Opinion
NOT TO BE PUBLISHED
Appeals from a postjudgment order of the Superior Court of Orange County, No. 03CC05649 Thierry Patrick Colaw, Judge.
Law Offices of Newton W. Kellam and Newton W. Kellam for Defendants and Appellants.
Braun & Melucci and Kerri M. Melucci for Plaintiff, Cross defendant and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendants Lumbermens Mutual Casualty Company (Lumbermens) and General Insurance Company of America (General Insurance) (collectively, defendants) appeal from a postjudgment order awarding attorney fees to plaintiff Oldcastle Precast, Inc., doing business as Utility Vault Company (plaintiff). Plaintiff filed a lawsuit after it was not paid for materials it provided for a public works project. Plaintiff sought, inter alia, recovery on the payment bond Lumbermens had posted for the project as surety under Civil Code section 3247. In the first appeal filed in this case, we reversed a judgment entered in favor of Lumbermens, following a jury trial. We held the trial court erred by concluding Lumbermens could assert the defense of equitable estoppel against plaintiff’s action on the payment bond, based solely on the general contractor’s reliance on an incorrect release issued by plaintiff. (Oldcastle Precast Inc. v. Pinner Construction Co., Inc. (May 11, 2006, G035133 [nonpub. opn.] (Oldcastle I).)
Following Oldcastle I, plaintiff filed a motion for summary judgment against Lumbermens on the payment bond claim. Pinner Construction Company, Inc. (Pinner), the general contractor on the project, filed a cross complaint asserting claims for implied indemnity, equitable contribution, and negligent misrepresentation against plaintiff, based on the incorrect release it had prepared. The trial court granted plaintiff’s motion for summary judgment, which we affirmed on appeal. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554 (Oldcastle II).)
Judgment was entered against Lumbermens, which included an attorney fees award under Civil Code section 3248, subdivision (b). Section 3248, subdivision (b) authorizes an attorney fees award in an action “brought upon” a payment bond. Pinner thereafter filed a motion seeking to stay enforcement of the judgment against Lumbermens “under the court[’]s inherent equitable jurisdiction until trial of Pinner’s cross complaint is completed.” Notwithstanding plaintiff’s opposition, the trial court granted Pinner’s request to stay plaintiff’s enforcement of the judgment and ordered Pinner to deliver into escrow the full amount owed under the judgment, pending further order of the court.
Following a bench trial on the cross complaint, the court found in favor of plaintiff and lifted the stay on plaintiff’s enforcement of the judgment (which had since been amended to include Lumbermens’s surety during the appeal in Oldcastle II, General Insurance). The trial court granted plaintiff’s motion to recover attorney fees incurred in the trial of the cross complaint on the ground, inter alia, such fees were generated in an action on a payment bond under Civil Code section 3248, subdivision (b). In this appeal, defendants solely challenge the order awarding plaintiff attorney fees incurred in connection with the cross complaint.
We affirm. At Pinner’s request and over plaintiff’s opposition, the trial court ordered plaintiff’s right to enforce the judgment on its payment bond claim stayed pending the completion of trial on the cross complaint. As a result, plaintiff’s success at trial on the cross complaint became “a necessary precursor to and an integral component of a successful outcome” in plaintiff’s payment bond action against Lumbermens. (Liton Gen. Engineering Contractor, Inc. v. United Pacific Insurance (1993) 16 Cal.App.4th 577, 585 (Liton).) The trial court, therefore, correctly determined that the attorney fees incurred by plaintiff during trial on the cross complaint should be awarded plaintiff as part of its action on the payment bond.
We reiterate portions of the factual and procedural history in this background section, as set forth in Oldcastle II, supra, 170 Cal.App.4th at pages 558 560.
I.
Underlying Facts of the Parties’ Dispute
Pinner and the Orange County Sheriff’s Department entered into a public works construction contract for a project known as the “‘OCSD—Theo Lacy Jail Expansion, Phase Three, Building B Project’” (the project). Pinner and Intra American Foundation & Drilling Company, Inc. (Intra American), entered into a written subcontract agreement, under the terms of which Intra American agreed to furnish and install the concrete pilings for the project. Pursuant to Civil Code sections 3247 and 3248, Lumbermens, as surety, posted a “Labor and Materials Payment Bond” (the payment bond) with the County of Orange for the project.
