Date: 02-14-2018

Case Style: Hong Sang Market, Inc. v. Vivien Peng

Case Number: A140653, A141640

Judge: McGuiness, Acting P.J.

Court: California Court of Appeals First Appellate District Division Three on appeal from the Superior Court, San Francisco County

Plaintiff's Attorney: John Kao

Defendant's Attorney: Jethro Busch, Michael A. King and Erin Amy Owen

Description: These appeals arise out of a commercial tenancy dispute. In one appeal, defendant
and cross-complainant Vivien Peng challenges a judgment awarding damages for backdue
rent to her former landlord, plaintiff and cross-defendant Hong Sang Market, Inc.
(Hong Sang). Peng argues that a judgment in a prior unlawful detainer action against her,
in which Hong Sang was awarded one month’s back-due rent along with possession of
the premises, has a res judicata effect and bars any further claims for rent owed to Hong
Sang.
In the other appeal, Peng challenges an order awarding attorney fees and costs to
Hong Sang.1
She contends that fees incurred by Hong Sang in defending against a crosscomplaint
she filed are outside the scope of the parties’ contractual attorney fee clause,
that fees may not be awarded for work on a motion to strike the cross-complaint as a

*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II of the Discussion.
1On the court’s own motion, we consolidate the appeals in case numbers A140653
and A141640 for purposes of decision.
2
strategic lawsuit against public participation2
(SLAPP) in light of this court’s earlier
decision reversing orders granting the motion and awarding statutory attorney fees, and
that some fees appear to have been incurred before the effective date of the attorney fee
clause or may be duplicative of fees recovered in the unlawful detainer action.
In the published portion of this opinion, we conclude the unlawful detainer
judgment did not preclude Hong Sang from pursuing a separate civil action for back-due
rent that accrued in months other than the one month for which damages were awarded in
the unlawful detainer action. In the unpublished portion of the opinion, we conclude the
trial court erred in awarding Hong Sang attorney fees incurred in defending against
Peng’s cross-complaint, and we also make an adjustment to the fee award to ensure that
Peng receives the benefit of an agreed-upon reduction in the award associated with fees
incurred before the effective date of the attorney fee clause. Accordingly, we shall
modify the attorney fee award but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Peng’s Tenancy
Hong Sang owned a two-unit commercial building in San Francisco. In 2002,
Ming Kee Game Birds, Inc. (Ming Kee) leased the entire premises and sublet one of the
two units to Peng for a period of ten years.
Ming Kee sued Peng for breach of the sublease in 2004. Peng cross-complained
against Ming Kee and ended up securing a judgment against Ming Kee in the sum of
$46,545. In 2009, Peng was granted an additional award of attorney fees payable by
Ming Kee in the sum of $47,800. She managed to collect $46,500 in partial satisfaction
of the outstanding judgment.
In August 2009, while Peng was still attempting to collect her judgment against
Ming Kee, she was informed that Hong Sang and Ming Kee had agreed to terminate the
master lease. A new tenant, Ming’s Poultry, LLC, immediately took possession of the
property formerly leased by Ming Kee and continued the same poultry business that had

2Code Civ. Proc., § 425.16.
3
been conducted by Ming Kee. According to Peng, the change in ownership was a
fraudulent conveyance designed to prevent her from collecting the unpaid portion of the
judgment against Ming Kee through a setoff of rent owed under the sublease. Peng
rejected Hong Sang’s offer of a lease and demand for rent.
As of September 2009, Peng remained in possession of the premises with Hong
Sang’s knowledge and consent. By operation of law, she became Hong Sang’s tenant at
the rental rate of $4,725 per month. Hong Sang filed an unlawful detainer action against
Peng in 2009 but ultimately dismissed the case voluntarily in early January 2011, when it
acknowledged that the three-day notice to pay rent or quit that was served on Peng in
2009 was arguably defective. Peng did not pay any rent for the premises during the
period from September 2009 through February 2011.
In January 2011, Hong Sang served Peng with a written notice of change in terms
of the tenancy pursuant to Civil Code section 827 (the section 827 notice). The change in
terms became effective on March 1, 2011. Among other things, Hong Sang confirmed
that Peng’s monthly rent was $4,725. It also amended the terms of the tenancy to include
an attorney fee clause, which provides in relevant part that the prevailing party in “any
legal action, arbitration or proceeding arising out of or relating to the . . . tenancy” shall
be entitled to attorney fees and costs “reasonably and actually incurred in the action or
proceeding by the prevailing party.”
Hong Sang’s Unlawful Detainer Lawsuit
Following the effective date of the section 827 notice, Peng paid Hong Sang rent
of $4,725 per month in March and April 2011. In May 2011, Peng became delinquent in
her rent payments. On May 13, 2011, Hong Sang served Peng with a three-day notice to
pay rent or quit as well as a thirty-day notice to quit. The three-day notice to pay rent or
quit stated that Peng’s rent was delinquent in the amount of $4,725 for the month of May
2011 but also expressly reserved Hong Sang’s rights to recover rent for the period before
March 1, 2011, in a separate legal action. Peng did not comply with either of the May
2011 notices.
4
Hong Sang filed an unlawful detainer action against Peng in June 2011. It sought
to recover possession of the premises and requested back-due rent in the amount of
$4,725, which was the amount demanded for the month of May 2011 in the three-day
notice to pay rent or quit. In September 2011, the trial court granted summary judgment
in favor of Hong Sang in the unlawful detainer action. The judgment awarded Hong
Sang possession of the premises and directed Peng to pay $4,725 in back-due rent. In an
amended judgment, the court awarded Hong Sang an additional $21,669 in attorney fees
and $845 in costs attributable to the unlawful detainer action. Peng did not appeal the
2011 unlawful detainer judgment and it subsequently became final.
Hong Sang’s Breach of Contract Lawsuit and Peng’s Cross-complaint
In March 2011, Hong Sang filed an action for breach of contract against Peng in
which it sought back-due rent for the period from September 2009 through February
2011.3
It sought a total of $85,050 as damages for back-due rent plus attorney fees.
Hong Sang’s breach of contract lawsuit is the subject of this appeal.
Peng filed a cross-complaint against Hong Sang, Ming Kee, and Ming’s Poultry,
LLC. Peng alleged four causes of action against Hong Sang: interference with
contractual relations, breach of the covenant of quiet enjoyment, declaratory relief, and
conspiracy. Peng alleged that Hong Sang had falsely advised her that Ming Kee was in
default under the master lease and that her sublease was terminated as a result. She
claimed that she was forced to hire an attorney as a consequence and incur attorney fees
and costs to defend herself against the unlawful detainer action filed by Hong Sang in
2009. In the conspiracy cause of action, Peng alleged that the cross-defendants had
conspired to render Ming Kee insolvent and prevent her from collecting her judgment
against Ming Kee by offsetting the amount of the judgment against rents owed to Ming
Kee. The declaratory relief cause of action sought a declaration of the parties’ rights and
duties pertaining to the premises occupied by Peng.

