Filed 1/23/19 ASAP Copy and Print v. Canon Solutions America, Inc. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. Stephen Pfahler and Franz E. Miller, Judges. Affirmed.

Nina Ringgold for Plaintiffs and Appellants.

Dorsey & Whitney, Kent J. Schmidt and Lynnda A. McGlinn for Defendant and Respondent.

_________________________________

ASAP Copy and Print filed the initial complaint in this action a decade ago. The complaint alleged misrepresentations and breach of contract concerning services provided in connection with the lease of a photocopier.[1] Respondent Canon Solutions America, Inc. (CSA) is the successor in interest to Canon Business Solutions, Inc. (CBS), a defendant in the underlying action.[2]

Including the three appeals at issue here, ASAP has pursued nine appeals in this case.[3] The first two appeals affirmed the trial court’s dismissal of ASAP’s claims following successful demurrers. (ASAP Copy & Print v. Canon Bus. Sols., Inc. (June 4, 2012) Nos. B224295 & B225702, 2012 Cal.App.Unpub. LEXIS 4209 (ASAP I).) The other appeals, including this one, have concerned postjudgment orders related to awards of sanctions and/or attorney fees.[4]

The appeals at issue here concern various court orders related to CSA’s attempt to execute against bank accounts at Wells Fargo Bank in partial satisfaction of previously awarded costs and attorney fees, and an order the trial court issued on September 8, 2017, awarding CSA additional attorney fees related to ASAP’s appeal in ASAP V. In light of the previous opinions from this court discussing the factual background in detail, we discuss only the facts relevant to the orders at issue in this appeal.

BACKGROUND

1. The January 4, 2017 Order

CSA obtained a writ of execution dated September 7, 2016, in the amount of $207,796.98 against Tazhibi as the judgment debtor. The writ was based on trial court orders dated June 8, 2010, May 10, 2013, and February 11, 2015, awarding costs and attorney fees against Tazhibi.

CSA sought to collect by garnishing accounts that Tazhibi held at Wells Fargo Bank (the Wells Fargo Accounts). Tazhibi and Daryaram filed claims of exemption, which CSA opposed in a Motion for an Order Determining the Claim of Exemption.

ASAP thereafter filed motions for (1) an order for “immediate release of funds of minors” and (2) an order to quash and recall any writs of execution. The motion for return of minor’s funds claimed that the sheriff had withdrawn money from accounts established for the support of the minor children and that CSA had not timely opposed their claims of exemption. The motion to quash asserted various arguments, including that the writ of execution improperly combined amounts awarded through three separate minute orders; unsigned minute orders were not judgments; and CSA was not a party to the action.

On January 4, 2017, the trial court issued an order (the January 4, 2017 Order) denying ASAP’s motions but granting in part the claimed exemptions. The court ruled that CSA had standing to oppose the exemptions because it (1) was the successor in interest to named defendant CBS; (2) was the entity identified on the writ of execution; (3) was the entity to which attorney fees were previously awarded; and (4) had been participating in the litigation for over four years. The court also ruled that the writ of execution had been properly issued.

With respect to the claimed exemptions, the court found that Tazhibi failed to establish that any of the funds in the Wells Fargo Accounts belonged solely to the children, and failed to support his claim that the accounts should be exempt because he and his family were living on borrowed funds. Nevertheless, the court directed the release of only 60 percent of the funds in the Wells Fargo Accounts pursuant to the writ of execution. The court’s order stated that “[t]he levying officer is directed to release sixty percent (60%) of the monies held in the subject accounts to the judgment debtor.”[5]

ASAP filed a notice of appeal from the January 4, 2017 Order on January 23, 2017. That appeal was subsequently dismissed on July 18, 2017, following ASAP’s default.

2. The July 3, 2017 Order

CSA filed an ex parte motion requesting a correction to the January 4, 2017 Order. CSA’s motion sought to change the statement in the January 4, 2017 Order that 60 percent of the funds in the Wells Fargo Accounts should be released to the “judgment debtor” to state that the funds should be released to the “judgment creditor.” The trial court granted that motion on February 3, 2017 (the February 3, 2017 Order) and ordered a nunc pro tunc correction to its January 4, 2017 Order. The trial court subsequently stayed the February 3, 2017 Order pending a noticed hearing on CSA’s motion.

