Filed 10/28/21 Rossdale CLE v. Walton CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

ROSSDALE CLE, INC., d/b/a THE 

ROSSDALE GROUP, LLC,

Plaintiff and Respondent,

v.

TIMOTHY WALTON,

Defendant and Appellant.

 H046441

 (Santa Cruz County

 Super. Ct. No. CV179135)

Plaintiff Rossdale CLE, Inc. sued defendant Timothy Walton for malicious 

prosecution after Rossdale was granted judgment on the pleadings in an underlying case 

brought by Walton about unsolicited e-mail marketing. After a court trial, the court 

entered judgment in favor of Rossdale on its malicious prosecution cause of action and 

ordered Walton to pay over $230,000 in damages. On appeal, Walton argues the trial

court erred in finding that Rossdale satisfied the probable cause and malice elements of 

the malicious prosecution cause of action. He also questions Rossdale’s corporate 

capacity to sue; challenges the damages award; and belatedly attacks the trial court’s 

denial of his anti-SLAPP motion. For the reasons stated here, we will affirm the 

judgment.

I. TRIAL COURT PROCEEDINGS

Our factual summary is based on documentary evidence and testimony from the 

malicious prosecution court trial, supplemented with information from the trial court 

dockets for both the underlying lawsuit and the malicious prosecution action.
2

A. THE UNDERLYING LAWSUIT

Walton, an attorney representing himself in the trial court and on appeal, wrote to

the CLE Director of the “Rossdale Group, LLC” in September 2010 regarding allegedly 

unlawful e-mail advertising. The letter accused Rossdale of sending e-mail advertising to 

California residents and stated that as a California resident Walton was “protected from 

such marketing assaults by California’s Restrictions on Unsolicited Commercial E-mail 

Advertisers.” (Citing Bus. & Prof. Code, § 17529 et seq.) The letter continued that 

Rossdale could “remedy the problem of your unlawful advertising through a confession 

of judgment providing equitable relief pursuant to California Business and Professions 

Code § 17500.” The letter stated that “if we cannot agree on an appropriate remedy, my 

client is reserving his right to seek damages of $1,000 per email message, and any other 

relief allowed under the law.” (Citing Bus. & Prof. Code, § 17529.5; Civ. Code, § 1770.) 

Rossdale refused to settle, and Walton filed suit in late 2010. The original 

complaint alleged that Rossdale sent unsolicited commercial e-mail to Walton, and it 

contained four causes of action: violation of Business and Professions Code section 

17529.2; violation of Civil Code section 1783; invasion of privacy; and a request for 

declaratory relief. Walton did not disclose the e-mail address at which he had received 

messages from Rossdale until a year after he filed suit, when the court entered a 

stipulated protective order to keep Walton’s e-mail address confidential. Walton also 

produced in discovery copies of the e-mail he received from Rossdale. The “from” line 

of that e-mail lists the following: “ ‘CLE Director’

<Notifications@TheRossdaleGroup.com>.” 

The operative complaint in the underlying action was Walton’s second amended 

complaint, which alleged a single cause of action for a violation of Business and 

Professions Code section 17529.5. (Walton refers in his briefing to a third amended 

complaint, but does not cite the record and it does not appear in the docket for the 

underlying case.) The second amended complaint alleged Rossdale had sent commercial 
3

e-mail to Walton that “contained header information that included the name ‘CLE 

Director’ in the From line, which was not the name of the company sending or 

advertising in the email.” It further alleged that the e-mail “contained header information 

that purported to come from an email address, ‘Notifications@TheRossdaleGroup.com,’ 

which was not the actual address used to send the email.” Rossdale moved for judgment 

on the pleadings, which the trial court granted in May 2012. 

