RICHMAN, J.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG17847475
RICHMAN, J.
This is the third appeal in this case, which began in January 2017 when Appellant Direct Action Everywhere SF Bay Area (Direct Action), an activist organization, sued respondent Diestel Turkey Ranch (Diestel), alleging it violated California's False Advertising Law and Unfair Competition Law. Diestel cross-complained against Direct Action and three individuals, including Wayne Hsiung, one of its founders, alleging trespass, conversion, and unlawful competition. An eight-day court trial was held before Alameda County Superior Court Judge Michael Markman, who, before he was able to prepare a statement of decision, left on indefinite medical leave. The case was reassigned to the Honorable Julia Spain, who offered the parties a choice of a mistrial or having her decide the case based on the transcripts, the evidence, and the trial briefs. They chose the latter alternative and a stipulation was signed agreeing to that. Judge Spain thereafter issued a 30-page, single-spaced statement of decision finding in favor of Diestel on both the complaint and cross-complaint. Direct Action appealed that decision, contending that Judge Spain erred in: (1) holding Direct Action lacked standing for its false advertising claims; and (2) deciding the cross-complaint. We rejected the contentions and affirmed. (Direct Action Everywhere SF Bay Area v. Diestel Turkey Ranch (Feb. 27, 2023, A162017) [nonpub. opn.] (Direct Action I).)
The second appeal arose from Judge Spain's four rulings on competing cost memoranda and motions for attorney fees. Direct Action and Hsiung appealed from the orders and filed separate briefs, and on March 1, 2023, we filed our opinion affirming the orders. (Direct Action Everywhere SF Bay Area v. Diestel Turkey Ranch (March 1, 2023, A162702) [nonpub. opn.] (Direct Action II).)
Following its success on the appeals, Diestel moved for attorney fees incurred in connection with the appeals. Direct Action and Hsiung filed opposition. Judge Spain again ruled for Diestel, which leads to this third appeal, separate appeals by Direct Action and Hsiung in which two separate parties, represented by two separate law firms, make two separate arguments-Direct Action that Judge Spain erred in not apportioning the fees, Hsiung that the judgment supporting the fees against him is void. We reject the arguments, and we affirm.
BACKGROUND
Much of the background is taken from our earlier opinions. We also take judicial notice on our own motion of all the proceedings in the trial and appellate courts. (Evid. Code, §§ 452, subd. (d), 459.)
The Parties
Appellant Direct Action is an unincorporated association of animal activists, whose stated goal is to end all animal agriculture and meat consumption and the exploitation and killing of animals. It is the San Francisco chapter, one of many chapters funded through Friends of Direct Action Everywhere, a 501(c)(3) nonprofit corporation. Direct Action has no bank accounts, no assets, and no paid staff. All of its expenditures are paid by Friends of Direct Action Everywhere or by direct in-kind donations from volunteers.
Appellant Hsiung is an attorney and former visiting assistant professor of law and Searle Fellow at Northwestern School of Law and also the "cofounder of the grassroots animal rights network Direct Action . . . and formerly the lead organizer of the founding San Francisco Bay Area Chapter ...." "[He] resigned from all leadership roles in [Direct Action] on September 1, 2019, though [he] may remain involved in much of the work." (Hsiung v. Superior Court, A162445 [declaration of Hsiung in support of petition for writ of mandate].)
Diestel is a California corporation in the business of commercial turkey production.
The Proceedings Below The Lawsuit
On January 30, 2017, Direct Action filed a complaint against Diestel alleging two causes of action, styled as follows: "Violation of California Unfair Competition Law-Cal. Bus. &Prof. Code, § 17200, et seq." and "Violation of California False Advertising Law-Cal. Bus. &Prof. Code, § 17500, et seq."
Following multiple demurrers, the case came at issue on the third amended complaint, which maintained two causes of action: (1) for false advertising, in violation of False Advertising Law and Business and Professions Code section 17500; and (2) for breach of Business and Professions Code section 17200, based on alleged fraud and unfair and unlawful conduct by such false advertising and by violating three criminal animal cruelty statutes (Pen. Code, §§ 597, subd. (b), 597.1, subd. (a)(1), and former § 597f, subd. (a)).
The Cross-Complaint
On December 8, 2017, Diestel filed a cross-complaint naming as crossdefendants Direct Action and three individuals, Hsiung, Leslie Goldberg, and Michael Goldberg. The cross-complaint alleged claims for trespass, conversion, and unlawful competition. It also sought an injunction to prohibit the unlawful business practice of promoting trespass (a violation of Penal Code section 484) and conversion or burglary in open rescues from Diestel's farms and ranches (a violation of Penal Code section 484 and/or 459). The cross-complaint sought general damages, punitive damages, restitution, and attorney fees.
On February 8, 2018, represented by the Richman Law Group and Gretchen Elsner of Elsner Law and Policy, LLC, Direct Action filed an answer to the cross-complaint. Eighteen days later, the same attorneys filed an answer to the cross-complaint on behalf of Hsiung. On June 29, substitutions of attorneys were filed on behalf of Direct Action and Hsiung, substituting Sonya Mehta of Siegel, Yee, and Brunner for the Richman Law Group. From this point on, throughout trial, and for many months thereafter, plaintiff Direct Action and the only two cross-defendants, Direct Action and Hsiung, were represented by the same counsel.
According to the register of actions, by a request for dismissal filed February 15, 2018, cross-defendants Leslie Goldberg and Michael Goldberg were dismissed.
In September and November 2018, Code of Civil Procedure section 998 offers (998 offers) were made on the cross-complaint, which offers specifically mentioned Hsiung as one of the offerors.