Intra American and plaintiff entered into a sub subcontract under which plaintiff agreed to supply concrete piling materials to Intra American for the project. The payment bond stated that Lumbermens would pay plaintiff for materials it provided for the project if Intra American failed to pay plaintiff.
Between May 28 and August 8, 2002, plaintiff furnished prestressed concrete piling materials to Intra American for use on the project. On July 3, 2002, a release stating plaintiff was owed nothing through June 30, 2002 ($0 release) was mistakenly created. Within 25 to 30 minutes of the $0 release’s creation, plaintiff and Intra American agreed to rescind the $0 release and agreed to a new replacement release reflecting the sum of $46,909.01. Despite assurances it would discard the $0 release, Intra American sent it to Pinner. Plaintiff itself never sent the $0 release to Pinner.
Plaintiff supplied Intra American materials totaling $369,974.47, but was paid only $221,443.97, leaving an unpaid balance of $148,530.50. Plaintiff filed a stop notice with the County of Orange in the amount of $148,530.50. Safeco, as surety, posted a stop notice release bond in the amount of $185,663.13 (125 percent of the amount of the stop notice filed by plaintiff) and the County of Orange released money otherwise withheld from Pinner as a result of the stop notice filed by plaintiff. Lumbermens received plaintiff’s written notice on bond claim.
II.
The First Amended Complaint
Plaintiff sued to recover the outstanding balance Intra American had failed to pay it under their contract. Plaintiff’s first amended complaint alleged the following claims: (1) breach of written and oral contracts against Intra-American; (2) open book account against Intra American; (3) account stated against Intra American; (4) common counts for “Work, Labor, Services and/or Materials Furnished” against Intra American; (5) action on the payment bond against Lumbermens; (6) action on a contractor’s license bond against Star Insurance Company; and (7) action on a stop notice release bond against Safeco Insurance Company of America (Safeco). The complaint prayed for judgment in the total amount of $148,530.50.
According to the parties’ joint statement of the case, Star Insurance Company settled with plaintiff, and Intra American entered into a stipulated judgment before trial.
No cause of action was alleged against Pinner, although it was identified as a defendant in the caption and in the body of the first amended complaint. Pinner participated in the lawsuit, however, through a jury trial and postjudgment motions. Pinner, Lumbermens, and Safeco filed an answer containing a general denial and affirmative defenses.
III.
We Reverse the Judgment Entered Following the Jury Trial in Oldcastle I.
Before trial, plaintiff argued that evidence of Pinner’s reliance on the $0 release was inadmissible because it did not support an equitable estoppel defense for the sureties as a matter of law. The trial court rejected plaintiff’s argument; the court concluded the doctrine of equitable estoppel was available as a defense to the sureties under the circumstances of this case, and approved a special verdict form asking the jury to make findings of fact relevant to whether the defense had been proven.
The jury found in favor of Pinner, Lumbermens, and Safeco, and made the special finding that Pinner reasonably relied on the $0 release. Judgment was entered in favor of Pinner, Lumbermens, and Safeco. The court granted Pinner, Lumbermens, and Safeco’s motion for prevailing party attorney fees and costs. Plaintiff appealed from both the judgment and the postjudgment order awarding Pinner attorney fees and costs, arguing, inter alia, the trial court erred by concluding, as a matter of law, that the defense of equitable estoppel was available to Lumbermens on the payment bond claim, based solely on Pinner’s reliance on the $0 release.
In Oldcastle I, we reversed the judgment, holding the trial court erred by concluding that Lumbermens could assert equitable estoppel as a defense against plaintiff’s action on the payment bond, based solely on Pinner’s reliance on an incorrect release.
IV.
Pinner Files a Cross complaint Against Plaintiff; the Trial Court Grants Summary Judgment in Plaintiff’s Favor on the Payment Bond Claim Which We Affirm in Oldcastle II; the Second Amended Judgment Is Entered.
After we issued our opinion in Oldcastle I, plaintiff filed a motion for summary judgment, or for summary adjudication, as to its breach of written contract claim against Intra American, its action for recovery on the payment bond against Lumbermens, and its action for recovery on the stop notice release bond against Safeco.