ASAP then filed a noticed motion to vacate the February 3, 2107 Order, which the trial court denied on July 3, 2017 (the July 3, 2017 Order). Pursuant to Code of Civil Procedure section 917.1, subdivision (a), the court rejected ASAP’s argument that the action was stayed pending appeal because the appealed order (i.e., the January 4, 2017 Order) concerned the payment of money and ASAP had not posted an undertaking.[6] The court found that the February 3, 2017 Order was a proper nunc pro tunc modification of the January 4, 2017 Order because it merely corrected a clerical error.

ASAP appealed from the July 3, 2017 Order on August 3, 2017.

3. The September 8, 2017 Order

On March 13, 2017, CSA filed a motion for the attorney fees it had incurred in defending ASAP’s appeal in ASAP V. The trial court granted that motion on September 8, 2017, and awarded $9,811.12 in attorney fees. The court rejected ASAP’s arguments challenging the basis for the award, noting that “[t]his court and the Court of Appeal have already determined that attorney fees are properly awarded to the prevailing party in this action by awarding [the moving party] such fees in the underlying case and on prior appeals where it was the prevailing party.” The court noted that this court had “expressly awarded” costs, including attorney fees, in ASAP V. (See ASAP V, supra, 2016 Cal.App.Unpub. LEXIS 8392, at *8–*9.)

CSA served a notice of the September 8, Order on September 12, 2017. ASAP filed a timely notice of appeal from that order on November 13, 2017.

4. The Trial Court’s 2018 Rulings

ASAP filed a motion to vacate the September 8, 2017 Order awarding attorney fees as well as “other alleged orders and judgments based on lack of fundamental jurisdiction or excess of jurisdiction, violation of the statutory stay, and based on equitable grounds.” The trial court denied that motion on January 4, 2018 (the January 4, 2018 Order).

Meanwhile, CSA sought a further correction to the trial court’s February 3, 2017 Order, requesting that the court state the specific amount of funds to be released to CSA from the Wells Fargo Accounts rather than a percentage of the funds in the accounts. CSA’s motion, filed December 27, 2017, explained that Wells Fargo would not release any funds from the accounts without an order stating the actual amount of money to be released rather than a percentage of the funds contained in the accounts.

The trial court granted CSA’s motion on March 26, 2018 (the March 26, 2018 Order). The court found that the February 3, 2017 Order “contains a clerical, rather than a substantive error . . . . The clerical error is that Wells Fargo is ordered to release ‘sixty percent’ of the levied funds to the moving party rather than the specific dollar amount that ‘sixty percent’ represents, and Wells Fargo refuses to release the levied funds without a specific dollar amount being set forth in the order.”

In the same order, the trial court denied an ex parte motion by ASAP to vacate the January 4, 2018 Order on the ground that the court served its order on the wrong address for ASAP’s counsel. The court found that the motion “has no bearing on the ruling on this motion.” The court stated that ASAP’s counsel “did not file a Notice of Change of Address until October 2017, well after the orders which are the subject of [this] motion were issued. The Court also notes that while counsel for the responding parties filed and served a Notice of Change of Address in 2017, the papers filed in opposition to the instant motion and the ex parte application itself contain counsel for responding parties purported former address.”

CSA served a final order granting its motion for a nunc pro tunc correction to the February 3, 2017 Order on May 11, 2018. That order directed release of funds from the Wells Fargo Accounts consisting of (1) $610.24 from the account held jointly with Daryaram; (2) $1,686.60 from the account held jointly with one of the minors; and (3) $1,394.68 from the account held jointly with the other minor. Thus, the amount in controversy in this appeal is $3,691.52, the sum of these three figures.

ASAP filed a timely notice of appeal on May 25, 2018.

DISCUSSION

1. This Court Will Not Reconsider Matters Decided in Prior Appeals

ASAP makes a number of arguments for reversal of the trial court’s various orders that this court has previously considered and rejected. ASAP claims that (1) the trial court and this court do not have jurisdiction because the case was never remanded from federal court following a prior removal; (2) there is a “lack of fundamental jurisdiction” because ASAP did not consent to claimed dual public employment by judicial officers; (3) a protective order “sealing” documents prevented ASAP from presenting dispositive evidence; and (4) there was a lack of an impartial tribunal.

