Metropolitan News-Enterprise


Monday, February 24, 2003


Page 3


Judge Faulted for Thwarting Entry of Judgment Following Affirmance


By a MetNews Staff Writer


The Court of Appeal has held that after it made changes in a judgment, and affirmed it as modified, the trial judge erred in subsequently calendaring a hearing and ordering the parties to reach a stipulation as to the wording of the judgment.

In light of the inability of the parties to agree, the plaintiff was unable to gain entry of the judgment, and was forced to return to the Court of Appeal, seeking a writ of mandate.

The writ was granted Wednesday in an opinion, which was not certified for publication, by Acting Presiding Justice Michael Nott of Div. Two.

Nott recited that in an Aug. 31, 1999 non-published opinion (which he authored), the court held: “The judgment is modified 1) to state that the total award for professional negligence against Leeper, before interest, is $58,323.85; and 2) to provide for judgment in favor of Leeper and against Saber on the cross-complaint in the amount of $1,400. As so modified, the judgment is affirmed.”

The jurist said of the dispositive portion of his 1999 opinion:

“It contains no ambiguity. It simply modified the judgment and as modified, affirmed the judgment.”

However, when then-Los Angeles Superior Court Judge Reginald Dunn (since retired) saw the remittitur, he set a “hearing regarding the Remittitur from the Court of Appeal.” The plaintiff, Sam Saber, subsequently filed a “Motion to Establish Judgment,” and the defendant, Palos Verdes attorney David M. Leeper, filed opposition.

Dunn denied the motion to establish judgment without prejudice, explaining that Saber “fails to cite to any legal authority that mandates that this court can even ‘establish judgment’ because it appears to this court that the Court of Appeal modified and affirmed the judgment.”

He ordered the parties to meet and confer and to submit a proposed stipulated judgment. However, they could not reach an agreement.

Saber filed another motion to establish judgment, Leeper opposed it, and Dunn denied it.

The Clerk’s Office declined to enter judgment because Dunn had specified that there had to be a stipulated judgment.

Nott pointed out that under Code of Civil Procedure Sec. 43, an appellate court may simply modify a judgment, and affirm it as modified, rather than order further tweaking by the trial court. No judicial action below is necessary, he said, merely action by the trial court clerk, pursuant to Code of Civil Procedure Sec. 912, to reflect in the trial court records what the appellate court did.

The jurist was critical of Dunn not only for calendering a hearing, but for his order requiring that the parties come up with a stipulated judgment.

“In other words,” he wrote, “Leeper would have to agree with any judgment proposed by Saber, or Saber would be unable to have a judgment entered. This is obviously not what this court had in mind when it modified the judgment and affirmed it as modified.

Nott continued:

“Under the unique circumstances of this case, we believe resolution of the matter requires the trial court to ensure that the judgment, as modified by this court, is properly entered. Accordingly, the trial court is directed to place this matter on calendar for hearing, review the case file and appellate opinion, issue a judgment reflecting this court’s modification, and direct the clerk of the superior court to enter the judgment as modified.”

Though granting Saber the relief he sought, the court provided that the parties would bear their own costs.

Saber was represented by West Los Angeles attorney Howard Posner, and Leeper represented himself.

The case is Saber v. Superior Court, Leeper RPI, B161965.


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