Bank of America v. Lahave CA2/1 ( 2013 )

Filed 6/26/13 Bank of America v. Lahave CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
BANK OF AMERICA, N.A., B240826
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC415243)
v.
DANNY LAHAVE et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County. Mary H.
Strobel, Judge. Reversed.
Fisher & Wolfe, David R. Fisher; Greines, Martin, Stein & Richland, Robert A.
Olson and Kent J. Bullard for Defendants and Appellants.
Jeffer Mangels Butler & Mitchell, Robert B. Kaplan and Neil C. Erickson for
Plaintiff and Respondent.
_____________________
Danny Lahave and Top Terraces, Inc. (Lahave), move for a summary reversal of
an order awarding postjudgment attorney fees to Bank of America, N.A., as successor by
merger with LaSalle Bank, N.A. (Bank). We grant the motion and reverse the order
awarding postjudgment attorney fees to Bank because earlier we reversed the underlying
judgment that was the basis of the award.
On April 24, 2012, Lahave filed this appeal from the trial court’s award of
postjudgment attorney fees of $224,815.70 to Bank. On October 9, 2012, we granted
Lahave’s motion to stay briefing pending our decision in Lahave’s related appeal against
Bank (B237360) and ordered Lahave’s opening brief to be “scheduled 30 days from the
issuance of the remittitur for case number B237360.” On March 26, 2013, we reversed
the judgment of the trial court in case number B237360, which was the basis for the
postjudgment attorney fees award. (Bank of America, N.A. v. Lahave (Mar. 26, 2013,
B237360) [nonpub. opn.].)1
On May 7, 2013, Lahave filed the instant motion for a summary reversal of the
postjudgment attorney fees award to Bank. Bank opposed the motion, contending that
the motion will not be “procedurally ripe” until our Supreme Court has ruled on Bank’s
petition for review of case number B237360 filed on May 6, 2013.
Our Supreme Court denied Bank’s petition for review on June 12, 2013. (Bank of
America v. Lahave, supra, S210468.)
“[T]he remedy of summary reversal is limited to situations where the proper
resolution of the appeal is so obvious and without dispute that briefing would not serve
any useful purpose. [Citation.]” (Weinstat v. Dentsply Internat., Inc. (2010) 180
Cal.App.4th 1213, 1224.) “A reversal will effectuate two wholesome results, namely:
(1) a just determination of the cause pending before this court, the Supreme Court having
1 We take judicial notice of our opinion in Bank of America, N.A. v. Lahave,
supra, B237360; Bank’s petition for review of case number B237360; and our Supreme
Court’s denial of review, Bank of America v. Lahave, review denied June 12, 2013,
S210468. (Evid. Code, § 452.)
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ruled on the question by which ruling we are bound; and (2) a speedy determination of
the appeal.” (Melancon v. Walt Disney Productions (1954) 127 Cal.App.2d 213, 215.)
Here, reversal of the judgment in case number B237360 eliminates the basis for
the attorney fees award to Bank. (See Merced County Taxpayers’ Assn. v. Cardella
(1990) 218 Cal.App.3d 396, 402 [“An order awarding costs falls with a reversal of the
judgment on which it is based.”].)
Accordingly, we grant Lahave’s motion for a summary reversal of the trial court’s
order awarding postjudgment attorney fees of $224,815.70 to Bank.
DISPOSITION
The order of the trial court awarding postjudgment attorney fees of $224,815.70 to
Bank of America, N.A., as successor by merger with LaSalle Bank, N.A., is reversed.
Lahave and Top Terraces, Inc., are entitled to costs on appeal.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
CHANEY, J.
JOHNSON, J.
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