Opinion
B322423
05-18-2023
CAROLINE S. LEE, Plaintiff and Appellant, v. UNITED ESCROW COMPANY et al., Defendants and Respondents; BOW TIE REALTY & INVESTMENT, INC., Intervener and Respondent.
Jack H. Karpeles for Plaintiff and Appellant. Chad Biggins for Jong Han Lee, United Escrow Company, and Bow Tie Realty &Investment, Inc., Defendants and Respondents
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, (Los Angeles County Super. Ct. No. BC697147) Michael P. Linfield, Judge. to Jong Han Lee; affirmed as to United Escrow Company and Bow Tie Realty &Investment, Inc.
Jack H. Karpeles for Plaintiff and Appellant.
Chad Biggins for Jong Han Lee, United Escrow Company, and Bow Tie Realty &Investment, Inc., Defendants and Respondents
FEUER, J.
This is Caroline Lee's fifth appeal. In her first appeal, she challenged a judgment in favor of United Escrow Company (United Escrow), Bow Tie Realty &Investment, Inc. (Bow Tie), and others relating to commissions Lee owed on the sale of her real property. (Lee v. United Escrow Co. (Dec. 14, 2021, B303369) (Lee I).) We dismissed Lee's appeal after she failed to comply with this court's order that she file a notice designating the record on appeal and proof of service of the notice of appeal. Lee then filed in the superior court an ex parte application for relief from default, which the court denied. Lee again appealed, and we affirmed. (Lee v. United Escrow Co. (Dec. 14, 2021, B308739) [nonpub. opn.] (Lee II).) Following those appeals, Lee appealed from an order granting attorneys' fees to United Escrow incurred in litigating the underlying action, and an order granting attorneys' fees to Bow Tie incurred on appeal in Lee I. We affirmed the orders.
Judge Samantha P. Jessner.
In this appeal, Lee challenges the May 24, 2022 order granting United Escrow $24,571 and Bow Tie $66,598 in attorneys' fees and costs incurred on appeal in Lee II. Lee contends the trial court erred in granting the motions because the attorney for Bow Tie and United Escrow (Chad Biggins) falsely stated he had given opposing counsel telephonic notice of a September 20, 2021 "ex parte application for nunc pro tunc order awarding attorney's fees because original order was filed blank" (2021 ex parte application). This same application was the subject of two of Lee's prior appeals. Further, in the trial court Lee argued the notice issue arose not in the context of the 2021 ex parte application, but with respect to a special motion to strike (Code Civ. Proc., § 425.16) filed in a different case currently pending on appeal. Lee has failed, as she has in prior appeals, to support her contention with evidence in the record and relevant legal argument. We again affirm as to United Escrow and Bow Tie.
Although Lee appeals from the May 24, 2022 order that awarded attorneys' fees and costs to United Escrow and Bow Tie, Lee's case information statement names as respondents only United Escrow and Jong Han Lee. It is therefore unclear whether Lee intended to name Bow Tie as a respondent. Because Lee served the notice of appeal on Biggins, who represented United Escrow and Bow Tie on the motions for attorney' fees, and the respondent's brief is filed on behalf of United Escrow and Bow Tie (as a "non-respondent"), we construe the notice of appeal to encompass the order awarding Bow Tie attorneys' fees.
Lee also names as a respondent Jong Han Lee, Bow Tie's chief executive officer, but the May 24, 2022 attorneys' fees order did not award him any fees (he was dismissed from the action before the order was issued). We dismiss the appeal as to Jong Han Lee.
FACTUAL AND PROCEDURAL BACKGROUND
A. Lee's Complaint and Appeals
1. The judgment and appeal (Lee I)
On March 7, 2018 Lee filed a complaint against Bow Tie, United Escrow, and others alleging Lee entered into a listing agreement in 2017 with Bow Tie for the sale of Lee's real property, and Bow Tie on "the eve of close of escrow" inserted a "false[]" six percent commission on the agreement. Further, United Escrow refused to release the amount of the claimed commission to Lee. Lee asserted causes of action against Bow Tie and United Escrow for breach of contract, resulting trust, negligence, and breach of fiduciary duty. The complaint also asserted causes of action for breach of fiduciary duty against Jong Han Lee and United Escrow's escrow officer, Tracy Ko.
