Kenne
v. Stennis
Filed
2/26/13 Kenne v.
Stennis CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
>
KATHLEEN A. KENNE, Plaintiff, Cross-defendant and Appellant, v. ZELMA R. STENNIS, Defendant, Cross-complainant and Appellant; KEVIN P. STENNIS, Defendant and Appellant. | B221752 ( Super. Ct. No. SC092747) |
APPEALS
from a judgment of the Superior Court of
Norman P. Tarle, Judge. Affirmed.
Schomer Law, Scott Schomer; Law
Office of Helaine Hatter and Helaine Hatter for Defendant, Cross-complainant
and Appellant, and for Defendant and Appellant.
Law Office of Kathleen A. Kenne and
Kathleen A. Kenne for Plaintiff, Cross-defendant and Appellant.
______________________
Defendant and cross-complainant Zelma R. Stennis (Zelma)
appeals from the portion of a judgment entered after a jury trial in favor of
plaintiff and cross-defendant Kathleen A. Kenne (Kenne). Kenne appeals
from the portions of the judgment in favor of Zelma and awarding attorney’s
fees and costs in favor of defendant Kevin P. Stennis (Kevin). Kevin also appeals from the judgment as to
the award of attorney’s fees and costs.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Kenne was
an attorney and a personal friend of—and at one time romantically involved
with—William Davis (Davis), a
disbarred attorney. Davis
was an old family friend of Zelma and her family, including her son, Kevin, who
was a Deputy District Attorney for Los Angeles
County. Kenne had been introduced to Kevin in 1997
when they were both law students.
In 2003,
Zelma sued Cecil McNabb (McNabb) for money he owed her arising from his
purchase of her restaurant chain, Golden Bird, Inc., and from his lease of two
restaurant locations which belonged to Zelma.
She also sought to evict McNabb from her commercial real property known
as 12801 and 12815 South Central Avenue
in Los Angeles (the Central
Avenue property).
Zelma was initially represented pro bono by the law firm of McKenna,
Long & Aldrich, LLP. After a jury
trial resulting in eviction of McNabb from Zelma’s commercial property, the law
firm discontinued representation. At the
firm’s suggestion, she engaged another attorney, Dwayne L. Abbot (Abbot), to
assist her with the remaining matters in the litigation.
During
Abbot’s representation of Zelma, Davis
suggested that Zelma let Abbot go and, instead, engage the services of
Kenne. Davis
made oral arrangements
with Zelma to assist her, for a fee, in selling the Central
Avenue property and to loan her money to enable
her to pay Abbot. On May 4, 2004, Zelma engaged Kenne and signed two
retainer agreements with Kenne. The
retainers were for Kenne’s services in two lawsuits between Zelma and McNabb
that were then pending. Zelma was 81
years old when she signed the retainers.
The
retainers specified that Zelma agreed to pay Kenne
hour and to reimburse her for out-of-pocket costs and expenses. Each retainer stated that Zelma “agrees to
pay all fees and expenses due upon the sale of [Zelma’s] real property known as
12801-12815 South Central Avenue, Los
Angeles, California 90059 . . . . In the unlikely event that [Zelma] is unable
. . . to pay attorney fees from the sale of the Central
Avenue property, [Zelma] shall . . . pay
[Kenne] from other sources.â€
One
retainer was for litigation entitled
Los Angeles County Superior Court Case No. 03Q01449, an unlawful detainer
action to regain possession of the Central Avenue
property. Judgment had already been
entered in favor of Zelma against one of the two business entities in
possession of the property, but postjudgment actions were needed to regain
possession of the property.
After five
unsuccessful attempts to obtain a writ of possession against the second
business entity, the entity not named in the
three unlawful detainer actions in an effort to regain possession of the Central
Avenue property from the second business entity.
the court entered judgment in favor of Zelma and against the second business
entity. By May 2005, Zelma had regained
possession of the Central Avenue
property.
The other
retainer was for a case entitled Credit
Managers Association of California v. Golden Bird, LLC et al.,
Los Angeles County Superior Court Case No. BC291647. Zelma and her then-bankrupt corporation,
Golden Bird, Inc., were named as cross-defendants in the case. Kenne represented both Zelma and the
corporation. The action and its cross
actions were dismissed after the parties reached a settlement agreement in
March 2006.
Beginning
in October 2006, Zelma stopped returning Kenne’s telephone calls. Zelma had ceased working with Davis
and had engaged a real estate brokerage firm to sell the Central
Avenue property.
Neither Zelma nor Kevin responded to Kenne’s certified letter of October 20, 2006, requesting
reasonable assurances of payment for outstanding
certified demand letter of January 6,
2007, for payment of all outstanding fees and costs.
In early
February 2007, Kenne learned that Zelma had entered into escrow for sale of the
Central Avenue
property. On February 13, Kenne filed
the instant action against Zelma and Kevin for breach of contract, i.e., the
retainer agreements, with damages in the sum of $363,692.02; for fraud,
alleging, inter alia, promise without intent to perform; and for common counts
for services rendered in the sum of $363,692.02. The next day Kenne recorded a lis pendens
against 12801 South Central Avenue
and another against 12815 South Central Avenue.
