Filed 1/23/18 USA National Title Co. v. Cayton CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

USA NATIONAL TITLE COMPANY, INC.,

Plaintiff, Cross-defendant, and
Appellant

v.

ROBERT EDWARD CAYTON, JR.,

Defendant, Cross-complainant, and
Respondent

G051810

(Super. Ct. No. 30-2012-00593016)

O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed.
Peabody Law Firm and Timothy P. Peabody for Plaintiff, Cross-defendant, and Appellant.
Michelman & Robinson, Mona Z. Hanna and Robin James for Defendant, Cross-complainant, and Respondent.
* * *
USA National Title Company, Inc. (USA National or USA) appeals from the trial court’s order denying its motion for judgment nothwithstanding the verdict (JNOV) or a new trial after the jury rejected its breach of contract, breach of fiduciary duty, and misappropriation of confidential information and trade secrets claims against its former vice president, Robert Edward Cayton. The jury also rejected Cayton’s cross-claim that USA National committed fraud in the inducement when it lured him to USA from his sales manager position at another title insurance company, but the jury found in Cayton’s favor on his breach of contract cross-claim against USA National, and awarded him $50,000 in damages.
USA National argues the trial court erred in denying its motion for a new trial or JNOV because the court erred in allowing Cayton to amend at trial his claim for “constructive discharge in breach of a written contract” in his cross-complaint to simply a “breach of contract” claim. USA National also argues the evidence does not support the $50,000 damages figure and that the jury was required to conclude Cayton breached his employment agreement and his fiduciary duty as an officer by negotiating to return to his former employer before he left USA National. As we explain, these challenges are without merit.
In a new argument not raised in its JNOV motion, USA National contends the evidence does not support the jury’s decision rejecting its trade secrets or misappropriation of confidential information cause of action. USA National also purports to appeal the attorney fee award the court entered after Cayton filed a motion for attorney fees and the court held a hearing on the motion, both of which occurred well after the court denied the JNOV motion. As we explain, these latter claims are forfeited because USA National only appealed from the postjudgment order denying its JNOV motion, not from the underlying judgment or the subsequent attorney fee order.