This court has already rejected variations of the same arguments in prior appeals. (See ASAP I, supra, 2012 Cal.App.Unpub. LEXIS 4209, at *51–*57, *72, *90; ASAP III, supra, 2014 Cal.App.Unpub. LEXIS 1557, at *9; ASAP V, supra, 2016 Cal.App.Unpub. LEXIS 8392, at *3–*6.) These prior rulings constitute the law of the case, and ASAP has provided no legal or equitable ground to disregard them. (See Gore v. Bingaman (1942) 20 Cal.2d 118, 121 [“Where a question of law once determined is sought to be relitigated upon a second appeal to the same appellate court it is clearly established that the first determination is the law of the case and will not be re-examined in the absence of unusual circumstances leading to injustice or unfairness even though the issue sought to be raised involves the jurisdiction of the court on the prior appeal”]; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312 [“Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court”].)[7]

2. Appellants Waived the Right to Appeal Issues Decided in the January 4, 2017 Order

ASAP makes various arguments challenging the trial court’s January 4, 2017 Order. Among other things, ASAP claims that there were various procedural problems with CSA’s opposition to the claimed exemptions; that the writ could not be executed against the minors’ funds; and that the trial court’s order was erroneous because it permitted a levy of 100 percent of Tazhibi’s earnings.[8]

ASAP waived these arguments by failing to pursue its appeal from the January 4, 2017 Order. ASAP filed a notice of appeal on January 23, 2017, but, as mentioned, its appeal was dismissed after it failed to file an opening brief.[9]

An appealable order becomes final when an appeal is exhausted or the time to appeal has lapsed. Issues determined in a prior appealable order are res judicata if no timely appeal is taken. (In re Matthew C. (1993) 6 Cal.4th 386, 393; In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705–1706.) This court does not have jurisdiction to review issues decided in a prior appealable order once the right to appeal that prior order has expired. (§ 906; In re Baycal Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.)

The trial court’s January 4, 2017 Order was appealable under section 904.1, subdivision (a)(2). ASAP failed to pursue its appeal from that order. This court therefore does not have jurisdiction to review the issues decided in the trial court’s January 4, 2017 Order.

3. The Trial Court’s July 3, 2017 Order Was Not Erroneous

ASAP argues that the trial court erred in several respects in its July 3, 2017 Order denying ASAP’s motion to vacate the court’s prior February 3, 2017 Order. ASAP argues that (1) the trial court did not have jurisdiction to enter the July 3, 2017 Order because proceedings in the trial court were stayed pending ASAP’s appeal of the January 4, 2017 Order; (2) the February 3, 2017 Order should not have issued on an ex parte basis; and (3) the amendment the trial court ordered was substantive and the trial court therefore should not have adopted it as a nunc pro tunc correction of a prior clerical mistake. We find no error in the trial court’s ruling.

First, ASAP’s appeal of the January 4, 2017 Order did not stay trial court proceedings concerning CSA’s attempts to collect its costs and attorney fees. The January 4, 2017 Order addressed CSA’s writ of execution seeking collection of money in the Wells Fargo Accounts and the various exemption claims concerning those accounts. The July 3, 2017 Order concerned a nunc pro tunc amendment to that order.

Under section 917.1, subdivision (a)(1), enforcement of an order for the payment of money is not stayed pending appeal unless an undertaking is made. An order on claimed exemptions is treated in the same manner. Section 703.610, subdivision (c) provides that a levying officer shall treat an appeal of a “determination of a claim of exemption . . . in accordance with the provisions governing enforcement and stay of enforcement of money judgments pending appeal.” Thus, neither the trial court’s January 4, 2017 Order nor its July 3, 2017 Order were stayed in the absence of an undertaking.

ASAP does not claim that it posted an undertaking, and there is no indication in the record that it did so. Thus, its appeal did not deprive the trial court of jurisdiction to enter its July 3, 2017 Order.

Second, ASAP has not identified any error in the trial court’s decision to correct its January 4, 2017 Order following an ex parte motion. Correction of a clerical error in a prior order may be made without notice and on the court’s own motion. (Wilson v. Wilson (1948) 88 Cal.App.2d 382, 384.) Nor has ASAP identified any prejudice from the ex parte procedure. Following a subsequent ex parte application by ASAP, the trial court stayed its February 3, 2017 Order to permit hearing on a noticed motion.

