Opinion
A131481
03-22-2012
RITA O'FLYNN, Plaintiff and Appellant, v. BEYONDCHRON et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City and County of San Francisco Super. Ct. No. CGC 10-500580)
Rita O'Flynn sued BeyondChron, A California Limited Liability Company, and Randy Shaw for defamation and false light. BeyondChron and Shaw filed a special motion to strike pursuant to Code of Civil Procedure section 425.16, known as the anti-SLAPP (strategic lawsuit against public participation) statute. The trial court granted the special motion to strike. Subsequently, BeyondChron and Shaw filed a motion for attorney fees and costs pursuant to section 425.16, subdivision (c). The court awarded BeyondChron and Shaw attorney fees and, on appeal, O'Flynn contends that the court erred in awarding the fees. She claims that Shaw and BeyondChron were acting in propria persona in the underlying action and therefore an attorney-client relationship did not exist. We reject O'Flynn's argument and affirm the award of attorney fees.
All further unspecified code sections refer to the Code of Civil Procedure.
BACKGROUND
Shaw is the editor of BeyondChron, an online newspaper, and the executive director of Tenderloin Housing Clinic, Inc., a non-profit housing provider and law office. The Tenderloin Housing Clinic has been publishing BeyondChron since April 2004.
On June 7, 2010, O'Flynn filed a complaint against BeyondChron and Shaw, as an individual, alleging claims of defamation and false light. She alleged that an article Shaw published in BeyondChron incorrectly claimed that she was a named defendant in a lawsuit brought by the City and County of San Francisco. She asserted that the defendant in that lawsuit was her husband, Mark O'Flynn, and that she never was a party to that action.
Matt McFarland, a staff attorney at the Tenderloin Housing Clinic, provided legal representation for both Shaw and BeyondChron at the trial court and on this appeal. Counsel filed on behalf of BeyondChron and Shaw, on August 19, 2010, a special motion to strike O'Flynn's lawsuit pursuant to the anti-SLAPP statute (§ 425.16). Additionally, Raquel Fox, a senior staff attorney at the Tenderloin Housing Clinic, provided legal representation for BeyondChron and Shaw.
The trial court held a hearing on September 16, 2010. It granted the anti-SLAPP motion by Shaw and BeyondChron. The court noted that O'Flynn had attempted to avoid the anti-SLAPP motion by filing an amended complaint on September 15, 2010, and it struck the amended complaint. The court dismissed O'Flynn's lawsuit.
On October 19, 2010, BeyondChron and Shaw filed a motion for attorney fees and costs pursuant to section 425.16, subdivision (c) in the amount of $19,788.60. McFarland declared that he had worked 42.6 hours and his hourly rate should be $300. He asserted that Fox worked 3.7 hours at an hourly rate that should be $425. McFarland also requested fees in the amount of $75 an hour for 9.5 hours of work by an intern. Additionally, he asked for the expenses and fees associated with filing this request for fees.
O'Flynn, in propria persona, filed her opposition to the request for fees. She argued that BeyondChron and Shaw did not incur attorney fees. She maintained that they were represented by staff attorneys at the Tenderloin Housing Clinic and claimed that BeyondChron and Shaw had no obligation to pay attorney fees because, according to O'Flynn, BeyondChron is a subsidiary of the Tenderloin Housing Clinic, and because Shaw is an attorney and executive director of the Tenderloin Housing Clinic. She also asserted that they were improperly seeking fees for work unrelated to the anti-SLAPP motion and that a portion of the fee was for work completed by an unpaid intern. She also insisted that the fees and expenses requested were unconscionable and that a cost-plus approach, rather than a lodestar method, was appropriate.
In response, BeyondChron and Shaw argued, among other things, that they were seeking fees only for legal work performed in connection with their anti-SLAPP motion. In their reply brief, they added the hours spent working on their reply papers and requested attorney fees and costs in the amount of $22,038.60.