I
FACTUAL AND PROCEDURAL BACKGROUND
USA National sells title insurance policies. Like other title companies, its clients include real estate agents, investors, escrow companies, builders, and lenders. Real estate agents are a title company’s primary source of business because they can steer their clients to the company to purchase title insurance policies. Title companies can identify potential real estate agent “customers” through industry reports. The reports are not confidential, but instead are available by subscription to all title companies. The reports collect and categorize information relating to each real estate transaction tracked in the real estate industry’s Multiple Listing Service (MLS). For each MLS transaction, the reports identify the real estate agents handling the sale and the title company that recorded the deed. The companies that produce the reports also offer searchable databases that title companies can mine for leads on top producing real estate agents and the title companies they use. Other market share reports document the number of transactions per title company within a county, city, or other geographic regions.
Title companies have their own sales agents, who seek out real estate agents and other prospects to drive the sale of title insurance policies. According to Cayton’s expert at trial, a sales agent’s “book of business” consists of real estate agents and other sources he or she regularly solicits to sell title insurance policies, and that “customer data” belongs to the sales agent, following him or her in a move to a different title company. Title companies can use the MLS and market-share reports to identity and target for recruitment sales agents at competing title companies. Similarly, they may target competing title companies’ sales managers, who also have cultivated customer relationships that likely will follow them if they move to a new title company.
USA National began operating in 2006 and identified Cayton, a sales manager at an established title company, Lawyers Title, as a top producer to recruit. Cayton had worked for Lawyers Title for 23 years and initially rebuffed USA National’s overtures. But in early 2010, Cayton agreed to join USA National as an executive vice president and sales manager under a five-year contract with the company. He signed an Executive Employment Agreement (EEA) that USA National’s Chief Executive Officer, Edward Clark, signed on USA National’s behalf. The agreement prohibited any change to the EEA unless Cayton and another USA officer agreed to the change in writing. The EEA guaranteed Cayton $25,000 per month for 10 months and provided Cayton would receive 5 percent of USA’s shares. Later, USA and Cayton amended the EEA in writing extending Cayton's monthly $25,000 guarantee indefinitely in exchange for Cayton relinquishing 3 percent of USA’s stock.
Still later, after relations between USA and Cayton soured, USA told Cayton that his guaranteed compensation would decrease from $25,000 to $5,000 per month, and that he could make up the difference by selling policies and earning commissions on them — placing Cayton in direct competition with the sales representatives he supervised. Cayton did not consent to the change orally or in writing. Instead, he contacted Lawyers Title and asked if he could return. Lawyers Title told Cayton he could return to the company, but not to a sales manager position because there were no openings. Shortly thereafter, in March 2012, Cayton resigned from USA and returned to Lawyers Title as a sales representative.
USA National sued Cayton and Lawyers Title, and Cayton filed a cross-complaint. The matter proceeded to trial on: (a) USA’s causes of action against Cayton for breach of the EEA, misappropriation of trade secrets, and breach of fiduciary duty; (b) USA’s business tort claims against Lawyers Title; and (c) Cayton’s causes of action against USA for breach of the EEA and fraud in the inducement.
At trial, Cayton testified one of his primary responsibilities was to recruit top producing sales agents to join USA National, but his superiors thwarted his efforts and rejected his advice on other matters, including whether to continue subscribing to essential industry reports and not to require sales representatives to contribute from their salaries to promotional materials used to market the firm. Cayton testified, “I was keeping in line with my business philosophy that in order to recruit and grow a company, I needed to go after the top producers that I knew in Los Angeles County. [¶] And for that, they’re just not going to move from a large company that has a 401K, direct deposits, [company-]issued iPad or cell phones . . . , marketing budgets[;] I had to really put together a package, a compensation package that would be worth their while to transition their business.” Cayton worried that “basically we really didn’t have anything to offer them at USA” and that “word got out into the industry . . . that USA is cheap, not willing to pay, not willing to make the investment to hire the right people.” The recruits Cayton contacted “were struggling with the fact that we didn’t have a 401K. We didn’t have good medical insurance. We didn’t have direct deposit. We didn’t issue company Blackberries. We didn’t issue company iPads or computers. We didn’t really have online services that the reps could use in the field to be effective. We were behind on our technology, and we were behind on some of the benefits that we had.”
A USA National executive testified that USA considered its financial information, budgeting plans, marketing plans, and customer information to be confidential. Cayton testified that he brought his own customer contacts, which he developed in his “20 something plus years” at Lawyers Title, with him when came to work at USA National, and he believed, based on industry practice, that nothing prevented him from taking his knowledge of those business leads with him when he returned to Lawyers Title. He denied taking any confidential information or trade secrets from USA National for use at Lawyers Title. Instead, he knew what customers to solicit based on his 26 years of experience, including the contacts in his personal cell phone. He did not take the information from a USA-issued laptop, which USA’s information technology consultant retrieved from him.
