Filed 6/25/26 Sarkany v. West CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
JENNIFER SARKANY et al.,
Plaintiffs and Respondents,
A174750
v.
TIMOTHY MCCALL WEST et al., (San Fransico City & County
Super. Ct. No. CGC-24-615169)
Defendants and Appellants.
MEMORANDUM OPINION1
This is an appeal from a $256,087 attorney fee award, following the
grant of summary judgment for plaintiffs in this fraudulent transfer action.
Plaintiffs filed the action to protect their ability to recover on a $645,791
judgment for wrongful eviction and other violations of the San Francisco Rent
Arbitration and Stabilization Ordinance. Defendants do not challenge the
summary judgment, but only the amount of fees awarded.
Defendants filed a 10-page opening brief and no reply brief.
Plaintiffs maintain we can, and should, disregard defendants’ opening
brief and affirm the fee award on the ground the brief fails in numerous
respects to comply with fundamental rules and principles of appellate
We resolve this case by memorandum opinion under California
1
Standards of Judicial Administration section 8.1. Because the parties are
familiar with the facts and procedural history, we do not discuss them here.
1
practice. While we strive to be generous in reviewing a party’s brief, we
agree defendants’ brief is manifestly deficient.
California Rules of Court, rule 8.204 mandates that “(1) Each brief
must: [¶] . . . [¶] (B) State each point under a separate heading or subheading
summarizing the point, and support each point by argument and, if possible,
by citation of authority. . . .” These are not nitpicky requirements. “The
requirements that issues be raised in the opening brief and presented under
a separate argument heading, showing the nature of the question to be
presented and the point to be made, are part of the ‘ “[o]bvious considerations
of fairness” ’ to allow the respondent its opportunity to answer these
arguments (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325,
335, fn. 8 . . .) and also to ‘ “to lighten the labors of the appellate [courts] by
requiring the litigants to present their cause systematically and so arranged
that those upon whom the duty devolves of ascertaining the rule of law to
apply may be advised, as they read, of the exact question under
consideration, instead of being compelled to extricate it from the mass” ’
(Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830–
1831, fn. 4 . . . ).” (People v. Roscoe (2008) 169 Cal.App.4th 829, 840.)
The “Argument” section of defendants’ brief does not contain any
separate headings, let alone headings that summarize the point being made.
(Some capitalization omitted.) Rather the four-page “Argument” section is
largely a string of paragraphs reciting basic attorney fee law. (Some
capitalization omitted.)
As best we can discern, defendants seem to be making two points: the
hours and rates sought by plaintiffs’ counsel were excessive and the 1.3
multiplier the trial court applied was unwarranted. But beyond one or two
sentences making argumentative pronouncements, there is no discussion of
2
the standard of review, no complete discussion of the record that was before
the trial court, and no analysis as to why the trial court purportedly abused
its discretion in any respect. These shortcomings violate additional rules of
practice.
To begin with, failure “to articulate the standard of review on appeal
[is], in and of itself a potentially fatal omission. ‘ “Arguments should be
tailored according to the applicable standard of appellate review.” [Citation.]
Failure to acknowledge the proper scope of review is a concession of a lack of
merit.’ ” (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947,
948, quoting Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc.
(2011) 196 Cal.App.4th 456, 465; accord, Symons Emergency Specialties v.
City of Riverside (2024) 99 Cal.App.5th 583, 597.) “ ‘When an appellant fails
to apply the appropriate standard of review, the argument lacks legal force,’
and the appellant ‘fails to show error in the judgment.’ ” (Symons Emergency
Specialists, at p. 597, quoting People v. Foss (2007) 155 Cal.App.4th 113, 126.)
Defendants have not acknowledged the applicable standard of review,
let alone tailored their apparent points of error to such.
As it is, challenges to the amount of attorney fees awarded are
reviewed under a highly deferential standard of review. “The reviewing court
presumes that the trial court’s award is correct” because “the experienced
trial judge is best positioned to evaluate the professional services rendered in
his or her courtroom.” (Mikhaeilpoor v. BMW of North America, LLC (2020)
48 Cal.App.5th 240, 246 (Mikhaeilpoor).) Thus, the “lodestar method”
generally used by California courts to decide the amount of fees to award,
“vests the trial court with the discretion to decide which of the hours
expended by the attorneys were ‘reasonably spent’ on the litigation” (Meister
v. Regents of University of California (1998) 67 Cal.App.4th 437, 449), and to
3
determine the hourly rates that should be used in the lodestar calculus. (569
E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016)
6 Cal.App.5th 426, 436–437.) Similarly, “California law gives the trial court
vast discretion in deciding whether to employ a multiplier and at what level
to set it.” (Pollock v. Kelso (2025) 107 Cal.App.5th 1190, 1197–1198
(Pollock).) Our review must therefore “be highly deferential to the views of
the trial court.” (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239.)
Accordingly, the trial court’s decision will not be disturbed “ ‘unless [the
Court of Appeal is] convinced that it is clearly wrong, meaning that it is an
abuse of discretion.’ ” (Graciano v. Robinson Ford Sales, Inc. (2006)
144 Cal.App.4th 140, 148, quoting In re Vitamin Cases (2003)
110 Cal.App.4th 1041, 1052.) “ ‘ “The only proper basis of reversal of the
amount of an attorney fees award is if the amount awarded is so large or
small that [it] shocks the conscience and suggests that passion or prejudice
influenced the determination.” ’ ” (Mikhaeilpoor, supra, 48 Cal.App.5th at
p. 246, quoting In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 587.)
Defendants’ wholesale disregard of the standard of review is well
illustrated by the first sentence of their “Conclusion” (some capitalization
omitted) wherein they assert: “There was substantial evidence to support
Defendants’ argument that the fees were unsupported and excessive and a
fee multiplier was not warranted.” As we have explained, challenges to the
amount of attorney fees awarded are governed by the abuse of discretion
standard.
