Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. GIE023335, Laura W. Halgren, Judge.
McDONALD, J.
In the underlying action, South Bay Rod and Gun Club (Club), a California nonprofit mutual benefit corporation, sued Charles M. Dashiell on numerous theories, including a claim alleging he breached his fiduciary duties while acting as a director of Club in connection with a real estate transaction. Club alleged claims for specific performance of an agreement with Dashiell, declaratory relief and breach of fiduciary duty, and sought a determination that Dashiell held certain real property as constructive trustee for Club. Dashiell cross-complained for breach of the agreement, specific performance of his option to retain the real property, declaratory relief and to quiet his title to the real property, and slander of title. The trial court ruled in Dashiell's favor, and this court affirmed in an unpublished opinion. (South Bay Rod and Gun Club v. Dashiell (Jan. 3, 2008, D048864 [nonpub. opn.] (South Bay I).)
In the present appeal (South Bay II), Club challenges a posttrial order, entered after remand, that awarded Dashiell his attorney fees. Club asserts (1) res judicata principles precluded the trial court from awarding attorney fees, and (2) even if res judicata was not a bar there was no statutory basis for awarding attorney fees.
Club also filed a petition for writ of supersedeas seeking to stay execution on the award pending resolution of the appeal. Club's petition asserted the attorney fees award here was a cost within the meaning of Code of Civil Procedure sections 1032 and 1033.5, and as such fell within the automatic stay provisions of Code of Civil Procedure section 916, but that the trial court declined to order execution on the award stayed pending resolution of the appeal. This court ordered enforcement of the judgment stayed, and deferred consideration of the issues raised by Club's writ petition until disposition of the appeal. Considering our conclusion, the arguments raised by Club's writ petition are now moot.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. South Bay I
The Facts
Club owned land on which it operated a shooting range, and became interested in securing an adjoining property (Property) as a buffer zone for its range. Dashiell, then a director of Club and a real estate broker, tried to arrange for Club to acquire the Property. However, because of a lack of financing available to Club, Dashiell and Club entered into an agreement under which both parties contributed funds to pay the down payment to purchase the Property. The agreement provided that Dashiell would acquire title to the Property in his individual name, obtain a loan for the balance of the purchase price in his individual name, and receive a five-year option to retain title to the Property on repayment of Club's contributions. (South Bay I, supra, D048864, at p. 1-2.) Club's board of directors approved the transaction after full disclosure, Club (represented by independent counsel) documented the transaction in a written agreement between Club and Dashiell, and Club members (after receiving a written explanation of the transaction) ratified the board's actions. (Id. at pp. 15-16.)
The Lawsuit and Initial Judgment
In 2003 Dashiell began making payments to Club to exercise his option to retain the Property but, when Dashiell tendered his final installment to satisfy the remainder due Club under the agreement, Club rejected the tender and filed its lawsuit. Club alleged Dashiell violated the fiduciary duties he owed as a director of and real estate broker for Club by acquiring the Property in his individual name, and asserted Club was entitled to specific performance of its rights to the Property. Dashiell's cross-complaint alleged he was entitled to the Property under the option and sought declaratory relief, specific performance and to quiet title; he also alleged a slander of title claim. (South Bay I, supra, D048864, at pp. 1-2.)
After trial, the court issued a statement of decision. The court found Club's claims were time barred. The court also found in favor of Dashiell on the merits as to Club's claims, concluding Dashiell had disclosed to Club's board every significant aspect of the transaction before he entered into the agreement with Club to acquire the Property, the transaction was fair and reasonable as to Club, and he had met his fiduciary obligations in attempting to arrange financing for the transaction. On Dashiell's cross-complaint, the court found in favor of Dashiell on his claims for breach of contract, specific performance of his option to retain the Property, declaratory relief and to quiet his title to the Property, and slander of title. The court found Dashiell had not shown malice and therefore was not entitled to punitive damages, but was entitled to attorney fees by noticed motion.
The Modified Judgment and Appeal
Club requested findings of fact and conclusions of law to resolve uncertainties and ambiguities in the statement of decision. Among the questions posed was, "What is the basis for any attorney fee award as the [agreement] has no attorney fee clause?" The court responded, "Slander of Title," and entered judgment in accordance with its Statement of Decision that, among other things, found Dashiell was entitled to attorney fees. Club thereafter moved to modify the Statement of Decision seeking, among other things, to delete that portion of the judgment finding Dashiell was the prevailing party on the slander of title claim and finding he was entitled to attorney fees, arguing the court's findings of fact did not support (and were in fact inconsistent with) the determination that Dashiell should prevail on his slander of title claim.
