Tukes v. Richard ( 2022 )

Filed 7/12/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DENISE TUKES, B307242
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BP115475)
v.
PIERRE RICHARD et al.,
Defendants and Appellants.
PIERRE RICHARD, B308337; B312086
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV44270)
v.
JAMES A. FRIEDEN et al.
Defendants and Respondents.
APPEALS from orders and judgment of the Superior Court
of Los Angeles County, Monica Bachner and Clifford
Klein, Judges. Affirmed. Order subject to appeal by Denise
Tukes reversed and remanded with instructions. Order subject
to cross-appeal by Pierre Richard and Robert A. Brown affirmed.
Law Offices of Robert A. Brown and Robert A. Brown, for
Appellants Pierre Richard and Robert A. Brown.
Law Offices of James A. Frieden, James A. Frieden and
Benjamin Bastomski, for Appellant Denise Tukes.
Nemecek & Cole, Michael McCarthy, Mark Schaeffer, and
Kenny C. Brooks, for Respondent James A. Frieden.
_________________________________
INTRODUCTION
This opinion resolves three appeals. Two are brought by
Pierre Richard, who was the plaintiff in the proceedings styled
Pierre Richard v. James A. Frieden and Denise Tukes (Super. Ct.
L.A. County, 2020, No. 19STCV44270) (the 270 Action). We refer
to these appeals as the 270 Appeals. The third appeal is brought
by Denise Tukes, who was a petitioner in the proceedings styled
In re Adeline R. Bennett, M.D. Trust DTD 3/30/2001 (Super. Ct.
L.A. County, 2020, No. BP115475) (the 475 Action). We refer to
this appeal as the 475 Appeal. The 475 Appeal also encompasses
a cross-appeal by Richard and his counsel, Robert Brown.
In the 270 Action, the trial court sustained special motions
to strike Richard’s complaint against Tukes and her counsel,
James Frieden, pursuant to Code of Civil Procedure
section 425.16, subdivision (b)(1)1 (i.e., anti-SLAPP motions).
The trial court further awarded Tukes and Frieden attorney fees
and costs pursuant to section 425.16, subdivision (c)(1).
1 Undesignated statutory references are to the Code of Civil
Procedure.
2
The first 270 Appeal (No. B308337) is of the trial court’s
judgment following its order on the anti-SLAPP motions.
We agree with the trial court that Richard failed to demonstrate
a probability of prevailing on the merits in the 270 Action
because, under the circumstances presented, he lacked standing
to bring a malicious prosecution claim with respect to an action
that had not been prosecuted against him. The trial court’s
judgment is therefore affirmed.
The second 270 Appeal (No. B312086) is of the trial court’s
order awarding Tukes and Frieden attorney fees and costs in
prosecuting their anti-SLAPP motions. As we find no legal error
or abuse of discretion, the trial court’s order is affirmed.
Finally, the 475 Appeal (No. B307242) is of an order
entered by the probate court dismissing Tukes’s creditor’s
petition for a finder’s fee in the 475 Action. This order was
rendered primarily on a misapplication of the doctrine of issue
preclusion. We reverse this order and remand to the probate
court for further proceedings. By their cross-appeal, Richard and
Brown appeal an order directing Brown to pay expenses for
repeated violations of the probate court’s page limit rules.
We find that the probate court acted within its authority in
directing such payment and therefore affirm.
BACKGROUND
Pierre Richard is one of two beneficiaries of the Adeline R.
Bennett, M.D. Trust DTD 3/30/2001 (the Bennet Trust). The
other beneficiary is Louise Clare, who is the mother of Denise
Tukes.
The Bennet Trust co-owned with the Pitts Grandchildren’s
Trust (the Pitts Trust) vacant real property in Santa Fe Springs,
California (the Property). Owing to pollution from prior use, the
3
Property had been designated a federal “Superfund” site.
In 2006, the trustee of the Bennett Trust2 and the trustee of the
Pitts Trust3 (the Bennett Trustee and the Pitts Trustee,
respectively, and the Trustees, collectively) entered into a
settlement agreement whereby they agreed they would sell the
Property. But the Trustees apparently made no progress toward
effectuating a sale for over a decade.
Frustrated by their lack of progress, Tukes, then a college
student, took it upon herself to find a buyer. With the knowledge
and support of the Bennett Trustee, she identified potentially
interested parties, contacted them with information about the
Property, and ultimately introduced the Trustees to a ready and
willing buyer, CenterPoint Properties (CenterPoint). Tukes did
so despite not being a licensed real estate broker. CenterPoint
ultimately paid $13 million for the Property in or after December
2018. As there was no broker, the Trustees paid no brokers’
commission in connection with the sale.
Once the terms of the sale had been agreed by the Trustees
and CenterPoint, but prior to its closing, Tukes made demands on
the Trustees for a finder’s fee. Tukes’s demand went unsatisfied.
The proceedings below ensued.
2 During the period relevant to this appeal, Shoushan
Movsesian succeeded Stan Mandell as the trustee of the Bennett
Trust. The identities of the trustees have no bearing on this
appeal and we do not distinguish between the individuals serving
in this position.
3 At all times relevant to this appeal, Marvin C. Pitts was
the trustee of the Pitts Trust.
4
I. Background Specific to the 270 Appeals
In late 2018, Tukes, through Frieden as her counsel, filed
a complaint against the Trustees for compensation on account of
her efforts in helping to sell the Property. This commenced an
action styled Denise Tukes v. Marvin C. Pitts, Jr. and Stan R.
Mandell (Super. Ct. L.A. County, 2020, No. 18STCCV09049)
(the Tukes Action).
Though he was not named a defendant in the Tukes Action,
Richard filed a two-page answer generally denying the
allegations of Tukes’s first amended complaint on March 12,
2019. He did so without leave to intervene. As a result, Richard
was never named a party in the Tukes Action and was
specifically identified on the court’s docket as a “non-party” to the
proceedings.
On April 15, 2019, Tukes filed requests for dismissal with
respect to (i) claims against the Bennett Trustee; and (ii) “any
claims against [Richard].” The court granted both requests.
The Pitts Trustee was thereafter the sole defendant in the Tukes
Action.
The Pitts Trustee subsequently removed the Tukes Action
to federal court and settled with Tukes in August of 2019. In
September 2019, pursuant to the settlement agreement, Tukes
dismissed the Tukes Action with prejudice by filing a bare notice
of dismissal in the federal district court pursuant to
rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure.
Based on the Tukes Action, and despite never having been
sued by Tukes, Richard sued Tukes and Frieden for malicious
prosecution in December of 2019, thereby commencing the
270 Action. In response, Tukes and Frieden filed separate special
motions to strike Richard’s complaint pursuant to section 425.16,
5
subdivision (b)(1). Tukes and Frieden argued, among other
things, that Richard lacked standing to bring a malicious
prosecution action with respect to a lawsuit to which he was not a
party. Richard opposed the motion on various grounds but failed
to address Respondents’ standing arguments.
