Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV011268
Mihara, Acting P.J.
Plaintiffs Vera Dalton and William Corbin purchased a home from defendant Diane Renee Lambert. Defendants Century 21 Alpha and its agents, Joanie Francis and Rich Robinson (collectively, the “Century 21 defendants”), represented both plaintiffs and Lambert in the transaction. Plaintiffs sued Lambert and the Century 21 defendants based on a misrepresentation that the property, which uses a septic tank, was connected to the public sewer system. Plaintiffs prevailed in an April 2005 jury trial and obtained a damages award against all defendants.
In a post-judgment order dated December 16, 2005, the trial court awarded plaintiffs $50,000 in attorney’s fees and costs against Lambert and the Century 21 defendants. The court also held that Lambert is entitled to indemnification from the Century 21 defendants for the damages and the attorney’s fees and costs awarded to plaintiffs against Lambert. All parties appeal from the post-judgment order. We conclude that the trial court lacked jurisdiction over these matters at the time it entered the December 16, 2005 order. We therefore reverse the order, order reinstatement of an earlier post-judgment order, and remand for further proceedings.
I. Background
A. Jury Trial
The jury in this case, via special verdict, found Lambert liable to plaintiffs for breach of contract and negligence. The breach of contract claim was based on a Purchase Agreement between plaintiffs and Lambert, which contained a prevailing party attorney’s fees provision. The jury found the Century 21 defendants liable on negligence, negligent misrepresentation, intentional misrepresentation, and breach of fiduciary duty claims. The jury specifically found that Francis told Lambert the house was on a public sewer system and that the misrepresentation was then made in a Real Estate Transfer Disclosure Statement. The jury also determined that the Century 21 defendants were 100 percent at fault and Lambert zero percent at fault on the negligence cause of action, that the finding in plaintiffs’ favor was based solely on the conduct of the Century 21 defendants, and that the Century 21 defendants were 100 percent at fault for purposes of an equitable indemnity claim vis-à-vis Lambert. The court entered judgment on the jury verdict on June 1, 2005, and plaintiffs were awarded damages of $85,495 against all defendants.
The Century 21 defendants cross-complained against Lambert and Lambert’s mother for, inter alia, indemnity and contribution. Lambert cross-complained against the Century 21 defendants for breach of fiduciary duty, constructive fraud, and negligence. She also sought tort of another damages for her costs and fees. After trial, the Century 21 defendants’ cross-complaint against Lambert was dismissed and judgment entered in favor of Lambert.
B. Post-Trial Proceedings
Post-trial, plaintiffs moved for recovery of attorney’s fees against Lambert pursuant to the Purchase Agreement and for an award of costs against the Century 21 defendants. Lambert moved for indemnification from the Century 21 defendants for all damages, fees, and costs awarded against her and also sought recovery for her own attorney’s fees and costs under the “tort of another” doctrine. The Century 21 defendants opposed both motions and filed a separate motion to strike or tax costs. Lambert also moved to tax costs. The court heard argument on all post-trial motions on July 22, 2005.
The trial court filed its “Orders on Post Trial Motions for Costs and Attorneys Fees” on October 18, 2005 (“October order”). The October order stated, in its entirety: “The motion of Lambert for pass-through attorneys fees against Century 21 Alpha, Joanie Francis, and Robinson is DENIED. [¶] Plaintiffs may recover attorneys’ fees and costs against Century 21 Alpha, Joanie Francis, and Robinson in the amount of $50,000.00.”
On November 7, 2005, Lambert and plaintiffs each filed a “Motion for Clarification of the Court’s Order of October 18, 2005[.]” Lambert asserted that the court had failed to rule on all matters presented and asked the court to “reconsider” its order denying her motion for indemnification for any fees awarded to plaintiffs against Lambert. Plaintiffs likewise argued that the court failed to rule on all issues presented; namely, plaintiffs’ motion for attorney’s fees and costs against Lambert. Plaintiffs also sought clarification regarding the award against the Century 21 defendants and the court’s ruling on Lambert’s motions. Plaintiffs requested that the court, on its own motion, “reconsider its prior orders” pursuant to Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois) as an alternative to ruling on the requests for clarification.
