Filed 5/27/21 Peng v. F.M. Tarbell Co. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

BO PENG,

Plaintiff and Appellant,

v.

F.M. TARBELL CO., 

Defendant and 

Respondent.

 B307484

 (Los Angeles County

 Super. Ct. No. 19STCP00416)

APPEAL from an amended judgment of the Superior Court 

of Los Angeles County, Michael P. Linfield, Judge. Affirmed.

Bo Peng, in pro. per., for Plaintiff and Appellant.

Benjamin K. Griffin for Defendant and Respondent. 
2

* * * * * *

In an appeal de novo, the trial court issued the same ruling 

as the labor commissioner had in the prior administrative 

proceeding—namely, that a licensed real estate agent was an 

independent contractor rather than an employee. Following this 

ruling, the real estate company sought attorney’s fees and costs 

as a prevailing party. The trial court awarded both, relying on 

the attorney’s fees clause in the independent contractor 

agreement between the agent and the real estate company. In 

this appeal, the agent contests the award of attorney’s fees and 

costs. We affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts1

Bo Peng (plaintiff) is a licensed real estate agent. In April 

2015, he signed an Independent Contractor Agreement (the 

agreement) with F.M. Tarbell Company (Tarbell). In the 

agreement, plaintiff agreed that (1) he was associating with 

Tarbell solely as an independent contractor and not as an 

“employ[ee],” (2) his “only remuneration” would be the 

commissions he earned for facilitating the sale or purchase of real 

estate, and (3) “the prevailing [party]” “[i]n any action, 

proceeding, or arbitration between” himself and Tarbell “arising 

from or related to” the agreement “shall be entitled to reasonable 

attorney’s fees and costs.” 

In November 2017, Tarbell terminated the independent 

contractor arrangement with plaintiff.

1 We draw these facts from our prior opinion in this case. 

(Peng v. F.M. Tarbell Co. (Dec. 24, 2020, B304763) [nonpub. opn.]

(Peng I).)
3

II. Procedural Background

A. Proceedings before the Labor Commissioner

In August 2018, plaintiff filed a complaint with the labor 

commissioner. In his complaint, plaintiff asserted he was an 

“employee” of Tarbell, that the unpaid commissions on two 

properties coming to $20,168.01 constituted “unpaid wages” 

under Labor Code section 201, and that he was also entitled to 

“waiting time penalties” under Labor Code section 203 for the 

late payment of those “unpaid wages.”

Following a hearing in January 2019, a hearing officer for 

the labor commissioner awarded plaintiff no relief after finding 

that he was not an “employee” of Tarbell.

B. “De novo appeal” before the superior court

In February 2019, plaintiff filed a complaint in superior 

court seeking an “appeal de novo” pursuant to Labor Code section 

98.2. 

Following a one-day bench trial on January 16, 2020, the 

trial court directed a verdict for Tarbell under Code of Civil 

Procedure section 631.8. Specifically, the trial court 

independently found that plaintiff was not entitled to unpaid 

wages or waiting time penalties because the undisputed facts 

showed that he was an “independent contractor” and not an 

“employee.” 

On February 3, 2020, the trial court entered judgment for 

Tarbell and also found that Tarbell was “the prevailing party in 

this case.” 

C. Plaintiff’s first appeal

Plaintiff appealed the judgment. On December 24, 2020, 

we affirmed the judgment in an unpublished decision. (Peng I, 

supra, B304763.)
4

D. Award of attorney’s fees and costs

1. Attorney’s fees

On February 18, 2020, Tarbell filed a motion for attorney’s 

fees in the amount of $72,519.03, which included fees Tarbell 

incurred in connection with the proceeding before the labor 

commissioner. Tarbell’s request was grounded in the attorney’s 

fees clause of the agreement. After fulsome briefing and a 

hearing in July 2020, the trial court granted Tarbell’s motion. 

The court found that attorney’s fees were authorized by Civil 

Code section 1717 and the attorney’s fees clause in the 

agreement. The court further found that the hourly rate charged 

by Tarbell’s attorney and the number of hours requested were 

reasonable. Accordingly, the court awarded Tarbell the full 

amount of fees it requested. 

2. Costs

On the same day Tarbell filed its motion for attorney’s fees, 

Tarbell also filed a memorandum seeking $1,120 in costs.

