Lee v. United Escrow Co. CA2/7 ( 2021 )

Filed 12/14/21 Lee v. United Escrow Co. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CAROLINE S. LEE, B308739
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC697147)
v.
UNITED ESCROW COMPANY
et al.,
Defendants and
Respondents;
BOW TIE REALTY &
INVESTMENT, INC.,
Intervener and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Samantha P. Jessner, Judge. Affirmed.
Jack H. Karpeles for Plaintiff and Appellant.
Kim, Park, Choi & Yi and Michael Yi; Biggins Law Group
and Chad Biggins for Defendant and Respondent United Escrow
Company.
Biggins Law Group and Chad Biggins for Intervener and
Respondent Bow Tie Realty & Investment, Inc.
No appearance for Defendant and Respondent Tracy Ko.
__________________________
In Caroline Lee’s first appeal, she challenged a judgment
against her on a complaint-in-intervention filed by Bow Tie
Realty & Investment, Inc. relating to commissions Lee owed on
the sale of her real property. (Lee v. Lee et al., case no. B303369
(Lee I).) Lee’s first appeal was dismissed after she failed to
comply with this court’s order that she file a notice designating
the record on appeal and proof of service of the notice of appeal.
Lee then filed an ex parte application in the superior court
seeking to correct the court’s notice of non-compliance that led to
this court dismissing the appeal. The superior court denied her
ex parte application, and Lee again appealed.
Lee contends in this appeal that the superior court erred in
denying her ex parte application because the two missing
documents had been filed in the superior court. Although it is
true the clerk had previously filed the notice designating the
record on appeal in the superior court, a proof of service of the
notice of appeal was never filed. And Lee did not comply with
this court’s order that she file the two documents. We have
serious doubts whether the superior court’s order denying Lee’s
ex parte application is an appealable order, but even if it is, we
agree with Bow Tie that we do not have jurisdiction to consider
2
the portion of Lee’s appeal challenging the underlying judgment
and the court’s award of attorneys’ fees for Bow Tie. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaints, Trial, and Judgments
On March 7, 2018 Lee filed a complaint alleging causes of
action against United Escrow Company (United) and Bow Tie for
breach of contract, resulting trust, negligence, and breach of
fiduciary duty. The complaint also asserted causes of action for
breach of fiduciary duty against Bow Tie’s chief executive officer,
Jong Han Lee,1 and United’s escrow officer, Tracy Ko.
The complaint alleged Lee entered into a listing agreement
in 2017 with Bow Tie for the sale of real property, and Bow Tie
left the space on the agreement for the commission blank, failed
to provide a copy to Lee, then on “the eve of close of escrow”
inserted a “false[]” six percent commission on the agreement.
The complaint further alleged Lee entered into an escrow
agreement with United regarding the same transaction, and
United breached the agreement by withholding $87,250 from Lee
after the close of escrow for Bow Tie’s commission.
After Bow Tie and Jong Han filed a motion to compel
arbitration, on June 5, 2018 the trial court dismissed the action
as to Bow Tie and Jong Han without prejudice, at Lee’s request.
On June 29 Bow Tie filed an ex parte application for leave to
intervene, arguing that Bow Tie was initially named in the
lawsuit and had an interest in the disputed commission that was
being held by United as the escrow company. The court granted
1 We refer to Jong Han Lee as Jong Han to avoid confusion.
3
Bow Tie’s application, and on July 17, 2018 Bow Tie filed a
complaint-in-intervention, alleging causes of action against Lee
for breach of contract, quantum meruit, fraud, and conversion.
Bow Tie alleged Lee hired Bow Tie to sell the real property; Bow
Tie performed all its obligations under the listing agreement
except those Lee prevented it from performing; and escrow closed
on the property; but Lee failed to pay Bow Tie its 4 percent
commission on the sale (of the total 6 percent commission), as
provided in the listing agreement. Bow Tie sought $139,600 in
damages, which constituted 4 percent of the $3,490,000 selling
price.
A court trial commenced on August 27, 2019.2 Lee called
Ko as a witness, then Lee testified on her own behalf. At the
close of Lee’s case-in-chief, the trial court granted United’s
motion for judgment. (Code Civ. Proc., § 631.8.)3 Bow Tie called
Jong Han to testify as its sole witness, and Lee testified in
rebuttal. After closing arguments, on August 29 the court
granted judgment in favor of Bow Tie as to all claims in the
amount of $139,600 in compensatory damages and $500,000 in
punitive damages. In its oral statement of decision, the trial
court described Lee’s case as “brazen” and “malicious.” The court
found Lee was “utterly lacking in credibility,” whereas Jong Han
was credible.
On September 17, 2019 the trial court entered judgment for
Bow Tie and a separate judgment for United and Ko. On
2 Judge Barbara M. Scheper presided over the court trial and
entered the judgments against Lee.
