Filed 4/20/21 Westside Investments v. Dolberry CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WESTSIDE INVESTMENTS, 

INC.,

Plaintiff and Respondent,

v.

RENEE L. DOLBERRY et al.,

Defendants and Appellants.

 B299033 

 (Los Angeles County

 Super. Ct. No. SC121620)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Lisa Hart Cole, Judge. As to Tim 

Dolberry, the appeal is dismissed. As to Renee Dolberry, the 

judgment is affirmed. 

Karl Siganporia for Defendants and Appellants Renee L. 

Dolberry and Tim Dolberry. 

Bishton Gubernick and Jeffrey S. Gubernick for Plaintiff 

and Appellant. 

_________________
2

Renee L. Dolberry and Tim Dolberry appeal the 

postjudgment order awarding Westside Investments, Inc., doing 

business as Marina Del Rey Toyota (MDR Toyota), $102,036.50 in 

attorney fees against Renee Dolberry pursuant to an attorney fee 

provision in Renee Dolberry’s automobile lease agreement. The 

Dolberrys contend (1) the court erred in failing to apportion and 

limit attorney fees to those incurred in connection with 

Westside’s contract claim against Renee Dolberry; (2) Westside is 

precluded from recovering attorney fees because the named 

partner of its counsel is also a majority shareholder in Westside; 

and (3) the attorney fee order is wholly disproportionate to, and 

patently unreasonable in light of, the $13,479.41 net damages 

awarded. We dismiss Tim Dolberry’s appeal for lack of standing. 

As to Renee Dolberry, we affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Automobile Lease 

On July 20, 2013 Renee Dolberry (Dolberry) signed an 

agreement with MDR Toyota to lease a 2013 Toyota Highlander.1 

Dolberry gave MDR Toyota two post-dated checks as a down 

payment and drove the Highlander off the lot the same day. The 

next day Dolberry and her husband contacted the dealership to 

complain about the transaction. In an email to the dealership’s 

general manager, Kevin Ray, Dolberry insisted she had been 

coerced into leasing a vehicle when she had been clear with MDR 

Toyota she wanted to purchase one; misled into believing the 

1 Our factual and procedural summary of the underlying 

action borrows from our prior opinion affirming the judgment in 

favor of Westside. (See Westside Investments, Inc. v. Dolberry

(June 25, 2018, B276462) [nonpub. opn.].) 
3

dealership would pay the balance of her loan on her trade-in 

vehicle at no cost to her; and sexually harassed by the 

dealership’s finance manager.2 

In response to Dolberry’s email, Ray apologized for 

Dolberry’s experience at MDR Toyota and offered her the choice 

of negotiating a new purchase price for the Highlander or 

rescinding the entire transaction. Ray also offered an additional 

$1,000 to compensate her for any inconvenience. Dolberry 

rejected that offer. She also rejected Ray’s subsequent offer of a 

$4,000 reduction in the capitalized cost of the Highlander or 

rescission of the lease agreement with a $4,000 cash payment, 

telling Ray the offer was inadequate and she required additional 

compensation. Ray responded that Dolberry would need to 

return the Highlander before MDR Toyota would consider any 

further request. Dolberry refused to return the Highlander and 

stopped payment on the two checks she had issued as a down 

payment. Although MDR Toyota initiated repossession efforts, 

Dolberry and her husband, Tim Dolberry, secreted the 

Highlander; and MDR Toyota was unable to locate it.

2. Westside’s Lawsuit 

In November 2013 Westside sued the Dolberrys for breach 

of contract, conversion and fraud.3 The Dolberrys filed a crosscomplaint, which was dismissed after the court sustained 

2 Dolberry alleged the dealership’s finance manager had 

made suggestive and inappropriate comments, including telling 

her she looked younger than her age; asking her whether she 

knew how to say “I love you” in French; and assuring her that she 

would give him a “big hug” at the end of the transaction. 

3

Tim Dolberry was named as a defendant only in the causes 

of action for conversion and fraud.
4

Westside’s demurrer with leave to amend and the Dolberrys 

failed to file an amended cross-complaint. 

In April 2015 Westside filed an application for writ of 

possession to compel the Dolberrys to return the Highlander. 

Following a hearing the trial court granted the writ and issued 

an interlocutory order awarding MDR Toyota possession of the 

Highlander. By that time Dolberry had possessed the 

Highlander for 21 months without making any payments under 

the lease.

