the Dolberrys for breach
3
of contract, conversion and fraud. The Dolberrys filed a cross-
complaint, which was dismissed after the court sustained
2
Dolberry alleged the dealership’s finance manager had
made suggestive and inappropriate comments, including telling
her she looked younger than her age; asking her whether she
knew how to say “I love you” in French; and assuring her that she
would give him a “big hug” at the end of the transaction.
3
Tim Dolberry was named as a defendant only in the causes
of action for conversion and fraud.
3
Westside’s demurrer with leave to amend and the Dolberrys
failed to file an amended cross-complaint.
In April 2015 Westside filed an application for writ of
possession to compel the Dolberrys to return the Highlander.
Following a hearing the trial court granted the writ and issued
an interlocutory order awarding MDR Toyota possession of the
Highlander. By that time Dolberry had possessed the
Highlander for 21 months without making any payments under
the lease.
Following a bench trial, the court found Dolberry had
breached the lease and determined Westside was the prevailing
party on its contract claim under the lease. In its statement of
decision the court explained it would have also found Dolberry
liable for both conversion and fraud had it not found her liable
under the contract, reasoning duplicative damages were not
permitted.
Persuaded by Dolberry’s counsel that Westside’s net
damages could not be determined without ordering the car sold
(despite evidence at trial of the car’s fair market value), the court
in its statement of decision awarded Westside the value of the
lease, $32,749.41, “less the amount received for the sale of the
vehicle,” and ordered Westside to sell the Highlander and submit
evidence of the sale. After Westside provided posttrial evidence it
sold the car on February 5, 2016 for $18,150, the court entered
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judgment for Westside in the amount of $16,259.41.
4
The $16,259.41 net damage award represented the amount
awarded in the statement of decision ($32,749.41) less the
amount received by MDR Toyota when it sold the car ($18,150),
plus unpaid sanctions in the amount of $1,660 the court had
issued against Dolberry in December 2014.
4
3. Dolberry’s Motion To Vacate and First Appeal
Dolberry moved to vacate the judgment and for a new trial.
Among other things, Dolberry argued Westside had
misrepresented its net damages. According to Dolberry,
Westside’s posttrial evidence that it had sold the Highlander to a
wholesaler on February 5, 2016 for $18,150 was false; the
Highlander was actually sold three days later to a different buyer
for $20,930, $2,780 more than Westside had claimed. In
response, Westside apologized for the error, offered a declaration
from its chief financial officer purporting to explain the mistake
and urged the court to amend the judgment to reduce the damage
award by $2,780 or to credit Dolberry with that amount in partial
satisfaction of the judgment. Troubled by the revelations in
Dolberry’s posttrial motion, the court set the matter for a
hearing, but scheduled the hearing after the 60-day jurisdictional
period to hear the motion had elapsed. (Code Civ. Proc., § 663a,
subd. (b).) Accordingly, the motion to vacate the judgment was
denied by operation of law.
Dolberry filed a timely notice of appeal from the judgment.
We affirmed the judgment on appeal and directed the trial court
upon issuance of our remittitur to enter a partial satisfaction of
the judgment in the sum of $2,780. (See Westside Investments,
Inc. v. Dolberry (Jun. 25, 2018, B276462) [nonpub. opn.].) We
also indicated the court’s concerns about Westside’s posttrial
conduct could be addressed at a hearing on Westside’s request for
attorney fees, which the trial court indicated it would entertain
following resolution of the appeal.
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4. Westside’s Motion for Attorney Fees and Costs
Following receipt of the remittitur by the trial court,
Westside moved pursuant to the lease agreement and Civil Code
section 1717 (section 1717) to recover $132,036.50 in attorney
fees and $12,750.37 in costs in accordance with paragraph 29 of
5
the lease. Westside supported its motion with a declaration from
its trial counsel Jeffrey S. Gubernick of the law firm Bishton
Gubernick and accompanying billing statements.
Dolberry opposed the motion for attorney fees.6 Despite our
explanation in the prior appellate opinion that the postjudgment
motion had been denied by operation of law, Dolberry asserted
Westside’s attorney fee request was premature because there had
been no ruling on the postjudgment motion to strike the damage
award based on Westside’s fraud in presenting evidence of the
sale of the Highlander. If the damages were struck due to
Westside’s fraud, Dolberry argued, she would be the prevailing
party, not Westside. Dolberry also argued that Westside could
not recover its attorney fees because a named partner of the law
5
Paragraph 29 of the lease provides in part, “If you are in
default we may do any of the following after giving any legally
required notices, and after expiration of any legally required cure
or reinstatement periods: [¶] . . . [¶] v. require you to pay all of
our expenses for taking these actions, including, but not limited
to, expenses for repossession, transportation, storage, collection,
and legal costs, including reasonable attorneys fees paid to an
attorney who is not our salaried employee, as allowed by
applicable law.”