The Trial
The case was assigned to Judge Markman, who on January 22, 2019, entered a trial setting order bifurcating the complaint from the crosscomplaint and setting an October 2019 trial date for the complaint and a January 2020 trial date for the cross-complaint. On October 11, a bench trial began before Judge Markman, which proceeded for eight days, ending on December 11. Despite the bifurcation order, the trial included evidence relevant to Diestel's cross-complaint. The parties filed written closing arguments, and on February 24, 2020, Judge Markman ordered the matter submitted.
At some point not apparent in the record, Judge Markman went on medical leave.
The Reassignment, the Stipulation, and the Decision
On March 16, the presiding judge of the Alameda Superior Court issued a notice of reassignment to Judge Spain. On April 3, Judge Spain ordered that a case management statement be filed no later than June 10, which order stated that" 'Any delay in the trial, caused by non-compliance with any order contained herein, shall be the subject of sanctions pursuant to [section] 177.5.' "
Then, on May 5, Judge Spain emailed the parties to inform them that it was probable that she would need to declare a mistrial unless the parties were able to stipulate to some other resolution. The email reads in pertinent part as follows:
"Dear Counsel, . . .[¶]....
"On March 16, this case was reassigned to me because Judge Markman in on an extended medical leave of absence. From review of the file, it appears you had a [three to four] day court trial in December and the matter was taken under submission for issuance of a decision on February 24. Due to his illness, Judge Markman was unable to render his decision. It also appears that witnesses were called at the trial and briefs were submitted. Since I did not hear the trial nor have the opportunity to hear and observe the witnesses, it is probable I will have to declare a mistrial in this case. Before I do so in light of the time, effort and expense that has already gone into this matter, I wanted to touch base with you to see if there were any stipulations you could agree upon which might obviate the need for a mistrial. For example, it appears the matter was recorded by a Certified Shorthand Reporter. Perhaps you could stipulate that I could read the record and all the briefs and render a decision based on that...."
On May 13, counsel for all parties signed a "Stipulation Re Submission of Plaintiff's Unfair Competition and False Advertising Claims on Record," including attorneys Gretchen Elsner and Sonya Mehta, two attorneys on behalf of two separate law firms who signed for "Plaintiff and CrossDefendants." Following numerous recitals, the Stipulation concludes as follows:
"WHEREAS, this matter was reassigned to Judge Julia Spain on March 16, 2020; and, "WHEREAS, the Parties have met and conferred and agreed that, in order to avoid the declaration of a mistrial, the written record of this matter, including the docket, Court's Orders, pre-trial filings, trial transcript, evidence admitted at trial and post-trial briefing shall be submitted to Judge Spain for issuance of a decision on Plaintiff's TAC.
"THEREFORE, the Parties stipulate that Judge Spain may, after review of the written record, including the pretrial briefs, complete trial transcripts, the evidence admitted by Judge Markman during the trial proceedings, post-trial briefs, and the docket in this action, issue a decision on Plaintiff's claims alleged in its TAC.
"IT IS SO STIPULATED."
On September 28, Judge Spain filed a 30-page, single-spaced proposed statement of decision and judgment that found for Diestel on both the complaint and the cross-complaint. The last two pages of the proposed statement of decision addressed the "cross-complaint," and began with these two paragraphs:
"Diestel's cross[-]complaint alleges cross-defendants [Direct Action] and Wayne Hsiung committed multiple acts of trespass onto its property between September and October 2015 and converted or stole two turkeys, which also is alleged to have constituted trespass to personal property. At trial, plaintiff's activists and Hsiung admitted visiting defendant's property at least nine times, illegally entering its barns six times and stealing six turkeys as part of what they deemed an 'open rescue.' As described in the plaintiff's Organizers Handbook, investigators such as Hsiung in this case, admit their actions and publish their full identities as acts of civil disobedience. As the leaders of civil disobedience over the decades have demonstrated, no one who practices civil disobedience can presume to avoid the consequences.
"The facts of Diestel's cross-complaint being undisputed, accordingly the court finds in favor of cross-complainant Diestel Turkey Ranch and against cross-defendants Direct Action Everywhere SF Bay Area and Wayne Hsiung as to the allegations of trespass and conversion of two turkeys. The court has found no record that the trial on the liability and damages of the cross-complaint was bifurcated and Diestel failed to present any evidence of damages at trial. Accordingly, the court awards nominal damages of $1 per 6 occasions of trespass and $1 per converted turkey for a total of $8 awarded to cross-complainant and against cross-defendants jointly and severally. Likewise no evidence or argument was presented on Diestel's claim for punitive damages and the court has found no record that it was bifurcated. It appears to have been abandoned." (Italics added.)
Judge Spain's proposed statement of decision stated at the top of the first page: "NOTICE: . . . Within 15 days after service of the proposed Statement of Decision, any party may serve and file objections."
On October 13, Direct Action, identifying itself as "Plaintiff Direct Action," filed objections to Judge Spain's proposed statement of decision. No objections were filed by Direct Action as cross-defendant. No objections were filed by Hsiung. And significant to an issue that would be involved in the first appeal, Direct Action did not respond to the italicized language in the proposed statement of decision, did not object that the decision on the crosscomplaint was erroneous or void-in short, did not in any way object to the proposed statement of decision to the extent it disposed of the cross-complaint.
On November 23, Judge Spain filed her "Statement of Decision and Final Judgment," which found for Diestel all the way.
The First Appeal
On January 21, 2021, a notice of appeal was filed on behalf of Direct Action. The notice did not mention Hsiung. This appeal led to our decision in Direct Action I.
Before describing that decision, we digress briefly to discuss the activity by Hsiung, which began on April 16 when Hsiung filed a substitution of counsel substituting himself for attorneys Elsner and Mehta. That same day-145 days after Judge Spain's November 23, 2020 decision-Hsiung filed a notice of appeal of that decision. (Hsiung v. Diestel Turkey Ranch (A162708).)