Following a bench trial, the court found Dolberry had 

breached the lease and determined Westside was the prevailing 

party on its contract claim under the lease. In its statement of 

decision the court explained it would have also found Dolberry 

liable for both conversion and fraud had it not found her liable 

under the contract, reasoning duplicative damages were not 

permitted. 

Persuaded by Dolberry’s counsel that Westside’s net 

damages could not be determined without ordering the car sold 

(despite evidence at trial of the car’s fair market value), the court 

in its statement of decision awarded Westside the value of the 

lease, $32,749.41, “less the amount received for the sale of the 

vehicle,” and ordered Westside to sell the Highlander and submit 

evidence of the sale. After Westside provided posttrial evidence it 

sold the car on February 5, 2016 for $18,150, the court entered 

judgment for Westside in the amount of $16,259.41.4 

4

The $16,259.41 net damage award represented the amount 

awarded in the statement of decision ($32,749.41) less the 

amount received by MDR Toyota when it sold the car ($18,150), 

plus unpaid sanctions in the amount of $1,660 the court had 

issued against Dolberry in December 2014. 
5

3. Dolberry’s Motion To Vacate and First Appeal

Dolberry moved to vacate the judgment and for a new trial. 

Among other things, Dolberry argued Westside had 

misrepresented its net damages. According to Dolberry, 

Westside’s posttrial evidence that it had sold the Highlander to a 

wholesaler on February 5, 2016 for $18,150 was false; the 

Highlander was actually sold three days later to a different buyer 

for $20,930, $2,780 more than Westside had claimed. In 

response, Westside apologized for the error, offered a declaration 

from its chief financial officer purporting to explain the mistake 

and urged the court to amend the judgment to reduce the damage 

award by $2,780 or to credit Dolberry with that amount in partial 

satisfaction of the judgment. Troubled by the revelations in 

Dolberry’s posttrial motion, the court set the matter for a 

hearing, but scheduled the hearing after the 60-day jurisdictional 

period to hear the motion had elapsed. (Code Civ. Proc., § 663a, 

subd. (b).) Accordingly, the motion to vacate the judgment was 

denied by operation of law.

Dolberry filed a timely notice of appeal from the judgment. 

We affirmed the judgment on appeal and directed the trial court 

upon issuance of our remittitur to enter a partial satisfaction of 

the judgment in the sum of $2,780. (See Westside Investments, 

Inc. v. Dolberry (Jun. 25, 2018, B276462) [nonpub. opn.].) We 

also indicated the court’s concerns about Westside’s posttrial 

conduct could be addressed at a hearing on Westside’s request for 

attorney fees, which the trial court indicated it would entertain 

following resolution of the appeal. 
6

4. Westside’s Motion for Attorney Fees and Costs

Following receipt of the remittitur by the trial court, 

Westside moved pursuant to the lease agreement and Civil Code 

section 1717 (section 1717) to recover $132,036.50 in attorney 

fees and $12,750.37 in costs in accordance with paragraph 29 of 

the lease.5 Westside supported its motion with a declaration from 

its trial counsel Jeffrey S. Gubernick of the law firm Bishton 

Gubernick and accompanying billing statements. 

Dolberry opposed the motion for attorney fees.6 Despite our 

explanation in the prior appellate opinion that the postjudgment 

motion had been denied by operation of law, Dolberry asserted 

Westside’s attorney fee request was premature because there had 

been no ruling on the postjudgment motion to strike the damage 

award based on Westside’s fraud in presenting evidence of the 

sale of the Highlander. If the damages were struck due to 

Westside’s fraud, Dolberry argued, she would be the prevailing 

party, not Westside. Dolberry also argued that Westside could 

not recover its attorney fees because a named partner of the law 

5

Paragraph 29 of the lease provides in part, “If you are in 

default we may do any of the following after giving any legally 

required notices, and after expiration of any legally required cure 

or reinstatement periods: [¶] . . . [¶] v. require you to pay all of 

our expenses for taking these actions, including, but not limited 

to, expenses for repossession, transportation, storage, collection, 

and legal costs, including reasonable attorneys fees paid to an 

attorney who is not our salaried employee, as allowed by 

applicable law.” 

6 Because Tim Dolberry was not a party to the lease 

agreement and was not named as a defendant in Westside’s cause 

of action for breach of contract, the motion for attorney fees was 

properly directed only to Renee Dolberry.
7

firm that represented Westside was also a majority shareholder 

of Westside. Dolberry did not object to Westside’s request for 

costs of suit, raise the issue of apportionment or argue the 

amount of fees requested was unreasonable. 

