Filed 7/15/26 Vanowen Real Estate Partners v. Global Alarm Protection CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
VANOWEN REAL ESTATE B324647 c/w B328220
PARTNERS,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC637442)
v.
GLOBAL ALARM PROTECTION et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Maurice A. Leiter, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Joe R. Abramson for Plaintiff and Appellant.
Call & Jensen, Melinda Evans; Sultzer & Lipari, Joseph
Lipari and Jeremy Francis for Defendant and Respondent
Security Systems, Inc.
Tillotson Johnson & Patton and Jeffrey M. Tillotson for
Defendants and Respondents Global Alarm Protection, Lali Fizli,
and Maritza Aguilar.
No appearance for Defendant and Respondent Santos
Alvaro Menjivar.
________________________
INTRODUCTION
Global Alarm Protection (Global) entered into separate
contracts with Vanowen Real Estate Partners (Vanowen) and
Security Systems, Inc., dba Safe Home (SSI). Vanowen sued
Global and SSI for, among other things, breach of contract. After
a bench trial, the court found in favor of Vanowen against Global
but found Vanowen had failed to prove its causes of action
against SSI.
Vanowen appealed from the judgment, contending the trial
court erred when it awarded Global certain contractual bonus
amounts owed to Global by SSI but which Global assigned to
Vanowen. Vanowen also contends it is entitled to recover its
costs and attorney fees from SSI as the prevailing party. We
affirm the judgment relating to the claims between Vanowen and
SSI.
In the same judgment, the trial court also resolved claims
between Vanowen and Global, from which Global filed a cross-
appeal. While this appeal was pending, Vanowen and Global’s
principals reached a stipulated settlement while the claims
between Global and Vanowen were resolved in bankruptcy court.
Fulfilling a condition of the settlement, Vanowen filed a motion
for a stipulated reversal. We accept the parties’ stipulation, and
2
remand with directions for the trial court to award additional
prejudgment interest and attorney fees as provided by the
stipulation between Vanowen and Global’s principals.
Accordingly, we affirm in part, reverse in part, and remand to the
trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Global is a California corporation that sold and installed
alarm systems to residential and commercial customers. Maritza
Aguilar and Louis Fizli are the CEO and COO of Global,
respectively. SSI is a Connecticut corporation that provides
monitoring and other services for alarm systems and does
business in the State of California. Vanowen is a real estate
investor and lender based in California. Its general partners are
George Kalman and Allan E. Wolf, Jr. Between 2014 and 2016,
Global entered into contracts with SSI and Vanowen as follows.
A. The Dealer Agreement
Global sold security alarm packages which included the
sale and installation of the equipment and alarm monitoring
services for three to five years. Customers paid a monthly fee for
the monitoring services. Rather than provide the monitoring
services itself, Global entered into a dealer agreement with a
third party, known as a funding source, under which the funding
source purchased Global’s customer contracts and the associated
stream of revenue (i.e., the monthly fees), while it provided the
monthly monitoring services. Before Global’s contract with SSI
in 2014, Global had a dealer agreement with Guardian Protective
Services.
3
In July 2014, Global and SSI entered into an informal
dealer agreement under which Global sold its alarm contracts to
SSI. The dealer agreement between them was reduced to a
writing on December 18, 2014. The parties agreed that
Connecticut law governed the dealer agreement. Relevant to this
appeal, paragraph 3 of the dealer agreement provided that SSI
would pay Global “the Purchase Price, minus the Holdback
Amount” for each customer contract. The holdback amount, set
at 8 percent of the purchase price of each contract, insulated SSI
from defaults on the contracts. Global guaranteed that each
alarm contract it sold would be free from default for one year (the
guarantee period). Customers typically defaulted by failing to
pay their monthly monitoring fee, having excessive false alarms,
or accomplishing “other abuse” of the account. If the customer
did not default during the guarantee period, SSI was required to
remit the holdback amount to Global within 30 days after
expiration of the guarantee period. In cases of default, SSI could
return the contract to Global by using money from the holdback
fund (comprised of all holdback amounts that had not yet been
returned to Global) to essentially receive a refund.
The dealer agreement also contained a backend bonus
provision under which SSI paid Global bonuses depending on the
number of alarm contracts it sold to SSI. Section 3(d) of the
dealer agreement allowed Global “the right to fully assign all
rights and privileges to any and all Holdback Amount to a third
party.” Section 14(b) otherwise limited the assignment of the
dealer agreement: “Except as to Sections 3(d) and 14(c) of this
4
Agreement, Dealer may not assign this Agreement.”1
Section 14(e) also provided: “This Agreement may only be
amended by the mutual agreement of the parties.”
The dealer agreement between SSI and Global was
terminated on July 26, 2016.
