KINNEY v. CLARK

No. B265267.

CHARLES KINNEY, Cross-complainant and Appellant, v. MICHELE R. CLARK, Cross-defendant and Respondent.

Court of Appeals of California, Second District, Division One.

Filed June 14, 2017.


CERTIFIED FOR PUBLICATION

ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

THE COURT:

IT IS ORDERED that the opinion filed herein on May 17, 2017, be modified in the following particulars:

On page 13, at the end of the first sentence in the first full paragraph, after the words "improper windfall," add the words "because it is as if she never incurred the attorney fees and costs," so that the sentence now reads: Kinney also argues Clark was not entitled to collect on the December 15, 2008 order awarding her attorney fees and costs because her pre-petition debt to her attorneys was discharged in bankruptcy, so her recovery on that award would constitute an improper windfall because it is as if she never incurred the attorney fees and costs.

On page 14, in line seven of the first partial paragraph, after the word "raised," add the word "properly," so that the sentence now reads: Arguments that should have been raised properly in appellate case number B253093, regarding Clark's entitlement to collect on the December 2008 award, are not germane to our resolution of this appeal.

On page 14, at the end of the first partial paragraph, after the sentence modified above, add a footnote (which will be footnote number 7) stating: As explained previously, Kinney filed the notice of appeal in appellate case number B253093 as attorney for his mother's trust and estate, although the claim of exemption was his own, and the trust and estate were not parties to the action in the trial court and did not seek to intervene in the action or vacate the order in the trial court. Accordingly, we dismissed the appeal based on lack of standing. Had Kinney appealed from the order himself in appellate case number B253093 as he should have done, and not circumvented the prefiling order by filing a notice of appeal on behalf of disinterested third parties, we would have considered then the argument he belatedly raises now—that Clark was not entitled to collect on the December 15, 2008 order awarding her attorney fees and costs because her pre-petition debt to her attorneys was discharged in bankruptcy.

On page 14, at the end of the last sentence in the first full paragraph ("Accordingly, we reject Kinney's argument that allowing Clark to enforce the judgment against him would be inequitable to him and a windfall for her"), add a footnote (which will be footnote number 8) stating: In support of his standing argument, Kinney cites cases where a non-prevailing party had standing to challenge whether the prevailing party technically incurred attorney fees where in-house counsel performed the legal services on behalf of the prevailing party (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084) or the law firm in which the prevailing party was a partner performed the legal services (Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212). These cases are not germane to Kinney's argument regarding the effect of Clark's bankruptcy discharge on her pre-petition debt to her attorneys and whether he has standing to challenge the December 15, 2008 award of attorney fees and costs based on these bankruptcy concerns.

Beginning on page 16, renumber the footnotes in the opinion based on the addition of new footnote numbers 7 and 8, as specified above.

On page 16, in the second to last sentence in the partial paragraph on that page, before the words "Kinney does not cite authority," add the words "In his opening and reply appellate briefs," so that the sentence now reads: In his opening and reply appellate briefs, Kinney does not cite authority or provide argument supporting his position that an appeal from an attorney fee order would prevent the trial court from issuing a subsequent, separate and distinct attorney fee order based on new and different legal services rendered.

On page 16, after the partial paragraph on that page, add two new paragraphs stating: In a supplemental brief in this matter, urging this court not to impose sanctions on him for filing a frivolous appeal, Kinney cites Elsea v. Saberi (1992) 4 Cal.App.4th 625 (Elsea) in support of his argument "that an appeal of an order stay[s] further proceedings which rely on the validity of that order." Elsea is inapplicable to the circumstances in the case before us. There, the defendants appealed the trial court's denial of their motion to vacate a default judgment in a personal injury action. While the defendants' appeal was pending, defendants' insurer appeared before a different trial court judge, intervened in the trial court action, and successfully moved to vacate the judgment as to itself under Code of Civil Procedure section 473. (Id. at p. 628.) The plaintiff appealed and the Court of Appeal reversed the order vacating the default judgment as to the insurer, concluding, "Because the trial court's ruling on [the insurer]'s section 473 motion affected enforcement of the default judgment, it impacted on the effectiveness of the pending appeal [the defendants' appeal from the order denying their motion to vacate the same default judgment] and therefore was in excess of the court's jurisdiction." (Id. at p. 629.)

Here, we do not have a situation like Elsea where multiple parties (the defendants and the intervener) were appealing from the same judgment. We have a situation where the same party is appealing from different post-judgment attorney fee orders. An appeal from one attorney fee order does not stay the trial court action under Code of Civil Procedure section 916 and prevent the trial court from issuing a subsequent attorney fee order based on new legal services rendered.

This modification does not result in a change in the judgment.

THSCHILD, P. J. CHANEY, J. JOHNSON, J.


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