The trial court concluded that Richard had failed to show a
probability of prevailing in the 270 Action because he failed to
show he had been a party to the Tukes Action and thus lacked
standing to sue on account of its prosecution. On the basis of this
order, both Frieden and Tukes requested attorney fees pursuant
to section 425.16, subdivision (c)(1). The trial court granted their
requests in the amounts of $49,071.50 and $26,905, respectively.
Richard appeals these awards and the resulting judgment.
(§§ 425.16, subd. (i), 904.1, subds. (a)(1), (a)(2).)4
II. Background Specific to the 475 Appeal
After settling the Tukes Action with the Pitts Trustee,
Tukes filed a creditor’s petition pursuant to section 17000 of the
Probate Code against the Bennett Trustee in the 475 Action
(which action was already pending in connection with the
administration of the Bennett Trust). By her petition, Tukes
sought a $350,000 finder’s fee on account of her efforts in
effectuating the sale of the Property under theories of breach of
implied contract and quantum meruit.
4 Richard fails to include a statement of appealability in
either of his opening appellate briefs. We exercise our discretion
under California Rules of Court, rule 8.204(e)(2)(B) to disregard
Richard’s non-compliance in this instance.
6
Richard, in his capacity as a beneficiary of the Bennett
Trust (and thus an interested party pursuant to Probate Code
section 48), responded to Tukes’s petition with a motion for
judgment on the pleadings. The probate court granted Richard’s
motion but gave Tukes leave to amend. Tukes amended, adding
a count for breach of an oral contract, and Richard again moved
for a judgment on the pleadings. The trial court granted this
second motion without leave to amend on the bases that
(a) Tukes’s dismissal of the 270 Action with prejudice barred all
three counts of the 475 Action under the doctrine of issue
preclusion; and (b) Tukes’s count for quantum meruit was invalid
as pled. Tukes appeals the resulting dismissal of her claim.
(Prob. Code, § 1300, subd. (d).)
Finally, in the course of the 475 Action, Tukes filed a
motion for sanctions against Robert A. Brown, counsel for
Richard, based on Brown’s repeated failures to comply with court
rules. The probate court denied the motion for sanctions but
ordered Brown to pay Frieden expenses in the amount of $4,000.
Richard and Brown cross-appeal from this order in the
475 Appeal. (§ 904.1, subd. (b).)
DISCUSSION
I. We Affirm the Trial Court’s Judgment and Orders
Challenged in the 270 Appeals
A. Applicable Standards of Review
We review the trial court’s disposition of an anti-SLAPP
motion de novo. (Simmons v. Bauer Media Group USA, LLC
(2020) 50 Cal.App.5th 1037, 1043.) We also review de novo any
legal issues properly raised on appeal of a fee award. (Reck v.
FCA US LLC (2021) 64 Cal.App.5th 682, 690 (Reck); Apex LLC v.
Korusfood.com (2013) 222 Cal.App.4th 1010, 1016–1017.)
7
However, where satisfied that a party is entitled to fees and costs
pursuant to section 425.16, subdivision (c)(1), we review the
amount of the award for abuse of discretion. (Christian Research
Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322.)
B. Analysis
1. The Trial Court Properly Granted Respondents’
Anti-SLAPP Motion
The trial court struck Richard’s complaint against Tukes
and Frieden pursuant to section 425.16 because Richard failed to
show a probability of success in the 270 Action. First, the trial
court concluded that the act of commencing the Tukes Action—
the conduct complained of in the 270 Action—was an activity
protected by section 425.16. (See Chavez v. Mendoza (2001) 94
Cal.App.4th 1083, 1087.) As a result, the trial court imposed on
Richard the burden to demonstrate a probability of prevailing on
his malicious prosecution claim. (See Baral v. Schnitt (2016)
1 Cal.5th 376, 384.) Next, the trial court concluded that Richard
failed to satisfy that burden. It explained: “[Richard] did not
submit evidence suggesting he was a party to the [Tukes Action]
such that he can establish the threshold requirement that the
action in connection with which malicious prosecution is sought
was asserted against him.” (Italics in original.) The trial court
characterized this as precluding standing to bring the 270 Action,
noting Richard’s failure to “[a]ddress the issue of his lack of
standing to bring a malicious prosecution action.” (See Pillsbury
v. Karmgard (1994) 22 Cal.App.4th 743, 756 [absent showing of
impropriety by trustee in failing to initiate malicious prosecution
action itself, trust beneficiary lacked standing to sue third party
that had previously sued only trustee].)
8
In his opening brief, Richard argues the trial court erred in
concluding he was not a party to the Tukes Action. Without a
separate heading or any application of the cited law to the facts
presented, Richard also argues that there is a theoretical
possibility of beneficiary standing in a case where a third party
has sued the trustee for damages payable from the trust res.
As the latter argument is forfeited,5 we consider only the former
and find it without merit.
Ordinarily, the initial parties to a lawsuit are those that
have sued or been sued. (See, e.g., Tracy Press, Inc. v. Superior
Court (2008) 164 Cal.App.4th 1290, 1296 [an individual not
named in an initial pleading is not a party to an action];
(Apostolos v. Estrada (1958) 163 Cal.App.2d 8, 12 [primary
meaning of “party” is “ ‘an interested litigant or person whose
name is designated on the record as plaintiff or defendant or in
some other equivalent capacity’ ”].) However, one who is not an
initial party may become a party by intervening. (§ 387,
subd. (b).)
5 A contention not appropriately raised in the opening brief
under a separate argument heading may be deemed forfeited.
(Teachers’ Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012,
1038, fn. 6.) In any event, the contention that Richard may have
been able to show standing in the Tukes Action is irrelevant.
The trial court found that Richard lacked standing to prosecute
the 270 Action because he was not a party to the Tukes Action.
Even if he could now establish that he may have had standing to
become a party to the Tukes Action, it would not change the fact
that he did not, in fact, become a party to the Tukes Action, for
the reasons herein discussed.
9
Code of Civil Procedure section 387 governs intervention.
It provides that the nonparty seeking intervention “shall petition
the court for leave to intervene by noticed motion or ex parte
application.” (§ 387, subd. (c).) The court is obligated to act on a
request for intervention only upon the filing of a “timely
application.” (§ 387, subd. (d)(1).) Thus, intervention is
ordinarily allowed only where the nonparty has filed a petition to
intervene. (Cf. Bowles v. Superior Court (1955) 44 Cal.2d 574,
589 [intervention should be permitted only where the petitioner
has satisfied the requirements of § 387].)
Here, it is undisputed that Richard failed to comply with
the requirements of section 387. Nevertheless, he claims party
status by virtue of his uninvited answer to Tukes’s complaint.6
Although courts have occasionally excused failure to comply with
section 387’s requirements, the cases appear to be limited to
circumstances where the court actually determined that
intervention was appropriate or the parties accepted the
unapproved intervention without protest. (See, e.g., Traweek v.
Draper (1956) 143 Cal.App.2d 119, 122 [failure to comply excused
6 At oral argument, Richard argued that section 387 does not
apply to answers; it applies only to complaints in intervention.
This is incorrect. Section 387, subdivision (b), provides: “An
intervention takes place when a nonparty, deemed an intervenor,
becomes a party to an action or proceeding between other persons
by [among other things,] . . . [u]niting with a defendant in
resisting the claims of a plaintiff.” Such an intervention is
accomplished by an “answer in intervention.” (§ 387, subd.
