Opinion
B225569
11-08-2011
CRAIG SHEETS, Plaintiff and Appellant, v. NORMAN APSTEIN, Defendant and Respondent.
diDonato Law Center and Peter R. diDonato, for Plaintiff and Appellant. Law Offices of Gregory F. Stannard and Gregory F. Stannard for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PC037601)
APPEAL from a judgment of the Superior Court of Los Angeles County, Randy Rhodes Judge. Reversed and remanded with directions.
diDonato Law Center and Peter R. diDonato, for Plaintiff and Appellant.
Law Offices of Gregory F. Stannard and Gregory F. Stannard for Defendant and Respondent.
Craig Sheets appeals from an amended judgment following a jury special verdict that awarded him $19,303.09 in his motor vehicle negligence action against respondent Norman Apstein. His appeal from the original judgment was dismissed for failure to file an opening brief. We do not have jurisdiction to review issues resolved in the original judgment as they were properly the subject of the prior appeal, which remains dismissed. We also conclude that, to the extent the amended judgment purported to set aside the original judgment, it is void because the trial court had no jurisdiction to vacate a valid judgment from which an appeal was pending. During the pendency of the prior appeal, the trial court only had jurisdiction to modify the original judgment as to costs. We, therefore, reverse the amended judgment and remand the matter to the trial court with directions to modify the original judgment solely with respect to the parties' costs.
PROCEDURAL SUMMARY
Sheets and Apstein were involved in a motorcycle and automobile collision in 2004. In 2005, Sheets sued Apstein for negligent operation of a motor vehicle. The case was tried to a jury in 2009. The jury returned a special verdict, which determined that, before comparative fault was apportioned, Sheets's damages were $605,146.19 in economic and $108,822.36 in non-economic damages. The jury apportioned comparative fault by assigning 12 percent to Apstein and 88 percent to Sheets. The court reduced the award of medical expenses from $469,111.80 to $51,392.16 under Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 (Hanif). It denied Sheets's motion for a new trial, which challenged the jury award of non-economic damages as too small. A judgment awarding Sheets $35,549.86 in damages plus $24,057.00 in costs was filed on September 11, 2009. Sheets appealed from this judgment in Sheets v. Apstein, case No. B220718 (hereafter "case B220718").
On March 9, 2010, the trial court heard the parties' motions to tax costs and awarded $21,792.65 in costs to Apstein and $5,545.88 to Shields. An amended judgment was filed on April 27, 2010. It expressly vacated the original judgment, and based on the parties' redetermined costs, awarded Sheets $19,303.09 in damages. Meanwhile, a mediation process was underway in the appeal in case B220718. The parties appeared before the mediator on June 7, 2010. Sheets's opening brief in case B220718 was due on the same day. On June 9, 2010, this court sent a default letter giving Sheets 15 additional days to file his opening brief. After this period, on June 25, 2010, Sheets's counsel belatedly submitted an application for extension of time to file the opening brief in case B220718, which was returned for non-conformance. Sheets was advised to file a motion for relief from default. A notice of appeal from the amended judgment was filed on the same day, commencing this appeal. No motion for relief from default was ever filed, and on July 7, 2010, the appeal in case B220718 was dismissed for failure to file an opening brief.
Appellant's opening brief in this case was finally filed on March 4, 2011. Respondent then filed a respondent's brief arguing that the court lacks jurisdiction over this appeal because appellant's previous appeal in case B220718 was dismissed for failure to file an opening brief. The respondent's brief was followed by a motion for sanctions against appellant on the grounds that the appeal is frivolous and was filed for an improper purpose. On August 29, 2011, we ordered that appellant and his attorney show cause why the case should not be dismissed in light of the dismissal of appellant's previous appeal, and why sanctions should not be imposed. (Code Civ. Proc., §§ 907, 913.)
DISCUSSION
I
Respondent argues that we must dismiss this appeal because appellant is seeking review of issues that were resolved in the original judgment. We agree. Appellant's attempt to raise these issues from the amended judgment is untimely, and we lack jurisdiction to decide them. But because of the peculiar procedural posture of this case, we do not dismiss the appeal. Instead, we reverse the amended judgment as explained below.