B. The Assignment Agreement
Kalman, one of Vanowen’s general partners, met Fizli,
Global’s COO, through Kalman’s uncle. In 2012, Kalman
personally loaned $50,000 to Fizli’s company, Global Alarm
Solutions (GAS), the predecessor entity to Global.
In 2014, Vanowen purchased holdbacks from GAS arising
from GAS’s sale of its customer accounts to Guardian Protective
Services. In short, Vanowen purchased at a discount the future
stream of income arising from the remittance of holdbacks to
GAS after the guarantee period expired. Between April and July
2014, Vanowen paid GAS $114,382.74 for $142,978.43 in
holdback amounts that would be paid to GAS by Guardian after
the guarantee period expired.
In July 2014, Fizli told Kalman that he and Aguilar
intended to form a new security alarm company, Global, to sell
customer accounts to SSI. GAS would cease to exist and
Guardian Protective Services would no longer be the funding
source. The parties initially agreed to operate under an informal
arrangement substantially identical to the one Vanowen had
with GAS. Vanowen purchased $667,984.88 in holdbacks SSI
1 Section 14(c) permitted Global to assign the dealer
agreement to “(1) any corporation which is formed by Dealer
[Global] for the purpose of this Agreement, [or] (2) any family
member whether by blood or by family association.”
5
owed to Global for $535,787.52 between August 29, 2014, and
April 27, 2016.
On May 20, 2016, this arrangement was reduced to a
written assignment agreement that was governed by California
law. In addition to the purchase of holdback amounts, Vanowen
agreed to purchase the backend bonus stream of revenue from
Global. Paragraph 4(b) of the assignment agreement stated, “On
the terms and conditions set forth herein, and only to the extent
as described and set forth herein, Global hereby assigns to
[Vanowen] part of its right and interest in and to the Bonus. . . .
This Assignment is subject to the following additional terms and
conditions: . . . (b) [SSI] shall execute a copy of this Agreement,
approving and agreeing to be bound by the terms and conditions
of this paragraph 4.” Paragraph 12 of the assignment agreement
further provided: “No provision hereof may be waived unless in
writing and signed by the Party against which the waiver is to be
enforced.”
In 2016, SSI decided it would increase the holdback amount
due to the high number of defaults, which SSI was authorized to
do under the dealer agreement. Global thereafter decided to stop
selling contracts to SSI. During this time, Vanowen received
some payments from Global, which it applied first to the
Guardian holdbacks and then to the SSI holdbacks. At a certain
point, Global stopped paying Vanowen.
6
C. Trial Court Proceedings
On October 18, 2016, Vanowen sued Global, Fizli, Aguilar,
and SSI.2 Vanowen’s operative complaint alleged nine causes of
action: breach of contract, accounting, declaratory relief,
intentional misrepresentation, negligent misrepresentation,
unfair business practices, money had and received, fraudulent
conveyance, and breach of oral agreement. Global and SSI filed
cross-complaints against one another alleging breach of contract
and indemnity causes of action.
The parties stipulated to appoint a referee to determine
certain issues. The referee primarily conducted an accounting of
the money due from SSI for holdback amounts as well as the
backend bonus. The issue of who was entitled to the holdback
amounts and backend bonus, among other things, was left to the
trial court. The referee conducted an accounting over six days
from June to August 2021. The referee found the amount in the
holdback fund to be $385,896.24 and the amount of the backend
bonus to be $210,746.80. The trial court adopted the referee’s
conclusions as to these amounts.
The court conducted an eight-day bench trial from May 16
to May 25, 2022. It was Global’s position at trial that SSI
breached the dealer agreement. Global claimed SSI owed it
money for the backend bonus and the holdback fund as well as
damages for other violations of the dealer agreement. Global also
argued it and Vanowen operated under an informal oral
2 In the operative second amended complaint, Vanowen
added Santos Alvaro Menjivar as a defendant, alleging Aguilar
fraudulently transferred property she owned to Menjivar after
she was served with Vanowen’s complaint. Menjivar has not
appeared in this appeal.
7
agreement that was unenforceable under the statute of frauds
because it could not be performed within one year. Fizli denied
signing the assignment agreement with Vanowen and asserted
the signature on the assignment agreement was a forgery.
Global further argued the assignment agreement failed for lack of
consideration.
At trial, Kalman and his uncle testified Vanowen’s
assignment agreement with GAS amounted to three principal
terms: (1) the purchase price for holdback accounts was 80 cents
on the dollar; (2) the holdback amount would be paid to Vanowen
within 12 to 13 months; and (3) if Guardian Protective Services,
GAS’s funding source, did not pay, GAS or Fizli would. Kalman
confirmed the parties agreed to “pretty much the same terms”
when SSI became the funding source. Kalman further testified
he watched Fizli sign the assignment agreement on May 20,
2016, and Kalman signed the assignment agreement on behalf of
Vanowen a few weeks later. Vanowen calculated it was owed
$660,062 in holdback amounts. Vanowen also argued it was
entitled to payment of the backend bonus from SSI pursuant to
the terms of the assignment agreement.
