1

Filed 8/1/14 Cal-Murphy LLC v. Hines Interests Limited Partnership CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

CAL-MURPHY LLC et al.,

Plaintiffs and Appellants,

v.

HINES INTERESTS LIMITED 

PARTNERSHIP et al.,

Defendants and Respondents.

 A137609

 A139772

 (San Francisco City and County

 Super. Ct. No. CGC08473750)

In these consolidated appeals, the nonprevailing plaintiffs challenge three orders 

awarding the prevailing defendants attorney fees and costs. We affirm two of the orders; 

we modify the third slightly and affirm it as modified.

FACTUAL BACKGROUND

In 2004, a written contract (the Lease) was executed between National Office 

Partners Limited Partnership, assignor to respondent NOP 560 Mission LLC (NOP), and 

Murphy’s Deli Franchising, Inc. (Murphy’s Deli), leasing premises to Murphy’s Deli for 

the operation of a restaurant. Section 7.13 of the Lease addressed attorney fees in the 

event of a lawsuit: “If either party places the enforcement of this Lease, or any part 

thereof . . . in the hands of an attorney or collection agency, or files suit upon the same, or 

seeks a judicial declaration of rights hereunder, the prevailing party shall recover its 

reasonable attorneys’ fees, court costs and collection agency charges.” 
2

Section 5.07 of the Lease addressed assignment or sublease of the Lease. It 

provided: “Any assignee shall assume in writing, for the express benefit of [NOP], all of 

the obligations of [Murphy’s Deli] under this Lease, provided that no such assumption 

shall be deemed a novation or other release of the prior Tenant.” The Lease further 

provided: “Any assignment or subletting that conflicts with the provisions hereof shall 

be void. No consent by Landlord to any subletting or assignment shall constitute a 

consent to any other assignment or subletting nor shall it constitute a waiver of any of the 

provisions of this Section 5.07 as they apply to any such future sublettings or 

assignments.”

Murphy’s Deli subsequently subleased the leased premises to plaintiffs and 

appellants Najeeb Shihadeh, Mary Christina Shihadeh, and George Omran (the Individual 

Plaintiffs). Under the terms of the written sublease (the Sublease), the Individual 

Plaintiffs agreed “to comply with each and every covenant, condition and agreement 

contained in [the Lease] . . . to be observed and complied with by [Murphy’s Deli].” The 

Sublease further provided: “No further sublease or assignment of this Sublease shall be 

effective without written consent of [Murphy’s Deli].” 

According to the operative fifth amended complaint, the Individual Plaintiffs

assigned the Sublease to plaintiff and appellant Cal-Murphy, LLC (Cal-Murphy).

1 CalMurphy did not assume in writing the obligations of the Lease and Murphy’s Deli did not 

consent in writing to the assignment. However, Cal-Murphy operated a restaurant on the 

leased premises, paid rent, and was recognized by NOP as the sublessee of the Lease. 

PROCEDURAL BACKGROUND

In 2008, Cal-Murphy and the Individual Plaintiffs sued NOP and others on a 

number of contract and tort causes of action.2 All causes of action were brought on 

 

1 Najeeb Shihadeh and George Omran are among the members of Cal-Murphy. 

2 Details regarding the underlying dispute are not relevant to this appeal, but are set 

forth in Cal-Murphy, LLC v. MG Restaurants, Inc. (Apr. 30, 2014, A136198 & A136854) 

(nonpub. opn.).
3

behalf of all plaintiffs. The prayer for relief sought for all plaintiffs, “as their interests 

may appear,” various remedies including damages. The complaint was amended multiple

times. Each iteration of the complaint alleged all causes of action on behalf of all 

plaintiffs, and prayed for relief for all plaintiffs “as their interests may appear.” On June 

24, 2011, over the Individual Plaintiffs’ objection, the trial court granted NOP’s demurrer 

to the Individual Plaintiffs’ claims for lack of standing.3The following year, 

Cal-Murphy’s claims were defeated and judgment in favor of NOP and another defendant 

and respondent, Hines Interests Limited Partnership (Hines), was entered. 