3Although Hong Sang’s breach of contract action was filed before the unlawful
detainer action, the judgment in the unlawful detainer action was entered before the
judgment in the breach of contract action.
5
Anti-SLAPP Motion and Disposition of Peng’s Cross-complaint
Hong Sang filed a special motion under Code of Civil Procedure section 425.16
(anti-SLAPP motion) to strike three of the causes of action in Peng’s cross-complaint on
the ground they were based on an act in furtherance of its right to free speech—i.e., the
filing of an unlawful detainer action. The anti-SLAPP motion did not seek to strike the
declaratory relief cause of action. The trial court granted Hong Sang’s special motion to
strike the challenged causes of action, reasoning that they arose at least in part from
protected activity. The court awarded Hong Sang attorney fees of $7,834.75 and costs of
$3,953 as the prevailing moving party on the special motion to strike. (Code Civ. Proc.,
§ 425.16, subd. (c)(1).) Peng appealed the court’s orders granting Hong Sang’s antiSLAPP
motion and awarding fees and costs under the anti-SLAPP statute in appeal
numbers A133044 and A134394, which we consolidated for purposes of decision.
On appeal, we reversed the trial court’s order granting Hong Sang’s anti-SLAPP
motion. We concluded that the challenged causes of action did not arise from protected
activity. We did not reach the question of whether Peng had demonstrated a probability
of prevailing on the merits of her causes of action. The reversal required that we also
vacate the award of attorney fees and costs because there was no longer a statutory basis
for the award.
While the court’s anti-SLAPP order was on appeal, Peng filed an amended crosscomplaint
containing a single cause of action for declaratory relief against Hong Sang. In
2012, the court granted a demurrer without leave to amend as to the declaratory relief
cause of action. The court noted that the controversy alleged in the declaratory relief
cause of action no longer existed. Peng did not challenge the court’s order dismissing the
declaratory relief cause of action.
After this court issued the remittitur in the appeals challenging the court’s antiSLAPP
orders, Peng filed a second amended cross-complaint that re-alleged the causes of
action against Hong Sang for interference with contractual relations, breach of the
covenant of quiet enjoyment, and conspiracy. Peng subsequently requested that the court
6
dismiss her cross-complaint. The court entered judgment in favor of Hong Sang on the
cross-complaint in October 2013.
Court Trial on Breach of Contract Cause of Action
The single cause of action in Hong Sang’s operative complaint for breach of
contract proceeded to trial in June 2012. As noted, Hong Sang sought a total of $85,050
from Peng for back-due rent covering the period from September 2009 through February
2011.
Before trial, Peng filed a motion for judgment seeking to dismiss the breach of
contract cause of action on the ground that it was barred by the doctrines of res judicata
and collateral estoppel. She argued that the September 2011 unlawful detainer judgment
awarding $4,725 as back-due rent for the month of May 2011 has a res judicata effect
that precludes a separate lawsuit seeking recovery of rent owed for the period from
September 2009 through February 2011. Peng argued that Hong Sang’s claim for backdue
rent gave rise to a single cause of action that could not be split between two different
lawsuits. She acknowledged she had not pleaded res judicata or collateral estoppel as
affirmative defenses but argued there was no opportunity to plead those defenses at the
time she answered the operative complaint in August 2011 because the September 2011
unlawful detainer judgment had not yet been entered at that time. Over Hong Sang’s
objection, the court allowed Peng to present her res judicata and collateral estoppel
defenses.
The matter was tried before the court on stipulated facts. In essence, Peng agreed
that she owed Hong Sang rent of $4,725 per month for the period from September 2009
through February 2011 if the court rejected her res judicata defense. The court trial
therefore turned solely upon the legal question of whether the unlawful detainer judgment
has a res judicata or collateral estoppel effect that precludes Hong Sang from recovering
additional amounts of back-due rent beyond the monthly rent for May 2011 that was
awarded in the unlawful detainer action.
The trial court ruled in favor of Hong Sang and awarded damages of $85,050 plus
prejudgment interest of $18,075.39. The court rejected Peng’s res judicata claim,
7
reasoning that claim preclusion does not apply to matters that could not have been tried in
the first action. As the court explained in its statement of decision, because Hong Sang
was limited by statute in the amount of rent it could recover in an unlawful detainer
action, it had no choice but to file two separate actions to achieve both the eviction of
Peng and the payment in full of back-due rent.
Following entry of judgment in favor of Hong Sang, Peng timely appealed the
judgment in appeal number A140653.
Award of Attorney Fees and Costs
Hong Sang moved for an award of attorney fees and costs. It sought $118,096.33
as contractual attorney fees on the ground that the express terms of the parties’ rental
agreement, as modified by the section 827 notice, permitted the prevailing party in an
action arising out of the tenancy to recover reasonable attorney fees and costs. Hong
Sang also sought costs totaling $2,271.95.
Of the amount sought as attorney fees, $56,956.33 was requested for work
performed by the law firm of Steven Adair MacDonald & Associates, P.C. (the Steven
Adair firm), and $61,140 was requested for work performed by the law firm of Bradley
Curley Asiano Barrabee Abel & Kowalski (the Bradley Curley firm). The Steven Adair
firm primarily worked on the complaint and Hong Sang’s claim for back-due rent. The
Bradley Curley firm is identified as insurance defense counsel that was retained to defend
Hong Sang against Peng’s cross-complaint. The Bradley Curley firm was thus involved
in litigating the anti-SLAPP motion and the subsequent appeal of the order granting the
anti-SLAPP motion.
Peng opposed the motion for attorney fees and costs. With respect to fees claimed
by the Bradley Curley firm, which defended against the cross-complaint, Peng argued
that the acts giving rise to the cross-complaint occurred well before the effective date of
the attorney fee clause contained in the section 827 notice. Peng also pointed out that a
significant part of the work done by the Bradley Curley firm related to the anti-SLAPP
motion and subsequent appeal. According to Peng, because the anti-SLAPP order and
associated statutory fee award were overturned by this court, Hong Sang should not
8
recover the fees it incurred for that work on the basis of a contractual attorney fee
provision. Accordingly, she asked that the court deny the request for fees billed by the
Bradley Curley firm in its entirety.
Peng also challenged the fee request submitted with respect to work performed by
the Steven Adair firm but only sought to reduce a portion of the fees incurred. First, she
claimed that a portion of the fees should be disallowed because they were incurred before
the effective date of the attorney fee clause. Second, she asserted that $528.50 should be
deducted from any fee award because the tasks associated with those fees related to the
unlawful detainer action, for which Hong Sang had already received an attorney fee
award. Finally, she disputed a portion of the claimed fees that were associated with the
anti-SLAPP motion. Altogether, Peng sought to reduce the fees claimed by the Steven
Adair firm by at least $8,565.45.
At the hearing on the attorney fees motion, the court agreed to reduce the fee
award by the amount attributable to work performed before the effective date of the
attorney fee clause. The parties agreed that approximately $5,000 of the fees fell into that
category. At the request of Hong Sang’s counsel, the court divided the $5,000 reduction
evenly between the Steven Adair firm and the Bradley Curley firm, with the fees for each
being reduced by $2,500. Aside from the $5,000 reduction in the fee award for work
performed before the effective date of the attorney fee clause, the court otherwise rejected
Peng’s arguments seeking to reduce or deny the claimed fees. Accordingly, the court
awarded Hong Sang its requested costs of $2,271.95 plus contractual attorney fees
totaling $113,096.33, composed of $58,640 in fees for work performed by the Bradley
Curley firm and $54,456.33 in fees for work performed by the Steven Adair firm.
The court entered an amended judgment that added the attorney fees and cost
award to the judgment for damages and prejudgment interest. Altogether, the amended
judgment requires Peng to pay $218,493.67 to Hong Sang. Peng timely appealed the
amended judgment in appeal number A141640.
9
DISCUSSION
I. Res Judicata Effect of Unlawful Detainer Judgment
Peng contends that the September 2011 unlawful detainer judgment in which
Hong Sang was awarded one month’s back-due rent has a res judicata or collateral
estoppel effect that bars any further actions for back-due rent. Although she
acknowledges that Civil Code section 1952, subdivision (b) (hereafter section 1952(b)),
expressly permits a landlord to bring a separate action for back-due rent after bringing an
unlawful detainer action to recover possession of the premises, she nonetheless argues
that a landlord may not split a claim for rent between an unlawful detainer action and a
subsequent civil action. Because the relevant facts are undisputed and the application of
res judicata principles presents a question of law, we apply de novo review in assessing
Peng’s claim of error. (Noble v. Draper (2008) 160 Cal.App.4th 1, 10.)
A. Waiver as a Result of Delay in Asserting Affirmative Defense
Before addressing the merits of Peng’s claim, we first consider Hong Sang’s
contention that Peng waived any affirmative defenses premised upon res judicata
principles by failing to raise them in her original answer and by not being diligent in
seeking to amend her answer. For her part, Peng argues that Hong Sang’s challenge to
the order authorizing the amendment is not properly before this court because Hong Sang
did not file a cross-appeal, and even if it had, Hong Sang has failed to establish that the
court abused its discretion in permitting the amendment.
As an initial matter, Peng is mistaken in arguing that Hong Sang was required to
file a cross-appeal in order to raise this issue. An intermediate ruling that necessarily
affects a final judgment is properly within the scope of our review of the judgment
without the need for the party challenging that intermediate ruling to file its own crossappeal.
(See Code Civ. Proc., § 906.) The purpose of this statutory exception to the
general rule requiring an aggrieved party to file its own appeal is to allow a respondent to
assert a legal theory that would result in affirming a judgment even though the trial court
did not rely on that theory. (Fuller v. Bowen (2012) 203 Cal.App.4th 1476, 1483, fn. 6.)
In this case, because the trial turned solely on the viability of Peng’s res judicata defense,
10
we would necessarily affirm the judgment if we were to conclude the court erred in
allowing Peng to amend her answer to include such a defense. Therefore, Hong Sang’s
challenge to the intermediate ruling allowing the amendment is properly before us even
though it did not file its own cross-appeal from the final judgment.
Leave to amend a pleading, including an answer, is entrusted to the sound
discretion of the trial court. (See Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909;
Code Civ. Proc., § 473, subd. (a)(1) [court has discretion “upon any terms as may be just”
to allow an amendment to any pleading].) We will not disturb the trial court’s exercise of
discretion unless there is a clear showing of abuse. (Garcia v. Roberts, at p. 909.)
“[A]bsent a showing of prejudice to the adverse party, the rule of great liberality in
allowing amendment of pleadings will prevail.” (Board of Trustees of Leland Stanford
Jr. University v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.)
As support for its claim that the court abused its discretion in allowing Peng to
amend her answer, Hong Sang contends she presented no evidence to excuse her extreme
lack of diligence in seeking to amend the answer. It also argues that it suffered prejudice
because it was required to address a new and complex defense “without the benefit of
either research or pretrial discovery.”
We are not persuaded that the court exceeded the scope of its discretion in
allowing the amendment. As a practical matter, Peng could not have asserted a res
judicata defense when she first filed her answer because there was no judgment at the
time in the unlawful detainer action. (See Solari v. Atlas-Universal Service, Inc. (1963)
215 Cal.App.2d 587, 592 [res judicata defense must be pleaded when facts supporting it
arise].) And, while Peng did not seek to raise a res judicata defense until over 10 months
later, when the matter was set for trial, we fail to see how Hong Sang was prejudiced by
any delay in Peng’s pursuit of a res judicata defense. The issue was purely legal in
nature. Indeed, the parties agreed on stipulated facts for purposes of the court trial. It is
unclear what, if any, discovery Hong Sang might have conducted that would bear upon a
res judicata defense. Although Hong Sang claims it was compelled to respond to a
complex defense without the benefit of research, our review of the record reveals that
11
Hong Sang was afforded an opportunity to respond to the res judicata defense both in its
trial brief and in an opposition to an in limine motion. Under the circumstances, we
discern no abuse of discretion in permitting Peng to assert a res judicata defense on the
eve of trial. Accordingly, we turn to the merits of Peng’s defense.
B. Res Judicata Principles
“As generally understood, ‘[t]he doctrine of res judicata gives certain conclusive
effect to a former judgment in subsequent litigation involving the same controversy.’ ”
(People v. Barragan (2004) 32 Cal.4th 236, 252.) The res judicata doctrine promotes
judicial economy by precluding piecemeal litigation that may occur if a single cause of
action is split into more than one lawsuit or if a particular issue has already been decided
in an earlier lawsuit. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.)
“ ‘In its primary aspect,’ commonly known as claim preclusion, it ‘operates as a bar to
the maintenance of a second suit between the same parties on the same cause of action.
[Citation.] ‘In its secondary aspect,’ commonly known as collateral estoppel, ‘[t]he prior
judgment . . . “operates” ’ in ‘a second suit . . . based on a different cause of action . . .
“as an estoppel or conclusive adjudication as to such issues in the second action as were
actually litigated and determined in the first action.” ’ ” (People v. Barragan, supra, 32
Cal.4th at pp. 252–253.)
Although the res judicata doctrine encompasses both claim and issue preclusion,
the term “res judicata” has sometimes been used by California courts to denote claim
preclusion whereas the term “collateral estoppel” has denoted issue preclusion. (See
Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 896, fn. 7; Lucido v. Superior
Court (1990) 51 Cal.3d 335, 341, fn. 3; see also DKN Holdings LLC v. Faerber (2015)
61 Cal.4th 813, 824.) We shall follow the lead of our Supreme Court in using the term
“res judicata” to signify the broader doctrine, including both its primary and secondary
aspects, while using “the terms ‘claim preclusion’ to describe the primary aspect of the
res judicata doctrine and ‘issue preclusion’ to encompass the notion of collateral
estoppel.” (DKN Holdings LLC v. Faerber, supra, at p. 824.)
12
“ ‘The prerequisite elements for applying the doctrine to either an entire cause of
action or one or more issues are the same: (1) A claim or issue raised in the present
action is identical to a claim or issue litigated in a prior proceeding; (2) the prior
proceeding resulted in a final judgment on the merits; and (3) the party against whom the
doctrine is being asserted was a party or in privity with a party to the prior proceeding.’ ”
(People v. Barragan, supra, 32 Cal.4th at p. 253.) A party who asserts claim or issue
preclusion as a bar to further litigation bears the burden of proving that the requirements
of the doctrine are satisfied. (Vella v. Hudgins (1977) 20 Cal.3d 251, 257.)
California courts apply the “primary rights” theory in assessing whether two
proceedings involve identical causes of action. (See Mycogen Corp. v. Monsanto Co.,
supra, 28 Cal.4th at p. 904.) “The plaintiff’s primary right is the right to be free from a
particular injury, regardless of the legal theory on which liability for the injury is based.
[Citation.] The scope of the primary right therefore depends on how the injury is defined.
A cause of action comprises the plaintiff’s primary right, the defendant’s corresponding
primary duty, and the defendant’s wrongful act in breach of that duty.” (Federation of
Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) A
primary right is distinct from the legal theory on which liability is premised or the
remedies that may be sought. Thus, while a primary right may support multiple theories
of liability or various forms of relief, it gives rise to a single, indivisible cause of action
for purposes of applying claim preclusion principles. (Mycogen Corp. v. Monsanto Co.,
supra, at p. 904.) For that reason, the claim preclusion aspect of the res judicata doctrine
generally bars a second action brought solely to recover greater or different damages.
(Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 585.) The rule prohibiting
a plaintiff from splitting a cause of action into several suits is likewise an application of
claim preclusion principles. (Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th
901, 907.)
13
C. Splitting a Cause of Action for Back-Due Rent Between an Unlawful
Detainer Action and an Ordinary Civil Action
It is undisputed that two of the three requisites for the application of claim
preclusion are present here. The unlawful detainer proceeding resulted in a final
judgment on the merits and the parties in this action are identical to the parties in the
unlawful detainer action. The parties’ dispute turns on whether the claim raised in this
breach of contract action for back-due rent is identical to the claim raised in the unlawful
detainer action, in which Hong Sang sought and was awarded one month’s rent. Peng
asserts that the claims are identical and amount to Hong Sang splitting a single cause of
action for accrued but unpaid rent into two different lawsuits.
At first blush, Peng’s argument appears meritorious. After all, Hong Sang sought
accrued and unpaid rent in two different actions, albeit for different time periods. But the
argument proves to be meritless when one takes into account that the back-due rent cause
of action was “split” between two very different legal proceedings—a summary unlawful
detainer action and an ordinary civil lawsuit. An unlawful detainer action is a summary
proceeding designed to adjudicate the right of immediate possession; the only claims that
are cognizable in such a proceeding are those bearing directly on the immediate right of
possession. (Vella v. Hudgins, supra, 20 Cal.3d at p. 255; see generally Code Civ. Proc.,
§ 1159 et seq.) Cross-complaints and affirmative defenses are permissible only to the
extent that they would, if meritorious, preclude a court from removing a tenant from the
premises. (Vella v. Hudgins, supra, at p. 255.) It is for this reason that “a judgment in an
unlawful detainer usually has very limited res judicata effect and will not prevent one
who is dispossessed from bringing a subsequent action to resolve questions of title
[citations] or to adjudicate other legal and equitable claims between the parties . . . .”
(Ibid.)
An unlawful detainer judgment has a limited res judicata effect because the claim
preclusion aspect of the res judicata doctrine applies only to matters that were raised or
14
could have been raised in the earlier action on matters that were litigated or litigable.4