At the hearing on Westside’s attorney fee motion, the court 

stated, “I think that the attorney’s fees, although high, given the 

original nature of the action, and how easily this case could have 

been resolved on the day it was filed, was caused by—

significantly caused by the defendants’ choice in litigating the 

case in the manner in which it was litigated. I mean, I think this 

is a highly regrettable situation, because at the very core, this 

was a very simple case that the Dolberrys chose to exacerbate 

significantly by filing false claims for sexual harassment, then 

dropping it at the time of trial, by litigating the case in the 

manner in which they did, by secreting the car and not returning 

it until, basically, the trial had started.” The court also explained 

it was cutting the amount of fees requested by $30,000: “The 

reason why I’m cutting the attorney fees is because, although the 

defense, in my opinion, created a significant amount of wasted 

time, both for the court and counsel, there were things that the 

plaintiff could have done” to streamline the case significantly. 

On May 7, 2019 the court signed an amended judgment 

that granted Dolberry partial satisfaction of the judgment in 

accordance with our remittitur in the prior appeal and awarded 

Westside $12,750.37 in costs and $102,036.50 in attorney fees.7 

7 Although labeled an amended judgment, the court’s May 7, 

2019 order following our affirmance of the judgment is properly 

considered a postjudgment order.
8

The Dolberrys filed a timely notice of appeal.8

DISCUSSION

1. Governing Law and Standard of Review

Section 1717, subdivision (a), authorizes the trial court to 

award reasonable attorney fees to the prevailing party in a 

contract action if the contract specifically authorizes an award of 

such fees.9 To ensure mutuality of remedy, section 1717 makes 

an attorney fee provision reciprocal even if it would otherwise be 

unilateral by its terms. (PLCM Group, Inc. v. Drexler (2000) 

22 Cal.4th 1084, 1090 (PLCM Group); Santisas v. Goodin (1998) 

17 Cal.4th 599, 610.) 

A party seeking attorney fees pursuant to a fee shifting 

provision in a contract must demonstrate the fees incurred were 

reasonable. (PLCM Group, supra, 22 Cal.4th at p. 1095; see 

§ 1717.) That reasonableness determination begins with “the 

lodestar,” “the number of hours reasonably expended multiplied 

by the reasonable hourly rate.” (PLCM Group, at pp. 1094-1095.) 

8

 Westide asserts, Tim Dolberry acknowledges, and we agree, 

Tim Dolberry is not aggreived by the the attorney fee order, 

which the court issued against Renee Dolberry alone. 

Accordingly, the appeal of Tim Dolberry challenging the attorney 

fee award is dismissed for lack of standing. (Code Civ. Proc., 

§ 902.)

9

Section 1717, subdivision (a), provides, “In any action on a 

contract, where the contract specifically provides that attorney’s 

fees and costs, which are incurred to enforce that contract, shall 

be awarded either to one of the parties or to the prevailing party, 

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

the contract, whether he or she is the party specified in the 

contract or not, shall be entitled to reasonable attorney’s fees in 

addition to other costs.”
9

“‘After the trial court has performed the calculations [of the 

lodestar], it shall consider whether the total award so calculated 

under all of the circumstances of the case is more than a 

reasonable amount and, if so, shall reduce the section 1717 award 

so that it is a reasonable figure.’” (PLCM Group, at pp. 1095-

1096.) “‘“A reduced award might be fully justified by a general 

observation that an attorney overlitigated a case or submitted a 

padded bill or that the opposing party has stated valid 

objections.”’” (Morris v. Hyundai Motor America (2019) 

41 Cal.App.5th 24, 38.) 

We review the amount of fees awarded for abuse of 

discretion and the legal basis for the fee award de novo. 

(See Mountain Air Enterprises, LLC v. Sundowners Towers, LLC 

(2017) 3 Cal.5th 744, 751 [“‘it is a discretionary trial court 

decision on the propriety or amount of statutory attorney fees to 

be awarded, but a determination of the legal basis for an attorney 

fee award is a question of law to be reviewed de novo’”]; Orozco v. 

WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 406 [same].) 