The trial court later dismissed Bow Tie and Jong Han Lee from the action without prejudice at Lee's request. On July 17, 2018 Bow Tie filed a complaint in intervention, alleging causes of action against Lee for breach of contract, quantum meruit, fraud, and conversion. Bow Tie alleged Lee hired Bow Tie to sell the real property; Bow Tie performed all its obligations under the listing agreement except those Lee prevented it from performing; and escrow closed on the property, but Lee failed to pay Bow Tie its 4 percent commission on the sale.
After a court trial, in September 2019 the trial court entered a judgment for Bow Tie and a separate judgment for United Escrow and Ko. Lee appealed the judgment for Bow Tie. (Lee I, supra, B303369.) On September 2, 2020 this court dismissed Lee's appeal pursuant to California Rules of Court, rule 8.140(b) for failure to timely serve and file a designation of record on appeal and to file a proof of service of notice of appeal.
Judge Barbara M. Scheper presided over the court trial and entered the judgment against Lee.
2. Ex parte application for relief (Lee II)
After this court dismissed the appeal in Lee I, Lee filed in the superior court an ex parte application for relief from default, which the court denied. On November 10, 2020 Lee again appealed, and we affirmed. (Lee II, supra, B308739.) In our opinion we stated, "Bow Tie and United [Escrow] are to recover their costs on appeal." (Ibid.) On March 9, 2022 the Supreme Court denied review, and on March 15, 2022 this court issued its remittitur.
Judge Jessner.
3. Order granting United Escrow and Ko's motion for attorneys' fees incurred in underlying action (Lee III)
On November 1, 2019 United Escrow and Ko filed a request for attorneys' fees incurred in the underlying action. Lee did not oppose the request. The trial court granted the motion, and on January 27, 2020 the court entered an order (January 2020 attorneys' fees order) awarding $57,060 in attorneys' fees and $1,210 in costs to United Escrow and Ko.
Judge Scheper.
On September 20, 2021 United Escrow and Ko filed the 2021 ex parte application, requesting the court correct the January 2020 attorneys' fees order, which United Escrow and Ko asserted had been left blank as to the amount of attorneys' fees. On September 27, 2021 the trial court (Judge Scheper) entered a minute order stating the ex parte application was withdrawn and directing "'the Judicial Assistant to email counsel for defendant, United Escrow [C]o., a copy of the Order filed on January 27, 2020.'" Lee appealed from the September 27 order, asserting the January 2020 attorneys' fees order attached to United Escrow and Ko's notice of ruling was "invalidly created" and "backdated," and Judge Scheper was disqualified from hearing the ex parte application.
In Lee v. United Escrow Co. (Oct. 10, 2022, B316719) [nonpub. opn.] (Lee III), we dismissed Lee's appeal as untimely, explaining there was no evidence the trial court backdated the January 2020 attorneys' fees order, which arguably could have rendered her appeal timely.
4. Bow Tie's motion for attorneys' fees incurred on appeal in Lee I (Lee IV)
On December 15, 2020 Bow Tie filed a motion seeking $48,327.50 in attorneys' fees incurred on appeal in Lee I. After a hearing on April 7, 2021, the trial court granted Bow Tie's motion. On appeal, Lee argued that Biggins engaged in misconduct by representing United Escrow and Ko in filing the 2021 ex parte application-the same argument asserted on appeal in Lee III, supra, B316719. We affirmed, explaining Lee had failed to show why the 2021 ex parte application had any bearing on the April 7, 2021 order granting Bow Tie's motion for attorneys' fees. (Lee v. United Escrow Co. (March 13, 2023, B313613) [nonpub. opn.] (Lee IV).)