Kenne filed
the operative first amended complaint on June 14, 2007.
She alleged causes of action for breach of written contracts (first),
breach of oral contracts (second), common counts (third), fraud (fourth),
intentional interference with contractual relations (fifth) and intentional
interference with prospective economic advantage (sixth).
In
September 2007, Kenne and Zelma entered into a conditional settlement and
release agreement, with a related escrow instructions addendum for close of
escrow in October. The buyer then
requested an escrow extension to a December date. Zelma signed an addendum to escrow
instructions providing for the December closing date but did not submit it to
the escrow officer.
Subsequently,
the buyer for the Central Avenue property requested that close of escrow be
extended for 75 days to a date in late December rather than for the October
date provided in the settlement agreement.
Zelma refused to agree to the proposed extension to December. In October 2007, Kenne made an ex parte
application and motion to enforce the conditional settlement agreement and to
have judgment entered in her favor. The
basis for these was that Zelma had breached the settlement agreement by not
submitting her signed agreement to amend the closing date.
Zelma
opposed the application. Among the
reasons she gave in her opposing declaration was that she was willing to pay
reasonable amounts to Kenne and Davis, but the amounts they had put in the
settlement agreement were unreasonable.
She also stated that Kenne and Davis told her that by signing the settlement
agreement, “the entire lawsuit would be over for me and my son,†but she had
since learned that the settlement did not include Kevin. Further, she had no lawyer to review the
papers and, at the meeting on the settlement agreement, Kenne and Davis had
encouraged her to discharge her attorney, Michael F. Coley, on the basis he was
inept and presented a letter discharging her attorney for her to sign. Zelma also stated that she was 85 years old,
had high blood pressure and diabetes, and the lawsuit had caused stress and
many health problems for her. She
attached a corroborating letter from her doctor. Zelma’s grandson also gave an opposing
declaration. His declaration was
consistent with Zelma’s declaration.
The trial
court denied Kenne’s ex parte application and motion without prejudice in
November, thereby allowing Kenne to renew them if escrow did not close in
December. The court found that the
settlement agreement was valid and enforceable.
The court explained that Kenne had failed to show that the failure of
the condition precedent, the close of escrow, was Zelma’s fault, that is, that
Zelma had breached the agreement.
Kenne
renewed her application and motion on December
21, 2007. Her declaration
stated that Zelma had signed an escrow amendment to extend the closing date to
December 17 but had never submitted it to the escrow officer. After a continuance requested by Kenne, the
trial court denied her renewed application and motion. The court stated that the settlement
agreement required payment from escrow proceeds, but it was not consistent with
the retainer agreements, which provided an alternative, that is, “in the
‘unlikely event’ that the property is not sold, the client must pay attorney
fees from other sources.â€
Kenne moved
for summary judgment or, in the alternative, summary adjudication. In March 2008, the trial court denied the
motion on the ground triable issues of material fact remained as to each cause
of action.
Kenne
submitted a second renewal of her motion to enforce the conditional settlement
agreement and enter judgment. In May
2008, the trial court denied the motion on the same ground as its denial of her
previous renewed motion. The trial court
granted Kenne’s request for continuance of the trial date from August 11 to October 6, 2008.
On August 27, 2008, Kenne recorded a lis
pendens against Zelma’s condominium at 2369 South
Beverly Glen Boulevard, Unit #105, Los
Angeles. Kenne
also recorded a lis pendens against real property Zelma owned at 1724
West Adams Boulevard, Los Angeles. Zelma and Kevin filed a motion to expunge
these lis pendens plus the previously-recorded lis pendens on 12801
South Central Avenue. After a December 2008 hearing, the trial
court granted the motion.
In the
meantime, in July 2008, Zelma and Kevin filed an application for mandatory fee
arbitration through the Los Angeles County Bar Association (LACBA). On September
1, 2008, the authorized LACBA official issued a decision that LACBA
had jurisdiction, and that arbitration was mandatory. The official also found that Kenne had failed
to give Kevin the statutorily required notice of the right to arbitrate fee
disputes and, if she gave one to Zelma, it may not have been effective, given
Kenne’s statement in her lawsuit that Zelma was “‘incapable of properly
handling her legal and financial affairs.’â€
Kenne’s request for reconsideration was denied.
On October
6, the date the trial in the case had been set to start, the court found that
the action was stayed automatically, effective July 24, while the mandatory fee
arbitration was pending (Bus. & Prof. Code, § 6201,
subd. (c)). The court vacated the
trial date. On March 12, 2009, the arbitration award was
issued, requiring Zelma and Kevin to pay Kenne the sum of $39,414.22. Kenne promptly filed notice of termination of
the stay as of March 16 and her rejection of the award, and a request for trial
to determine the amount of fees.
