Filed 3/29/21 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DAVID S. KARTON et al.,

Plaintiffs and Appellants,

v.

ARI DESIGN & 

CONSTRUCTION, INC., et al.,

Defendants and 

Respondents.

B298003

(Los Angeles County Super. Ct. 

No. SC125392)

ORDER MODIFYING 

OPINION AND DENYING 

PETITION FOR 

REHEARING

[NO CHANGE IN 

JUDGMENT]

THE COURT: 

IT IS ORDERED the opinion in the above-entitled matter 

filed on March 9, 2021, be modified as follows:

1. On page 10, in the third sentence of the second full 

paragraph, “multiplicand” is changed to “product”;

2. On page 14, the first and second sentences of the third full 

paragraph are deleted and replaced as follows: “Weighing 

cost and benefit, this trial court concluded a fee much 

larger than the judgment was not reasonable. This was 
2

logical: rational investors or buyers would not spend more 

than $1 to get something worth $1.”

The petition for rehearing is denied.

There is no change in the judgment. 

____________________________________________________________ 

BIGELOW, P. J. GRIMES, J. WILEY, J.
Filed 3/9/21 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DAVID S. KARTON et al.,

Plaintiffs and Appellants,

v.

ARI DESIGN & CONSTRUCTION, 

INC., et al.,

Defendants and Respondents.

B298003

(Los Angeles County

Super. Ct. No. SC125392)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Elaine W. Mandel, Judge. Affirmed in part 

and reversed in part.

Law Offices of Joe R. Abramson, Joe R. Abramson; Law 

Offices of David S. Karton and David S. Karton for Plaintiffs and 

Appellants.

Ilan Messika, Jonathan Guttman and Shahar Toledano, in 

pro. per., for Defendants and Respondents.

Hausman & Sosa, Carlos E. Sosa and Larry D. Stratton for 

Defendant and Respondent Wesco Insurance Company.

____________________
2

Trial judges deciding motions for attorney fees properly 

may consider whether the attorney seeking the fee has become 

personally embroiled and has, therefore, over-litigated the case. 

Similarly, judges permissibly may consider whether an attorney’s 

incivility in litigation has affected the litigation costs.

Here, the trial judge found attorney David Karton’s fee 

motion triggered these concerns. Karton had a dispute with his 

home remodeling contractor: defendant and appellee Ari Design 

and Construction, Inc. At one point, their difference amounted to 

only $22,096: Karton said Ari owed him $35,096, while Ari 

contended it owed $13,000. 

Karton sued Ari and won a judgment for $133,792.11 plus 

postjudgment interest. Karton then sought attorney fees of 

$271,530, which were later increased to $287,640 in the trial 

court and now to $292,140 in this court. The trial court awarded 

$90,000 in attorney fees. We affirm this award against Karton’s 

argument that $90,000 is not enough.

On a different issue, the trial judge ruled the Kartons had 

no basis to collect the $90,000 award from an insurance company 

called Wesco that had posted a surety bond for Ari. The liability 

of the surety is commensurate with the liability of its principal. 

In this case, by statute, Ari must pay the attorney fees as a 

matter of costs. So too must Wesco. We reverse and remand for 

the trial court to amend the judgment to make surety Wesco 

liable for the $90,000 fee award as an item of costs.

I

Plaintiffs and appellants David and Cheryl Karton engaged 

Ari for $163,650 of construction work on their home. After 

months of work, a dispute arose and the Kartons told Ari to stop 

work in late 2015. At this point, the Kartons claimed Ari owed 
3

them $35,096. Ari admitted to a debt but claimed it was only 

$13,000. The difference was $22,096. 

In February 2016, the Kartons sued Ari, which is a 

business entity. The Kartons also sued three people connected 

with Ari—Shahar Toledano, Jonathan Guttman, and Ilan 

Messika—as well as Ari’s surety: Wesco Insurance Company, 

which had posted a $12,500 construction bond for Ari. The 

Kartons alleged five counts: breach of contract (against all but 

Wesco), money had and received (against all but Wesco), violation 

of Business and Professions Code section 7031 (to recover 

compensation paid to an unlicensed contractor, against all but 

Wesco), license bond (against only Wesco), and unfair competition 

(against all but Wesco). 

The court held a three-and-a-half day bench trial in 

November 2017. The Kartons called seven witnesses. The 

defense called no independent witnesses.

The court issued a 20-page tentative statement of decision 

it later adopted as its final ruling. We excerpt the findings.

Ari began work on the Kartons’ home in June 2015 and 

continued daily through November 2015. During these months, 

Ari usually had between two and four people working on the site. 

In November 2015, David Karton began to suspect there was a 

problem with Ari’s workers’ compensation insurance. The 

Kartons ordered Ari to suspend work when they ascertained Ari 

was not properly licensed or insured. 

