Opinion
B330115
09-30-2024
RONALD ANDREW BOTH, Cross-defendant, Cross-complainant and Respondent, v. LIOLIOS GROUP, INCORPORATED, Cross-complainant, Cross- defendant and Appellant; GEOFFREY PLANK, Cross-defendant, Cross- complainant and Respondent; GRANT STUDE, Cross-defendant and Respondent; CAPITAL MARKET ACCESS, LLC, Cross-defendant and Respondent.
Snell & Wilmer, Michael B. Reynolds, Jeffrey M. Singletary and Jing (Jenny) Hua for Cross-complainant, Cross-defendant and Appellant Liolios Group, Incorporated. Law Office of Mark Mazda and Mark Mazda for Cross-defendant, Cross-complainant and Respondent Ronald Andrew Both; Cross-defendant, Cross-complainant and Respondent Geoffrey Plank; Cross-defendant and Respondent Grant Stude; and Cross-defendant and Respondent Capital Market Access, LLC.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC676901, Jon R. Takasugi, Judge. Appeal dismissed.
Snell & Wilmer, Michael B. Reynolds, Jeffrey M. Singletary and Jing (Jenny) Hua for Cross-complainant, Cross-defendant and Appellant Liolios Group, Incorporated.
Law Office of Mark Mazda and Mark Mazda for Cross-defendant, Cross-complainant and Respondent Ronald Andrew Both; Cross-defendant, Cross-complainant and Respondent Geoffrey Plank; Cross-defendant and Respondent Grant Stude; and Cross-defendant and Respondent Capital Market Access, LLC.
BENDIX, J.
After a jury trial, the trial court entered judgment against appellants Jeffrey Scott Liolios and Liolios Group, Incorporated (LGI) and in favor of respondents Ronald Andrew Both, Geoffrey Plank, Grant Stude, and Capital Market Access, LLC. In a prior appeal, we reversed the award of punitive damages against LGI, remanded for a new trial on the amount of those damages, and affirmed the remainder of the judgment and the trial court's denial of Liolios's and LGI's motion for judgment notwithstanding the verdict.
We employ "CMA" as an abbreviation for Capital Market Access, LLC, and we refer to Both, Plank, Stude, and CMA collectively as "respondents." Furthermore, as we explain in our Factual and Procedural Background, part 3, post, the presiding justice of our division previously issued an order dismissing Liolios from this appeal.
LGI seeks review here of a postjudgment award of $1,198,512 in attorney fees to respondents. Instead of filing an appeal from the order awarding attorney fees, LGI purported to appeal from an amended judgment that modified the initial judgment to include the attorney fee award and certain costs and interest. LGI argues it may appeal the amended judgment instead of the prior order awarding fees because the latter imposed joint and several liability on Liolios and LGI for attorney fees whereas the former shifted liability for the fees solely to LGI. Put differently, LGI contends an appeal of the amended judgment is the proper vehicle for challenging the attorney fee award because the amended judgment substantially modified the previous attorney fee order.
LGI's arguments fail for several reasons. First, our review of the record reveals LGI's position rests on an isolated passage from the attorney fee order. We interpret the language on which LGI relies as merely rejecting an argument respondents made in their fee motion, that is, that Liolios is jointly and severally liable for the entirety of the fee award based on the alter ego doctrine. Although the trial court awarded respondents a total of $1,198,512 in the attorney fee order, that order did not specify any amount of attorney fees for which Liolios was liable. Furthermore, prior to issuing the attorney fee order, the trial court continued the hearing on the motion for attorney fees as to Liolios, who had filed a voluntary bankruptcy petition before LGI filed its opposition to respondents' fee motion. The hearing on the fee motion against Liolios was scheduled for a date after argument in this case after several prior continuances. Because the trial court had not determined the extent of Liolios's liability for fees in the attorney fee order, the amended judgment did not cut off LGI's rights to seek indemnification and contribution from Liolios for those fees, which is the modification LGI champions to argue the amended judgment commenced running of the appeals period.
In addition, even assuming arguendo the prior fee order made a preliminary ruling that Liolios is jointly and severally liable with LGI for a portion of the attorney fee award, the amended judgment had no impact on that preliminary ruling. This is because the trial court continued the attorney fee motion as to Liolios before issuing the fee order, the fee order did not determine the amount of fees to be awarded against Liolios, and the amended judgment did not vacate the pending hearing on the fee motion against Liolios, but simply restated the award of attorney fees previously made against LGI. Because the amended judgment did not affect any rights to contribution or indemnification LGI may ultimately assert against Liolios, LGI's appeal from the amended judgment does not rescue LGI from its failure timely to appeal the earlier order awarding fees against LGI in favor of respondents.
Accordingly, the order awarding attorney fees, and not the amended judgment, is the ruling LGI should have timely appealed. LGI's failure to do so compels dismissal of this appeal for lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Our Factual and Procedural Background is based in part on our prior opinion in case No. B323935. We, sua sponte, take judicial notice of that opinion. (Evid. Code, §§ 452, subd. (d), 459.) We also rely in part on admissions made by the parties in their appellate briefing and assertions respondents make that LGI does not contest in its reply. (See Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [" '[A] reviewing court may make use of statements [in briefs and argument] . . . as admissions against the party [advancing them].' "]; Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th 764, 773-774 [concluding that the appellants "tacitly concede[d]" a point raised in the respondents' brief by "failing to dispute it in their reply"].)