Third, ASAP’s argument that the amendment the trial court ordered was substantive rather than clerical is unpersuasive. The trial court explained that it intended in its original order to direct release of funds in the subject accounts to the judgment creditor rather than the judgment debtor. The context of the court’s January 4, 2017 Order supports that explanation. Correction of such a mistake in wording to give effect to the court’s original intention may be made effective as of the date of the original order. (Estate of Careaga (1964) 61 Cal.2d 471, 474 (Careaga).)

4. The Trial Court Did Not Err in its September 8, 2017 Award of Attorney Fees

ASAP argues that the trial court improperly awarded CSA attorney fees because CSA did not have an interest in the contract creating the right to attorney fees. We reject that argument on several grounds.

First, ASAP forfeited the argument. As discussed above, in its January 4, 2017 Order the trial court found that CSA is the successor in interest to named defendant CBS. ASAP failed to pursue its appeal from that order. In ASAP I, this court decided that CBS is entitled to attorney fees under the relevant contract. (See ASAP I, supra, 2012 Cal.App.Unpub. LEXIS 4209, at *79–*88.) As CBS’s successor in interest, CSA is also entitled to contractual attorney fees.

Second, as the trial court correctly concluded, it was far too late even in January 2017 for ASAP to raise this standing argument, as CSA had participated in the litigation for years. Indeed, in prior appeals this court has already upheld attorney fees awards in favor of CSA. (See ASAP IV, supra, 2014 Cal.App.Unpub. LEXIS 4388, at *1; ASAP V, supra, 2016 Cal.App.Unpub. LEXIS 8392, at *1, *8–*9.) This court’s opinion in ASAP V expressly noted that CSA is the successor in interest to CBS and awarded attorney fees to CSA. (ASAP V, at *1–*3, *8–*9.) These findings are law of the case.

Citing California Rules of Court, rule 8.278(c)(2), ASAP also claims that CSA is not entitled to its attorney fees because it did not file a memorandum of costs following remand from this court pursuant to California Rules of Court, rule 3.1700. But CSA did file a timely motion for attorney fees following remand. That is sufficient under California Rules of Court, rule 8.278(d)(2).

California Rules of Court, rule 8.278(d)(2) refers to rule 3.1702 for the procedure for claiming attorney fees on appeal. That rule provides that a motion for fees on appeal based upon a contract “must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1).” (Cal. Rules of Court, rule 3.1702(c)(1).) CSA filed its motion within 40 days after issuance of the remittitur in compliance with the time requirement in rule 8.278(c)(1). Its motion therefore was timely and procedurally proper.

ASAP raises no challenge to the reasonableness of the attorney fees that the trial court awarded other than the general complaint that CSA made redactions to the bills that it submitted in support of its fee request. We rejected a similar argument in ASAP V. (See ASAP V, supra, 2016 Cal.App.Unpub. LEXIS 8392, at *8.) The bills that CSA submitted sufficiently supported the claimed fees. We find no error in the trial court’s award of the amount of fees that CSA requested based upon the record.

5. ASAP Has Identified No Prejudicial Error in the Trial Court’s January 4, 2018 Order or March 26, 2018 Order

ASAP claims that the trial court’s January 4, 2018 Order was erroneous because (1) the trial court lacked jurisdiction due to the failure to disclose an alleged constitutionally required disqualification of the judge; (2) CSA did not have standing to pursue an attorney fees award; and (3) CSA failed to provide ASAP with a copy of its proposed order as required under California Rules of Court, rule 3.1312.[10] We reject the arguments.

ASAP’s jurisdictional and standing challenges to the January 4, 2018 Order rehash arguments that this court has previously denied, and we reject them for the reasons discussed above.[11] With respect to the third argument, even if CSA did fail to serve a proposed order concerning its motion for attorney fees, ASAP identifies no prejudice from that failure. ASAP does not identify any discrepancy between the ruling the trial court actually made and the order that it issued, much less any basis to conclude that the outcome would have been different if ASAP had been given an opportunity to object to a proposed order. In the absence of any showing of prejudice, ASAP’s argument provides no ground to reverse the trial court’s ruling. (§ 475; Cal. Const., art. VI, § 13.)