B. THE MALICIOUS PROSECUTION ACTION

Rossdale sued Walton for malicious prosecution in 2014. Walton moved to strike 

the complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16), which the trial 

court denied after a hearing. Walton filed two notices of appeal challenging that order 

(case Nos. H041625 and H041750), but both appeals were dismissed for nonpayment of

the statutory filing fee. Walton then filed what he styled a “motion to dismiss” the action 

in the trial court, arguing Rossdale had neither standing nor jurisdiction to maintain the 

action because the named plaintiff was a fictitious business name and the corporation to 

which that name was registered had dissolved. The trial court granted the motion, and 

Rossdale appealed. A different panel of this court reversed the judgment of dismissal, 

reasoning that any argument about corporate dissolution did not “raise matters of 

jurisdiction or standing.” (The Rossdale Group, LLC v. Walton (2017) 

12 Cal.App.5th 936, 939, 945 (Rossdale I).)

Walton filed an amended answer on remand, asserting a plea of abatement as an 

affirmative defense. The amended answer alleged that Rossdale’s corporation had been 

dissolved and that it therefore lacked capacity to maintain the lawsuit. Rossdale later 

moved to modify the style and caption of the case to change the named plaintiff to 

Rossdale CLE, Inc., d/b/a The Rossdale Group, LLC. The motion was supported by a

declaration from Susan Lunden. Lunden declared that she was the principal of a Florida 

corporation, Miami Legal Resources LLC, which was originally the registered owner of 

the fictitious business name The Rossdale Group, LLC. She declared that in 2013 she 
4

converted her Florida corporation to a Delaware corporation, Rossdale CLE, Inc. The 

Florida corporation transferred all assets—including the malicious prosecution lawsuit—

to the Delaware corporation. Attached to the declaration were board minutes from the 

Florida corporation approving the transfer of assets, and a business purchase agreement. 

Walton opposed the motion, questioning the veracity of the documents attached to 

Lunden’s declaration. The trial court granted the motion.1

The case proceeded to a one-day court trial. Lunden testified that the domain 

name TheRossdaleGroup.com was registered to her. She stated that someone who runs a 

“WHOIS function”2on the internet for that domain name would be directed to Lunden. 

Regarding corporate status, Lunden testified that the transfer from Miami Legal 

Resources, LLC to Rossdale CLE, Inc. “occurred in 2013, completed in 2014.” She 

claimed she learned from the State Bar of California that Walton had been admonished 

for “using that e-mail address that the California bar told [him] to discontinue using.” 

Walton did not object to that testimony. Lunden testified that she prepared a declaration

(admitted into evidence with other supporting evidence collectively as exhibit No. 54)

that accurately stated the total cost in attorney fees Rossdale spent on the underlying 

litigation was $239,282.80. 

Walton also testified. He stated his original demand letter raised “claims relating 

to falsity and deception,” but acknowledged that those claims were “not specifically laid 

out in” the demand letter. He admitted on cross-examination that Rossdale’s domain 

name was in the e-mail sender address and that it was traceable. He answered, “Correct,” 

1

Despite the trial court having granted the motion, the case arrived at this court 

with the original caption. We corrected the caption on our own motion to reflect the trial 

court’s decision.

2

“WHOIS is a public[ly] available online database through which users can access 

information regarding domains, including the registrant’s name, address, phone number, 

and e-mail address.” (Gordon v. Virtumundo, Inc. (9th Cir. 2009) 575 F.3d 1040, 1064, 

fn. 22 (Gordon).)
5

when asked: “And you had no trouble figuring out who to send the letter to -- your 

demand letter to when you read my client’s e-mail, correct?”

Walton called as a witness Rossdale’s former counsel, who testified that he 

withdrew as counsel for Rossdale because he believed Rossdale’s corporate status had 

dissolved. Rossdale then called Lunden as a rebuttal witness, who testified that the 

former counsel had repeatedly missed deadlines and that “he came up with this [corporate 

capacity] story to withdraw, and then he kept the money.”

The trial court orally “grant[ed] relief to [Rossdale] in the amount of 

$239,282.80.” Walton did not request a statement of decision from the trial court. (Code 

Civ. Proc., § 632.) Judgment was entered in Rossdale’s favor, and this timely appeal 

followed.

