Filed 9/21/16 Lambert v. Francis CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DIANE RENEE LAMBERT,

Cross-complainant and Respondent,

v.

JOANIE FRANCIS et al.,

Cross-defendants and Appellants.

 H041665

 (Santa Clara County

 Super. Ct. No. 1-03-CV011268)

This case is before us for the third time. Appellants and Century 21 Alpha agents 

Joanie Francis and Rich Robinson challenge what they characterize as an improper postjudgment award of statutory attorney’s fees to respondent Diane Renee Lambert. They 

argue (1) that Lambert’s October 17, 2014 “Motion for Recovery of Attorney’s Fees, 

Costs and Expenses” was untimely, (2) that the statutory time period for filing a fees 

motion was not stayed by the filing of an appeal or by Century 21 Alpha’s bankruptcy, 

(3) that “at the very least” the award of fees that Lambert incurred on appeal must be 

reversed, (4) that if the fees award is not reversed it should be reduced by 50 percent, and 

(5) that the costs award to Lambert must be reversed. We affirm.
2

I. Background1

A. Dalton I

Plaintiffs Vera Dalton and William Corbin (collectively, the buyers) purchased a 

house from Lambert.2 Francis and Robinson represented the buyers as well as Lambert 

in the transaction. The buyers sued Lambert and Francis and Robinson based on a 

misrepresentation that the property, which used a dilapidated septic system, was 

connected to the public sewer. The buyers prevailed in a 2005 jury trial and obtained a 

damages award against all defendants. In a post-judgment order dated 

December 16, 2005, the trial court awarded the buyers $50,000 in attorney’s fees and 

costs against all defendants. The court ruled that Lambert was entitled to indemnification 

from Francis and Robinson for damages and attorney’s fees and costs awarded to the 

buyers against her.

All parties appealed from the December 16, 2005 order. This court held that the 

trial court lacked jurisdiction to enter the order. The court reversed the order, directed the 

trial court to reinstate an earlier post-judgment order, and remanded the case for further 

proceedings. The court also ruled that the parties should bear their own costs on the 

Dalton I appeal.

 

1

The facts are taken in large part from our prior decisions in this matter. (Dalton v. 

Century 21 Alpha (Dec. 20, 2007, H029904 [nonpub. opn.] (Dalton I); (Dalton v. Francis

(July 11, 2014, H033247 [nonpub. opn.] (Dalton II).) Francis and Robinson note that we 

took judicial notice in Dalton II of the Dalton I decision. They ask that we now take 

judicial notice of the Dalton II decision. We grant the unopposed request. On our own 

motion, we also take judicial notice of the Dalton I decision. (Evid. Code, §§ 451, subd. 

(a); 452, subds. (a); D’Arrigo Bros. of California v. United Farmworkers of America

(2014) 224 Cal.App.4th 790, 795, fn.1.)

2

The plaintiffs are no longer involved in the case. 
3

B. Proceedings on Remand

On April 16, 2008, the trial court issued an order restating its earlier postjudgment order. The parties filed various motions seeking clarification of the 

April 16, 2008 order. On June 13, 2008, the trial court awarded the buyers $262,905.50 

in contractual attorney’s fees and costs against Lambert. The court ruled that Lambert 

was entitled to “total implied equitable indemnity” from Francis and Robinson for the 

entire amount. The court also ruled that Lambert could recover her own attorney’s fees 

and costs from Francis and Robinson under the tort of another doctrine.

C. Dalton II

Francis and Robinson noticed an appeal from the June 13, 2008 order. Century 21 

Alpha declared bankruptcy a week later. The bankruptcy stay caused the trial court to 

take Francis’s and Robinson’s then-pending motion to strike and/or tax costs claimed by 

Lambert off calendar. Francis and Robinson re-noticed their motion to strike and/or tax 

Lambert’s costs when the bankruptcy stay was lifted in 2011.

3 On November 7, 2011, 

the trial court issued an order largely denying their motion. Francis and Robinson filed a

separate appeal from the November 7, 2011 order. 