Judge David Sotelo.
B. This Appeal: Bow Tie's and United Escrow's Motions for Attorneys' Fees for the Appeal in Lee II
On April 25, 2022 Bow Tie filed a motion for attorneys' fees, seeking $65,737 in attorneys' fees incurred in the Lee II appeal. Biggins submitted a supporting declaration in which he averred his hourly rate was $750 and he spent a total of 87.65 hours working on the appeal. He attached an invoice reflecting the hours he spent on the appeal. On the same day Bow Tie filed a memorandum of costs on appeal seeking $861 in costs incurred on appeal in Lee II.
Lee filed a two-page opposition to Bow Tie's motion, in which she argued the decision in Lee II was not final because Lee had 90 days from denial of review by the California Supreme Court in which to file a petition for a writ of certiorari seeking review in the United States Supreme Court. Lee also challenged the hourly rate charged by Biggins on the sole ground that "the credibility of counsel for moving party [Biggins] is under scrutiny in Case 22STCV05772" because Biggins had stated under penalty of perjury that he gave advance notice of a hearing to opposing counsel by calling Lee's then-attorney Ira Frazer, but Biggins did not call him. Lee asserted a determination of whether $750 per hour was reasonable "can be ascertained very simply by [Biggins] producing the telephone logs for the dates and times in reference to" the statement by Biggins that he called Frazer. Lee's attorney Jack Karpeles submitted a supporting declaration explaining that Biggins made a representation in his declaration that he had given advance notice to Frazer with respect to a special motion to strike filed in case No. 22STCV05772, stating "'I did telephone Ira Frazer.'" Karpeles added that he had investigated whether Biggins called Frazer, and "[t]here is no evidence of a telephone call by [Biggins] to Ira Frazer ...."
In its reply brief, Bow Tie argued the decision in Lee II became final once the remittitur had issued, and therefore, its motion for attorneys' fees was proper. Bow Tie argued with respect to the call to Frazer that the notice issue concerned the 2021 ex parte application for a nunc pro tunc order, which was the subject of Lee III, supra, B316719, and it was not relevant to this appeal.
Although Bow Tie and United Escrow in their reply briefs argued the Frazer notice issue arose with respect to the September 2021 ex parte application, Lee argued the notice issue related to Los Angeles Superior Court case No. 22STCV05772, which is a different lawsuit for which there is a pending appeal of the trial court's order granting United Escrow's special motion to strike (case No. B322188). Regardless of whether the notice to Frazer related to the September 2021 ex parte application or the pending appeal in case No. B322188, it has no relevance to this appeal.
On April 25, 2022 United Escrow filed a motion for attorneys' fees, seeking $24,075 in attorneys' fees incurred on appeal in Lee II. Biggins submitted a supporting declaration in which he averred his hourly rate was $750 and he spent a total of 32.1 hours working on the appeal. He submitted an invoice reflecting the hours he spent on the appeal. On the same day United Escrow filed a memorandum of costs on appeal seeking $496 incurred in the Lee II appeal. Lee filed a two-page opposition that was almost identical to her opposition to Bow Tie's motion, as well as an identical supporting declaration from Karpeles. United Escrow in its reply brief raised the same arguments made by Bow Tie in its reply brief.
On May 24, 2022 the trial court granted the motions and awarded $66,598 in attorneys' fees and costs to Bow Tie and $24,571 to United Escrow. The court ruled our decision in Lee II was final. Further, the court found Biggins's hourly rate of $750 per hour was reasonable, explaining, "Section II of the Opposition is difficult to understand. Plaintiff apparently is arguing that [d]efense counsel's hourly rate of $750 should not be granted because Plaintiff's counsel questions whether [d]efense counsel made a particular phone call. The argument is garbled at best; more critically, Plaintiff has produced no evidence to support his argument. '[A]bsolutely no evidence was submitted to support this factual claim .... Argument of counsel is not evidence.'"