(See Villacres v. ABM Industries Inc., supra, 189 Cal.App.4th at p. 576; Amin v.
Khazindar (2003) 112 Cal.App.4th 582, 589–590.) A necessary corollary to this
statement of the law relating to claim preclusion is that a prior judgment generally does
not bar a subsequent claim if the matter could not have been raised or litigated in the
earlier action. Thus, in a situation in which a “ ‘court in the first action would clearly not
have had jurisdiction to entertain the omitted theory or ground . . . , then a second action
in a competent court presenting the omitted theory or ground should be held not
precluded.’ ” (Merry v. Coast Community College Dist. (1979) 97 Cal.App.3d 214, 229;
see, e.g., Harris v. Grimes (2002) 104 Cal.App.4th 180, 188 [where federal court faced
with federal civil rights claim declined to exercise pendent jurisdiction over plaintiff’s
state law claims, plaintiff was not precluded from pursuing state law claims in state
court].) Because the scope of an unlawful detainer proceeding is limited, the preclusive
effect of an unlawful detainer judgment is likewise limited.
A cause of action for back-due rent falls into the category of claims that a court
has limited power to decide in an unlawful detainer proceeding. (See Friedman et al.,
Cal. Practice Guide: Landlord-Tenant (2017) § 9:416.1, p. 9-144 (hereafter Friedman).)
If a landlord proceeds by way of a three-day notice to “pay or quit” when the tenant is in
default in rent payments, the landlord is limited to recovering rent that accrued within one
year of the notice. (Code Civ. Proc., § 1161, subd. (2); see Friedman, supra, § 9:416.1,
p. 9-144.) The amount of back-due rent is generally limited to that demanded in the
three-day notice. (Friedman, supra, § 9:312, p. 9-90.) A landlord proceeding by way of
a three-day notice for nonpayment of rent may also recover damages for rental losses
occurring after the period covered by the three-day notice expires. (Friedman, supra,
§ 8.58.2, pp. 8-25 to 8-26; Code Civ. Proc., § 1174, subd. (b).) If a landlord proceeds by