On April 19, Hsiung filed a petition for a writ of mandate, prohibition, certiorari, or other relief, a petition that made two arguments, which we quote: "1. Whether a judgment erroneously issued without a trial, notice of trial, or the presence of the defendant at trial is void"; and "2. Whether an erroneous judgment can be cured by service of a notice of entry, where such notice fails to include the judgment in its caption and cover page." By order of July 8 we denied Hsiung's petition. (Hsiung v. Superior Court (July 8, 2021, A162445).)
On July 20, Diestel moved to dismiss Hsiung's appeal. Hsiung filed opposition, and Diestel a reply. On September 14, we granted Diestel's motion in a two-page order that said among other things that "We are not persuaded by [Hsiung's] argument that the judgment is void...." And we added: "We are also unpersuaded by appellant's argument that the notice of entry was defective and therefore did not trigger the 60-day deadline. Appellant contends that the caption and cover pages of the notice of entry and file stamped judgment did not refer to the cross-complaint and that therefore he received neither constructive nor actual notice of the judgment on the cross claims. This contention is belied by appellant's filings in the trial court, including a December 9, 2020 memorandum of costs to recover costs incurred in defending the cross-complaint pursuant to Code of Civil Procedure section 998." (Hsiung v. Diestel Turkey Ranch (Sept. 14, 2021, A162708).)
On February 27, 2023, we filed our opinion rejecting Direct Action's arguments and affirming the judgment on both the complaint and crosscomplaint. (Direct Action I, supra, A162017, at pp. 2, 10-36.) Doing so, we held that not only did Direct Action do nothing to bring the claimed error to the attention of the court or seek relief from it, but that cross-defendants affirmatively sought relief based on that judgment. (See id. at pp. 31-34.) Thus, we held any claim of error was waived. Specifically, after citing to the leading appellate commentary (Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group, 2021) ¶¶ 8:249, 8:265, pp. 8-194, 8197-8-198), and several cases (Direct Action I, supra, A162017, at pp. 3132), we concluded as follows:
"In sum, a waiver will be implied if appellant failed to bring the error to the trial court's attention in an appropriate manner, e.g., by timely motion or objection. (Doers v. Golden Gate Bridge, Highway &Transp. Dist. (1979) 23 Cal.3d 180, 184-185[, abrogated on other grounds in Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 580-582 &fn. 4].) In fact-and on point here-it has been held that the failure to bring errors in a statement of decision to the attention of the trial court waives the right to assert on appeal any error in it. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)
"After Judge Spain decided the cross-complaint, Direct Action at no time informed Judge Spain it believed she had erred in making that decision. Direct Action had multiple opportunities to raise this issue, starting when it filed objections to the proposed statement of decision and judgment. And while it objected to the breadth of the permanent injunction issued in connection with the cross-complaint, nowhere did it object to the decision on the ground that Judge Spain could not decide it....
"Moreover, it is evident from Direct Action's briefing on the costs issue that its decision not to object to Judge Spain's decision was a tactical choice, gambling that because Judge Spain awarded Diestel only nominal damages, Direct Action could recoup its fees and costs related to the cross-complaint based on its 998 offers. . . On November 16, 2018, pursuant to [Code of Civil Procedure section] 998, Direct Action offered $801 to Diestel, which was better than what Diestel obtained via the Court's judgment dated November 23, 2020. The Court awarded $8 to Diestel. Direct Action's November 2018 offer also addressed injunctive relief and offered that Cross-Defendants will not knowingly enter the Diestel properties of Jamestown Ranch and Sonora Ranch for three years after the acceptance of the settlement. After litigating the issues for several years, Diestel did not obtain a more favorable judgment from this Court. Because Direct Action made a [Code of Civil Procedure section] 998 offer to Diestel in writing, Diestel did not accept the offer, and Diestel did not obtain a judgment more favorable than the offer, Diestel is not entitled to its recover [sic] its postoffer costs and shall pay Direct Action's costs from the time of the offer. [Code of Civil Procedure section] 998[, subdivision] (c)(1); [citations.] Direct Action's reasonable offer, if accepted, would have ended the litigation that had nuisance value at best.' Direct Action's gamble did not pay off." (Direct Action I, supra, A162017, at pp. 33-34.)
The Cost Memoranda and Motions to Tax
Meanwhile, following Judge Spain's decision, on December 8, Diestel filed a memorandum of costs seeking a total of $68,734.37, based on the contention it was the prevailing party on both the complaint and cross-complaint.
That same day, December 8, Direct Action and Hsiung filed a memorandum of costs claiming they were the prevailing parties on the crosscomplaint, seeking a total of $4,694.01 in "post-offer costs." Their argument was as follows: "Cross-Defendants Direct Action Everywhere SF Bay Area and Wayne Hsiung served [section] 998 offers on [Diestel] on September 18, 2018 and November 16, 2018 that were not accepted. Consistent with [section] 998[, subdivision] (c)(1), Cross-Defendants are entitled to their postoffer costs. Cross-Defendants are seeking only the costs that can be fairly attributable to the cross-claims that were addressed in the [section] 998 offer."
On December 23, Direct Action and Hsiung filed a motion to strike or tax Diestel's costs. It was accompanied by a memorandum of points and authorities filed on behalf of "Plaintiff and Cross-Defendant Direct Action . . . and Cross-Defendant Wayne Hsiung." The motion did not argue that the judgment on the cross-complaint was erroneous or void.
A flurry of oppositions and replies ensued, which culminated on February 2, 2021, when cross-defendants Direct Action and Hsiung filed their opposition to Diestel's motion to strike their cost bill, once again arguing they were the prevailing parties.
On February 4, Judge Spain entered an order that granted in part and denied in part Direct Action's motion. And on February 17, she entered an order striking cross-defendants' memorandum in its entirety.
Meanwhile, while the briefing on the costs memoranda was proceeding, both parties moved for attorney fees.