After the close of evidence, USA National moved for a nonsuit on Cayton’s claim in his cross-complaint for “constructive discharge in breach of a written contract.” At a hearing on the motion, the trial court observed, “As to the second cause of action for constructive discharge and beach of a written contract, the problem the court is having is the way this has been classified or characterized. Constructive discharge is not this case. . . . What we have here is a breach of contract action that I am more than happy to grant the motion for nonsuit as to the constructive discharge, but amend according to proof. And put it in the context of what this case involves, which is a breach of contract alleged by Cayton with regards to — it all hinges upon the contract and who was required to do what pursuant to the contract.” The court continued: “So, breach of contract is really what the cross-complainant is alleging. That because of the conduct that frustrated his ability to go out and do the job he was supposed to do pursuant to the contract, he had no other alternative but to resign. . . . [t]hat is the gravamen of the case, as I have heard the testimony in this courtroom.” In other words, “Did Cayton breach the contract? And, if so, what is the measure of damage? And, did USA breach the contract? And was Cayton free to leave and be relieved of any of his obligations under the contract?”
The trial court granted USA National’s nonsuit motion to dismiss the constructive discharge cause of action, but invited Cayton to amend the claim to breach of contract. Counsel for Cayton did so, pointing out that “breach of contract” had been included in the original cause of action labeled “constructive discharge in breach of contract.” (Italics added.)
At the parties’ request, the trial court submitted the matter to the jury to render special verdicts on each of the elements in the surviving causes of action. The jury found against USA National on all of its claims against Cayton and Lawyers Title, including misappropriation of confidential information or trade secrets and breach of contract and fiduciary duty against Cayton, and intentional interference with contractual relations against Lawyers Title. The jury also rejected Cayton’s claim against USA National for fraud in the inducement. But the jury found USA National breached its employment contract with Cayton, and awarded him $50,011.65 in damages. The special verdict form did not require the jury to itemize or specify the basis for the damages.
USA National filed a motion for judgment notwithstanding the verdict or a new trial in January 2015. After a hearing, the trial court in February 2015 denied the motion “in its entirety based on the court finding that substantial evidence supports the jury verdict.”
Cayton subsequently filed in March 2015 a motion for attorney fees based on the attorney fee clause in the his employment contract with USA National, which provided for an award of fees to the prevailing party. The trial court heard and granted the motion in June 2015, rejecting USA’s argument that Cayton was not entitled to fees because of the fee-sharing arrangement he had secured with Lawyers Title for litigation costs, relying on Skistimas v. Old World Owners Assn. (2005) 127 Cal.App.4th 948, 952 [“there is ample case law holding that a litigant may recover attorney fees even though he has not paid them out of his own pocket”].)
In addressing the parties’ dispute over hourly rates, the trial court split the difference between the $378.46 hourly rate Cayton sought, and the $329.29 figure proposed by USA National’s expert, settling on $350 an hour. The court determined that 482.6 of Cayton’s claimed 3,572.6 hours actually should be allocated solely to defending Lawyers Title, not Cayton, and therefore reduced Cayton’s recompensable hours to 3,090, which, at the $350 rate, resulted in an attorney fee award of $1,081,500. The court found that USA initiated “a lot of motion work” and the case to some extent had been “over litigated,” which “forced [counsel for Cayton] to react” by expending so many hours responding to the litigation.
USA filed its appeal in April 2015 using the form approved by the Judicial Council (Form APP-002), which provides check boxes to specify the matters appealed. USA National checked only the box specifying “An order or judgment under Code of Civil Procedure section 904.1(a)(3)-(13),” which in subdivision (a)(4) authorizes appeal “From an order granting a new trial or denying a motion for judgment notwithstanding the verdict.”
USA National did not check the boxes on its notice of appeal for appeal from “Judgment after jury trial” or “An order after judgment.” Nor did USA National check the “Other” box or otherwise specify it was appealing anything more than the trial court’s order denying its motion for a JNOV or new trial.
II
DISCUSSION
A. The Court Did Not Err in Denying USA National’s JNOV or New Trial Motion
USA National contends the trial court erred in denying its motion for JNOV, or in the alternative, a new trial. USA National contends the court was required to grant the motion because the court erred in allowing Cayton to amend his complaint at trial, the evidence did not support the jury’s damages verdict, and the evidence required the jury to conclude Cayton breached the employment agreement and his fiduciary duty to USA National. We address each of these contentions in turn.
1. Amendment
USA National asserts the trial court erred in permitting Cayton to amend the cause of action he had pleaded in his cross-complaint, “Constructive Discharge in Breach of Written Contract,” to simply “Breach of Contract” to conform to the proof at trial. USA National argued in its JNOV and new trial motion that the change violated procedural due process. Because USA National’s argument would not have entitled it to judgment on a claim that USA National argued should not have been submitted to the jury, we assess the claim to determine whether the court should have ordered a new trial on grounds it erroneously permitted the amendment.