This court ordered both appeals considered together for briefing, oral argument, 

and decision. We reversed the trial court’s June 13, 2008 order and remanded the case 

with directions that the trial court enter a new order (1) vacating its April 16, 2008 order; 

(2) awarding the buyers $262,905.50 in costs and contractual attorney’s fees against 

Lambert; (3) denying Lambert’s motion for equitable indemnity from Francis and 

Robinson for that amount; and (4) granting Lambert’s motion to recover her own 

 

3 A permanent stay of proceedings against Century 21 Alpha was entered when its 

chapter 11 reorganization plan was approved in 2011. Century 21 Alpha is no longer 

involved in this case. 
4

attorney’s fees and costs as tort of another damages from Francis and Robinson. We also 

modified the trial court’s November 7, 2011 costs order to disallow Lambert’s recovery 

of $1,550 in filing and motion fees incurred and affirmed the order as modified. We

ruled that the parties should bear their own costs on the Dalton II appeal. The remittitur 

issued on August 26, 2014. 

D. Proceedings on Remand

On October 17, 2014, Lambert filed a motion to recover $195,983.32 in attorney’s 

fees, costs, and expenses from Francis and Robinson. Her motion papers made it clear 

that she sought recovery of that amount not pursuant to contract or statute but instead as 

damages under the tort of another doctrine. Lambert’s counsel submitted a detailed 

declaration supporting the amounts claimed.

Francis and Robinson opposed the motion. They argued that it was untimely 

under California Rules of Court, rule 3.1702, that the time period for filing a fees motion 

was not stayed by Century 21 Alpha’s bankruptcy or by the Dalton I appeal, that Lambert 

was not entitled to recover fees that she incurred on appeal because “[t]he ruling by the 

Court of Appeal on both occasions was that each party shall bear their own costs on 

appeal,” and that Lambert’s claim for costs should be stricken “because the issue of costs 

has already been litigated and decided.” Francis and Robinson also argued that any 

award of attorney’s fees should be reduced by 50 percent because Lambert “incurred 

$104,060.01 in attorney’s fees on a simple damage claim which the jury decided was 

only worth $85,495.” 

Lambert argued in reply that her motion was timely because her entitlement to tort 

of another damages was not finally established until the remittitur issued on 

August 26, 2014. She explained that the trial court’s post-remittitur order directing her to 

submit a motion for attorney’s fees and costs was filed on October 2, 2014, and that her 

motion was filed 15 days later. She reiterated that she was seeking damages suffered as a 
5

result of Francis’s and Robinson’s tortious conduct, not statutory or contractual attorney’s 

fees. 

At the November 13, 2014 hearing, Lambert’s trial counsel repeated that Lambert 

sought damages under the tort of another doctrine. He argued that her motion was timely 

because “the issue that went up on appeal was entitlement” to tort of another damages, 

“and I do not see how the measure of those damages could be separated from the 

entitlement [to] those damages. Until Lambert was entitled to those damages, we could 

not move the . . . trial court to determine the amount of those damages.” 

Counsel for Francis and Robinson characterized Lambert’s argument as 

“shameful.” He asserted that Lambert’s counsel was “try[ing] to get in this motion 

another $65,000 in fees and costs for working the appeal when the Appellate Court said

he didn’t get them.” Counsel maintained that Lambert’s motion sought statutory 

attorney’s fees and costs. “We’re not talking about some esoteric theory of damages. 

He’s asking for attorney’s fees in this matter.” 

The trial court took the matter under submission and subsequently granted 

Lambert’s motion. The court’s November 13, 2014 order stated that Lambert “shall 

recover her own attorney’s fees and costs in the amount of $195,008.32 as tort of another 

damages . . . .” Francis and Robinson filed a timely notice of appeal. 

II. Discussion

A. California Rules of Court, Rule 3.1702(b)(1)4

Francis and Robinson contend that Lambert’s motion was untimely under rule 

3.1702(b)(1). We disagree.