(e)(1).) It is a condition of the right to file an answer in
intervention that the person seeking intervenor status first file a
petition with the court. (§ 387, subd. (c).)
10
where parties had treated complaint of non-party with obvious
right of intervention as valid]; Crofton v. Young (1941) 48
Cal.App.2d 452, 456 [order granting intervention based on
necessary findings was appropriate notwithstanding intervenor’s
failure to comply with statute].)
No such facts are present here. The trial court never
authorized Richard to intervene and, notwithstanding his
purported answer, identified him on the docket as a “non-party.”
Shortly after Richard filed his unauthorized answer, Tukes
simply dismissed “[a]ny claims against Pierre Richard in the
First Amended Complaint.” In doing so, she did not concede that
she had asserted any claims against Richard. She did not add
him to the caption. She did not identify him as being a Doe
defendant. She did not agree that he was ever a party. He was
never a party.
Richard offers no authority that a person who volunteers
an answer to claims filed against another, without more, becomes
a party. All of the cases he relies upon to establish his purported
party status involve belated challenges to a court’s jurisdiction
where the putative defendant had appeared and been treated by
the plaintiff and/or the court as an actual defendant for all
purposes.
In Fireman’s Fund Ins. Co. v. Sparks Construction, Inc.
(2004) 114 Cal.App.4th 1135, the plaintiff served a complaint on
two entities that it had intended to add by Doe amendment but
failed to do so properly (at the time of service, an amended
operative complaint had dropped the original complaint’s Doe
allegations, effecting a dismissal as to all Does). (Id. at p. 1139.)
As a result, service on the entities was defective. The entities did
not recognize the defect at the time and answered, filed cross-
11
complaints, and moved for summary judgment. (Ibid.) Later,
however, they parlayed the service error into a judgment on the
pleadings on statute of limitations grounds. (Ibid.) The appellate
court reversed, holding that the entities had waived objections to
service by making a general appearance. Fireman’s Fund thus
treated as parties those defendants that the plaintiff had
intended to sue and who had waived objection to being treated as
having been sued, notwithstanding a technical failure on the part
of the plaintiff.
In Tyrrell v. Baldwin (1885) 67 Cal. 1, individuals who
were never named nor sued in an action filed an answer to the
complaint and were treated by the plaintiff as named defendants.
(Id. at p. 3.) The individuals sought a judgment against the
plaintiff and only after judgment was rendered against them did
their successor in interest complain that they were not formal
parties. (Id. at p. 4.) The appellate court rejected the challenge,
explaining the individuals’ intervention had been successful
because they had been “permitted to do without opposition, and
by tacit consent, what they might have done by leave of the
court.” (Ibid.) Thus, Tyrrell treated as parties those defendants
that acted as though they had been sued and the plaintiff and the
court had both treated them as having been sued.
In Farmers & Merchants National Bank v. Peterson (1936)
5 Cal.2d 601, the plaintiff sued multiple assignees of an insolvent
corporation’s assets, referred to in the opinion as “trustees.”
A trustee that had not been named in the suit nevertheless
answered the complaint and the matter proceeded to trial.
Following trial, the trial court entered a judgment against the
unnamed trustee. (Id. at p. 606.) In the ensuing appeal, the
unnamed trustee challenged judgment against him on the
12
grounds that he had never been a named party. The appellate
court rejected his challenge, holding that he had waived objection
to the judgment through his voluntary appearance. Like the
defendants in Fireman’s Fund and Tyrrell, the unnamed trustee
was treated as a defendant by the plaintiff (in litigating the
matter to judgment) and the court (in rendering judgment).
Having silently acquiesced to this treatment until after suffering
the adverse judgment, he was properly bound by the judgment.
None of these cases presents circumstances similar to those
presented in the Tukes Action, wherein neither the trial court nor
Tukes treated Richard as a party. For Richard to obtain party
status based solely on the fact of his uninvited answer would
eliminate the requirements of section 387, opening pending court
proceedings to anyone that pleased to file a pleading. This is not
the law.
As we reject the only point of error that Richard properly
submitted to us, we affirm the trial court’s grant of Frieden’s and
Tukes’s anti-SLAPP motions.
2. There Is No Error in the Trial Court’s
Section 425.16, subdivision (c)(1) Fee Award
Richard attacks the trial court’s section 425.16 fee awards
to Frieden and Tukes on several grounds, none of which has
merit.7
7 Richard’s opening brief in his fee award appeal also
contains extensive argument about the trial court’s substantive
decision on the anti-SLAPP motions. Richard separately
appealed the substantive decision. We have already resolved
that appeal and will not revisit the substantive issues Richard
improperly re-argues in the fee award briefing.
13
First, he claims that the trial court awarded fees to Frieden
based on work Frieden’s counsel, Nemecek & Cole APC, did
unrelated to Frieden’s anti-SLAPP motion. The anti-SLAPP fee
award statute applies only to those fees incurred in connection
with the anti-SLAPP motion (including a related motion for fees
and costs), not those incurred in other aspects of the action.
(Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi
(2006) 141 Cal.App.4th 15, 21.)
In his opening brief, Richard offers a purported quote from
counsel’s declaration in support of the fee request as follows:
“Mr. Brooks [of Nemecek & Cole] stated that he ‘billed 72.7
hours on the matter prior to any work performed on the
instant motion, and Mr. McCarthy billed 5.5 hours in
defense of the matter.’ ” (Bold italics in original.) Richard then
argues the maximum compensable hours should therefore have
been limited to just “29.2 hours [for] the anti-SLAPP motion and
2.9 hours on the fee motion . . . because Mr. Brooks admits that
72.7 hours were not on the anti-SLAPP motion.” But Richard has
mis-quoted counsel’s declaration. What counsel actually said was
that he had billed 72.7 hours before the “instant fee motion.”
(Italics added.) All work that counsel did relating to the
successful anti-SLAPP motion necessarily preceded the fee
motion. The referenced quote in no way indicates that the 72.7
hours were spent on matters unrelated to the anti-SLAPP
motion.
14
Again quoting counsel for Frieden, Richard claims the fees
awarded to Frieden were for his counsel’s time spent “on ‘the
issues and developments in the [475] Action.’ ” This is highly
misleading. What Frieden’s fee motion said was: “Frieden’s
SLAPP motion, reply, and related efforts were labor intensive
due, in part, to Richard’s continued reference to, and reliance
upon, the pending [475] Action. This required Frieden’s counsel
to litigate the instant action and research, and keep apprised of,
issues and developments in the [475] Action.” The pending
475 Action was plainly relevant to the anti-SLAPP motions.
Indeed, the same theories in the Tukes Action that Richard called
“totally and completely without merit” in his malicious
prosecution complaint were being tested in the 475 Action. Thus,
it was appropriate that Frieden’s counsel monitor developments
in the 475 Action in preparing the anti-SLAPP motion and be
compensated for those efforts after the anti-SLAPP motion was
successful.