3 Further undesignated statutory references are to the Code
of Civil Procedure.
4
October 20, 2019 the court granted Bow Tie’s motion seeking
$143,137.50 in attorneys’ fees.
B. Lee’s Appeal from the Judgment (No. B303369)
On December 30, 2019 Lee filed an ex parte application in
the superior court “for order to allow processing of notice of
appeal timely filed on November 15, 2019.” (Capitalization
omitted.) Lee submitted an attorney declaration stating that on
November 15, 2019 Lee attempted to file a notice of appeal from
the judgment for Bow Tie on the superior court’s electronic filing
system. However, on November 18 Lee’s counsel received a
“notice of court rejection of electronic filing” (capitalization
omitted) stating the court had rejected the filing because “[t]he
case title is missing from the case caption on the [d]ocument.”
Lee attached as exhibits the court’s rejection notice, the rejected
notice of appeal (with the case number but no caption), and a
proof of service signed by Lee’s attorney averring that he served
opposing counsel with the notice of appeal “via electronic filing.”
Lee requested the court file her notice of appeal with a date
stamp of November 15, 2019.
On December 31, 2019 the superior court4 granted Lee’s ex
parte application and directed the clerk “to file stamp the Notice
of Appeal with the date of November 15, 2019.” The clerk filed
the notice of appeal but did not file the proof of service Lee
attached as an exhibit to her ex parte application.5
4 Judge Ruth Ann Kwan.
5 The notice of appeal was received by this court on
January 3, 2020, initiating the appeal in Lee I, supra, B303369.
On our own motion we augment the record with the appellate
5
On January 8, 2020 the superior court clerk issued a notice
of default on Lee’s appeal. The notice identified the reasons for
default, among others, as Lee’s “[f]ailure to timely serve and file
notice designating the record on appeal pursuant to [California
Rules of Court], rule 8.121” and “[f]ailure to serve and file Proof
of Service of notice of appeal pursuant to [California Rules of
Court], rule 8.25.” (Underlining omitted.) The notice gave Lee
until January 23, 2020 to correct the defects.
On March 6, 2020 Lee filed an ex parte application in the
superior court “for order to allow processing of notice designating
record on appeal, timely filed on February 10, 2020.”
(Capitalization omitted.) Lee’s attorney averred in his
supporting declaration that Lee had attempted to file the notice
designating the record on appeal using the superior court’s
electronic filing system on January 27, January 28, and
February 10, 2020, but each time the filing was rejected. Lee
requested the superior court accept her notice designating the
record on appeal with a filing date of February 10. On March 23,
2020 the superior court6 granted Lee’s request and directed the
clerk to stamp Lee’s notice designating the record on appeal as
filed on February 10, 2020. The record reflects that the clerk
record in Lee I. (Cal. Rules of Court, rule 8.155(a)(1)(A); see rule
8.147(b).) It is unclear whether Lee intended in Lee I to appeal
both the Bow Tie and United judgments. Lee named Bow Tie
and United in her civil case information statement, but she only
attached the judgment in favor of Bow Tie. For purposes of this
opinion, we treat Lee’s first appeal as being taken from the
judgment for Bow Tie. United has filed a respondent’s brief in
this appeal, although it is not clear whether it is a proper party.
6 Judge Samantha P. Jessner.
6
filed Lee’s notice designating the record on appeal with a
February 10, 2020 date stamp.
On April 7, 2020 this court dismissed Lee’s appeal, finding
she was “in default pursuant to Rule 8.140(b), California Rules of
Court.”7 On April 22, 2020 Lee moved to reinstate the appeal,
arguing she “was overcome by procedural difficulties in the
Superior Court’s electronic filing system that occasioned two
supportive rulings from . . . the Superior Court.” Lee attached
the December 31, 2019 and March 23, 2020 minute orders in
which the superior court granted her ex parte applications to file
her notice of appeal and notice designating the record on appeal,
respectively.
On April 30, 2020 this court reinstated Lee’s appeal. The
court’s order stated, “Appellant is granted relief from any and all
current defaults occasioned by appellant’s failure to perform acts
required by the rules of court. [¶] Appellant shall within 45 days
from the date of this order file a notice designating the record on
appeal (Ca[l]. Rules of Court, rule 8.121) and file a proof of
service of notice of appeal (Ca[l]. Rules of Court, rule 8.25). All
acts (except for payment of fees) in compliance with this relief
order are to be performed via the Los Angeles County Superior
Court’s electronic filing service provider. . . . [¶] . . . If appellant
fails to cure the default in a timely manner, the Clerk of the
7 California Rules of Court, rule 8.140(b) provides in relevant
part, “If a party fails to take the action specified in a notice [of
default] given [by the superior court] under (a), the superior court
clerk must promptly notify the reviewing court of the default, and
the reviewing court may impose one of the following sanctions:
[¶] (1) If the defaulting party is the appellant, the reviewing
court may dismiss the appeal.”