A. COSTS

NOP and Hines filed two memoranda of costs pursuant to Code of Civil Procedure 

section 1032, one seeking costs from Cal-Murphy and the other seeking costs incurred 

through June 24, 2011, from the Individual Plaintiffs. The Individual Plaintiffs moved to 

strike or tax these costs on the grounds that they were merely “spectators” to the 

litigation, only minimal litigation activity involved them specifically, and the defendants 

failed to mitigate their damages by delaying their demurrer to the Individual Plaintiffs’ 

claims. Among other arguments, the Individual Plaintiffs contended they were named 

only as part of the “chain of title” of the Lease. 

The trial court rejected the Individual Plaintiffs’ arguments and awarded NOP and 

Hines the full amount of costs sought. At the hearing, the trial court explained: “This 

chain of title argument . . . makes no sense, unless counsel for the [I]ndividual [P]laintiffs 

believed that for some reason the individuals belonged in the case to preserve the rights 

of others in the so-called chain of title, which would then render them appropriate parties 

for all of it, which would then obviate the argument that they were just bystanders. [¶] . . .

[¶] In addition, if the rule were that a prevailing party has to justify its keeping parties in 

the case when it might have been able to knock them out, I don’t see how a court could 

enforce that. It would involve an explanation by the prevailing party as to why it did or 

 

3

The Individual Plaintiffs unsuccessfully appealed that ruling, among others. 

(Cal-Murphy, LLC v. MG Restaurants, Inc., supra, A136198 & A136854.)
4

did not implement a strategy that it didn’t start, that is, the inclusion of individual parties.

[¶] And I don’t see how I could delve into the thought processes of counsel in order to 

figure out when and whether demurrers should have been filed or other actions taken.”

B. ATTORNEY FEES

NOP also moved for contract-based attorney fees pursuant to Civil Code 

section 1717 (section 1717) against Cal-Murphy and the Individual Plaintiffs, seeking 

from the Individual Plaintiffs only fees incurred through June 24, 2011. The Individual 

Plaintiffs opposed the motion on the same grounds as their challenge to NOP’s costs, as 

well as on the additional ground that they could not be liable for contract-based fees. 

After the first hearing, the trial court requested supplemental briefing on the issue of the 

Individual Plaintiffs’ liability for attorney fees, and a second hearing was held. 

The trial court awarded NOP fees against Cal-Murphy for nearly $2.5 million, a 

ruling not contested in this appeal. The trial court also issued a detailed decision finding 

the Individual Plaintiffs jointly and severally liable with Cal-Murphy for approximately 

$1.4 million of those fees—the amount incurred prior to June 24, 2011.

4 After setting 

forth the factual and legal background, the trial court’s written order explained: “While 

the Individual Plaintiffs assert that NOP understood that they had no individual rights 

under the Lease, the operative documents arguably render them the franchisee-subtenant 

under the Lease. The Sublease so states, and there are arguments that the assignment of 

the Sublease by the Individual Plaintiffs to Cal-Murphy was neither approved as required 

by the Sublease, nor consummated by a writing. This would render the question of who 

is the franchisee under the Lease at least colorable.”

With respect to the Individual Plaintiffs’ involvement in the litigation, the trial 

court’s written order stated: “[T]he Individual Plaintiffs asserted contract claims under 

the Lease throughout this litigation. Despite some claims of a lack of interest in the relief 

 

4

The Individual Plaintiffs note the trial court previously issued two tentative 

decisions on this issue in their favor. However, “[t]he trial court’s tentative opinion has 

no relevance on appeal.” (Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 

Cal.App.4th 627, 638, fn. 9.) 
5

sought, they did not take themselves out of the case, which required this court to sustain a 

demurrer as to their standing. It seems clear that rather than being ‘spectators’ to this 

litigation, at a minimum the Individual Plaintiffs have been on the bench ready to play as 

needed. In order to be ready to do so, they retained colorable claims of contract rights 

under the Lease upon which had they prevailed, would have given them a right to 

attorney’s fees under the Lease. [¶] The Individual Plaintiffs’ position in this case goes 

far beyond a bare allegation of a right to attorney’s fees. It appears that by design, they 

remained ready to assert individual claims based on documents, other claimed facts and 

arguments that, if accepted, would have entitled them to contract remedies, including 

attorney’s fees, against NOP. Under Section 1717, as analyzed above, the Individual 

Plaintiffs are each responsible for NOP’s attorney’s fees under the Lease.”