Whether to grant leave to amend a complaint or cross-complaint rests in the trial court’s sound discretion, which we review under the deferential abuse of discretion standard. (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909 (Garcia).) By statute, the trial court has express authority to permit amendment “upon any terms as may be just” (§ 473) “at any time before or after commencement of trial” (§ 576). As the Supreme Court has explained, “The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court. Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial court’s order will yet not be reversed unless, as a matter of law, it is not supported by the record.”’ [Citation.]” (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.)
“‘The cases on amending pleadings during trial suggest trial courts should be guided by two general principles: (1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment. Frequently, each principle represents a different side of the same coin: If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations while engaged in trial or to call rebuttal witnesses. If the same set of facts supports merely a different theory—for example, an easement as opposed to a fee—no prejudice can result.’” (Garcia, supra, 173 Cal.App.4th at p. 910.)
Here, USA National claims prejudice because, as a result of its ruling allowing amendment, the trial court provided the jury with special verdict forms pertaining to breach of contract and because permitting the amendment violated the parol evidence rule. Neither claim has merit. The fact that the court provided special verdict forms caused no prejudice given the jury decided all of the parties’ causes of action in that manner and USA National does not identify any particular flaw in the breach of contract special verdict forms. Instead, the question is whether the amendment itself was proper, not whether the special verdict forms were properly given. Nor is the parol evidence rule implicated in any manner that we can discern. Although difficult to decipher, it appears USA National believes the court’s amendment emboldened the jury to decide the breach of contract issue “contrary to the express terms” of the parties’ employment agreement and, USA National reasons, any verdict misapplying the agreement’s terms is “outside the agreement” (our phrasing), and therefore constitutes a violation of the parol evidence rule. We are not persuaded by this line of argument.
Instead, the record supports the conclusion that changing the name of the cause of action more accurately captured the nature of Cayton’s cross-claim as stated at the outset in his cross-complaint and reflected in the evidence presented at trial. In alleging “Constructive Discharge in Breach of Written Contract,” Cayton claimed he was excused from performance under the contract because, simply put, USA National breached the contract. Cayton’s cross-complaint asserted USA National breached the contract by “interfer[ing]” with his performance of his duties under the contract and by “unilaterally” changing his compensation terms, in violation of the contract.
These were the same theories the parties argued at trial, presenting conflicting evidence and testimony on each point. Moreover, Cayton from the outset in his cross-complaint had identified his claim as one for “breach of the Employment Agreement,” for which he sought “damage[s], including, without limitation, lost earnings and other employment benefits, in an amount to be established at trial, but not less than One Million Dollars.” Additionally, Cayton expressly identified breach of contract as his 11th affirmative defense in his answer, and asserted the breach in his discovery responses to USA National’s interrogatories. In these circumstances, we discern no fundamental change in the theories or facts Cayton alleged and presented at trial, nor any prejudice in the amendment the trial court authorized. As detailed above, Cayton’s cross-complaint asserted a breach of contract claim from the outset. Consequently, the court did not abuse its discretion in permitting amendment to state the claim expressly.
2. Damages
Next, USA National asserts the trial court was required to grant its JNOV motion because the $50,011.65 damages figure the jury awarded Cayton was “Not Supported by the Evidence, [or] Facts and Circumstances as Alleged in the FACC or at Trial.” We review the trial court’s ruling under the deferential substantial evidence standard. Specifically, “‘“[t]he scope of appellate review of a trial court’s denial of a motion for judgment notwithstanding the verdict is to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s conclusion and where so found, to uphold the trial court’s denial of the motion.”’ [Citation.]” (Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730.)
USA National’s argument fails for several reasons, including that it simply repeats its improper amendment claim, asserting again that “Breach of Contract” damages were a “surprise” at “the 13th hour” violating the parol evidence rule because they were based on an amended “claim or cause of action . . . never made or argued by Cayton, nor defended against by USA.” Inadequate claims are not enhanced by repetition. Implicitly recognizing this problem, USA National also adds in its heading a new assertion that Cayton obtained damages “Never Demanded in the FACC, No[r] the Subject of Any Statement of Damages.”
But a party may not prosecute its appeal in the table of contents. To the contrary, proper appellate argument requires more than lengthy headings or subheadings. The appellant must demonstrate error with specific arguments under specific headings marshalling specific facts (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C)), and the lack of analysis or reasoned argument forfeits the challenge. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) USA National nowhere in its argument regarding damages provides specific facts, page citations, reasoned argument, or citations to authority for its new claim that Cayton never demanded damages in his cross-complaint. The claim is forfeited. Moreover, it is demonstrably false. As noted, Cayton’s cross-complaint demanded damages in excess of a million dollars. His prayer on his breach claim specifically requested “damages according to proof” at trial, and that is what the jury awarded.