The trial court held a hearing on the request for attorney fees on December 20, 2010. The court stated that its tentative ruling was that the motion for attorney fees was awarded in part. The court's tentative ruling was to award fees in the amount of $21,326.10 and to disallow the fees associated with the legal intern. After listening to argument, the court adopted its tentative ruling.
On January 3, 2011, the court entered judgment in favor of BeyondChron and Shaw. It awarded attorney fees and costs for a total judgment of $21,326.10 in favor of BeyondChron and Shaw and against O'Flynn.
O'Flynn filed a timely notice of appeal.
DISCUSSION
I. The Trial Court's Grant of Attorney Fees
A. Standard of Review
O'Flynn acknowledges that a party prevailing on an anti-SLAPP motion "shall be entitled to recover his or her attorney's fees and costs." (§ 425.16, subd. (c)(1).) She also admits that BeyondChron and Shaw were the prevailing party. Finally, she does not challenge the amount of the fee award. On appeal, O'Flynn contends that the mandatory fee award under section 425.16 does not apply because BeyondChron and Shaw represented themselves in propria persona. (See Trope v. Katz (1995) 11 Cal.4th 274 (Trope), Witte v. Kaufman (2006) 141 Cal.App.4th 1201 (Witte), Carpenter & Zuckerman v. Cohen (2011) 195 Cal.App.4th 373 (Carpenter & Zuckerman).)
" ' " 'An order granting or denying an award of attorney fees is generally reviewed under an abuse of discretion standard of review; however, the "determination of whether the criteria for an award of attorney fees and costs have been met is a question of law." [Citations.]' " ' [Citation.] An issue of law concerning entitlement to attorney fees is reviewed de novo. [Citations.] 'When a trial court has resolved a disputed factual issue, an appellate court reviews the ruling according to the substantial evidence rule. The trial court's resolution of the factual issue must be affirmed if it is supported by substantial evidence. [Citation.] We look at the evidence in support of the trial court's finding, resolve all conflicts in favor of the respondent and indulge in all legitimate and reasonable inferences to uphold the finding.' [Citation.]" (Carpenter & Zuckerman, supra, 195 Cal.App.4th at p. 378.) B. Forfeiture
BeyondChron and Shaw contend that O'Flynn's argument that they represented themselves in propria persona, and therefore the attorney-client relationship did not exist, is being raised for the first time on appeal. O'Flynn, according to BeyondChron and Shaw, forfeited raising this issue on appeal.
" 'As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried. This rule is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal.' [Citation.]" (P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1344.) Moreover, "[t]he general rule that a legal theory may not be raised for the first time on appeal is to be stringently applied when the new theory depends on controverted factual questions whose relevance thereto was not made to appear at trial. [Citation.]" (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780.) Thus, an argument raised for the first time on appeal is generally deemed forfeited. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226.)
In the trial court, O'Flynn did argue that BeyondChron is a subsidiary of the Tenderloin Housing Clinic. This is essentially the same argument that she is making on appeal. We therefore address the merits of her arguments on appeal but consider only that evidence that was before the lower court. We will not consider evidence in the exhibits attached to her amended complaint, since the trial court struck this pleading and this evidence was never considered by the superior court. C. The Pertinent Law
"In California, we follow the 'American rule,' which means [the parties pay] their own [attorney] fees unless they agree otherwise or are entitled to claim the benefit of a statutory or judicially created exception." (Burnaby v. Standard Fire Ins. Co. (1995) 40 Cal.App.4th 787, 796.) Here, Shaw and BeyondChron claimed they were entitled to attorney fees under section 425.16, subdivision (c). This statute provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." (§ 425. 16, subd. (c)(1).) Shaw and BeyondChron prevailed on their special motion to strike O'Flynn's complaint.
