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Filed 12/30/21 Thompson v. Flynn Riley Bailey & Pasek CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FOUR

PAUL AND KATHLEEN 

THOMPSON,

Plaintiffs and Appellants,

v.

FLYNN RILEY BAILEY & 

PASEK, LLP, et al.,

Defendants and 

Respondents.

 A161238

 (Marin County

 Super. Ct. No. CIV170608)

Paul and Kathleen Thompson (the Thompsons) brought 

this legal malpractice action after defendants failed to timely 

appeal from a judgment against the Thompsons in an action 

related to the foreclosure of property (the underlying case). The 

underlying case consisted of two consolidated lawsuits. As is 

relevant here, after a bench trial in the underlying case, the court 

found against the Thompsons on (1) their cross-complaint for 

breach of a deed of trust against trustee T.D. Service Company 

(TDS), and (2) their claim against TDS for breach of a services 

agreement, which they asserted as assignees of the lender, 

Luther Burbank Services (LBS). With the judgment wholly in 

favor of TDS, the trial court in the underlying case granted TDS 
2

approximately $400,000 in prevailing party attorney fees under 

Civil Code1 section 1717. 

Defendants filed an untimely notice of appeal as to the 

underlying judgment against the Thompsons, but a timely notice 

of appeal as to the fee award, which resulted in an affirmance. 

The Thompsons then settled with TDS and brought a malpractice 

case against defendants based on defendants’ failure to timely file 

the appeal from the underlying judgment. 

The trial court in this malpractice action found that, if 

defendants had timely filed an appeal in the underlying case, 

TDS would have prevailed on the cross-complaint, but the 

Thompsons ultimately would have prevailed on the assigned 

claim for breach of the services agreement. The court issued a 

judgment for the Thompsons, including damages consisting of: 

(1) the amount they would have recovered on the breach of 

services agreement claim, as well as prevailing party attorney 

fees they would have incurred to prosecute that claim on remand; 

and (2) attorney fees the Thompsons paid to TDS for the untimely 

appeal that they would not have had to pay had the appeal been 

timely filed. 

The sole question in this appeal is whether the trial court 

in the malpractice action erred in failing to award the Thompsons 

additional damages to compensate them for the full amount of 

attorney fees they paid to TDS in the underlying case. The 

parties agree that the answer to this question, in turn, depends 

1 All further references are to the Civil Code unless 

otherwise specified. 
3

wholly on the answer to the question of whether TDS could have 

been awarded prevailing party attorney fees under section 1717 

on the Thompsons’ cross-complaint. Because the court correctly 

concluded that TDS could have been awarded prevailing party 

attorney fees on the cross-complaint under section 1717, we 

affirm the judgment. 

BACKGROUND

I. The Underlying Real Estate Transaction and 

Proceedings 

Luther Burbank Savings (LBS) loaned 620 Third Street, 

LLC (the LLC) $3,945,100 to purchase real property (the 

property) in Sonoma County. The loan was evidenced by a 

promissory note dated January 3, 2007, as modified in March 

2008 (collectively, the Note), and secured by a deed of trust to the 

property (the Deed of Trust). Paul Thompson was the manager of 

PK Property LLC, which was the sole member of the LLC. The 

Thompsons executed a repayment guarantee for the loan (the 

Guaranty). 

A. LBS’s Complaint, the Foreclosure Proceedings, and the 

Thompsons’ Cross-Complaint

In early 2009, the LLC defaulted on the loan, and the 

Thompsons did not repay it. LBS sued the LLC and the 

Thompsons seeking judicial foreclosure and damages for breach 

of the Guaranty.

Thereafter, LBS substituted TDS as the trustee under the 

Deed of Trust. A services agreement governed the relationship 

between LBS and TDS, and TDS agreed therein to indemnify 
4

LBS for attorney fees incurred by LBS “to the extent caused by 

[TDS’s] breach of this Agreement or by the negligence or willful 

misconduct of [TDS].” TDS initiated nonjudicial foreclosure 

proceedings under the Deed of Trust, and a foreclosure sale was 

set for December 2009. Due to a mistake on TDS’s part, TDS 

made an opening bid on behalf of LBS for approximately 

$4,476,028, which represented the total outstanding 

indebtedness on the Note, instead of the $1,767,000 bid that LBS 

had authorized. TDS prepared a trustee’s deed upon sale, but it 

did not record the deed. LBS notified TDS of the mistaken bid 

amount, and TDS determined the sale was invalid. TDS 

rescinded the sale, and, over the Thompsons’ objections, set a new 

foreclosure sale. At the second sale, TDS bid $1,767,000 for the 

property on LBS’s behalf, and LBS was declared the high bidder. 