Before the trial court ruled on plaintiff’s motion for summary judgment, the court granted Pinner’s motion for leave to file a cross complaint against plaintiff for implied indemnity, equitable contribution, and negligent misrepresentation. The cross complaint alleged Pinner and Lumbermens entered into a surety indemnity agreement whereby Pinner agreed to indemnify Lumbermens for “all loss cost and expense” arising out of claims filed by materialmen on the project, which included plaintiff. The cross complaint further alleged Pinner was required under the indemnity agreement to satisfy any judgment plaintiff obtained against Lumbermens resulting from payments made based on plaintiff’s erroneous release, and, thus, plaintiff would be liable to Pinner for full or partial indemnification and/or equitable contribution and for damages sustained by Pinner as a result of plaintiff’s negligent misrepresentation.
Plaintiff opposed Pinner’s motion for leave to file a cross complaint on grounds, inter alia, that Pinner was a nonparty and therefore had no right to file a cross complaint. The trial court granted Pinner’s motion and ordered its proposed cross complaint deemed filed and served as of February 1, 2007.
The trial court granted plaintiff’s motion for summary judgment. In April 2007, an amended judgment was entered, awarding judgment in favor of plaintiff and against Lumbermens, Intra American, and Safeco, jointly and severally, for the principal amount of $148,530.50 and prejudgment interest. The judgment also awarded plaintiff attorney fees in the amount of $120,610 and costs in the amount of $11,490.46 against Lumbermens and Intra American. Lumbermens and Safeco appealed from the amended judgment.
In an opinion filed in January 2009, we affirmed the amended judgment. (Oldcastle II, supra, 170 Cal.App.4th at p. 557.) In March 2009, plaintiff filed a motion for attorney fees and costs incurred in the course of defending Lumbermens and Safeco’s unsuccessful appeal; plaintiff’s motion was unopposed. On April 3, 2009, a second amended judgment was entered, awarding plaintiff $25,650 in additional attorney fees “on appeal” and $478 in costs “on appeal, ” against Lumbermens.
V.
Pinner Seeks Stay of Enforcement of the Operative Judgment Pending Trial on the Cross complaint; the Trial Court Orders Pinner to Deposit in Escrow Funds Sufficient to Satisfy the Judgment and That Such Funds Are to Remain Held in Escrow Pending Further Order of the Court.
On April 27, 2009, Pinner filed a motion for stay of enforcement of the second amended judgment “under the court[’]s inherent equitable jurisdiction until trial of Pinner’s cross complaint is completed.” Pinner also sought a “Pretrial Right to Attach Order and Writ of Attachment of the Judgments as accounts receivable of [plaintiff] pursuant to Code of Civil Procedure Section 485.010.” Plaintiff filed an opposition to Pinner’s motion to stay enforcement of the judgment.
In May 2009, the trial court stayed enforcement of the judgment pending trial on the cross complaint and ordered Pinner to deposit $600,000 with International City Escrow Company. The court further ordered that the escrow agent divide those funds among three different bank accounts where they were to remain pending further order of the court.
The trial court granted plaintiff’s ex parte application to amend the second amended judgment (now the third amended judgment) to provide that Lumbermens’s appeal bond surety in Oldcastle II, General Insurance, is also jointly and severally liable for the amounts set forth in the second amended judgment.
VI.
The Trial Court Finds in Favor of Plaintiff, Following a Bench Trial on the Cross complaint, Awards Plaintiff Prevailing Party Attorney Fees, and Lifts the Stay of Enforcement of the Operative Judgment; Defendants Appeal.
Pinner withdrew its claim for equitable contribution before trial on the cross complaint. Following a bench trial, in October 2009, the trial court issued its statement of intended decision in which it found in favor of plaintiff on Pinner’s remaining claims. The record does not contain any objection to the statement of intended decision or request for a statement of decision.
Plaintiff filed a motion to lift the stay on enforcement of the third amended judgment and to disburse the funds held in escrow. Plaintiff also filed a motion to recover attorney fees and costs as the prevailing party on Pinner’s cross complaint under, inter alia, Civil Code sections 3248 and 3250.
The trial court granted plaintiff’s motion to lift the stay on enforcement of the third amended judgment and to disburse to it the funds held in the escrow account. The court’s order stated: “WHEREAS: [¶] International City Escrow Company is currently holding in trust $600,000.00 placed on deposit by Cross Complainant PINNER CONSTRUCTION COMPANY, INC., which was to be placed into three separate interest bearing FDIC insured escrow accounts including, but not limited to, Bank of America, City National Bank, and Union Bank of California. The funds were to be held in trust by International City Escrow Company until further order of this court. [¶] THE COURT NOW ORDERS: [¶] All funds, plus accumulated interest thereon, held in trust by International City Escrow Company shall be paid to Plaintiff and Cross Defendant OLDCASTLE PRECAST, INC., dba UTILITY VAULT COMPANY. The funds shall be remitted immediately....”