We summarize only those facts pertinent to our disposition of the instant appeal.
1. The parties and their respective claims, the jury trial and resulting judgment, the trial court's denial of Liolios's and LGI's posttrial motions, Liolios's and LGI's appeals of the initial judgment and the denial of their motion for judgment notwithstanding the verdict, and our opinion resolving those appeals
Liolios founded LGI, which is an investor relations firm that advises companies on their capital markets communications strategy and on implementation of that strategy. (Both et al. v. Liolios et al. (July 9, 2024, B323935) [nonpub. opn.] [2024 WL 3338268, at p. *2] (Both I).) Both, Plank, and Stude worked for LGI until 2016 and, after they resigned from the firm, each began working for CMA. (See ibid.) Plank had incorporated CMA in July 2015. (Ibid.) Plank testified that CMA is an investor relations firm that directly competes with LGI. (Ibid.)
On September 21, 2017, Both filed a complaint against Liolios and LGI, alleging causes of action for breach of fiduciary duty, oppression of minority member, unjust enrichment, violation of Business and Professions Code section 17200 et seq., and accounting. (Both I, supra, B323935 [2024 WL 3338268, at p. *3].) LGI later filed a cross-complaint against Both, Plank, Stude, and CMA, averring a breach of contract cause of action against Both, Plank, and Stude, along with cross-claims for misappropriation of trade secrets, intentional interference with contract, and intentional interference with prospective economic advantage against all four respondents. (Both I, supra, B323935 [2024 WL 3338268, at pp. *3, *5 &fn. 7].) Subsequently, Both, Plank, and Stude filed a cross-complaint against Liolios and LGI claiming breach of contract, quantum meruit, unpaid wages in violation of Labor Code sections 200 and 201, waiting-time penalties pursuant to Labor Code section 203, and violation of Business and Professions Code section 17200 et seq. (Both I, supra, B323935 [2024 WL 3338268, at p. *3].) Stude voluntarily dismissed his cross-claims before trial. (Ibid.)
The parties tried the case before a jury. (Both I, supra, B323935 [2024 WL 3338268, at p. *3].) On July 6, 2022, in accordance with the jury's special verdicts and the trial court's order granting respondents' motion for a directed verdict on LGI's cross-claims, the court entered judgment: (1) awarding Both $4,749,870.10 against LGI and Liolios, jointly and severally, which figure included a $2 million award of punitive damages, and $2,716,303.40 in actual damages on Both's causes of action for breach of fiduciary duty, intentional misrepresentation, concealment, and failure to pay wages, and $33,566.70 for waiting-time penalties; (2) awarding Plank $169,041.90 against LGI and Liolios, jointly and severally, on his unpaid wages and waiting-time penalties claims; and (3) in favor of all four respondents and against LGI on its cross-complaint. (Id. at p. *3.)
On September 8, 2022, the trial court denied Liolios's and LGI's motion for judgment notwithstanding the verdict and part of their new trial motion and, on September 29, 2022, the court denied the remainder of their motion for a new trial. (Both I, supra, B323935 [2024 WL 3338268, at pp. *1, *3 &fn. 1].)
On October 3, 2022, Liolios and LGI timely appealed from the judgment entered on July 6, 2022 and the September 8, 2022 order denying their motion for judgment notwithstanding the verdict. (Both I, supra, B323935 [2024 WL 3338268, at p. *3 &fn. 6].) On July 9, 2024, we reversed the $2 million punitive damage award against LGI, remanded the matter for a retrial on the amount of punitive damages to be awarded against LGI, and affirmed the remainder of the judgment and the order denying Liolios's and LGI's motion for judgment notwithstanding the verdict. (Both I, supra, B323935 [2024 WL 3338268, at pp. *1, *17].)
2. Respondents' motion for attorney fees, Liolios's voluntary bankruptcy petition, the trial court's orders continuing the attorney fee motion as to Liolios, the November 3, 2022 fee order, the April 20, 2023 amended judgment, and Liolios's and LGI's May 4, 2023 notice of appeal
On September 16, 2022, respondents moved for an award of attorney fees against Liolios and LGI in the amount of $1,598,016. Respondents maintained that Both and Plank were entitled to attorney fees pursuant to Labor Code section 218.5 because they prevailed on their wage claims; Civil Code section 1717 authorized Both, Plank, and Stude to obtain an attorney fee award for prevailing on LGI's breach of contract cross-claim; and Civil Code section 3426.4 authorized all four respondents to recover their attorney fees for prevailing on LGI's cross-claim for misappropriation of trade secrets. Regarding the requested attorney fee award of $1,598,016, respondents' counsel argued he was entitled to a lodestar of $799,008 and he requested a multiplier of two. Respondents sought to apportion their requested attorney fee award of $1,598,016 as follows: "(1) $1,434,590.59 to Both, (2) $138,425.41 to Plank, (3) $15,000 to Stude, and (4) $10,000 to CMA." Respondents further "request[ed] that the entirety of the fee awards be joint and several against LGI and Liolios because: (1) on Both's and Plank's wage claims, Liolios and LGI have both been found jointly and severally liable, and (2) on LGI's cross-claims for breach of contract and misappropriation of trade secrets, Liolios and LGI are alter egos ...."
