Legal News and Appellate Tips

The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it.

Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But to the attorney’s chagrin, the judgment stated that the parties shall bear their own fees and costs. The attorney didn’t like this because he claimed he was entitled to contractual attorney fees. So the attorney moved the trial court to amend the judgment to remove that part.

But before the trial court ruled on the motion, the client appealed. So when the trial court amended the judgment confirming the arbitration award, the client appealed again. The client’s second appeal, then, argued the amended judgment violated the appellate stay.

Compounding the confusion, the trial court also granted the attorney’s motion under Code of Civil Procedure section 187 to add the client’s business entities as co-judgment debtors. Again, while the appeal was pending. This was the subject of yet another appeal, 3123 SMB, LLC v. Horn (D2d7 Dec. 14, 2021) no. B309412 (nonpub. opn.).

The court noted the trial court created a “procedural mess” by amending the judgment pending appeal.

It is a horrifying thing to find that your appeal has been dismissed. And it can happen very easily. An appeal can be dismissed because the notice of appeal was filed late – even a day late. Or because the notice of appeal had the wrong box checked on it specifying the wrong type of order (even though specifying the type of order is not even required), or because the notice of appeal specified the wrong authority (which is not required, either).

So what about a notice of appeal that omits the name of the appellant? That is what happened in Westlake Village Marketplace, LLC v. West American Roofing, Inc. (D2d5 May 17, 2021) no. B306358 (non-pub.). Miraculously, that appeal, from the alter-ego judgment, survived. (But the judgment was affirmed.)

Also covered: A tactical choice for plaintiffs: whether "it may be prudent for a plaintiff to sue only the corporation," leaving the alter egos for postjudgment litigation.