Dashiell opposed the motion to modify the judgment. Insofar as was pertinent to the attorney fee award, Dashiell argued he was entitled to attorney fees in connection with his slander of title claim under Civil Code section 880.360. Dashiell also asserted that an "alternative theory for an award of attorney fees" was present because the Corporations Code provided for indemnifying corporate officers and directors who successfully defend an action against them for actions taken in their corporate capacities, and his successful defense of the action qualified him for attorney fees under the Corporations Code. Club rejoined that neither Civil Code section 880.360 nor the Corporations Code supported his entitlement to attorney fees.
At the March 3, 2006, oral argument on the motion to modify the judgment, Dashiell again asserted the Corporations Code entitled him to recover attorney fees. He argued that because both his answer and cross-complaint pleaded his right to attorney fees he was entitled to assert all theories and statutes under which an attorney fees award might arise, and the Corporations Code permitted a court to order Club to indemnify him for his fees because he was sued for acts taken on behalf of the corporation. The court stated it would take the motion to modify the judgment under submission, and stated that "on the attorney fee question, I will be looking at the [Corporations] Code," and promised to issue its decision promptly.
On March 27, 2006, the court issued its order on Club's motion to modify the statement of decision. Although the court rejected some of Club's requested modifications, it agreed that Dashiell was not entitled to recover on his slander of title claim and therefore could not receive attorney fees under that cause of action. The court's order also rejected Dashiell's claim that provisions of the Corporations Code authorized recovery of attorney fees, stating "[t]he Court does not find any entitlement pursuant to those provisions." The court entered its amended judgment, pursuant to the modified statement of decision, on May 15, 2006. On June 2, 2006, Club filed its notice of appeal from the amended judgment. Dashiell did not file a cross-appeal.
B. South Bay II
On June 2, 2006, Dashiell filed a new motion styled as a motion for attorney fees. Dashiell's motion, citing the same section of the Corporations Code raised in connection with his opposition to Club's motion to modify the judgment, argued attorney fees could be awarded under the indemnification provisions of Corporations Code section 317 and, by a subsequently filed amended motion, also asserted sections 7237 and 5238 supported an award of attorney fees. Club opposed the motion, asserting (1) it was an untimely motion for reconsideration of the prior order denying Dashiell's request for attorney fees, (2) the court lacked jurisdiction to modify the judgment because of the pending appeal, and (3) it was legally unsound on the merits. In reply, Dashiell argued the motion was legally sound and not an improper motion for reconsideration, but conceded Code of Civil Procedure section 916 governed and required the court to stay proceedings on his motion until the appeal in South Bay I was concluded. The court ruled it did not have jurisdiction to rule on the motion because of the pending appeal.
All further statutory references are to the Corporations Code unless otherwise specified.
Although the record is unclear, it appears the court's tentative ruling was to deny the motion as an improper motion for reconsideration because the court had already considered and denied Dashiell's request for attorney fees when it ruled on Club's motion to modify the judgment. However, it appears Dashiell requested oral argument and, several months later, the court issued its ruling that the pending appeal deprived it of jurisdiction to consider the motion.
On January 3, 2008, this court issued its unpublished opinion affirming the trial court's judgment. (South Bay I, supra, D048864 .)
After the remittitur issued in South Bay I, Dashiell filed an "amended" motion seeking attorney fees, citing sections 317, 5047.5, 5238 and 7237, and resurrecting the same arguments previously tendered in favor of an award of attorney fees under the indemnity provisions for corporate officers and directors. Club again opposed the motion, asserting that it had been heard and denied on at least two prior occasions, and Dashiell had not cross-appealed from the original judgment (affirmed in South Bay I) denying Dashiell's request for an award of attorney fees. In reply, Dashiell asserted he never moved for attorney fees under the Corporations Code in response to Club's motion to modify the judgment, but only mentioned the Corporations Code as an alternative basis for upholding the attorney fee awarded on his cross-complaint. Dashiell instead argued the only postjudgment motion for attorney fees was his June 2, 2006, motion, but because that motion was never ruled on (because of the pending appeal divesting the court of jurisdiction to rule on the motion), there was no bar to bringing the present motion.
Dashiell also asserted that, even if his present motion were deemed a renewal of his attorney fees motions, there were new facts and law permitting him to resurrect his request for attorney fees.