On October 3, 2022, Liolios filed a voluntary bankruptcy petition. On October 5, 2022, LGI opposed respondents' motion for attorney fees arguing, inter alia, that respondents' "single paragraph regarding alter ego is not enough to pierce the corporate veil and establish that LGI and Liolios are alter egos."
The opposition to respondents' motion for attorney fees was filed on behalf of only LGI, presumably because Liolios had filed for bankruptcy two days earlier.
On October 11, 2022, respondents filed their reply to LGI's opposition to their motion for attorney fees. At the conclusion of their reply brief, respondents stated: "[We] are entitled to a fee award of $1,598,016 against LGI. The Court should issue such an award. The Court should also continue the motion as to Liolios to a future date after relief from the bankruptcy stay is obtained." Earlier in their reply brief, respondents remarked that "the motion can and should be .... continued as to Liolios" because "[a]fter the motion was filed, Liolios, but not LGI, filed for bankruptcy protection." Respondents further argued that because "Liolios is liable on Both's and Plank's wage claim," "there is a basis for imposing attorney's fees on him, regardless of his alter ego status with LGI."
On October 18, 2022, the trial court issued a minute order stating that upon hearing oral argument on respondents' attorney fee motion, the court took the matter under submission. The minute order further provides: "Pursuant to the Notice of Bankruptcy Filing by Defendant Jeffrey Scott Liolios, the Motion for Attorney Fees in regard to the Defendant Jeffrey Scott Liolios is continued to 04/28/23 at 09:30 AM in Department 17 at Stanley Mosk Courthouse. [¶] Status Conference Re: Bankruptcy is scheduled for 04/28/23 at 09:30 AM in Department 17 at Stanley Mosk Courthouse."
The minute order indicates that the October 18, 2022 hearing was not transcribed by a court reporter.
On November 3, 2022, the trial court issued, and entered in the minutes, a signed written ruling on respondents' motion for attorney fees (November 3, 2022 fee order). The first paragraph of the order provides: "Both is awarded $1,198,512 in reasonable attorney fees. The adjusted award is to be apportioned amongst the parties in the same proportions as requested in the Moving Parties' motion." (Boldface omitted.) By ordering that attorney fees be apportioned amongst the parties in the same proportions as requested in the motion, the trial court, in effect, awarded attorney fees of $1,075,942.94 to Both, $103,819.06 to Plank, $11,250 to Stude, and $7,500 to CMA. The second paragraph of the order states: "Given that there has been no finding of alter-ego status, Liolios is only jointly and severally liable for attorney fees awarded on Both's and Plank's wage claim." (Boldface omitted.)
In the November 3, 2022 fee order, the trial court approved of respondents' counsel's requested lodestar of $799,008, but found that a multiplier of 1.5, rather than 2, was appropriate. Although the court stated in the second paragraph of its order that "Liolios is only jointly and severally liable for attorney fees awarded on Both's and Plank's wage claim," the ruling does not specify the attorney fees to be awarded to Both and Plank on their wage claims or otherwise address Liolios's liability for respondents' attorney fees.
On March 28, 2023, the bankruptcy court granted Both's and Plank's motion for relief from the automatic stay in Liolios's bankruptcy action. In particular, the bankruptcy court ruled: "(1) [T]he automatic stay of Jeffrey Scott Liolios's (the 'Debtor') bankruptcy case does not stay enforcement of the Judgment (the 'Judgment') entered on July 6, 2022 in Los Angeles County Superior Court Case No. BC676901 (the 'State Court Action') with respect to Liolios Group, Incorporated, now known as Gateway Group, Inc. ('LGI'); [¶] (2) the Writs of Execution issued in the State Court Action do not violate the automatic stay of the Debtor's bankruptcy case, as a ministerial act and pursuant to the parties' stipulation, which specifies that the automatic stay does not affect Movants' efforts to enforce their Judgment against non-debtor LGI only; [¶] (3) relief from the automatic stay is granted to allow Judgment Creditors to request that, in the State Court Action, the State Court enter an amended judgment combining: (a) the Judgment, (b) the attorney's fee award and order issued by the trial court in the State Court Action against LGI only, and (c) the amount of costs set forth in the Judgment Creditor's memorandum of costs filed in the State Court Action on August 3, 2022 against LGI and the Debtor; and [¶] (4) Relief from the automatic stay is granted to allow the appeal in Appellate Case Number B323935, pending in the 2nd Appellate District of the California Court of Appeal, to proceed." (Italics added &underscoring omitted.)
Neither side explains why only Both and Plank, and not Stude and CMA, moved for relief from the automatic stay. This omission has no impact on resolution of this appeal.