The Motions for Attorney Fees
On December 28, 2020, Diestel filed a motion for attorney fees based on Code of Civil Procedure sections 1033.5, subdivision (a)(10), and 1021.9, on the ground it prevailed on its cross-complaint for trespass. The motion sought a total of $72,848.25.
On January 22, 2021, Direct Action filed a motion for attorney fees under Code of Civil Procedure section 1021.5 and the catalyst theory. Direct Action argued that it was entitled to $1,541,006 in fees because its lawsuit was the catalyst through which it obtained its litigation objective for "Diestel to stop its false advertising."
Both parties filed oppositions to the others' motions, and both sides filed replies. The motions were set for hearing on February 17, prior to which Judge Spain had published tentative rulings. They were not contested, and by orders filed that same day Judge Spain granted Diestel's motion for attorney fees and denied that of Direct Action, giving comprehensive explanations supporting each ruling, including a finding that Diestel had prevailed on its cross-complaint for trespass because it "proved by a preponderance of the evidence that cross-defendants . . . trespassed multiple times upon its property and committed theft."
Diestel served notices of entries of the orders. And on April 16, Ms. Elsner filed a notice of appeal on behalf of Direct Action and Hsiung, checking that they were appealing orders after judgment, which notice attached copies of Judge Spain's four orders. As noted above, that same day, Hsiung filed a separate notice of appeal for himself, checking that he was appealing from a judgment after court trial, attached to which was Judge Spain's November 23, 2020 statement of decision and final judgment.
The Second Appeal
In the second appeal, two opening briefs were filed, one on behalf of Direct Action, represented by two attorneys, Ms. Elsner and James A. Frieden. The other brief was filed by Hsiung, representing himself. (Direct Action II, supra, A162702, at p. 10.)
Diestel's request for Judicial Notice from July 24, 2024 is granted.
Direct Action's brief began with an "introduction" and "facts statement," following which it turned to its first argument, that "the trespass cross-complaint that was never heard or tried does not support a fees or costs award." (Direct Action II, supra, A162702, at p. 10.) Hsiung's brief asserted that he "adopts Direct Action's opening brief," and his argument consisted of two pages essentially arguing that Judge Spain's judgment on the crosscomplaint was void. (Ibid.) On March 1, 2023, we filed our opinion rejecting Direct Action's first argument, and then said that to the extent Hsiung "attempts to reassert the argument rejected in appeal no. A162017, it necessarily fails, and nothing more need to be said about it." (Ibid.) We went on to reject Direct Action's three other arguments. (Id. at pp. 10-27.)
Diestel Moves for the Attorney Fees Incurred on the Appeals
On June 12, Diestel filed a motion seeking attorney fees incurred in connection with the appeals. (See, e.g., Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 [" 'fees, if recoverable at all-pursuant either to statute or parties' agreement-are available for services at trial and on appeal.' "], original italics.) The motion sought $94,080 against Direct Action for the fees in connection with both appeals, and $59,9896 against Direct Action and Hsiung for the fees incurred in the second appeal. The motion was supported by a declaration of counsel and several exhibits supporting the attorneys' time spent on the matter and their billings. The motion was noticed for hearing for August 18, which was thereafter continued to November 3.
On October 25, represented by Mr. Frieden, Direct Action filed opposition to the motion, an opposition that was barely five pages, three pages of which contended that the court "must apportion" the fees for the work on appeal between the work on the complaint and that on the crosscomplaint. Diestel also argued that because of some redactions in the fee billings the motion was not supported to the extent of 159.1 hours.
On October 25, representing himself, Hsiung filed his opposition to Diestel's motion. It was four pages, and argued that the underlying judgment "is invalid for lack of jurisdiction," adding that he "joins in all arguments offered by Direct Action."
On October 27, Diestel filed a reply.
On November 1, Hsiung filed an ex parte request that the November 3 hearing be continued, and by order of November 2, it was, to November 17. On November 16, Judge Spain issued a tentative ruling, granting the motion in the full amount sought. The matter came on the next day, as scheduled. That same day, Judge Spain entered an amended order that provides in its substantive entirety as follows:
"Matter is not reported.
"Defendant and Cross-Complainant Diestel Turkey Ranch's ('Diestel') Motion for Attorney's Fees on Appeal is GRANTED. [¶] . . . [¶] "Earlier this year, the Court of Appeal affirmed the Court's judgment in an unpublished opinion. (Direct Action Everywhere SF Bay Area v. Diestel Turkey Ranch (Cal.Ct.App., Feb. 27, 2023, A162017) 2023 WL 2236841, at *1 [unpub. opn.].) Respondent Diestel is the prevailing party entitled to recovery of fees on appeal. (Cal. Rules of Court, rule 8.278(a)(2).) Diestel is entitled to recover fees incurred on appeal on the same grounds it was entitled to recover fees previously incurred before this Court. (See Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.) In this case, that would be Code of Civil Procedure section 1021.9 with respect to its Cross-Complaint for trespass, conversion, trespass to personal property, and unlawful competition.
"Diestel seeks an award of $94,080 in attorney's fees incurred in connection with responding to appeal from the judgment in this action (Case No. A162017) and $59,896.20 in attorney's fees incorrect in connection with responding to [Direct Action] and Cross-Defendant Wayne Hsiung's appeal of the fees and costs orders (Case No. A162702). These amounts total up to $153,976.20.
"The Court finds that Diestel did not need to apportion its fee claims between [Direct Action's] Complaint and Diestel's Cross-Complaint. [Direct Action] focuses on how the parties' legal theories in their pleadings at first glance look quite different (false advertising v. trespass). Diestel has the better argument: the parties' legal claims were all based on the same 'common core of facts.' (Hoffman v. Superior Ready Mix Concrete, L.P. (2018) 30 Cal.App.5th 474, 485.) Specifically, [Direct Action] activists trespassed on Diestel's premises in order to gather evidence that Diestel's advertising was false. This is the kind of case where 'the issues in the fee and nonfee claims are so inextricably intertwined that it would be impractical or impossible to separate [attorneys'] time into compensable and noncompensable units.' (Id. at pp. 484-485.)