The trial court ruled the arguments raised by Dashiell in opposition to the motion to modify the judgment did not qualify as a postjudgment application for attorney fees under the Corporations Code, and therefore Dashiell's current motion for fees was not an issue previously ruled on by the trial court. The court also found, on the merits, that Dashiell was entitled to be indemnified for fees under the relevant provisions of the Corporations Code. Club appeals the order.
II
ANALYSIS
A. Legal Principles
Indemnification under the Corporations Code
Section 7237, subdivision (c), provides that "[a] corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action by or in the right of the corporation... to procure a judgment in its favor by reason of the fact that such person is or was an agent of the corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances." Subdivision (d) provides that "[t]o the extent that an agent of a corporation has been successful on the merits in defense of any proceeding referred to in subdivision (b) or (c) or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith." Subdivision (e)(3) of section 7237 provides, "[e]xcept as provided in subdivision (d), any indemnification under this section shall be made by the corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in subdivision (b) or (c), by: [¶]... [¶] [t]he court in which such proceeding is or was pending upon application made by the corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney or other person is opposed by the corporation." "Expenses," as used in the foregoing subdivisions, include attorney fees. (§ 7237, subd. (a).)
Although the courts have not construed section 7237, the relevant provisions are substantively identical to the language of section 317, which has been the subject of judicial examination. In Wilshire-Doheny Associates, Ltd.v. Shapiro (2000) 83 Cal.App.4th 1380, the court concluded the indemnification provisions of section 317 "appl[y] to actions 'by or in the right of the corporation to procure a judgment in its favor'... [and are] not, by [their] terms, limited in application to third party lawsuits. Thus, that appellants were sued by the corporation is not a bar to recovery." (Wilshire-Doheny, at p. 1390, Italics added by Wilshire-Doheny.) The court also noted that whether the prerequisites to indemnification under section 317 were met is a factual question for the trial court, including whether the alleged acts were in fact taken on behalf of the corporation or were instead in furtherance of the defendant's own personal interests. (Wilshire-Doheny, at p. 1390.)
There appear to be at least two avenues for a corporate officer or director to seek indemnity from the corporation for attorney fees under section 7237. First, the relief may be sought by way of cross-complaint in the action pending against him or her. (See, e.g., Brokate v. Hehr Mfg. Co. (1966) 243 Cal.App.2d 133, 137 [although "[n]o actual award for costs may be made by the court until the indemnitee's success in whole or in part is determined and there has been an adjudication of the prerequisites set forth in [the indemnification statutes] [citation,] [t]his rule, in our opinion, does not prevent a corporate officer from cross-complaining for declaratory relief pending the outcome of an action"].) Second, indemnification may be sought by a posttrial application to the trial court in which the action "is or was pending." (§ 7237, subd. (e)(3).)
Dashiell also suggests a third avenue may be available: the agent may await the successful conclusion of the action against him or her, and thereafter file an independent action seeking indemnity. However, the only case cited by Dashiell supporting this third potential avenue for indemnification is P. S. & S., Inc. v. Superior Court (1971) 17 Cal.App.3d 354. The court there was addressing an agent's right to indemnity for the costs of defending a criminal proceeding, stating "[w]e consider only: (1) whether indemnification for the costs of defending a criminal proceeding may be sought under section 830 [the predecessor to section 317]; and (2) if so, whether indemnification may be sought in the criminal proceeding or only by a plenary civil action. We conclude that, under some circumstances, section 830 permits indemnification for a successful defense of a criminal proceeding, but that such indemnification must be sought in a plenary civil action against the corporation." (Id. at pp. 357-358.) The court reasoned that, although indemnification ordinarily can be sought by cross-complaint or motion in the original action when the claim for indemnification arises out of a civil action, "[n]o such opportunity exists where the claim for indemnification arises out of a criminal prosecution. [¶]... [Indeed,] [t]he concept of a civil third party cross-complaint filed in a criminal proceeding after final judgment is so bizarre we cannot believe the Legislature intended it...." (Id. at pp. 359-360.) Instead, the P. S. & S. court reasoned, because the former section 830 authorized a "court to award indemnification 'in the same or a separate proceeding' " (P. S. & S. at p. 359, italics added), the proper method for indemnification under those circumstances was a subsequent civil action against the corporate entity. (Id. at p. 360.) The present action did not involve a criminal proceeding, and section 7237 does not contain language suggesting indemnity can be obtained "in a separate proceeding." Accordingly, we question whether an independent action for indemnity is available to the corporate agent under the circumstances presented in this case.