SSI argued Global breached and repudiated the dealer
agreement and was required to indemnify it. SSI further argued
it was not a party to the assignment agreement between
Vanowen and Global because no one from SSI ever signed that
agreement and thus Vanowen had not met its burden of proof
against SSI.
In its statement of decision the court found that Global had
repudiated the dealer agreement with SSI by June 30, 2016. SSI
had told Global by then that it would increase the holdback
amount due to the high number of defaults, and Global decided to
8
stop selling any customer accounts to SSI. Applying Connecticut
law, the court found that once Global repudiated the dealer
agreement, SSI was not required to perform in order to enforce
the contract, and Global was not entitled to demand performance.
Nevertheless, Global was entitled to recover the unpaid holdback
amounts and backend bonus after significant offsets of amounts
owed by Global to SSI.
As between Vanowen and Global, the court found the
assignment agreement to be valid. It did not find credible Fizli’s
claim that his signature on the assignment agreement was
forged. The court found Vanowen was entitled to receive the
holdback payments owed by SSI to Global. The court also found
that Vanowen was not entitled to the backend bonus because that
assignment was invalid for two independent reasons: (1) the
dealer agreement did not allow Global to assign the rights to the
backend bonus to anyone; and (2) SSI was required to, but did
not, execute the assignment agreement.
The court found SSI was not liable to Global for attorney
fees or costs and that SSI was not required to indemnify Global.
The court awarded SSI attorney fees and costs against Global as
provided by the dealer agreement.
The trial court entered judgment, in pertinent part,
directing SSI to pay to Vanowen the amount of $385,896.24, the
holdback amount owed to Global. The judgment further awarded
to Global the backend bonus amount of $210,746.80 due to Global
from SSI, which was offset by amounts Global owed to SSI. The
court also subsequently awarded attorney fees and costs to
Vanowen and SSI, which we discuss below.
Vanowen timely appealed from the judgment and post-
judgment attorney fees award order. Global, Fizli, and Aguilar
9
filed a notice of cross-appeal from the judgment. The appeals
were consolidated.
On December 29, 2025, Vanowen advised this court that it
had reached a settlement with Aguilar and Fizli. Vanowen’s
claims against Global had been finally adjudicated in a separate
bankruptcy court order. Vanowen requested the entry of a
partial reversal of the judgment and an award of additional
prejudgment interest of $187,990.38 and post-judgment attorney
fees in the sum of $28,116.81, in favor of Vanowen and against
Fizli and Aguilar as well as immediate issuance of the remittitur
as to that portion of the appeal involving Vanowen and Fizli and
Aguilar.
DISCUSSION
Vanowen argues the assignment agreement entitles it to
the backend bonus the court awarded to Global. It further
contends it is entitled to recover costs and attorney fees from SSI
as a prevailing party because the judgment required SSI to pay
Vanowen a net monetary recovery. Vanowen also seeks entry of
a stipulated reversal as to its claims against Global’s principals.
A. The Assignment of the Backend Bonus Was Invalid Because
SSI Did Not Sign the Agreement
Vanowen argues it is entitled to the backend bonus
awarded to Global because Global assigned its rights to the
backend bonus to Vanowen.3 The trial court found the
3 As stated, Vanowen’s claims against Global were
adjudicated in bankruptcy court and it settled its claims against
10
assignment of the backend bonus was invalid because it was
prohibited under the dealer agreement, and SSI was required to,
but did not, execute the assignment agreement.
The interpretation of a written instrument is a question of
law “when it is based on the words of the instrument alone, when
there is no conflict in the extrinsic evidence, or when a
determination was made based on incompetent evidence.” (City
of Hope National Medical Center v. Genentech, Inc. (2008)
43 Cal.4th 375, 395; accord Wolf v. Walt Disney Pictures &
Television (2008) 162 Cal.App.4th 1107, 1134 (Wolf).) Here, our
analysis rests on the terms of the assignment agreement and the
dealer agreement. There is also no conflict in the extrinsic
evidence. Our review of this question of law is therefore de novo.
(Wolf, at p. 1134.)