On December 14, 2005, Lambert and plaintiffs appealed the October order. Two days later, on December 16, 2005, the trial court issued a new order, titled “Orders on Post Trial Motions for Reconsideration/Clarification” (“December order”). The court first rejected the Century 21 defendants’ procedural objections to the motions. Citing Le Francois, supra, 35 Cal.4th 1094, 1108, the court stated: “If this Court believes one of its prior interim orders was erroneous, it should be able to correct the error no matter how it came to acquire that belief. . . . [¶] The papers in support of the instant motion and this Court’s review of the earlier papers and orders lead this Court to conclude that it did not rule on all matters requested in the earlier motions and/or otherwise did not provide a clear and complete explanation of this court’s intentions. The Court therefore, on its own motion, VACATES its Order of 15 October 2005 and substitutes the following[.]” The trial court awarded plaintiffs $50,000 in attorney’s fees and costs against the Century 21 defendants and Lambert. The court further held that “Lambert is entitled to total implied equitable indemnity against” the Century 21 defendants for plaintiffs’ damages and attorney’s fees and costs awarded against Lambert. The court denied Lambert’s motion for indemnification from the Century 21 defendants for her own attorney’s fees.
After the court’s December ruling, Lambert and plaintiffs abandoned their appeals relating to the October order. All parties then appealed the December order, which is now before us. The Century 21 defendants claim that the court lacked jurisdiction to reconsider and vacate the October order and erred in awarding attorney’s fees against the Century 21 defendants and requiring them to indemnify Lambert for plaintiffs’ attorney’s fees. Lambert argues the trial court erred in denying her claim for compensation from the Century 21 defendants under the tort of another theory. Finally, plaintiffs claim the trial court abused its discretion in awarding only $50,000 in attorney’s fees and costs when they had reasonably incurred over $235,000 in fees.
II. Discussion
We necessarily begin with the Century 21 defendants’ argument that the trial court lacked jurisdiction to reconsider and vacate the October order. The Century 21 defendants contend that because Lambert and plaintiffs appealed the October order prior to the court’s ruling on the motions for clarification, the court lacked jurisdiction to vacate the October order and issue a new order on the post-trial motions. The defendants also claim that because the motions for clarification were not made within 10 days of the October order, and the October ruling was a final appealable order, the court lacked jurisdiction to reconsider the order. Thus, they argue, the December order is void and the remaining claims on appeal are moot.
A. Automatic Stay Pending Appeal
The Code of Civil Procedure provides, subject to exceptions not relevant here, that “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, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).) The purpose of the automatic stay “‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian), brackets in original.)
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
Section 916’s automatic stay plainly covers a trial court’s order vacating or materially modifying the appealed order. (See, e.g., Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc. (1996) 43 Cal.App.4th 630, 641 [“After perfection of an appeal, the trial court ‘may not vacate or amend a judgment or order valid on its face, or do any other act which would affect the rights of the parties or the condition of the subject matter.’”].) Plaintiffs and Lambert filed their notices of appeal from the October order on December 14, 2005. As of that date, all trial court proceedings “upon the” October order were stayed and jurisdiction vested in this court. Thus, the December order, which vacated the October order and altered the rulings therein, is void for lack of jurisdiction. (See Varian, supra, 35 Cal.4th at pp. 196-198.)
Plaintiffs and Lambert argue that section 916 does not apply to the court’s December ruling because their motions sought only “clarification” of the October order and rulings on matters overlooked by the trial court. They assert that the October order and December order are, in fact, reconcilable and, thus, that the matters raised in the motions for clarification were not “embraced” in or “affected” by the pending appeal. This argument is unavailing.
As plaintiffs and Lambert stress, the fact that a “proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916.” (Varian, supra, 35 Cal.4that p. 189.) Rather, “the trial court proceeding must directly or indirectly seek to ‘enforce, vacate or modify [the] appealed judgment or order.’” (Ibid.) Here, however, there is no question that the motions for clarification sought, at least indirectly, to modify the October order. The parties expressly requested that the court “reconsider” its rulings in the October order, including the presumed denial of Lambert’s motion for indemnification. Moreover, the court vacated the October order in response to the motions. This provides strong support for the finding that the proceedings on the motions for clarification addressed matters “embraced” in and “affected” by the pending appeal. (See, e.g., Betz v. Pankow (1993) 16 Cal.App.4th 931, 938 [“Because vacation of the amended judgment would have affected its enforcement, it could not be considered a collateral matter over which the trial court could retain jurisdiction.”].)