Res Judicata
Because the preliminary issue is whether Dashiell's subsequent motion for attorney fees is barred by res judicata principles, we examine those legal principles. In Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 339-340, the court explained that the res judicata doctrine:
"is said by the Restatement Second of Judgments to have three main components: '... merger--the extinguishment of a claim in a judgment for plaintiff [citation]; bar--the extinguishment of a claim in a judgment for defendant [citation]; and issue preclusion--the effect of the determination of an issue in another action between the parties on the same claim (direct estoppel) or a different claim (collateral estoppel).' (Rest.2dJudgments, Introductory Note, p. 131.) In California, these three components have been conflated into two and thus res judicata is said to have two aspects, its primary aspect of bar and merger and the secondary aspect of collateral estoppel. [Citation.] Thus, '[t]he doctrine of collateral estoppel is one aspect of the concept of res judicata. In modern usage, however, the two terms have distinct meanings. The Restatement Second of Judgments, for example, describes collateral estoppel as "issue preclusion" and res judicata as "claim preclusion." [Citation.]' [Quoting Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. 3.]"
The claim preclusion or bar/merger feature of res judicata operates to bar the maintenance of a second suit between the same parties or parties in privity with them on the same claim, and applies when (1) the claim decided in the prior adjudication is identical to the claim presented in the later action, (2) there was a final judgment on the merits in the prior action, and (3) the party against whom the plea is asserted was a party to the prior adjudication. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1015.) However, when the claims presented in the second proceeding are not the same as those asserted and decided in the prior litigation, the bar/merger feature of res judicata does not preclude the subsequent proceeding. (Branson v. Sun-Diamond Growers, supra, 24 Cal.App.4th at p. 340 [" 'Unless the requisite identity of causes of action is established, however, the first judgment will not operate as a bar.' "].)
To identify whether a claim is identical for purposes of the doctrine of res judicata, "California has consistently applied the 'primary rights' theory, under which the invasion of one primary right gives rise to a single cause of action." (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) It is based on the harm suffered, rather than the particular theory asserted by the litigant, and thus even where there are multiple legal theories on which the claimant might recover, one injury gives rise to only one claim for relief. (Ibid.) For example, in Slater, the minor plaintiff was injured in an automobile accident while riding as a guest, and in 1970 filed suit alleging (under California's then-existing guest statute) a claim for injuries resulting from intoxication or willful misconduct. Nonsuit was granted and that adverse judgment was affirmed on appeal. After the guest statute was held unconstitutional as applied to an injured nonowner guest, the minor filed another lawsuit over the same accident, this time seeking recovery on a negligence theory, and the issue on appeal was whether the 1970 judgment was res judicata and constituted a bar to the second suit. The Slater court held that it was. "The 'primary right' alleged to have been violated in the instant case is plaintiff's right to be free from injury to her person. [Citations.] It is clearly established that '... there is but one cause of action for one personal injury [incurred] by reason of one wrongful act.' " (Id. at p. 795.)
Even where there is no claim preclusion or bar to the claims pursued in the second action, the prior judgment may nevertheless be fatal to those claims where the operation of collateral estoppel would defeat an indispensable element of the claim. Accordingly, if a second action between the parties on a different claim is not barred by the claim preclusion aspect of res judicata, nevertheless " ' "the first judgment operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." ' [Citation.]" (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 409, p. 1047, quoting Branson v. Sun-Diamond Growers, supra, 24 Cal.App.4th at p. 346.) "In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding." (Gikas v. Zolin (1993) 6 Cal.4th 841, 848.) Traditionally, the doctrine applies only if several threshold requirements are fulfilled. "First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding." (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.)
Consequently, "a former judgment is not a collateral estoppel on issues that might have been raised but were not; just as clearly, it is a collateral estoppel on issues that were raised, even though some factual matters or legal arguments that could have been presented were not." (7 Witkin, Cal. Procedure, supra, § 419, pp. 1064-1065, italics added.)
B. Analysis
We conclude Dashiell's attorney fee claim is barred by res judicata principles. (Cf. Mark v. Spencer (2008) 166 Cal.App.4th 219, 229-230 [resolution of attorney fee request in prior litigation is res judicata barring later claim for fees].) In South Bay I, Dashiell pleaded a claim for attorney fees in both his answer to Club's complaint and in his cross-complaint against Club. After the court found in his favor on both the complaint and on his cross-complaint, it initially granted his request for an attorney fees award. When Club challenged that award, Dashiell argued it could be sustained under both the slander of title cause of action contained in his cross-complaint, as well as under the indemnity provisions of the Corporations Code because (Dashiell argued) he had successfully defended an action brought by the corporation against him for conduct undertaken on behalf of the corporation. The trial court specifically rejected the latter claim, and denied him any attorney fee award in the judgment entered in South Bay I. Dashiell did not appeal the judgment entered in South Bay I, and that judgment is now final.