The Kartons had paid Ari $92,651 to that point but had 

overpaid: Ari had not yet done that amount of work. Karton and 

Ari agreed the Kartons had overpaid but disagreed about by how 

much. Karton said Ari owed $35,096; Ari said it owed only 

$13,000. The court found the Kartons were right: they had paid 
4

Ari $92,651, but the contract value of Ari’s work to that point was 

only $57,555: the Kartons thus had overpaid by $35,096. 

This overpayment of $35,096, however, was not the 

measure of damages; rather, the Kartons were entitled to the 

entire amount they paid Ari: $92,651, plus prejudgment interest. 

This was despite the fact Ari’s workers had performed $57,555 

worth of construction work for the Kartons. No witness 

impugned the quality of Ari’s work.

This $92,651 award was under section 7031, subdivision 

(b), of the Business and Professions Code, which entitles those 

using an unlicensed contractor to all compensation they paid the 

unlicensed contractor, even if they knew the contractor was 

unlicensed. This statute requires an unlicensed contractor to 

return all compensation it received, without reductions or offsets 

for the value of materials or services it provided. This statute 

can create a windfall for those hiring an unlicensed contractor 

that has done quality work. Courts may not resort to equitable 

considerations when applying this statute, however, for the law 

aims to create a harsh penalty to induce contractors to maintain 

proper licensure. (Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 

21, 30–31.) 

To this $92,651 award against Ari, the court added an 

additional $10,000 penalty under Code of Civil Procedure section 

1029.8. This section 1029.8 provides for treble damages and 

attorney fees against “[a]ny unlicensed person” whose work 

injures another person. This statute caps the permissible treble 

damages award at $10,000. (Id., subds. (a) & (c).) This treble 

damage provision, albeit capped, is an additional 

noncompensatory damage provision that created a further 

windfall for the Kartons. Together with its attorney fee 
5

allowance, this statutory damage multiplier creates a 

supplemental incentive to maintain proper licensure. The 

incentive is potent to the point of having penal attributes. (Rony 

v. Costa (2012) 210 Cal.App.4th 746, 757.)

The trial court also awarded the Kartons storage fees of 

$2,850. 

The damage award was against Ari and not against 

Messika, Guttman, and Toledano. The court found these three 

people were not Ari’s alter egos. 

The court awarded the Kartons $12,500 against Ari’s 

surety Wesco on the fourth cause of action concerning the 

construction bond. 

Although the court found Ari lacked its contractor’s license 

and did not obtain proper insurance, the court did not find Ari’s 

work to be defective or of poor quality.

The court entered an amended judgment on October 24, 

2018, and retained jurisdiction to decide attorney fees.

The trial court later held two hearings on the issue of 

attorney fees. The judge who had handled the case to that point 

had been reassigned; a new judge heard the Kartons’ attorney fee 

motion.

The first fee hearing was on January 25, 2019. Lawyer 

Shani Kochav appeared for all defendants. Lawyers Joe 

Abramson and David Karton appeared for the Kartons; Karton 

said his appearance was “limited scope representing myself and 

my wife.” Karton argued first and did most of the speaking for 

the Kartons.

Before this hearing, the court issued a tentative ruling. 

This ruling noted the Kartons were requesting $271,530 in 

attorney fees, $52,021 in discovery sanctions, and $203,646 for 
6

proving matters at trial that had been denied in discovery. This 

tentative ruling also noted the amended judgment made fees 

recoverable only against Ari and not against the individual 

people who were defendants. The court determined $450 an hour 

was a reasonable rate for Abramson and that the issues in the 

case were “not particularly complex.” The court observed the 

Kartons’ motion lacked a breakdown of hours spent by counsel 

beyond a “bare-bones declaration” that merely asserted a total of 

603.4 hours and an estimate of percentages devoted to different 

tasks. The tentative ruling concluded the Kartons provided 

insufficient evidence for the court to assess whether the 

requested fees were reasonable. The court proposed to continue 

the hearing to allow the Kartons to supply the missing evidence 

to justify their request. 

At the hearing, Karton asked for 30 days to file 

supplemental papers. The court granted this request. The court 

set a 10-page limit on the filing. Karton said, “I assume that’s 

the text” and not the exhibits, and the court said yes. 

In February 2019, the Kartons filed 11 pages of text and 

over 400 pages of supplemental briefing. In this filing, the 

Kartons “updated” their demand by adding $16,110 to their fee 

request. Without explicitly saying so, the Kartons suggested 

their initial billing figures were incorrect. 

The second hearing was on March 25, 2019. Karton was 

the sole attorney representing the Kartons; Abramson did not 

appear. Karton and the court agreed the Trope case barred 

recovery for the time Karton himself had spent on the case. (See 

Trope v. Katz (1995) 11 Cal.4th 274, 292 [attorney litigants may 

not recover attorney fees as compensation for effort they spend 

litigating matters on their own behalf].)
7

Karton said the trial court’s damage award against Ari was 

$102,000.

The court noted Karton’s original request was for about 

$270,000 in attorney fees but the request lacked evidence “as to 

the number of hours spent or the tasks performed by whom, et

cetera . . . .”

The court expressed surprise Karton now had increased 

that request “beyond what had previously been requested.” 