"The Court finds that the redacted time entries of Diestel's counsel when read in context are sufficiently understandable. (Cf. Guillory v. Hill (2019) 36 Cal.App.5th 802, 810 [criticizing excessive redaction].)
"Hsiung's Opposition challenges the Court's jurisdiction to award attorney's fees on appeal on the Cross-Complaint, but the argument is without merit because it amounts to an untimely and improper request for reconsideration of the Court's implicit determination that it had jurisdiction to rule on Diestel's Cross-Complaint. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181 [trial court cannot reconsider after entry of judgment].)
"The Court finds the time entries, hours, and hourly rates claimed by Diestel's counsel are all reasonable. (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700; Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 35-36.) Accordingly, Diestel is entitled to recover $94,080 in attorney's fees incurred on appeal from [Direct Action] and to recover $59,896.20 in attorney's fees incurred on appeal from [Direct Action] and Hsiung, jointly and severally." (Italics added.)
On January 12, 2024, two notices of appeal were filed, one by Direct Action, represented by Mr. Frieden, the other by Hsiung, representing himself.
DISCUSSION
Two appellant's opening briefs were filed. The first is on behalf of Hsiung, now represented by counsel, two lawyers at the Animal Activist Legal Defense Project, Seattle. The second is on behalf of Direct Action, represented by Mr. Frieden. We discuss the appeals in turn.
Hsiung's Appeal Has No Merit
Hsiung's fundamental argument is that the judgment that gave rise to Diestel's recovery of legal fees against him was "void," asserting that he "was not a party to the underlying proceedings so the trial court lacked fundamental jurisdiction." The argument begins as follows: "Mr. Hsiung's argument is simple and relies on only three propositions of law. First, lack of fundamental jurisdiction can be raised at any time, even for the first time on appeal or collateral attack. Second, courts have fundamental jurisdiction only over parties to an action. Third, a cross-action is distinct and independent from the original action, especially if the cross-action is bifurcated into a separate trial. Given these three propositions, which are amply supported below, the judgment against Mr. Hsiung-and accompanying attorney's fees-must be vacated because it was void ab initio. Mr. Hsiung was a party only to the cross-action, which was separate, distinct, and bifurcated from the original action, and the trial court was only authorized to decide the original action, not the cross-action." (Italics omitted.)
We reject the argument once again. But before discussing why, a few words about Hsiung's briefing.
California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant's opening brief shall "[p]rovide a summary of the significant facts." And the leading California appellate practice guide instructs about this: "Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law. . . [¶] Misstatements, misrepresentations and/or material omissions of the relevant facts or law can instantly 'undo' an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case." (Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group, 2024) ¶ 9:27, italics omitted.)
Hsiung's brief-a brief, we note, filed on behalf of an attorney and former professor at Northwestern Law School-ignores this instruction in several ways. It does so in part because it sets forth some claimed facts in a version favorable to him, in disregard of settled principles of appellate review, conduct, we have said, that "is not to be condoned." (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1530-1531.) Hsiung's brief also ignores significant facts including, for example, that in December 2020 and January 2021, cross-defendants filed moving and reply papers to strike or tax Diestel's costs and fees, papers that identified Hsiung as one of the moving parties. These papers show that Hsiung knew that Judge Spain had entered judgment against him on the cross-complaint and made a tactical decision not to seek to set it aside, tacitly conceding the validity of the crosscomplaint. But most significantly of all, Hsiung's brief ignores that we have rejected the identical argument Hsiung makes here-indeed, several times.
Some of which are actually false. For example, until Hsiung filed the substitution of counsel on April 16, 2021, he was represented by counsel, including Ms. Elsner; Hsiung's brief says that "Attorney Gretchen Elsner was served with the decision, but only in her capacity as counsel for [Direct Action], which was a named party to the proceeding," citing to "2 CT 568." 2 CT 568 says no such thing. Hsiung's brief also asserts that he "was not provided with a copy" of the judgment. We are unaware that courts serve parties represented by counsel with court orders.
We first rejected Hsiung's argument on July 8, 2021, when we denied his writ petition, a petition that, as quoted above, contained the identical argument Hsiung makes here. (Hsiung v. Superior Court (July 8, 2021, A162445).)
Our second rejection was in our September 14, 2021 order granting Diestel's motion to dismiss Hsiung's appeal where, as also quoted above, we held we were "not persuaded by [Hsiung's] argument that the judgment is void on its face." (Hsiung v. Diestel Turkey Ranch (Sept. 14, 2021, A162708).)
Then, in Direct Action II we noted that in Direct Action I we rejected Direct Action's claim that the judgment on the cross-complaint was void, and said that to the extent Hsiung continues "to reassert the argument rejected in [Direct Action I], it necessarily fails, and nothing more need to be said about it." (Direct Action II, supra, A162702, at p. 10.)
Once again, and for the last time, we reject Hsiung's argument that the judgment is void. And, we add, "Amen."
Hsiung argues in the alternative that "even if the Court finds that the trial court's action was merely in excess of jurisdiction, the Court should void the judgment and remand it for trial because unusual circumstances prevented an earlier attack." The argument was not raised below, and thus can be treated as waived or forfeited. (See Doers v. Golden Gate Bridge, Highway &Transp. Dist., supra, 23 Cal.3d at p. 184, fn. 1 [" 'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court....' "]; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685 ["Contentions or theories raised for the first time on appeal are not entitled to consideration."].) We consider it waived.