Richard next argues it was error to award any fees because
“the trial court never reached the issues upon which an anti-
SLAPP motion is based.” His reasoning is as follows: (a) the trial
court decided the motion based on standing; (b) standing can be
raised by demurrer; and (c) an anti-SLAPP motion premised on
lack of standing should not be granted without leave to amend
“if there is some uncertainty about standing.”
The problem with this argument is that the statutory
predicate for a fee award under the anti-SLAPP statute is that
the defendant prevailed on its motion. There is no condition
based on the reason the defendant prevailed. In relevant part,
subdivision (c)(1) of section 425.16 provides: “a prevailing
defendant on a special motion to strike shall be entitled to
15
recover [his or her] attorney’s fees and costs.” To the extent that
the trial court relied on improper grounds for granting the
motion, Richard should have raised them below and in his appeal
of the judgment following the anti-SLAPP order. He did not and
we have affirmed that judgment. Accordingly, Frieden and
Tukes remain prevailing defendants entitled to costs and fees
under section 425.16, subdivision (c)(1).
Richard next asserts that “an examination of [Tukes’s
counsel’s time records] shows [counsel performed] virtually no
work . . . except to read and review the anti-SLAPP motion
research [sic] and drafted by Nemecek & Cole in Mr. Frieden’s
defense.”8 A trial court has discretion to award less than the fee
amount requested where work performed was duplicative.
(569 E. County Boulevard LLC v. Backcountry Against the Dump,
Inc. (2016) 6 Cal.App.5th 426, 441 (569 ECB).) The trial court
here did just that. It imposed reductions for work on the fee
motion that was virtually identical to that filed by Nemecek &
Cole. But it also noted material differences in the substantive
motions reflecting independent work by Tukes’s counsel in
advocating her “unique . . . position and interests.”
Richard fails to show that the trial court abused its
discretion in making its limited time duplication adjustments.
Richard fails to quantify the work that he considers duplicative
for which no adjustment was made. And our review of the time
entries Richard says show Tukes’s counsel did “virtually no work”
8 Richard makes the duplication argument in two different
places in his brief, in the second instance calling Tukes’s anti-
SLAPP motion “virtually a photocopy of the anti-SLAPP motion
researched and filed by Nemecek & Cole.”
16
of its own show nothing of the sort. Likewise, though they are
substantially the same in many respects, we note material
distinctions between Tukes’s anti-SLAPP motion and Frieden’s.
Where Richard sees duplication, the trial court recognized
appropriate coordination that resulted in Tukes’s costs being less
than they would have been had her arguments been drawn from
whole cloth. In short, the court did not abuse its discretion in
awarding fees to the two separate firms that represented two
separate defendants with separate interests relative to Richard.
Finally, Richard claims that the trial court’s fee awards
were excessive. He bases this argument merely on the fact that
Nemecek & Cole offered some evidence of rates that were not
specifically tailored to rates in California state court litigation.
He then asserts that a rate of $275 was affirmed for anti-SLAPP
work in 569 ECB, supra, 6 Cal.App.5th at page 437; ergo the
same rate should apply here. In doing so, he misapprehends the
implications of abuse of discretion review.
Just as the 569 ECB court found no basis on which to
disturb the trial court’s discretion, we find none here. “[C]ourts
repeatedly have stated that the trial court is in the best position
to value the services rendered by the attorneys in his or her
courtroom.” (569 ECB, supra, 6 Cal.App.5th at p. 437.) Here,
the declarant for Nemecek & Cole testified to reasonable local
rates based on his experience as a lawyer in Southern California.
To corroborate his claim, he offered a fee schedule known as the
“Laffey Matrix,”9 from which he extrapolated rates subject to a
9 “The Laffey Matrix is a United States Department of
Justice billing matrix that provides billing rates for attorneys at
various experience levels in the Washington, D.C., area and can
17
local salary adjustment factor. The trial court considered this
evidence and accepted the proposed rates for Nemecek & Cole
“based upon the Court’s own knowledge and familiarity with the
legal market . . . .”
We agree with Richard that, without explicitly saying so,
the trial court necessarily credited Laffey Matrix and related
evidence. The rates that the trial court accepted were the same
as those Nemecek & Cole’s declarant offered based on an
adjusted Laffey Matrix calculation. While some courts have
questioned the utility of the Laffey Matrix outside of the
Washington, D.C., area,10 others have embraced it as applicable
nationally where, as here, an appropriate local adjustment factor
is applied. (See, e.g., Syers Properties III, Inc. v. Rankin (2014)
226 Cal.App.4th 691, 702 (Syers) [finding no abuse of discretion
in employing Laffey matrix in San Francisco litigation].)
Syers is particularly informative. In that case, the evidence
establishing the reasonable billing rate was of the same nature as
that offered here—testimony from counsel based on professional
experience that aligned with a region-adjusted Laffey Matrix
calculation. (Syers, supra, 226 Cal.App.4th at p. 702.) In
affirming, the Syers court noted “that the trial court was neither
be adjusted to establish comparable billing rates in other areas
using data from the United States Bureau of Labor Statistics.”
(Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1057
fn. 5.)
10 (See, e.g., Prison Legal News v. Schwarzenegger (9th Cir.
2010) 608 F.3d 446, 454 [finding no abuse of discretion in
declining to employ Laffey Matrix outside of Washington, D.C.,
area].)
18
required, to follow the Laffey Matrix nor to adopt the rate defense
counsel opined was the ‘market rate’ for services of [the relevant]
type.” (Ibid.) While other approaches may have been
appropriate, it continued, the approach employed was within the
court’s broad discretion in setting a reasonable fee award. (Ibid.)
We reach the same conclusion here. The trial court had
broad discretion in determining a reasonable fee. In exercising
that discretion, it was allowed to accept Nemecek & Cole’s
evidence to establish the rates that it approved. The trial court’s
section 425.16, subdivision (c)(1), fee award is therefore affirmed.
II. The Probate Court’s Judgment on the Pleadings in
the 475 Appeal
A. Judgment on the Pleadings Standard and
Standard of Review
“ ‘A motion for judgment on the pleadings is analogous to a
general demurrer.’ ” (So v. Shin (2013) 212 Cal.App.4th 652,
662.) Like a demurrer, “[a] motion for judgment on the pleadings
is properly granted when the ‘complaint does not state facts
sufficient to constitute a cause of action against that defendant.’
[Citation.] The grounds for the motion must appear on the face of
the challenged pleading or from matters that may be judicially
noticed. [Citation.] The trial court must accept as true all
material facts properly pleaded, but does not consider conclusions
of law or fact, opinions, speculation, or allegations contrary to law
or facts that are judicially noticed.” (Stevenson Real Estate
Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006)
138 Cal.App.4th 1215, 1219–1220 (Stevenson Real Estate).)
19
“Because a motion for judgment on the pleadings is similar
to a general demurrer, the standard of review is the same.”
(Baughman v. State of California (1995) 38 Cal.App.4th 182,
187.) Thus, “[w]e independently review the trial court’s ruling on
a motion for judgment on the pleadings to determine whether the
complaint states a cause of action. [Citation.] In doing so, we
accept as true the plaintiff’s factual allegations and construe
them liberally. [Citation.] If the trial court’s ruling on a motion
for judgment on the pleadings is correct upon any theory of law
applicable to the case, we will affirm it, even if we may disagree
with the trial court’s rationale.” (Stevenson Real Estate, supra,
138 Cal.App.4th at p. 1220.) This is because we review the
validity of the ruling on a motion for judgment on the pleadings
and not the reasons given. (Dudley v. Department of
Transportation (2001) 90 Cal.App.4th 255, 259 (Dudley).)
