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LASC’s Post-Judgment Attorney-Fee Award Declared Invalid
While Jurisdiction Generally Exists to Make Such Awards, As Collateral Matter, After Appeal Is Filed, That Doesn’t
Apply, Court of Appeal Justice Segal Says, Where Judgment Specifies ‘Each Side to Bear Own Costs’
By a MetNews Staff Writer
The Court of Appeal for this district has declared that once a judgment was appealed by the defendant, and the judgment provided that no attorney fees or other costs would be awarded to either party, a Los Angeles Superior Court judge was without power to change his mind and make such an award to the plaintiff.
Jurisdiction was no longer vested in the Superior Court, Justice John L. Segal of Div. Seven said in an unpublished decision, filed Wednesday.
“The facts here differ from those where courts have held an award of attorneys’ fees was collateral to an appealed judgment or order,” he wrote. “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.”
Judge David Sotelo had, on March 6, 2020, in confirming an arbitration award, ordered entry of judgment in favor of Encino lawyer Steven J. Horn, in the amount of $193,192, “with each side to bear own costs.” Horn had triumphed over a former client, Santa Monica practitioner Anthony N. Kling, in a fee dispute.
On May 5, 2020, Kling filed a notice of appeal from the judgment.
Post-Judgment Order Reversed
Segal’s opinion reverses a Jan. 6, 2021 postjudgment order by Sotelo granting $119,010 in attorney fees incurred by Horn. Of that amount, $115,050 represented fees expended in the fee dispute and $3,960 was based on work by lawyer Valerie Horn in preparing the fee motion.
In that order, Sotelo explained that he had not intended by his omission of an attorney-fee award from the judgment to bar a future award of such fees, pursuant to the parties’ fee-shifting provision in their attorney-client retainer agreement, but merely left out an award because a motion for fees had not yet been made.
Jointly and severally liable, under the order, were three entities that Sotelo had declared in a postjudgment order issued on July 14, 2020, to be Kling’s alter egos and, thus, judgment debtors.
In the appeal decided Wednesday, Kling and those entities argued that once there was an appeal from the March 6, 2020 judgment, the Superior Court lacked jurisdiction to alter that judgment by providing for an award of costs including attorney fees.
Segal’s View
“They have a point,” Segal said, “[b]ecause 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,” noting:
“Though there are exceptions to this rule, Horn does not argue any of them applies.”
There was no dispute on appeal as to the impermissibility of the attorney-fee order to the extent that it imposed liability on the three entities. Div. Seven had held on Sept. 28, 2020, in an unpublished opinion by Segal, that the Superior Court lacked jurisdiction to grant Horn’s post-judgment motion, after an appeal had been filed, to declare those entities to be alter egos.
However, he said that “[t]he 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.”
Complication Delineated
The complication, he explained, was that Code of Civil Procedure §916 says that, with stated exceptions, “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 adds that “the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”
Kling acknowledged that a postjudgment award of attorney fees is ordinarily a collateral matter, but maintained that it was not so where the original judgment disposed of the matter of such fees by expressly denying an award of them.
“Again, Kling has a point,” Segal remarked, setting forth:
“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.”
Potential Argument
Hinting that a counter-argument might have been mounted, Segal commented that Horn did not “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).”
The case is Kling v. Horn, B310164.
Kling represented himself and his entities on appeal, aided by Missouri attorney David Knieriem. Century City attorney Valerie F. Horn acted for Steven J. Horn.
Div. Seven, on Dec. 14, 2021, in an opinion by Segal that was not certified for publication, affirmed the March 6, 2020 judgment confirming the arbitration award.
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