2. Dolberry Has Forfeited Her Arguments on 

Apportionment and Reasonableness of Attorney Fees

Citing the provision in the lease agreement limiting 

attorney fees to those reasonably necessary to enforce the lease 

following the lessee’s default, Dolberry contends the court erred 

in failing to apportion Westside’s attorney fees between its 

contract claim, for which reasonable attorney fees were 

authorized, and its tort claims, for which they were not. 

(See Monster, LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 

1226 [“[a]s a general matter, ‘[t]ort and other noncontract claims 

are not subject to section 1717 and its reciprocity principles’”]; 

see also Santisas v. Goodin, supra, 17 Cal.4th at p. 615; Bell v. 
10

Vista United School Dist. (2000) 82 Cal.App.4th 672, 686-687 

[“‘[w]hen a cause of action for which attorney fees are provided by 

statute is joined with other causes of action for which attorney 

fees are not permitted, the prevailing party may recover only on 

the statutory cause of action’”].) 

Dolberry did not make this argument in the trial court, 

depriving that court of the opportunity to consider whether the 

issues among all claims were so inextricably intertwined that 

apportionment was impracticable. (See Reynolds Metals Co. v. 

Alperson (1979) 25 Cal.3d 124, 129-130 [“[a]ttorney’s fees need 

not be apportioned when incurred for representation on an issue 

common to both a cause of action in which fees are proper and 

one in which they are not allowed”]; Akins v. Enterprise Rent-ACar Co. (2000) 79 Cal.App.4th 1127, 1133 [same]; Abdallah v. 

United States Savings Bank (1996) 43 Cal.App.4th 1101, 1111 

[trial court reasonably found that appellants’ various claims were 

“‘“inextricably intertwined,”’” which made it “‘impracticable, if not 

impossible, to separate the multitude of conjoined activities into 

compensable or noncompensable time units’”].) Accordingly, that 

argument has been forfeited. (See Auburn Woods 1 Homeowners 

Association v. State Farm General Ins. Co. (2020) 56 Cal.App.5th 

717, 727 [argument on appeal regarding apportionment of expert 

witness fees was forfeited because appellant failed to raise 

argument in trial court]; Wood v. Santa Monica Escrow Co. 

(2007) 151 Cal.App.4th 1186, 1192 [failure to raise 

apportionment argument in trial court resulted in forfeiture of 

argument on appeal].) 

Similarly, by failing to raise the issue in the trial court, 

Dolberry has also forfeited her contention the attorney fee award 

of $102,036.50 is patently unreasonable considering the net 
11

damage award of little more than $13,000. (See Doers v. Golden 

Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [it is 

fundamental that a reviewing court will ordinarily not consider 

claims made for the first time on appeal that could have been, but 

were not, presented to the trial court]; Perez v. Grajales (2008) 

169 Cal.App.4th 580, 591-592 [“‘[a]ppellate courts are loath to 

reverse a judgment on grounds that the opposing party did not 

have an opportunity to argue and the trial court did not have an 

opportunity to consider’”].) To the extent Dolberry suggests 

reversal is required as a matter of law because the attorney fees 

awarded are disproportionate to the amount of damages 

recovered, she is wrong. (See Concepcion v. Amscan Holdings, 

Inc. (2014) 223 Cal.App.4th 1309, 1321 [“the attorney fee award 

need not bear any specific relationship to the dollar amount of 

the recovery”]; Taylor v. Nabors Drilling USA, LP (2014) 

222 Cal.App.4th 1228, 1251 [same].) 

3. Westside Was Not Prohibited From Recovering Attorney

Fees 

Emphasizing that Norris Bishton, a named partner of the 

law firm that represented Westside, Bishton Gubernick, is a 

major shareholder in Westside, Dolberry contends Bishton 

Gubernick and Westside are essentially the same entity. From 

this dubious premise, and relying on Trope v. Katz (1995) 

11 Cal.4th 274, 277 (Trope) and Sands & Associates v. 

Juknavorian (2012) 209 Cal.App.4th 1269 (Sands), Dolberry 

argues Westside is prohibited from recovering its attorney fees as 

the prevailing party in this action. 

