Sutherland v. Arent CA1/1 ( 2023 )

Filed 12/22/23 Sutherland v. Arent CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
CANDYCE K. SUTHERLAND, as
TRUSTEE,
Plaintiff and Respondent, A166632
(Lake County
v. Super. Ct. Nos. PR502326 &
BRIEN J. ARENT et al., CV418910)
Defendants and Appellants.
After this court affirmed a judgment against appellants Brien Arent
and Eva Keiser (Sutherland v. Arent (Mar. 24, 2022, A160404) [nonpub. opn.]
(Sutherland I)), respondent Candyce Sutherland sought to recover her
appellate costs. The trial court rejected appellants’ argument that the costs
should be denied since the underlying judgment against them was “void.” In
this memorandum opinion, we affirm.1
Sutherland and Arent are siblings, and Keiser is Arent’s longtime
partner. After Arent and Sutherland’s father died in February 2017,
yearslong litigation about their father’s estate followed. The trial court
1 A memorandum opinion disposes of cases that raise “no substantial
issues of law or fact,” including appeals that raise “factual issues that are
determined by the substantial evidence rule.” (California Standards of
Judicial Administration, section 8.1.)
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appointed Sutherland trustee over the trust that contained the property of
Sutherland, Arent, and their other two siblings’ late parents. Sutherland
thereafter initiated unlawful detainer proceedings against both Arent and
Keiser to remove them from their home, which was trust property. Following
a brief trial, the trial court denied Sutherland relief after appellants produced
a lease agreement that purported to permit them full access to the property.
Sutherland filed a civil suit against both appellants to cancel the lease and
for other relief. She also filed a petition for instructions in the probate action.
The two cases were consolidated for trial.
Arent and Keiser have been unrepresented throughout most of these
proceedings. Keiser testified at the bench trial on Sutherland’s claims.2 She
also took an active role in the trial, as she made arguments to the court and
also questioned witnesses. At one point Sutherland’s trial attorney objected
to Keiser raising an issue relevant to the probate proceeding since Keiser was
not a beneficiary of the trust and thus not a party. Keiser argued that since
the trust held property where she had been living for decades she “ha[d] a
right to speak about being evicted and being put out on the street, and that
whether it’s the successor trustee who’s doing it or a regular landlord who is
doing it that is not a trustee, I still have a right to address those issues.” The
trial court allowed Keiser to question the witness at issue. Following trial,
the trial court concluded that the lease agreement appellants had presented
was a forgery and that both appellants had misappropriated property
belonging to the trust, and it granted Sutherland the discretion to sell trust
property.
2 On its own motion, the court augments the record to include the
reporter’s transcript from Sutherland I.
2
After entry of judgment, Sutherland filed a memorandum of costs in
the trial court. At the hearing on appellants’ motion to tax costs,3 Keiser
argued that she was being asked to pay costs for an action where she was not
a party. The trial court observed that “[w]hen I first started hearing this
case, I was a little confused, Ms. Keiser, as to why you were making all the
commentary, and you insisted that you were a party to all of these things and
therefore you weren’t practicing law without a license. You were a party, a
defendant, et cetera. [¶] To make the argument now that somehow that’s not
the case is difficult for this Court to see as anything but disingenuous. I was
always confused as to why you were always in the cases, you’re listed in the
cases . . . , and the general statement was that this affected you and you were
a party. [¶] I have accepted that going forward, but to now make the
argument that somehow you are not a party this, well, makes everything that
you did look like you were trying to practice law without a license. [¶] So I’m
going to say that that argument is not going to be considered by the Court
because it’s just simply—it’s just simply inconsistent with what has been
stated by you and/or Mr. Arent through the entire case.”
In Sutherland I, this court affirmed the judgment against appellants.
The disposition stated, “Sutherland shall recover her costs on appeal.” This
was a reference to California Rules of Court, rule 8.278(a)(1) (rule 8.278),
which provides that a prevailing party in a civil case is entitled to costs on
appeal. Appellants petitioned for review in the Supreme Court, but the
petition was denied on June 22, 2022 (S274358). This court issued the
remittitur on June 28.
3 On its own motion, the court augments the record to include the
reporter’s transcript from Sutherland v. Arent (June 14, 2022, A161411)
[nonpub. opn.] (Sutherland II), which affirmed the costs award.
3
Within 40 days after the issuance of the remittitur (rule 8.278(c)(1)),
Sutherland filed a memorandum of costs on appeal. She sought filing fees
and record-preparation and copying costs, for a total of $3,950. Appellants
filed a “Motion to Strike Costs on Appeal in its Entirety as Founded Upon a
Void Judgment.” For the first time, they claimed that the “void judgment”
against them was “replete with jurisdictional defects [that] affected the[ir]
procedural due process rights.” Apparently they contended that since Keiser
was not a beneficiary of the trust at issue and was not a party to the probate
proceeding, the single judgment entered in the consolidated action was void.
Appellants’ motion did not include any objection to the amounts set forth in
Sutherland’s memorandum of costs.
At the hearing on the motion, Keiser acknowledged that she was a
party to the civil action but argued that the civil and probate actions required
two separate judgments, and that the single judgment entered was thus void.
The trial court denied the motion to strike costs on appeal, stating that “[i]t’s
simply not the right motion for what’s trying to be accomplished, especially
since there is something about the judgment and it’s been on appeal already
[and] . . . the motion itself just doesn’t make any sense.” Keiser and Arent
appealed.
Nowhere in appellants’ opening brief do they argue that the amount
Sutherland was awarded for her appellate costs was excessive. Instead, they
contend that the judgment entered against them in Sutherland I was “void”
since it was “replete with jurisdictional defects.” In a section of their brief
that includes no citations to the record, appellants suggest that Keiser lacked
proper notice of the proceedings below, when the overwhelming evidence from
Sutherland I and Sutherland II is to the contrary. In another section of the
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opening brief that likewise lacks record citations, appellants appear to attack
the judgment that this court already upheld in Sutherland I.
Appellants’ reliance on Moore v. Kaufman (2010) 189 Cal.App.4th 604is entirely misplaced. There, the court concluded that a judgment was void
as to an attorney, but not her client, since the anti-SLAPP (strategic lawsuit
against public participation) statute (Code Civ. Proc., § 425.16) does not
authorize an award of attorney fees against a nonparty attorney. (Moore at
pp. 607, 615.) Here, there is nothing whatsoever to suggest the Sutherland I
judgment is void.
The order denying the motion to strike costs on appeal is affirmed.
Sutherland shall recover her costs on appeal. (Rule 8.278(a)(1).)
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Getty, J.*
*Judge of the Superior Court of the County of Solano, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
Sutherland v. Arent A166632
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