II. DISCUSSION

Where, as here, a party fails to timely request a statement of decision from the trial 

court, “all intendments favor the ruling of the trial court and an appellate court must 

assume the trial court made whatever findings are necessary to sustain the judgment, as 

long as those findings are supported by substantial evidence.” (Wallis v. PHL Associates, 

Inc. (2013) 220 Cal.App.4th 814, 825 (Wallis).) 

A. ANTI-SLAPP MOTION

Walton attempts to challenge the trial court’s denial of his anti-SLAPP motion. 

An order denying an anti-SLAPP special motion to strike is appealable. (Code Civ. 

Proc., § 904.1, subd. (a)(13).) Though Walton initially timely appealed from that order, 

those appeals were dismissed as abandoned because he did not pay the filing fee. (See 

case Nos. H041625 and H041750.) Walton’s renewed attempt to challenge the order in 

this appeal (which was filed four years after the trial court decided the anti-SLAPP 

motion) is therefore untimely. (Reyes v. Kruger (2020) 55 Cal.App.5th 58, 68.) 
6

B. ROSSDALE’S CAPACITY TO SUE

Walton contends the “purported plaintiff lacked legal capacity.” (Capitalization 

and bold omitted.) We construe this as an argument that the trial court erred by granting 

Rossdale’s request to amend the named plaintiff to the Delaware corporation, Rossdale 

CLE, Inc., d/b/a The Rossdale Group, LLC. 

The Rossdale I court reversed the trial court’s judgment of dismissal, finding that 

the capacity issue Walton raised did not implicate standing or jurisdiction. (Rossdale I, 

supra, 12 Cal.App.5th at p. 944.) In doing so, the court explained that while suspension 

of corporate powers results in a lack of capacity to sue, incapacity is merely a legal 

disability that can be cured while a case is pending. (Id. at p. 945.) The court also 

confirmed that a party may sue or be sued by its fictitious business name. (Id. at pp. 945–

946, citing Emery v. Kipp (1908) 154 Cal. 83, 86 [“[A] person may adopt any name in 

which to prosecute business, and may sue or be sued in such a name.”].) Walton is 

correct that Rossdale I did not decide the capacity issue, instead leaving that issue open to 

resolution by the trial court on remand. Because the trial court on remand resolved 

disputed evidence when granting Rossdale’s motion to change the caption, we review its 

decision for substantial evidence. (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 

1543–1544.)

In granting Rossdale’s motion to change the caption of its malicious prosecution 

action, the trial court implicitly made the following findings. The Rossdale Group, LLC 

was originally the fictitious business name of the Florida corporation Miami Legal 

Resources, LLC when Walton sued The Rossdale Group, LLC. The Florida corporation 

later transferred its assets (including the lawsuit) during the pendency of the litigation to a 

Delaware corporation, Rossdale CLE, Inc. The documentary evidence Rossdale 

submitted with its motion supports those findings, and by granting the motion the trial 

court credited them over Walton’s argument that Rossdale’s documentary evidence was

not genuine. Substantial evidence therefore supports the trial court’s decision. 
7

Walton arguably forfeited the capacity issue on appeal by not supporting his claim 

with reasoned argument and citation to relevant authority, other than Rossdale I. (Tellez 

v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066.) His appellate argument 

also disregards our standard of review and attempts to revisit factual issues resolved by 

the trial court. He argues “Rossdale has not demonstrated that its timeline of events is 

accurate nor that the change in legal capacity occurred as it has claimed.” But in 

allowing the caption change, the trial court credited Rossdale’s timeline. And Walton 

makes no argument on appeal that discredits Rossdale’s evidence as a matter of law. He 

cites other evidence that he says calls into question Rossdale’s timeline, but we will not 

reverse a finding supported by substantial evidence merely because other evidence would 

have supported a different conclusion. (Heard v. Lockheed Missiles & Space Co. (1996) 