C. FEES ON FEES

Following the trial court’s fee award, NOP filed a supplemental motion seeking an 

award of attorney fees for time spent on fee-related litigation, or “fees on fees.” NOP 

also sought fees for work opposing a motion to reopen discovery filed by Cal-Murphy

during the fees litigation. The trial court awarded NOP the full amount of fees requested 

against all plaintiffs jointly and severally. 

DISCUSSION

I. THE INDIVIDUAL PLAINTIFFS’ LIABILITY FOR ATTORNEY FEES

Section 1717 provides a reciprocal right to attorney fees for contracts containing 

attorney fee provisions.5 “[T]he ‘determination of the legal basis for an award of attorney 

fees’ is a ‘question of law’ which the reviewing court will examine de novo.” (Blickman 

 

5

Section 1717, subdivision (a), provides in relevant part: “In any action on a 

contract, where the contract specifically provides that attorney’s fees and costs, which are 

incurred to enforce that contract, shall be awarded either to one of the parties or to the 

prevailing party, then the party who is determined to be the party prevailing on the 

contract, whether he or she is the party specified in the contract or not, shall be entitled to 

reasonable attorney’s fees in addition to other costs.”
6

Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894

(Blickman Turkus).)

“As a general rule, attorney fees are awarded [pursuant to section 1717] only when 

the action involves a claim covered by a contractual attorney fee provision and the 

lawsuit is between signatories to the contract. [Citation.] [¶] Under some circumstances, 

however, the reciprocity principles of Civil Code section 1717 will be applied in actions 

involving signatory and nonsignatory parties.” (Real Property Services Corp. v. City of 

Pasadena (1994) 25 Cal.App.4th 375, 379–380, fn. omitted.) As relevant here, “[w]here 

a nonsignatory plaintiff sues a signatory defendant in an action on a contract and the 

signatory defendant prevails, the signatory defendant is entitled to attorney fees only if 

the nonsignatory plaintiff would have been entitled to its fees if the plaintiff had 

prevailed.” (Id. at p. 382.) A nonsignatory plaintiff’s “bare allegation” of entitlement to 

fees is not sufficient; instead, “the party claiming a right to receive fees [must] establish 

that the opposing party actually would have been entitled to receive them if he or she had 

been the prevailing party.” (Leach v. Home Savings & Loan Assn. (1986) 185

Cal.App.3d 1295, 1307.)6

The critical question with respect to the Individual Plaintiffs’ liability for attorney 

fees, therefore, is whether they would have been entitled to fees had they prevailed. The 

parties dispute whether this analysis looks solely to the pleadings or considers the 

pleadings in the context of litigation positions taken by the nonprevailing party. We need 

not decide this issue because, even considering the complaint in light of the Individual 

Plaintiffs’ litigation posture, they would still have been entitled to attorney fees had they 

prevailed.

 

6

Some courts have stated a nonsignatory plaintiff who merely asserts an entitlement 

to contract-based attorney fees can be estopped from challenging liability for attorney 

fees; other courts have criticized this approach. (See Blickman Turkus, supra, 162 

Cal.App.4th at pp. 897–899 [discussing cases relying on and criticizing estoppel 

approach].) Neither party relies on this formulation of the legal standard and we do not 

consider it. 
7

As an initial matter, the Individual Plaintiffs do not dispute that, as a matter of 

contract law, they would have been entitled to attorney fees had they prevailed in a

lawsuit asserting rights under the Lease. We agree with the trial court’s analysis of this 

issue. In the Sublease, the Individual Plaintiffs expressly assumed the terms of the Lease; 

this language was quoted in the complaint. The assignment of the Sublease to 

Cal-Murphy did not comply with all terms of the Lease and Sublease regarding 

assignments and thus arguably could have been held void, rendering the Individual 

Plaintiffs entitled to assert rights under the Lease.