Direct Action's Appeal Has No Merit
Unlike its opposition below, where Direct Action devoted some three pages to its apportionment argument, Direct Action has filed a 43-page opening brief. The brief makes two arguments, both with sub-parts: (1) Judge Spain "erred in ruling that Diestel did not need to apportion fees between the Complaint and Cross-Complaint", and (2) as a result, she "failed to exercise the requisite discretion in fixing fees." Neither argument has merit.
The Standard of Review
Direct Action contends that the standard of review is de novo, a contention that as best we can understand it asserts that Judge Spain's determination the claims were" 'based on the same "common core of facts" '" is a question of law. This is how the brief puts it: "Here, the trial court found that there was no need to apportion fees between the Complaint and CrossComplaint, based upon a finding of law: that the claims in those two actions 'were all based on the same "common core of facts." As the courts' treatment of this criterion makes clear, this is a conclusion of law turning upon whether or not the same set of facts gives rise to each cause of action.' "
Nothing is cited in support of that statement, and the few cases that Direct Action mentions following the statement merely involve cases where courts have found that there was, or was not, a common core of facts-cases, not incidentally, that recognize that review is for abuse of discretion.
Direct Action's cases include these: Pulliam v. HNL Automotive, Inc. (2021) 60 Cal.App.5th 396, 407-408: where the court held, "We also find no abuse of discretion in the trial court's refusal to apportion attorney fees," going on to note that the trial court "found that apportionment was not possible because the claims involved a common core of facts and intertwined legal theories"; Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251: trial court did not abuse its discretion in deciding not to apportion fees between distinct causes of action because claims involved a common core of facts; and: Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250: "Because the 'trial court, having heard the entire case, [is] in the best position to determine whether any . . . allocation of attorney fees [is] required,' we remand for the court to exercise its discretion in that regard."
"Once a trial court determines entitlement to an award of attorney fees, apportionment of that award rests within the court's sound discretion. We review the court's decisions for abuse of discretion." (Carver v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 498, 505 (Carver).) As we ourselves have put it, citing Carver," 'Once a trial court determines entitlement to an award of attorney fees, apportionment of that award rests within the court's sound discretion.' [Citation.] And the burden is on [Direct Action] 'to establish that discretion was clearly abused and a miscarriage of justice resulted.'" (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1177.)
As to what a showing of abuse of discretion requires, it has been described in terms of a decision that "exceeds the bounds of reason" (People v. Beames (2007) 40 Cal.4th 907, 920), or one that is arbitrary, capricious, patently absurd, or even whimsical. (See, e.g., People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390 ["' "arbitrary, capricious, or patently absurd"' "].) In its observation on the subject in a leading case, our Supreme Court has said that "A ruling that constitutes an abuse of discretion has been described as one that is 'so irrational or arbitrary that no reasonable person could agree with it.'" (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) Or, as that court put it in a more recent definition, "arbitrary or irrational." (In re White (2020) 9 Cal.5th 455, 470.)
These adjectives hardly describe Judge Spain's order here.
One Court of Appeal has described three situations where attorney fees need not be apportioned, two of which are where the"' "various claims involve a common core of facts or are based on related legal theories" '" or when the issues" 'are so inextricably intertwined that it would be impractical or impossible to separate the attorney's time into compensable and noncompensable units.'" (Hoffman v. Superior Ready Mix Concrete, L.P. (2018) 30 Cal.App.5th 474, 485 (Hoffman), citing Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 158-159.)
As quoted above, Judge Spain specifically found that "he parties' legal"' "claims involve a 'common core of facts'" '" (citing Hoffman, supra, 30 Cal.App.5th at p. 485). "Specifically, [Direct Action] activists trespassed on Diestel's premises in order to gather evidence that Diestel's advertising was false. This is the kind of case where 'the issues in the fee and nonfee claims are so inextricably intertwined that it would be impractical or impossible to separate [attorneys'] time into compensable and noncompensable units.' (Id. at pp. 484-485.)" We see no abuse of discretion in that finding.
We begin by noting our own description in Direct Action II where we said, "Direct Action's complaint and Diestel's cross-complaint arose out of the same events: Diestel's trespass claims centered on cross-defendants' 'open rescues' activities, the same open rescues from which Direct Action gathered its purported evidence regarding Diestel's alleged false advertising." (Direct Action II, supra, A162702, at p. 14.)
We also note that the appellate briefs in both appeals concerned both the complaint and the cross-complaint. For example, in its opening brief in Direct Action I, Direct Action identified the claimed errors it believed warranted reversal, that Judge Spain: (1) incorrectly concluded that Direct Action did not have standing under the fraud prong of the UCL; and (2) should not have ruled on the cross-complaint. Both of these claimed errors involve Diestel's cross-complaint for trespass: much of Direct Action's evidence for its allegation of fraud was collected during its trespass at Diestel's facility; and the claim that Judge Spain should not have ruled on the cross-complaint obviously concerns the cross-complaint.
Similarly, Direct Action's reply brief in Direct Action I relied heavily on the resources it expended during its reinvestigation of Diestel to argue it had standing: "The effort included . . . researching Diestel's operations, training activists to use cameras to film Diestel's operations, traveling to a Diestel facility in Tuolumne County to conduct on-site investigations over the course of nine months in 2015, collecting gigabytes of video and photographic evidence ...."
The appellate briefs in Direct Action II also involved both the complaint and the cross-complaint. For example, in its opening brief, Direct Action challenged the award of attorney fees to Diestel on the cross-complaint, and contended that Judge Spain should not have considered the trespass-the very subject of the cross-complaint-when determining that Direct Action was not entitled to catalyst fees on the complaint.