44 Cal.App.4th 1735, 1747 (Heard) [“All factual matters must be viewed in favor of the 

prevailing party and in support of the judgment. All conflicts in the evidence must be 

resolved in favor of the judgment.”].) We also observe that much of the evidence Walton

cites is consistent with Rossdale’s timeline of events. For example, he notes that Miami 

Legal Resources, LLC dissolved, but fails to acknowledge the record he cites shows a 

dissolution date after transfer of the Florida corporation’s assets to the Delaware 

corporation. 

Walton raises new arguments in his reply, for example citing testimony from 

Rossdale’s prior counsel that he withdrew from the malicious prosecution action because 

he believed there was no valid corporation. Those arguments are forfeited for not having 

been raised in his opening brief. (California Building Industry Assn. v. State Water 

Resources Control Bd. (2018) 4 Cal.5th 1032, 1050.) And even if the contentions had 

been preserved, Lunden testified that her former counsel made up an excuse to avoid 

taking responsibility for having missed several deadlines. In the absence of a statement 

of decision, we assume the trial court credited Lunden’s testimony over that of her former

counsel. (Wallis, supra, 220 Cal.App.4th at p. 825.)
8

C. THE MALICIOUS PROSECUTION FINDINGS

To prevail on its malicious prosecution cause of action, Rossdale had to show that: 

the underlying action was brought by Walton and terminated in Rossdale’s favor; Walton 

had no probable cause to bring the underlying action; and Walton initiated the underlying 

action with malice. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1539.) Walton 

concedes the first element was satisfied, but challenges the trial court’s findings as to the 

other two.

1. There Was No Probable Cause for the Underlying Lawsuit

Walton argues the trial court erred in finding he had no probable cause to bring the 

underlying action. “[P]robable cause to bring an action does not depend upon it being 

meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in 

apparent merit that no reasonable attorney would have thought the claim tenable.” 

(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824.) As probable cause to 

file suit presents a question of law (Sheldon Appel Co. v. Albert & Oliker (1989) 

47 Cal.3d 863, 875 (Sheldon)), we review the trial court’s decision de novo. 

The Supreme Court discussed the interaction between state and federal law as 

applied to regulating unsolicited commercial e-mail in Kleffman v. Vonage Holdings 

Corp. (2010) 49 Cal.4th 334 (Kleffman). Kleffman sued multiple interconnected 

companies (collectively, Vonage) alleging Vonage had sent him unsolicited e-mail

advertisements from several domain names that did not mention the name Vonage, but 

that could all be traced to a single physical address where Vonage’s marketing agent was 

located. (Id. at p. 338.) He further alleged that the foregoing practice falsified and 

misrepresented the true sender’s identity. (Id. at pp. 338–339.) Kleffman argued the 

practice violated Business & Professions Code section 17529.5, subdivision (a)(2)

(hereafter section 17529.5(a)(2)), which makes it unlawful to send an e-mail

advertisement that “contains or is accompanied by falsified, misrepresented, or forged 

header information.” Vonage removed the case to federal district court, which dismissed 
9

the case for failure to state a claim. While on appeal to the Ninth Circuit, that court 

certified the following question to the California Supreme Court: “ ‘Does sending 

unsolicited commercial e-mail advertisements from multiple domain names for the 

purpose of bypassing spam filters constitute falsified, misrepresented, or forged header 

information under [section] 17529.5(a)(2)?’ ” (Kleffman, at p. 339.) 

