Kling v. Horn CA2/7

Filed 6/8/22 Kling v. Horn CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ANTHONY N. KLING et al., B310164
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC682318)
v.
STEVEN J. HORN,
Defendant and Respondent.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, David Sotelo, Judge. Reversed.
Kling Law Firm and Anthony N. Kling; Law Office of
David Knieriem and David Knieriem for Plaintiffs and
Appellants.
Valerie F. Horn & Associates and Valerie F. Horn for
Defendant and Respondent.
INTRODUCTION
This is the third appeal in long-running litigation between
attorney Steven Horn and his former client, Anthony Kling (also
an attorney), litigation that continues, even as we decide this
appeal. Kling and three entities he is associated with—Kling
Corporation, 3123 SMB LLC, and Lincoln One Corporation (the
Kling Entities)—appeal from a postjudgment, post-notice-of-
appeal order awarding Horn attorneys’ fees. The trial court
initially entered a judgment that stated each side was to bear its
fees and costs. Horn filed a motion to amend the judgment to
remove that provision, in preparation for filing a motion for
attorneys’ fees. But before the court ruled on Horn’s motion,
Kling filed a notice of appeal from the judgment. The trial court
eventually granted Horn’s motion to amend the judgment,
amended the judgment to delete the provision stating each side
was to bear its fees and costs, and issued an award of attorneys’
fees in favor of Horn and against Kling and the Kling Entities.
Kling and the Kling Entities appeal, contending the trial
court did not have jurisdiction to amend the judgment and award
attorneys’ fees after Kling filed his notice of appeal. They have a
point: Because the original judgment stated each side was to
bear its costs and fees, the trial court did not have jurisdiction to
amend the judgment while it was on appeal. Though there are
exceptions to this rule, Horn does not argue any of them applies.
Therefore, we reverse.
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FACTUAL AND PROCEDURAL BACKGROUND
This appeal, as did the previous two, arises out of a fee
dispute between Kling and Horn that began in 2014. (See
Kling v. Horn (Dec. 14, 2021, B305967) [nonpub. opn.] (Kling I);
3123 SMB LLC v. Horn (Dec. 14, 2021, B309412) [nonpub. opn.]
(Kling II).) For purposes of this appeal, we can start in
September 2018, when an arbitrator issued an award in favor of
Horn and against Kling. Horn filed a petition to confirm the
arbitration award, which Kling opposed. The trial court granted
Horn’s petition to confirm and, on March 6, 2020, entered
judgment in favor of Horn and against Kling.1
The judgment confirming the arbitration stated that “each
side [is] to bear [its] own costs and fees.” On March 16, 2020
Horn filed a motion “to correct” this portion of the judgment,
arguing his retainer agreement with Kling included an attorneys’
fee provision that authorized him to recover attorneys’ fees and
costs incurred in his petition to confirm the arbitration award.
Horn also sought to add the Kling Entities to the judgment as
judgment debtors under Code of Civil Procedure section 187.
Kling filed a notice of appeal from the judgment before the
court ruled on Horn’s motion to amend. In July 2020 the trial
court granted Horn’s request to correct the portion of the
judgment requiring each side to bear its fees and costs and his
1 The trial court entered judgment against Kling individually
and as trustee of the Anthony N. Kling Trust of 1997. References
to Kling include Kling in both capacities.
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request to add the Kling entities as judgment debtors.2
Regarding the former, the court ruled that “Horn is entitled to
fees and costs based on the retainer agreement” and that the
court would award Horn attorneys’ fees “after the appropriate
motion is filed.”
The court did not file an amended judgment until
September 28, 2020. In the amended judgment the court
purported to strike the portion of the judgment stating each side
was to bear its fees and costs and purported to add the Kling
Entities as judgment debtors. Three weeks later Horn filed a
motion for attorneys’ fees, seeking fees against both Kling and
the Kling Entities. A substantial portion of the attorneys’ fees
Horn sought were fees incurred confirming the arbitration award
and obtaining the original judgment against Kling. The court
granted Horn’s motion and awarded him $119,010 in attorneys’
fees against Kling and the King Entities. Kling and the entities
timely appealed from the order.
DISCUSSION
A. The Trial Court Erred in Awarding Fees Against the
Kling Entities
In Kling II, supra, B309412, we reversed the
September 28, 2020 amended judgment because we concluded the
trial court did not have jurisdiction to add the Kling Entities as
judgment debtors after Kling filed his notice of appeal in Kling I.
2 Horn had filed a notice of cross-appeal of the original
judgment but abandoned the cross-appeal after the trial court
granted his motion to amend.
4
The parties agree, as do we, that because we reversed the
amended judgment that added the Kling Entities, the court erred
in awarding attorneys’ fees against those entities.