LBS thereafter amended its complaint to sue the 

Thompsons only to recover the deficiency under the Guaranty. 

The LLC and the Thompsons filed a cross-complaint against TDS 

asserting claims for breach of the Deed of Trust and violation of 

nonjudicial foreclosure statutes.2 The Thompsons’ claims were 

premised on allegations that the first foreclosure sale could not 

be rescinded, and that TDS had violated its contractual and 

statutory duty to sell the property to the highest bidder. The 

Thompsons alleged that they “incurred and will continue to incur 

expenses in the form of attorneys’ fees, court costs, and other 

litigation expenses to defend against the [LBS] Complaint, and 

2 The cross-complaint also asserted claims for bid chilling, 

but those claims were dismissed before trial.
5

are entitled to recover such fees (including any fees awarded 

against them and in favor of [LBS]) . . . from . . . [TDS].” 

In August 2011, LBS and the Thompsons settled, and LBS 

assigned to the Thompsons its claims against TDS arising from 

the processing of the foreclosure. 

B. The Thompsons’ Complaint and the Consolidation 

In December 2012, as LBS’s assignees, the Thompsons filed 

a complaint against TDS for breach of the services agreement, 

express contractual indemnity, and breach of the implied 

covenant of good faith and fair dealing. 

In September 2013, the Sonoma County Superior Court 

consolidated the Thompsons’ cross-complaint from the first suit 

and their complaint in the second suit. In 2014, the parties 

stipulated to a bifurcated trial with the first phase to proceed as a 

court trial of certain legal issues based on stipulated facts. In its 

statement of decision from this phase, the trial court found that 

the Thompsons and the LLC did not have standing to bring the 

cross-complaint against TDS. The Thompsons did not have 

standing to sue TDS under the Note or Deed of Trust because 

they were “guarantors only,” not the borrowers, and the court 

could not identify any obligations that TDS owed them and 

breached. The LLC did not have standing because its corporate 

status was cancelled, and, even if it was a viable entity, it 

sustained no damages as a result of TDS’s mistake because it 

could not be subject to a deficiency judgment. The court also 

found that TDS had the right to rescind the first foreclosure sale 

after its mistake. 
6

With regard to the Thompsons’ complaint, the court found 

that LBS did not have valid causes of action for breach of contract 

or negligence that could be assigned to the Thompsons because 

“the second sale appears on its face to have obtained for LBS all 

of the benefits that LBS intended to achieve by means of the 

foreclosure.” The court also found LBS did not validly assign 

claims to the Thompsons because the services agreement 

prohibited assignments without the consent of TDS, who did not 

consent. The court entered judgment in favor of TDS. 

TDS moved for attorney fees under section 1717 and “the 

terms of the applicable agreements.” The court granted the 

motion, although it was not clear whether the court based its 

award on TDS prevailing on the cross-complaint, complaint, or a 

combination of the two. The Thompsons appealed from the 

judgment and the order granting attorney fees, but their appeal 

from the judgment was dismissed as untimely. 

On appeal from the attorney fees award, the Thompsons 

argued that section 1717 did not apply because the crosscomplaint sought fees as damages, not costs; TDS was not 

entitled to attorney fees incurred defending against the crosscomplaint under the terms of the Deed of Trust, Note, Guaranty, 

or the services agreement; and the court failed to properly 

apportion fees and awarded duplicative fees. A panel from 

Division Five of this court assumed without deciding that section 

1717 attorney fees were not available under the cross-complaint, 

but affirmed the fee award in any event. It found that, even if 

TDS was only entitled to prevailing party fees under the services 
7

agreement, the trial court did not abuse its discretion by failing 

to apportion the fees. The Thompsons thereafter settled the 

attorney fees award with TDS for $600,000.

