Opinion
B316719
10-10-2022
CAROLINE S. LEE, Plaintiff and Appellant, v. UNITED ESCROW CO. et al., Defendants and Respondents.
Jack H. Karpeles for Plaintiff and Appellant. Chad Biggins for Defendants and Respondents United Escrow Co. and Tracy Ko.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. BC697147, Barbara M. Scheper, Judge. Dismissed.
Jack H. Karpeles for Plaintiff and Appellant.
Chad Biggins for Defendants and Respondents United Escrow Co. and Tracy Ko.
FEUER, J.
Caroline Lee appeals from a September 27, 2021 minute order directing the trial court's judicial assistant to email defense counsel a copy of a January 27, 2020 order (2020 order) granting the postjudgment request for attorneys' fees filed by United Escrow Co. and its escrow officer Tracy Ko. Lee also appeals from United Escrow and Ko's October 21, 2021 notice of ruling attaching the 2020 order. Because neither the minute order nor the notice of ruling is an appealable order, and the appeal is untimely as to the 2020 order granting the attorneys' fees request, we dismiss Lee's appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On March 7, 2018 Lee filed a complaint alleging causes of action against United Escrow for breach of contract, resulting trust, and negligence, and against United Escrow and Ko for breach of fiduciary duty. The complaint alleged Lee and United Escrow entered into an escrow agreement in 2017 for the sale of Lee's property, and United Escrow breached the agreement by withholding $87,250 from Lee for a sales commission after the close of escrow.
Lee also named as defendants Bow Tie Realty & Investment, Inc. and Jong Han Lee. Neither is a party to this appeal.
After a court trial, on September 16, 2019 the trial court entered judgment in favor of United Escrow and Ko. Lee did not appeal. On November 1, 2019 United Escrow and Ko filed a request for attorneys' fees, which they served on Lee by mail, requesting $57,060 in attorneys' fees and $1,210 in costs. Lee did not oppose the request. On December 9, 2019 the trial court granted United Escrow and Ko's request for attorneys' fees and directed defense counsel to submit a proposed order granting the request. On December 30, 2019 United Escrow and Ko filed and served by mail a proposed order with the dollar amounts left blank. The trial court entered the order on January 27, 2020, granting the requested $57,060 in attorneys' fees and $1,210 in costs. The court stated in a January 28, 2020 minute order that the "Order on Motion for Attorney's Fees [was] signed and filed, as modified, on 1/27/2020 and incorporated herein by reference."
On July 30, 2020 Lee filed a motion under section 170.6 to disqualify Judge Scheper, who had presided over the trial and ruled on the postjudgment motions. On August 3, 2020 the trial court granted Lee's disqualification motion and transferred the case to Department 1 for reassignment.
Lee moved to disqualify Judge Scheper in the related action, Los Angeles Superior Court case No. 20STCV14403, and the court granted the motion as to both cases.
On September 20, 2021 United Escrow and Ko filed an "ex parte application for nunc pro tunc order awarding attorney's fees because original order was filed blank." (Capitalization omitted.) The application explained the order entered by the trial court on January 27, 2020 left blank the amount of attorneys' fees awarded. On September 22, 2021 the trial court found "the order in question is an order that was made by Judge Scheper in Department 30, before this case was assigned to Department 40 for all remaining purposes." The court directed counsel to "contact Department 30 for assistance in this matter."
United Escrow and Ko claim in their respondents' brief that there was a "glitch" in the Los Angeles Superior Court Website as a result of which the copy of the order on the public portal had blanks for the dollar amounts, but the court's internal system had the blanks filled in.
Judge David Sotelo.