Zelma moved
for leave to file a compulsory cross-complaint against Kenne for legal
malpractice. The trial court granted the
motion. Zelma filed the cross-complaint
on May 13, 2009. She alleged causes of action for legal
malpractice (first), breach of contract (second), fraud (third), breach of
fiduciary duty (fourth) and negligent infliction of emotional distress (fifth). On June 24, she filed the operative first
amended cross-complaint, adding a cause of action for slander of title (sixth).
In July
2009, Zelma and Kevin filed a motion for judgment on the pleadings and a motion
to void the retainer agreements for failure to comply with Business and
Professions Code section 6148. The trial
court denied their motion.
Kenne filed
a demurrer to the cross-complaint. As to
the fifth cause of action for negligent infliction of emotional distress, the
trial court sustained the demurrer without leave to amend. The court overruled Kenne’s demurrer to the
other causes of action. In overruling
Kenne’s demurrer to the sixth cause of action for slander of title, the court
rejected Kenne’s argument that the filing of a lis pendens is absolutely
privileged under Civil Code section 47.
The court denied Kenne’s motion to strike portions of the
cross-complaint, except that the court ordered lines 12 to 18 on page 4,
regarding some aspects of the fee arbitration, to be stricken.
On August 24, 2009, Kenne filed a
compulsory cross-cross-complaint for damages against Zelma, Kevin, Golden Age
Bird Inc., Kevin Pierre Stennis, Jr., and Helaine Hatter. The complaint alleged 16 causes of action. In September, the trial court granted the
motion by Zelma and Kevin to strike Kenne’s entire cross-cross-complaint.
The jury
trial on Kenne’s complaint and Zelma’s cross-complaint began on October 13, 2009. The jury reached a verdict on Kenne’s
complaint as follows:
On the
breach of contract cause of action against Zelma, the jury found that Kenne and
Zelma entered into a contract, but Kenne did not do all, or substantially all,
of the significant things that the contract required her to do, and she was not
excused from having to do such things.
The jury did not find that Kenne suffered any damages based upon her
contract with Zelma.
On the
breach of contract cause of action against Kevin, the jury found that Kenne and
Kevin did not enter into a contract.
There being no contract with Kevin, Kenne suffered no damages.
On the
intentional misrepresentation and concealment causes of action against Zelma
and Kevin, the jury found that neither Zelma nor Kevin made a false
representation of an important fact to Kenne or intentionally failed to
disclose an important fact that Kenne did not know and could not reasonably
have discovered. Kenne suffered no
damages.
On the
false promise cause of action against Zelma and Kevin, the jury found that
Zelma made a promise to Kenne that was important to the transaction but she
intended to perform the promise when she made it. The jury found that Kevin did not make such a
promise. The jury found that Kenne did
not suffer any damages.
On the
intentional interference with contractual relations cause of action against
Kevin, the jury found there was a contract between Kenne and Zelma, Kevin knew
of the contract, Kevin intended to disrupt performance of the contract, his
conduct either prevented performance or made performance more expensive or
difficult, but his conduct was not a substantial factor in causing harm to
Kenne. The jury found that Kenne did not
suffer any damages.
On the
intentional interference with prospective economic relations cause of action
against Kevin, the jury found there was an economic relationship between Kenne
and Zelma that probably would have resulted in an economic benefit to Kenne,
Kevin knew of the relationship, Kevin intended to disrupt the relationship, but
he did not engage in wrongful conduct through interference with the economic relationship. Again, Kenne did not suffer any damages.
On the
common counts cause of action against Zelma for reasonable value of goods and
services rendered, the jury found that Zelma requested that Kenne perform legal
services for Zelma’s benefit, Kenne did perform such legal services, Kenne
advanced litigation costs for Zelma’s benefit, but Zelma had not paid Kenne for
the legal services or litigation costs Kenne advanced. The jury determined that the reasonable value
of the legal services Kenne provided was $176,901.03, and the reasonable value
of the unpaid litigation costs advanced was $313.97.
On Kenne’s
common counts cause of action against Kevin for reasonable value of goods and
services rendered, the jury found that Kevin requested that Kenne perform legal
services for Zelma’s benefit, Kevin requested that Kenne advance litigation
costs for Zelma’s benefit, but Kenne did not perform legal services or advance
litigation costs for Kevin. The jury
determined that Kenne was not entitled to recover any fees or costs from Kevin.
Finally, on
Kenne’s punitive damages claims against Zelma and Kevin, the jury determined
that Zelma and Kevin did not engage in conduct with malice, oppression, or
fraud. The jury also found that Kevin,
as Zelma’s agent, did not engage in conduct with malice, oppression or fraud.
On Zelma’s
cross-complaint against Kenne, the jury’s verdict was as follows:
On Zelma’s
breach of contract cause of action, the jury found that Zelma and Kenne entered
into a contract, Zelma did not do all, or substantially all, of the significant
things that the contract required her to do, but Zelma was excused from doing
so. All the conditions occurred that
were required for Kenne’s performance, but Kenne failed to do something that
the contract required her to do.