 

4 All further references to rules are to the California Rules of Court.
6

Rule 3.1702 provides that “[a] notice of motion to claim attorney’s fees up to and 

including rendition of judgment in the trial court . . . must be served and filed within the 

time for filing a notice of appeal . . . .” (Rule 3.1702(b)(1).) By its express terms, the 

rule “applies in civil cases to claims for statutory attorney’s fees and claims for attorney’s 

fees provided for in a contract.” (Rule 3.1702(a).) Lambert sought neither. She sought 

tort of another damages. Rule 3.1702 says nothing about tort of another damages. The 

rule has no application here.

Francis and Robinson nevertheless maintain that “[r]ule 3.1702 applies to all 

motions for attorney’s fees, not just motions for statutory attorney’s fees and claims for 

attorney’s fees provided for in a contract.” They quote a statement to that effect from 

Sanabria v. Embrey (2001) 92 Cal.App.4th 422 (Sanabria), but their reliance on 

Sanabria is misplaced.

“Language used in any opinion is of course to be understood in the light of the 

facts and the issue then before the court, and an opinion is not authority for a proposition 

not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524.) Sanabria says 

nothing about tort of another damages or when a motion claiming such damages must be 

filed. The Sanabria court considered whether former rule 870.2 (renumbered as rule 

3.1702 eff. Jan. 1, 2007) governed motions for attorney’s fees filed after voluntary 

dismissals. The court explained that the issue arose because the former rule related the 

time for filing a fees motion to the time for filing a notice of appeal. Because voluntary 

dismissals are generally not appealable, “some cases have speculated, in dicta, that 

perhaps . . . rule 870.2 is inapplicable to motions for attorney fees following voluntary 

dismissals, and there is therefore no time period within which such motions must be 

filed.” (Sanabria, supra, 92 Cal.App.4th at p. 427.)

In rejecting such speculation, the Sanabria court discussed the legislative history 

of the rule and in particular, an amendment that was proposed in 1992 and later adopted. 

The court specifically noted that the proposed amendment addressed “the procedure for 
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all claims for attorney fees under statute or contract.” (Sanabria, supra, 92 Cal.App.4th 

at p. 427, italics added.) The court found it “apparent” from the legislative history that 

“any omission in the language of the rule with respect to setting forth time limits for 

moving for attorney fees after the entry of voluntary dismissal was wholly inadvertent.” 

(Id. at pp. 428-429.) The court concluded that former rule 870.2 governed the Sanabria 

defendants’ motion for attorney’s fees, which was not filed within 60 days after service 

of the plaintiff’s notice of entry of dismissal and was therefore untimely. (Sanabria, at 

pp. 428-429.) In the context of the facts of the Sanabria case, the court’s statement that 

former rule 870.2 “was adopted in order to provide time limits within which all motions 

for attorney fees in civil cases must be made” provides no support for Francis’s and 

Robinson’s position. (Sanabria, at p. 428.)

B. Stay Pending Appeal

Francis and Robinson contend that the time for filing Lambert’s fees motion was 

not stayed by the filing of the Dalton I appeal. They assert that “numerous cases . . . hold 

that trial courts retain jurisdiction to rule on motions for attorney’s fees even after a 

notice of appeal has been filed.” The cases that they string cite do not advance their 

position. Those cases are easily distinguished because all of them addressed motions to 

recover statutory or contractual attorney’s fees. (Nazemi v. Tseng (1992) 5 Cal.App.4th 

1633, 1641 [motion to recover contractual attorney’s fees as an item of costs not 

automatically stayed by filing of an appeal]; In re Marriage of Askmo (2000) 85 

Cal.App.4th 1032, 1039 [trial court’s power to enforce temporary support orders and 

attorney’s fee orders in marriage dissolution cases continues during the pendency of any 

appeal]; Sherry H. v. Thomas B. (1988) 203 Cal.App.3d 1500, 1502 [appeal from 

paternity judgment does not divest trial court of jurisdiction to award statutory attorney’s 

fees]; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360 [trial court retains

jurisdiction to award statutory attorney’s fees.].) Those cases are inapposite because 
8

Lambert did not seek statutory or contractual attorney’s fees. (Roberts v. City of 

Palmdale (1993) 5 Cal.4th 363, 372 [“Obviously, cases are not authority for propositions 

not considered therein.”].)