On April 18, 2023, respondents filed an unopposed ex parte application that informed the trial court of the bankruptcy court's March 28, 2023 order granting relief from the automatic stay and requested the court enter an amended judgment they had lodged that "combines the original judgment with this Court['s] award of attorney's fees against LGI and the amount of costs awarded against LGI and Liolios."
We, sua sponte, take judicial notice of respondents' unopposed ex parte application. (Evid. Code, §§ 452, subd. (d), 459.)
On April 20, 2023, the trial court granted respondents' unopposed ex parte application and signed and filed the amended judgment (amended judgment). The amended judgment awarded attorney fees to each respondent in the same amounts as did the November 3, 2022 fee order:
Ronald Both is . . . entitled to a judgment against [LGI] . . . for attorney's fees in the amount of $1,075,942.94, which began accruing interest on November 3, 2022, which is the date that the Court awarded attorney's fees via a noticed motion.... [¶] Geoffrey Plank is . . . entitled to a judgment against [LGI] . . . for attorney's fees in the amount of $103,819.06, which began accruing interest on November 3, 2022 .... [¶]
Grant Stude is entitled to a judgment against [LGI] . . . for attorney's fees in the amount of $11,250, which began accruing interest on November 3, 2022 .... In addition, Capital Market Access, LLC is entitled to a judgment against [LGI] . . . for attorney's fees in the amount of $7,500, which began accruing interest on November 3, 2022 ....
The amended judgment further provides: "Both is . . . entitled to a joint and several judgment in the amount of $26,349.21 in costs, which began accruing interest on August 3, 2022, which is the date that the Memorandum of Costs was filed and served, against [LGI] . . . and . . . Liolios."
On May 4, 2023, Liolios and LGI filed a notice of appeal, wherein they sought review of "the amended judgment entered on April 20, 2023."
Between April 20, 2023 and April 18, 2024, the trial court issued a series of orders continuing the hearing on respondents' motion for attorney fees as to Liolios and the status conference regarding his bankruptcy. As Liolios's and LGI's counsel acknowledged in a notice of ruling filed on April 19, 2024, the trial court issued a ruling on April 18, 2024 that continued "[t]he status conference regarding Jeffrey Scott Liolios' bankruptcy case and Ronald Both's and Geoffrey Plank's motion for attorneys' fees regarding Jeffrey Scott Liolios . . . to October 18, 2024, at 8:30 a.m...." As of September 25, 2024, the trial court has not yet heard the motion for attorney fees as to Liolios or held the status conference concerning Liolios's bankruptcy case.
The trial court's April 20, 2023, December 5, 2023, and April 18, 2024 minute orders continuing the hearing on respondents' motion for attorney fees as to Liolios and the status conference are in respondents' supplemental appendix. We, sua sponte, take judicial notice of the trial court's August 2, 2023 and March 21, 2024 orders that likewise had the effect of continuing this hearing and status conference. (Evid. Code, §§ 452, subd. (d), 459.)
We, sua sponte, take judicial notice of the trial court's docket as of September 25, 2024. (Evid. Code, §§ 452, subd. (d), 459.)
3. Respondents' motion to dismiss this appeal and the presiding justice's order granting in part and denying in part respondents' motion
On July 12, 2023, respondents moved to dismiss the instant appeal, arguing: "(1) [A]s to the award of attorney's fees, LGI's and Liolios's notice of appeal was untimely as it was filed more than 180 days after the post-judgment order awarding attorney's fees and therefore this Court lacks jurisdiction over the appeal, [¶] (2) as to the award of attorney's fees, the attorney's fees award is not against Liolios, and thus Liolios should be dismissed from the appeal as he is not a party aggrieved by the award of attorney's fees, and[ ] [¶] (3) to the extent that this appeal is challenging the award of costs, neither LGI nor Liolios ever challenged the memorandum of costs filed in the trial court, so they cannot appeal the award of costs, which they never moved to strike or tax below."
On July 27, 2023, Liolios and LGI filed an opposition to the motion to dismiss, wherein they contended that the notice of appeal they filed on May 4, 2023 was timely because the amended judgment "substantially modifies the November 3[, 2022] fee order by shifting the liability for the attorney's fees from LGI and Liolios, jointly and severally, to LGI solely." Liolios and LGI conceded, however, that "Liolios can be dismissed from this appeal . . . so long as he is recognized as a proper party to the appeal from the initial judgment [case No. B323935]," and that they "do not challenge the amended judgment's award of costs." (Boldface, underscoring, &some capitalization omitted.)
On July 31, 2023, respondents filed a reply brief in support of their motion.
On August 16, 2023, the presiding justice of this division issued a one-page order granting in part and denying in part respondents' motion to dismiss. The order provides in full:
The motion to dismiss the appeal by respondents, filed July 12, 2023; the opposition thereto, filed July 27, 2023; and the reply, filed July 31, 2023, have been read and considered.
To the extent the motion seeks dismissal of appellant Jeffrey Scott Liolios, the motion is granted. Appellant Jeffrey Scott Liolios is hereby dismissed from this appeal.