Even when fees are authorized by statute or contract, the lower court may not award fees in specific situations. In Trope, supra, 11 Cal.4th 274, the court held that individual partners of a law firm, acting in propria persona, could not recover attorney fees even though the attorneys had prevailed against a former client and the attorneys had sued under a contract authorizing fees. (Id. at pp. 278, 284-285.) The court based its decision on Civil Code section 1717, which provides for attorney fees that " 'are incurred to enforce that contract.' " (Trope, at p. 280.) Our Supreme Court defined to " 'incur' a fee" to mean " 'become liable' for it (Webster's New Internat. Dict. (3d ed. 1961) p. 1146), i.e., to become obligated to pay it." (Trope, at p. 280.) The court further defined " 'attorney fees' " as a " '[c]harge to a client for services performed.' " (Trope, at p. 280, quoting Black's Law Dict. (6th ed. 1990) p. 614.) The court explained that an "attorney who chooses to litigate in propria persona and therefore does not pay or become liable to pay consideration in exchange for legal representation cannot recover 'reasonable attorney's fees' under [Civil Code] section 1717 as compensation for the time and effort he expends on his own behalf or for the professional business opportunities he forgoes as a result of his decision." (Trope, at p. 292.)
The court in Trope, supra, 11 Cal.4th 274, also concluded that allowing fees to an attorney who litigates in propria persona would conflict with the legislative purpose of Civil Code section 1717. (Trope, at p. 285.) Civil Code section 1717 is designed to establish mutuality of remedy and to prevent the oppressive use of one-sided attorney fee provisions. (Trope, at p. 285.) Thus, "[i]f an attorney who is the prevailing party in an action to enforce a contract with an attorney fee provision can recover compensation for the time he expends litigating his case in propria persona, but a nonattorney pro se litigant cannot do so regardless of the personal and economic value of such time simply because he has chosen to pursue a different occupation, every such contract would be oppressive and one-sided." (Id. at pp. 285-286.)
Courts have applied the holding in Trope to an award of attorney fees under section 425.16. (See, e.g., Witte, supra, 141 Cal.App.4th 1201, Carpenter & Zuckerman, supra, 195 Cal.App.4th 373.) In Witte, the trial court granted a law firm's special motion to strike and awarded attorney fees to attorneys in the defendant law firm. (Witte, at p. 1206.) The appellate court reversed the award of attorney fees and concluded there was no attorney-client relationship between the law firm and its individual attorneys. (Id. at p. 1211.) The court stressed that the individual members of the law firm were representing their own interests when providing legal services on behalf of the law firm. (Ibid.) Similarly, the court in Carpenter & Zuckerman, supra, 195 Cal.App.4th 373, disallowed attorney fees when an associate of the law firm filed a special motion to strike on behalf of her law firm and prevailed on that motion. (Id. at p. 385.)
The Supreme Court clarified that attorney fees are proper when the legal representation for a company is by its in-house counsel. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 (PLMC).) In PLCM, the Supreme Court held that in-house counsel providing legal representation to a corporation could recover attorney fees under Civil Code section 1717 based on the services of that counsel. (PLCM, at p. 1093.) The court explained: "There is no problem [in this case] of disparate treatment; in-house attorneys, like private counsel but unlike pro se litigants, do not represent their own personal interests and are not seeking remuneration simply for lost opportunity costs that could not be recouped by a nonlawyer. A corporation represented by in-house counsel is in an agency relationship, i.e., it has hired an attorney to provide professional legal services on its behalf. Nor is there any impediment to the effective and successful prosecution of meritorious claims because of possible ethical conflict or emotional investment in the outcome. The fact that in-house counsel is employed by the corporation does not alter the fact of representation by an independent third party. Instead, the payment of a salary to in-house attorneys is analogous to hiring a private firm on a retainer." (Ibid.)