The following day United Escrow and Ko refiled their ex parte application in Department 30. On September 27, 2021, after a hearing at which counsel for United Escrow and Ko appeared, but not Lee, the trial court (Judge Scheper) entered a minute order stating United Escrow and Ko's ex parte application was withdrawn and directing "the Judicial Assistant to email counsel for defendant, United Escrow [C]o., a copy of the Order filed on January 27, 2020." On October 21, 2021 United Escrow and Ko filed a notice of ruling on the ex parte application. The notice recited that the ex parte application was withdrawn and the trial court directed the Judicial Assistant to email a copy of the 2020 order to defense counsel. The notice of ruling attached the 2020 order, which awarded United Escrow and Ko $58,270 in attorneys' fees and costs.
According to United Escrow and Ko's respondents' brief, "At the hearing, the Court explained that the blanks were filled-in already as the order appeared on the Court's system ...." The appellate record does not contain a transcript of the hearing.
Lee filed a timely notice of appeal from the September 27, 2021 minute order and October 21, 2021 notice of ruling. On August 4, 2022 we invited the parties to submit supplemental letter briefs addressing whether the September 27, 2021 minute order or October 21, 2021 notice of ruling is an appealable order, or alternatively, whether we could construe Lee's notice of appeal as taken from the 2020 order granting the attorneys' fees request. We also requested the parties address whether, if we were to construe the notice of appeal as taken from the 2020 order, the appeal would be timely. United Escrow and Ko assert in their supplemental brief that neither the minute order nor the notice of ruling is an appealable order. In her supplemental brief Lee focuses on whether review by extraordinary writ is appropriate, but she does not seek writ review. She also asserts her notice of appeal should not be construed as taken from the 2020 order.
DISCUSSION
Lee contends the trial court erred in denying United Escrow and Ko's ex parte application for a nunc pro tunc order correcting the 2020 order granting the attorneys' fees request. Lee asserts the 2020 order attached to United Escrow and Ko's notice of ruling was "invalidly created" and "backdated" and Judge Scheper was disqualified from hearing the ex parte application. Lee argues further the failure of the trial court to issue a nunc pro tunc order deprived her of her right to move for reconsideration of the 2020 order and to file a timely appeal of the order.
On her notice of appeal, Lee checked the box indicating she was appealing "[a]n order after judgment under Code of Civil Procedure, § 904.1(a)(2)" and identified United Escrow and Ko's October 21, 2021 notice of ruling as the subject of her appeal. In her case information statement Lee also identified the trial court's September 27, 2021 minute order as the order from which she appealed. We liberally construe the notice of appeal to encompass both the notice of ruling and the minute order. (See Luz v. Lopes (1960) 55 Cal.2d 54, 59 ["[N]otices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced."]; Verceles v. Los Angeles Unified School Dist. (2021) 63 Cal.App.5th 776, 783 [same]; see Cal. Rules of Court, rule 8.100(a)(2) ["The notice of appeal must be liberally construed."].) However, neither the minute order nor the notice of ruling is an appealable order.
Further statutory references are to the Code of Civil Procedure.
The notice of ruling is not an order at all. (See Shpiller v. Harry C's Redlands (1993) 13 Cal.App.4th 1177, 1179 ["A notice of ruling is not an order; an order is a document which contains a direction by the court that a party take or refrain from action, or that certain relief is granted or not granted [citations] and which is either entered in the court's permanent minutes or signed by the judge and stamped 'filed.'"].) Thus, the notice is not appealable.