7

 

This analysis is not impacted by our previous determination that, in this lawsuit,

the assignment to Cal-Murphy extinguished the Individual Plaintiffs’ right to enforce the 

Lease. (Cal-Murphy, LLC v. MG Restaurants, Inc., supra, A136198 & A136854

[affirming order sustaining NOP’s demurrer as to Individual Plaintiffs’ claims].) Our 

decision issued after the orders challenged in these appeals, and therefore was not the law 

of the case at the time the orders were made. (See Yu v. Signet Bank/Virginia (2002) 

103 Cal.App.4th 298, 309.) Moreover, attorney fees are available in cases involving a 

nonsignatory party even if the court concludes on the merits the nonsignatory party had 

no right to enforce the contract, as long as such fees would have been available had the 

party asserting otherwise prevailed. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 

124, 129 [holding fees properly awarded to nonsignatory prevailing defendants found to 

have no obligations under the contract because “[h]ad [the] plaintiff prevailed on its 

 

7

The Individual Plaintiffs argue NOP waived its right to rely on the Sublease by 

failing to submit and rely on it until its initial supplemental brief in response to the trial 

court’s request for additional briefing. We are doubtful that NOP waived the relevant 

argument during the trial court proceedings. Moreover, the Individual Plaintiffs had 

ample opportunity to respond to NOP’s initial supplemental brief in their responding 

supplemental brief and at the second hearing on that motion. To the extent there was any 

waiver, we have the discretion to affirm the trial court’s ruling based on an argument 

waived below where the argument, like this one, “ ‘involves only a legal question 

determinable from facts which not only are uncontroverted in the record, but which could 

not be altered by the presentation of additional evidence.’ ” (In re Marriage of Priem

(2013) 214 Cal.App.4th 505, 511.) The Individual Plaintiffs do not contend there is any 

additional evidence relevant to this issue. 
8

cause of action claiming [the] defendants were in fact the alter egos of the [signatory] 

corporation [citation], [the] defendants would have been liable on the [contract]”].) The 

Individual Plaintiffs alleged contract-based causes of action, thereby asserting their right 

to enforce the contract. Had the Individual Plaintiffs prevailed in their claimed 

entitlement to enforce the contract—a possible outcome, as noted above—they would 

have been entitled to attorney fees.

We are not persuaded by the Individual Plaintiffs’ argument that they disclaimed 

any right to damages or other relief and therefore could not have prevailed in this 

litigation and been entitled to attorney fees.8 In support of this argument, the Individual 

Plaintiffs first point to the complaint’s prayer for relief. The Individual Plaintiffs contend 

the prayer for relief on behalf of all plaintiffs “as their interests may appear” means the 

Individual Plaintiffs “did not specifically pray for any damages or relief.” While this 

language appears to acknowledge the Individual Plaintiffs may not be entitled to any 

relief in the litigation, it equally indicates that they may be entitled and, if so, will seek 

such relief. In any event, we fail to see the significance of this phrasing. “If the 

defendant answers [the complaint], the court may grant ‘any relief consistent with the 

case made by the complaint and embraced within the issue,’ and the rule is well settled 

that in a contested case the plaintiff may secure relief different from or greater than that 

demanded.” (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 497, p. 633.)9

The Individual Plaintiffs next point to positions they took during the litigation. 

They first cite the following statements made in objections included in Najeeb Shihadeh’s 

written responses to interrogatories, in October 2008 and January 2009, respectively: 

 

8

In the introduction to their opening brief, the Individual Plaintiffs cursorily assert 

as an additional ground there was no evidence they had incurred an obligation to pay 

their attorney. As they do not elaborate on this contention or pursue it in the argument 

section of their brief, we decline to consider it. (Cahill v. San Diego Gas & Electric Co.

(2011) 194 Cal.App.4th 939, 956.)