Furthermore, legal fees are proper when an attorney is sued personally and receives legal representation by a member of the attorney's law firm. (See Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212 (Gilbert).) In Gilbert, the tenant sued his landlord and the landlord's attorney and the landlord's attorney hired a member of his law firm to represent him in the lawsuit. (Id. at p. 220.) The Court of Appeal held that fees were appropriate because an attorney representing another attorney in the firm " 'incurs' fees within the meaning of Civil Code section 1717. Either the represented attorney will experience a reduced draw from the partnership (or a reduced salary from the professional corporation) to account for the amount of time his or her partners or colleagues have specifically devoted to his or her presentation, or absorb a share of the reduction in other income the firm experiences because of the time spent on the case. This is different from the 'opportunity costs' the attorney loses while he or she is personally involved in the same case, because the economic detriment is caused not by the expenditure of his or her own time, but by other attorneys working on his or her behalf." (Gilbert, at p. 221; see also Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 525 [attorney fees proper to prevailing part in anti-SLAPP motion where attorney represented self and other defendants].)
Here, O'Flynn argues that the facts in the case are analogous to those in Trope, Witte, and Carpenter & Zuckerman. BeyondChron and Shaw maintain that the facts in this record resemble those in Gilbert and Ramona. For the reasons discussed below, we conclude the record does not support O'Flynn's argument. D. Applying the Law to the Facts of the Present Case
The trial court in the present case found that McFarland and Fox, staff attorneys at the Tenderloin Housing Clinic, provided legal representation to Shaw and BeyondChron. The trial court considered comprehensive declarations and billing statements from McFarland and Fox detailing the legal services they provided in connection with the anti-SLAPP motion and then awarded fees based on this evidence.
The trial court, in awarding the fees, implicitly found that McFarland and Fox, staff attorneys at the Tenderloin Housing Clinic, were not representing their own personal interests when providing representation to Shaw and BeyondChron. O'Flynn sued Shaw as an individual, and not as the executive director of the Tenderloin Housing Clinic or as the editor of BeyondChron. Thus, the lawsuit against Shaw, as an individual, did not implicate the interests of the Tenderloin Housing Clinic.
The trial court implicitly found that a lawsuit against BeyondChron was not a lawsuit against the Tenderloin Housing Clinic, and the record contains evidence to support such a finding. O'Flynn never named the Tenderloin Housing Clinic as a party. Additionally, the evidence showed that the two entities were separate and performed different functions. In his declaration, Shaw stated that the Tenderloin Housing Clinic published BeyondChron, a free online daily newspaper, since April 2004. He specified that BeyondChron offers no legal services. Rather, BeyondChron provides daily coverage of local political and cultural issues "that focuses on San Francisco politics, state-wide political issues that affect Bay Area residents, local landlord/tenant issues, and Bay Area cultural events." In contrast, the Tenderloin Housing Clinic, according to Shaw, is a non-profit housing provider and law office that supplies legal representation and housing to low-income tenants.
The abovementioned evidence in the record supports a finding that BeyondChron and the Tenderloin Housing Clinic are two separate entities performing distinct tasks and functions. Since McFarland and Fox are employed by the Tenderloin Housing Clinic, not BeyondChron, and the Tenderloin Housing Clinic was not a party to the lawsuit, the record supports a finding that McFarland and Fox are not employed by and have no interest in BeyondChron.
Although O'Flynn's argument is somewhat unclear, she appears to be arguing that BeyondChron and Shaw appeared in propria persona in this lawsuit because they did not prove that they had a contractual relationship with McFarland and Fox and therefore they did not have any obligation to pay attorney fees. This argument merits little discussion. O'Flynn never argued in the lower court that fees should not be awarded because there was no evidence of an agreement between the attorneys McFarland and Fox and the defendants BeyondChron and Shaw. O'Flynn cannot argue for the first time on appeal that the evidence was insufficient to show a contractual relationship. Moreover, this argument is not persuasive. "[I]n cases involving a variety of statutory fee-shifting provisions, California courts have routinely awarded fees to compensate for legal work performed on behalf of a party pursuant to an attorney-client relationship, although the party did not have a personal obligation to pay for such services out of his or her own assets." (Lolley v. Campbell (2002) 28 Cal.4th 367, 373, fn. omitted.) Similarly, fees have been awarded even when the attorneys were employed by a public-interest organization. (See, e.g., Serrano v. Unruh (1982) 32 Cal.3d 621, 643.)