The Supreme Court noted it was undisputed that the “domain names used to send 

Vonage’s e-mail advertisements, and reflected in the header information of these e-mail 

advertisements, actually exist and are technically accurate, literally correct, and fully 

traceable to Vonage’s marketing agents,” such that the messages did not contain falsified 

or forged header information. (Kleffman, supra, 49 Cal.4th at p. 340.) The only question

remaining for the court was whether the messages contained misrepresented header 

information. (Ibid.) Rejecting Kleffman’s argument that “misrepresented” under 

section 17529.5(a)(2) meant not only false representations of facts but also practices that 

were likely to mislead consumers, the Kleffman court concluded that a “single e-mail 

with an accurate and traceable domain name neither contains nor is accompanied by 

‘misrepresented ... header information’ within the meaning of section 17529.5(a)(2) 

merely because its domain name is, according to Kleffman, ‘random,’ ‘varied,’ ‘garbled,’

and ‘nonsensical’ when viewed in conjunction with domain names used in other e-mails.” 

(Kleffman, at pp. 341, 347.) 

The Kleffman court explained that its construction of the statute avoided any 

preemption issues with the federal CAN-SPAM Act. That statute “ ‘supersedes any 

statute, regulation, or rule of a State or political subdivision of a State that expressly 

regulates the use of electronic mail to send commercial messages, except to the extent 

that any such statute, regulation, or rule prohibits falsity or deception in any portion of a 

commercial electronic mail message or information attached thereto.’ (15 U.S.C. 

§ 7707(b)(1).)” (Kleffman, supra, 49 Cal.4th at p. 346.) The Ninth Circuit had 

concluded in a different case that construing a Washington state law to require “an e-
10

mail’s ‘from’ field to include the name of the person or entity who actually sent the email or who hired the sender [would] constitute[] ‘a content or labeling requirement’ that 

‘is clearly subject to preemption.’ ” (Ibid., citing Gordon, supra, 575 F.3d at p. 1064.) 

The Kleffman court reasoned that “construing section 17529.5(a)(2) as requiring this kind 

of [header] information would contravene the rule that courts should, if reasonably 

possible, construe a statute ‘in a manner that avoids any doubt about its [constitutional] 

validity.’ ” (Kleffman, at p. 346.)

Kleffman has since been applied to a different factual scenario. In Balsam v. 

Trancos, Inc. (2012) 203 Cal.App.4th 1083 (Balsam), the appellate court affirmed the

trial court’s decision that a company violated section 17529.5(a)(2) by sending e-mail

messages where “the senders’ domain names in seven of the e-mails did not represent a 

real company and could not be readily traced back to Trancos, the owner of the domain 

names and true sender of the e-mails.” (Balsam, at p. 1096; italics omitted.) The court 

concluded that “header information in a commercial e-mail is falsified or misrepresented 

for purposes of section 17529.5(a)(2) when it uses a sender domain name that neither

identifies the actual sender on its face nor is readily traceable to the sender using a 

publicly available online database such as WHOIS.” (Balsam, at p. 1101.) 

The Supreme Court in Kleffman construed section 17529.5(a)(2) in a manner to 

avoid total preemption by the federal CAN-SPAM Act. (Kleffman, supra, 49 Cal.4th at 

p. 346.) But Walton’s claim was arguably tenable only if the claim fit within Kleffman’s

interpretation of section 17529.5(a)(2) and was not preempted.3 

The decisions in Kleffman, decided before Walton filed the underlying case, and

Balsam, decided while the underlying case was pending, put Walton on notice that an email with an accurate and traceable domain name does not violate section 17529.5(a)(2). 

3

 Contrary to California Rules of Court, rule 8.1115, Walton cites a number of 

unpublished trial court decisions in his opening brief that he contends are relevant to 

preemption. We do not consider those non-citable materials.
11

(Kleffman, supra, 49 Cal.4th at p. 347; Balsam, supra, 203 Cal.App.4th at p. 1101.) The 

undisputed facts show that Rossdale caused e-mail messages to be sent to an e-mail

address controlled by Walton. The messages’ “from” line was as follows: “ ‘CLE 

Director’ <Notifications@TheRossdaleGroup.com>.” By clearly identifying itself in the 

