Sanchez v. Westlake Services ( 2022 )

Filed 1/18/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JOSEFINA CEJA SANCHEZ, B308435
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC713468)
v.
WESTLAKE SERVICES, LLC,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Stuart M. Rice, Judge. Dismissed.
Rosner, Barry & Babbitt, Hallen D. Rosner and Arlyn L.
Escalante for Plaintiff and Appellant.
Madison Law, Jenos Firouznam-Heidari, James S. Sifers
and Brett K. Wiseman for Defendant and Respondent.
_________________________________
After Josefina Ceja Sanchez and Westlake Services, LLC
settled Sanchez’s lawsuit under the Consumers Legal Remedies
Act (CLRA) (Civ. Code, § 1750 et seq.), Sanchez moved for
attorney fees, costs and prejudgment interest pursuant to the
terms of their agreement. The trial court denied the motion for
attorney fees but awarded Sanchez costs and prejudgment
interest. Without first dismissing the lawsuit or requesting entry
of a judgment, Sanchez appealed the order denying attorney fees.
We dismiss the appeal as taken from a nonappealable order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Sanchez’s Action and Her Settlement with Westlake
Sanchez purchased a used car from Liliana Janet Vasquez,
an individual doing business as Automax Motors, pursuant to a
retail installment sale contract. In July 2018 Sanchez sued
Vasquez and Westlake, as Vasquez’s assignee, for violating the
CLRA, fraud and related causes of action.1 In her first amended
complaint Sanchez alleged Vasquez had violated the CLRA in
various ways, including by failing to provide a Spanish language
translation of the sales contract and overcharging vehicle license
fees.
The sales contract signed by Sanchez included a clause (the
“Holder Clause”) providing notice that any holder of the contract
“is subject to all claims and defenses which the debtor could
assert against the seller” and that “recovery hereunder by the
debtor shall not exceed amounts paid by the debtor hereunder.”
Sanchez alleged, when Westlake accepted the assignment of the
1 Sanchez also named as a defendant the surety that issued
the bond Vasquez required to obtain a license to sell vehicles.
2
contract from Vasquez, it agreed to stand in Vasquez’s shoes and
assume the risk of Vasquez’s misconduct.2
In December 2019 Sanchez and Westlake settled the
lawsuit. The settlement agreement provided that Westlake
would pay $14,849.20 to Sanchez within three business days of
the agreement’s execution; Sanchez would have 45 days from
receipt of that payment to file a motion with the court for her
reasonable attorney fees, costs and prejudgment interest;
Sanchez would be deemed, for purposes of her motion, the
prevailing party on all causes of action pleaded by Sanchez in the
action; Westlake would be entitled to assert all available defenses
to her motion, including the defense no fees should be awarded
against it as a holder under existing law; neither party was
admitting any liability or wrongdoing; and Westlake would pay
any amount awarded by the court on Sanchez’s motion for fees
and costs within 30 days of the court’s ruling on her motion.
Sanchez and Westlake also agreed the settlement agreement and
any release of claims was conditioned upon Sanchez’s counsel’s
receipt of both payments, should two be required, “under
Paragraphs 2 and 3” (which set forth the payment requirements,
including for the timing of the payments); and that Sanchez
would request a dismissal of the action with prejudice within
10 business days of the “completion of the obligations required
by” the agreement.
2 At Sanchez’s request, the clerk entered Vasquez’s default
on August 2, 2019.
3
2. Sanchez’s Motion for Attorney Fees, Costs and
Prejudgment Interest; Westlake’s Opposition; and the
Court’s Order
On March 6, 2020 Sanchez filed her motion for attorney
fees, costs and prejudgment interest, seeking $31,853.40 in
attorney fees (a lodestar of $26,544.50 with a 1.2 multiplier),
$2,010.62 in costs and $3,130.26 in prejudgment interest.
Although Westlake did not sell her the car that was the subject of
her action, she argued, it was still liable for her fees and costs
pursuant to the Holder Clause and California law, and the
parties had agreed she was the prevailing party for purposes of
her motion.
Westlake opposed Sanchez’s motion in part by arguing the
Holder Clause of the retail installment sale contract limited the
consumer’s recovery, including recovery of attorney fees, to the
amount the consumer paid under that contract. Westlake
explained the $14,849.20 it paid to settle the action represented
the total amount Sanchez had paid under the contract to buy the
car and she was thus not entitled to recover any additional
amount as attorney fees.