6
Because Tim Dolberry was not a party to the lease
agreement and was not named as a defendant in Westside’s cause
of action for breach of contract, the motion for attorney fees was
properly directed only to Renee Dolberry.
6
firm that represented Westside was also a majority shareholder
of Westside. Dolberry did not object to Westside’s request for
costs of suit, raise the issue of apportionment or argue the
amount of fees requested was unreasonable.
At the hearing on Westside’s attorney fee motion, the court
stated, “I think that the attorney’s fees, although high, given the
original nature of the action, and how easily this case could have
been resolved on the day it was filed, was caused by—
significantly caused by the defendants’ choice in litigating the
case in the manner in which it was litigated. I mean, I think this
is a highly regrettable situation, because at the very core, this
was a very simple case that the Dolberrys chose to exacerbate
significantly by filing false claims for sexual harassment, then
dropping it at the time of trial, by litigating the case in the
manner in which they did, by secreting the car and not returning
it until, basically, the trial had started.” The court also explained
it was cutting the amount of fees requested by $30,000: “The
reason why I’m cutting the attorney fees is because, although the
defense, in my opinion, created a significant amount of wasted
time, both for the court and counsel, there were things that the
plaintiff could have done” to streamline the case significantly.
On May 7, 2019 the court signed an amended judgment
that granted Dolberry partial satisfaction of the judgment in
accordance with our remittitur in the prior appeal and awarded
7
Westside $12,750.37 in costs and $102,036.50 in attorney fees.
7
Although labeled an amended judgment, the court’s May 7,
2019 order following our affirmance of the judgment is properly
considered a postjudgment order.
7
8
The Dolberrys filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
Section 1717, subdivision (a), authorizes the trial court to
award reasonable attorney fees to the prevailing party in a
contract action if the contract specifically authorizes an award of
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such fees. To ensure mutuality of remedy, section 1717 makes
an attorney fee provision reciprocal even if it would otherwise be
unilateral by its terms. (PLCM Group, Inc. v. Drexler (2000)
22 Cal.4th 1084, 1090 (PLCM Group); Santisas v. Goodin (1998)
17 Cal.4th 599, 610.)
A party seeking attorney fees pursuant to a fee shifting
provision in a contract must demonstrate the fees incurred were
reasonable. (PLCM Group, supra, 22 Cal.4th at p. 1095; see
§ 1717.) That reasonableness determination begins with “the
lodestar,” “the number of hours reasonably expended multiplied
by the reasonable hourly rate.” (PLCM Group, at pp. 1094-1095.)
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Westide asserts, Tim Dolberry acknowledges, and we agree,
Tim Dolberry is not aggreived by the the attorney fee order,
which the court issued against Renee Dolberry alone.
Accordingly, the appeal of Tim Dolberry challenging the attorney
fee award is dismissed for lack of standing. (Code Civ. Proc.,
§ 902.)
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Section 1717, subdivision (a), provides, “In any action on a
contract, where the contract specifically provides that attorney’s
fees and costs, which are incurred to enforce that contract, shall
be awarded either to one of the parties or to the prevailing party,
then the party who is determined to be the party prevailing on
the contract, whether he or she is the party specified in the
contract or not, shall be entitled to reasonable attorney’s fees in
addition to other costs.”
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“‘After the trial court has performed the calculations [of the
lodestar], it shall consider whether the total award so calculated
under all of the circumstances of the case is more than a
reasonable amount and, if so, shall reduce the section 1717 award
so that it is a reasonable figure.’” (PLCM Group, at pp. 1095-
1096.) “‘“A reduced award might be fully justified by a general
observation that an attorney overlitigated a case or submitted a
padded bill or that the opposing party has stated valid
objections.”’” (Morris v. Hyundai Motor America (2019)
41 Cal.App.5th 24, 38.)
We review the amount of fees awarded for abuse of
discretion and the legal basis for the fee award de novo.