O'Flynn also argues that McFarland and Fox, as employees of the Tenderloin Housing Clinic, had the same interests as BeyondChron and Shaw and therefore could not receive attorney fees. In making this argument, O'Flynn relies heavily on Carpenter & Zuckerman, supra, 195 Cal.App.4th 373. This case, however, does not support her argument. The court in Carpenter & Zuckerman explained that attorney fees are not recoverable if an associate of a law firm provides legal representation for the associate's law firm and individual attorneys in the associate's law firm unless there is a showing that the fees sought to be recovered on behalf of the individual attorneys "are not attributable to representation of the law firm." (Id. at pp. 387-388.) Here, as already noted, the staff attorneys providing legal representation to Shaw and BeyondChron are employees of the Tenderloin Housing Clinic. The Tenderloin Housing Clinic, unlike the law firm in Carpenter & Zuckerman, was not named as a party. Carpenter & Zuckerman is applicable only if O'Flynn can establish as a matter of law that the Tenderloin Housing Clinic is the same entity as BeyondChron and, thus, a party to the lawsuit.
Although she never expressly makes this argument, O'Flynn is basically arguing that the Tenderloin Housing Clinic is the alter ego of BeyondChron and therefore BeyondChron and the Tenderloin Housing Clinic have the same corporate identity. To prevail she has the burden of proving that the two entities are essentially identical. "In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone. [Citations.] 'Among the factors to be considered in applying the doctrine are commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, and use of one as a mere shell or conduit for the affairs of the other.' [Citations.] Other factors[,] which have been described in the case law include inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers. [Citations.] No one characteristic governs, but the courts must look at all the circumstances to determine whether the doctrine should be applied. [Citation.] Alter ego is an extreme remedy, sparingly used. [Citation.]" (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538-539.)
In the present case, O'Flynn has failed to establish either requirement under the alter ego doctrine. When arguing that the Tenderloin Housing Clinic and BeyondChron have the same interests, she emphasizes that both the Tenderloin Housing Clinic and BeyondChron are located on the same premises and that Shaw is both the executive director of the Tenderloin Housing Clinic and editor of BeyondChron. She also argues that the Tenderloin Housing Clinic holds itself out as the party responsible for BeyondChron and cites articles in BeyondChron written by Shaw, which state at the bottom of the articles the following: "Randy Shaw is the Director of the Tenderloin Housing Clinic, whose attorneys represent Susan Suval and which publishes BeyondChron." She concludes that BeyondChron and the Tenderloin Housing Clinic are substantially the same entity and that Fox and McFarland were not independent but had "a per se personal interest in the matter."
The evidence cited by O'Flynn is insufficient to show that the two distinct entities—BeyondChron and the Tenderloin Housing Clinic—have a unity of interest. O'Flynn has presented no evidence showing that the two entities mingled their finances, shared their funding, or have the same assets. In her reply brief, she maintains that the Tenderloin Housing Clinic "manages and operates" BeyondChron but she fails to produce evidence submitted in the lower court proving this claim. As already discussed, contrary to O'Flynn's argument, the evidence in the record establishes that the two entities perform different functions.
We will not consider the evidence in exhibits attached to O'Flynn's amended complaint filed on September 15, 2010. This evidence was never before the trial court and cannot be considered for the first time on appeal. As already explained, the trial court struck the amended complaint.
Furthermore, O'Flynn has not shown that an injustice would result if we treat the Tenderloin Housing Clinic and BeyondChron as separate and distinct entities. The only argument that can be construed to relate to this issue is her assertion that Fox and McFarland have ethical and emotional conflicts that make it inappropriate for them to appear on behalf of BeyondChron and Shaw. She argues that attorneys with such ethical and emotional conflicts are barred from recovery of fees under Trope, supra, 11 Cal.4th at page 292. Her reliance on Trope, however, is misplaced.