On September 2, 2020 the trial court denied Sanchez’s
motion for attorney fees and awarded her costs and prejudgment
interest totaling $5,140.88.
3. Sanchez’s Appeal
On October 22, 2020 Sanchez filed her notice of appeal from
the trial court’s “September 2, 2020 Order on Motion for
Plaintiffs’ Attorneys’ Fees, Costs and Prejudgment Interest and
from all rulings, proceedings, orders, or decisions made final
thereby and/or reviewable therewith.” The caption page of her
4
notice referred to Code of Civil Procedure section 904.1,
subdivision (a)(2).3
In her May 19, 2021 opening brief, under the heading
“Statement of Appealability,” Sanchez again stated her appeal
was from the trial court’s “order on Plaintiff’s Motion for
Attorneys’ Fees, Costs and Prejudgment Interest” and was
authorized by section 904.1, subdivision (a)(2). She also stated
the following under the heading “Issues Presented”: “Whether
Respondent Westlake is liable for Appellant’s reasonable
attorneys’ fees for prevailing under the CLRA through the holder
rule, Civil Code section 1459.5 and/or Civil Code section 1717.”
In the conclusion of her brief she requested this court “should
reverse and remand the trial court’s order denying attorneys’ fees
against Westlake.”
In an order issued November 8, 2021 this court—pointing
out Sanchez’s opening brief had stated she was appealing a
section 904.1, subdivision (a)(2), order after judgment—observed
the record on appeal did not include a judgment under
section 904.1, subdivision (a)(1), that would make the trial court’s
September 2, 2020 order appealable. We provided the parties an
3 Statutory references are to this code unless otherwise
stated.
Code of Civil Procedure section 904.1, subdivision (a),
provides in part, “An appeal, other than in a limited civil case,
may be taken from any of the following: [¶] (1) From a judgment,
except an interlocutory judgment, other than [certain
interlocutory judgments specifically enumerated in the statute],
or a judgment of contempt . . . . [¶] (2) From an order made after
a judgment made appealable by paragraph (1).”
5
opportunity to brief the issue why Sanchez’s appeal should not be
dismissed as taken from a nonappealable order.
Sanchez filed a response supported by a declaration from
an attorney at Rosner, Barry & Babbitt, LLP, the law firm
representing her on appeal. Attached to Sanchez’s attorney’s
declaration was a copy of a request for dismissal filed-stamped
July 14, 2021. The attachment showed not only that Sanchez
had sought dismissal of her complaint with prejudice but also
that the court clerk had subsequently filled in the request’s
blanks to reflect the complaint’s dismissal had been entered on
July 16, 2021.4
In her response Sanchez argued the dismissal was the
judgment in the action under section 581d. Citing Giannuzzi v.
State of California (1993) 17 Cal.App.4th 462, 464, footnote 2
(Giannuzzi), in which the court exercised its discretion to treat a
premature notice of appeal from an order sustaining a demurrer
without leave to amend as an appeal from a later obtained
judgment, Sanchez asserted the trial court’s September 2, 2020
order was an appealable postjudgment order. She also
contended, even if the trial court’s order were not a postjudgment
order appealable under section 904.1, subdivision (a)(2), it was
appealable under the collateral order doctrine.
4 We augment the record to include the copy of the request
for dismissal indicating dismissal had been entered on July 16,
2021. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
6
DISCUSSION
1. Sanchez’s Purported Appeal Is from a Nonappealable
Order
An appealable order or judgment is a jurisdictional
requirement. (Jennings v. Marrale (1994) 8 Cal.4th 121, 126;
Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360,
384.) “The right to appeal is wholly statutory. [Citation] Code of
Civil Procedure section 904.1 lists appealable judgments and
orders.” (Dana Point Safe Harbor Collective v. Superior Court
(2010) 51 Cal.4th 1, 5.) For the trial court’s attorney fees order to
constitute a postjudgment order appealable under section 904.1,
subdivision (a)(2), as Sanchez asserted in her notice of appeal and
opening brief, a prior appealable judgment was required.
