Hong Sang Market, Inc. v. Vivien Peng

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 In the unpublished portion of the opinion, we conclude the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.

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.