To be timely, an appeal must be filed at the earliest of 60 days from the notice of entry of judgment or 180 days from entry of the judgment. (Cal. Rules of Court, rule 8.104(a)(3).) An untimely appeal must be dismissed. (Id., rule 8.104(b).) When an amended judgment substantially modifies and supersedes the original judgment, a new appeal period starts to run from the date of the notice of entry or entry of the amended judgment. (See e.g. CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1049 [changing the identity of the losing party was substantial change in judgment].) Modifying the original judgment to add costs, attorney fees and interest does not substantially change the judgment and does not affect the time to appeal it. (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222, citing Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2006) ¶ 3:56:3, pp. 3-26.).)
The original judgment in this case included $35,549.86 in damages and $24,057.00 in costs for appellant. The amended judgment included the following new language: "On March 9, 2010, the court found that costs for Plaintiff were in the sum of $5,545.88, and that costs for the Defendant were $21,792.65. ¶ The costs for Plaintiff are to be added to the verdict, and the costs for the Defendant are to be deducted from the verdict. The verdict is $35,549.86. Adding $5,545.88 to that verdict results in a sum of $41,095.74. Deducting the Defendants [sic] costs of $21,792.65 from that total results in a net amount of $19,303.09." The amended judgment was substantively identical to the original. The modification was necessitated solely because of the redetermination of the parties' costs. Since respondent's costs exceeded those of appellant, they were subtracted from the verdict. Appellant raises four issues on appeal: the trial court's denial of a special jury instruction; the amount of the jury's award for non-economic damages; the trial court's reduction of medical expenses under Hanif, supra, 200 Cal.App.3d 635; and Hanif's validity in light of the collateral source rule. None of these issues concerns the parties' costs. To the extent that this appeal, filed on June 25, 2010, seeks to challenge the merits of the September 11, 2009 judgment, it is untimely, and we lack jurisdiction to consider it.
II
The amended judgment also included the following sentence: "The judgment originally signed on September 11, 2009, is hereby set aside and vacated, and this amended judgment is now the judgment for this case." Appellant argues that, because the amended judgment vacated the original judgment, it is the only judgment from which a valid appeal could be taken. The questions presented are whether the trial court had jurisdiction to vacate the original judgment once a notice of appeal from that judgment had been filed, and what effect a lack of jurisdiction would have on the two judgments.
(a)
Generally, once a notice of appeal is filed, the trial court is deprived of jurisdiction over the matter. Any order it makes without jurisdiction is void on its face. (Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 523 (Andrisani).)One exception to this general rule is that, during the pendency of an appeal, the trial court retains jurisdiction to award attorney fees and costs. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368.) The trial court also has jurisdiction to set aside a prior void judgment or order. (Andrisani, at p. 523.) Appellant cites Andrisani as authority for the trial court's action in this case, but Andrisani does not apply. In that case, the trial court issued an order of dismissal while a petition for review was pending in the California Supreme Court. (Id. at pp. 521-522.) The plaintiff appealed the dismissal, and while the appeal was pending, the trial court vacated the order of dismissal. (Id. at pp. 522.) The Court of Appeal held that the trial court had jurisdiction to vacate the void dismissal order, rendering the appeal from it moot. (Id. at p. 524.) Appellant does not contend that the original judgment in this case was void. Because it was not, the trial court was without jurisdiction to set it aside once a timely notice of appeal had been filed. To the extent that it purported to vacate a valid prior judgment from which an appeal was pending, the amended judgment is itself void.
A void judgment is appealable, but '"the reviewing court's jurisdiction is limited to reversing the trial court's void acts.'" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 200, quoting Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701.) "Rather than dismiss the appeal, the proper procedure is to reverse the void judgment." (In re Marriage of Micalizio (1988) 199 Cal.App.3d 662, 670, fn. 2.) A partially void judgment can be modified in order to save the portion that was not in excess of jurisdiction. (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 503; see also 311 South Spring Street Co. v. Department of General Services (2009) 178 Cal.App.4th 1009, 1019 [remanding with directions to vacate portion of judgment awarding postjudgment interest at above constitutional rate].) The trial court had jurisdiction to amend the original judgment only as to costs. (See Andrisani, supra, 8 Cal.App.4th at p. 523; Bankes v. Lucas, supra, 9 Cal.App.4th at p. 368.) Thus, the portion amending the original judgment based on the parties' redetermined costs is unaffected by this reversal. On remand, the trial court is to enter an amended judgment that modifies the original judgment solely as to costs.