The trial court commented on the Kartons’ lack of civility in 

their briefing. “The briefing filed by [the Kartons’] counsel was 

replete with attacks on defense counsel such as that defense 

counsel filed ‘knowingly false claims of witness tampering,’ ‘her 

comments were frivolous,’ something was ‘typical of the improper 

tactics employed by defendants and their counsel’. [¶] It was 

really offensive to me, the attacks made in this case.”

The trial court stated it had given Karton the “opportunity 

to revive a request that could have been denied by the court two 

months ago, and instead of denying it, I gave you the opportunity 

to file evidence. [¶] I did not expect to see a request for increased 

fees, and I did not expect to see these kind[s] of improper attacks 

on counsel in your briefing.” 

The court said Karton and his cocounsel “filed a lot of 

papers, several hundred pages worth of documents, of block 

billing, given the fact that you were told by the court to file 

documents with a 10-page limit. Again, I was surprised to find, 

oh, 300 pages of documents filed. [¶] I assumed that you would 

give me billing records, and you have, but I also have a lot of 

extraneous documentation, a lot of paper that I did not need and 

did not want in ruling on this motion. [¶] If this is reflective of 

the litigation that went on in this relatively simple-sounding 
8

case, I understand how you may and your counsel may have 

spent the number of hours that you claim to have spent.”

The court observed the Kartons had gone “so far beyond 

what was necessary on this matter.” 

The court concluded, “I cannot say that anything like 

$270,000 requested in this case is reasonable.” The $270,000 fee 

request was “excessive by a lot.”

Karton said, “I’m sorry that you feel that I have offended 

the court.” He continued, “I’m facing a situation where a judge 

ruled that the other side completely cheated. They claimed—they 

claimed that they were insured, and they weren’t.” The court 

agreed: “That’s what Judge Newman found.”

The court observed Karton was “agitated about this case. 

This is your personal matter, and I understand that. I see that 

you have strong feelings about this case and strong feelings about 

the course of this litigation and how it has proceeded.”

The court asked Karton, “Can you not interrupt me. I 

would appreciate your letting me finish my sentence.” Karton 

apologized. 

The court stated that what Karton had “presented here 

went vastly beyond what I anticipated.” The court noted the 

additional 20 exhibits the Kartons attached to their supplemental 

10-page brief “is emblematic to me of the over-litigation of this 

case.” “[T]his was reflective of the amount of time that was spent 

on various tasks throughout the course of this litigation.” 

The court took the matter under submission.

The next day the court issued a minute order approving

200 hours at $450 per hour, for a total fee of $90,000. The order 

noted the court had given Karton leave to file supplemental 

briefing of 10 pages but that Karton had filed hundreds of pages 
9

with 20 or more additional exhibits—an effort Karton claimed 

took 30 hours of attorney time. Karton’s supplemental briefing 

increased the size of his fee request. The order reviewed law 

about the lodestar method of fee calculation and noted its broad 

discretion to adjust an award downward or to deny it completely 

if it determined a request was excessive, citing Ketchum v. Moses

(2001) 24 Cal.4th 1122, 1132 (Ketchum). (See also id. at p. 1138 

[“To the extent a trial court is concerned that a particular award 

is excessive, it has broad discretion to adjust the fee downward or 

deny an unreasonable fee altogether.”].) 

The order noted the “inflammatory language” in Karton’s 

briefing. The court reiterated the Kartons’ supplemental briefing 

“vastly exceeded” the scope of the court’s order and was 

“emblematic of the vast over-litigating of this matter.” “In its 

discretion, the court finds that 200 hours at $450/hour ($90,000)” 

was a reasonable attorney fee for the Kartons. “The issues of this 

case do not appear particularly complex, and the request for fees 

is vastly in excess of what is reasonable. Fees three times the 

award [do] not seem to be reasonable, nor [do] 600 hours of 

attorney time.” 

On a separate issue, the court ruled the Kartons had no 

statutory or contractual basis for a recovery of attorney fees 

against Wesco. 

The Kartons appealed.

II

We reject the Kartons’ complaint that the $90,000 attorney 

fee award is too small.

A

We review attorney fee awards for abuse of discretion. An 

experienced trial judge is in the best position to evaluate the 
10

value of professional services rendered in the trial court. We 

presume the fee approved by the trial court is reasonable. We 

will not disturb the trial court’s judgment unless it is clearly 

wrong. The burden is on the objector to show error. (Laffitte v. 

Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488 (Laffitte).) 

Equitable principles inform this project. (PLCM Group, Inc. v. 

Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM).)

The benchmark in determining attorney fees is 

reasonableness. Courts have developed two ways to define a 

reasonable fee.

The first method is the lodestar approach. This method 

traces back at least to the famous Lindy case: Lindy Bros. 

Builders, Inc. of Philadelphia v. American Radiator & Standard 

Sanitary Corp. (3d Cir. 1973) 487 F.2d 161, 168. The lodestar is 

the multiplicand of a reasonable hourly rate and a reasonable 

number of hours. (PLCM, supra, 22 Cal.4th at p. 1095.) The 

court then may adjust the lodestar based on a variety of factors. 