II. The Legal Malpractice Action 

In the first phase of the Thompsons’ malpractice action 

against defendants, the trial court, acting as an appellate court, 

determined how a timely appeal of the judgment in the 

underlying case would have been resolved. The court addressed 

stipulated issues, including whether the Thompsons lacked 

standing to pursue their cross-claims against TDS, and whether 

they obtained a valid assignment of claims from LBS. The court 

found that the Thompsons were not parties to the Deed of Trust 

or Note, nor were they third-party beneficiaries thereof, so they 

lacked standing to bring the cross-complaint. But contrary to the 

court in the underlying case, the trial court in the malpractice 

action determined that LBS had validly assigned its claims 

against TDS to the Thompsons.3

In the second phase of the malpractice action, the trial 

court tried the “remanded” breach of services agreement claim 

against TDS on stipulated facts. The trial court found that TDS 

breached the services agreement with LBS, and the Thompsons 

(as LBS’s assignees) would have received a judgment for 

3 The other stipulated issues were whether TDS had the 

right to rescind the first trustee sale and whether the Thompsons’ 

statutory claim failed because the acts of TDS were privileged 

under section 47. The trial court found that TDS had authority 

to rescind the first sale, the question of immunity under section 

47 was moot, and TDS had immunity under section 47 in any 

event. 
8

$340,340.80 in damages for this breach. The parties then 

stipulated to the remaining issues that required resolution, 

including whether the Thompsons should receive interest on the 

breach of contract judgment and/or prevailing party attorney fees 

and costs, and “whether the attorney’s fees and costs in favor of 

[TDS]” in the underlying case should be “reversed.” 

After briefing and a hearing, the trial court issued a posttrial order. As to the issue of “reversal” of the TDS attorney fees 

award, the court observed that the question was whether the 

Thompsons were entitled to this amount as damages from 

defendants’ malpractice. It found the Thompsons were entitled to 

a portion of the $600,000 they had paid to TDS, specifically the 

$105,320 they had paid TDS in connection with the untimely 

appeal. As for the remainder, the court found that the 

Thompsons had not proven to a “legal certainty” that TDS would 

not have been entitled to recover attorney fees under section 1717 

on the Thompsons’ cross-complaint. First, the court observed 

that the fact that the cross-complaint prayed for fees as damages, 

not costs, was not dispositive because contractual attorney fees 

may be awarded regardless of whether they were pled. Next, the 

court found that the Thompsons relied on the Guaranty to assert 

their contract claims against TDS, and they challenged the 

foreclosure sale asserting they had standing based on the loan 

documents, including the Guaranty. The Guaranty contained an 

attorney fee provision, so “a court could conclude that [TDS] was 

a prevailing party on a contract entitled to fees under the 
9

reciprocity of [section] 1717.” The court entered judgment for the 

Thompsons for $673,924.42 on September 25, 2020.

The Thompsons brought a motion to vacate the judgment, 

arguing that the court’s finding that TDS could have been 

awarded attorney fees on the cross-complaint under section 1717 

was not supported by the facts or law. The Thompsons asked for 

a new judgment awarding them the entire $600,000 they had 

paid to TDS. The court denied the motion. It again rejected the 

argument that section 1717 attorney fees could not be awarded 

on the cross-complaint because the Thompsons did not plead 

entitlement to these costs. The court stated that the theory of the 

Thompsons’ case was breach of contract, and the Thompsons 

“asserted that theory by using the Guaranty of the loan that was 

secured by the Deed of Trust, all subject to attorney’s fees 

provisions.” Had the Thompsons prevailed on their theory, the 

court concluded, they could have recovered attorney fees. As a 

result, TDS could have recovered these fees as well. The 

Thompsons timely appealed.