Appellants state that they do not challenge on appeal the April 20, 2023 amended judgment's award of costs. As such, to the extent the motion seeks dismissal of that issue, the motion is granted. The appeal, to the extent it challenges the award of costs in the April 20, 2023 order, is dismissed.
In all other respects, the motion is denied.
DISCUSSION
On appeal, LGI raises several challenges to the trial court's award of attorney fees, including (1) respondents' counsel failed to provide "a billing record that [was] sufficiently detailed to permit review" of the attorney fee request; (2) "the trial court failed to make the requisite finding of both objective speciousness and subjective bad faith" as to its award of attorney fees under Civil Code section 3426.4; and (3) "[t]he trial court erred by double-counting some of the same factors" in calculating the lodestar and finding that a multiplier was appropriate. (Boldface &underscoring omitted.)
In the opening brief, LGI contended that if it were to "prevail, even in part," in the appeal of the initial judgment and the denial of the motion for judgment notwithstanding the verdict (case No. B323935), "the trial court's award of attorney's fees must be reversed." LGI concedes in its reply brief, however, that our July 9, 2024 opinion "mooted LGI's argument that a partial reversal in that [prior appeal] requires reversal in this appeal." (Boldface omitted.) Similarly, LGI admits in its reply that our prior opinion affirming much of the initial judgment "closes the door on LGI's argument as to objective speciousness" vis-a-vis LGI's trade secret misappropriation cross-claim.
Respondents argue, "There is no basis to reverse the trial court's post-judgment attorney's-fee order," and we should dismiss this appeal because LGI failed timely to appeal the November 3, 2022 fee order. LGI counters with this court's previous partial denial of respondents' motion to dismiss. LGI further contends it timely filed the notice of appeal on May 4, 2023 because the amended judgment filed on April 20, 2023 restarted the deadline to seek appellate review of the attorney fee award. In particular, LGI argues that the November 3, 2022 fee order made LGI and Liolios jointly and severally liable for certain attorney fees, and that the amended judgment "substantially changed" that order by "making LGI solely liable" for all attorney fees, thereby "cut[ting] off any contribution [or indemnity] claim LGI might have had against Liolios."
As we explain below, the presiding justice's prior order denying part of respondents' motion to dismiss does not preclude dismissal of LGI's appeal. Furthermore, the record discloses that the trial court did not award attorney fees against Liolios in the November 3, 2022 fee order, and the trial court has not yet heard the attorney fee motion as to Liolios. It necessarily follows that the amended judgment did not cut off LGI's right to seek contribution or indemnity from Liolios as to respondents' award of attorney fees, and, consequently, the amended judgment did not restart the deadline for LGI to appeal that award. Because LGI did not timely appeal from the November 3, 2022 fee order, we dismiss this appeal for lack of jurisdiction without reaching the merits of LGI's substantive challenges to the fee award.
See footnote 9, ante.
A. Applicable Law
" 'Compliance with the time for filing a notice of appeal is mandatory and jurisdictional. [Citations.] If a notice of appeal is not timely, the appellate court must dismiss the appeal.' [Citations.] California Rules of Court, rule 8.104(a)(1), contains the applicable time period for filing a notice of appeal." (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 842 (Ellis).)
All unspecified rule references are to the California Rules of Court.
Rule 8.104(a)(1) provides in pertinent part: "[A] notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment." (Rule 8.104(a)(1).) "As used in [rule 8.104](a) . . ., 'judgment' includes an appealable order if the appeal is from an appealable order." (Rule 8.104(e).)" 'A postjudgment order which awards or denies costs or attorney's fees is separately appealable.' [Citations.]" (LNSU #1, LLC v. Alta Del Mar Coastal Collection Community Assn. (2023) 94 Cal.App.5th 1050, 1081.)
" 'The effect of an amended judgment on the appeal time period depends on whether the amendment substantially changes the judgment ....' [Citation.] 'When the trial court amends a nonfinal judgment in a manner amounting to a substantial modification of the judgment (e.g., on motion for new trial or motion to vacate and enter different judgment), the amended judgment supersedes the original and becomes the appealable judgment (there can only be one "final judgment" in an action . . .). Therefore, a new appeal period starts to run from notice of entry or entry of the amended judgment.' [Citation.]" (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 (Torres).) "A 'substantial modification' is defined as one 'materially affecting the rights of the parties.' [Citations.] (Ellis, supra, 235 Cal.App.4th at p. 842.)" 'For example, an order amending a judgment to reflect the correct name of a party . . . substantially changes the judgment and therefore starts a new appeal time period (for an appeal from the amended judgment).' [Citation.]" (Torres, at p. 222.)
"It is well settled, however, that '[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected.' [Citations.] 'When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order.' [Citation.]" (Torres, supra, 154 Cal.App.4th at p. 222.)
The parties correctly note that the substantial modification test governs the instant case, that is, if the amended judgment did in fact substantially modify the November 3, 2022 fee order, then the amended judgment restarted LGI's deadline for appealing the fee award. (See Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1078-1081 [holding that "the attorney fee portion" of an amended judgment "was independently appealable because it substantially modified" the amount of attorney fees awarded by a prior postjudgment order]; see also Eisenberg, Cal. Prac. Guide: Civil Appeals &Writs (The Rutter Group 2023) ¶ 3:56.1e [intimating that the substantial modification test governs the timeliness of an appeal of a postjudgment order on an attorney fees motion].)