(See Mountain Air Enterprises, LLC v. Sundowners Towers, LLC
(2017) 3 Cal.5th 744, 751 [“‘it is a discretionary trial court
decision on the propriety or amount of statutory attorney fees to
be awarded, but a determination of the legal basis for an attorney
fee award is a question of law to be reviewed de novo’”]; Orozco v.
WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 406 [same].)
2. Dolberry Has Forfeited Her Arguments on
Apportionment and Reasonableness of Attorney Fees
Citing the provision in the lease agreement limiting
attorney fees to those reasonably necessary to enforce the lease
following the lessee’s default, Dolberry contends the court erred
in failing to apportion Westside’s attorney fees between its
contract claim, for which reasonable attorney fees were
authorized, and its tort claims, for which they were not.
(See Monster, LLC v. Superior Court (2017) 12 Cal.App.5th 1214,
1226 [“[a]s a general matter, ‘[t]ort and other noncontract claims
are not subject to section 1717 and its reciprocity principles’”];
see also Santisas v. Goodin, supra, 17 Cal.4th at p. 615; Bell v.
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Vista United School Dist. (2000) 82 Cal.App.4th 672, 686-687
[“‘[w]hen a cause of action for which attorney fees are provided by
statute is joined with other causes of action for which attorney
fees are not permitted, the prevailing party may recover only on
the statutory cause of action’”].)
Dolberry did not make this argument in the trial court,
depriving that court of the opportunity to consider whether the
issues among all claims were so inextricably intertwined that
apportionment was impracticable. (See Reynolds Metals Co. v.
Alperson (1979) 25 Cal.3d 124, 129-130 [“[a]ttorney’s fees need
not be apportioned when incurred for representation on an issue
common to both a cause of action in which fees are proper and
one in which they are not allowed”]; Akins v. Enterprise Rent-A-
Car Co. (2000) 79 Cal.App.4th 1127, 1133 [same]; Abdallah v.
United States Savings Bank (1996) 43 Cal.App.4th 1101, 1111
[trial court reasonably found that appellants’ various claims were
“‘“inextricably intertwined,”’” which made it “‘impracticable, if not
impossible, to separate the multitude of conjoined activities into
compensable or noncompensable time units’”].) Accordingly, that
argument has been forfeited. (See Auburn Woods 1 Homeowners
Association v. State Farm General Ins. Co. (2020) 56 Cal.App.5th
717, 727 [argument on appeal regarding apportionment of expert
witness fees was forfeited because appellant failed to raise
argument in trial court]; Wood v. Santa Monica Escrow Co.
(2007) 151 Cal.App.4th 1186, 1192 [failure to raise
apportionment argument in trial court resulted in forfeiture of
argument on appeal].)
Similarly, by failing to raise the issue in the trial court,
Dolberry has also forfeited her contention the attorney fee award
of $102,036.50 is patently unreasonable considering the net
10
damage award of little more than $13,000. (See Doers v. Golden
Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [it is
fundamental that a reviewing court will ordinarily not consider
claims made for the first time on appeal that could have been, but
were not, presented to the trial court]; Perez v. Grajales (2008)
169 Cal.App.4th 580, 591-592 [“‘[a]ppellate courts are loath to
reverse a judgment on grounds that the opposing party did not
have an opportunity to argue and the trial court did not have an
opportunity to consider’”].) To the extent Dolberry suggests
reversal is required as a matter of law because the attorney fees
awarded are disproportionate to the amount of damages
recovered, she is wrong. (See Concepcion v. Amscan Holdings,
Inc. (2014) 223 Cal.App.4th 1309, 1321 [“the attorney fee award
need not bear any specific relationship to the dollar amount of
the recovery”]; Taylor v. Nabors Drilling USA, LP (2014)
222 Cal.App.4th 1228, 1251 [same].)
3. Westside Was Not Prohibited From Recovering Attorney
Fees
Emphasizing that Norris Bishton, a named partner of the
law firm that represented Westside, Bishton Gubernick, is a
major shareholder in Westside, Dolberry contends Bishton
Gubernick and Westside are essentially the same entity. From
this dubious premise, and relying on Trope v. Katz (1995)
11 Cal.4th 274, 277 (Trope) and Sands & Associates v.
Juknavorian (2012) 209 Cal.App.4th 1269 (Sands), Dolberry
argues Westside is prohibited from recovering its attorney fees as
the prevailing party in this action.