The trial court found the events leading to the assignment
of the backend bonus are as follows. In 2014, Global and SSI
signed the dealer agreement. Paragraph 14(b) of the dealer
agreement states, “Except as to Sections 3(d) and 14(c) of this
Agreement [relating to the assignment of holdback amounts and
assignments to Global’s successors in interest], Dealer [Global]
may not assign this Agreement.” Two years later, Global and
Vanowen executed the assignment agreement. Vanowen
included paragraph 4(b), which required SSI to “execute a copy of
this Agreement approving and agreeing to be bound by the terms
and conditions [in] this paragraph 4.” In its reply brief, Vanowen
rhetorically asks, “Why did Vanowen insert such a clause? The
answer is obvious; as set forth in the final recital of the
Fizli and Aguilar during the pendency of this appeal. Thus,
Vanowen may only recover the backend bonus from SSI.
11
Assignment Agreement (beginning on page 1 and continuing on
to the top of page 2), Global was already in default of its payment
obligations arising from Vanowen’s purchase of the Holdback
Amounts and Vanowen wanted to be sure that SSI paid the
Backend Bonus to Vanowen, and not, to Global.” Vanowen,
however, concedes in its opening brief that, “Vanowen and SSI
are not parties to a fully executed agreement whereby SSI
promised to pay the Backend Bonus to Vanowen.”
The requirement that SSI execute the assignment
agreement and Vanowen’s concession that SSI never executed it
foreclose Vanowen’s argument that it is entitled to the backend
bonus. California law, which applies to the assignment
agreement, makes nonassignment clauses enforceable. (See
Henkel Corp. v. Hartford Accident &Indemnity Co. (2003)
29 Cal.4th 934, 943 [clauses requiring consent to an assignment
“are generally valid and enforceable”], overruled on other grounds
as stated in Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175;
Judicial Council of California v. Jacobs Facilities, Inc. (2015) 239
Cal.App.4th 882, 910 [“With respect to an ordinary contract
containing a nonassignment clause, an unconsented assignment,
rather than effective until voided, is simply ineffective”]; Benton
v. Hofmann Plastering Co. (1962) 207 Cal.App.2d 61, 68 [explicit
language in contract requiring consent to an assignment was
enforceable]; Fairbanks v. Crump Irrigation & Supply Co. (1930)
108 Cal.App. 197, 205 [provision that moneys due might be
assigned by contractor with owner’s written consent prevented
assignment without owner’s written consent].) Without SSI’s
consent, Global’s assignment of the backend bonus to Vanowen
was invalid.
12
The dealer agreement and Vanowen’s concession that it
needed SSI’s signature in the assignment agreement further
support our conclusion. It is undisputed the dealer agreement
prohibited Global from assigning its backend bonus rights, and
Vanowen attempted to draft around this prohibition in the
assignment agreement “to be sure that SSI paid the Backend
Bonus to Vanowen.” But Vanowen ultimately failed to obtain
SSI’s consent to the assignment, which Vanowen needed in order
to have any enforceable claims against SSI.
Vanowen acknowledges the assignment agreement contains
a consent provision and that paragraph 4(b) of the dealer
agreement prohibits general assignments, but nevertheless
asserts SSI’s signature was not required for the assignment to be
valid, citing Searles Valley Minerals Operations Inc. v. Ralph M.
Parsons Service Co. (2011) 191 Cal.App.4th 1394, 1402 and
California Bank & Trust v. Piedmont Operating Partnership, L.P.
(2013) 218 Cal.App.4th 1322, 1349. Searles and California Bank
& Trust are distinguishable because neither involve a contract
with a similar written consent requirement. Indeed, Searles
Valley and California Bank & Trust merely set out “general
assignment principles,” presuming a valid assignment existed.
(California Bank & Trust, at p. 1348.) As stated, the assignment
here was invalid.
Vanowen further contends it could and did waive the
requirement of SSI’s signature because that clause only benefited
Vanowen and not SSI or Global. Vanowen cites Doryon v. Salant
(1977) 75 Cal.App.3d 706, 712 (Doryon) for the proposition that a
“ ‘contracting party may waive provisions placed in a contract
solely for his benefit.’ ” According to Vanowen, “other than whom
the money was to be paid to, that clause had no adverse impact
13
upon SSI.” Vanowen also asserts the assignment did not benefit
Global because “Global gave up a potential direct right to
payment and assigned that right to Vanowen.”
Doryon, supra, 75 Cal.App.3d at pages 711 to 712 involved
a seller’s attempt to rescind a purchase contract for the sale of a
home because the loan contingency was not met. The contract
allowed the buyer to rescind the contract if the buyer was unable
to obtain a $52,000 loan. The buyer obtained a $51,000 loan and
was willing to go forward with the purchase. Doryon held the
loan contingency was “solely” for the buyer’s benefit because the
“sale was, as to the sellers, a cash sale” and thus the sellers
“would have had no complaint if plaintiffs had elected to forego
financing altogether and to pay the purchase price with their own
cash.” (Ibid.)