However, Zelma was not harmed by that failure and therefore had no
damages.
On Zelma’s
legal malpractice cause of action, the jury found that Kenne did not commit
professional negligence.
On Zelma’s
breach of fiduciary duty cause of action, the jury found that Kenne owed Zelma
a fiduciary duty as her attorney, Kenne breached her fiduciary duty, Zelma was
harmed as a result, and Kenne’s conduct was a substantial factor in causing
Zelma’s harm. The jury determined that
Kenne caused Zelma noneconomic loss, including physical pain and suffering, in
the amount of $50,000.
On Zelma’s
fraud by concealment cause of action, the jury found that Kenne intentionally
failed to disclose an important fact that Zelma did not know and could not
reasonably have discovered, but Kenne did not intend to deceive Zelma by
concealing the fact. Zelma suffered no
damages.
On Zelma’s
slander of title cause of action, the jury found that Kenne published a
communication, the lis pendens, but the publication was with privilege or
justification. The jury found no
damages.
The jury
made the following damages awards as to all causes of action: (1) Kenne was awarded from Zelma damages
in the amount of $177,215.00; (2) Kenne was awarded from Kevin damages in
the amount of $0; (3) Zelma was awarded from Kenne damages in the amount of
$50,000.00.
Based on
the jury’s verdicts, the trial court entered judgment on November 9, 2009 as
follows: (1) On Kenne’s complaint, judgment in favor of
Kenne and against Zelma in the amount of $177,215.00, with interest, and costs
in the sum of $4,231.79.
(2) On Kenne’s complaint, judgment in favor of Kevin and
against Kenne, with Kevin to recover the amount of $40,855.32 for his attorney’s
fees and costs. (3) On Zelma’s cross-complaint, judgment in favor
of Zelma and against Kenne in the amount of $50,000.00.
On November 20, 2009, Kenne filed a
motion for a partial judgment notwithstanding the verdict (JNOV) or, in the
alternative, for a partial new trial.
Kenne’s JNOV sought a partial judgment in her favor as to the jury’s
award to Zelma for emotional distress in Zelma’s breach of fiduciary duty
claim. Kenne sought a partial new trial
on Zelma’s breach of fiduciary duty claim, based on the claimed erroneous
modification of Kenne’s jury instruction regarding a one-year statute of
limitations for breach of fiduciary duty pursuant to Code of Civil Procedure
section 340.6 and erroneous withdrawal of Kenne’s special verdict form on
her affirmative defense of the one-year statute.
On December 7, 2009, Zelma filed a
motion for a partial JNOV with respect to the jury’s verdict and damages
awarded to Kenne on her common count cause of action, and a motion for a
partial new trial on her slander of title cause of action.
After a
hearing on January 7, 2010,
the trial court denied both motions for a partial JNOV or, in the alternative,
for a partial new trial. The court gave
no explanation on the record or in writing for its rulings.
On January
13, the trial court heard argument on Zelma and Kevin’s motion for attorney’s
fees, Kenne’s motion to strike Kevin’s memorandum of costs and Kenne’s motion
to strike Zelma’s memorandum of costs.
The court issued a tentative ruling but took the matter under submission.
On January
19, the trial court issued its final ruling on the three motions. The court ruled that Kenne was the prevailing
party with regard to Zelma on the complaint and the cross-complaint, under Code
of Civil Procedure section 1032, subdivision (a)(4). The court therefore granted Kenne’s motion to
tax all costs Zelma claimed. The court
ruled that the fees and costs provisions of Code of Civil Procedure
section 998 were not applicable because the July 2008 offer was not made
in accordance with statutory procedure in subdivision (b)(2) of
section 998.
The court
found that Kevin was the prevailing party with regard to Kenne on her complaint
under Code of Civil Procedure section 1032, subdivision (a)(4), and he had
a unity of interest with Zelma, in that he was one of two jointly represented
defendants presenting a unified defense.
The court exercised its discretion to award costs to Kevin, given that
he incurred no liability. The court
granted Kenne’s motion to tax Kevin’s costs in part, but it awarded Kevin a
total of $2,378.07 in costs other than attorney’s fees. Under the mandatory fee arbitration statute,
Business and Professions Code section 6204, Kevin was the prevailing party
in regard to Kenne. The court
apportioned attorney’s fees between Kevin and Zelma using a lodestar method,
based upon a thirty-five percent allocation of hours to Kevin. The court awarded attorney’s fees to Kevin in
the amount of $38,477.25.
Zelma’s Appeal
A. Kenne’s Common Counts Cause of Action
Zelma contends the trial court’s denial of her motion for
a JNOV and the judgment as to the common counts cause of action must be
reversed for Kenne’s failure to show the claim was not barred by the applicable
two-year statute of limitations (Code Civ. Proc., § 339). Zelma also contends reversal is required due
to Kenne’s failure to prove an essential element of the cause of action, in
that the jury found that she did not fully perform the services required under
the retainer agreements. Zelma also claims
that her obligation to pay Kenne was conditioned on the sale of the Central
Avenue property, but they had not been sold.