B. The Prior Order Denying Part of Respondents' Motion To Dismiss the Appeal Does Not Bar Us From Reassessing Whether LGI's Appeal Is Timely
LGI contends that by issuing the August 16, 2023 order summarily denying in part respondents' motion to dismiss, the presiding justice rejected respondents' contention the appeal is untimely. The order partially denying respondents' motion to dismiss does not, however, preclude us from revisiting whether LGI's appeal was timely, given that an order denying a motion to dismiss that is signed by only one justice is "not law of the case ...." (See Department of Industrial Relations v. Nielsen Construction Co. (1996) 51 Cal.App.4th 1016, 1023, fn. 6.) One leading commentator adds: "If an order denying a motion is silent as to whether it is with or without prejudice," as is the case here, "the court may reconsider it later." (See Eisenberg, Cal. Prac. Guide: Civil Appeals &Writs, supra, ¶ 5:261; see also Factual &Procedural Background, part 3, ante [indicating the Aug. 16, 2023 order did not specify whether the denial was with or without prejudice].)
Reassessment of the timeliness of the appeal is appropriate here because, "[u]pon our review of a complete record and further analysis of the law, we conclude that [the] original [decision] was incorrect ...." (See Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 509, fn. 6, italics added.) In particular, the order partially denying respondents' motion to dismiss was entered before the appellate record had been filed. Although the parties had submitted certain documents relevant to the timeliness issue in the course of briefing respondents' motion to dismiss, several significant documents were not yet before the court, including the trial court materials we judicially notice in this opinion and LGI's April 19, 2024 notice of ruling acknowledging that the hearing on the motion for attorney fees as to Liolios had been continued to October 18, 2024. As we explain in Discussion, part D, post, these additional documents provide important context for the trial court's discussion of joint and several liability in the November 3, 2022 fee order. We thus now consider whether the instant appeal is timely.
(Fns. 6, 8, & 9, ante.)
(Factual & Procedural Background, part 2, ante.)
C. LGI Did Not Timely Appeal From the November 3, 2022 Fee Order
The latest date by which LGI could appeal the November 3, 2022 fee order was 180 days after the trial court entered it-May 2, 2023. (See Discussion, part A, ante [noting that rule 8.104(a)'s 180-day deadline is the latest date by which a notice of appeal may be filed and that this deadline is triggered by entry of an appealable order, e.g., a postjudgment order awarding attorney fees]; rule 8.104(c)(2) ["The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes."].) LGI did not file its notice of appeal until May 4, 2023. (Factual &Procedural Background, part 2, ante.) Accordingly, unless we agree with LGI that the amended judgment filed on April 20, 2023 restarted the deadline for filing a notice of appeal, we must dismiss this appeal for lack of jurisdiction. (See Discussion, part A, ante.)
We, sua sponte, take judicial notice of the fact that May 2, 2023 is 180 days after November 3, 2022. (Evid. Code, §§ 452, subd. (h), 459.)
D. The April 20, 2024 Amended Judgment Did Not Substantially Modify the November 3, 2022 Fee Order
LGI's contention that the amended judgment substantially modified the November 3, 2022 fee order by cutting off its right to seek contribution or indemnity from Liolios hinges on one sentence from that order: "Given that there has been no finding of alter-ego status, Liolios is only jointly and severally liable for attorney fees awarded on Both's and Plank's wage claim." As we explain below, LGI's argument is undermined by (1) the absence of any specific award of attorney fees against Liolios in the order; (2) the trial court's October 18, 2022 ruling granting respondents' request to continue the hearing on the motion as to Liolios's liability because he had filed for bankruptcy; and (3) the fact that the hearing as to Liolios has not yet occurred. Because the November 3, 2022 fee order did not award attorney fees against Liolios but instead imposed liability for fees on only LGI, the subsequent amended judgment did not substantially modify that order by requiring only LGI to pay the $1,198,512 attorney fee award.
" 'The true measure of an order . . . is not an isolated phrase appearing therein, but its effect when considered as a whole. [Citations.] In construing orders they must always be considered in their entirety, and the same rules of interpretation will apply in ascertaining the meaning of a court's order as in ascertaining the meaning of any other writing. If the language of the order be in any degree uncertain, then reference may be had to the circumstances surrounding, and the court's intention in the making of the same.' [Citation.]" (Concerned Citizens Coalition of Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 77, italics added.)
We construe the November 3, 2022 fee order in accordance with these principles. In other portions of the order, the court specified that respondents' total attorney fee award was $1,198,512, and ruled that the award should be "apportioned amongst the parties in the same proportions as requested in the . . . motion." (Boldface omitted.) This language allows the parties to calculate the awards to be apportioned to each respondent, to wit, $1,075,942.94 to Both, $103,819.06 to Plank, $11,250 to Stude, and $7,500 to CMA. (See Factual &Procedural Background, part 2, ante.) The order does not, however, specify the amount of attorney fees to be apportioned to Both's and Plank's wage claims. (See Factual &Procedural Background, part 2, ante.)