Doryon is inapposite because Vanowen has failed to meet
its burden to establish that (1) it waived the requirement that
SSI consent to the assignment of the backend bonus or (2) the
provision was included solely for its benefit. First, Vanowen
asserts it waived the SSI signature requirement by proceeding
without SSI’s signature. Paragraph 12 of the assignment
agreement, however, required waiver of any of its provisions to be
“in writing and signed by the Party against which the waiver is to
be enforced.” Vanowen cites no evidence in the record that any
party did so.
Nor has Vanowen demonstrated the SSI signature
requirement was solely for its benefit. The uncontradicted
evidence established SSI had an interest in deciding whether and
to whom Global could assign its rights to the dealer agreement.
Paragraph 14(b) of the dealer agreement expressly limits
assignment of Global’s rights to holdback amounts
14
(paragraph 3(d)) and to Global’s successors and family members
(paragraph 14(c)).4 The assignment agreement requiring SSI’s
consent to the assignment of the backend bonus was a natural
corollary to paragraph 14(b).
Lastly, in its reply brief, Vanowen contends that paragraph
14(d) of the dealer agreement “specifically permitted the
assignment of the Backend Bonus to Vanowen because Vanowen
was a ‘lender.’ ” (Emphasis omitted.) Not so. Paragraph 14(d)
applies only to SSI (which is identified in the dealer agreement as
the “Company”): “Subject to below, Company may assign this
Agreement and the rights and obligations hereunder to its
affiliates, lenders, successors and assigns.”
B. The Trial Court Properly Determined Vanowen Was Not the
Prevailing Party As Between Vanowen and SSI
Vanowen contends it received a net monetary recovery
because the judgment awarded it $385,896.24 to be paid by SSI.
4 Vanowen argues the anti-assignment provision under
paragraph 14(b) of the dealer agreement is unenforceable under
the Connecticut Commercial Code and Connecticut decisional
authority. Even if the anti-assignment provision in the dealer
agreement is invalid under Connecticut law, that invalidity does
not extend to the assignment agreement, which is governed by
California law. Paragraph 14(b) of the dealer agreement instead
merely demonstrates SSI held an interest in limiting Global’s
ability to assign its rights under the dealer agreement without
SSI’s consent.
15
According to Vanowen, this means it is the prevailing party and
entitled to its statutory costs and contractual attorney fees.5
1. Additional Relevant Proceedings
Vanowen alleged three causes of action against SSI: breach
of the assignment agreement, an accounting of the holdback
amount and the backend bonus, and declaratory relief as to
Vanowen’s right to collect the backend bonus directly from SSI.6
Global, in turn, sued SSI for breach of the dealer agreement,
contractual and equitable indemnity, and an accounting. SSI
likewise sued Global for breach of contract, contractual and
equitable indemnity, and fraud.
After hearing the evidence at trial and examining the three
operative complaints and two contracts, the trial court made the
following findings: (1) “SSI substantially complied with the dealer
agreement”; (2) “Global repudiated the dealer agreement no later
than June 30, 2016 . . . prior to the date SSI terminated the
agreement”; (3) “[o]nce Global repudiated the dealer agreement,
SSI was not required to perform in order to enforce the contract,
and Global was not entitled to demand performance”; and (4) “the
5 Vanowen states, “This Court’s decision on whether
Vanowen was the prevailing party in its claims against SSI also
controls the decision on whether Vanowen was entitled to recover
attorneys’ fees from SSI.” Because we affirm the trial court’s
finding that Vanowen did not prevail against SSI, we need not
address Vanowen’s attorney fees claim.
6 Vanowen alleged the same three causes of action against
Global, plus causes of action for intentional misrepresentation,
negligent misrepresentation, unfair business practices, money
had and received, and breach of oral agreement.
16
accounting causes of action address the distribution of monies
from the holdback fund and backend bonus.” Based on these
findings, the trial court concluded that “Vanowen did not prove
any of its causes of action against SSI.”
The judgment awarded attorney fees and costs to SSI and
Vanowen to be paid by Global in amounts to be determined.
Vanowen filed a memorandum of costs in the amount of
$93,153.98. Relevant to this appeal, Vanowen argued that the
claims it asserted against SSI and Global were “inextricably
intertwined” and requested the costs be awarded jointly and
severally. Vanowen further argued it was entitled to an award of
costs against SSI under Code of Civil Procedure section 1032,
subdivision (a)(4) because the judgment ordered SSI to pay to
Vanowen a net monetary recovery of $385,896.24. Vanowen
argued the trial court lacked discretion to make any other ruling
due to its status as the prevailing party. SSI moved to tax or
strike Vanowen’s memorandum of costs to the extent it sought
costs from SSI, asserting the court found Vanowen was not a
prevailing party because “Vanowen did not prove any of its []
actions against SSI.”