9 As the Individual Plaintiffs concede, the lack of an express prayer for attorney fees 

would not have precluded them from claiming contract-based fees. (Ganey v. Doran

(1987) 191 Cal.App.3d 901, 911.)
9

“Plaintiff is not seeking the damages in his individual capacity,” and “the [I]ndividual 

Plaintiffs do not seek any monetary or other relief in this action personally, but rather 

were joined because they are in the so-called ‘chain of title,’ in that [the Lease] was 

assigned or subleased to [the Individual Plaintiffs] who, in turn, transferred and assigned 

their interests to [Cal-Murphy], in which Messrs. Shihadeh and Omran were, and are, 

Members. Ms. Shihadeh is Najeeb Shihadeh’s wife.” The Individual Plaintiffs cite no 

authority that written objections in interrogatory responses can be used to preclude the 

responding party from taking a different position later in the litigation (much less that an 

objection in the responses of one plaintiff can bind his co-plaintiffs). Moreover, despite 

these objections, subsequently filed amended complaints continued to assert causes of 

action on behalf of the Individual Plaintiffs and to pray for relief on their behalf. We 

cannot conclude that the written objections precluded the Individual Plaintiffs from being 

the prevailing party.

The Individual Plaintiffs also point to statements in an attorney declaration and 

brief filed in opposition to NOP’s demurrer targeting the Individual Plaintiffs.

10

 Counsel 

for the Individual Plaintiffs declared: “I have always stated that the [I]ndividual 

Plaintiffs are not seeking any relief in this case, but have been named because they are 

part of the ‘chain of title’ and should be named in the action in the event their active 

involvement as parties may be required.” However, the declaration proceeds to 

equivocate—“the [I]ndividual Plaintiffs may well not be entitled to any relief”—thereby 

leaving open the possibility that the [I]ndividual [P]laintiffs may be entitled to relief. 

Indeed, the declaration asserts the Individual Plaintiffs “are in privity of contract with 

NOP and may be necessary or proper parties” in a cause of action for rescission alleged 

in the complaint. Similarly, the brief states, in pointedly indefinite terms: “In all 

likelihood, relief would be in favor of Cal-Murphy.” The Individual Plaintiffs cite no 

 

10 These documents were filed on June 13, 2011, only 11 days before the Individual 

Plaintiffs’ liability for attorney fees ended under the trial court’s ruling challenged here. 
10

authority for the proposition that an equivocal position taken in an attorney declaration 

and brief would preclude them from subsequently seeking relief in the litigation.11

In sum, (1) under the Lease and Sublease, the Individual Plaintiffs would have 

been entitled to attorney fees had they prevailed; and (2) the Individual Plaintiffs never 

conclusively disavowed their rights to enforce the Lease or seek relief under the 

complaint, such as to preclude their ability to prevail and seek attorney fees if they did 

prevail. Accordingly, we conclude the Individual Plaintiffs were liable for attorney fees 

for work performed prior to June 24, 2011.

II. THE AMOUNT OF FEES AND COSTS

The Individual Plaintiffs next argue the amount of fees and costs awarded by the 

trial court as against them was excessive. We review the amount of fees awarded by the 

trial court for abuse of discretion (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095

(PLCM Group)), and find no such abuse here.

A. Apportionment

The Individual Plaintiffs contend the trial court should have apportioned fees and 

costs between them and Cal-Murphy according to the different potential recoveries and 

relative significance of the two sets of plaintiffs. 

The trial court has the discretion to allocate costs and fees among multiple 

nonprevailing parties. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 

44, 97–98.) Where, as here, multiple plaintiffs are “represented by the same attorney” 

and litigate “a single theory of liability against a defendant who prevailed,” the failure to 

 

11 It is of no moment that we relied on this declaration in our previous decision 

rejecting the Individual Plaintiffs’ appeal from the order sustaining the demurrer. 

(Cal-Murphy, LLC v. MG Restaurants, Inc., supra, A136198 & A136854.) The 

statements identify no current interest in the lawsuit, supporting our previous conclusion 

that the Individual Plaintiffs failed to show standing. This does not render the statements 

sufficient to preclude the Individual Plaintiffs from making a later showing of entitlement 

to relief. 
11

apportion costs and fees among the nonprevailing plaintiffs is not an abuse of discretion. 

(Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1376.) 

The Individual Plaintiffs again assert their purportedly de minimus role in the 

litigation. However, the trial court found otherwise. We decline to reverse this 

understanding of the trial court, which is in a much better position than we are to 

ascertain the relative roles of the plaintiffs. 

Cases cited by the Individual Plaintiffs affirming trial court decisions allocating 

fees and costs do not limit the trial court’s discretion to decline such allocations. (See 

Walker v. Ticor Title Co. of California, (2012) 204 Cal.App.4th 363, 375; Wal-Mart Real 

Estate Business Trust v. City Council of San Marcos (2005) 132 Cal.App.4th 614, 625;

Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 593; Golf West of Kentucky, 

Inc. v. Life Investors, Inc. (1986) 178 Cal.App.3d 313, 318–319.) In the remaining case 

cited by the Individual Plaintiffs on this issue, No Oil, Inc. v. Occidental Petroleum Corp.

(1975) 50 Cal.App.3d 8, 28, the court of appeal reversed judgment entered for the 

defendants and directed entry of judgment in favor of the plaintiffs. The court discussed 

the award of attorney fees against the defendants on remand, and concluded 

apportionment of fees between the defendant and the intervening defendant would be 

appropriate “in light of the disparity between the contribution of defendant Occidental to 

the necessity for and the burden of the litigation in relation to that of [intervening] 

defendant Landowners Association. The latter was not responsible for the threatened 

drilling which occasioned this lawsuit and its participation in the litigation contributed 

little to the cost of representation of plaintiffs. No substantial new contentions were 

injected by such defendant and its participation in the trial was for the most part that of an 

observer. The court should therefore make a fair allocation of the responsibility as 

between these defendants for payment of the fees awarded plaintiffs.” (Id. at pp. 28–29, 

fns. omitted.) The two defendants were represented by different counsel. (Id. at pp. 10–

11.) In contrast, all plaintiffs here alleged the same causes of action and were represented 

by the same counsel, and the Individual Plaintiffs’ role was not insignificant. The 
12

decision not to apportion fees and costs incurred prior to June 24, 2011 was not an abuse 

of discretion. 

B. Mitigation

The Individual Plaintiffs contend the trial court should have reduced the fee and 

cost award against them due to NOP’s failure to mitigate damages. The Individual 

Plaintiffs cite no case applying this doctrine in the context of determining the amount of 

fees and costs to which a prevailing party is entitled. We assume without deciding that 

the doctrine does apply, and reject the Individual Plaintiffs’ contention.

The Individual Plaintiffs claim the trial court never considered this argument. The 

trial court’s written order regarding attorney fees stated, “The arguments asserted by the 

Individual Plaintiffs for [a] lesser amount of fees are all meritless and are thus rejected.”

The trial court’s order regarding costs was silent on this argument, although the trial court 

discussed it during the costs hearing. On appeal, “ ‘ “[a]ll intendments and presumptions 

are indulged to support [the judgment] on matters as to which the record is silent, and 

error must be affirmatively shown.” ’ ” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140

(Ketchum).) We thus presume the trial court considered the Individual Plaintiffs’ 

mitigation argument and rejected it on the merits. 

This rejection was not an abuse of discretion. The Individual Plaintiffs contend 

NOP should not have expended any attorney fees with respect to them after the purported 

disavowals in the 2008 and 2009 interrogatory responses. However, as noted above, 

these purported disavowals were ambiguous. The Individual Plaintiffs further argue NOP 

should have demurred to the Individual Plaintiffs’ causes of action in early 2009, instead 

of waiting until 2011. They cite no authority that an award of fees and costs should be 

reduced if a prevailing defendant fails to demur to a nonprevailing plaintiff’s claims at 

the earliest possible opportunity. We decline to adopt any such rule, which would be 

difficult to apply and would inappropriately place the burden on the defendant to remove 

an improper plaintiff. 
13

III. FEES ON FEES

A. NOP’s Work Opposing Cal-Murphy’s Motion to Reopen Discovery

The Individual Plaintiffs contend they should not be liable for fees incurred 

opposing a motion to reopen discovery filed by Cal-Murphy during the fee litigation. 