In Trope, supra, 11 Cal.4th 274 the Supreme Court held a
law firm that represents itself is prohibited from recovering
attorney fees as the prevailing party under a fee shifting
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provision in a contract. (Id. at p. 277.) Among other things, the
Court explained an attorney who chooses to litigate his or her
own interests in propria persona incurs no fees within the
meaning of section 1717. (Id. at pp. 280-281; see PLCM Group,
supra, 22 Cal.4th at p. 1092 [“In Trope [citation] we considered
whether an attorney who chooses to litigate in propria persona
rather than retain an attorney to represent him in an action to
enforce a contract containing an attorney fee provision can
recover attorney fees under Civil Code section 1717. We
answered the question in the negative. We explained that, by
definition, the term ‘attorney fees’ implies the existence of an
attorney-client relationship, i.e., a party receiving professional
services from a lawyer”].)
Citing Trope for the proposition that a law firm represented
in a lawsuit by one of its partners, members or associates is
prohibited from recovering attorney fees as the prevailing party
under a fee shifting provision, the court of appeal in Sands,
supra, 209 Cal.App.4th 1269 held the designation of the firm’s
representative as “of counsel” did not exempt the law firm from
this established rule: “[B]ecause the relationship between a law
firm and ‘of counsel’ is close, personal, regular, and continuous,
we conclude that a law firm and ‘of counsel’ constitute a single,
de facto firm, and thus a law firm cannot recover attorney fees
under a prevailing party clause when, as a successful litigant, it
is represented by ‘of counsel.’” (Id. at p. 1273; but see
Dzwonkowski v. Spinella (2011) 200 Cal.App.4th 930, 938-940
[“of counsel” designation of law firm’s counsel, without more, did
not preclude firm’s recovery of attorney fees pursuant to a fee
shifting provision in a contract; whether fees were incurred
pursuant to section 1717 depends on whether there exists “an
12
obligation to pay attorney fees, the existence of an attorney-client
relationship and distinct interests between the attorney and
client”].)
Relying on language in Sands, Dolberry argues Westside
and Bishton Gubernick, by virtue of Norris Bishton’s status as
both a major shareholder in Westside and a named partner of
Bishton Gubernick, share such a “close, personal, regular and
continuous relationship” that Westside is prohibited from
recovering its attorney fees. The argument is without merit. At
the threshold, the court in Sands made clear it was not creating a
general test dependent on factual findings whether a relationship
between a litigant and its counsel was sufficiently close, personal,
regular and continuous to prohibit recovery of fees. (See Sands,
supra, 209 Cal.App.4th at p. 1295 [describing the court’s intent to
create “a bright-line rule” for “‘of counsel’” attorneys]; see also
Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC
(2014) 230 Cal.App.4th 244, 255 [“[d]espite the variation in
practical arrangements for ‘of counsel’ attorneys, the Sands court
created ‘a bright-line rule’ that attorneys of counsel to a law firm
are sufficiently integral to a law firm as to disallow fees for
defense of the firm”].)
More fundamentally, in contrast to counsel in Trope and
Sands, Bishton Gubernick was not the litigant in this breach of
contract action; Westside was. (Nor for that matter was Bishton
Gubernick a shareholder of Westside; Norris Bishton occupied
that role.) That Westside’s success in the litigation may
indirectly benefit its shareholders, including the named partner
of its counsel, does not negate the undisputed attorney-client
relationship between Westside and Bishton Gubernick or suggest
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its attorney fees were not incurred for purposes of section 1717.
(See generally PLCM Group, supra, 22 Cal.4th at p. 1093.)
Finally, quoting the California Supreme Court’s July 11,
2020 statement on equality and inclusion, and citing several
news reports and law review articles describing bait-and-switch
tactics by car dealerships targeting communities of color,
Dolberry insists an attorney fee order of more than $100,000
against a Black woman in a “run of the mill” contract case is yet
another example of a justice system that, intentionally or by
default, has failed Black people. There can be no doubt that the
existence of structural racism and its pernicious effects
throughout our system of justice, as in other aspects of society,
must be urgently addressed. Nonetheless, as it may relate to the
issue before us, we simply note Dolberry forfeited any challenge
to the reasonableness of the fees awarded and her plea ignores
her own conduct that led to unnecessary litigation costs, actions
the trial court specifically cited as both regrettable and integral
to its attorney fee ruling.
DISPOSITION
Tim Dolberry’s appeal is dismissed. The postjudgment
order as to Renee Dolberry is affirmed. Westside is to recover its
costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J
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