Although Sanchez contends that judgment was the clerk’s
July 16, 2021 entry of dismissal in response to her dismissal
request, the trial court’s attorney fees order preceded the clerk’s
dismissal entry. Relying on Giannuzzi, supra, 17 Cal.App.4th at
page 464, footnote 2, Sanchez essentially argues her notice of
appeal from the court’s order effected an appeal from the clerk’s
subsequent entry of dismissal—an order from which she had not
sought to separately appeal.
Setting aside for the moment that Sanchez’s notice of
appeal did not indicate she was appealing a section 904.1,
subdivision (a)(1), judgment, Giannuzzi, supra, 17 Cal.App.4th
462, which relied on former rule 2(c), now rule 8.104(d), of the
California Rules of Court,5 to construe the plaintiff’s notice of
appeal from an order sustaining a demurrer without leave to
5 Subsequent references to rules are to the California Rules
of Court.
7
amend as effecting an appeal from the subsequent judgment,
does not support Sanchez’s argument. (Giannuzzi, at p. 464 &
fn. 2.)
Rule 8.104(d), “Premature notice of appeal,” provides,
“(1) A notice of appeal filed after judgment is rendered but before
it is entered is valid and is treated as filed immediately after
entry of judgment. [¶] (2) The reviewing court may treat a
notice of appeal filed after the superior court has announced its
intended ruling, but before it has rendered judgment, as filed
immediately after entry of judgment.” “Rule 8.104(d)(1) is
phrased in mandatory terms, but Rule 8.104(d)(2) vests
discretion in the reviewing court.” (Good v. Miller (2013)
214 Cal.App.4th 472, 475 (Good).)
The trial court’s September 2, 2020 order concerning fees,
costs and prejudgment interest was neither a judgment rendered
but not yet entered within the meaning of rule 8.104(d)(1) nor an
intended ruling subsequently finalized in a judgment or order of
dismissal as contemplated by rule 8.104(d)(2). The October 22,
2020 notice of appeal falls far outside the limited scope of the
mandatory provision of rule 8.104(d)(1) and our discretion under
rule 8.104(d)(2) to treat as appealable an otherwise
nonappealable order. Simply put, Sanchez did not file a
premature notice of appeal seeking review of the dismissal
ultimately entered more than nine months later. The case at bar
thus is very different from those cases in which the authority
granted by rule 8.104 has been exercised, including Giannuzzi.
(See, e.g., Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 398, fn. 3
[notice of appeal from minute order after hearing on motion to
tax costs treated as appeal from subsequently filed order on the
motion to strike or tax costs]; In re Marriage of Zimmerman
8
(2010) 183 Cal.App.4th 900, 906 [notice of appeal from minute
order treated as filed after subsequent entry of formal signed
order incorporating the minute order’s rulings]; Bosetti v. United
States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th
1208, 1222-1223 & fn. 11 [trial court had granted defendant’s
motion for summary judgment; notice of appeal predating entry
of judgment treated as appeal from judgment’s subsequent
entry]; Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th
409, 413, fn. 7 [notice of appeal from trial court’s order sustaining
demurrers without leave to amend treated as filed immediately
after the resulting judgments of dismissal].)
Even if we had discretion to save Sanchez’s appeal, we
would decline to exercise it. As the court of appeal explained in
Good, supra, 214 Cal.App.4th 472, 474, “Although under certain
circumstances we have discretion to permit a premature appeal
from a nonappealable order to be treated as timely filed after the
ensuing judgment, there is a limit to our willingness to salvage
appeals for parties ‘who ignore the statutory limitations on
appealable orders.’” (See Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2021) Notice of
Appeal and Cross-Appeal, ¶ 3:55 [“[g]iven the appellate court
trend to insist on strict adherence to applicable statutes and
court rules for perfecting appeal rights . . ., it may be an uphill
battle to convince the court to forgive procedural defects”].)