We
review the denial of a motion for a JNOV applying the same standard the trial
court uses to make its determination.
“‘If the evidence is conflicting or if several reasonable inferences may
be drawn, the motion for judgment notwithstanding the verdict should be
denied. [Citations.] “A motion for judgment notwithstanding the
verdict of a jury may properly be granted only if it appears from the evidence,
viewed in the light most favorable to the party securing the verdict, that
there is no substantial evidence to support the verdict. If there is any substantial evidence, or
reasonable inferences to be drawn therefrom in support of the verdict, the
motion should be denied.â€
[Citation.]’ [Citation.]†(Wright
v. City of Los Angeles (1990) 219 Cal.App.3d 318, 343.) Just as the trial court, we cannot weigh the
evidence or assess the credibility of witnesses. (Ibid.)
Where the
facts are undisputed, however, we review the application of the law to the
facts de novo. (Crocker National Bank v. City and County of San Francisco (1989) 49
Cal.3d 881, 888.) Likewise, we
independently review the interpretation of a statute (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415,
432) and the interpretation of a contract (Citizens
for Goleta Valley v. HT Santa Barbara (2004) 117 Cal.App.4th 1073,
1076). If an issue “‘“‘requires us to
consider legal concepts in the mix of fact and law and to exercise judgment
about the values that animate legal principles,’â€â€™â€ then “it is a question of
law subject to independent review.†(
791, 801.)
“A common
count is proper whenever the plaintiff claims a sum of money due, either as an
indebtedness in a sum certain, or for the reasonable value of services, goods,
etc., furnished.†(4
Witkin, Cal.
Proc. (5th ed. 2008) Pleading, § 554, p. 682; see Parker v. Solomon (1959) 171 Cal.App.2d 125, 137.) “The only essential
allegations of a common count are ‘(1) the statement
of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work
done, etc., and (3) nonpayment.’
[Citation.]†(
Cal.App.4th 445, 460.) These elements
apply whether they are based upon an express contract, a contract implied in
fact, or a quasi-contract. (4 Witkin,
party pursuant to a void contract or an express contract. (Utility
Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958; see
Schultz v. Harney (1994) 27
Cal.App.4th 1611, 1623.) To recover on a
common counts claim for the reasonable value of services rendered, “a plaintiff
must establish both that he or she was acting pursuant to either an express or
implied request for services from the defendant and that the services rendered
were intended to and did benefit the defendant.†(Ochs
v. PacifiCare of California
1. Statute of Limitations on Common Counts.
There is no
merit to Zelma’s claim that the judgment must be reversed, in that Kenne failed
to offer evidence that the common counts claim’s two-year statute of
limitations (Code Civ. Proc., § 339) did not bar the cause of action. We note that Kenne asserted in her verified
complaint that she advanced all costs and expenses “in order to fully perform
all duties pursuant to her agreement with defendants, from February 23, 2004 to April 1, 2006.â€
Kenne filed her complaint on February
13, 2007. The two-year
statute of limitations in Code of Civil Procedure section 339 began running the last
day services were rendered. (Cf.
22, 25.) Kenne filed her complaint well
within the two-year limitations period.
Zelma
apparently is attempting to assert that Kevin’s payments to Kenne “in the
summer of 2004†and his refusal to make any further payment started the
limitations period running. But she
cites no supporting legal authority and does not provide a cite to the record
for the facts asserted. In any event,
when Kevin paid for any of the services is irrelevant.
Zelma’s
arguments are not intelligible to the extent they mix contract with common
count assertions. For example, Zelma
states that “there has to be a writing for the SPECIFIC amount of $177,
215 if the common count was based on a contract.†She cites no legal authority supporting the
statement.
The cases
Zelma cites do not support her argument and are readily distinguishable on
their facts. The issue in Evans
v. Zeigler (1949) 91 Cal.App.2d 226 at page 230, as well as in Miller v. Brown (1951) 107 Cal.App.2d 304 at pages 306 and 307, was
the circumstances under which a common count cause of action is demurrable;
that is not the issue in the instant case.
In Parker v. Solomon,
expressly stated that it was not discussing or deciding whether the statute of
limitations barred a quantum meruit cause of action. (Id.
at p. 137.) The issue was whether the
plaintiff had properly alleged a cause of action based upon quantum meruit, and
the court concluded that the plaintiff had not done so, in that the plaintiff
did not claim the right to recover the reasonable value of services rendered. (Id.
at pp. 134-137.)
Lack of Full Performance of Agreements
Zelma contends that Kenne failed to
prove an essential element of her common counts cause of action, in that the
jury found that Kenne did not do all, or substantially all, of the significant
things that the retainer agreements required her to do and she was not excused
from having to perform those things.