C. Bankruptcy Stay

Francis and Robinson next contend that Lambert’s fees motion was untimely even 

if Century 21 Alpha’s August 15, 2008 bankruptcy filing stayed all proceedings in the 

trial court. They assert that Lambert could have filed her fees motion before 

August 15, 2008, and in any event should have filed it within 60 days after the 

bankruptcy stay was lifted in 2011. We reject the argument. The 60-day rule on which 

Francis and Robinson rely applies to motions for statutory or contractual attorney’s fees. 

(Rule 3.1702.) We have already decided that the rule has no application here.

D. Attorney’s Fees Incurred on Appeal 

Francis and Robinson next contend that the trial court’s award to Lambert of 

attorney’s fees incurred on appeal must “at the very least” be reversed because this 

court’s ruling “on both [the Dalton I and Dalton II appeals] was that each party shall bear 

their own costs on appeal.” The argument lacks merit. Francis and Robinson continue to 

confuse the right to recover statutory or contractual attorney’s fees as an item of costs 

(Code Civ. Proc., § 1033.5, subd. (a)(10)) with the right to recover attorney’s fees as tort 

of another damages. In the tort of another context, “we are not dealing with ‘the measure 

and mode of compensation of attorneys’ but with damages wrongfully caused by 

[Francis’s and Robinson’s] improper actions.” (Prentice v. North American Title 

Guaranty Corp. (1963) 59 Cal.2d 618, 621 (Prentice).) In Dalton II, we explained the 

distinction between statutory and contractual attorney’s fees on the one hand and tort of 

another damages on the other hand. (Dalton II, supra, H033247.) We need not repeat 

that explanation here. This court’s prior rulings that the parties should bear their own 
9

costs on appeal do not affect Lambert’s entitlement to recover her attorney’s fees on 

appeal as tort of another damages. (Ibid.)

E. Allegedly Excessive Fees

Francis and Robinson next contend that the trial court abused its discretion in 

awarding Lambert $104,060.01 in attorney’s fees incurred in the trial court on “a simple 

damage claim which the jury decided was only worth $85,495.” They assert that that 

amount should be reduced by 50 percent because Lambert “failed to justify her attorney’s 

fees” and the award was “clearly excessive.” We disagree.

We reject the contention that Lambert “failed to justify” the attorney’s fees she 

incurred in the trial court. Her trial counsel submitted a sworn declaration that explained 

his firm’s hourly billing rates as compared to rates charged by comparable local firms. 

He attached itemized billing statements that described the specific tasks performed by 

him or by his legal assistant under his supervision, the dates on which those tasks were 

performed, the amount of time spent on each, and the fee charged. This evidence was 

more than adequate to support the trial court’s determination of the “reasonably 

necessary” attorney’s fees to which Lambert was entitled as damages under Prentice. 

(Prentice, supra, 59 Cal.2d at p. 620.) “[T]he trial court has broad authority to determine 

the amount of a reasonable fee.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 

1095 (Drexler).) “‘The “experienced trial judge is the best judge of the value of 

professional services rendered in his court . . . .”’” (Ibid.) Consequently, “‘[t]he amount 

to be awarded in attorney’s fees is left to the sound discretion of the trial court.’” (Ibid.) 

That determination “‘“will not be disturbed unless the appellate court is convinced that it 

is clearly wrong.” ’” (Ibid.) 

Francis’s and Robinson’s argument that Lambert incurred $104,060.01 in 

attorney’s fees on a “simple damage claim” that the jury decided was “only worth 

$85,495” does not allow us to say that the amount the trial court awarded was clearly 
10

wrong. (Drexler, supra, 22 Cal.4th at p. 1095.) In Stokus v. Marsh (1990) 217 

Cal.App.3d 647 (Stokus), the court affirmed an award of $75,000 in attorney’s fees to the 

plaintiff, who recovered possession and damages in an unlawful detainer action that was 

“tenaciously over-litigated.” (Id. at pp. 651, 653.) The court held that the amount was 

“reasonable in light of the work required to be done” although the plaintiff recovered 

only $6,166 in damages. (Id. at pp. 651, 654.)