DISCUSSION

The sole question in this appeal is whether the trial court 

correctly determined that TDS could have recovered prevailing 

party attorney fees under section 1717 on the breach of contract 

claim in the Thompsons’ cross-complaint. Defendants contend 

that we should review the trial court’s determination for 

substantial evidence, but it is well established that we review de 

novo the question of whether there is a legal basis for awarding 
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attorney fees. (Brown Bark III, L.P. v. Haver (2013) 

219 Cal.App.4th 809, 821 (Haver).) 

Section 1717 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.” (§ 1717, subd. (a); see Code Civ. Proc., 

§§ 1032, subd. (b) [prevailing party shall recover costs], 1033.5, 

subds. (a)(10)(A) [attorney fees awarded under statute or contract 

are allowable costs].) Section 1717 makes reciprocal an otherwise 

unilateral attorney fee provision in an action on the contract 

when the contract provides the right to one party but not the 

other. (Santisas v. Goodin (1998) 17 Cal.4th 599, 610–611.) It 

also applies when a party litigant prevails in an action on a 

contract by establishing that the contract is invalid, inapplicable, 

unenforceable, or nonexistent; in that situation, section 1717 

permits that party’s recovery of attorney fees whenever the 

opposing party would have been entitled to attorney fees under 

the contract had he or she prevailed. (Id. at p. 611.)

Generally, attorney fees are awarded only when the 

contract action is between signatories to the contract containing 

the fee provision, but, in some circumstances, section 1717’s 

reciprocity principles apply in actions with nonsignatories. 

(Reynolds Metal Co. v. Alperson (1979) 25 Cal.3d 124, 128 
11

(Reynolds).) Our Supreme Court first applied reciprocity 

principles to a nonsignatory in Reynolds. There, the plaintiff 

sued the defendants for the contractual debt of two corporations, 

alleging the defendants were alter egos of the corporations. 

(Id. at p. 127.) The plaintiff lost on its alter ego theory, but the 

trial court awarded the prevailing defendant nonsignatories 

attorney fees under the contracts the plaintiff had attempted to 

enforce. (Ibid.) Our Supreme Court affirmed, holding that 

section 1717 must be “interpreted to further provide a reciprocal 

remedy for a nonsignatory defendant, sued on a contract as if he 

were a party to it, when a plaintiff would clearly be entitled to 

attorney’s fees should he prevail in enforcing the contractual 

obligation against the defendant.” (Id. at p. 128.) Section 1717 

“would fall short of th[e] goal of full mutuality of remedy if its 

benefits were denied to parties who defeat contract claims by 

proving that they were not parties to the alleged contract or that 

it was never formed.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 870.) 

In assessing whether the plaintiff would have been entitled 

to attorney fees under section 1717 had it prevailed, the merit of 

the theory used to assert the nonsignatory defendant’s 

contractual liability “is irrelevant.” (Haver, supra, 

219 Cal.App.4th at p. 827.) In Haver, the plaintiff sued a 

nonsignatory defendant for breach of agreements related to a line 

of credit, asserting successor liability against the defendant. 

(Id. at pp. 816–817.) The trial court found against the plaintiff on 

the breach of contract claims, but it denied the defendant 

prevailing party attorney fees on those claims, finding the 
12

defendant would not have been liable for the plaintiff’s attorney 

fees had the plaintiff prevailed. (Id. at p. 827.) The trial court’s 

rationale was that the plaintiff’s successor liability theory 

“clearly” lacked merit. (Ibid.) The appellate court reversed. 

“Regardless of the [plaintiff’s] theory’s merit, [plaintiff] sued 

[defendant] on that theory and forced [defendant] to incur 

attorney fees to defend against it through trial. ‘[T]he pertinent 

inquiry for purposes of . . . section 1717 is whether [plaintiff] 

would have been entitled to attorney fees in a hypothetical 

situation in which [it] did prevail on its claim[s].’ ” (Ibid.) There, 

had the plaintiff succeeded in proving the defendant was a 

successor, it could have recovered attorney fees. Accordingly, the 

defendant was entitled to its fees. (Ibid.; see also Reynolds,

supra, 25 Cal.3d at p. 129 [“Had plaintiff prevailed on its cause of 

action claiming defendants were in fact the alter egos of the 

corporation [citation], defendants would have been liable on the 

notes”].)