B. The Trial Court Erred in Awarding Fees Against
Kling
The procedural mess created by the court entering an
amended judgment after Kling filed a notice of appeal from the
original judgment makes evaluating whether the trial court erred
in awarding attorneys’ fees against Kling a little more
complicated. Code of Civil Procedure section 916 states that,
unless one of the listed exceptions applies, “the perfecting of an
appeal stays proceedings in the trial court upon the judgment or
order appealed from or upon the matters embraced therein or
affected thereby, . . . but the trial court may proceed upon any
other matter embraced in the action and not affected by the
judgment or order.” “When triggered, the automatic stay bars all
proceedings” in the trial court “that ‘directly or indirectly seek to
“enforce, vacate or modify [the] appealed judgment”’” (LAOSD
Asbestos Cases (2018) 28 Cal.App.5th 862, 872; see Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189
(Varian)), and generally divests the trial court of the “‘power to
amend or correct its judgment.’” (Vosburg v. Vosburg (1902)
137 Cal. 493, 496; accord, Davis v. Thayer (1980) 113 Cal.App.3d
892, 912; Estate of Hirschberg (1964) 224 Cal.App.2d 449,
466-467; Huskey v. Berini (1955) 135 Cal.App.2d 613, 617;
Linstead v. Superior Court (1936) 17 Cal.App.2d 9, 12; see
Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th
658, 666 [“an appeal from a judgment order strips the trial court
of any authority to rule on the judgment”].) “Indeed, [Code of
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Civil Procedure] section 916, as a matter of logic and policy,
divests the trial court of jurisdiction over the subject matter on
appeal—i.e., jurisdiction in its fundamental sense.” (Varian, at
p. 198; accord, Blizzard Energy, Inc. v. Schaefers (2021)
71 Cal.App.5th 832, 842; see People v. Bhakta (2008)
162 Cal.App.4th 973, 981 [“trial court acted in excess of its
subject matter jurisdiction by entering an amended judgment
modifying the terms of the permanent injunction after a notice of
appeal had been filed”].)
“By contrast, an appeal does not stay proceedings on
‘ancillary or collateral matters which do not affect the judgment
[or order] on appeal’ even though the proceedings may render the
appeal moot.” (Varian, supra, 35 Cal.4th at p. 191; see
Association for Los Angeles Deputy Sheriffs v. Macias (2021)
63 Cal.App.5th 1007.) As Kling acknowledges, generally “an
award of attorney fees as costs is a collateral matter which is
embraced in the action but is not affected by the order from
which an appeal is taken,” and “[c]onsequently, filing of a notice
of appeal . . . does not prevent the trial court from determining a
proper award of attorney fees claimed as costs.” (Bankes v. Lucas
(1992) 9 Cal.App.4th 365, 369; see United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 161 [“‘The primary
example of collateral matters not affected by a notice of appeal
are awards of attorney fees or sanctions.’”].)
Kling argues, however, that because the original judgment
stated each side was to bear its costs and fees, the order
awarding Horn attorneys’ fees was not collateral to the judgment.
Again, Kling has a point. By amending the judgment to remove
the provision stating each side was to bear its fees and costs, the
court “directly” sought to “‘modify [the] appealed judgment.’”
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(Varian, supra, 35 Cal.4th at p. 189; see LAOSD Asbestos Cases,
supra, 28 Cal.App.5th at p. 872.) Similarly, by issuing an order
awarding costs and fees to Horn—an award that included the
costs and fees Horn incurred to obtain the original judgment—the
trial court “indirectly” sought to “‘modify [the] appealed
judgment.’” (Varian, at p. 189; see LAOSD Asbestos Cases, at
p. 872) By granting Horn’s motion for attorneys’ fees to amend
the prior judgment that each side was to bear its fees and costs,
the trial court effectively amended the judgment, which the court
had no jurisdiction to do after Kling filed his notice of appeal.
(See People v. Bhakta, supra, 162 Cal.App.4th at p. 981 [trial
court acted in excess of jurisdiction by adding to a judgment,
after a party had filed a notice of appeal from the judgment, that
“‘[a]ny future costs relating to enforcement and/or modification of
the [j]udgment shall also be recoverable’”].)
The facts here differ from those where courts have held an
award of attorneys’ fees was collateral to an appealed judgment
or order. In none of those cases did the trial court state in the
appealed-from judgment or order that neither side was entitled to
fees and costs. (See, e.g., Korchemny v. Piterman (2021)
68 Cal.App.5th 1032, 1052 [trial court had jurisdiction to consider
a motion for attorneys’ fees after the plaintiff filed a notice of
appeal from a judgment following an order granting a motion for
summary judgment]; People v. Bhakta, supra, 162 Cal.App.4th at
pp. 980-981 [after the defendant filed a notice of appeal from a
judgment that awarded the plaintiff “‘attorney[ ] fees, costs and
court costs incurred’” in the case, the “trial court had jurisdiction”
to rule on a motion for attorney fees and costs]; Bankes v. Lucas,
supra, 9 Cal.App.4th at pp. 368-369 [trial court had jurisdiction
to award attorneys’ fees incurred in postjudgment proceedings
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after the defendant filed a notice of appeal from a judgment
awarding damages and attorneys’ fees]; In re Marriage of
Sherman (1984) 162 Cal.App.3d 1132, 1136, 1140 [in a marriage
dissolution action, the trial court had jurisdiction to consider the
wife’s motion for attorneys’ fees after the husband filed notice of
appeal from an order denying a request to terminate spousal
support].)
Significantly, Horn has not responded to any of Kling’s
arguments why the court erred in awarding fees against Kling
(aside from conceding the award against the Kling Entities was
improper). Horn does not, for example, contend any exception
applies that would have permitted the trial court to amend the
judgment and award fees to Horn after Kling filed his notice of
appeal (though there may be some that apply). (See County of
Butte v. Bach (1985) 172 Cal.App.3d 848, 867 [deeming “matter
submitted on the [opening] brief” where the respondent did not
respond to the appellant’s contentions]; see also California Ins.
Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2005)
128 Cal.App.4th 307, 371 fn. 2.)3
3 Because we reverse the order on the ground the trial court
did not have jurisdiction to award attorneys’ fees after Kling filed
his notice of appeal, we do not consider Kling’s argument that
Horn’s request for attorneys’ fees was untimely.
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DISPOSITION
The order granting Horn’s motion for attorneys’ fees is
reversed. The parties are to bear their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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