In Trope, supra, 11 Cal.4th 274 the Supreme Court held a 

law firm that represents itself is prohibited from recovering 

attorney fees as the prevailing party under a fee shifting 
12

provision in a contract. (Id. at p. 277.) Among other things, the 

Court explained an attorney who chooses to litigate his or her 

own interests in propria persona incurs no fees within the 

meaning of section 1717. (Id. at pp. 280-281; see PLCM Group, 

supra, 22 Cal.4th at p. 1092 [“In Trope [citation] we considered 

whether an attorney who chooses to litigate in propria persona 

rather than retain an attorney to represent him in an action to 

enforce a contract containing an attorney fee provision can 

recover attorney fees under Civil Code section 1717. We 

answered the question in the negative. We explained that, by 

definition, the term ‘attorney fees’ implies the existence of an 

attorney-client relationship, i.e., a party receiving professional 

services from a lawyer”].) 

Citing Trope for the proposition that a law firm represented 

in a lawsuit by one of its partners, members or associates is 

prohibited from recovering attorney fees as the prevailing party 

under a fee shifting provision, the court of appeal in Sands, 

supra, 209 Cal.App.4th 1269 held the designation of the firm’s 

representative as “of counsel” did not exempt the law firm from 

this established rule: “[B]ecause the relationship between a law 

firm and ‘of counsel’ is close, personal, regular, and continuous, 

we conclude that a law firm and ‘of counsel’ constitute a single, 

de facto firm, and thus a law firm cannot recover attorney fees 

under a prevailing party clause when, as a successful litigant, it 

is represented by ‘of counsel.’” (Id. at p. 1273; but see 

Dzwonkowski v. Spinella (2011) 200 Cal.App.4th 930, 938-940 

[“of counsel” designation of law firm’s counsel, without more, did 

not preclude firm’s recovery of attorney fees pursuant to a fee 

shifting provision in a contract; whether fees were incurred 

pursuant to section 1717 depends on whether there exists “an 
13

obligation to pay attorney fees, the existence of an attorney-client 

relationship and distinct interests between the attorney and 

client”].) 

Relying on language in Sands, Dolberry argues Westside 

and Bishton Gubernick, by virtue of Norris Bishton’s status as 

both a major shareholder in Westside and a named partner of 

Bishton Gubernick, share such a “close, personal, regular and 

continuous relationship” that Westside is prohibited from 

recovering its attorney fees. The argument is without merit. At

the threshold, the court in Sands made clear it was not creating a 

general test dependent on factual findings whether a relationship 

between a litigant and its counsel was sufficiently close, personal, 

regular and continuous to prohibit recovery of fees. (See Sands, 

supra, 209 Cal.App.4th at p. 1295 [describing the court’s intent to 

create “a bright-line rule” for “‘of counsel’” attorneys]; see also 

Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC 

(2014) 230 Cal.App.4th 244, 255 [“[d]espite the variation in 

practical arrangements for ‘of counsel’ attorneys, the Sands court 

created ‘a bright-line rule’ that attorneys of counsel to a law firm 

are sufficiently integral to a law firm as to disallow fees for 

defense of the firm”].) 

More fundamentally, in contrast to counsel in Trope and 

Sands, Bishton Gubernick was not the litigant in this breach of 

contract action; Westside was. (Nor for that matter was Bishton 

Gubernick a shareholder of Westside; Norris Bishton occupied 

that role.) That Westside’s success in the litigation may 

indirectly benefit its shareholders, including the named partner 

of its counsel, does not negate the undisputed attorney-client 

relationship between Westside and Bishton Gubernick or suggest 
14

its attorney fees were not incurred for purposes of section 1717. 

(See generally PLCM Group, supra, 22 Cal.4th at p. 1093.) 

Finally, quoting the California Supreme Court’s July 11, 

2020 statement on equality and inclusion, and citing several 

news reports and law review articles describing bait-and-switch 

tactics by car dealerships targeting communities of color, 

Dolberry insists an attorney fee order of more than $100,000 

against a Black woman in a “run of the mill” contract case is yet 

another example of a justice system that, intentionally or by 

default, has failed Black people. There can be no doubt that the 

existence of structural racism and its pernicious effects 

throughout our system of justice, as in other aspects of society, 

must be urgently addressed. Nonetheless, as it may relate to the 

issue before us, we simply note Dolberry forfeited any challenge 

to the reasonableness of the fees awarded and her plea ignores 

her own conduct that led to unnecessary litigation costs, actions 

the trial court specifically cited as both regrettable and integral 

to its attorney fee ruling.

DISPOSITION

Tim Dolberry’s appeal is dismissed. The postjudgment 

order as to Renee Dolberry is affirmed. Westside is to recover its 

costs on appeal. 

PERLUSS, P. J.

We concur: 

SEGAL, J. FEUER, J