In Law Offices of Stanley J. Bell v. Shine, Browne & Diamond (1995) 36 Cal.App.4th 1011, the plaintiff attorney had filed a prior action in Nevada seeking quantum meruit recovery for fees in a personal injury matter, but the Nevada court entered an order denying his fee request because it concluded he had waived his right to those fees. The attorney thereafter filed an action in California, asserting a claim for those same fees, and argued the Nevada judgment could not have res judicata effect to bar his California action because the Nevada court did not have jurisdiction to make the order. The Bell court concluded that, even though the Nevada court acted in excess of its jurisdiction when it entered the order, the attorney had appeared and litigated the issue on the merits and could have appealed the adverse determination, and his failure to do so precluded the attorney from relitigating the question of attorney fees based in part on res judicata principles. (Id. at pp. 1021-1027.)
In the present case, Dashiell affirmatively prayed for attorneys fees in connection with his defense of the litigation against him brought by Club, and the resulting judgment rejected that request. We conclude the claim preclusion (or bar/merger) feature of res judicata operates to bar the maintenance of the present action because (1) the claim decided in the South Bay I (entitlement to attorney fees for defending against Club's claim) is identical to the claim presented in this action, (2) there was a final judgment on the merits in South Bay I, and (3) Dashiell was a party to the prior adjudication. (Lyons v. Security Pacific Nat. Bank, supra, 40 Cal.App.4th at p. 1015.) The bar/merger aspect of res judicata applies even though Dashiell did not articulate every legal theory available to him in South Bay I (see 7 Witkin, Cal. Procedure, supra, § 410, p. 1051 [res judicata applies where same primary right is being asserted even though second action is "framed to present a different legal theory of recovery"]), and we therefore conclude res judicata in its primary aspect barred Dashiell from resurrecting the same claim in South Bay II.
Additionally, it appears the secondary aspect of res judicata--collateral estoppel--also is operable here. Dashiell not only could have raised the indemnity provisions of the Corporations Code to support his requested attorney fee award, but he in fact did raise--and the court actually ruled on--that argument in connection with the proposed attorney fee award. Collateral estoppel appears present because (1) the issue sought to be precluded from relitigation (entitlement to attorney fees under the indemnity provisions for corporate agents) is identical to that decided in the former proceeding, (2) this issue was actually litigated and decided in the South Bay I, and (3) the decision in South Bay I is final and on the merits and was between the same parties as are present here. (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.)
"For purposes of applying collateral estoppel, evidence extrinsic to the judgment roll may be used to ascertain what issues were determined in the former action." (Southwell v. Mallery, Stern & Warford (1987) 194 Cal.App.3d 140, 144 [reporter's transcript setting forth the trial court's findings and rendition of judgment admissible]; Tevis v. Beigel (1957) 156 Cal.App.2d 8, 14.) Here, the argument below by Dashiell (in both his written papers and oral argument) clearly shows he raised the Corporations Code claim, the reporter's transcript showed the trial court expressly stated it would consider those provisions, and the written order rejected indemnity under the Corporations Code.
Dashiell raises several arguments in opposition to the application of res judicata in either its primary or secondary aspects. First, he argues that Club did not interpose res judicata in its opposition in South Bay II, and the argument must therefore be deemed waived. However, the applicability of res judicata or collateral estoppel ordinarily presents questions of law that are reviewed de novo (Roos v. Red (2005) 130 Cal.App.4th 870, 878), and may be entertained on appeal even assuming they had not been raised below. (Cf. Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316-1317 [court may consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts].) Dashiell asserts waiver applies here because, although a new argument may be raised where it presents only a question of law on the facts appearing in the record, a new theory may not be raised if the new theory " 'contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial.' " (Adelson v. Hertz Rent-A-Car (1982) 133 Cal.App.3d 221, 225-226 [quoting Panopulos v. Maderis (1956) 47 Cal.2d 337, 341].) Dashiell, relying on the statements in Greenfield v. Mather (1948) 32 Cal.2d 23, 34-35, that a trial court has equitable discretion to decline to apply res judicata, asserts application of res judicata here requires the resolution of factual matters (e.g. whether equitable considerations exist to preempt the application of res judicata) not put in issue or presented at trial, and therefore the new theory should not be heard on appeal. We are not persuaded by Dashiell's waiver argument, for two reasons. First, although the court in Slater v. Blackwood, supra, 15 Cal.3d 791 did not expressly overrule Greenfield, we have substantial doubt whether Greenfield remains viable "despite its near repudiation" by Slater. (7 Witkin,Cal. Procedure, supra, § 346, p. 958.) More importantly, although Club did not formally identify the doctrine of res judicata as the basis for its opposition in South Bay II, Club did interpose the substance of the argument below: Club asserted Dashiell's request for fees had been heard and denied, and Dashiell had not appealed the original judgment that denied his request for an award of attorney fees. We believe this adequately preserves the claim on appeal. (Cf. Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650.)