Zelma relies on King v. San Jose
which states that the “‘election to sue upon the common counts, where there is
a special agreement, applies only to cases where the contract has been fully
performed by the plaintiff.’†(
v. Citizens Nat’l Trust & Sav. Bank (1955) 44 Cal.2d 401, the Supreme
Court acknowledged the general rule that a common count “‘will not lie
the general rule “does not apply if the plaintiff owes no further performance
under the contract and nothing remains to be done thereunder except the payment
of money by the defendant.†(
express contract is open and unexecuted and not rescinded by mutual consent,
then a common counts claim is improper.
(Id. at p. 101.)
As Zelma asserts, on Kenne’s breach
of contract claim, the jury found that she did not perform all of the
significant things required by the contract.
Under King and
could not plead a common counts claim on the basis that she was entitled to
compensation as expressed in the contract.
Kenne’s breach of contract claim and her common counts claim for services
rendered and materials furnished. Under
the common counts claim, Kenne alleges the right to recover only the reasonable
value of the services and materials, which may not be the same as the contract
price. (Ochs v. PacifiCare of California, supra, 115 Cal.App.4th at p. 794; see also 4
Witkin, Cal. Proc., supra, Pleading,
§ 554, at p. 682.) In this case, the jury disagreed
with Kenne that the reasonable value was an amount equal to the contract price
and, instead, determined that the reasonable value was $177,215.00. Kenne’s recovery of this amount is not barred
by the jury’s finding on her breach of contract cause of action.
3.
Condition Precedent to Obligation To Pay
There
is no merit to Zelma’s contention that the jury verdict on the common counts
claim was in error, in that her contractual obligation to pay Kenne was subject
to a condition precedent, namely, the sale of the Central Avenue property. Zelma argues that Kenne was not entitled to
recover fees for the legal services she provided, in that the condition
precedent had never occurred and the contract provision had never been
rescinded.
In support of her contention, Zelma
quotes from the retainer agreements as follows:
“Client agrees that Attorney shall be paid directly from escrow proceeds
of said sale . . . .â€
Zelma ignores a provision appearing two sentences further, which states
as follows: “In the unlikely event that
Client is unable, for any reason, to pay attorney fees from the sale of the Central Avenue properties, Client shall
make necessary arrangements to pay Attorney from other sources.â€
We interpret the agreements
according to the ordinary and popular meaning of their words. (Civ. Code, § 1644;
Fleming (1996) 45 Cal.App.4th 698,
702.) We construe an agreement as a
whole. (Citizens for Goleta Valley v. HT Santa Barbara,
p. 1077.) Construing the provision
on which Zelma relies together with the following sentence, we conclude Zelma’s obligation to pay
Kenne was not conditioned upon the sale of the Central Avenue property.
B. Slander
of Title
Zelma’s cause of action for slander
of title alleged that, on February 14, 2007, Kenne “maliciously recorded
lis pendens†on Zelma’s Central Avenue property. Zelma contends instructional error requires
reversal of the judgment in Kenne’s favor on this cause of action.
The elements of a cause of action
for slander of title are as follows:
“(1) a publication, (2) which is without privilege or justification, (3)
which is false, and (4) which causes direct and immediate pecuniary loss.†(
1050-1051.) The litigation privilege, as
set forth in Civil Code section 47, subdivision
(b)(4), “only provides protection if the lis pendens ‘identifies an action
previously filed with a court of competent jurisdiction which affects the title
or right of possession of real property, as authorized or required by
law.’†(Manhattan Loft,
LLC, supra, at p. 1057.)
Here, the
jury received a special instruction the day before the verdict was rendered,
which was offered by Kenne on privilege to file a lis pendens. The special instruction was entitled
“Privilege and Justification — Affirmative Defense.†According to the instruction, Zelma could not
recover damages from Kenne for slander of title unless Zelma proved that, at
the time Kenne recorded the lis pendens, “she was acting without privilege or
justification, or she was not acting with a belief that what she was doing was
proper.â€
disapproved on other grounds in Albertson
v. Raboff (1956) 46 Cal.2d 375, 381, supports the propriety of the
instruction. The Gudger court held that, to recover damages for slander of title,
the publication which disparages title to real property must have been made
without privilege or without justification.
(Gudger, supra, at p. 543.)
An
appellant has the affirmative burden on appeal of demonstrating that the
judgment is infected by prejudicial error.
(Fundamental Investment etc.
Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971; Mohn v.
598.) She must “convince the court, by
stating the law and calling relevant portions of the record to the court’s
attention, that the [judgment] contained reversible error.†(Culbertson
v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.)
Zelma
provides no reference to the standard of review on appeal for such an
issue. Instructional error is not a
basis for reversal unless it is impermissibly prejudicial to the challenging
party. (Green v. State
of California (2007) 42 Cal.4th 254,
267.) The record shows that the
instruction given for the elements of Zelma’s slander of title cause of action
contains a similar statement, i.e., that Zelma was required to show that Kenne
recorded the lis pendens without privilege or justification. Zelma makes no argument or showing that any
difference in Kenne’s instruction was impermissibly prejudicial or contrary to
applicable law.