Judge Michael P. Linfield.
Lee does not contend on appeal our decision in Lee II was not final. The trial court was correct that the judgment became final upon issuance of the remittitur. (See Hoover v. Galbraith (1972) 7 Cal.3d 519, 525-526 [judgment becomes final "either upon expiration of the period within which an appeal may be taken, or, if an appeal is taken, upon the issuance of the remittitur when the judgment has been affirmed"]; Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 479 ["An appeal is final on the date remittitur issues."].)
With respect to Biggins's declarations setting forth the number of hours he had worked on the two motions, the trial court noted it was Lee's burden to specify the hours she was challenging as excessive, which she failed to do.
Lee timely appealed.
DISCUSSION
Lee argues on appeal Biggins engaged in misconduct in representing United Escrow and Ko in filing their 2021 ex parte application for a nunc pro tunc order. As discussed, the 2021 ex parte application was the subject of Lee's appeal in Lee III, supra, B316719. And in Lee IV, supra, B313613, Lee sought reversal of the order granting Bow Tie's motion for attorneys' fees and costs incurred on appeal in Lee I based on Biggins's alleged misconduct involving the 2021 ex parte application.
In this appeal, Lee contends Biggins failed to give proper telephonic notice to Lee's then-attorney Frazer of the 2021 ex parte application, contrary to Biggins's declaration that he had provided notice. To complicate matters, in the trial court Lee argued the lack of notice was not with respect to the 2021 ex parte application, but instead, to a special motion to strike filed in a related lawsuit, now pending on appeal. Like the trial court, we cannot determine whether Biggins failed to provide notice to Frazer in this case or the related case because Lee quoted the purported Biggins declaration in her opposition but failed to provide the declaration to the trial court. Moreover, Lee argues this court has jurisdiction to correct "errors" in a declaration made by an attorney as an officer of the court, but she fails to explain (or provide any authority) for how this ability to correct statements by an attorney affects the hourly rate the attorney later charges in a different proceeding (here, for the work performed by Biggins on appeal in Lee II).
Lee includes in her appellant's appendix telephone records dated September 21, 2022 that she claims "show conclusively" that Biggins did not make a telephone call to Frazer on September 23, 2021 to provide proper notice. (United Escrow and Bow Tie argue the records show Biggins gave notice.) These records were not presented to the trial court and are outside the record in this appeal. The records are improperly included in the appellant's appendix (with no request to augment the record or take evidence on appeal), and we do not consider them. As the trial court found, Lee presented no other evidence to support her position Biggins failed to give telephonic notice (whether with respect to the ex parte application or the special motion to strike in the related case).
In the absence of a showing of relevance to a determination of Biggins's hourly rate on the attorneys' fees motions (or any evidence in the record to support her position), Lee has failed to carry her burden to demonstrate error by the trial court. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 ["'[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.'"]; Multani v. Witkin &Neal (2013) 215 Cal.App.4th 1428, 1457 [plaintiffs forfeited claim of error by failing to "present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error"].)
We are concerned that Lee appears intent on relitigating the September 2021 ex parte application regardless of the nature of the appeal at hand. And each time we affirm the trial court's order, United Escrow and Bow Tie file a motion for attorneys' fees incurred on appeal. Lee then appeals those awards, leading United Escrow and Bow Tie to incur even more attorneys' fees. In the end, relitigation of the same issues (specifically, the 2021 ex parte application) unnecessarily consumes the parties' and the court's time, each time increasing the attorneys' fees Lee will ultimately need to pay.
DISPOSITION
The appeal as to Jong Han Lee is dismissed. The May 24, 2022 order awarding attorneys' fees to Bow Tie and United Escrow is affirmed. Bow Tie, United Escrow, and Jong Han Lee are to recover their costs on appeal.
We concur: PERLUSS, P. J. SEGAL, J.