ASAP similarly fails to identify any prejudice in the trial court’s March 26, 2018 Order denying ASAP’s ex parte application to vacate the January 4, 2018 Order on the ground that the order was not properly served on ASAP. ASAP claims that it has been prejudiced by wrongful levies and the threat of such levies. That claim concerns ASAP’s complaints about the propriety of other trial court orders. It has nothing to do with any delay in its receipt of the January 4, 2018 Order due to faulty service. Absent a showing of prejudice, there is no ground for reversal.

6. The Trial Court’s March 26, 2018 Order Was a Proper Nunc Pro Tunc Modification of a Prior Order Intended to Reflect the Trial Court’s Original Intention

ASAP argues that the trial court’s March 26, 2018 Order was improper in amending nunc pro tunc the court’s February 3, 2017 Order. We disagree.

The March 26, 2018 Order specified the actual monetary amounts to be released to CSA from the Wells Fargo Accounts. That order modified nunc pro tunc the February 3, 2017 Order, which had stated the percentage of funds on deposit (60 percent) to be released rather than the specific amount. The trial court explained that Wells Fargo would not release the funds unless it received an order stating the specific dollar amount. The March 26, 2018 Order therefore did not make any substantive change to the court’s prior order, but simply expressed the amounts affected by that order in a different manner.

Clerical error in a judgment may be corrected nunc pro tunc at any time. (Careaga. supra, 61 Cal.2d at p. 474; In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151 (Kaufman).) A nunc pro tunc correction is proper if it reflects the court’s intention in entering the original order and does not “alter the meaning or legal effect of the original decree.” (Careaga, at p. 474.) “ ‘The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually entered—not to make an order now for then, but to enter now for then an order previously made.’ ” (Id. at p. 474, quoting Smith v. Smith (1952) 115 Cal.App.2d 92, 99–100.)

Here, the trial court’s March 26, 2018 Order did not alter the meaning or legal effect of the prior order; it simply performed the arithmetical calculation necessary to translate the percentage of funds identified in the prior order to a specific amount. It conformed to the trial court’s original intention in identifying the levied funds that Wells Fargo should release to CSA. The trial court’s February 3, 2017 Order was erroneous in the sense that it did not identify those funds in a manner that would actually accomplish the release. The trial court properly ordered a nunc pro tunc change to accomplish what the February 3, 2017 Order was intended to do.

ASAP argues that the March 26, 2018 Order was improper because it was “based on evidence that did not exist at the time the judge rendered the original January 4, 2017 order.” ASAP claims the order was “based on a memorandum of garnishee dated January 10, 2017 faxed or re-faxed to the Sherriff’s department on October 24, 2017.” ASAP’s argument apparently is that the specific amounts set forth in the trial court’s final order to be released to CSA were computed based on 60 percent of the account balances identified in the October 24, 2017 fax rather than on the account balances as of January 4, 2017.

ASAP’s argument, even if true, does not show any prejudice and does not identify any impropriety in the nunc pro tunc nature of the trial court’s March 26, 2018 Order. The only difference between the account balances listed in the October 24, 2017 fax and the account balances that ASAP identified in its pleadings prior to the January 4, 2017 Order is that the October 24, 2017 fax lists one of the accounts as containing $125 less than what ASAP previously claimed was in the account.[12] That discrepancy actually reduced the amount that the trial court’s order made available to CSA. The trial court’s calculation mistake (if it was a mistake) did not prejudice ASAP. Nor does it show that the trial court intended to alter the meaning or legal effect of its original order.

The matter was scheduled for oral argument at 9:00 a.m. Appellant’s counsel Nina Ringgold failed to appear and the clerk was unable to contact her. The court held the matter until the end of calendar, with one case remaining. Counsel for the respondent CSA agreed to waive argument and submit the matter on the briefs. The matter was submitted without argument. Thereafter Ms. Ringgold informed the court electronically that she had been in an automobile accident that morning and accordingly could not reach the courtroom by 9:00 a.m. Because Ms. Ringgold’s communication contained no specific request, the court filed its opinion.

DISPOSITION

The trial court’s orders are affirmed. Canon Solutions America, Inc. is entitled to its costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.