4
Issue preclusion, or collateral estoppel, does not apply unless the issue was
actually litigated and necessarily decided in the former proceeding. (Hernandez v. City of
Pomona (2009) 46 Cal.4th 501, 511.) Consequently, it is not enough that the issue could
have been litigated in the earlier action for purposes of applying issue preclusion.
15
way of a 30-day notice of termination of a rental agreement, the landlord may not recover
back-due rent but may seek damages for the reasonable rental value of the premises from
the termination of the tenancy until entry of the unlawful detainer judgment. (Friedman,
supra, §§ 8:58 & 8:63, pp. 8-24 & 8-27; Code Civ. Proc., § 1174, subd. (b); Hudec v.
Robertson (1989) 210 Cal.App.3d 1156, 1163; Saberi v. Bakhtiari (1985) 169
Cal.App.3d 509, 513–515.)
By contrast, the right to recover back-due rent is not so limited in an ordinary civil
action premised upon section 1951.2 of the Civil Code. A landlord can generally recover
up to four years of back-due rent if the claim is based upon a written lease agreement.
(Code Civ. Proc., § 337.2 [four-year statute of limitations for breach of written lease].)
Because a court has no jurisdiction to award more than one year’s back-due rent in an
unlawful detainer action, res judicata principles suggest that an unlawful detainer
judgment should not preclude a separate, civil action for back-due rent that is not
recoverable in an unlawful detainer proceeding.
The Legislature has gone further in limiting the res judicata effect of an unlawful
detainer judgment in section 1952(b). The statute provides, with an exception not
relevant here,5
that a lessor who brings an unlawful detainer action is not precluded from
bringing a separate action to recover rent under Civil Code section 1951.2, provided that
the lessor may not recover damages in the subsequent civil action “for any detriment for
which a claim for damages was made and determined on the merits in the previous

