Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Yuri Hoffman, Judge. Super. Ct. No. GIC803609
BENKE, Acting P. J.
A judgment which consists solely of costs and attorney fees awarded under Code of Civil Procedure section 1021 et seq. is automatically stayed on appeal without the requirement of a bond. (§§ 916, 917.1.) Here, the trial court entered an order enforcing such a judgment for costs and attorney fees while an appeal from the judgment was pending. That order is void and we are required to reverse it.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
Contrary to the respondents' contention, the fact the trial court entered an earlier order enforcing the same judgment while it was on appeal did not prevent the appellant in these proceedings from asserting the trial court had no power to enforce the judgment. The doctrine of res judicata and its corollary, collateral estoppel, do not apply to judgments or orders which are, on their face, void.
PROCEDURAL HISTORY
A. Cisterra Action
The order we consider on this appeal has its genesis in a related proceeding, Cisterra Partners v. San Dieguito Partnership et al., San Diego Superior Court case No. GIC746055. Cisterra Partners (Cisterra) attempted to purchase valuable real property from the San Dieguito Partnership (SDP). The sale was not consummated and in April 2000 Cisterra filed a complaint against SDP, SDP partners John L. Gregg, a Gregg family trust, William Revelle and others, alleging fraud, breach of contract and other legal theories.
In September 2000 the Gregg family trust filed a cross-complaint, alleging causes of action against Revelle and SDP for fraud. In April 2001 Revelle and Cisterra entered into a settlement and Revelle was dismissed from Cisterra's first amended complaint.
The trial court then granted Revelle's motion for summary judgment as to the Gregg family trust's amended cross-complaint, and on October 2, 2001, judgment was entered in Revelle's favor on the cross-complaint. The Gregg family trust appealed from the summary judgment and in an unpublished opinion (D038961) filed on October 1, 2002, we affirmed.
Revelle then successfully obtained an order directing that the Gregg family trust pay Revelle $475,000 in attorney fees and costs. The attorney fees were awarded under provisions of the parties' partnership agreement and Civil Code section 1717. The trial court entered the attorney fees and costs award in August 2005, and the Gregg family trust filed a timely notice of appeal in September 2005.
B. Baker Action
In 2001, while the Cisterra action was pending, John Gregg, the Gregg family trust, and plaintiff and appellant DM Partners (DM), a partnership controlled by members of the Gregg family, brought a malpractice action against the law firm of Baker & McKenzie with respect to legal work Baker & McKenzie performed for SDP.
Later, in 2003, the plaintiffs in the Baker action brought a separate action for fraud against Revelle and SDP. That action was consolidated with the Baker action.
In March 2006 the Gregg family trust dismissed its claims against Baker & McKenzie. Very shortly thereafter, DM and Baker & McKenzie entered into a settlement agreement under which the law firm agreed to pay DM Partners $675,000. Baker & McKenzie moved for an order determining the settlement was in good faith and the trial court granted the motion.
C. Enforcement of Costs and Fees Order
Although the Gregg family trust appealed from the order awarding Revelle costs and attorneys fees, Revelle nonetheless attempted to collect the costs and fees. In his initial attempt, Revelle served the trustee of the trust, John Gregg, with an order to appear for a debtor's examination. The trust moved to quash the order, arguing that because the trust had appealed from the order, any enforcement of it was stayed under the provisions of section 916 and 917.1. The trial court denied the trust's motion and the trust did not appeal from the trial court's order or otherwise seek review of the order.
In addition to obtaining an order compelling an examination of the trustee, Revelle filed a judgment lien in the Baker action and thereafter for an order permitting him to collect from the settlement funds paid to DM the amounts the trust owed to Revelle. In opposing Revelle's motion, DM, like the trust, argued that any enforcement action was stayed pending the trust's appeal from the order. DM also argued that it was not liable for the trust's debts and the trust was not entitled to any part of the settlement proceeds. The trial court in the Baker action rejected DM's arguments and entered an order directing DM's counsel to pay Revelle all the settlement proceeds which were in his trust account following payment of his own fees and costs. DM filed a timely appeal from the order releasing the settlement funds to Revelle.
DISCUSSION
As we indicated at the outset we must reverse the trial court's order because, in light of the trust's appeal from the underlying costs and fees order, the trial court had no jurisdiction to enforce the order.
I
The Costs and Fee Order Was Stayed under Section 916
Section 916, subdivision (a), provides in pertinent part: "(a) Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, 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." (Italics added.) Section 917.1, subdivision (a), provides an exception to the stay otherwise imposed by section 916. Under section 917.1, subdivision (a), the stay does not prevent the enforcement of a judgment requiring the payment of money unless the judgment debtor provides an undertaking. However, this exception to the automatic stay is itself subject to an exception for orders which provide for no relief other than an award of costs, including attorney fees, under section 1021. (§ 917.1, subd. (d).) Section 917.1, subdivision (d), states in part: "[N]o undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14."
Here, the attorney fees and costs were the only relief provided by the trial court and they were awarded under the provisions of section 1021 et seq., which in pertinent part provides that attorney fees under Civil Code section 1717 are allowable as costs under section 1033.5, subdivision (a)(10)(A). "Section 1021 is the first provision of chapter 6, 'Of Costs,' which in turn is part of title 14, 'Miscellaneous Provisions.' Section 1033.5, also part of chapter 6, includes attorney's fees authorized by a contract as an item of costs (subd. (a)(10)(A))." (Ziello v. Superior Court (1999) 75 Cal.App.4th 651, 655, fn. 2.) Thus the trust's appeal from the costs and fee order stayed enforcement of the order under section 916. "Since the appeal is limited to the order awarding costs, including attorney's fees, it is within the exclusion of the final provision of section 917.1, subdivision (d). As we have discussed, that provision eliminates the requirement of an undertaking when the appeal is solely from an award of costs." (Ziello v. Superior Court, supra, 75 Cal.App.4th at p. 655.)
II
The Trial Court Had No Jurisdiction to Enforce the Costs and Fee Order
"[S]ection 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. [Citation.] The purpose of the automatic stay under section 916 is to preserve 'the status quo until the appeal is decided' [citation], by maintaining 'the rights of the parties in the same condition they were before the order was made' [citation.] Otherwise, the trial court could render the 'appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.' [Citation.]
"In order to preserve the status quo and return the parties to 'the same condition they were before the order was made' [citation], section 916 necessarily renders any subsequent trial court proceedings on matters 'embraced' in or 'affected' by the appeal void−and not merely voidable [citation]." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198, italics added.)
Contrary to Revelle's argument, the fact that the trust had earlier and unsuccessfully resisted his effort to conduct a debtor examination did not prevent DM from renewing its objection to the trial court's order releasing the settlement proceeds. The order permitting the debtor examination, like the order releasing the settlement funds, violated the stay and was void. Such a void order does not give rise to either the bar of res judicata or the corollary doctrine of collateral estoppel. (See Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239-1240.)
The order directing that the settlement funds be released to Revelle is reversed.
Appellant to recover its costs of appeal.
We recognize that because the underlying order awarding fees and costs is now final and apparently fully enforceable on remand, Revelle will be able to renew his attempt to satisfy the award from the settlement proceeds. We express no opinion with respect to the parties' principal contention on the merits, to wit: whether in dismissing its claims against Baker the trust engaged in a fraudulent transfer which subjected the funds paid to DM to Revelle's claims. Moreover, we express no opinion as to the validity of the judgment lien Revelle filed in the Baker action.
WE CONCUR: HUFFMAN, J., AARON, J.