The court also awarded plaintiff attorney fees and costs incurred in its defense of the cross complaint, pursuant to Civil Code sections 3248, subdivision (b) and 3250, and Code of Civil Procedure section 685.040. The court’s order stated: “Plaintiff... is awarded an additional $111,142.40 consisting of attorney fees of $110,982.50 and $160.00 in costs against Defendant LUMBERMENS MUTUAL CASUALTY COMPANY as the surety on the public works payment bond posted for the benefit of Plaintiff... and against General Insurance Company of America as the appeal bond surety.”
In December 2009, judgment was entered in favor of plaintiff as to Pinner’s cross complaint. Lumbermens and General Insurance appealed.
Safeco and Pinner filed notices of appeal. At their request, this court has since dismissed their appeals.
DISCUSSION
Defendants contend the trial court erred by awarding plaintiff attorney fees incurred in the trial on Pinner’s cross complaint. As explained post, the trial court properly awarded such attorney fees under Civil Code section 3248, subdivision (b), because, under the circumstances, the trial on the cross complaint was “a necessary precursor to and an integral component of a successful outcome” in the payment bond action against Lumbermens. (Liton, supra, 16 Cal.App.4th at p. 585.)
I.
Actions on Payment Bonds and Attorney Fees Awards
As we stated in Oldcastle II, supra, 170 Cal.App.4th at page 563: “Public works payment bonds, governed by Civil Code section 3247 et seq., provide a cumulative remedy to unpaid subcontractors on public works projects. ‘Unlike private works contracts, an unpaid subcontractor on a public works project may not seek recovery from the real property. “[P]rinciples of sovereign immunity do not permit liens for persons furnishing labor or supplies on public property....” [Citation.] In the place of a lien, the unpaid subcontractor may proceed against the general contractor by way of the payment bond requirements of Civil Code section 3247 et seq. These statutes “‘give to materialmen and laborers who furnish material for and render services upon public works an additional means of receiving compensation.’ [Citation.]”’ [Citation.]” Thus, “[e]very original contractor to whom a public entity awards a contract in excess of $25,000 for any public work must, before beginning the work, file a payment bond with the public entity awarding the contract. [Citation.] The payment bond must be executed by ‘good and sufficient sureties.’” (Liton, supra, 16 Cal.App.4th at p. 584.)
“Civil Code section 3248, subdivision (c) requires that public works payment bonds inure to the benefit of materialmen and subcontractors of any tier of a public works project and that any such materialmen or subcontractors may maintain a direct action against the sureties. [Citations.] A surety’s liability under a public works payment bond arises when a contractor fails to pay for work performed by materialmen or subcontractors under the contract. [Citation.]” (Oldcastle II, supra, 170 Cal.App.4th at p. 563.)
Civil Code section 3248, subdivision (b) provides for prevailing party attorney fees for an action on a payment bond, stating: “The bond shall provide that if the original contractor or a subcontractor fails to pay (1) any of the persons named in Section 3181, (2) amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or (3) for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to the work and labor, that the sureties will pay for the same, and also, in case suit is brought upon the bond, a reasonable attorney’s fee, to be fixed by the court....” (Italics added; see Liton, supra, 16 Cal.App.4th at p. 584 [the payment bond “must also provide ‘in case suit is brought upon the bond, a reasonable attorney fee, to be fixed by the court’”].)
II.
Liton, supra, 16 Cal.App.4th 577
Here, the trial court relied on Liton, supra, 16 Cal.App.4th 577, in concluding that plaintiff should be awarded the attorney fees it incurred at trial on the cross-complaint. In Liton, a general contractor entered into a contract with the California Department of Transportation (Caltrans) for bridge and highway construction. (Id. at p. 582.) A surety issued a payment bond on behalf of the general contractor as required by Civil Code section 3247. (Liton, supra, at pp. 582 583.) The general contractor entered into a subcontract with the plaintiff by which the plaintiff “took responsibility for the bridge work portion of the project.” (Id. at p. 583.) The subcontract required the general contractor and the plaintiff to arbitrate any disputes between them arising out of the subcontract as “‘a condition precedent to any right of legal action’” and further provided that each would bear its own legal fees incurred through arbitration. (Ibid.) As the project neared completion, Caltrans assessed the general contractor liquidated damages in the amount of $87,920 based on a delay of 157 calendar days. (Ibid.) The general contractor blamed the delay on the plaintiff and another subcontractor, and withheld $77,840 of its final payment to the plaintiff. (Ibid.) Caltrans thereafter released $26,880 to the general contractor, which sum it passed through to the plaintiff. (Ibid.)