We note that the same judicial officer presided over the trial of this case, entered the initial judgment, heard and ruled upon respondents' motion for attorney fees, issued the rulings continuing the hearing on the motion for attorney fees as to Liolios, and entered the amended judgment.
Recall that in their motion, respondents sought attorney fee awards of (1) $1,434,590.59 to Both, (2) $138,425.41 to Plank, (3) $15,000 to Stude, and (4) $10,000 to CMA. (Factual & Procedural Background, part 2, ante.)
Although the November 3, 2022 fee order reproduces respondents' counsel's "detailed descriptions of the various services provided" along with the amount of time spent on each task, the court did not identify how much time corresponded to the attorney's work on Both's and Plank's wage claims.
Furthermore, on October 3, 2022, while the parties were briefing respondents' attorney fee motion, Liolios filed a bankruptcy petition. (Factual &Procedural Background, part 2, ante.) Consequently, in their reply brief, respondents asked the trial court to continue the hearing on their attorney fee motion as to Liolios. (Ibid.) The trial court obliged on October 18, 2022. (See ibid.) As LGI noted in its April 19, 2024 notice of ruling, the hearing on that outstanding portion of the attorney fee motion has been continued to October 18, 2024. (See ibid.)
Given the absence of a specific fee award against Liolios and the fact that the motion against him is pending, it is apparent the trial court's remark concerning joint and several liability was merely a rejection of respondents' argument that Liolios could be held liable for the "entirety of the fee awards" on the ground the court should pierce the corporate veil and impose liability on Liolios for LGI's debts under an alter ego theory. (See Factual &Procedural Background, part 2, ante [noting respondents made that argument in their motion].) Put differently, the court was not persuaded that respondents should be able to pierce the corporate veil and deem Liolios to be the losing party on LGI's cross-claims for breach of contract and misappropriation of trade secrets. (See ibid. [describing respondents' contention].) In so doing, the court signaled to the parties that it intended to narrow the extent to which attorney fees could be awarded against Liolios in a subsequent order. Any other interpretation of the November 3, 2022 fee order would render superfluous the trial court's October 18, 2022, April 20, 2023, August 2, 2023, December 5, 2023, March 21, 2024, and April 18, 2024 orders deferring ruling on the motion for attorney fees as against Liolios. (See Factual &Procedural Background, part 2, ante; fn. 8, ante.)
LGI seems to argue that "the trial court should not have made Liolios liable for any portion of the attorney's fees" because doing so "would violate the [automatic] stay in bankruptcy." Yet, concluding that "the court intended an act that would have constituted judicial error .... would be inharmonious with the general rule that trial court rulings are presumed correct." (See Tokio Marine &Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 118.) Because the trial court expressed its intention to determine Liolios's liability for attorney fees on a date after November 3, 2022, we have no reason to depart from the presumption that the court did not intend to violate federal law.
LGI also directs us to the provision from the bankruptcy court's order granting relief from the automatic stay authorizing "the State Court [to] enter an amended judgment combining: (a) the Judgment, (b) the attorney's fee award and order issued by the trial court in the State Court Action against LGI only, and (c) the amount of costs set forth in the . . . memorandum of costs . . . against LGI and the Debtor ...." (Italics added.) LGI apparently argues that Both's and Plank's counsel included this text in the proposed order ultimately signed by the bankruptcy judge to obtain an amended judgment correcting the trial court's supposed error in imposing joint and several liability on Liolios for an unspecified amount of attorney fees.
The bankruptcy court's order includes the notation "CHANGES MADE BY COURT," but the ruling does not clarify whether the text upon which LGI relies was included in Both's and Plank's proposed order or was instead inserted by the bankruptcy court. Assuming arguendo Both's and Plank's counsel drafted this language, we find LGI's reliance thereon unavailing for the reasons stated in this section.
This text from the bankruptcy court's order simply cannot bear the weight LGI places upon it; indeed it supports our conclusion that the instant appeal is untimely. The language can reasonably be interpreted as simply describing the existing scope of the November 3, 2022 fee order, which Both and Plank wanted to incorporate into the amended judgment. Furthermore, in their unopposed ex parte application requesting that the trial court sign and file the amended judgment, respondents did not represent to the court that the amended judgment would cure an error in the November 3, 2022 fee order. Instead, respondents pointed out that the bankruptcy court had authorized the trial court to enter the amended judgment. We do not believe the trial court intended, sub silentio, to eliminate any rights LGI may have had to seek contribution or indemnification from Liolios for attorney fees. Rather, as we explained above, the court informed the parties of its intention to determine Liolios's liability for fees at a later date.