“from” line of the e-mail messages with TheRossdaleGroup.com domain name, Rossdale 

accurately represented that it was the company causing the e-mail to be sent to Walton

and offering a service. Lunden testified that the Rossdale domain name was both 

registered and traceable to Rossdale via a WHOIS search. Walton offered no evidence to 

rebut that testimony. To the contrary, Walton admitted on cross-examination that 

Rossdale’s domain name was accurate and traceable, and that he had no trouble 

determining to whom to send his demand letter. Because the header information to the email messages provided an accurate and traceable domain name for Rossdale, the 

messages did not violate section 17529.5(a)(2) and no reasonable attorney would have 

thought that a section 17529.5(a)(2) claim was tenable. 

Walton’s arguments to the contrary are unpersuasive. He contends that “[u]sing a 

generic From Name such as ‘CLE Director’ is a violation of California state law where 

the sender cannot be identified.” But that is not what Rossdale did. Rossdale could be 

readily identified in its e-mail because the messages’ “from” line included an e-mail

address showing Rossdale in the domain name: 

<Notifications@TheRossdaleGroup.com>.

Walton also contends that Rossdale was not the actual sender of the e-mail

messages because it used third-party companies to send the communications. That 

Rossdale used a third party to send the e-mail messages did nothing to change the facts

that Rossdale was the company offering continuing legal education services and that the 

messages were readily traceable to Rossdale. As the Supreme Court noted in Kleffman, 

construing section 17529.5(a)(2) to require the “from” field to include the name of the 

person or entity who actually sent the e-mail would create a risk of preemption and 
12

thereby “contravene the rule that courts should, if reasonably possible, construe a statute 

‘in a manner that avoids any doubt about its [constitutional] validity.’ ” (Kleffman, 

supra, 49 Cal.4th at p. 346.) 

Finally, Walton’s speculative argument that Rossdale breached its agreements 

with those third-party companies by sending commercial e-mail is both irrelevant to 

whether Walton stated an arguably tenable claim and derived from testimony that the trial 

court excluded after Rossdale’s relevance objection. 

2. Substantial Evidence Supports the Malice Finding

Walton contends the trial court erred by finding that he brought the underlying 

action with malice. “The ‘malice’ element of the malicious prosecution tort relates to the 

subjective intent or purpose with which the defendant acted in initiating the prior action.” 

(Sheldon, supra, 47 Cal.3d at p. 874.) Examples of cases brought with an improper 

purpose include “ ‘those in which (1) the person initiating them does not believe that his 

claim may be held valid; (2) the proceedings are begun primarily because of hostility or 

ill will; (3) the proceedings are initiated solely for the purpose of depriving the person 

against whom they are initiated of a beneficial use of his property; (4) the proceedings are 

initiated for the purpose of forcing a settlement which has no relation to the merits of the 

claim.’ ” (Albertson v. Raboff (1956) 46 Cal.2d 375, 383.) Whether a defendant acted 

with malice is a question of fact (Sheldon, at p. 874), which we review for substantial 

evidence. 

Walton’s initial demand letter accused Rossdale of sending “unlawful advertising” 

without specifying any aspect in the e-mail advertising that allegedly violated the law.

Though it did not immediately demand compensation, Walton’s letter stated he was 

“reserving his right to seek damages of $1,000 per email message, and any other relief 
13

allowed under the law.”4 It is undisputed that Walton did not disclose the e-mail address 

at which he received messages from Rossdale until over a year after he filed the 

underlying lawsuit. When Walton eventually produced the e-mail messages in discovery, 

he produced them in a format the trial court in the malicious prosecution case 

characterized as a seemingly “useless rendition of computer code.” Based on the 

foregoing, the trial court could reasonably conclude that Walton purposefully withheld 

his e-mail address in order to receive additional messages from Rossdale and increase the 

liquidated damages he could demand. The trial court could further conclude that Walton

abused the discovery process by producing e-mail messages in a format that hindered

resolution of the issues before the court. Substantial evidence therefore supports the

conclusion that Walton was motivated by an improper and malicious purpose when filing

and prosecuting the underlying lawsuit.