Germane factors include the nature, difficulty, and extent of the 

litigation, the skill it required, the attention given, and the 

success or failure of the enterprise, as well as other factors. (Id.

at p. 1096.) Whether the attorney worked on a contingency is 

relevant. (Mikhaeilpoor v. BMW of North America, LLC (2020) 

48 Cal.App.5th 240, 248 (Mikhaeilpoor).) A trial court is not 

required to state each charge it finds reasonable or unreasonable. 

A reduced award might be fully justified by a general observation 

that an attorney over-litigated a case. (Id. at p. 250.)

The second method is the percentage-of-recovery approach. 

The percentage approach arose in the class action context and 

predated the lodestar method, but has always shared the lodestar 

method’s fundamental goal of defining “reasonableness” in a 
11

given case. (E.g., Laffitte, supra, 1 Cal.5th at p. 504 [the goal 

under both the percentage and lodestar approach is the award of 

a reasonable fee to compensate counsel for their efforts].)

Over the decades, there has been a nationwide tug-of-war 

about which method is superior: lodestar versus percentage. 

(Laffitte, supra, 1 Cal.5th at pp. 489–503.) Each approach has 

advantages and disadvantages. The lodestar method better 

accounts for the amount of work done, while the percentage 

approach more accurately reflects the results achieved. (Id. at 

p. 489.) 

In 2010, the American Law Institute concluded “ ‘most 

courts and commentators now believe that the percentage 

method is superior. Critics of the lodestar method note, for 

example, the difficulty in applying the method and cite the 

undesirable incentives created by that approach—i.e., a financial 

incentive to extend the litigation so that the attorneys can accrue 

additional hours (and thus, additional fees).’ ” (Laffitte, supra, 1 

Cal.5th at p. 494, quoting ALI, Principles of the Law of Aggregate 

Litigation (2010) § 3.13, com. b.) 

Attorneys can be prone to opportunistic opinions on which 

approach they prefer, depending on the circumstances of their 

case. The reason is obvious: money.

If the recovery is large, plaintiffs’ counsel can favor the 

percentage approach, because a percentage of a very large 

number itself can be large. (E.g., Augustus v. ABM Security 

Services, Inc. (2016) 2 Cal.5th 257, 260 [“trial court granted 

summary judgment for plaintiffs, finding ABM liable and 

awarding approximately $90 million”]; Augustus v. American 

Commercial Security Services (L.A.Super.Ct., June 30, 2017, No. 

BC336416) 2017 WL 11417614 [attorney fee award of over 30
12

percent of that sum].) Correspondingly, defense counsel in such 

cases can be articulate as to why a percentage approach is 

misguided.

If the recovery is comparatively slight, both sides can 

reverse field, with plaintiffs’ counsel insisting the lodestar 

approach must dominate and defense counsel praising the virtues 

of the percentage method.

Our Supreme Court has concluded that, in common fund 

cases, trial courts have discretion to begin with a percentage

approach and then to use the lodestar approach to cross-check 

the reasonableness of the percentage. (Laffitte, supra, 1 Cal.5th 

at pp. 503–506.) The court has stressed it has not mandated a 

blanket “lodestar only” approach. (Id. at p. 500; see also id. at 

p. 503.)

The Supreme Court also has approved the trial court’s 

discretion to use a positive or negative multiplier to adjust the 

lodestar sum. (E.g., Laffitte, supra, 1 Cal.5th at p. 505.) Use of a 

multiplier can affect the final award considerably: it can double 

or treble the beginning figure, or more, and can reduce it 

drastically too. No established criteria calibrate the precise size 

and direction of the multiplier, thus implying considerable 

deference to trial court decisionmaking about attorney fee 

awards.

B

The trial court used sound discretion to limit the Kartons’ 

attorney fees to $90,000. 

The court began with the conventional lodestar calculation: 

a reasonable hourly rate times a reasonable number of hours. 

The rate is undisputed. On hours, the Kartons said their 

attorney devoted more than 600 hours to this litigation. The 
13

court did not doubt it, but thought the hours were “excessive by a 

lot.”

The court gave five good reasons for concluding 600 plus

hours was unreasonable.

First, the trial court rightly found the questions in this case 

were relatively simple. Difficult issues require more attorney 

hours. (Ketchum, supra, 24 Cal.4th at p. 1138.) Simpler 

questions require fewer. Here the issues were pedestrian: 

whether a contractor had insurance and a license. On the issue 

of how much Ari owed the Kartons, Cheryl Karton testified Ari 

owed $35,096, and “[t]his testimony was not controverted by the 

Defendants.” In the realm of civil litigation in California, this 

case was relatively straightforward.