We conclude that the trial court in the malpractice action 

correctly found that TDS was entitled to fees on the Thompsons’ 

cross-complaint under the rule that a prevailing party is entitled 

to recover its attorney fees pursuant to a contract provision if the 

opposing party would have been entitled to attorney fees had it 

prevailed. In their cross-complaint, the Thompsons sued TDS for 

breach of contract. Their legal theory was that they had standing 

to sue for breach because they, along with TDS, were parties to 

the loan transaction documents, including the Deed of Trust and 

Note. More specifically, their theories were that the Deed of 
13

Trust, Note, and Guaranty were one integrated contract (§ 1642), 

and the Deed of Trust contained and expressly incorporated the 

Guaranty, making the Thompsons and TDS parties thereto.4 

Alternatively, the Thompsons claimed to be third-party 

beneficiaries of the Note and Deed of Trust.

Under section 1642, several papers relating to the same 

subject matter and executed as parts of substantially one 

transaction are to be construed together as one contract. (Nevin 

v. Salk (1975) 45 Cal.App.3d 331, 338 [“a note, mortgage and 

agreement of sale constitute one contract where they are part of 

the same transaction”].) “When there are several contracts 

between the parties as a part of a single interrelated relationship 

or transaction, commonly referred to as an integrated agreement, 

and only one contract contains an attorney’s fees provision, the 

several documents may be construed together and the attorney’s 

fees provision applied to any litigation involving any one, or all, 

of the several agreements.” (12 Miller & Starr, Cal. Real Estate 

(4th ed. 2021) § 40:70.) Further, “where there are two or more 

separate, independent contracts as part of the same transaction, 

and one agreement incorporates a second agreement by reference, 

the party enforcing the incorporating document may recover fees 

based upon the fee provision in the incorporated document.” 

4 The incorporation theory was that the Deed of Trust 

contained the Guaranty and that it incorporated the Guaranty 

through its definition and use of the term “Loan Documents,” 

which meant “the Note, this Deed of Trust . . . all guaranties . . . 

and any other documents now or in the future executed by 

Trustor, any guarantor or any other person in connection with 

the loan evidenced by the Note . . . .”
14

(Ibid.) Both the Guaranty and the Note contain attorney fee 

provisions.5 The trial court rejected the Thompsons’ theory of an 

overarching agreement, but, had the Thompsons succeeded in 

convincing the court that they were parties to an overarching 

agreement represented by the Deed of Trust and Guaranty, or 

the Deed of Trust, Note, and Guaranty, that agreement would be 

subject to an attorney fee provision.6 

Seeking to avoid this result, the Thompsons argue they did 

not sue to enforce the Note or Guaranty, so the fee provisions 

therein are inapplicable. This argument ignores the “one 

contract” and incorporation theories the Thompsons used to 

pursue their breach of contract claim. “Where a contract provides 

for attorney’s fees . . . that provision shall be construed as 

5 The Guaranty states, “The undersigned shall pay to 

Lender all attorneys’ fees and costs incurred by Lender in seeking 

to enforce any of the liabilities or obligations of the undersigned 

under this Guaranty.” The Note states, “If an action is brought 

for collection of this note, or if proceedings are commenced to 

foreclose upon the security given for this note, I promise to pay 

all costs and expenses incurred including reasonable attorney’s 

fees.”

6 The question we address is not the propriety of a finding 

that the agreements could be read as one. Rather, because we 

must assume that the Thompsons would have prevailed on their 

claims against TDS in order to determine whether TDS was 

entitled to fees for defeating the cross-complaint, we focus instead 

on whether the Thompsons could have recovered attorney fees 

had they prevailed on their theories—regardless of whether those 

theories had any substantive merit. (Haver, supra, 

219 Cal.App.4th at p. 827 [the merit of the theory used to assert 

the nonsignatory defendant’s contractual liability “is 

irrelevant”].) 
15

applying to the entire contract . . . .”7 (§ 1717, subd. (a); Harbor 

View Hills Community Assn. v. Torley (1992) 5 Cal.App.4th 343, 

348–349 [explaining this language was added to overrule 

Sciarrotta v. Teaford Custom Remodeling, Inc. (1980) 