Walton repeats on appeal innocent explanations for his behavior, arguing that he 

withheld his e-mail address out of legitimate privacy concerns and that the format of the 

e-mail messages was useful to expert witnesses because it displayed additional header 

information. By entering judgment for Rossdale, the trial court implicitly rejected those

justifications, and on appeal any conflicts in the evidence must be resolved in favor of the 

judgment. (Heard, supra, 44 Cal.App.4th at p. 1747.) 

As the foregoing evidence adequately supports the judgment, we do not reach the 

parties’ arguments about whether other evidence also supports the malice finding. 

D. THE DAMAGES AWARD

Walton argues the trial court erred by awarding Rossdale $239,282.80 as damages 

for malicious prosecution. The “measure of compensatory damages for the malicious 

4

 The prevailing party in an action under Business and Professions Code 

section 17529.5 is entitled to, among other things, liquidated damages of “one thousand 

dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in 

violation of this section, up to one million dollars ($1,000,000) per incident.” (Bus. & 

Prof. Code, § 17529.5, subd. (b)(1)(B)(ii).) 
14

prosecution of a civil action includes attorney fees and court costs for defending the prior 

action and compensation for emotional distress, mental suffering and impairment to 

reputation proximately caused by the initiation and prosecution of the action.” (Bertero 

v. National General Corp. (1974) 13 Cal.3d 43, 59 (Bertero).) As the award here was 

one of compensatory damages (consisting of out-of-pocket expenses spent on attorneys)

rather than an award of attorney fees, the abuse of discretion standard of review Walton 

proposes does not apply. Instead, we review the compensatory damages award for 

substantial evidence. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 

1078.)

Exhibit No. 54 was admitted into evidence to show Rossdale’s expenses from the 

underlying action. It included a declaration from Lunden stating Rossdale spent

$239,282.80 on attorneys in the underlying action; a declaration by an attorney who had 

worked for Rossdale; annotated time entries from that attorney; and copies of checks 

reflecting amounts Rossdale paid other attorneys for their legal work on the underlying 

action. Lunden testified at trial to the accuracy of the figures. Walton did not object to 

Lunden’s testimony, did not file written objections to the documentary evidence, and did 

not move for a new trial on the basis of excessive damages. Walton’s sole objection was 

that the “total amount is not a calculation of what is reasonable and necessary under the 

law.” Rossdale’s documentary evidence provides substantial evidence to support the 

compensatory damages award, and the recovery was not “so grossly disproportionate as 

to raise a presumption that it is the result of passion or prejudice.” (Bertero, supra, 

13 Cal.3d at p. 64.)

Walton argues on appeal that the trial court erred by not assessing the 

reasonableness and necessity of the fees claimed, and by awarding fees for work 

completed by attorneys who were neither authorized to practice law in California nor 

admitted pro hac vice. We find those arguments forfeited for two reasons. First, Walton 

did not move for a new trial. “ ‘The point that damages are excessive cannot be raised 
15

for the first time on appeal, but must be presented to the lower court on the motion for 

new trial.’ ” (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918.) Second, as 

to the argument about fees paid to attorneys not admitted to practice law in California, 

Walton did not object on that basis in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 

1293 [“The purpose of this [forfeiture] rule is to encourage parties to bring errors to the 

attention of the trial court, so that they may be corrected.”].) As a result, the record is not 

sufficiently developed to resolve the issue for the first time on appeal, and we see no

undisputed evidence in the record that would compel a finding in Walton’s favor as a 

matter of law. 

III. DISPOSITION

The judgment is affirmed. Prevailing party Rossdale is entitled to recover its costs 

on appeal by operation of California Rules of Court, rule 8.278(a)(1).
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Danner, J. 

H046441 - Rossdale CLE, Inc., d/b/a The Rossdale Group, LLC v. Walton