Zelma
claims the instruction should not have been submitted to the jury, in that the
trial court had previously ruled that Kenne’s recording of the lis pendens was
not privileged. Zelma does not provide a
record citation for the ruling or for the objections she purportedly made to
use of the instruction. She does not
cite authority supporting her claim.
Again, she has failed to meet her burden of showing prejudicial
error. (Fundamental Investment etc. Realty Fund v. Gradow,
Kohlruss, supra, 196 Cal.App.3d at p. 598.)
We noted
the trial court’s ruling on Zelma’s prior expungement motion, however, in the
factual background provided ante in
this opinion. The motion applied to one
of the lis pendens at issue in Zelma’s cause of action, the one Kenne recorded
regarding 12815 South Central Avenue.
was not authorized by law. The authority
cited by the trial court was Campbell v.
Superior Court (2005) 132 Cal.App.4th 904.
The court found that the plaintiff’s claim was “not dependent upon the
uniqueness of the defendant’s property in the underlying suit,†and the
plaintiff would be fully compensated for his damages by a money judgment. (Id.
at p. 919.) The court found that the
plaintiff’s recording of a lis pendens was not because the lawsuit affected
title to specific real property (Code Civ. Proc., § 405.4), but rather for
the purpose of securing a claim for money damages. (Campbell,
supra, at p. 919..) The
stated that “to
allow a party to record a lis pendens in a case in which the party seeks only
‘to freeze the real property as a res from which to satisfy a money judgment
with the history and purpose of the lis pendens statutes.†(Id.
at pp. 918-919.) The court did not
address the issue of privilege.
We have been
cited to nothing in the record that shows that Zelma raised the issue, before
or during trial, of the trial court’s previous ruling that Kenne’s filing of
the lis pendens was not privileged. In
the absence of adequate briefing, we decline to consider the issue. (Cal. Rules of Court, rule 8.204(a)(1)(C);
Cal.App.4th 1108, 1115 [“It is the duty of counsel to refer the reviewing court
to the portion of the record which supports appellant’s contentions on
appeal. . . . If no
citation ‘is furnished on a particular point, the court may treat it as
[forfeited].’â€].) In the instant appeal,
therefore, we deem the issue of instructional error to have been forfeited.
C. Awards of Costs and Prejudgment
Interest to Kenne
Zelma challenges the trial court’s
awards of costs and prejudgment interest to Kenne. Zelma contends that Kenne was not entitled to
costs under Code of Civil Procedure section 998, in that her section 998 offer
to Zelma was $349,000, but she recovered only $177,000. Also, Zelma asserts, under the mandatory fee
arbitration statutes (Bus. & Prof. Code, § 6204), Kenne was entitled
only to costs from the date of arbitration.
Therefore, the trial court’s award of costs and prejudgment interest
from the beginning of the lawsuit must be reversed. Zelma also claims that Kenne filed her motion to strike
Zelma’s memorandum of costs late and, therefore, Zelma and Kevin were entitled
to award of their costs as a matter of law.
As Zelma
points out, in general any post-judgment order awarding or denying attorney
fees or costs is appealable. (
973, 981.) This principle does not
support her claims of error, however. In
support of those claims, Zelma presents only conclusory statements, and she
does not cite supporting legal authority and explain how it applies to the
facts to reach those conclusions. We are
“‘not required to make an independent, unassisted study of the record in search
of error,’†develop an appellant’s argument for her or otherwise act as counsel
for her. (Guthrey v. State of California, supra,
63 Cal.App.4th at p. 1115.) We may
summarily reject an appellant’s contention for failure to provide adequate
briefing. (Id. at p. 1116.) We
reject Zelma’s contentions regarding costs on that basis.
On the same basis, we reject Zelma’s
remaining contentions. Zelma claims that
Kenne violated Code of Civil Procedure section 464, subdivision (a), by
filing a second lawsuit
(Kenne v. Stennis (Super. Ct. L.A.
County, No. SC100219)) from which an appeal has been taken and is now
pending in appeal No. B234919, while the instant case was not yet final. She claims the trial court erred in allowing
Kenne to put into evidence in the instant case material that pertains to the
second lawsuit. Zelma does not cite to
the record showing that she raised the issue below or explain how it relates to
the judgment in the instant case.
Lastly, in one caption and one sentence, and without supporting
authority, Zelma presents, for the second time, a contention that the judgment
on Kenne’s common counts cause of action must be reversed because Kenne failed
to perform her contractual duties and breached her fiduciary duties to Zelma.
II. Kenne’s Appeal
A. Noneconomic
Damages Award for Breach of Fiduciary Duty
On appeal,
Kenne contends the trial court’s denial of her JNOV motion and the judgment as
to Zelma’s cause of action for breach of fiduciary duty must be reversed. Kenne contends Zelma’s cause of action was
barred by the one-year statute of limitations (Code Civ. Proc.,
§ 340.6). She also asserts that
reversal is required on the basis of the trial court’s error in a jury
instruction and the special verdict form on the statute of limitations issue;
impropriety of emotional distress damages; lack of actual damages caused by the
alleged breach of fiduciary duty; and testimony by Zelma’s experts that lacked
a proper foundation.