Finally, the amicus briefs in the appeals show how the issues concerning the complaint were intertwined and shared a common core of facts. For example, the amicus brief filed by Impact Fund in Direct Action II addressed whether Judge Spain improperly considered Direct Action's illegal conduct in its determination that its lawsuit did not result in the enforcement of an important right affecting the public interest as required for an award of fees under Code of Civil Procedure section 1021.5. That illegal and fraudulent conduct was Direct Action's and Hsiung's trespass, the claim in Diestel's cross-complaint. And our analysis of the trial court's decision to deny fees to Direct Action on the complaint necessarily required an analysis of the conduct, issues, and facts related to the cross-complaint.
Our opinion in Calvo Fisher &Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608 (Calvo) is instructive. There, plaintiff law firm (then known as Calvo &Clark) was retained by a prominent Guam attorney, David Lujan, to represent him in a lawsuit in federal court in Los Angeles, in connection with which he signed a retainer agreement providing that" 'In the unlikely event that we are required to institute legal proceedings to collect fees and costs, the prevailing party would be entitled to a reasonable attorney's fee and other costs of collection.'" The representation expanded to include two other proceedings in Guam, which representation quickly generated significant legal fees that within a year reached some $1.5 million, most of which Lujan refused to pay. (Id. at pp. 611-614.)
Calvo &Clark attempted to negotiate resolution of the outstanding balance, to no avail, and then filed suit in San Francisco Superior Court, alleging claims for breach of contract, common count, quantum meruit, and account stated. The breach of contract claim sought damages of $1,181,034, plus prejudgment interest; the other three claims sought $1,027,435.89. (Calvo, supra, 234 Cal.App.4th at p. 614.)
Lujan filed an answer and a cross-complaint that asserted 10 causes of action for: (1) legal negligence; (2) breach of contract; (3) fraud in the inducement; (4) negligent and/or intentional non-disclosure of material facts; (5) bad faith; (6) unjust enrichment; (7) breach of fiduciary duty; (8) negligent misrepresentation; (9) abuse of process; and (10) accounting. (Calvo, supra, 234 Cal.App.4th at p. 614.)
Calvo &Clark filed demurrers and motions, the effect of which was to eliminate all of Lujan's claims except for breach of contract and breach of the covenant of good faith and fair dealing. And along the way Calvo &Clark's noncontract claims went by the wayside, the upshot of which was that the matter proceeded to trial with each side asserting essentially its contract- based claims, including Lujan's bad faith claim, where Calvo &Clark's damage claim was now $945,947.90. Following an 18-day trial, the jury returned a verdict awarding Calvo &Clark $945,947.90, the full amount sought. (Calvo, supra, 234 Cal.App.4th pp. 614-615.)
Calvo &Clark filed a motion for prejudgment interest, and prevailed, the court awarding them $331,545.51. (Calvo, supra, 234 Cal.App.4th at p. 615.)
We affirmed the ruling in an earlier appeal by Lujan.
Calvo &Clark also filed a motion for attorney fees seeking $1,532,674.81. The motion was accompanied by extensive supporting material, including declarations from four attorneys and an expert witness. Lujan filed opposition that included an expert's declaration and numerous evidentiary objections. Calvo &Clark filed a reply that included supplemental declarations of the original four attorneys and six declarations from new attorneys who participated in the litigation. As we described in the opinion, "All told, by the conclusion of the briefing, the motion for attorney fees totaled over 1,500 pages. Or, as the trial court would later describe it at the hearing, 'seven inches of paper here. So we're not gonna decide that today either, but I'll be attending to what you have to say about it.'" (Calvo, supra, 234 Cal.App.4th at pp. 616-617.)
Around the time Calvo &Clark filed its motion for fees, Lujan filed a motion to tax its cost bill. (Calvo, supra, 234 Cal.App.4th at pp. 616-617.) The trial court heard lengthy argument on the motions, at the conclusion of which it took the matters under submission. The trial court thereafter filed its order on both motions, which, after the recitals, concluded as follows:
" 'The court overrules all of defendant's evidentiary objections.
" 'The court has read and considered the parties' papers in support of and in opposition to the two motions. The court has heard and considered the remarks of counsel at the hearing. The court finds good cause to make the following orders.
" 'The court grants defendant's motion to tax costs in the following respect. The court disallows messenger fees in the amount of $3,207.09. In all other respects, the court denies the motion to tax costs. The court grants plaintiff's motion for recovery of attorney fees. The court awards plaintiff reasonable attorney fees in the amount of $1,532,674.81.'" (Calvo, supra, 234 Cal.App.4th at p. 618, fn. omitted.)
So, in one line, the trial court affirmed $1,532,674.81 in attorney fees.
Lujan appealed, arguing that" 'The Trial Court Erred By Holding That Calvo Is Entitled to Recover Any Attorneys' Fees in This Case Beyond the Fees Incurred to Pursue Its Affirmative Claim for Breach of Contract.'" We affirmed, in an opinion with an exhaustive discussion of the law of attorney fees. That opinion is instructive here, and we quote from it at some length.
"The attorney fee provision here, quoted above, provides that 'In the unlikely event that we are required to institute legal proceedings to collect fees and costs, the prevailing party would be entitled to a reasonable attorney's fee and other costs of collection.' That is what Calvo &Clark, the prevailing party, was entitled to recover....[¶]. . .
"Finalco, Inc. v. Roosevelt (1991) 235 Cal.App.3d 1301 (Finalco) is persuasive. Finalco sued Roosevelt on a note providing that the maker' "agrees to pay all costs of collection . . . including . . . all attorney's fees and expenses."' (Id. at p. 1306.) Roosevelt filed an answer and a cross-complaint, raising numerous claims based on violations of federal and state securities laws, RICO, and common law fraud and misrepresentation. The trial court awarded Finalco $71,562 in attorney fees. 'Roosevelt appealed, and the Court of Appeal affirmed, in language particularly apt here: Roosevelt contends the term "costs of collection" limits Finalco to recovery of the reasonable attorneys' fees incurred in proving up its action on the note but does not permit Finalco to recover attorneys' fees incurred in defending against Roosevelt's cross-complaint. He argues the term "cost of collection" was insufficient to put him on notice he would be obligated to pay Finalco's attorneys' fees incurred in defending a separate claim regarding the validity of the underlying sale of the units under federal securities laws. Furthermore, such a construction of the attorneys' fees provision would conflict with public policy to encourage prosecution of securities fraud actions. We disagree with both of Roosevelt's contentions.' (Finalco, supra, 235 Cal.App.3d at p. 1306, fn. omitted.)