The trial court granted SSI’s motion to strike the
memorandum of costs. The court reasoned SSI owed unpaid
holdback amounts to Global. SSI, however, consented in the
dealer agreement to allow “Global to ‘fully assign all rights and
privileges’ to holdback payments” without SSI’s authorization.
Further, the assignment agreement specified “that SSI would pay
holdback amounts directly to Vanowen.” The court therefore
ordered SSI to pay Vanowen directly, “rather than pay them to
Global and have Global, in turn, transfer them to Vanowen.”
17
2. Governing Law and Standard of Review
Code of Civil Procedure section 1032 (section 1032) governs
the award of costs in this case. Section 1032, subdivision (b)
provides: “Except as otherwise expressly provided by statute, a
prevailing party is entitled as a matter of right to recover costs in
any action or proceeding.” “ ‘Prevailing party’ ” is defined as “the
party with a net monetary recovery, a defendant in whose favor a
dismissal is entered, a defendant where neither plaintiff nor
defendant obtains any relief, and a defendant as against those
plaintiffs who do not recover any relief against that defendant. If
any party recovers other than monetary relief and in situations
other than as specified, the ‘prevailing party’ shall be as
determined by the court, and under those circumstances, the
court, in its discretion, may allow costs or not and, if allowed,
may apportion costs between the parties on the same or adverse
sides pursuant to rules adopted under Section 1034.” (Code Civ.
Proc., § 1032, subd. (a)(4).)
Where there are multiple defendants who are not united in
interest, each may be considered separately when determining
who is the prevailing party as between the plaintiff and each
defendant. In Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th
1265 at pages 1298 to 1299, for example, the plaintiffs lost at
trial against three of four subcontractors. Heppler held the trial
court properly awarded statutory costs and contractual attorney
fees to plaintiffs against the losing subcontractor, but that it
abused its discretion when it failed to apportion those costs and
attorney fees because the losing subcontractor’s part of the case
took up substantially less time than the others. (Ibid.; see also
Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 238, 256–257
[plaintiffs who obtained jury verdict against some defendants but
18
not others entitled to recover costs as a matter of course from the
defendants against whom they obtained judgment]; Gibson v.
Thrifty Drug Co. (1959) 173 Cal.App.2d 554, 556 [defendant who
obtained directed verdict against plaintiff entitled to costs
against plaintiff, while plaintiff who obtained jury verdict against
another defendant was entitled to costs against that defendant].)
“A trial court’s determination that one party in litigation
was the prevailing party is reviewed for abuse of discretion.”
(Arias v. Katella Townhouse Homeowners Assn., Inc. (2005)
127 Cal.App.4th 847, 852; see Villa De Las Palmas Homeowners
Assn. v. Terifaj (2004) 33 Cal.4th 73, 94.)
3. Analysis
Vanowen contends it is the “party with a net monetary
recovery” because the court ordered SSI to pay Vanowen
$385,896.24 plus interest. (Code Civ. Proc., § 1032, subd. (a)(4).)
As such, Vanowen argues it is a prevailing party “entitled as a
matter of right to recover costs” against SSI. (Code Civ. Proc.,
§ 1032, subd. (b).) According to Vanowen, it had standing to sue
SSI for the holdback amounts due to Global’s assignment.
Therefore, “[i]t matters not whether Vanowen’s claim was
predicated on the legal remedy of a breach of contract (based
upon the assignment of Global’s contractual rights to the
Holdback under the Dealer Agreement), or equitable principals
[sic] (based upon the accounting); in either event, the net
monetary recovery in favor of Vanowen and against SSI
mandated an award of costs to Vanowen.”
We are not persuaded. The trial court expressly found
Vanowen did not prove its three causes of action against SSI.
The record supports this conclusion. First, Vanowen alleged a
19
breach of the assignment agreement, which SSI did not sign, and
it made no mention of the dealer agreement as a basis for its
breach of contract claim against SSI. Even if Vanowen had sued
SSI as an assignee of the dealer agreement (which it did not), it
could not have prevailed on this cause of action because the court
expressly found SSI did not breach the dealer agreement.
Instead, it found Global repudiated the agreement and SSI was
not thereafter required to perform. Second, Vanowen alleged a
claim for an accounting.7 The trial court made the following
findings relating to the parties’ request for an accounting: “As to
the arrangements between Global and SSI. SSI owes
$596,643.04. This is the total of the holdback and backend bonus
due, as calculated by the Referee and adopted by the Court. . . .