Second, the court had an ample basis to conclude the 

Kartons over-litigated this matter. They had about a $23,000 

dispute with their contractor: the Kartons had said Ari owed 

$35,096 and Ari had claimed the debt was only $13,000. A 

$23,000 argument must be resolved, but it does not justify 

launching a disproportionate litigation offensive. The Kartons’ 

strategy netted them windfall gains: the harshness of contractor 

licensing laws allowed them to recoup all their construction 

monies, plus $10,000, and to retain the benefit of months of free 

construction work. Notwithstanding this windfall, this remained 

a small case in the range of civil matters in the Los Angeles 

Superior Court. The trial court did not abuse its discretion by 

acknowledging this salient point. 

Third, the trial court fairly attributed some of the overlitigation to Karton’s personal embroilment in the matter. 

Karton is an experienced lawyer. He brought this suit about his 

own home. Karton declared, “I was substantially involved in this 
14

case because I was cheated. So, yes, I was involved.” The trial 

court observed Karton’s demeanor at the hearings and saw he 

was “agitated about this case. This is your personal matter, and I 

understand that. I see that you have strong feelings about this 

case and strong feelings about the course of this litigation and 

how it has proceeded.” The court had reason to conclude 

embroilment undermined objectivity about the appropriate scale 

of litigation.

Fourth, the trial court rightly sought an appropriate 

relationship between the result achieved and the size of the fee. 

For a century or more, California courts have considered the 

success or failure of attorney efforts when evaluating attorney fee 

requests. (E.g., Grass v. Rindge Co. (1927) 84 Cal.App. 750, 767; 

Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.) 

The size of a judgment is pertinent to rational evaluation of 

a requested fee. Rational decisionmaking weighs benefits and 

costs. The judgment measures the dollar benefit of the litigation. 

The attorney fee is the cost of obtaining that benefit. This was 

strictly a money judgment; there was no injunctive or equitable 

relief of an intangible value. The dollar and cents precisely 

quantified the benefit to the Kartons.

Weighing cost and benefit, this trial court concluded a fee 

three times the judgment was not reasonable. This was logical: 

rational investors or buyers would not spend $3 to get something 

worth $1. The trial court properly connected the fee to the 

judgment.

Fifth, the court correctly noted the incivility in Karton’s 

briefing. Attorney skill is a traditional touchstone for deciding 

whether to adjust a lodestar. (Ketchum, supra, 24 Cal.4th at 

p. 1132.) Civility is an aspect of skill. 
15

Excellent lawyers deserve higher fees, and excellent 

lawyers are civil. Sound logic and bitter experience support these 

points.

Civility is an ethical component of professionalism. Civility 

is desirable in litigation, not only because it is ethically required 

for its own sake, but also because it is socially advantageous: it 

lowers the costs of dispute resolution. The American legal 

profession exists to help people resolve disputes cheaply, swiftly, 

fairly, and justly. Incivility between counsel is sand in the gears. 

Incivility can rankle relations and thereby increase the 

friction, extent, and cost of litigation. Calling opposing counsel a 

liar, for instance, can invite destructive reciprocity and generate 

needless controversies. Seasoning a disagreement with avoidable 

irritants can turn a minor conflict into a costly and protracted 

war. All those human hours, which could have been put to 

socially productive uses, instead are devoted to the unnecessary 

war and are lost forever. All sides lose, as does the justice 

system, which must supervise the hostilities.

By contrast, civility in litigation tends to be efficient by 

allowing disputants to focus on core disagreements and to 

minimize tangential distractions. It is a salutary incentive for 

counsel in fee-shifting cases to know their own low blows may 

return to hit them in the pocketbook. 

This trial court appropriately voiced this concern. (Cf. 

Briganti v. Chow (2019) 42 Cal.App.5th 504, 511 [citing authority 

about “the larger scourge of incivility afflicting law practice”]; id.

at pp. 511–512 [judges should help reduce incivility].)

The Kartons respond to criticism of their personal attacks 

by attacking.
16

First the Kartons maintain opposing counsel indeed did 

knowingly make false statements. They point to a report by a 

discovery referee. The cited pages, however, recount the parties 

stipulated certain evidence would be inadmissible. They do not 

find someone knowingly made false statements. In oral 

argument on appeal, however, Karton continued to assert 

opposing counsel was a liar.

Next the Kartons defend calling opposing counsel’s 

comments “frivolous.” They claim a meet and confer letter was so 

meritless as to justify this language. The Kartons do not, 

however, cite a finding faulting this supposedly meritless letter. 

On this point, the Kartons quote the Phil Spector murder 

case at some length, to no avail. There, in closing argument a 

prosecutor told a jury that expert witnesses will say anything if 

you pay them enough. (People v. Spector (2011) 194 Cal.App.4th 

1335, 1404 (Spector).) This case is irrelevant. Spector involved 

neither an attack on opposing counsel’s integrity nor appropriate 

factors in setting an attorney fee award. (Id. at p. 1406.) 

Instead, it involved a closing argument about an expert witness 

jurors had to evaluate.

Finally, the trial court noted the Kartons denigrated the 

actions of opposing counsel as “typical of the improper tactics 

employed by defendants and their counsel.” The Kartons argue 

“this characterization falls within the scope of the type of 

advocacy approved in People v. Spector . . . .” The Spector case 

did not involve attacks on the integrity of opposing counsel. 