However, even treating challenges to reasonable hour and reasonable
rate determinations as challenges to subsidiary factual findings (see Pollock,
supra, 107 Cal.App.5th at p. 1195 [observing in affirming fee award, “[w]e
accept the trial court’s factual findings supported by substantial evidence,
4
and we imply findings to support the court’s order”]), defendants have the
substantial evidence standard exactly backwards.
Substantial evidence review does not entail determining whether the
appellant proffered such evidence in support of its own position, but rather
whether the trial court’s findings are supported by any substantial evidence
in the record, e.g., evidence proffered by the respondent and credited by the
court. “Under that standard of review, ‘the power of an appellate court
begins and ends with the determination as to whether there is any
substantial evidence, contradicted or uncontradicted, which will support the
finding of fact.’ [Citation.] In so doing, we accept all evidence that supports
the judgment, disregard contrary evidence, and draw all reasonable
inferences to uphold the judgment. [Citation.] ‘It is not our role to reweigh
the evidence, redetermine the credibility of the witnesses, or resolve conflicts
in the testimony, and we will not disturb the judgment if there is evidence to
support it.’ ” (Slone v. El Centro Regional Medical Center (2024)
106 Cal.App.5th 1160, 1173 (Slone).)
Moreover, to succeed on a substantial evidence challenge, let alone an
abuse of discretion challenge, an appellant must fairly recite all the evidence
that was before the trial court and not just the evidence that purportedly
supported appellant. “It has long been established that an appellant must
present in its brief all the material evidence on the issue, not just the
evidence that supports its position, and failure to so state the evidence may
be deemed a waiver of the substantial evidence challenge. (Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 881 . . . [substantial evidence challenge
requires parties to ‘ “set forth in their brief all the material evidence on the
point and not merely their own evidence” ’ (quoting Kruckow v. Lesser (1952)
111 Cal.App.2d 198, 200. . . .)].)” (Pilliod v. Monsanto Co. (2021)
5
67 Cal.App.5th 591, 621.) “To meet its burden on appeal to show a finding of
fact is not supported by substantial evidence, appellants cannot recite only
evidence in their favor, but must ‘ “set forth in their brief all the material
evidence on the point and not merely their own evidence. Unless this is done
the error is deemed to be waived.” ’ ” (Slone, supra, 106 Cal.App.5th at
p. 1173, quoting Foreman & Clark Corp., at p. 881.)
It is apparent from plaintiffs’ respondents’ brief, and from our own
review of the record, that defendants have wholly failed in their obligation to
fairly and completely discuss all the evidence that was before the trial court.
Plaintiffs submitted numerous declarations and exhibits in support of their
fee motion. Defendants disregard all of this. They have therefore waived any
complaint about the sufficiency of the evidence to sustain the court’s
reasonable hours and reasonable rate determinations, and its application of a
multiplier.2
2 In their “Statement of Facts” (some capitalization omitted)
defendants state “[t]here are no provisions under the [Voidable Transaction]
act for awarding attorney fees,” and while “[p]laintiffs’ arguments [were]
predicated on the argument that the transfers a fraudulent intent to evade
the judgment[,] [n]o such finding was made. . . .” Even assuming such a
passing reference to an issue in a section of an opening brief other than the
argument section can be sufficient to put the issue before the appellate court
for decision, defendants’ briefing on this point suffers from all the deficiencies
we have discussed above. (See Bank of America, N.A. v. Roberts (2013)
217 Cal.App.4th 1386, 1399 [“Where a point lacks adequate legal discussion
or citation to authority, we may treat it as abandoned.”].) Furthermore,
defendants appear to have conceded the basis for a fee award in the trial
court. In their moving papers, plaintiffs discussed in detail the legal basis for
their entitlement to fees. Other than a one-page, four-sentence opposition
lacking relevant citation, let alone, authority contrary to the extensive
authorities cited by plaintiffs, there is no written opposition by defendants in
the record. When counsel appeared to contest the tentative ruling awarding
fees, he stated there were only “two issues here”—(1) “the hourly rate” which
had been reduced from $750 to $720 was still “too high” and should be set at
6
In short, defendants have not begun to demonstrate that the amount of
fees awarded “ ‘ “is so large or small that [it] shocks the conscience and
suggests that passion or prejudice influenced the determination.” ’ ”
(Mikhaeilpoor, supra, 48 Cal.App.5th at p. 246, quoting In re Tobacco Cases I,
supra, 216 Cal.App.4th at p. 587.)
DISPOSITION
The first amended judgment filed on August 29, 2025, awarding
plaintiffs $256,087 in attorney fees is AFFIRMED. Plaintiffs to recover costs
on appeal.
$600, and (2) the 1.3 multiplier was not “justified” because this was a
straightforward case. At the conclusion of the hearing, the court asked both
counsel if there was “anything else anybody wants me to consider?
Otherwise, submitted, folks?” Defendants’ counsel simply replied,
“Submitted.” Similarly, in this court, defendants filed no reply brief taking
issue with plaintiffs’ discussion and cited authorities in their respondents’
brief supporting their entitlement to a fee award. (See Rudick v. State Bd. of
Optometry (2019) 41 Cal.App.5th 77, 90 [the appellants made an implicit
concession by “failing to respond in their reply brief to the [respondent’s]
argument on th[at] point”].) On this record, we can only conclude defendants
have abandoned any contention that there is no legal basis for an award of
fees to plaintiffs.
7
_________________________
Banke, J.
WE CONCUR:
_________________________
Humes, P. J.
_________________________
Smiley, J.
A174750, Sarkany v. West
8