NOP’s only response is to incorporate its prior arguments regarding apportionment.

The motion and related briefs are not in the record on appeal. However, neither 

party contends the motion pertained to the fee litigation. The reporter’s transcript of the 

hearing on the motion, which is part of the record on appeal, confirms this. The work 

was thus conducted as part of the underlying litigation after the Individual Plaintiffs were 

dismissed from the case. Accordingly, pursuant to the trial court’s prior ruling that the 

Individual Plaintiffs are liable only for fees incurred prior to June 24, 2011, these fees 

should have been allocated to Cal-Murphy alone. As the amount of fees attributable to 

this work is not in dispute, we will modify the judgment accordingly.

12

B. NOP’s Initial Fees Motion

Plaintiffs next contend the trial court abused its discretion by failing to reduce the 

requested fee award for NOP’s “unproductive” work prior to the supplemental briefing. 

We disagree.

Plaintiffs complain the trial court did not explain its reason for refusing to reduce 

NOP’s fees. “The superior court was not required to issue a statement of decision with 

regard to the fee award. [Citation.] Moreover, although [plaintiffs] opposed the motion 

for attorney fees, [they] did not request a statement of decision with specific findings. 

‘ “All intendments and presumptions are indulged to support [the judgment] on matters as 

 

12 In their opening brief, plaintiffs did not challenge the trial court’s award of fees 

against all plaintiffs jointly and severally for NOP’s work litigating the Individual 

Plaintiffs’ fee liability. In their reply brief, plaintiffs cursorily state fees for this work 

should not be awarded against Cal-Murphy. We decline to consider this argument, which 

was “neither timely nor fully made.” (Julian v. Hartford Underwriters Ins. Co. (2005) 35 

Cal.4th 747, 761, fn. 4.)
14

to which the record is silent, and error must be affirmatively shown.” ’ ” (Ketchum, 

supra, 24 Cal.4th at p. 1140.)

Plaintiffs have failed to make such a showing. As an initial matter, NOP’s work 

prior to the supplemental briefing included arguing entitlement to contract-based fees for 

work pertaining to all causes of action and the appropriate lodestar amount—work that 

was indisputably productive. Even if NOP’s original theory regarding the Individual 

Plaintiffs’ fee liability changed somewhat after the initial hearing (a point the parties 

vigorously dispute, and which we need not decide), the trial court may have found this 

work nonetheless helpful, a finding to which we must defer. (PLCM Group, supra, 22 

Cal.4th at p. 1095 [“The ‘experienced trial judge is the best judge of the value of 

professional services rendered in [his or her] court, and while [his or her] judgment is of 

course subject to review, it will not be disturbed unless the appellate court is convinced 

that it is clearly wrong’—meaning that it abused its discretion.”].) In any event, 

“ ‘[l]itigation may involve a series of attacks on an opponent’s case. The final ground of 

resolution may become clear only after a series of unsuccessful attacks. [Attorney fee] 

[c]ompensation is ordinarily warranted even for those unsuccessful attacks, to the extent 

that those attacks led to a successful claim.’ ” (Acree v. General Motors Acceptance 

Corp. (2001) 92 Cal.App.4th 385, 405, fn. omitted [affirming fee award pursuant to 

section 1717].)

DISPOSITION

The orders appealed from in A137609 are affirmed. 

The order appealed from in A139772 is modified by replacing the last sentence 

with the following: “All Plaintiffs are jointly and severally liable for $186,922.25 of this 

amount; Cal-Murphy is solely responsible for the remaining $3,089.75.” The corrected 

and second amended judgment on claims of individual plaintiffs Shihadeh and Omran,

also appealed from in A139772, is modified by replacing paragraph 3 with the following: 

“A Corrected and Second Amended Judgment be entered in favor of NOP and against the 
15

Individual Plaintiffs in the additional amount of $1,623,922.25.” As so modified, the 

order and judgment appealed from in A139772 are affirmed. 

Respondents are awarded their costs on appeal.
16

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BRUINIERS, J.

(A137609, A139772)