As between Global and Vanowen, Global, Fizli, and Aguilar
jointly and severally owe to Vanowen $561,811.87. $385,896.24
of this amount will be satisfied by the holdback payments made
directly to Vanowen by SSI.” In short, the court found SSI owed
Global a sum certain and Global, Fizli, and Aguilar jointly owed
Vanowen another sum. The court, relying on the assignment
agreement, ordered a portion of Vanowen’s judgment against
Global to be paid by SSI. The judgment ordering SSI to pay
$385,896.24 directly to Vanowen is thus entirely consistent with
7 “[T]he nature of a cause of action in accounting is unique in
that it is a means of discovery. An accounting is a ‘species of
disclosure, predicated upon the plaintiff’s legal inability to
determine how much money, if any, is due.’ [Citation.] Thus, the
purpose of the accounting is, in part, to discover what, if any,
sums are owed to the plaintiff, and an accounting may be used as
a discovery device.” (Teselle v. McLoughlin (2009)
173 Cal.App.4th 156, 180.)
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the court’s findings that Vanowen did not prevail in its claims
against SSI and does not render Vanowen the prevailing party as
against SSI.
Third, Vanowen sought declaratory relief against SSI, but
that claim related only to a declaration that SSI owed it the
backend bonus. As stated, the trial court correctly determined
Vanowen did not prevail on that claim. Under these
circumstances, the trial court did not abuse its discretion in
determining Vanowen was not the prevailing party as against
SSI and that it was not entitled to recover its costs against SSI.
C. The Settlement between Vanowen, Fizli, and Aguilar, and
the Request for a Stipulated Reversal
As stated, Vanowen challenges the amounts of prejudgment
interest and postjudgment attorney fees the trial court awarded
to it from Global, Fizli and Aguilar. After the appeal was fully
briefed, Vanowen and these respondents settled their dispute,
Vanowen entered into a stipulation with Fizli and Aguilar, and
Vanowen moved for a stipulated reversal under Code of Civil
Procedure section 128, subdivision (a)(8). Specifically, the
stipulation seeks “[t]he entry of a partial reversal of the judgment
by an award of additional prejudgment interest of $187,990.38
and post-judgment attorneys’ fees in the sum of $28,116.81, in
favor of Vanowen and against respondents, Mr. Fizli and Ms.
Aguilar; and . . . [t]he issuance of remittitur as to that portion of
the instant Appeal as between Vanowen, on the one hand, and
Mr. Fizli and Ms. Aguilar, on the other hand.” The stipulation
does not include SSI.
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1. Additional relevant background
On December 7, 2023, while this appeal was pending,
Global filed for bankruptcy. On July 26, 2025, Vanowen, Global,
Fizli, and Aguilar entered into a 14-page “Settlement Agreement
and Mutual General Release.” Vanowen was required to bring
the motion for stipulated reversal as a term of the parties’
settlement. According to Vanowen, “[o]ne of the principal
purposes of the Settlement Agreement was to equalize the
amounts owed by Global to Vanowen pursuant to Global’s
approved Chapter 11 Plan with the amounts owed by Global’s
principals, Lali Fizli and Maritza Aguilar, based upon the
California Judgment.” The bankruptcy court approved the
settlement agreement as to Global on August 5, 2025.
On December 29, 2025, Vanowen filed a motion in this
court seeking “an order approving the stipulation.” The
stipulation provides as follows: “(1) That the Court of Appeal
shall enter its order partially reversing the Judgment which shall
direct the trial court to enter a new Judgment adding additional
pre-judgment . . . interest to the new judgment in favor of
Vanowen and against Aguilar and Fizli (but not Global), in the
sum of $187,990.38. [¶] (2) That the Court of Appeal shall enter
its order directing the trial court to include in the new judgment
post-judgment attorneys’ fees in favor of Vanowen and against
Aguilar and Fizli, in the sum of $28,116.81. [¶] (3) Except as
otherwise [provided] in the Settlement Agreement and herein,
Vanowen, on the one hand, and the Global parties, on the other
hand, shall bear their own attorneys’ fees and costs with respect
to the Appeals. [¶] (4) Nothing in this stipulation shall modify or
alter that portion of the pending appeal between Vanowen and
respondent, Security Systems, Inc. . . . [¶] (5) That immediately
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upon the entry of the foregoing orders, the Court of Appeal[ ]
shall issue its Remittitur with respect to the appeal of the issues
between Vanowen and the Global Parties.”
2. Analysis
For an appellate court to accept a stipulated reversal, it
must find “both of the following: [¶] (A) There is no reasonable
possibility that the interests of nonparties or the public will be
adversely affected by the reversal [and] [¶] (B) The reasons of the
parties for requesting reversal outweigh the erosion of public
trust that may result from the nullification of a judgment and the
risk that the availability of stipulated reversal will reduce the
incentive for pretrial settlement.” (Code Civ. Proc., § 128,
subd. (a)(8)(A)–(B); accord, Union Bank of California v. Braille
Inst. of Am. (2001) 92 Cal.App.4th 1324, 1328.)