Even if we disregard the fact that the December order vacated the October order, the two orders are not reconcilable; inconsistencies between the orders amount to modification if not outright reversal of the October rulings. As Lambert assumed in her motion for clarification, the trial court denied her motion for indemnification of fees awarded against her when it rejected “pass-through” attorney’s fees in the October order. The December order, in response to Lambert’s request for reconsideration, granted Lambert’s motion for indemnification. The December order also awarded plaintiffs fees and costs against Lambert; the October order did not, even though it purported to rule on plaintiffs’ motion for attorney’s fees.
We conclude that the December order is void for lack of jurisdiction. In the interest of preventing a repeat of potentially erroneous procedures below, we do not end our discussion here. We also address the Century 21 defendants’ argument that even absent the pending appeal, the court lacked jurisdiction to reconsider the October order.
B. Reconsideration of October Order
Section 1008 of the Code of Civil Procedure governs applications to reconsider a previous order of the court. The statute generally requires that any motion for reconsideration be made within 10 days after notice of entry of the order and based “upon new or different facts, circumstances, or law . . . .” (§ 1008, subd. (a); see also Le Francois, supra, 35 Cal.4th at p. 1098.) Any renewal of an application for an order also must be based “upon new or different facts, circumstances, or law . . . .” (§ 1008, subd. (b).) “This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (§ 1008, subd. (e).)
In Le Francois, the California Supreme Court considered whether, notwithstanding the provisions of section 1008, a trial court may “reconsider interim orders it has already made in the absence of new facts or new law[.]” (Le Francois, supra, 35 Cal.4th at p. 1101, italics added.) The court interpreted section 1008 “as imposing a limitation on the parties’ ability to file repetitive motions, but not on the court’s authority to reconsider its prior interim rulings on its own motion.” (Id. at p. 1105.) The court further held that a trial court may reconsider an interim ruling on its motion regardless of whether the motion arises from prompting by a party or from the court’s own “‘unprovoked flash of understanding.’” (Id. at p. 1108.) A court acting on its own motion should, however, “inform the parties of [its] concern, solicit briefing, and hold a hearing.” (Ibid.)
The motions for clarification in this case do not comply with section 1008; the motions were not made within 10 days of the October order and are not based on “new or different facts, circumstances, or law.” The moving parties do not dispute this conclusion. Plaintiffs and Lambert argue, instead, that because the trial court had not yet ruled on some of the outstanding post-trial motions, the motions for clarification do not seek reconsideration but only additional rulings. Even if the court had failed to rule on all motions, which is open to interpretation, the moving parties explicitly asked the court to “reconsider” those rulings made in the October order, and the court did so. During oral argument, the trial court in fact pointed to Lambert’s attempt to cloak a motion for reconsideration in the guise of a motion for clarification: “[Y]ou called your motion a motion for clarifications? . . . [¶] . . . But there’s really nothing to clarify. I said the motion was denied, for fees was denied, and how unclear is that? . . . Why are you calling this a motion for clarification which doesn’t have jurisdictional prerequisites versus a motion for reconsideration, which does?” Finally, in ruling on the motions, the trial court stated it was reconsidering the October order on its own motion pursuant to the authority of Le Francois.
The title of the October order—“Orders on Post Trial Motions for Costs and Attorneys Fees”—suggests that the court intended to dispose of all post-trial motions for costs and fees. The court’s failure to refer explicitly to plaintiffs’ motion for fees against Lambert and Lambert’s request for indemnification of her own fees and costs might be read as an implicit denial. Perhaps the court sought to streamline the process by awarding fees against the Century 21 defendants directly, instead of awarding fees against Lambert and then granting Lambert’s motion for indemnification. On the other hand, the lack of an explicit reference to each motion before the court may suggest that it did not rule on all the motions presented.