5
The exception applies when, during the course of an unlawful detainer
proceeding, possession no longer becomes an issue and the action is converted to an
ordinary civil action in which the lessor may seek relief not otherwise recoverable in an
unlawful detainer proceeding. (See Civ. Code, §§ 1952(b), 1952.3, subd. (a).)
16
action.”6
(§ 1952(b).) This statutory provision modifies the general rule that a judgment
in an earlier action precludes a party from raising issues in later litigation that could have
been raised in the earlier action. (Cf. Villacres v. ABM Industries Inc., supra, 189
Cal.App.4th at p. 576.) Section 1952(b) permits a lessor to pursue an action for damages
in subsequent civil litigation even though the lessor could have sought those same
damages in a prior unlawful detainer action, as long as the damages claim for any
particular detriment was not actually determined on the merits in the unlawful detainer
action.
This principle is demonstrated in Northrop Corp. v. Chaparral Energy, Inc. (1985)
168 Cal.App.3d 725, 727 (Northrop), in which a lessor filed an unlawful detainer action
and sought, in addition to the restitution of the premises, unpaid rent plus reasonable
rental value until the lessee vacated the premises. The lessor chose to litigate only the
issue of possession in the unlawful detainer action and reserve its right to recover unpaid
rent and reasonable rental value in a separate civil action. (Id. at p. 728.) The trial court
entered a judgment awarding possession to the lessor but also ruling that the lessor took
nothing by way of its claims for unpaid rent and rental value damages. (Id. at pp. 728–
729.) On appeal, the lessor objected that the judgment erroneously implied the court had
determined issues related to unpaid or lost rent; the lessor complained that the lessee
might attempt to use the judgment to preclude the recovery of rent damages in the
separate civil action. (Id. at p. 729.) The Court of Appeal agreed with the lessor and
modified the judgment to specify that the question of unpaid rent and reasonable rental
value was specifically reserved to the separate civil action. (Id. at p. 730.) The appellate

6
Section 1952(b) provides as follows: “Unless the lessor amends the complaint as
provided in paragraph (1) of subdivision (a) of Section 1952.3 to state a claim for
damages not recoverable in the unlawful detainer proceeding, the bringing of an action
under the provisions of Chapter 4 (commencing with Section 1159) of Title 3 of Part 3 of
the Code of Civil Procedure does not affect the lessor's right to bring a separate action for
relief under Sections 1951.2, 1951.5, and 1951.8, but no damages shall be recovered in
the subsequent action for any detriment for which a claim for damages was made and
determined on the merits in the previous action.”
17
court relied upon section 1952(b), which “explicitly recognize[s] the propriety of
obtaining possession by unlawful detainer and leaving monetary damages to subsequent
litigation.” (Id. at p. 729, fn. omitted.) According to the court, although the unlawful
detainer statutes authorize a lessor to recover rent damages in an unlawful detainer action,
“nothing in the statutes requires the landlord to litigate his rental claims in the unlawful
detainer rather than a separate civil proceeding, as authorized by Civil Code section
1951.2.” (Ibid.) Thus, even where the lessor actually sought damages for lost rent and
rental value loss, it was not precluded from pursuing those same claims in a separate civil
action as long as the claims were not actually determined on the merits in the unlawful
detainer action.
Northrop confirms that a lessor may choose to pursue rent damages in a separate
civil suit even though it is authorized to seek rent damages in a prior unlawful detainer
action, but its ruling does not answer the question presented here. Specifically, may a
lessor pursue a claim for some portion of back-due rent in an unlawful detainer action
and still seek other claims for back-due rent in a separate civil action? The answer can be
found by focusing on language in section 1952(b) that limits a lessor’s right to recover
damages in a subsequent civil action for “any detriment” for which damages were sought
and finally determined on the merits in a prior unlawful detainer action. If “any
detriment” is interpreted to mean the entire category of damages relating to back-due
rent, then fully litigating a claim for some portion of back-due rent in an unlawful
detainer action would bar a lessor from pursuing any further claims for back-due rent in a
subsequent civil action. But if “any detriment” denotes discrete, monthly (or other
periodic) claims for rent, then the mere fact a claim for back-due rent was finally
determined on the merits in an unlawful detainer action would not preclude a lessor from
pursuing additional back-due rent in a separate civil action. As we explain, the latter
interpretation of the term “any detriment” is the more plausible one.
We are guided by familiar principles in construing statutory language. Our
primary goal is to “ascertain legislative intent so as to effectuate the purpose of the law.
[Citation.] To do so, we first examine the language of the statute, giving the words their
18
ordinary, commonsense meaning and according significance to all words used, if
possible. [Citations.] ‘The statute’s words generally provide the most reliable indicator
of legislative intent; if they are clear and unambiguous, “[t]here is no need for judicial
construction and a court may not indulge in it.” [Citations.] However, where ‘the
statutory language is ambiguous on its face or is shown to have a latent ambiguity such
that it does not provide a definitive answer, we may resort to extrinsic sources to
determine legislative intent.’ ” (Guillen v. Schwarzenegger (2007) 147 Cal.App.4th 929,
938–939.)
It is reasonable to conclude the Legislature did not intend the term “any detriment”
to refer to the entire category of claims for back-due rent. Such an interpretation would
preclude a lessor from pursuing any further back-due rent claims in a separate civil action
if any back-due rent claims were finally determined on the merits in an unlawful detainer
action. But that interpretation is directly at odds with the California Law Revision
Commission’s expressly stated view at the time subdivision (b) was added to Civil Code
section 1952 that damages may be recovered in both an unlawful detainer action and a
civil action, as long as they are not duplicative: “ ‘The lessor’s right to recover damages
for loss of the benefits of the lease should be independent of his right to bring an action
for unlawful detainer to recover the possession of the property. The damages should be
recoverable in a separate action in addition to any damages recovered as part of the
unlawful detainer action.’ ” (Walt v. Superior Court (1992) 8 Cal.App.4th 1667, 1678,
citing Recommendation Relating to Real Property (1969) 9 Cal. Law Revision Com. Rep.
at p. 162.) The California Law Revision Commission clarified that, “ ‘[o]f course, the
lessor should not be entitled to recover twice for the same items of damages.’ ” (Ibid.)
This explanation of the Legislature’s intent is inconsistent with the notion that recovery
of back-due rent in an unlawful detainer action bars further, non-duplicative claims for
additional back-due rent in an ordinary civil action.
Furthermore, interpreting the term “any detriment” to encompass the entire
category of claims for back-due rent would lead to an absurd result. (See Horwich v.
Superior Court (1999) 21 Cal.4th 272, 280 [statutes should be interpreted to avoid
19
anomalous or absurd consequences].) Ordinarily, res judicata principles would not bar a
subsequent claim if the matter could not have been raised in the earlier action. (See
Villacres v. ABM Industries Inc., supra, 189 Cal.App.4th at p. 576.) As applied to the
case of back-due rent, the res judicata doctrine would suggest that a landlord could seek
back-due rent in a subsequent civil action even if the landlord had recovered back-due
rent in a prior unlawful detainer action, as long as the back-due rent sought in the civil
action was outside the limited scope of relief afforded in a summary unlawful detainer
proceeding. But interpreting “any detriment” in section 1952(b) to encompass all backdue
rent claims would have the consequence of barring all such claims in a subsequent
civil action if any back-due rent was recovered in the unlawful detainer action, even if the
back-due rent sought in the civil action could not have been pursued in an unlawful
detainer action. In other words, this interpretation of section 1952(b) gives greater
preclusive effect to an unlawful detainer judgment than would be the case under res
judicata principles. This result is anomalous because the plain intent of section 1952(b)
is to limit the res judicata effect of a prior unlawful detainer action.
Peng nonetheless urges that case law supports her contention that res judicata
principles preclude a landlord from splitting a cause of action for back-due rent between
and unlawful detainer action and an ordinary civil action. The cases she relies upon are
inapposite. She claims that McCaffrey v. Wiley (1951) 103 Cal.App.2d 621 is “most
similar” to this case. In McCaffrey, a plaintiff filed an action to eject a tenant and was
awarded possession. The plaintiff then filed a second action seeking damages for the
wrongful withholding of the property until judgment was rendered in the ejectment
action. (Id. at p. 622.) The Court of Appeal held that the second action seeking monetary
damages was barred because it rested on the same primary right adjudicated in the first
action—i.e., the right of the plaintiff to possess the land. (Id. at pp. 624–625.) As this
brief factual recitation demonstrates, McCaffrey is not similar to this case. It did not
involve a summary unlawful detainer action followed by an ordinary civil action.
Instead, McCaffrey concerned an attempt to split a cause of action arising from a single
primary right between two ordinary civil actions. Further, insofar as McCaffrey stands
20
for the principle that the right of possession and damages for wrongful possession must
be litigated in a single action, it is directly at odds with statutory and case law specifying
that recovery of possession in an unlawful detainer action does not bar a separate action
for damages. (Code Civ. Proc., § 1174.5 [unlawful detainer judgment does not relieve
lessee of liability for rental damages]; see Northrop, supra, 168 Cal.App.3d at p. 729.)
Likewise, Peng’s reliance on Lekse v. Municipal Court (1982) 138 Cal.App.3d
188 is unavailing. In Lekse, landlords sued a tenant for four months of back-due rent but
split their demand into two separate smalls claims lawsuits each seeking recovery of two
months’ rent in order to fall under the jurisdictional amount allowed in small claims
actions. The landlords secured judgments for back-due rent in both actions. (Id. at
p. 190.) The appellate court declared one of the two judgments void, holding that there is
but one cause of action for all past rent due and owing at the time a complaint is filed.
(Id. at pp. 194–195.) Lekse has little bearing upon the issue before us. The resolution of
Peng’s claim turns on the preclusive effect given to an unlawful detainer judgment in
light of res judicata principles and the statutory scheme governing unlawful detainer
actions. Lekse did not involve an unlawful detainer action and consequently provides no
insight into whether a landlord may split a rent cause of action between an unlawful
detainer action and an ordinary civil action.
Peng also purports to rely on Northrop for the principle that a landlord may not
split a claim for back-due rent between an unlawful detainer action and an ordinary civil
action. She claims that if Hong Sang had wanted to preserve its claim for back-due rent,
it should have “followed the procedure” in Northrop and sought possession only in the
unlawful detainer action and pursued all claims for back-due rent in a separate civil
lawsuit. But Northrop merely stands for the proposition that nothing requires a landlord
to pursue damages for rent claims in an unlawful detainer action. (Northrop, supra, 168
Cal.App.3d at p. 729.) It does not suggest a landlord must litigate back-due rent claims in
either an unlawful detainer action or a subsequent civil action. Further, Hong Sang did
not have the option to forego all of its claims for back-due rent in the unlawful detainer
action. Because Hong Sang’s unlawful detainer was based on the nonpayment of rent, it
21
had to prove that Peng failed to pay the rent demanded in the three-day notice in order to
recover possession. The amount of rent due in such a case is assessed as damages.
(Code Civ. Proc., § 1174, subd. (b).) It would make no sense to forego such damages
when they are necessarily proven to establish the basis for the unlawful detainer. As the
trial court observed, Hong Sang had no choice but to split its claims for back-due rent
between the unlawful detainer action and the ordinary civil action in order to achieve all
of the relief it sought—recovery of possession, an award of the back-due rent demanded
in the three-day notice, and an award of all other back-due rent not otherwise recoverable
in an unlawful detainer action.
Accordingly, we hold that an unlawful detainer judgment awarding back-due rent
does not preclude a lessor from seeking additional back-due rent in an ordinary civil
action. However, the lessor is precluded from recovering back-due rent associated with a
particular time period in the subsequent civil action if such a claim was actually
determined on the merits in the unlawful detainer action. Thus, the lessor is not only
precluded from recovering twice for the same items of damages but also may not renew a
claim for back-due rent associated with a particular time period if that periodic claim was
denied on the merits in the unlawful detainer action.
Because the damages for back-due rent in the unlawful detainer judgment here
were limited to the month of May 2011, Hong Sang was not precluded from seeking
additional back-due rent covering the period from September 2009 through February
2011 in its breach of contract action. Therefore, the trial court did not err in rejecting
Peng’s claim that Hong Sang was precluded from seeking additional back-due rent in its
civil action after recovering one month’s back-due rent in the unlawful detainer action.7