Although again difficult to decipher, it appears USA National makes a further argument that the jury’s damages award was unfounded, and therefore the trial court should have granted its JNOV motion, because “the . . . award on the Breach of Contract claim (amounting to 2%), is contrary to the express terms as stated in the EEA requiring vesting before the 2% term[] was applicable.” (Italics added.) The argument is mystifying to the appellate reader. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] waived”].) USA National makes no cogent effort in its damages argument to explain its “amounting to 2%” calculation. The reader is left to wonder: two percent of what? USA National’s record citation is not helpful, as it simply cites the trial court’s judgment entering the jury’s verdict of $50,011.65 in damages, with no mention of any 2 percent calculation. The argument is therefore forfeited.
On the merits, the argument also fails. Cayton’s brief on appeal explains that USA National “assumes . . . that the jury’s $50,011.65 damages verdict is based . . . on the jury’s awarding Cayton the value of 2% of USA stock . . . .” In other words, USA National surmises — without any record reference, argument, or supporting calculation — that the jury settled on a damages figure of $50,011.65 because that number constituted 2 percent of USA National’s total stock value (at an unspecified time), and the jury decided Cayton was entitled to that amount as his damages award. Having constructed (without explaining it to the reader) a theory for the jury’s damages figure, USA National then argues opaquely in one sentence that even if Cayton’s employment contract once may have included stock ownership in USA National, “the EEA requir[ed] vesting before the 2% term[] was applicable.” (Italics added.)
This obscure challenge to the trial court’s denial of the JNOV motion fails for two reasons. First, as the trial court noted in denying the motion, the jury’s damages verdict made no reference or connection to stock ownership Cayton arguably should have received in USA National. Nothing in the special verdict forms linked the damages figure to a stock grant or to USA National’s value at any given time. As noted, Cayton sought over a million dollars in damages for USA National’s breach of contract. The evidence amply supported the jury’s $50,000 award. While Cayton immediately obtained a job at Lawyers Title, it was at reduced salary netting him $100,000 less in his first year than at USA National. His health insurance benefits improved, but the jury could reach a compromise verdict of at least $50,000. Substantial evidence supports the award.
Additionally, USA National’s argument that Cayton could not accrue any company stock or ownership percentage because he did not stay long enough for that perquisite to vest ignores Cayton’s argument that USA National breached the contract, excusing Cayton from further performance. As USA National acknowledges, Cayton gave “extensive testimony about how USA’s intolerable working conditions caused him to resign.” As an independent basis supporting the judgment, the jury reasonably could credit this testimony to conclude USA National’s actions precluded Cayton from fulfilling any applicable vesting period. (Civ. Code, § 1439 [party must perform its portion of contract to require “fulfillment by the other party”]; Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 12 [breach of contractual provision may excuse other party from performing].) USA National’s contrary claims attacking the damages figure therefore fail.
3. Cayton’s Job Search
USA National also argues the trial court was required to grant its JNOV motion to enter judgment in its favor on its breach of contract and breach of fiduciary duty causes of action against Cayton because Cayton acknowledged he looked for work elsewhere before he resigned. USA National cites Cayton’s “testi[mony] that during his employment and approximately 60 to 30 days before his resignation . . . he commence[d] negotiations for his return” to Lawyers Title. According to USA National, “Such conduct, which was undisputed at trial, constitutes a breach of Section 1.3 of the EEA and a breach of Cayton’s fiduciary duty of loyalty to USA.”
The applicable EEA section is a standard “best,” exclusive efforts clause, calling for the employee “[a]t all times during the term of his employment,” to devote “all of his time and attention to the management of the Business” and “not engage in any other type of employment . . . .” The jury found Cayton owed USA National a fiduciary duty, but that he did not breach the duty.
The evidence supports the jury’s conclusion. Under well-established California law, “There is no requirement that an officer disclose his preparations to compete with the corporation in every case, and failure to disclose such acts will render the officer liable for a breach of his fiduciary duties only where particular circumstances render nondisclosure harmful to the corporation.” (Bancroft-Whitney Co. v. Glen (1966) 64 Cal.2d 327, 347.) USA National points to no evidence Cayton’s productivity decreased in any manner attributable to his decision to look for other work, or that USA National otherwise suffered harm from his job search. Moreover, Cayton did not contact Lawyers Title until after USA National unilaterally reduced his compensation in late March 2012, after a consistent pattern of declining Cayton’s suggested hires and other executive input. The jury’s verdict reflects its conclusion that USA National’s breach of the employment contract excused Cayton from performing under the contract. There was no basis for the trial court to overturn the jury’s verdict.
B. USA National Did Not Appeal the Judgment or Attorney Fees Award
USA National contends the trial court erred in denying its JNOV motion concerning its misappropriation of trade secrets and confidential information cause of action (intellectual property claims), and further argues the court erred in awarding Cayton attorney fees. As we explain, however, USA National did not raise its intellectual property claims in its JNOV motion, and because USA National did not appeal the underlying judgment or the separate postjudgment fee order entered well after the court denied the JNOV motion, USA National cannot insert new grounds for review in appealing from the JNOV motion.