Our authority to consider alternative reasons for
affirmance is particularly significant in this case because
Richard’s motion to the probate court contained nine separately
headed theories he claimed independently supported dismissal of
Tukes’s claims. The court granted the motion (i) as to all three of
Tukes’s counts based on one of those theories, i.e., “res judicata”
(which the probate court interpreted as embracing both claim
preclusion and issue preclusion and found issue preclusion
dispositive and claim preclusion inapplicable); and (ii) as to the
third count based on a separate theory, i.e., the incompatibility of
contract and quantum meruit counts where the quantum meruit
count fails to deny the existence of the contract alleged in support
of the contract count (see Klein v. Chevron U.S.A., Inc. (2012) 202
Cal.App.4th 1342, 1389 (Klein)).
20
On appeal, Tukes chose to address in her opening brief only
the theories relied upon by the probate court as well as claim
preclusion. Remarkably, Richard failed to address in his
respondent’s brief either of the grounds the probate court relied
on for decision. Indeed, his brief does not so much as mention the
words “issue preclusion” or cite Klein. Instead, he argued two
other theories for affirmance. The first is entirely new: that the
two Trustees are jointly obligated on Tukes’s claims, rendering
the Bennett Trustee immune to suit because Tukes dismissed
indispensable party Pitts Trustee with prejudice in the Tukes
Action. The second theory reprises one advanced but not
accepted in the probate court: that all of Tukes’s claims are
barred by the statute of frauds. Tukes addressed these
arguments comprehensively in her reply.
All of this begs the question, what grounds for affirmance
may or must we consider? Given the lack of guidance specific to
motions for judgments on the pleadings, we look to decisions
rendered in the demurrer context.
City of Industry v. City of Fillmore (2011) 198 Cal.App.4th
191, 205, states the general rule that an appellate court must
consider the grounds advanced and actually argued in the
demurrer and may consider other legal grounds not there
advanced so long as the parties have had a reasonable
opportunity to address them. Thus, we have discretion to
consider an argument raised for the first time on appeal (Ortega
v. Topa Ins. Co. (2012) 206 Cal.App.4th 463, 472) but are under
no obligation to do so (see, e.g., Roman v. County of Los Angeles
(2000) 85 Cal.App.4th 316, 322, fn. 2).
21
But this does not fully answer the question because waiver
and abandonment rules also apply. First, one challenging a
judgment after demurrer or on a motion for judgment on the
pleadings bears the burden to demonstrate reversible error.
(Berman v. HSBC Bank USA, N.A. (2017) 11 Cal.App.5th 465,
471 (Berman).) Since showing merely that the trial court
sustained a motion for judgment on the pleadings for the wrong
reason is insufficient to show reversible error (Stevenson Real
Estate, supra, 138 Cal.App.4th at p. 1220), an appellant must
address in its opening brief each ground argued to the trial court
in support of the motion. (Cf. Weaver v. Shell Oil Co. (1933) 129
Cal.App. 232, 234 [“[T]he burden is upon appellants to show error
in the ruling. In other words, it is incumbent upon appellants to
overcome the presumption in favor of the order and this cannot
be done by merely giving consideration to some of the grounds
upon which the motion was based”].) Failure to meet that burden
in an opening brief may result in waiver or forfeiture. (Berman,
supra, 11 Cal.App.5th at p. 471; cf. Hastaran v. Marchand (1913)
23 Cal.App. 126, 134 [“[E]very point relied upon for reversal
should be stated and argued in the opening brief of counsel for
the appellant; and therefore points not so stated and argued may
be deemed to be waived”].) However, “the rule that legal
arguments made in the trial court but not addressed in an
opening brief are forfeited is a discretionary one, and we may
consider the merits of the arguments.” (Barriga v. 99 Cents Only
Stores LLC (2020) 51 Cal.App.5th 299, 321.)
Second, a respondent who has advanced multiple theories
in support of a demurrer or judgment on the pleadings may be
deemed to have abandoned those theories by failing to reassert
them on appeal. (Platner v. Vincent (1921) 187 Cal. 443, 447
22
(Planter) [“Respondent in her brief does not mention the point of
defect of parties raised by the demurrer, hence it will be regarded
as abandoned . . . .”].) Put another way, if the proponent of a
theory does not consider it worthy of recitation to the appellate
court, the appellate court is entitled to presume the theory has no
merit.
As applied here, these rules give us significant latitude in
deciding what issues to consider. At one end of the spectrum, we
could deem Tukes to have waived all alternative grounds by
failing to address them in her opening brief. At the other end, we
could consider only Richard’s statute of frauds ground—the only
ground that he argued both to the probate court and reasserted
on appeal. Under the circumstances, we believe the appropriate
course is to interpret the limitations in the parties’ appellate
briefs as a deliberate effort to focus only on those issues meriting
our consideration. We will thus consider only those grounds
relied upon by the parties in their respective appellate briefs.
B. Analysis
1. The Trial Court Erred in Finding Tukes’s Claims
Are Barred by Issue Preclusion
“[I]ssue preclusion applies (1) after final adjudication (2) of
an identical issue (3) actually litigated and necessarily decided in
the first suit and (4) asserted against one who was a party in the
first suit or one in privity with that party.” (DKN Holdings LLC
v. Faerber (2015) 61 Cal.4th 813, 825 (DKN).) These elements
are conjunctive, meaning that if just one is unsatisfied, issue
preclusion cannot apply. Moreover, even where each element is
satisfied, “a court must consider whether application of the issue
preclusion doctrine would comport with the doctrine’s core
policies, namely the preservation of the integrity of the judicial
23
system, the promotion of judicial economy, and the protection of
litigants from harassment by vexatious litigation.” (Contreras-
Velazquez v. Family Health Centers of San Diego, Inc. (2021) 62
Cal.App.5th 88, 100.)
The probate court found that Richard properly asserted
issue preclusion to each of Tukes’s claims against the Bennett
Trustee because Tukes had dismissed with prejudice similar
claims, raising similar issues, against the Pitts Trustee in the
Tukes Action. We agree with Tukes that the probate court
misapplied the doctrine of issue preclusion. Specifically, the
probate court erred in concluding that dismissal with prejudice
satisfies the “actual litigation” requirement for claim preclusion
articulated in DKN.
In his dissenting opinion in Boeken v. Philip Morris USA,
Inc. (2010) 48 Cal.4th 788 (Boeken), Justice Moreno observed as
follows: “Although there is some controversy in the matter, the
dominant rule in this state is that an issue that has been settled
by a voluntary dismissal with prejudice does not constitute an
issue that has been ‘actually litigated’ for collateral estoppel
purposes.” (Id. at p. 810.) In the 12 years since Boeken, the
Supreme Court has yet to resolve this controversy.11 The probate
11 In Kim v. Reins International California, Inc. (2020)
9 Cal.5th 73, 91, the Supreme Court affirmed that “[a] dismissal
with prejudice is considered a judgment on the merits preventing
subsequent litigation between the parties on the dismissed claim.”