The general contractor pursued administrative proceedings before Caltrans’s board of review. (Liton, supra, 16 Cal.App.4th at p. 583.) The plaintiff filed an action against the general contractor for breach of contract and common counts, and against the surety for recovery on the payment bond. (Ibid.) The complaint prayed for recovery of attorney fees against the surety only. (Ibid.) The general contractor moved to stay the entire action and to compel the plaintiff to arbitrate its dispute with the general contractor as part of the pending arbitration proceeding between the general contractor and Caltrans. (Ibid.) The surety filed an answer to the plaintiff’s complaint, raising as an affirmative defense that “the action was subject to abatement until completion of the arbitration.” (Ibid.) Over the plaintiff’s opposition, the trial court ordered the action stayed and compelled the plaintiff to arbitrate its claims against the general contractor. (Ibid.)
Following the arbitration proceeding, the arbitrator awarded the plaintiff the entire amount of its claim of $46,480 of the liquidated damages withheld, plus interest. (Liton, supra, 16 Cal.App.4th at p. 583.) The plaintiff was also awarded in $5,000 in settlement proceeds paid by Caltrans to the general contractor for “railroad flagging charges.” (Ibid.) The arbitrator ordered each party to bear its own attorney fees and costs incurred in the arbitration. (Ibid.) The arbitration award was confirmed, and the trial court ordered that the stay of the plaintiff’s original action be lifted. (Ibid.) Judgment was entered against the general contractor which paid the entire amount of the judgment to the plaintiff. (Ibid.)
After the stay was lifted, the plaintiff moved for summary judgment against the surety to recover the attorney fees the plaintiff incurred in the arbitration proceeding. (Liton, supra, 16 Cal.App.4th at p. 583.) The surety filed a cross motion for summary judgment, in which it argued the general contractor’s payment of the amount owed the plaintiff under the judgment exonerated the surety from any liability for attorney fees, as a matter of law. (Id. at pp. 583 584.) The trial court granted the plaintiff’s motion for summary judgment and awarded it attorney fees and costs incurred in the arbitration. (Id. at p. 584.)
The appellate court affirmed the attorney fees award on the ground the arbitration proceeding “was an integral aspect of [the plaintiff’s] action on the bond.” (Liton, supra, 16 Cal.App.4th at p. 585.) The court reasoned: “At the urging of [the surety], as well as [the general contractor], and over [the plaintiff]’s strenuous objection, the trial court compelled [the plaintiff] to complete the arbitration before it was permitted an opportunity to establish [the surety]’s liability on the bond.... Under the circumstances, successful resolution of the arbitration action was a necessary precursor to and an integral component of a successful outcome in [the plaintiff]’s action against [the surety]. The court correctly determined that the arbitration fees were incurred by [the plaintiff] as part of its action on the bond.” (Ibid.) The appellate court rejected the surety’s argument that Civil Code section 3250 requires an apportionment of fees spent by the plaintiff in arbitrating with the general contractor and in litigating with the surety. (Liton, supra, at p. 588.) The appellate court stated the plaintiff “was not permitted to establish [the surety]’s liability on the bond without first completing arbitration. The liability of [the general contractor] and [the surety] were so factually interrelated that it would have been impossible to separate the activities involved in the arbitration into compensable and noncompensable time units. Allocation was not required.” (Ibid.)
III.
Under the Circumstances of This Case, Trial on the Cross complaint Was a Necessary Precursor to and an Integral Component of the Payment Bond Claim Against Lumbermens; the Trial Court Did Not Err by Awarding Plaintiff Its Attorney Fees.
Here, at Pinner’s request, the trial court stayed enforcement of the judgment plaintiff obtained against Lumbermens on its action on the payment bond, pending resolution of Pinner’s claims against plaintiff. Pinner deposited $600,000 in escrow pursuant to the court’s order, but plaintiff could not obtain those funds until further order of the court. The court stayed enforcement of the judgment over plaintiff’s opposition which included its demand that Lumbermens immediately pay the amount specified in the third amended judgment.