After examining the record in this case and the parties’
stipulation, we conclude the requirements of Code of Civil
Procedure section 128, subdivision (a)(8), are both met. First,
there is no reasonable possibility that the interests of nonparties
will be adversely affected by the proposed reversal. This is a
private dispute and acceptance of the stipulated reversal will not
result in an erosion of public trust or reduce the incentive for
pretrial settlement, and it will advance judicial economy. SSI
and Menjivar, the only other defendants in this matter, were
served with Vanowen’s motion and did not file an objection.
Second, it is unlikely the requested reversal will result in
the erosion of public trust because this court would likely reverse
the prejudgment interest ruling. The motion argues the trial
court erred in the amount of prejudgment interest it awarded to
Vanowen “because it used an irrelevant date for the calculation of
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prejudgment interest.” Specifically, “the interest was only
awarded from August 18, 2021 (the date of a Referee’s Report
which had nothing to do with Vanowen’s separate monetary
claim against the Global Parties) to the date of entry of the
California Judgment, on September 16, 2022. Instead, that
interest should have been calculated from the date the principal
amount became liquidated and fully due and payable to Vanowen
pursuant to the terms and conditions of a separate written
agreement between Vanowen, on the one hand, and Global and
Mr. Fizli, on the other hand. . . . Vanowen’s calculation of the
interest due was approximately $325,344.70, but the trial court
only awarded Vanowen the sum of $102,038.32, leaving an
additional amount of prejudgment interest owed to Vanowen in
the sum of $223,306.38. [¶] The Court erred in determining that
Vanowen’s right to recover interest from the Global Defendants
was controlled by the date of the Referee’s Report rather than
when the payments were due under the separate Assignment
Agreement. . . . [¶] As a pretrial settlement in the Bankruptcy,
Vanowen agreed to accept the additional sum of $187,990.38 as
and for prejudgment interest, a compromise of $35,316.”
We agree reversal is warranted because liability was
established before the date of the referee’s report. (See Civ. Code,
§ 3287, subd. (a); Cheema v. L.S. Trucking, Inc. (2019)
39 Cal.App.5th 1142, 1151 [“The trial court erroneously confused
uncertainty over the amount of damages with uncertainty as to
whether there is liability for damages in an amount that is
certain. The former precludes the mandatory award of
prejudgment interest under section 3287, subdivision (a), but the
latter does not”]; see Collins v. City of Los Angeles (2012)
205 Cal.App.4th 140, 151 [“Damages are certain or capable of
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being made certain by calculation, or ascertainable, for purposes
of the statute if the defendant actually knows the amount of
damages or could calculate that amount from information
reasonably available to the defendant. [Citation.] . . . A legal
dispute concerning the defendant’s liability or the proper
measure of damages, however, does not render damages
unascertainable”].)8
Although we accept the settling parties’ stipulated reversal,
we deny the request for immediate issuance of the remittitur
because SSI is not a party to the stipulation. Immediate issuance
of the remittitur would cut off Vanowen’s and SSI’s ability to seek
rehearing in this court or to file a petition for review with the
Supreme Court as to the claims between them. (Rare Coin
Galleries, Inc. v. A-Mark Coin Co., Inc. (1988) 202 Cal.App.3d
330, 336 [“the effect of the delay between the filing of the Court of
Appeal opinion and the issuance of the remittitur is to afford the
parties the opportunity to petition for rehearing in the Court of
Appeal [], and to seek review in the Supreme Court, before
appellate jurisdiction is lost”].) Accordingly, the request for
immediate issuance of the remittitur is denied without prejudice
to the filing of a stipulation signed by all parties or an unopposed
motion to expedite issuance of remittitur as to all parties. (See
Cal. Rules of Court, rule 8.272(c)(1).)
8 And as to the postjudgment attorney fees, the settling
parties agreed in the settlement agreement “[t]hat $28,116.81 in
post-judgment attorneys’ fees was reasonably incurred by
Vanowen in connection with enforcement of the Judgment and
the Bankruptcy and is to be added to the Judgment.”
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DISPOSITION
The judgment is affirmed in part, reversed in part, and
remanded to the trial court. On remand, the trial court is
directed to enter a new judgment reflecting an additional award
of prejudgment interest in the amount of $187,990.38 and
postjudgment attorney fees in the amount of $28,116.81, in favor
of Vanowen and against Fizli and Aguilar. The judgment is
otherwise affirmed. SSI may recover its costs on appeal.
MARTINEZ, P. J.
We concur:
FEUER, J. STONE, J.
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