(Italics added.) Kim carefully cabined its discussion to the
doctrine of claim preclusion and made no mention of issue
preclusion. Thus, it has no application here.
We note that Richard cites Kim in his respondent’s brief for
the above-quoted proposition. But he makes no mention of claim
24
court below adopted what Justice Moreno identified as the
disfavored rule: that dismissal with prejudice does amount to
“actual litigation” for issue preclusion purposes. We disagree
with the probate court and adopt the dominant rule.
In adopting the contrary rule, the probate court relied on
Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813(Torrey Pines) and its progeny.12 According to the probate court,
DKN’s issue preclusion requirement of “actual litigation and
determination” is a “term of art” that Torrey Pines shows can be
satisfied by mere dismissal with prejudice. However, nowhere
does the Torrey Pines majority opinion acknowledge issue
preclusion’s requirement of “actual litigation” that DKN makes
explicit.13 (See DKN, supra, 61 Cal.4th at p. 825.) Rather, the
Torrey Pines majority considered the requirements of issue
preclusion to be limited to the following: “ ‘(1) the issue in the
second action must be identical to the issue adjudicated in the
preclusion, much less any argument that it applies. The probate
court expressly found claim preclusion inapplicable. Tukes
argued in her opening brief that claim preclusion is inapplicable.
By failing to address claim preclusion Richard abandoned any
contention that it applied. (Platner, supra, 187 Cal. at p. 447.)
12 In addition to Torrey Pines, the probate court relied on
Federal Home Loan Bank of San Francisco v. Countrywide
Financial Corp. (2013) 214 Cal.App.4th 1520, 1527, and Estate of
Redfield (2011) 193 Cal.App.4th 1526, 1533, each of which relies
on Torrey Pines.
13 Indeed, the majority’s failure to impose the actual litigation
requirement was a centerpiece of the Torrey Pines dissenting
opinion. (Torrey Pines, supra, 216 Cal.App.3d at p. 825.)
25
first action; (2) the first action must have proceeded to a final
judgment on the merits; and (3) the party against whom the
collateral estoppel is to be asserted must have been a party, or
in privity with a party, to the first action.’ ” (Torrey Pines, at
p. 824.) Since Torrey Pines does not hold that dismissal with
prejudice constitutes “actual litigation,” the probate court erred
in relying on Torrey Pines for that proposition.
We acknowledge that collateral estoppel may apply where
the parties have resolved issues in a manner that falls short of a
full-blown trial. (See, e.g., California State Auto. Assn. Inter-Ins.
Bureau v. Superior Court (1990) 50 Cal.3d 658, 664 (CSAA)
[“a stipulated judgment may properly be given collateral estoppel
effect, at least when the parties manifest an intent to be
collaterally bound by its terms”]; but see Rice v. Crow (2000) 81
Cal.App.4th 725, 736, 736–737, fn. 1 [“A settlement which avoids
trial generally does not constitute actually litigating any issues
and thus prevents application of collateral estoppel”;
distinguishing CSAA].) But we agree with our Second District
colleagues in Rice v. Crow, supra, 81 Cal.App.4th at pages 736–
737 and Le Parc Community Assn. v. Workers’ Comp. Appeals Bd.
(2003) 110 Cal.App.4th 1161, 1174, that the bare pre-trial
dismissal of a lawsuit with prejudice does not result in the
“actual litigation” of any issues for issue preclusion purposes.
To hold otherwise would render issue preclusion’s “actual
litigation” requirement meaningless. Where a pre-trial
settlement results in a bare dismissal with prejudice without any
findings or determinations entered by the court, all that has
occurred for preclusion purposes is that the parties have agreed
to permanently terminate the action at hand without litigation.
Such a dismissal amounts to “a final judgment on the merits” for
26
claim preclusion purposes because “with prejudice” means that
any future action between the parties on the same subject matter
is barred. (Boeken, supra, 48 Cal.4th at p. 793.) But while any
“final judgment on the merits” can support claim preclusion, it is
not enough to support issue preclusion.
DKN, in response to widespread confusion about the
doctrines, made this abundantly clear in articulating the distinct
requirements of claim and issue preclusion. (DKN, supra,
61 Cal.4th at pp. 824–825.) Instead of “a final judgment on the
merits,” issue preclusion requires “final adjudication” and “actual
litigation.” (Id. at p. 825.) And, since DKN, the Supreme Court
has reiterated that the two doctrines’ elements are distinct:
“[c]laim and issue preclusion have different requirements and
effects.” (Samara v. Matar (2018) 5 Cal.5th 322, 326.) Treating
the “final adjudication” and “actual litigation” requirements as
satisfied by any “final judgment on the merits,” including a bare
dismissal with prejudice, would eliminate a fundamental
distinction between claim and issue preclusion in derogation of
Samara and mark a return to the confusion that DKN sought to
end.
The notice of dismissal with prejudice filed in the Tukes
Action served only to terminate the lawsuit between the parties—
Tukes and the Pitts Trustee—without actual litigation of any
issues. We thus conclude that Richard cannot rely on such
dismissal to support the defense of issue preclusion in the
475 Action.
2. The Bennett Trustee May Be Sued Because the
Pitts Trustee Is Not an Indispensable Party
In his respondent’s brief, Richard contends that dismissal
of the Pitts Trustee with prejudice in the Tukes Action bars
27
Tukes’s claims against the Bennett Trustee, not because of claim
preclusion or issue preclusion, but because the Pitts Trustee is
the Bennett Trustee’s joint obligor. Though Richard does not say
it directly, we infer from his assertion that he views the Pitts
Trustee as an indispensable party without whom the Bennett
Trustee cannot be sued. We disagree.
Attempting to establish that the Trustees are joint obligors,
Richard directs us (without record citations) to Tukes’s
allegations in the Tukes Action. The referenced allegations are
that an implied contract existed between Tukes and both of the
Trustees, or that they were both liable to Tukes in quantum
meruit to prevent their unjust enrichment. Tukes does not
dispute that the now-dismissed allegations in the Tukes Action
were that the Trustees were both liable to her for the finder’s fee
under the two alleged theories. Nor does she dispute that the
prior allegations are properly considered in assessing the Bennett
Trustee’s amenability to suit in the 475 Action. We therefore do
consider the allegations.
Tukes’s sole response is that her allegations in the Tukes
Action create a presumption of joint and several liability by the
Trustees and no contrary intention is shown. In support, Tukes
relies on Civil Code section 1659, which provides that “[w]here all
the parties who unite in a promise receive some benefit from the
consideration, whether past or present, their promise is
presumed to be joint and several.” We agree with Tukes that
Civil Code section 1659 controls here.
Each count asserted in the Tukes Action is predicated on a
promise implied either from the parties’ conduct or other
circumstances. (Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th
508, 525 [“ ‘A cause of action for breach of implied contract has
28
the same elements as does a cause of action for breach of
contract, except that the promise is not expressed in words but is
implied from the promisor’s conduct’ ”]; Advanced Choices, Inc. v.