During the hearing on the motions for clarification, the court raised the possibility it would reconsider the October order on its own motion. The court asked to hear from the Century 21 defendants’ counsel and cautioned “don’t tell me I already ruled on this because I might admit I made a mistake. . . . [¶] . . . [Lambert’s counsel] also asked for reconsideration on the Court’s own motion. That’s how people get around the jurisdiction issues.”
The trial court concluded it was unnecessary to comply strictly with the procedures outlined in Le Francois for acting on the court’s own motion, as it found “these matters were fully briefed and argued on previous occasions.”
Le Francois does not support the trial court’s action. In Le Francois, the California Supreme Court expressly noted that “[w]hat we say about the court’s ability to reconsider interim orders does not necessarily apply to final orders, which present quite different concerns.” (Le Francois, supra, at p. 1105, fn. 4.) As the court in Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148, 1156 explained, support for the finding that the court may reconsider interim rulings derives from the trial court’s “inherent authority to change its decision at any time prior to the entry of judgment.” (Italics added; see also Le Francois, supra, 35 Cal.4th at p. 1105 [“‘A court could not operate successfully under the requirement of infallibility in its interim rulings.’”].) The Le Francois line of authority thus stands only for the court’s authority to reconsider interim orders despite the limitations of section 1008. Lambert and plaintiffs have pointed to no authority for the trial court to reconsider, on its own motion, a final appealable order. (See generally Nave v. Taggart (1995) 34 Cal.App.4th 1173, 1177 [reciting general principle that “[a]fter judgment a trial court cannot correct judicial error except in accordance with statutory proceedings”].)
“Normally, the rule for distinguishing between an interim and a final order is whether such order is appealable. (Dick v. Superior Court (1986) 185 Cal.App.3d 1159, 1163, fn. 5 [].)” (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 317, superseded by statute on other grounds.) Under this test, the post-judgment October order was a final order and not subject to the court’s sua sponte reconsideration. (See § 904.1, subd. (a)(2) [orders made after final judgment are appealable]; Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal.App.4th 693, 706 [“An order awarding attorney fees is separately appealable as an order after judgment.”].) The trial court’s subsequent conclusion that it failed to properly address all the issues presented does not alter the status of the October order as a final order. The December order is therefore void for the additional reason that the court acted in excess of its jurisdiction in reconsidering a final appealable order.
III. Conclusion
Although an appeal may be taken from a void order (Varian, supra, 35 Cal.4th at p. 200; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907), the void order must be reversed and the original order reinstated (Varian, at p. 200 [reviewing court must reverse the trial court’s void act]; Avery v. Associated Seed Growers, Inc. (1963) 211 Cal.App.2d 613, 631-633 (Avery) [reversing void judgment and directing reinstatement of original judgment upon remittitur]; see also § 43 [appellate court may direct entry of proper order]). In this case, this raises the additional question whether reentry of the October order shall again make the order subject to appeal or to other proceedings in the trial court. In the circumstances presented, we believe that it should. Reinstatement of the order shall restore the parties’ rights to appeal and restart the clock for other proceedings. (See Avery, at pp. 631-633 [concluding that reentry of original judgment restores right to appeal].) If the facts or the law support such action, the parties may bring a motion for reconsideration in accordance with section 1008, a motion to correct clerical errors under section 473, subdivision (d), or any other application or motion authorized by statute. Although the trial court may not sua sponte reconsider those rulings made in the October order, it may clarify any ambiguities in the order for the benefit of the parties and/or for appellate review. Additionally, the trial court may rule on any issues or motions it concludes were not addressed in the October order. As counsel suggested at oral argument, a letter to the trial court may be appropriate to remind the court of an overlooked motion or an ambiguous ruling.
We are mindful that our limited ruling will undoubtedly lead to additional proceedings in the trial court, with attendant costs and fees for all parties. Although this result is unfortunate, particularly in the context of a dispute over fees, we cannot rule on the merits of a void order.
IV. Disposition
The December 16, 2005 order on post-judgment motions is reversed. The matter is remanded to the superior court with directions to reenter the October 18, 2005 order. All parties to bear their own costs on appeal.
WE CONCUR: McAdams, J., Duffy, J.