110 Cal.App.3d 444, 446, which held that parties could limit an 

attorney’s fee clause to specific contract provisions or actions on 

the contract].) Thus, irrespective of the merits of the Thompsons’ 

theories for how they were parties to an overarching contract 

including all the loan documents, had they prevailed with these 

theories in enforcing a contractual obligation against TDS, they 

could have recovered attorney fees under section 1717. (See Boyd 

v. Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 378–381 [invoices 

with provision allowing for attorney fees for manufacturer’s 

collection efforts were read as part of dealership agreement, and 

limited attorney fee clause applied to entire agreement]; 

12 Miller & Starr, Cal. Real Estate (4th ed. 2021) § 40:70.)8 

Accordingly, the trial court in the malpractice action did not err 

7 This general rule of construction applies “unless each 

party was represented by counsel in the negotiation and 

execution of the contract, and the fact of that representation is 

specified in the contract.” (§ 1717, subd. (a).) The agreements at 

issue do not contain language that would except them from 

section 1717’s general rule of construction. 

8 Citing Raffetto v. CIT Business Lending (E.D. Cal. March 

8, 2010) No. CIV S-08-392, 2010 WL 891615, *5, the Thompsons 

also argued they could enforce the Deed of Trust as third-party 

beneficiaries of the Note and Deed of Trust. Given our 

disposition, we need not address whether the Thompsons would 

have been entitled to attorney fees if they had succeeded in 

enforcing the Deed of Trust as third-party beneficiaries. 
16

in holding that the Thompsons had failed to prove TDS could not 

have recovered attorney fees on the cross-complaint. 

Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 

541, upon which the Thompsons rely, does not convince us 

otherwise. Super 7 is distinguishable because it did not involve a 

contract claim under section 1717. Rather, where the purchaser 

of real estate sued a broker for fraud, the court in Super 7 held 

that section 1717 and its reciprocity principles were inapplicable 

to the fraud claim. (Id. at pp. 546–547.) The court further held 

that the broker could not recover fees for defense of the tort claim 

under the terms of the purchase agreement at issue because the 

broker was not a party or third-party beneficiary thereto, and, 

even if he were a third-party beneficiary, the fee provision did not 

evidence an intent to benefit third parties. (Id. at pp. 549–550.) 

Finally, there is no merit to the Thompsons’ assertion that 

TDS could not have recovered fees under section 1717 because 

they sought attorney fees in the cross-complaint only as damages, 

and not pursuant to that statute. Even accepting that the 

Thompsons alleged a right to recover from TDS the attorney fees 

they incurred in the litigation with LBS as an aspect of their 

damages, the trial court correctly observed that attorney fees as 

costs can now be recovered through a noticed motion under Code 

of Civil Procedure section 1033.5. (Allstate Ins. Co. v. Loo (1996) 

46 Cal.App.4th 1794, 1797–1798.)

In sum, the trial court correctly found that the Thompsons 

had failed to establish that TDS could not have recovered 

prevailing party attorney fees under section 1717 for its 
17

successful defense of the contract claim in the Thompsons’ crosscomplaint. The trial court therefore did not err in denying the 

Thompsons’ request for damages in the full amount of the 

attorney fees they paid to TDS.9

DISPOSITION

The judgment is affirmed. 

BROWN, J.

WE CONCUR:

POLLAK, P. J.

ROSS, J.

Thompson et al. v. Flynn Riley Bailey & Pasek, LLP (A161238)

9 In the earlier appeal of the fee award, Division Five of this 

court assumed that the trial court in the underlying case 

awarded TDS approximately $400,000 in attorney fees on the 

breach of services agreement claim, and that fees were not 

recoverable under the cross-complaint. It nonetheless held that 

the trial court “could reasonably find the activities TDS 

undertook to defend against the cross-claims were 

‘ “ ‘ inextricably intertwined’ ” ’ with the activities it undertook to 

defend against the complaint, ‘making it “impracticable, if not 

impossible, to separate the multitude of conjoined activities into 

compensable or noncompensable time units.” ’ ” This ruling 

supports the converse conclusion that the roughly $400,000 in 

attorney fees awarded by the trial court in the underlying case 

could have been based on successful defense of the crosscomplaint alone.

 Judge of the Superior Court of California, City and 

County of San Francisco, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.