Even if the November 3, 2022 fee order could be interpreted to include a preliminary ruling that Liolios is jointly and severally liable for attorney fees attributable to Both's and Plank's wage claims, the amended judgment does not affect that ruling. As we mentioned earlier, the November 3, 2022 fee order did not determine the amount of attorney fees to be apportioned to Both's and Plank's wage claims, and the trial court continued the hearing on the motion for attorney fees as to Liolios before the court issued the November 3, 2022 fee order. (See Factual &Procedural Background, part 2, ante.) In turn, the amended judgment ordered LGI to pay the exact amount of fees set forth in the November 3, 2022 fee order and did not vacate the pending hearing on the attorney fee motion against Liolios. (See ibid.) Put differently, because the trial court's determination on the amount of attorney fees owed by Liolios was still pending even after issuance of the amended judgment, the amended judgment's silence on the amount owed by Liolios in no way affected any prior preliminary finding that Liolios was jointly and severally liable to Both and Plank for fees attributable to their wage claims.
This is confirmed by LGI's and Liolios's April 19, 2024 notice of ruling, wherein they interpret the pending motion for attorney fees against Liolios as being maintained by only Both and Plank (i.e., the individuals who prevailed on their wage claims against Liolios). Again, the trial court's remark in the fee order regarding joint and several liability narrowed the scope of Liolios's potential liability for fees such that, notwithstanding respondents' argument to the contrary in their motion, Liolios could not be held liable under an alter ego theory to all four respondents for their attorney fees in defending against LGI's cross-claims for breach of contract and misappropriation of trade secrets. If that language from the November 3, 2022 fee order had been abrogated by the amended judgment, then all four respondents could once again seek attorney fees from Liolios at the upcoming hearing on the fee motion, which would be inconsistent with LGI's and Liolios's above-referenced notice of ruling and the court's rejection of such an outcome. Thus, regardless of whether the November 3, 2022 fee order is read to contain a preliminary finding of joint and several liability, any rights LGI may have to seek indemnity or contribution from Liolios are intact even after entry of the amended judgment.
Lastly, we find unavailing LGI's reliance upon Rosen v. LegacyQuest (2014) 225 Cal.App.4th 375 (Rosen). In Rosen, a judgment creditor moved for costs and attorney fees in enforcing the judgment against certain sureties. (See Rosen, at pp. 377379.) On May 14, 2012, the trial court issued an order that denied the judgment creditor's motion inasmuch as she sought attorney fees, but the court did not rule on her request for costs. (See id. at p. 379.) On September 6, 2012, the trial court issued another order that reiterated its prior denial of attorney fees but awarded the costs requested by the judgment creditor. (See id. at pp. 378-379.) On October 30, 2012, the judgment creditor appealed the denial of attorney fees. (See id. at pp. 377, 379380.)
The sureties asserted the judgment creditor's appeal was untimely, arguing "the operative order" was the May 14, 2012 order denying attorney fees, which the court clerk had served on the parties more than 60 days before the judgment creditor filed her notice of appeal on October 30, 2012. (See Rosen, supra, 225 Cal.App.4th at p. 380.) The Court of Appeal rejected the sureties' argument on two grounds. (Ibid.) First, the Rosen court found that because "the May 14 order did not fully dispose of [the judgment creditor's] motion, ....[t]he order was . . . akin to a partial judgment that does not fully dispose of the issues between the parties and, thus, is not a final appealable judgment." (See ibid.) Second, the Court of Appeal stated, "[E]ven if the May 14 order could be characterized as final and appealable, the September 6 amended order effectuated a material change in the disposition of the motion, triggering anew the time to appeal." (Ibid.)
Neither aspect of Rosen's analysis applies here. First, LGI tacitly acknowledges that the November 3, 2022 fee order fully resolved respondents' attorney fee motion as against LGI. Indeed, the amended judgment, which was entered pursuant to respondents' unopposed ex parte application, indicates that the trial court awarded attorney fees against LGI on November 3, 2022. (See Factual &Procedural Background, part 2, ante.) Therefore, the November 3, 2022 fee order fully disposed of the respondents' motion for attorney fees against LGI such that it was a final appealable order. (Cf. Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9 [holding that a judgment is final and appealable if"' "the case involves multiple parties and [the] judgment . . . entered . . . leaves no issue to be determined as to one party"' "].) Second, LGI does not argue the amended judgment substantially modified the November 3, 2022 fee order by awarding costs against LGI. (See also note 7, ante [observing the amended judgment stated that costs were awarded pursuant to a memorandum of costs filed on Aug. 3, 2022].) Rather, LGI claims the amended judgment substantially modified the prior fee order by curtailing LGI's rights to seek indemnification and contribution from Liolios. That argument fails for the reasons set forth above.
In sum, we reject LGI's assertion that the amended judgment substantially modified the November 3, 2022 fee order by shifting liability for the attorney fees solely to LGI. Because the amended judgment did not restart the deadline for seeking appellate review of the $1,198,512 attorney fee award, LGI's failure to file a timely notice of appeal from the November 3, 2022 fee order requires dismissal of this appeal. (Discussion, part C, ante [concluding LGI did not timely appeal the Nov. 3, 2022 fee order]; rule 8.104(b) ["If a notice of appeal is filed late, the reviewing court must dismiss the appeal."].)
DISPOSITION
We dismiss as untimely appellant Liolios Group, Incorporated's appeal of the November 3, 2022 order awarding attorney fees. Respondents are awarded their costs on appeal.
We concur: ROTHSCHILD, P. J., WEINGART, J.