The only post-Slater case of which we are aware that has applied Greenfield is Hight v. Hight (1977) 67 Cal.App.3d 498. However, the result there is equally explained by the peculiar nature of the proceedings that resulted in the judgment. There, the wife filed an action in Colorado to recover arrearages and current support under the Colorado version of Revised Uniform Reciprocal Enforcement of Support Act of 1968 (RURESA), and the Colorado court certified the complaint stated a cause of action and forwarded the matter to the District Attorney of Humboldt County, where the husband resided. Husband appeared at the hearing and argued (as an affirmative defense) wife had frustrated his visitation rights, and the Humboldt County District Attorney appeared but wife did not. The court's order denied relief and, in a subsequent action for arrearages, husband asserted the prior order was res judicata. Although the Hight court invoked Greenfield to deny res judicata effect to the prior judgment, res judicata could have been rejected on the ground that an essential element (e.g., the parties to the prior judgment were the same or substantially identical) was absent. Hight specifically noted wife had only a "nominal status as a party" to the first proceeding (Hight, at p. 504), and that it was the district attorney in California who was in actual control of the proceeding. (Ibid.) Because "[f]ormal, nominal or nonadversary parties are not bound by the [judgment]" (7 Witkin, Cal. Procedure, supra, § 453, p. 1109), Hight is equally explained by wife's nominal status.
Dashiell alternatively argues res judicata is inapplicable on its merits. Although the precise contours of Dashiell's arguments are unclear, it appears that he raises two claims. First, he asserts res judicata applies only to bar relitigation of the same primary right, and Dashiell's invocation of section 317 in an attempt to recover attorney fees in South Bay I involved a different primary right than his claim for indemnity in South Bay II. However, both claims involved the same injury (the fees he incurred to defend himself in Club's lawsuit) and were rooted in the same facts and depended on the same determinations, and Dashiell's attempt to distinguish the latter from the former is unpersuasive. Second, Dashiell asserts res judicata does not apply when the former order adversely adjudicates the claim on the ground that the claim was premature. (Rest.2d Judgments, § 20, subd. (2), p. 170 & com. k, p. 175 ["A determination by the court that the plaintiff has no enforceable claim because the action is premature, or because he has failed to satisfy a precondition to suit, is not a determination that he may not have an enforceable claim thereafter, and does not normally preclude him from maintaining an action when the claim has become enforceable."].) Dashiell asserts that any claim under the Corporations Code for attorney fees before this court affirmed the judgment in South Bay I could only have been rejected on grounds of prematurity, because Dashiell could not have demonstrated he prevailed until after all avenues for attack on the judgment (including the appeal in South Bay I) were resolved and the judgment in Dashiell's favor affirmed. However, Dashiell cites no authority suggesting that a litigant successful at trial must await the resolution of his opponent's appeal before seeking a trial court order awarding him attorney fees incurred at trial, and the rules applicable to fee requests appear to suggest a fee request before resolution of the appeal is not premature. (See, e.g., Cal. Rules of Court, rule 3.1702.)
C. Conclusion
We conclude that, even assuming Dashiell could have withheld his request for attorney fees under the Corporations Code and pursued them as a separate action, he elected to seek attorney fees in the prayer in his answer, in the prayer in his cross-complaint, and in connection with the posttrial proceedings in South Bay I. The order and judgment denying him those fees, even if erroneous, bars him from relitigating that claim in the present action under res judicata and collateral estoppel principles. Accordingly, the trial court erred in awarding Dashiell his attorney fees.
DISPOSITION
The order is reversed and the stay issued November 7, 2008, is vacated. The petition for writ of supersedeas is denied as moot. Club is entitled to costs on appeal.
WE CONCUR: HALLER, Acting P. J., AARON, J.