In Trope, the court considered the ethical issues involved when an attorney is in propria persona and the reasons for discouraging attorneys from electing to appear in propria persona. (Trope, supra, 11 Cal.4th at p. 291.) The Trope court, quoting the United States Supreme Court in Kay v. Ehrler (1991) 499 U.S. 432, explained: " 'Even a skilled lawyer who represents himself is at a disadvantage in contested litigation. Ethical considerations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom. The adage that "a lawyer who represents himself has a fool for a client" is the product of years of experience by seasoned litigators.' [Citation.]" (Trope, at p. 292, quoting Kay v. Ehrler, at pp. 437-438.)
O'Flynn maintains that Fox and McFarland face the same ethical and emotional conflicts discussed above in Trope because the defamation suit against BeyondChron "is a de facto suit against" the Tenderloin Housing Clinic. The underlying lawsuit involves an article published by BeyondChron that discussed the eviction of a tenant, Suval. Fox represented Suval when O'Flynn's husband evicted her and then represented Suval in a wrongful eviction action against O'Flynn's husband. O'Flynn writes in her brief that the "chain of events leading from Fox's representation" of Suval to her representation of BeyondChron "make these ethical and emotional impediments clear." She concludes: "When suit was filed for defamation, Shaw and BeyondChron relied on Fox as their legal representative. Viewed in this light, Fox naturally faces ethical and emotional conflicts that render her representation anathema to the statute and her fees accordingly nonrecoverable."
O'Flynn's argument, to the extent that it is comprehensible, relies on a conclusion that the Tenderloin Housing Clinic is the same entity as BeyondChron and therefore attorneys for the Tenderloin Housing Clinic have an interest in the defamation lawsuit against BeyondChron and Shaw. As already discussed, she has not shown that BeyondChron and the Tenderloin Housing Clinic are essentially the same entities and therefore the ethical concerns associated with an attorney acting in propria persona discussed in Trope do not apply in the present case.
We conclude that O'Flynn has failed to establish that when McFarland and Fox provided Shaw and BeyondChron with legal representation that they were representing their own personal interests or those of the Tenderloin Housing Clinic. O'Flynn has not demonstrated that an exception to the mandatory attorney fee provision under section 425.16, subdivision (c) applies and we therefore affirm the award of attorney fees.
Shaw and BeyondChron argue that even if this court concludes that O'Flynn's lawsuit was a de facto suit against the Tenderloin Housing Clinic, attorney fees would be recoverable under PLMC, supra, 22 Cal.4th 367, as McFarland and Fox would then be in-house attorneys. O'Flynn argues that McFarland and Fox are not analogous to in-house counsel. Since we have concluded that O'Flynn has failed to establish that BeyondChron and the Tenderloin Housing Clinic are essentially the same entities, we need not address this issue.
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II. Attorney Fees on Appeal
Shaw and BeyondChron also request attorney fees on appeal. The right to attorney fees under the anti-SLAPP statute extends to attorney fees on appeal. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446 (Morrow).) "The trial court's authority to award fees and costs under section 425.16, subdivision (c), includes authority to award fees incurred in responding to an appeal of an order granting or denying a special motion to strike, or of an order awarding attorney fees in connection with such motion. [Citation.] 'A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. [Citations.]' [Citation.] Section 425.16, subdivision (c), does not preclude recovery of appellate attorney fees; hence attorney fees recoverable under the statute include appellate fees. [Citations.]" (Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461.)
We agree that Shaw and BeyondChron are entitled to attorney fees on appeal. The amount of the fees is to be determined by the trial court upon motion by Shaw and BeyondChron. (See Morrow, supra, 149 Cal.App.4th at p. 1446.)
DISPOSITION
The judgment is affirmed. Shaw and BeyondChron are entitled to recover their costs and attorney fees on appeal.
Lambden, J.
We concur:
Kline, P.J.
Richman, J.