7
Peng contends that, even if claim preclusion principles do not bar Hong Sang’s
back-due rent cause of action, it is barred by the application of issue preclusion
principles. The claim is meritless. In the unlawful detainer action, the parties did not
litigate the issues bearing upon whether Hong Sang was entitled to back-due rent for the
period from September 2009 through February 2011. Indeed, the court’s order granting
summary judgment in the unlawful detainer action fails to even mention that Peng did not
pay rent during that period. There was consequently no determination that Peng owed
22
II. Attorney Fees
A. Standard of Review
We ordinarily review an award of attorney fees for abuse of discretion. (Mountain
Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751 (Mountain
Air Enterprises).) The determination of what constitutes a reasonable attorney fee award
is committed to the sound discretion of the trial court. (See PLCM Group, Inc. v. Drexler
(2000) 22 Cal.4th 1084, 1095.) However, de novo review is warranted when there is a
question of law as to the legal entitlement to attorney fees. (Mountain Air Enterprises,
supra, at p. 751.) “In other words, ‘it is a discretionary trial court decision on the
propriety or amount of . . . attorney fees to be awarded, but a determination of the legal
basis for an attorney fee award is a question of law to be reviewed de novo.’ ” (Ibid.)
When attorney fees are awarded to the prevailing party under the terms of a
contract, as here, and no extrinsic evidence was offered to interpret the terms of the
contract’s attorney fee clause, the entitlement to attorney fees is a question of law that we
review de novo. (See Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th
698, 702, 705.) Because there was no extrinsic evidence offered to interpret the attorney
fee provision in this case, we apply de novo review in assessing whether Hong Sang is
entitled to attorney fees under the agreement. As to the propriety of the amount awarded,
however, our review is governed by the deferential abuse of discretion standard.
B. Fees Incurred to Defend Against Peng’s Cross-complaint
Peng contends that fees paid to the Bradley Curley firm, which defended against
her cross-complaint, fall outside the scope of the parties’ attorney fee clause. She argues
that the cross-complaint did not arise out of or relate to either the rental agreement or the
tenancy. As explained below, because the allegations giving rise to the causes of action