Plaintiff filed a motion to tax all of those costs. Following 

further briefing and a hearing in August 2020, the trial court 

awarded Tarbell the full amount of its costs. In so ruling, the 

court rejected plaintiff’s argument that Tarbell’s memorandum of 

costs was untimely.

E. Entry of amended judgment and appeal

On August 18, 2020, the trial court entered an amended 

judgment awarding Tarbell the above-specified amount of 

attorney’s fees. 

A few weeks later, plaintiff filed this timely appeal.

2

2 Plaintiff asserts that because Tarbell’s attorney on appeal 

is associated with a different firm than the firm that attorney 

associated with in Peng I, Tarbell’s brief on appeal filed by that 
5

DISCUSSION

Although plaintiff does not challenge the amount of 

attorney’s fees and costs Tarbell was awarded, he raises a 

plethora of other arguments. Most numerous among them are 

plaintiff’s arguments that the underlying judgment denying 

plaintiff’s wage claim appeal is invalid.3 However, because we 

affirmed that judgment and that judgment is now final, it is now 

law of the case and we may not revisit it. (Franco v. Arakelian 

Enterprises, Inc. (2015) 234 Cal.App.4th 947, 957 [“[t]he doctrine 

of law of the case gives finality to appellate decisions, precluding 

courts from revisiting issues that [have] been determined in 

earlier appellate proceedings between the same parties”].) 

We are consequently left with only two discrete issues: 

(1) whether Tarbell has a legal basis to recover its attorney’s fees 

incurred in both the labor commissioner proceedings and the 

attorney is a nullity. Plaintiff is wrong, but even if he were not, 

we can—and in this case and for the reasons explained below, 

would—still affirm the trial court’s orders in the absence of a 

respondent’s brief by Tarbell. (Cal. Rules of Court, rule 

8.220(a)(2); In re Bryce C. (1995) 12 Cal.4th 226, 232 [“Because of 

the general presumptions favoring the judgment, many can and 

should be affirmed even absent a brief or other appearance by the 

respondent”].) 

3 Included in plaintiff’s challenge to the underlying judgment 

is his argument that the trial court judge assigned to the motion 

for attorney’s fees and motion to strike costs was not impartial 

because that judge would not overturn the underlying judgment 

that declared Tarbell the prevailing party. Plaintiff ignores that 

one trial judge cannot overturn the order of another trial judge. 

(Paul Blanco’s Good Car Company Auto Group v. Superior Court 

of Alameda County (2020) 56 Cal.App.5th 86, 93.) 
6

superior court proceedings; and (2) whether Tarbell timely sought 

recovery of its costs. We review a trial court’s award of attorney’s 

fees and costs for an abuse of discretion. (Farmers New World 

Life Ins. Co. v. Rees (2013) 219 Cal.App.4th 307, 320-321.) To the 

extent this inquiry requires us to construe statutes or determine 

the legal basis for a fee award, our review is de novo. (Sessions 

Payroll Management, Inc. v. Noble Construction Co. (2000) 84 

Cal.App.4th 671, 677; Blickman Turkus, LP v. MF Downtown 

Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894; Wohlgemuth v. 

Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1258.) 

I. Attorney’s Fees

As a general rule, parties in litigation pay their own 

attorney’s fees (Loffitte v. Robert Half Interat. Inc. (2016) 1 

Cal.5th 480, 488), but a court may nevertheless award attorney’s 

fees if “a statute or contract allow[s] such recovery” (Jones v. 

People (1978) 22 Cal.3d 144, 154). 

Civil Code section 1717 empowers a trial court to award 

“reasonable attorney’s fees” to a party if (1) the court is hearing 

“an[] action on a contract,” (2) that contract “specifically provides 

that attorney’s fee and costs . . . shall be awarded,” and (3) the 

moving party is “determined to be the party prevailing on the 

contract.” (Civ. Code, § 1717, subd. (a).) 

All three requirements for an award under Civil Code 

section 1717 were met here. First, “an action on a contract” 

includes “an action to avoid enforcement of a contract.” (Eden 

Township Healthcare Dist. v. Eden Medical Center (2013) 220 

Cal.App.4th 418, 426; Turner v. Schultz (2009) 175 Cal.App.4th 

974, 976, 979-980.) Here, plaintiff’s complaint with the labor 

commissioner was an action to avoid the enforcement of the 

agreement between himself and Tarbell because the complaint 
7

sought a finding that plaintiff was an “employee” in direct 

contradiction with the agreement in which plaintiff agreed he 

was an “independent contractor” and not an “employ[ee].” 