"The court went on to describe how Finalco was 'obliged to defend [the cross-complaint] in order to succeed on its complaint,' and how both actions were 'inextricably intertwined.' (Finalco, supra, 235 Cal.App.3d at p. 1307.) ....
"Lujan's brief proceeds with some subarguments, [which] . . . fail for several other reasons.
"One reason is, as Pearl distills it, this: 'Parties prevailing on the contract claim also may be entitled to compensation for time spent on noncontract claims that contributes to the success of the contract claim.' (1 Pearl, Cal. Attorney Fee Awards, supra, § 4.100, p. 4-76, citing, among other cases, Finalco, supra, 235 Cal.App.3d 1301, which the author describes as including fees to plaintiff for 'defending against the defendant's crosscomplaint based on securities fraud because defeat of the cross-complaint was essential to recovery on the complaint'; and MRW, Inc. v. Big-O Tires, LLC (E.D.Cal.2010) 684 F.Supp.2d 1197, 1205 [describing the 'time spent defending tort claims compensable because necessary to enforce contract claims'].)
"A second, and related, reason is found in those cases holding that where the plaintiff's defense against a cross-claim is necessary to success on the plaintiff's contract claim, the plaintiff is entitled to all its fees," citing to Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 877-879. (Calvo, supra, 234 Cal.App.4th at pp. 622-623.)
We went on in Calvo to hold that "A third, and separate, reason why Lujan's arguments fail is that the claims were so intertwined as to make it impracticable, if not impossible, to separate the attorneys' time, exemplified by Maxim Crane Works, L.P. v. Tilbury Constructors (2012) 208 Cal.App.4th 286 (Maxim). Maxim arose when a construction worker sued Maxim, a crane company, for personal injuries arising from a worksite incident. Maxim filed a cross-complaint against the injured worker's employer, Tilbury, seeking indemnity. The cross-complaint failed, as the trial court enforced an unfavorable choice-of-law provision in the contract written by Maxim, and found the indemnity agreement inapplicable to the employee's claim. The trial court thereafter awarded Tilbury its full attorney fees, accepting' . . . Tilbury's contention that defense against Maxim's cross-complaint was "inextricably intertwined" with Tilbury's defense against Gorski's tort suit....' (Id. at p. 297.) The Court of Appeal affirmed." (Calvo, supra, 234 Cal.App.4th at p. 625.)
"After beginning with the observation its scope of review was 'narrow,' the court noted that' "[t]he burden is on the party complaining to establish that discretion was clearly abused and a miscarriage of justice resulted." [Citations.]' (Maxim, supra, 208 Cal.App.4th at pp. 297-298.)" (Calvo, supra, 234 Cal.App.4th at p. 625.) Maxim then concluded with this:
" '" 'Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units." [Citations.]' (Maxim, supra, 208 Cal.App.4th at p. 298.)" (Calvo, supra, 234 Cal.App.4th at pp. 625-626.)
Wagner v. Benson (1980) 101 Cal.App.3d 27 is also instructive. There, plaintiffs sued a bank for fraud and negligence in connection with a loan transaction; the bank filed a cross-complaint to collect the balance due under the notes. The bank prevailed on the complaint and cross-complaint, but the trial court limited the bank's attorney fees to the fees incurred in suing on the notes. The Court of Appeal reversed, reasoning as follows: "Here the parties have agreed to compensate the prevailing party for reasonable costs incurred in collecting the balance due on the notes. However, the Bank's collection efforts were interrelated with its defense against the [plaintiff's] fraud allegations. Defense of the charge of fraud was necessary in the Bank's efforts to collect the notes [citations]." (Id. at p. 37.)
As noted, Direct Action's second argument, clearly related to the first, is that Judge Spain "failed to exercise the requisite discretion in fixing fees." Lujan made a similar argument in Calvo, an argument we easily rejected. Here is the entire passage:
"Lujan's final argument on the attorney fee issue contends that the trial court abused its discretion when 'it did not even attempt to conduct an apportionment of the fees.' We disagree.
"The law is well settled: 'Once a trial court determines entitlement to an award of attorney fees, apportionment of that award rests within the court's sound discretion.' (Carver, [supra,] 119 Cal.App.4th at p. 505.) 'The burden is on the party complaining to establish that discretion was clearly abused and a miscarriage of justice resulted.' (Ibid.) ....
"Calvo &Clark argued to the trial court that apportionment would be improper here for several reasons, including that the contract and noncontract causes of action were inextricably intertwined, both factually and legally. Lujan's opening brief asserts that this argument 'was dead wrong on the law,' and cites two cases holding that '[a] court may apportion fees even where the issues are connected, related or intertwined': El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1365, and Carver, supra, 119 Cal.App.4th at page 506. True enough. But the cases do not avail Lujan, standing, as they do, only for the settled proposition that a trial court has discretion to apportion or not apportion attorney fees depending upon the facts and circumstances before it. To put it conversely, neither of the cases holds that a trial court must apportion fees, only that it 'may.'" (Calvo, supra, 234 Cal.App.4th at p. 628, fn. omitted.)
DISPOSITION
The order is affirmed. Diestel shall recover its costs on appeal.
We concur. STEWART, P. J. MILLER, J.