back-due rent for any period other than the month of May 2011. Because issue preclusion
does not apply unless the issue was actually litigated and necessarily decided in the
former proceeding, that principle does not foreclose Hong Sang’s cause of action for
additional back-due rent. (See Hernandez v. City of Pomona, supra, 46 Cal.4th at
p. 511.)
23
alleged in the cross-complaint predate the tenancy to which the attorney fee clause
applies, we agree with Peng.
A clause in a contract that allocates attorney fees to a prevailing party may be
drawn broadly or narrowly. An attorney fee clause that applies to actions or proceedings
“arising out of” or “relating to” the agreement is considered a broadly drafted clause that
may support an award of attorney fees to the prevailing party in an action alleging both
contract and tort claims. (Santisas v. Goodin (1998) 17 Cal.4th 599, 608; Moallem v.
Coldwell Banker Com. Group, Inc. (1994) 25 Cal.App.4th 1827, 1831; Xuereb v. Marcus
& Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342–1343.) The attorney fee clause at
issue here is broad in that it provides for an attorney fee award to the prevailing party in
“any legal action, arbitration or proceeding arising out of or relating to the rental
agreement or tenancy . . . .” (Italics added.)
There is no dispute that the broad attorney fee clause at issue here encompasses
tort claims such as those asserted in Peng’s cross-complaint. Further, it is undisputed that
Peng’s voluntary dismissal of her cross-complaint does not preclude Hong Sang from
being considered the prevailing party for purposes of awarding attorney fees. (See
Santisas v. Goodin, supra, 17 Cal.4th 599 at p. 602 [in voluntary pretrial dismissal cases,
Civil Code section 1717 bars recovery of attorney fees associated with contract claims
but does not preclude recovery of fees incurred in defending tort claims].) In addition,
neither Peng nor Hong Sang have cited any authority or any principle that would bar a
party from recovering fees associated with a cause of action that arose before the
effective date of an attorney fee clause, as long as the fees sought to be recovered were
incurred after the clause’s effective date. And, there is no issue concerning whether fees
charged by the Bradley Curley firm predated the March 2011 effective date of the
attorney fee clause. All of the work performed by the Bradley Curley firm arose out of
the cross-complaint, which was not filed until after the clause’s effective date. Thus,
Peng’s challenge to the fees awarded for work performed by the Bradley Curley firm
turns solely upon whether her cross-complaint arose from or is related to the rental
agreement or tenancy.
24
The thrust of Peng’s cross-complaint was that Hong Sang conspired with its lessee
Ming Kee, which was subleasing the premises to Peng as of August 2009, to deprive her
of the ability to enforce a judgment against Ming Kee by cancelling the master lease and
thereby terminating her sublease by operation of law. Peng alleged that Hong Sang
interfered with her sublease with Ming Kee, breached the covenant of quiet enjoyment
associated with the sublease, and conspired to deprive her of the benefit of the judgment
against Ming Kee. She also sought declaratory relief as to the status of her sublease.
The allegations of the cross-complaint plainly arose from and related to the
subtenancy relationship between Peng and Ming Kee, and to events that occurred before
the tenancy relationship between Peng and Hong Sang came into existence in September
2009. The tort-based duties that Hong Sang allegedly breached predated Peng’s tenancy
with Hong Sang and existed independently of that tenancy. (Cf. Exxess Electronixx v.
Heger Realty Corp., supra, 64 Cal.App.4th at p. 711 [tort causes of action were premised
upon broker’s duty to disclose, which arose “without regard to the terms of the lease and
before the lease existed”].) In addition, the alleged breaches of the duties Hong Sang
owed to Peng occurred before the inception of the tenancy to which the attorney fee
clause applies. Thus, the causes of action alleged in the cross-complaint did not turn
upon Peng’s tenancy with Hong Sang or arise from any duties created by that
relationship.
The only arguable relationship between the cross-complaint and the tenancy was
that Peng allegedly continued to suffer harm after she became Hong Sang’s tenant by
operation of law. Among other things, she alleged that Hong Sang furthered its breach of
the covenant of quiet enjoyment associated with her sublease by filing an unlawful
detainer action against her in late 2009. Although the unlawful detainer was filed after
Peng became Hong Sang’s tenant by operation of law, it is not the case that the cause of
action for breach of the covenant of quiet enjoyment arose from the tenancy. Rather, that
cause of action arose from the covenant of quiet enjoyment associated with her sublease
and rested on allegations that Hong Sang breached that covenant by conspiring to
terminate the master lease with Ming Kee, effectively ending her sublease. The attorney
25
fees incurred by Peng in defending against the unlawful detainer action were simply
alleged as an element of damages she suffered resulting from the termination of her
sublease.
The role the unlawful detainer action played in the cross-complaint was more fully
explored in our opinion in an earlier appeal addressing Hong Sang’s anti-SLAPP
motion.8
(Peng v. Hong Sang Market, Inc. (Sep. 27, 2012, A133044) [nonpub. opn.].)
There, we considered whether the tort causes of action alleged in the cross-complaint
arose from protected activity within the meaning of the anti-SLAPP statute. Hong Sang
alleged that they arose from the protected activity of filing an unlawful detainer
complaint. We rejected this claim, reasoning as follows: “[T]he challenged causes of
action are based on Hong Sang Market’s allegedly fraudulent termination of the master
lease . . . . Hong Sang Market does not explain how it is that the challenged causes of
action arise from protected activity. It cannot be said as a matter of law that but for the
filing of the unlawful detainer action, Peng would have no basis to pursue the challenged
causes of action that seek relief for Hong Sang Market’s allegedly fraudulent termination
of the master lease.” We concluded that the effort to recover attorney fees incurred in
defending against the unlawful detainer action was simply an element of damages as
opposed to the primary right that sought to be vindicated in the cross-complaint.
The analysis in our earlier opinion addressing Hong Sang’s anti-SLAPP motion
applies equally here. The cross-complaint arose from and related to Peng’s sublease and
to Hong Sang’s allegedly fraudulent termination of Ming Kee’s master lease. Any
connection between the cross-complaint and the tenancy was incidental in that Peng
allegedly continued to suffer damages during the period of the tenancy as a result of
tortious acts that preceded the tenancy. We conclude as a matter of law that fees incurred
by Hong Sang to defend against the cross-complaint do not fall within the scope of the
attorney fee clause.