Further, as discussed, Lee asserts we should not construe her appeal as taken from the 2020 order granting the attorneys' fees request, which appeal would be untimely. The court entered its signed order on January 27, 2020. (See Cal. Rules of Court, 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. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed ...."].) And contrary to Lee's contention, there is no evidence the trial court "backdated" the attorneys' fees order, which arguably could have rendered her appeal timely. The order plainly bears a file stamp dated January 27, 2020, and there is no evidence in the record that the file-stamped date was inserted sometime in 2021. It is undisputed the parties did not receive notice of the filed 2020 order. However, in the absence of notice by a party or the court clerk, a party has 180 days after entry of the judgment or appealable order to appeal. (Id., rule 8.104(a)(1)(C), (e); see Kimball Avenue v. Franco (2008) 162 Cal.App.4th 1224, 1228 ["When both the court clerk and the party submitting the judgment fail to serve the statutorily mandated notice of entry of judgment, the sole consequence is that a longer statutory period [of 180 days] for filing the notice of appeal comes into play.... The lack of notice does not jeopardize the judgment."].) Lee filed her notice of appeal on November 24, 2021, 668 days after entry of the order. Therefore, we lack jurisdiction to consider Lee's appeal from the order granting the attorneys' fees request. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 ["The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal."]; City of Calexico v. Bergeson (2021) 64 Cal.App.5th 180, 187 ["If a notice of appeal is filed late, the appellate court is without jurisdiction to proceed and must dismiss the appeal."]; see Cal. Rules of Court, rule 8.104(b) ["If a notice of appeal is filed late, the reviewing court must dismiss the appeal."].)
We also lack jurisdiction to consider Lee's appeal as taken from the trial court's September 27, 2021 minute order. A trial court order is appealable only when made so by statute. (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 ["The right to appeal is wholly statutory."]; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Under section 904.1, subdivision (a)(2), an appeal may be taken from an order made after an appealable judgment. Despite the inclusive language of section 904.1, subdivision (a)(2), "not every postjudgment order that follows a final appealable judgment is appealable." (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651; accord, City of Santa Maria v. Adam (2019) 43 Cal.App.5th 152, 161.) There are three requirements for an appealable postjudgment order: (1) the underlying judgment must be final and appealable under section 904.1, subdivision (a)(1); (2) the order must involve issues different from those addressed in the underlying judgment; and (3) the order must affect the judgment or relate to it by enforcing it or staying its execution. (Lakin, at pp. 651-652 &fn. 3; City of Santa Maria, at p. 161 [postjudgment order denying appellants' motion to clarify amended judgment is an appealable order relating to the scope of the judgment and thus its enforcement]; Solis v. Vallar (1999) 76 Cal.App.4th 710, 713 ["An order confirming a partition sale meets the three requirements developed by case law for an appealable order after judgment ...."].)
Here, the first requirement is satisfied-the underlying judgment after court trial was an appealable final judgment. However, Lee fails to meet the second requirement (that the issues in the second appeal be different from those raised by the underlying judgment), and Lee's appeal is an improper attempt to "'circumvent[] . . . the time limitations for appealing'" from the order granting the attorneys' fees request. (Lakin v. Watkins Associated Industries, supra, 6 Cal.4th at p. 651; accord, Hersey v. Vopava (2019) 38 Cal.App.5th 792, 797 [appellate court cannot review the propriety of a judgment's damages award in an appeal from a postjudgment order].)
Nor is the third requirement met-that the order must affect a judgment or relate to it by enforcing it or staying its execution-because the minute order does not amend or affect the underlying judgment or the 2020 attorneys' fees award, nor does it alter the rights or obligations of Lee, United Escrow, or Ko. The minute order merely directs the court's judicial assistant to send a copy of the January 27, 2020 order to defense counsel, and reflects that defendants withdrew their ex parte application for a nunc pro tunc order. Because the minute order does not constitute "a final determination of rights or obligations of parties," it is not an appealable order. (Lakin v. Watkins Associated Industries, supra, 6 Cal.4th at p. 653.) We therefore dismiss the appeal.
Because we dismiss Lee's appeal, we do not reach her contention Judge Scheper was disqualified from ruling on United Escrow and Ko's ex parte application regarding the 2020 order. We note, however, that Judge Scheper did not rule on the ex parte application (which was withdrawn), and further, the judge would only have been disqualified if she considered "a contested issue" on which she was disqualified. (See § 170.6, subd. (a)(1).)
DISPOSITION
The appeal is dismissed. United Escrow and Ko are to recover their costs on appeal.
We concur: PERLUSS, P. J. J. WISE, J. [*]
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.