(Spector, supra, 194 Cal.App.4th at p. 1406.) This argument 

fails.

In short, in this appeal the Kartons have come out 

swinging, apparently believing the best defense is a good offense. 
17

This approach demonstrates the trial court was within its 

discretion to conclude the Kartons conducted litigation that was 

less than civil.

In sum, these five grounds were sound bases for reducing 

the requested attorney fee from about $300,000 to $90,000.

The Kartons raise other objections to the reduction. They 

argue the trial court abused its discretion by comparing the size 

of the fee request to the size of judgment. The Kartons offer no 

authority for this assertion, which is contrary to the case law 

noted above. (E.g., Laffitte, supra, 1 Cal. 5th at p. 503 [“the 

percentage method is a valuable tool that should not be denied 

our trial courts”]; see also id. at p. 504.) It is logical and 

customary to compare cost to benefit. 

The Kartons say the trial court failed to consider materials 

they included with their supplemental brief. The record is to the 

contrary. The trial court referred to the Kartons’ papers during 

the hearing and based part of its ruling on those documents. The 

court’s written order also referred to these materials.

The Kartons cite Stokus v. Marsh (1990) 217 Cal.App.3d 

647 (Stokus). That case supports Ari and the trial court, not the 

Kartons. In Stokus, a jury in an unlawful detainer action 

awarded possession of real property and $6,166 in damages to the 

plaintiff landlord. The trial court awarded this landlord $75,000 

in attorney fees. (Id. at p. 651.) The appellate court affirmed this 

award because the defense had “tenaciously over-litigated” the 

case. (Id. at p. 653 & fn. 3.) The Stokus opinion penalized overlitigation. So did this trial court.

The Kartons cite Gorman v. Tassajara Development Corp. 

(2009) 178 Cal.App.4th 44, which also supports this trial court’s 

order. In contrast to this case, the trial court in Gorman issued 
18

no tentative rulings on the fee motion. During the hearing the 

court asked no questions and expressed no views. The court took 

the matter under submission, and then issued a Delphic order 

cutting the fee request to $416,581.37. Note the 37 cents. The 

court did not explain its ruling. (Id. at pp. 53, 56–57.) The 

precision of this mystifying order implied some deep logic the 

appellate court struggled to uncover but failed to find. Unable to 

surmise a reasonable explanation, the appellate court concluded 

the order was merely arbitrary. (Id. at pp. 53 & 100–101.) There 

was no such veiled trial court conduct here. Rather, this trial 

court issued a tentative ruling, stated its views during two 

hearings, and in its written order repeated the same reasoning, 

which is cogent and consistent. Gorman shows one wrong way 

for a trial court to rule on fees. This trial court showed one right 

way.

As an alternate basis for their request of their fee request, 

the Kartons fault the trial court for failing to impose monetary 

discovery sanctions against all defendants, including Wesco. We 

review a trial court’s decision to impose terminating sanctions for 

abuse of discretion, drawing all reasonable inferences in support 

of the court’s ruling. (Padron v. Watchtower Bible & Tract 

Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1260.)

The Kartons point to a May 2017 report from a discovery 

referee as the basis for their sanction request. With our italics, 

this report recommended the possibility of future sanctions “in 

the event of any further non-compliance . . . .” There is, however, 

no later finding of further non-compliance.

On appeal, the Kartons have not cited record evidence to 

show they moved for discovery sanctions between this May 2017 

report and the November 2017 trial. The trial court thus was 
19

justified in concluding that pretrial discovery disputes were stale 

and that posttrial motions on the topic were tardy. We imply this 

determination in support of the order and do not upset it.

In support of their sanctions argument, the Kartons cite 

the inapposite cases of Doppes and London.

Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 

is a memorable case about an expensive luxury car that smelled 

bad. A car buyer sued Bentley about a persistent interior odor 

that Bentley, despite many efforts, could not eliminate. In 

pretrial litigation, Bentley claimed to be unaware of an odor 

problem with this model. Then it came out Bentley knew 

perfectly well a wax on this model routinely created this odor 

problem. Bentley even had given its dealers an “Odour 

Reduction” procedure to combat the recurrent smell problem. 

The extent of Bentley’s discovery abuse did not emerge until trial, 

at which point the car buyer renewed its motion for discovery 

sanctions. (Id. at pp. 971–986, 993–994.) The motion in Doppes

was timely. The motion here was not.

London v. Dri-Honing Corp. (2004) 117 Cal.App.4th 999, 

1008–1009 stressed the importance of timeliness for motions for 

monetary sanctions. The Kartons’ motion was untimely.

The trial court thus correctly denied the Kartons’ sanctions 

motion as untimely.

Additionally, the Kartons seek to offer an alternative basis 

for their attorney fee request, which is a cost-of-proof theory. 