8Our earlier opinion was before the trial court below in connection with the
attorney fee motion, and is citable under the law of the case doctrine. (Cal. Rules of
Court, rule 8.1115(b)(1).)
26
Hong Sang’s arguments on appeal do not cause us to question our conclusion. It
suggests that the attorney fee clause applies to the period before September 2009, when
Peng was a subtenant and Ming Kee was the master tenant. Hong Sang argues that Peng
was “some form of tenant at the property” at all relevant times. But the attorney fee
clause applies only to disputes arising out of or related to the landlord-tenant relationship
between Hong Sang and Peng. That tenancy did not exist before September 2009.
Peng’s subtenancy did not give rise to a landlord-tenant relationship between Peng and
Hong Sang. Indeed, it is well settled that there is no privity of contract between a
subtenant and the original landlord. (Marchese v. Standard Realty & Dev. Co. (1977) 74
Cal.App.3d 142, 147.) Hong Sang also contends the attorney fee clause is broad enough
to cover tort claims arising out of the tenancy, but Peng does not dispute that point. The
fact remains that the torts alleged in the cross-complaint do not arise out of or relate to
the tenancy that began in September 2009 and that is the subject of the attorney fee
clause.
Accordingly, it was error to award Hong Sang fees charged by the Bradley Curley
firm, which defended against Peng’s cross-complaint. Consequently, the fee award must
be reduced by $58,640, representing the portion of the fee award attributable to work
performed by the Bradley Curley firm. Because all of fees incurred in pursuing the antiSLAPP
motion necessarily related to the cross-complaint, it is unnecessary to address
Peng’s alternative argument that law of the case principles precluded the trial court from
awarding attorney fees for work performed on the anti-SLAPP motion.
As Peng points out, the Bradley Curley firm was not alone in charging for legal
services related to the cross-complaint. The Steven Adair firm charged Hong Sang
$2,043.50 for services related to pursuing Hong Sang’s anti-SLAPP motion in the trial
court and on appeal.
9 Because those fees necessarily relate to the cross-complaint, which
was the object of the anti-SLAPP motion, they fall outside the scope of the attorney fee

9Hong Sang does not dispute Peng’s calculation of fees attributable to work
performed by the Steven Adair firm on the anti-SLAPP motion.
27
clause. The portion of the fee award attributable to work performed by the Steven Adair
firm must therefore be reduced by $2,043.50.
C. Fees Incurred Before Effective Date of Attorney Fee Clause
Peng claims that the Steven Adair firm, which primarily worked on Hong Sang’s
complaint for breach of contract, improperly sought $5,993.45 for fees incurred before
the March 2011 effective date of the attorney fee clause. Peng acknowledges that the
court reduced the fee award to the Steven Adair firm by $2,500 but seeks to have the
award reduced by the full amount of fees incurred before March 2011. As we explain,
the court did not abuse its discretion in making a $5,000 adjustment to the award to
account for fees incurred before the effective date of the attorney fee clause, although it
was error to allocate one-half of the reduction to the Bradley Curley firm, which did not
perform any legal services before March 2011.
At the hearing on Hong Sang’s request for attorney fees, the court agreed to
reduce the award by the amount of fees incurred before the effective date of the attorney
fee clause.10 The court asked counsel whether $5,000 was a good estimate of the fees
attributable to work performed before March 2011. Although Peng’s counsel initially
claimed that much more was at stake than just fees incurred before March 2011, counsel
ultimately said he would not “quibble over the amount” and offered a “grudging yes” to
the court’s inquiry as to whether $5,000 was a good estimate. The court later described
the $5,000 reduction as an amount as to which “the parties agree” without eliciting an
objection from Peng’s counsel. At the request of Hong Sang’s counsel, the $5,000
reduction was split between amounts owed to the Bradley Curley firm and the Steven
Adair firm. Thus, the court reduced the fee award attributable to each firm by $2,500.
Peng not only failed to object to the amount of the reduction but begrudgingly
agreed with it. The trial court cannot be charged with error when Peng agreed with the

10We assume, without deciding, that fees incurred before the effective date of the
attorney fee clause may not be recovered by the prevailing party.
28
court’s estimate. Thus, we conclude it was not an abuse of discretion to attribute $5,000
of the fees to work performed before the effective date of the attorney fee clause.
Nevertheless, we conclude it was an abuse of discretion to split the $5,000
reduction in fees between the Bradley Curley firm and the Steven Adair firm. As the
record before this court demonstrates, the Bradley Curley firm did not perform any legal
work for Hong Sang until May 2011, well after the effective date of the attorney fee
clause. Thus, there is no evidentiary support for reducing the fees charged by the Bradley
Curley firm on the ground the services for which the fees were charged predated the
March 2011 effective date of the attorney fee clause. The entirety of the $5,000
reduction should have been applied to fees charged by the Steven Adair firm.11

Accordingly, the portion of the fee award that is attributable to services performed by the
Steven Adair firm should be reduced by an additional $2,500.
D. Fees Associated with Unlawful Detainer
As a final matter, Peng contends that $528.50 in fees charged by the Steven Adair
firm “appeared to be duplicative of the fees awarded in the unlawful detainer action and
should not have been allowed a second time.” We are not persuaded.
We agree in principle with Peng’s claim that Hong Sang should not recover the
same fees twice. But her claim is lacking in factual support. “ ‘General arguments that
fees claimed are excessive, duplicative, or unrelated do not suffice.’ ” (Lunada
Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) While Peng has specifically
identified the fees in this action she claims are duplicative of fees charged in the unlawful
detainer action, she has not provided the court with the billing statements from the

11The allocation of the $5,000 reduction between the Bradley Curley firm and the
Steven Adair firm would be inconsequential if we had otherwise affirmed the fee award
in its totality, because Peng would have received the full benefit of the $5,000 reduction
subtracted from the aggregate fees awarded with respect to both law firms. However,
because we have concluded that Hong Sang is not entitled to recover any fees charged by
the Bradley Curley firm, the allocation error is not harmless. Unless the error is
corrected, Peng will not receive the benefit of the additional $2,500 offset to which she is
entitled.
29
unlawful detainer action to confirm that the fees are, in fact, duplicative. Peng
presumably has access to those records because Hong Sang made a motion for attorney
fees in the unlawful detainer action. It would have been simple enough to correlate
specific line items from attorney fee statements in this action with identical line items
claimed in the unlawful detainer action. But Peng did not do that. Instead, she claims
that certain fees for services rendered in this action appeared to be duplicative of fees
awarded in the unlawful detainer action, without providing any record of the services for
which fees were awarded in the unlawful detainer action. Under the circumstances, she
has not met her burden to establish that the fees are duplicative.12

E. Summary
The trial court awarded contractual attorney fees totaling $113,096.33. We have
concluded that the attorney fee award should be reduced by the following amounts:
(1) $58,640 for services performed by the Bradley Curley firm in defending against
Peng’s cross-complaint, (2) $2,043.50 charged by the Steven Adair firm for work
associated with the anti-SLAPP motion, and (3) $2,500 charged by the Steven Adair firm
for work performed before the effective date of the attorney fee clause (in addition to the
$2,500 reduction already taken). The fee award should consequently be reduced by a
total of $63,183.50, to $49,912.83.

Outcome: The amended judgment is reversed to the extent it awards a total of $113,096.33 in attorney fees to Hong Sang. The case is remanded to the trial court with directions to the fees at issue are associated with drafting, finalizing, and serving a three-day notice upon Peng. While these fees may appear to relate to the unlawful detainer action, it is notable that they were incurred in early March through early April 2011, well before Peng stopped paying rent in May 2011 and before Hong Sang served Peng in mid-May 2011 with both a three-day notice to quit and a thirty-day notice terminating the tenancy that formed the basis for the June 2011 unlawful detainer complaint. We lack a sufficient record to know whether the challenged fees were associated with the unlawful detainer action filed in June 2011 or were part of a separate, earlier effort to force Peng to comply with the changed terms of her tenancy that became effective in March 2011. Enter a new amended judgment awarding Hong Sang attorney fees totaling $49,912.83. In all other respects, the amended judgment is affirmed. Hong Sang shall be entitled to recover its costs on appeal.

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