(b)
Appellant's counsel argues that he believed the continued prosecution of the appeal in case B220718 would have been frivolous because the judgment appealed from had been vacated, thus rendering the appeal "moot and a nullity." Counsel is incorrect. When a judgment is superseded before an appeal from it has been filed, the failure to file an appeal may be excused on the ground that an appeal from a superseded judgment is a nullity. (In re Marriage of Micalizio, supra, 199 Cal.App.3d at p. 670 & fn. 2.) In such cases, the time to appeal is considered suspended until the superseding judgment is declared void, and the original judgment is reinstated. (See Matera v. McLeod (2006) 145 Cal.App.4th 44, 58; Avery v. Associated Seed Growers, Inc. (1963) 211 Cal.App.2d 613, 632 [when original judgment reinstated on appeal, new appeal period runs from date of remittitur], but see Tuck v. Tuck (1966) 245 Cal.App.2d 260, 264 [no relief where void judgment issued after time to appeal from original judgment expired].) But in this case an appeal from the original judgment was already pending when that judgment was purportedly vacated. The appeal was not moot because the appellate court could void the trial court's subsequent judgment and grant effective relief on the original judgment, from which the appeal had been taken. (See e.g. Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 476 [reversing order granting forum non conveniens motion from which timely appeal taken and vacating dismissal order entered while appeal pending].)
Nor did appellant's counsel indicate that he considered the appeal in case B220718 moot after the original judgment was vacated. Although counsel advised the court that he was planning to file an appeal from the amended judgment, he did not seek to dismiss the appeal in case B220718 as moot. Rather, he asked for additional time to file an opening brief in case B220718 because he, admittedly, had not prepared the opening brief for various reasons that had nothing to do with the fact that the original judgment had been vacated. We are not convinced that counsel failed to seek relief from default in case B220718 solely because the original judgment had been vacated.
In a declaration supporting his opposition to respondent's motion for sanctions, appellant's counsel suggests that we recall the remittitur issued after the dismissal of the appeal in case B220718 because he relied in good faith on the amended judgment. He cites no authority for this suggestion, and we conclude that recalling the remittitur in case B220718 is not appropriate under the circumstances. A remittitur may be recalled if it results from a "mistake, inadvertence or fraud"; besides correcting the clerk's mistakes, the function of recalling a remittitur "is to permit the court to set aside an erroneous judgment on appeal obtained by improper means." (Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 190-191, quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 733, pp. 762-763; § 736, p. 765, italics in original.) But the dismissal of the appeal in case B220718 was not the result of a mistake or inadvertence on the clerk's part, and it was not obtained by improper means. Rather, the appeal in case B220718 was properly dismissed because appellant failed to file an opening brief.
III
Respondent filed a motion for sanctions against appellant on the grounds that this appeal is frivolous and brought for improper reasons. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276.) A frivolous appeal "is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Respondent relies on Hale v. Laden (1986) 178 Cal.App.3d 668, 674-675, where the pending appeal was deemed frivolous because Hale's prior appeal in the same case had been dismissed for failure to file an opening brief. The court sanctioned Hale's attorneys, but not Hale. (Id. at p. 676.)
We decline to sanction appellant here because there is no showing that the decision to take a default in case B220718 and instead prosecute this appeal was made by him rather than by his counsel. The files in case B220718 and this case indicate that appellant's counsel delayed filing an opening brief over many months for various personal reasons that had nothing to do with appellant. There is no contention that appellant orchestrated the setting aside of the original judgment. Nor can respondent complain about any delay or harassment when he took no action in the trial court or in this court to bring this appeal to an earlier closure. Respondent's allegations about appellant's allegedly reprehensible behavior in the trial court in this case or in other court actions are irrelevant since there is no evidence that this appeal was procedurally orchestrated by appellant for an improper motive.
Respondent's motion for sanctions is denied.
DISPOSITION
The amended judgment filed on April 27, 2010, is reversed, and the case is remanded to the trial court with directions to modify the original judgment solely as to the parties' costs. The effect will be to eliminate the following language from the amended judgment: "The judgment originally signed on September 11, 2009, is hereby set aside and vacated, and this amended judgment is now the judgment for this case."
Respondent to have his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
WILLHITE, J.
SUZUKAWA, J.