Avoiding the agreement would have benefitted plaintiff 

financially: As an independent contractor, he could at most 

recover the lost commissions; as an “employee,” he would recover 

the lost commissions and waiting time penalties. Second, the 

agreement has an express attorney’s fees clause. That clause is 

broadly worded and encompasses the fee request in this case 

because plaintiff’s labor commissioner proceeding and the 

subsequent de novo appeal constitute a “proceeding” and “action,” 

respectively, that “aris[e] from or relate[] to” the agreement. 

Indeed, both the labor commissioner’s and trial court’s rulings 

necessarily rest on their finding that the agreement is what 

controls the relationship between plaintiff and Tarbell. Lastly, 

the trial court previously found that Tarbell was the prevailing 

party and that finding is now law of the case.

Plaintiff resists this conclusion with three arguments. 

First, he argues that the agreement is invalid, but that argument 

amounts to a collateral attack on the trial court’s prior ruling 

upholding the agreement; as such, it is barred by the law of the 

case doctrine. Second, plaintiff argues that Tarbell is not entitled 

to fees under Labor Code section 218.5, but whether Tarbell has a 

second (or, for that matter, even a third)4basis for attorney’s fees 

4 The attorney’s fees Tarbell incurred during the appeal de 

novo are assessable against plaintiff under Labor Code section 

98.2, subdivision (c), because plaintiff was “unsuccessful in [his]

appeal” of the labor commissioner’s determination. (Lab. Code, 
8

does not affect the validity of the first basis. Lastly, plaintiff 

argues that he was denied due process because the caption of 

Tarbell’s attorney’s fees motion was incorrectly titled as a motion 

to dismiss plaintiff’s appeal, but this argument lacks merit 

because (1) the content of the notice, memorandum of points and 

authorities, and declaration with exhibits put plaintiff on notice 

of the relief Tarbell was requesting; (2) Tarbell filed and served a 

notice of errata and corrected notice of motion two days later, 

which still provided plaintiff with all the required days’ notice to 

which he was entitled on the motion (see Code Civ. Proc., § 1005, 

subd. (b)); and (3) plaintiff opposed and was heard on the motion 

by a neutral decisionmaker, which is all that due process requires 

(Today’s Fresh Start, Inc. v. Los Angeles County Office of 

Education (2013) 57 Cal.4th 197, 212). (See Arambula v. Union 

Carbide Corp. (2005) 128 Cal.App.4th 333, 342-343 [opposition on 

the merits and appearance at the hearing shows the notice of 

motion “‘served its purpose,’ despite any defect”].)

II. Costs

As a general matter, the “prevailing party” in a civil suit “is 

entitled” to recover costs “as a matter of right.” (Code Civ. Proc., 

§ 1032, subd. (b).) Plaintiff does not object to the legal basis for 

the trial court’s costs award or to its amount; instead, he argues 

that Tarbell served its memorandum of costs in an untimely 

manner.

A “prevailing party” seeking costs must “serve and file” its 

memorandum of costs “within 15 days after . . . the date of service 

of written notice of entry of judgment.” (Cal. Rules of Court, rule 

§ 98.2, subd. (c); Sampson v. Parking Service 2000 Com., Inc.

(2004) 117 Cal.App.4th 212, 220; Smith v. Rae-Venter Law Group

(2002) 29 Cal.4th 345, 368, superseded on other grounds.)
9

3.1700(a)(1).) Because Tarbell served the notice of entry of 

judgment on February 18, 2020, Tarbell had until March 4, 2020,

to file and serve its memorandum of costs. It is undisputed that 

Tarbell filed and served its memorandum of costs on February

18, 2020. Thus, Tarbell’s memorandum of costs was timely filed.

Plaintiff argues that the memorandum of costs was not 

timely served because the proof of service Tarbell filed along with 

the memorandum incorrectly states that the memorandum was 

served on plaintiff on “May 9, 2019.” Tarbell filed an amended 

proof of service correcting the typographical error on June 3, 

2020. Given that plaintiff himself elsewhere admits that he was

mail-served with the memorandum of costs on February 18, 2020, 

we perceive no legal or factual basis for invalidating a cost award 

based on untimely service of the memorandum of costs when all 

the parties concede that service was timely and the proof of 

service merely contains a typographical error. 
10

DISPOSITION

The amended judgment is affirmed. Tarbell is entitled to 

its costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