Here, Sanchez fails to explain why, although she indicated
in the statement of appealability section of her May 19, 2021
opening brief that she was appealing a section 904.1,
subdivision (a)(2), postjudgment order, she omitted any reference
to the fact no judgment or order of dismissal had yet been
entered. (See Good, supra, 214 Cal.App.4th at pp. 476-477
9
[“Good’s briefing,” in which “Good misstated the relevant facts in
the ‘Appealability’ section,” “was misleading to this court, which
militates sharply against granting him relief”].) Moreover, even
after she filed a request for, and obtained entry of, the dismissal
in July 2021, she did not seek to augment the record to include
the dismissal, nor did she bring the issue to our attention in her
reply brief (filed in October 2021) or otherwise. (See Good, at
p. 476 [refraining from exercising discretion to save an appeal in
part because the appellant had not asked the court of appeal to
do so and citing not only precedents where reviewing courts
saved appeals partly because counsel had explained the mistake
but also a treatise for the comment that it is “‘difficult to see how
the appellate court can find that good cause exists without
something brought to its attention by the appellant’”].) Given the
experience of Sanchez’s counsel, no excuse or justification
appears to exist for this failure to observe the rules governing
appellate jurisdiction.6
2. The Court’s Order Denying Attorney Fees Is Not
Appealable Under the Collateral Order Doctrine
Sanchez contends, even if the court’s September 2, 2020
order were not appealable under section 904.1, subdivision (a)(2),
this court has discretion to entertain her appeal under the
collateral order doctrine. “When a court renders an interlocutory
order collateral to the main issue, dispositive of the rights of the
parties in relation to the collateral matter, and directing payment
6 A judgment of dismissal that included the court’s ruling
denying attorney fees would be an appealable order. (§ 904.1,
subd. (a)(1).)
10
of money or performance of an act, direct appeal may be taken.
[Citations.] This constitutes a necessary exception to the one
final judgment rule. Such a determination is substantially the
same as a final judgment in an independent proceeding.” (In re
Marriage of Skelley (1976) 18 Cal.3d 365, 368; see Sjoberg v.
Hastorf (1948) 33 Cal.2d 116, 119 [an otherwise interlocutory
order is directly appealable “if the order is a final judgment
against a party in a collateral proceeding growing out of the
action”]; see also Hanna v. Mercedes-Benz USA, LLC (2019)
36 Cal.App.5th 493, 506.)
“To qualify as appealable under the collateral order
doctrine, the interlocutory order must (1) be a final determination
(2) of a collateral matter (3) and direct the payment of money or
performance of an act.” (Apex LLC v. Korusfood.com (2013)
222 Cal.App.4th 1010, 1015-1016; accord, Hanna v. Mercedes-
Benz USA, LLC, supra, 36 Cal.App.5th at p. 506; see I.J. Weinrot
& Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 329, 331 [expressly
“adopt[ing]” court of appeal opinion that the “portion of the
June 13, 1983, order awarding sanctions . . . to defendants is
appealable ‘because it is a final order on a collateral matter
directing the payment of money’”];7 In re Marriage of Skelley,
supra, 18 Cal.3d at p. 368; Sjoberg v. Hastorf, supra, 33 Cal.2d at
p. 119; see also Dr. V Productions, Inc. v. Rey (2021)
7 I.J. Weinrot & Son, Inc. v. Jackson, supra, 40 Cal.3d 327was decided prior to amendments to section 904.1 that expressly
provided for appellate review of certain judgments or orders
directing payment of monetary sanctions. (See § 904.1,
subds. (a)(11) & (12), (b); Stats. 1993, ch. 456, § 12; Stats. 1989,
ch. 1416, § 25.)
11
68 Cal.App.5th 793, 905 [“[t]he modern formulation” of the
collateral order doctrine “makes no mention of an order denying
the payment of money or refusing to require performance of an
act”]; Sese v. Wells Fargo Bank (2016) 2 Cal.App.5th 710, 716
[“The order denying interim attorney fees is also not appealable
as a collateral order. The order does not direct the payment of
any money. Neither does it compel an act by or against Sese.
Instead, the order represents a denial of fees that is not
appealable as a collateral order”]; but see Muller v. Fresno
Community Hospital & Medical Center (2009) 172 Cal.App.4th
887 [order denying motion for sanctions appealable as a collateral
order].)
Sanchez concedes all three elements of the doctrine must be
satisfied, including the requirement that the order direct the
payment of money or performance of an act, but contends the
trial court’s September 2, 2020 order satisfies each criterion
because the court’s September 2, 2020 order directs the payment
of costs and prejudgment interest. Sanchez, however, did not
attempt to appeal the portion of the court’s order awarding costs
and prejudgment interest; she only challenges the denial of
attorney fees. Sanchez’s appeal of that order does not fall within
the scope of the collateral order doctrine.
12
DISPOSITION
The appeal is dismissed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
13