This case too was “‘tenaciously litigated,’ ” as the trial court expressly found. 

(Dalton II, supra, H033247.) The trial court noted that the case “‘went through three 

mediation sessions.’” (Ibid.) “Almost three dozen depositions were taken. ‘Nine experts 

were called as witnesses.’ Trial took 11 days.” (Ibid.) In these circumstances, Francis’s 

and Robinson’s argument that the jury awarded the plaintiffs less than the amount 

Lambert incurred in attorney’s fees does not persuade us that the trial court abused its 

discretion in awarding her those fees.

Francis and Robinson identify no other basis on which we might conclude that the 

trial court abused its discretion in determining the amount of fees to which Lambert was 

entitled under Prentice. Nowhere in their briefs is there any argument that the hourly 

rates charged by Lambert’s trial counsel’s firm were unreasonable, that any task 

performed was unnecessary, or that the amount of time expended on any task was 

inappropriate, unreasonable, or duplicative.

Nowhere in the record before us is there any evidence that Francis and Robinson 

raised any specific objection in the trial court to the rates charged, the hours spent, or the 

work performed. This is fatal to their claim that the trial court’s award of $104,060.01 in 

attorney’s fees incurred in the trial was “clearly excessive.” “In challenging attorney fees 

as excessive because too many hours of work are claimed, it is the burden of the 

challenging party to point to the specific items challenged, with a sufficient argument and 

citations to the evidence. General arguments that fees claimed are excessive, duplicative, 

or unrelated do not suffice.” (Premier Medical Management Systems, Inc. v. California 
11

Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) Francis’s and Robinson’s 

failure to properly raise their excessive fees argument in the trial court has forfeited the 

argument on appeal. (Ibid.)

F. Alleged Double Recovery of Costs

Francis and Robinson contend that the trial court’s award to Lambert of costs in 

addition to those claimed in her June 27, 2008 costs memorandum must be stricken 

“because the issue of costs has already been litigated and decided” and Lambert should 

not be allowed a “double recovery.” The argument lacks merit.

There was no double recovery here. Lambert’s June 27, 2008 costs memorandum 

identified $13,706.16 in costs incurred before that date. The trial court’s 

November 7, 2011 order allowed that amount, but Lambert did not then recover it 

because Francis and Robinson appealed from the November 7, 2011 order. In Dalton II, 

we held that the amount the trial court allowed improperly included $1,550 in filing and 

motion fees. We modified the November 7, 2011 order to disallow that amount and 

affirmed the order as modified, thus authorizing Lambert’s recovery of $12,156.16 in 

costs incurred before June 27, 2008. On remand in 2014, Lambert sought to recover

those costs plus an additional $17,569.65 in costs incurred after June 27, 2008, for a total 

of $29,725.81. We reject Francis’s and Robinson’s “double recovery” argument. 

We also reject their two-sentence argument that “[t]he costs issue has already been 

decided. It is res judicata and collateral estoppel.” “When a point is asserted without 

argument and authority for the proposition, ‘it is deemed to be without foundation and 

requires no discussion by the reviewing court.’ [Citations.] Hence, conclusory claims of 

error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.)

Here, the argument also fails on the merits. “Collateral estoppel precludes 

relitigation of issues argued and decided in prior proceedings. [Citation.]” (Lucido v. 

Superior Court (1990) 51 Cal.3d 335, 341.) The doctrine applies “only if several 
12

threshold requirements are fulfilled. First, the issue sought to be precluded from 

relitigation must be identical to that decided in a former proceeding.” (Ibid.) That 

requirement is not satisfied here. The trial court’s November 7, 2011 order addressed the 

costs Lambert incurred before June 27, 2008. The order did not address the additional 

$17,569.65 in costs that Lambert incurred after June 27, 2008. Because these issues are 

not identical, the doctrine of collateral estoppel did not bar the trial court from 

considering Lambert’s request to recover later-incurred costs. (Ibid.)

III. Disposition

The judgment is affirmed. Lambert shall recover her costs on appeal.
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___________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Grover, J.

Lambert v. Francis et al.

H041665