7
Superior Court shall immediately notify the Court of Appeal, and
the appeal will be dismissed without further notice.”
In the 45 days following this court’s reinstatement of the
appeal, Lee did not file a notice designating the record on appeal
or a proof of service of the notice of appeal. On August 25, 2020
the clerk of the superior court issued a notice of non-compliance
of default on appeal. The notice indicated Lee had failed to file
and serve a notice designating the record on appeal and a proof of
service of the notice of appeal. On September 1, 2020 this court
received the superior court’s August 25 notice. The next day this
court again dismissed Lee’s appeal for being in default, pursuant
to California Rules of Court, rule 8.140(b). On September 17 Lee
filed a motion to reinstate the appeal, which this court denied.
Lee filed a petition for rehearing on October 15, 2020, which this
court also denied.8
C. Lee’s Ex Parte Application To Correct the Clerk’s August 25,
2020 Notice
On October 27, 2020 Lee filed an ex parte application for a
“nunc pro tunc order to correct August 25, 2020 clerk’s notice”
(capitalization omitted), in which she argued the clerk’s notice of
non-compliance of default was filed in error because the required
documents had already been timely filed by the clerk following
the superior court’s December 31, 2019 and March 23, 2020
orders. Lee argued, “The only way to restore the appeal is for the
Superior Court to correct the record and to notify the Court of
Appeal that the August 25th [n]otice was in error . . . .”
8 After the remittitur issued on November 5, 2020, Lee filed
a motion to recall remittitur, which this court denied.
8
Bow Tie filed an opposition to the application, and after a
hearing, on October 29, 2020 the superior court9 denied Lee’s
application. The court reasoned, “The Court of Appeal, not this
court, determines whether appellate documents were timely filed
and served. . . . [T]he Court of Appeal twice denied [Lee’s]
requests to vacate the September 2, 2020 dismissal of the
appeal.” The court noted Lee had failed timely to file the
documents required by the Court of Appeal’s April 30, 2020 order
reinstating Lee’s appeal. “Accordingly, the Clerk’s Notice was not
issued in error and there is no basis for the orders sought by
[Lee].”
Lee timely appealed from the order denying her ex parte
application.
DISCUSSION
A. We Decline To Find the Order Denying Lee’s Ex Parte
Application Is Nonappealable
Bow Tie and United contend in their respondents’ briefs
that we lack jurisdiction over the appeal. We agree we do not
have jurisdiction to decide Lee’s contentions relating to the
underlying judgment. Although we have serious concerns
whether we have jurisdiction over Lee’s challenge to the superior
court’s denial of her application to correct the clerk’s August 25,
2020 notice, there is at least a colorable argument we do.
A trial court’s order is appealable only when made so by
statute. (Dana Point Safe Harbor Collective v. Superior Court
(2010) 51 Cal.4th 1, 5 [“The right to appeal is wholly
9 Judge Jessner.
9
statutory.”]; Griset v. Fair Political Practices Com. (2001)
25 Cal.4th 688, 696.) Under section 904.1, subdivision (a)(2), an
appeal may be taken from an order made after an appealable
judgment.10 Despite the inclusive language of section 904.1,
subdivision (a)(2), “not every postjudgment order that follows a
final appealable judgment is appealable.” (Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 651; accord, City of
Santa Maria v. Adam (2019) 43 Cal.App.5th 152, 161.) There are
three requirements for an appealable postjudgment order: (1) the
underlying judgment must be final and appealable under
section 904.1, subdivision (a)(1); (2) the order must involve issues
different from those addressed in the underlying judgment; and
(3) the order must affect the judgment or relate to it by enforcing
it or staying its execution. (Lakin, at pp. 651-652 & fn. 3; City of
Santa Maria, at p. 161 [postjudgment order denying appellants’
motion to clarify amended judgment is an appealable order
relating to the scope of the judgment and thus its enforcement];
Solis v. Vallar (1999) 76 Cal.App.4th 710, 713 [“An order
confirming a partition sale meets the three requirements
10 On her notice of appeal, Lee checked the box indicating she
was appealing “[a]n order or judgment under Code of Civil
Procedure, § 904.1(a)(3)-(13).” Bow Tie and United argue
subdivision (a)(3) through (13) of section 904.1 does not render
the superior court’s October 29, 2020 order appealable. However,
we construe the appeal as one taken under subdivision (a)(2)
because “[t]he notice of appeal must be liberally construed” and
“is sufficient if it identifies the particular judgment or order being
appealed.” (Cal. Rules of Court, rule 8.100(a)(2).) The notice of
appeal identifies the trial court’s October 29 order as the order
from which the appeal is taken.