The Kartons correctly acknowledge they are not entitled to 

duplicative fees. Their alternative recovery theory, however, 

likewise requires a finding the requested fees are reasonable. 

(Code Civ. Proc., § 2033.420, subd. (a) [allowing “reasonable 

expenses incurred in making that proof, including reasonable 
20

attorney’s fees”].) The trial court properly concluded $90,000 was 

a reasonable attorney fee and more would not be allowed. That 

conclusion applies here as well. 

The Kartons criticize the trial court’s decision to confine 

liability for attorney fees to Ari as an entity and not to extend the 

obligation individually to Messika, Guttman, and Toledano. 

This decision turned on an interpretation on the amended 

judgment, which we have examined. The court’s statement of

decision ruled Messika, Guttman, and Toledano were not alter 

egos of Ari. The trial court’s interpretation of the amended 

judgment is reasonable. We accept it.

In conclusion, it was not an abuse of discretion for the trial 

court to limit the attorney fee award in this case to $90,000.

III

Separate from the size of the fee award is the question who 

must pay it. On this issue the Kartons are right: the trial court 

should have extended liability for attorney fees to Ari’s surety, 

which is Wesco. The trial court incorrectly reasoned no statute or 

contract provided for fees against Wesco. The Kartons properly 

disagree, for their attorney fees are recoverable as costs under 

section 1029.8 of the Code of Civil Procedure. We reverse this 

aspect of the court’s order. Wesco is liable for the $90,000 fee as 

a cost of litigation.

As Wesco concedes, we independently review this question 

of law. (McKinnon v. Otis Elevator Co. (2007) 149 Cal.App.4th 

1125, 1129.)

The facts about this surety situation are undisputed. 

Sections 7071.5 and 7071.6 of the Business and Professions Code 

required contractors like Ari to procure a contractor’s bond. 

Before becoming involved with the Kartons, Ari complied with 
21

this law by buying a $12,500 surety bond from Wesco. (At that 

time, the statute required the bond to be for $12,500; later the 

Legislature increased this sum.) When the Kartons sued Ari, 

their complaint stated a claim against Wesco and its $12,500 

surety bond. Rather than interplead these funds, Wesco tendered 

its defense to Ari’s lawyers. In other words, Wesco decided to 

fight the Kartons rather than pay them. After the court entered 

judgment against Ari and the Kartons filed their bill of costs, 

Wesco sent the Kartons a check for $38,768.49, which was the 

sum of the $12,500, of certain litigation costs, and of 

postjudgment interest. This sum excluded attorney fees, which 

the Kartons said Wesco had to pay as a litigation cost. The 

Kartons acknowledged Wesco’s $38,768.49 payment but reserved 

their claim that the proper cost figure should include attorney 

fees. The trial court ruled for Wesco and exempted it from 

liability for the $90,000 attorney fee award.

This trial court ruling was error that ran contrary to 

precedent, which supports the Kartons. The crucial concept is 

that, by statute, the surety’s liability is commensurate with its 

principal, and here an underlying statute made Ari liable to the 

Kartons for reasonable attorney fees.

The main case is Pierce v. Western Surety Co. (2012) 207 

Cal.App.4th 83 (Pierce). Pierce dealt with surety bonds, albeit for 

car dealerships and not construction contractors. (Id. at p. 86.) 

Pierce surveyed general surety law, including cases involving 

construction bonds. (See id. at p. 89 [reviewing Boliver v. Surety 

Co. (1977) 72 Cal.App.3d Supp. 22 and T&R Painting 

Construction, Inc. v. St. Paul Fire & Marine Ins. Co. (1994) 23 

Cal.App.4th 738].) Pierce held that the principal’s conduct 

violated the Consumers Legal Remedies Act (Civ. Code, § 1750 et 
22

seq.) and this Act provided for attorney fees for prevailing 

plaintiffs. (Pierce, at p. 92 [referring to Civ. Code, § 1780, subd. 

(e)].) The surety’s obligation to pay costs under Code of Civil 

Procedure section 1032 was based on its status as a litigant and 

was not for breach of the condition of the bond. (Pierce, at p. 92.) 

The Pierce decision affirmed the award of attorney fees as an 

item of costs that was not limited by a statutory cap on damages. 

(Id. at p. 93.)

The Pierce decision mandates victory for the Kartons 

against Wesco, as follows. A prevailing party is entitled to costs 

incurred in pursuing the claim. (Code Civ. Proc., § 1032, subd. 

(b).) When authorized by statute, attorney fees are allowable as 

costs. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Under Civil Code 

section 2808, a surety’s liability is commensurate with that of the 

principal within the express terms of the bond and of pertinent 

statutes. If the principal would have been liable for attorney fees 

based on conduct secured by the bond, the surety also is liable for 

the attorney fees as a cost item. (Pierce, supra, 207 Cal.App.4th 

at pp. 92–93.)

Wesco was a surety, as it readily agrees. Wesco’s liability 

therefore is commensurate with that of its principal Ari. By 

operation of section 1029.8 of the Code of Civil Procedure, Ari is 

liable to the Kartons for reasonable attorney fees of $90,000, as 

we have described. Under Pierce, then, so too is Wesco liable to 

the Kartons for reasonable attorney fees of $90,000 as a cost 

item.