As in Liton, supra, 16 Cal.App.4th at page 585, under the circumstances in this case, plaintiff was unable to obtain recovery through the payment bond action against Lumbermens until it had successfully defended Pinner’s claims at the trial on the cross complaint. Thus, plaintiff’s participation in the trial of the cross complaint “was a necessary precursor to and an integral component of a successful outcome” in plaintiff’s action on the payment bond against Lumbermens. (Ibid.) Consequently, the attorney fees plaintiff incurred at trial on the cross complaint constituted fees incurred in an action on the payment bond within the meaning of Civil Code section 3248, subdivision (b). Thus, the trial court did not err by awarding plaintiff its attorney fees.
We understand Pinner’s strategic decision to seek a stay of enforcement of the judgment pending trial on the cross complaint to ensure recovery upon its success at trial, and nothing stated in this opinion diminishes the wisdom of that decision.
Defendants contend the trial court erred by awarding attorney fees to plaintiff because “the indemnity action filed by Pinner was not a ‘necessary precursor to’ the action on the bond because no element of proof in the indemnity trial was an element of proof in the action on the bond. The indemnity trial focused exclusively on the release, whether it was intended to reach Pinner and whether Pinner reasonably relied on the release to its detriment.” But the key circumstance here is that plaintiff could not obtain recovery on its action on the payment bond without first clearing the hurdle of successfully defending against Pinner’s claims. Whether an action on a payment bond and a claim for equitable indemnity share common elements under the circumstances here is irrelevant.
Without citing any legal authority, defendants argue, “the indemnity trial cannot be a ‘necessary precursor’ if final judgment was already entered in favor of [plaintiff] and against Lumbermens and General [Insurance] April 3, 2009 prior to the date the indemnity trial commenced.” Defendants’ appeal, however, challenges a postjudgment order awarding plaintiff attorney fees and costs against Lumbermens. There is no legal basis for denying plaintiff an award of the postjudgment attorney fees it incurred in its efforts to receive payment of the amount to which it was entitled under the third amended judgment. On the other hand, Code of Civil Procedure section 685.040 provides that attorney fees incurred in enforcing a judgment are included as “costs collectible” if the underlying judgment includes an award of attorney fees to the judgment creditor pursuant to a contract. Although we do not need to decide whether section 685.040 provides a separate and independent basis for affirming the award of attorney fees at issue here, we observe that Civil Code section 3248, subdivision (b) requires a payment bond to provide “in case suit is brought upon the bond, a reasonable attorney’s fee, to be fixed by the court.” Thus, payment bonds under section 3248, subdivision (b) provide for attorney fee awards by contract and by operation of statute.
Defendants also argue, “fees incurred in the indemnity trial cannot be a ‘necessary precursor’ because [plaintiff] would have been required to incur the fees even if the stay order had never been issued.” As we have explained ante, because of the stay, it became necessary for plaintiff to incur attorney fees at the trial on the cross complaint in order to enforce the judgment against Lumbermens on the payment bond action. Whether plaintiff might have been entitled to recover the same attorney fees in defending against the cross complaint at trial had the stay never been issued is a question that is not before us.
Defendants also contend, “as a result of the deposit order, the judgment had been fully satisfied” and thus “[n]o further attorney fees or litigation was required to have a ‘successful outcome’ of [plaintiff]’s litigation against Lumbermens or General [Insurance].” But, under the circumstances here, plaintiff’s success in obtaining a money judgment against Lumbermens was hollow until plaintiff was permitted to enforce that judgment and actually receive the funds to which it was entitled thereunder.
Defendants also argue, “the trial court awarded $53,702.50 in fees incurred by [plaintiff] prior to the stay order which should be reversed.” Defendants cite 33 pages from the clerk’s transcript, which consist of a summary of attorney fees and invoices produced by plaintiff’s attorneys. Defendants have not provided any analysis of the $53,702.50 in fees that are in question in their appellate briefs, much less shown how such fees were related neither to plaintiff’s action on the payment bond nor its efforts to enforce the judgment it obtained on the payment bond. Although plaintiff points out defendants’ omission in the respondent’s brief, the reply brief does not provide any further analysis and simply states on the subject: “In addition, there is no nexus for fees incurred by [plaintiff] prior to the issuance of stay, which fees total $53,702.50.” Defendants’ argument is therefore forfeited.
We find no error.
DISPOSITION
The postjudgment order is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.