State Dept. of Health Services (2010) 182 Cal.App.4th 1661, 1673
[“ ‘Quantum meruit refers to the well-established principle that
“the law implies a promise to pay for services performed under
circumstances disclosing that they were not gratuitously
rendered” ’ ”].) Civil Code section 1659 applies equally to express
promises and those implied by law. (See Kirtley v. Perham (1917)
176 Cal. 333, 341 [applying section 1659 to joint vendors’ implied
promise to repay purchaser’s installment payments under
executory contract for sale following destruction of subject
property].)
Tukes also alleges that the Trustees both received benefits
from the promises she asked the probate court to imply.
Specifically, she alleges that, in expectation of payment for her
efforts, Tukes identified and introduced to the Trustees a
potential buyer for the Property and, as a result, the Trustees
consummated a sale of the Property without the usual cost of a
real estate broker.
We therefore conclude that Civil Code section 1659’s
presumption of joint and several liability applies to the Trustees’
alleged obligations to Tukes. We are shown no intention on the
part of any party that the obligation be joint only. Thus, Tukes
was free to sue the Bennett Trustee in the 475 Action without
joining the Pitts Trustee. (DKN, supra, 61 Cal.4th at p. 820
[parties who are jointly and severally liable may be sued in
separate actions].)
29
3. The Statute of Frauds Does Not Bar Tukes’s
Claims Against the Pitts Trustee Because She Adequately
Pled Estoppel
An agreement for a finder’s fee ordinarily must be in
writing to be enforceable. This is because such agreements are
subject to the statute of frauds, Civil Code section 1624,
subdivision (a)(4). (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d
18, 27 (Tenzer).) The statute of frauds applies to all forms of
promises and agreements falling within its ambit, whether
express or implied. (Beard v. Melvin (1943) 60 Cal.App.2d 421,
426 [“ ‘Whatever the form of the action may be, if the proof of a
promise or contract within the statute is essential to maintain it,
there can be no recovery unless the statute is satisfied’ ”]; see also
Buckaloo v. Johnson (1975) 14 Cal.3d 815, 821, disapproved in
part on other grounds in Della Penna v. Toyota Motor Sales,
U.S.A., Inc. (1995) 11 Cal.4th 376, 393, fn. 5 [statute of frauds
applies equally to actions “based on contract or implied
contract”].) Thus, Tukes can recover her claimed finder’s fee
under her oral contract, implied contract, or quantum meruit
theories only if she can ultimately prove that an exception to the
statute of frauds exists.
Recognizing this, Tukes asserted in her petition that the
Bennett Trustee “is estopped from asserting the statute of frauds
due to the unconscionable injury [Tukes] will suffer or the unjust
enrichment that the Trustee will retain if [she] is not paid a
finder’s fee.” Tenzer indeed recognizes that “[t]he doctrine of
estoppel to plead the statute of frauds may be applied where
necessary to prevent either unconscionable injury or unjust
enrichment” and may be invoked by an unlicensed finder.
(Tenzer, supra, 39 Cal.3d at pp. 24, 27.) The question is thus
30
whether Tukes’s allegations adequately plead the exception.
As to unconscionable injury, Tukes alleges that, beginning
sometime in 2017, she spent more than 2,000 hours over the
course of seventeen months searching for a buyer for the
Property. The search was so time consuming that “she was
forced to drop out of college and delay her education in order to
sell the Property.” At some point during the 17-month effort,
Tukes alleges that the Bennett Trustee assured her “that if she
successfully located a buyer, she would be compensated for her
work.” Although Tukes originally commenced her search out of
pity for her mother “having to live without the substantial
inheritance that Dr. Bennett wanted her mother to get,” she
allegedly continued her search in reliance on the Bennett
Trustee’s promise of compensation.
Tukes fails to state precisely when the promise occurred.
We note that work she did out of pity for her mother cannot be
considered for estoppel purposes here; only work performed in
reliance on the Bennett Trustee’s alleged promise can.14
(Cf. Smyth v. Berman (2019) 31 Cal.App.5th 183, 199 (Smyth)
[changes in position undertaken prior to alleged promise
irrelevant to estoppel analysis].) However, we ascertain from the
petition’s allegations that the promise was made not later than
June 5, 2017, when the Bennett Trustee’s assistant furnished a
copy of the Property’s title report to Tukes, because Tukes alleges
that he furnished the report “[i]n furtherance of his agreement
14 In her appellant’s reply brief, Tukes argues that all of her
efforts and sacrifice were induced by the Bennett Trustee’s
alleged promise. This is at odds with the allegations in the
petition for the reasons stated.
31
with her,” which agreement was premised on the alleged promise.
Thus, depending on when in 2017 she started her search, Tukes’s
allegations are that she spent at least a full year, to the exclusion
of continuing her education, to find a buyer for the Property in
purported reliance on the Bennett Trustee’s alleged promise.
These allegations are sufficient to create a question of fact
on the issue of estoppel. In Byrne v. Laura (1997) 52 Cal.App.4th
1054, 1069, allegations that the plaintiff retired from her job,
moved in with a man, and performed spousal duties for him for
five years based on his oral promises to devise property to her
created questions of fact regarding estoppel. Similarly, in
Carlson v. Richardson (1968) 267 Cal.App.2d 204, 208, that
plaintiffs had purchased land near a building site the defendant
had orally promised to sell them created a question of fact
regarding estoppel. In contrast, in Smyth, supra, 31 Cal.App.5th
at page 198, the court found that the plaintiffs’ time spent
“working up [an] offer” to buy real property based on the
defendant’s oral extension of a lease containing a right of first
refusal did not suffice to plead estoppel.
These cases reflect that allegations of substantial
investment made by the plaintiff in reliance on the defendant’s
promise—whether in time, effort, or money—may permit the
trier of fact to consider a claim of estoppel. In contrast,
allegations of an insubstantial investment will not. We are
satisfied that Tukes has alleged sufficient investment of time and
effort in reliance on the Bennett Trustee’s alleged promise to
plead estoppel. We therefore need not consider whether the
Bennett Trustee would be unjustly enriched if he were allowed to
renounce his alleged promise.
32
4. Although the Probate Court Correctly Analyzed
Tukes’s Quantum Meruit Claim, Leave to Amend Is Now
Warranted
In addition to its erroneous issue preclusion ground, the
probate court granted Richard’s motion on Tukes’s quantum
meruit count on the alternative ground that she could not
maintain such count without disclaiming the existence of the
contracts alleged in the first two counts of the petition. This was
a correct application of the rule stated in Klein, supra, 202
Cal.App.4th at page 1389. Moreover, the probate court did not
err in denying leave to amend where it had identified (albeit
erroneously) an independently sufficient ground to grant
Richard’s motion as to the quantum meruit count. However,
since we conclude that Richard’s motion should not have been
granted on any other ground, we must consider Tukes’s request
for leave to amend her quantum meruit claim.
We consider a request for leave to amend when reviewing
judgment following a motion for judgment on the pleadings in the
same way as when reviewing judgment following a demurrer.