10
developed by case law for an appealable order after
judgment . . . .”].)
Here, the first requirement is satisfied—the underlying
judgment after court trial was an appealable final judgment.
However, to the extent Lee challenges the merits of the
underlying judgment in her briefing, the second requirement
(that the issues in the second appeal be different from those
raised by the underlying judgment) is not met, and this portion of
Lee’s appeal is an improper attempt to “circumvent[] . . . the time
limitations for appealing from the judgment.” (Lakin v. Watkins
Associated Industries, supra, 6 Cal.4th at p. 651; accord, Hersey v.
Vopava (2019) 38 Cal.App.5th 792, 797 [appellate court cannot
review the propriety of the damages award in judgment on an
appeal from a postjudgment order].) Lee’s contentions relating to
the judgment and the attorneys’ fees award are therefore not
properly before us in this appeal.
By contrast, the order denying Lee’s ex parte application to
correct the clerk’s August 25, 2020 notice of non-compliance
meets the second requirement because it involves issues different
from those addressed in the judgment in that it concerns Lee’s
default on appeal from the judgment. Bow Tie and United
contend the third requirement—that the order must affect a
judgment or relate to it by enforcing it or staying its execution—
is not met because the order does not direct payment of money or
performance of an act by Lee. Bow Tie and United read this
requirement too narrowly because, as the Supreme Court has
held, an order affects a judgment “indirectly at least, [where it]
tends to an affirmance of the judgment.” (Wood v. Peterson
Farms Co. (1931) 214 Cal. 94, 98 [an order denying a motion for
relief from default in the preparation of the reporter’s transcript
11
is appealable because it has “the effect of precluding an appellant
from presenting his case on appeal”].) Here, as in Wood, it was
the August 25 notice from the superior court that led this court to
dismiss Lee’s appeal in Lee I. Lee sought by her ex parte
application to correct the clerk’s notice in order to cure her
default and thereby reinstate her appeal from the judgment.
Thus, it is at least arguable that the superior court’s October 29,
2020 denial of her ex parte application is an appealable order,
and we decline to find otherwise.
B. The Superior Court Did Not Err in Denying Lee’s Request
Lee contends the trial court erred in denying her request to
correct the clerk’s August 25, 2020 notice because it was
inconsistent with the trial court’s December 31, 2019 and
March 23, 2020 minute orders ordering the clerk to file Lee’s
notice of appeal and notice designating the record on appeal,
respectively. But as Bow Tie and United point out, it is
undisputed Lee did not comply with this court’s April 30, 2020
order to file in the superior court within 45 days a notice
designating the record on appeal and a proof of service of the
notice of appeal.
Although Lee is correct the clerk previously filed the notice
designating the record on appeal pursuant to the March 23, 2020
minute order, no proof of service of the notice of appeal was ever
filed in the superior court, either by Lee or by the clerk.11 Lee’s
11 To the extent the default was based on Lee’s failure to file a
notice designating the record on appeal, any error by the superior
court in failing to correct this inaccuracy in the clerk’s August 25,
2020 notice was harmless because even if the clerk had corrected
this error, Lee would still have been in default.
12
December 30, 2019 ex parte application requested the superior
court order the clerk to file Lee’s notice of appeal with a
November 15, 2019 date stamp. The superior court’s
December 31, 2019 minute order granting Lee’s ex parte
application makes no mention of the filing of a proof of service.
And the notice of appeal filed by the clerk with a November 15,
2019 date stamp did not attach a proof of service.12
California Rules of Court, rule 8.25(a) provides, “(1) Before
filing any document, a party must serve one copy of the document
on the attorney for each party . . . . (2) The party must attach to
the document presented for filing a proof of service showing
service on each person or entity required to be served under (1)
. . . .” Lee’s failure to comply with this rule placed her in default
as to the appeal in Lee I. After this court dismissed and then
reinstated Lee’s appeal, it gave Lee 45 days to cure the default,
but she did not. Lee thereby “fail[ed] to take the action specified”
in the notice of default, and Lee’s appeal was properly dismissed.
(Cal. Rules of Court, rule 8.140(b)(1).)
DISPOSITION
12 On December 2, 2021, following oral argument, Lee filed a
“response” attaching what Lee’s attorney describes as the “Notice
of Appeal with Proof of Service.” However, the attached
document was filed as exhibit 2 to Lee’s October 27, 2020 ex parte
application to correct the clerk’s August 25, 2020 notice. Neither
the notice of appeal filed by the clerk on December 30, 2019 (file
stamped November 15, 2019) nor the notice of appeal transmitted
to this court includes a proof of service.
13
The order is affirmed. Bow Tie and United are to recover
their costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
14