Wesco does not attack Pierce as wrongly decided. Rather, 

with a single paragraph, Wesco attempts to distinguish Pierce. 

Wesco writes, “Pierce is distinguishable because in that case 

there was an underlying statute (the Song-Beverly Consumer 
23

Warranty Act) which had an attorney fee provision applicable to 

the terms of the bond. That is not the case here.”

Wesco’s effort to distinguish Pierce founders because there 

indeed is an underlying statute with an attorney fee provision: 

section 1029.8 of the Code of Civil Procedure. The Kartons rely 

on this statute in their opening papers. Wesco ignores this 

statute when attempting to distinguish Pierce, and thereby 

effectively concedes the point: Wesco is liable for the Kartons’ 

$90,000 in attorney fees as a cost item, according to the analysis 

in Pierce.

Wesco protests its liability cannot exceed its bond amount 

and thus is limited to $12,500, which it already had paid. Wesco 

says this follows under the so-called “Hartford rule.” (See Harris 

v. Northwestern Nat. Ins. Co. (1992) 6 Cal.App.4th 1061, 1067–

1068 (Harris) [citing Hartford Accident and Indemnity Co. v. 

I.A.C. (1932) 216 Cal. 40, 50, which in turn cites Hartford Fire 

Ins. Co. v. Casey (Mo.Ct.App. 1917) 191 S.W. 1072, 1076].) 

According to the precedent Wesco itself cites, however, the 

Hartford rule is consistent with Wesco’s obligation to pay costs 

that are not limited by the amount of its bond. (Harris, at p. 

1068.) The Kartons’ attorney fee qualifies as a cost Wesco is 

responsible to pay as a cost of its litigation. (Pierce, supra, 207 

Cal.App.4th at pp. 92–93.)

The Supreme Court quoted Harris approvingly and in a 

pertinent way. (See Pilimai v. Farmers Ins. Exchange Co. (2006) 

39 Cal.4th 133, 144–145 [“ ‘As a losing party litigant, appellant is 

properly subjected to costs in addition to the amount of the 

bond.’ (Harris, supra, 6 Cal.App.4th at pp. 1065–1066.)”].)

Wesco’s actions belie its argument. Wesco says it cannot be 

liable for more than the $12,500 sum of its bond. Yet it 
24

voluntarily wrote the Kartons a check for $38,768.49, which was 

the sum of the $12,500, plus postjudgment interest, and plus 

costs. When a surety decides to fight a lawsuit, it can make itself 

liable for the costs of that litigation in excess of the face value of 

its bond, as Wesco’s own actions demonstrate.

Wesco protests that it violates public policy to make it 

liable for attorney fees. Wesco says public policy favors low 

insurance premiums, and that to increase its liability would 

mean higher insurance rates. 

This argument runs afoul of case law, which explains that, 

to avoid the costs and risks of litigation, Wesco could have 

negotiated settlement of its own liability or used interpleader 

procedures to deposit the amount of its bond in court. (Harris, 

supra, 6 Cal.App.4th at p. 1066.) Instead, Wesco elected to 

gamble that it and Ari could avoid liability altogether on the 

merits. “Having lost that gamble, [Wesco] is not in a position to 

complain about liability for court costs . . . .” (Ibid.)

Wesco has not answered this argument. In their opening 

papers, the Kartons quote this portion of Harris concerning 

Wesco’s interpleader option. Wesco does not respond; the word 

“interpleader” does not appear in Wesco’s brief. We infer Wesco 

has not answered because it cannot. This dispatches its public 

policy argument. If Wesco wished to avoid the open-ended costs 

of litigation, it could have done what it avoided doing here: 

interplead its $12,500 principal and minimize its liability for 

litigation costs.

After receiving our tentative ruling, Wesco attempted 

during oral argument to launch a new argument about 

interpleader. Wesco’s failure to brief its interpleader argument 
25

forfeited it. (Sunset Drive Corp. v. City of Redlands (1999) 73 

Cal.App.4th 215, 226.)

Wesco argues the trial court lacked jurisdiction to 

determine whether Ari was licensed because the Contractors 

State License Board has exclusive jurisdiction over this question. 

Wesco neglects the statute at issue, which vests jurisdiction “in 

any court of competent jurisdiction . . . .” (Bus. & Prof. Code, 

§ 7031, subd. (b), italics added.) This statutory grant of 

jurisdiction refutes Wesco’s argument.

DISPOSITION

We reverse the trial court’s ruling exempting Wesco from 

liability for the $90,000 attorney fee award. We otherwise affirm 

the order and we remand the case for further proceedings. Ari, 

Guttman, Toledano, and Messika are to recover their costs on 

appeal from the Kartons. The Kartons and Wesco shall bear 

their own costs.

WILEY, J.

We concur: 

BIGELOW, P. J. 

GRIMES, J.