(Dudley, supra, 90 Cal.App.4th at p. 260.) To show entitlement to
leave to amend, “the appellant must show there is a reasonable
possibility that the defect in the complaint can be cured by
amendment.” (SLPR, L.L.C. v. San Diego Unified Port Dist.
(2020) 49 Cal.App.5th 284, 317.) In particular, it “ ‘must show in
what manner [it] can amend [its] complaint and how that
amendment will change the legal effect of [its] pleading.’
[Citation.]” (Rakestraw v. California Physicians’ Service (2000)
81 Cal.App.4th 39, 43.)
33
Tukes has done so here (and Richard does not argue
otherwise). She proposes to address the issue identified by the
probate court by “pleading unequivocally that no enforceable
contract governed the transaction” for purposes of her quantum
meruit count. Such alternative pleading is expressly permitted
under Klein, supra, 202 Cal.App.4th at page 1388. Thus, there is
a reasonable probability that the proposed amendment will cure
the defect.
III. We Affirm the Expense Award Against Brown in the
475 Appeal15
A. Applicable Standards of Review
Citing to Reck, supra, 64 Cal.App.5th 682, 690, Richard and
Brown say the standard of review “in determining whether the
criteria for an award of attorney fees has been satisfied” is de
novo. Citing Ellerbee v. County of Los Angeles (2010) 187
Cal.App.4th 1206, 1217, Tukes counters that we should review
15 In responding to Richard and Brown’s cross-appeal, Tukes
notes our authority to strike their opening brief for failure to
include a statement of appealability as required by California
Rules of Court, rule 8.204(a)(2)(B). Rule 8.204(e), and not
Tukes’s cited Lester v. Lennane (2000) 84 Cal.App.4th 536,
governs our authority in this regard. We in no way condone
Richard and Brown’s failure in their cross-appeal (or Richard’s
corresponding failures in the 270 Appeals). Nor do we adopt
Richard and Brown’s characterization of Westchester Secondary
Charter School v. Los Angeles Unified School Dist. (2015) 237
Cal.App.4th 1226, 1235, footnote 4, as categorically excusing
compliance with rule 8.204(a)(2)(B) under any circumstance.
Nevertheless, as we did with respect to Richard’s appeals, we
exercise our discretion under rule 8.204(e)(2)(B) to disregard
Richard and Brown’s non-compliance here.
34
only for abuse of discretion. As explained in Reck, de novo review
applies to legal questions pertaining to a fee award. (Reck, supra,
64 Cal.App.5th at pp. 690–691.) Here, Richard and Brown’s
opening brief evinces a legal challenge to the probate court’s
authority to order Brown to pay expenses under the
circumstances presented. We review the question of authority to
award fees de novo. (Vidrio v. Hernandez (2009) 172 Cal.App.4th
1443, 1452.)
B. Analysis
California Rules of Court, rule 2.30 affords a trial court,
including one administering probate proceedings, authority to
award sanctions “for failure without good cause to comply with
the applicable rules.” (Cal. Rules of Court, rule 2.30(a), (b).) In
addition, the court may order the person found in violation of an
applicable rule to “pay to the party aggrieved by the violation
that party’s reasonable expenses, including reasonable attorney’s
fees and costs, incurred in connection with the motion for
sanctions . . . .” (Id. at rule 2.30(d).)
In their opening brief on cross-appeal, Richard and Brown
do not dispute that Brown violated a rule. Rather, they suggest
that the probate court’s rule 2.30 authority terminates where
(a) the violator prevails in the litigation in which the litigation
occurred; (b) the violations were compelled by rule violations of
his opponent; and (c) the request for sanctions did not comply
with a rule of court. We reject Richard and Brown’s position.
First, there is no basis in rule 2.30 for the exception
Richard and Brown suggest. Remarkably, they do not so much as
mention rule 2.30 in their opening brief on cross-appeal. Second,
they cite no cases that a probate court loses its sanction and
expense award authority under rule 2.30 under any
35
circumstances.16 Third, they fail to argue how the circumstances
could result in the termination of the probate court’s authority.
We are entitled to, and do here, disregard assertions that are
unsupported by argument or authority. (United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.)
Without any support for their claim that the probate court’s
authority was limited by the circumstances, Richard and Brown’s
cross-appeal collapses into a complaint that the probate court
should not have ordered Brown to pay expenses; not that it could
not make such an order. Considering such an argument would
require us to review the probate court’s discretion. (See Sino
Century Development Limited v. Farley (2012) 211 Cal.App.4th
688, 700 [noting that rule 2.30 affords trial courts discretion]
(Sino Century).) But Richard and Brown have not asked us to
review the trial court’s exercise of discretion. Indeed, they insist
that they have made no such request. We therefore decline to do
so.
16 Richard and Brown argue extensively that authorities
Frieden cited to the probate court by way of analogy were
inapposite. Whether true or not, Richard and Brown bear the
burden on their cross-appeal to show error. (Lafferty v. Wells
Fargo Bank, N.A. (2018) 25 Cal.App.5th 398, 428, superseded by
statute on other grounds as stated in Pulliam v. HNL Automotive
Inc. (2021) 60 Cal.App.5th 396, 411.) Where there is no
indication that the probate court even relied on Tukes’s cited
authority, as opposed to the plain language of rule 2.30 (which
Richard and Brown ignore), we fail to see the relevance of this
argument to Richard and Brown’s cross-appeal.
36
On reply, Richard and Brown attempt to recast their
appeal as addressing the legal question of whether “Rule 2.30
‘authorizes’ a trial court to award attorney’s fees as
‘sanctions’ ”—an issue not addressed in his opening brief. (Bold
italics in original.) To do so they rely on Sino Century, supra,
which provides that “attorney fees may not be awarded as a
sanction absent specific authorization or agreement of the
parties.” (Sino Century, supra, 211 Cal.App.4th at p. 697.)
Ordinarily we disregard arguments not made in an opening brief
absent good cause. (Varjabedian v. City of Madera (1977) 20
Cal.3d 285, 295, fn. 11.) Here, good cause is not shown. In any
event, the argument that the probate court awarded fees as a
sanction in contravention of Sino Century is without merit.
The probate court expressly declined to order sanctions but
awarded expenses in an amount ($4,000) that was less than half
the amount ($8,085) Tukes claimed were incurred in preparing
the motion for sanctions. Rule 2.30(d) authorizes fee awards in
the amount “incurred in connection with the motion for
sanctions.” (Cal. Rules of Court, rule 2.30(d).) The sanctions
motion was among the “additional work” Frieden undertook as a
result of Brown’s repeated rule violations.
For all of these reasons, we find no error in the probate
court’s expense award.
DISPOSITION
The judgment and orders in the 270 Appeal are affirmed.
Costs are awarded to Tukes and Frieden.
In the 475 Appeal, the order dismissing Tukes’s claim with
prejudice is reversed and the matter is remanded to the probate
court with instructions to vacate the order granting the motion
for judgment on the pleadings and enter a new order on such
37
motion denying such motion as to counts 1 and 2 and granting
such motion as to count 3 with leave to amend. The order
directing Brown to pay Frieden $4,000 in expenses is affirmed.
Costs are awarded to Tukes.
CERTIFIED FOR PUBLICATION
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J.
GRIMES, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
38