USA National contends the jury erred in rejecting its intellectual property claims and that, as a result, the trial court was required to grant its JNOV motion. On appeal, USA National observes that “at trial in the lower court matter, USA introduced evidence and testimony that supported the contention that Cayton was liable under [Code of] Civil Procedure section 2019.210 [misappropriation of trade secrets].” USA National complains: “Irrespective of the eviden[ce] and testimony, the jury in the lower court found in favor of Cayton on the issue of Misappropriation of Confidential Information (Civ. C[ode,] § 3426).”
USA National seems to believe that because it “introduced evidence and testimony” on its intellectual property claims, the jury was required to credit that evidence and render a verdict in its favor. USA makes no effort to address the countervailing evidence and testimony Cayton presented. In any event, the issue is forfeited for review on appeal because USA did not raise the issue in its JNOV/new trial motion. USA claims it “raised the issue via the JNOV and the lower court denied relief at that stage of the matter,” but the record reveals USA did not raise the issue.
In support of its position it raised the issue, USA provides general record references to the entirety of each of the following: its 20-page JNOV/new trial motion, the 30-page declaration of counsel in support of the motion, and a global nonspecific citation to almost 300 pages of trial exhibits (i.e., “page[s] 301-594”). This tack is wholly unacceptable to preserve USA National’s claim for appeal. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [“‘It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations’”].) “‘The appellate court is not required to search the record on its own seeking error.’ [Citation.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Consequently, failure to support an appellate challenge with the necessary record citations forfeits the claim. (Ibid.) Moreover, even a cursory review of USA’s JNOV motion discloses it did not raise any challenge to the sufficiency of the evidence supporting the jury’s verdict on its intellectual property claims. The table of contents for USA National’s motion is devoid of any mention of the claim. Consequently, USA may not obtain review of the issue in appealing the trial court’s JNOV ruling.
USA National does not suggest it may obtain review of the issue in a general challenge to the sufficiency of the evidence supporting the underlying judgment. But that avenue is foreclosed anyway. USA National did not separately appeal the underlying judgment, but instead identified as the subject matter of its appeal in its notice of appeal only the trial court’s JNOV/new trial motion as the “order or judgment under Code of Civil Procedure section 904.1(a)(3)-(13).” That code section and related subdivisions provides for appellate jurisdiction in specified circumstances, ranging appeals from “an order . . . to quash service of summons” (id., subd. (a)(3)) to an appeal from “an order granting or denying a special motion to strike under Section 425.16” (id., subd. (a)(13). The only relevant subdivision is (a)(4), which provides for appeals “From an order granting a new trial or denying a motion for judgment notwithstanding the verdict.”
As reflected in its notice of appeal, USA National did not appeal from the “Judgment after jury trial” or from “An order after judgment,” such as an appeal from a postjudgment order awarding attorney fees. Consequently, we have no jurisdiction to reach USA National’s intellectual property or attorney fee challenges on appeal. As recently explained in Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173: “‘“Where several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified — in either a single notice of appeal or multiple notices of appeal — in order to be reviewable on appeal. [Citations.] The policy of liberally construing a notice of appeal in favor of its sufficiency (Cal. Rules of Court, rule 8.100(a)(2)) does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all.”’” (See also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 3:119.1, pp. 3-53 to 3-54 [collecting cases].) That is the case here, where USA National’s notice of appeal omitted mention of the underlying judgment and the subsequent postjudgment attorney fee order, identifying as the subject of the appeal only the trial court’s order denying the JNOV/new trial motion.
In particular, as we recently explained in Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1007-1010, an appellate court lacks subject matter jurisdiction to review an attorney fee award where the notice of appeal from the judgment does not also specify the subsequent fee award and no subsequent separate notice of appeal is filed to challenge either the trial court’s ruling on the attorney fees motion or an amended judgment that later includes the attorney fee award. (Accord, DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 44-45.) An exception arises where the judgment itself includes an express determination that the prevailing party is entitled to attorney fees, but leaves the amount to be determined later in a subsequent motion. (Id. at pp. 44-45.) But here the trial court’s judgment specified not that the amount of an attorney fees award might be determined later, but rather that “[a]ny award of attorneys’ fees and costs shall be determined by separate motion.” Because USA National did not appeal from the trial court’s subsequent postjudgment order entering an award of attorney fees, and did not appeal the underlying judgment, but only the court’s order denying its JNOV/new trial motion, we may not reach USA National’s attorney fee or intellectual property claims on appeal.
III
DISPOSITION
The trial court’s order denying USA National’s JNOV motion is affirmed. Cayton is entitled to his costs on appeal.



ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



FYBEL, J.