Damages for Breach of Fiduciary Duty
Kenne
contends there can be no liability for breach of fiduciary duty if the breach
did not result in actual damages. “The elements of a cause of
action for breach of fiduciary duty are the existence of a fiduciary
relationship, breach of fiduciary duty, and damages.†(Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; accord,
permit the award of damages for emotional distress for breach of fiduciary
duty, and those were the only damages awarded.
Kenne
primarily relies on Shopoff & Cavallo
LLP v. Hyon (2008) 167 Cal.App.4th 1489, which states: “Our high court has repeatedly stressed, ‘“The mere breach of
a professional duty, causing only nominal damages, speculative harm, or the
threat of future harm—not yet realized—does not suffice to create a cause of
action for negligence. . . .â€
[Citation.]’ [Citations.] ‘“Hence, until the client suffers appreciable
harm as a consequence of his attorney’s negligence, the client cannot establish
a cause of action for malpractice.†[Citation.]’
[Citations.]†(
added.) There is a distinction, however,
between malpractice due to negligence and the intentionality component of
Kenne’s breach of her fiduciary duty to Zelma.
Kenne fails
to recognize that there was no award attributed to emotional distress. The jury awarded Zelma $50,000 for
“noneconomic loss, including physical pain and mental suffering†for Kenne’s
breach of fiduciary duties. Kenne claims
that emotional distress damages are improper for a breach of fiduciary
duty. She does not make any reference,
however, to the distinction between damages for emotional distress and
noneconomic damages, which may include pain and suffering.
The jury
did not expressly award the damages solely on the basis of pain and
suffering. Even if that were the case, California
courts have recognized that such damages encompass a much broader range of
effects on the individual than damages for emotional distress. “In general, courts have not attempted to draw distinctions
between the elements of ‘pain’ on the one hand, and ‘suffering’
on the other; rather, the unitary concept of ‘pain and suffering’
has served as a convenient label under which a plaintiff may recover not only
for physical pain but for fright, nervousness, grief, anxiety, worry,
mortification, shock, humiliation, indignity, embarrassment, apprehension,
terror or ordeal. [Citations.] Admittedly these terms refer to subjective
states, representing a detriment which can be translated into monetary loss
only with great difficulty.
[Citations.] But the detriment,
nevertheless, is a genuine one that requires compensation [citations], and the
issue generally must be resolved by the ‘impartial conscience and judgment of
jurors who may be expected to act reasonably, intelligently and in harmony with
the evidence.’ [Citations.]†(Capelouto
v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893, fn. omitted.)
The
intentional or affirmative misconduct underlying an attorney’s breach of
fiduciary duty arising out of his or her prior relationship with his or her
client provides a point of distinction from emotional distress caused by
negligence on which Kenne bases her argument.
(Holliday v. Jones (1989) 215
Cal.App.3d 102, 112.) Historically, “‘California courts have limited
emotional suffering damages to cases involving either physical impact and
injury to plaintiff or intentional
wrongdoing by defendant.’†(
Cal.App.4th 1033, 1037, italics added.)
More recent decisions have established that “[d]amages for
the absence of either physical injury or impact.†(Id.
at pp. 1037-1038, italics added.) “‘Damages for emotional
suffering are allowed when the tortfeasor’s conduct, although negligent as a
matter of law, contains elements of intentional malfeasance or bad faith.’ [Citation.]
[¶] Recovery of emotional distress damages has been allowed,
absent impact or physical injury, in certain specialized classes of
cases. . . .
[Citations.] Recovery has also
been allowed when the negligence arises in a situation involving breach of
fiduciary or quasi-fiduciary duties, as in bad faith refusal to pay insurance
proceeds. [Citations.]†(Branch
v. Homefed Bank (1992) 6 Cal.App.4th 793, 800.) Thus, there is no impropriety in an award of
noneconomic damages for breach of fiduciary duty.
Statute of Limitations
Kenne
contends that Zelma’s breach of fiduciary duty cause of action was barred by
the one-year statute of limitations set forth in Code of Civil Procedure
section 340.6. She also asserts
that reversal is required due to the trial court’s error in a jury instruction
and the special verdict form on the statute of limitations issue.
Code of
Civil Procedure section 340.6, subdivision (a), provides: “An action against an attorney for a wrongful act or omission,
other than for actual fraud, arising in the performance of professional
services shall be commenced within one year after the plaintiff discovers, or
through the use of reasonable diligence should have discovered, the facts
constituting the wrongful act or omission, or four years from the date of the
wrongful act or omission, whichever occurs first.â€
Kenne
asserts that she filed this action in February 2007. Zelma filed an answer in April 2008. The answer set forth affirmative defenses
which Zelma then alleged as her causes of action in her cross-complaint filed
more than one year later in May 2009.
Kenne then draws the mistaken legal conclusion that, therefore, Zelma’s
cause of action for breach of fiduciary duty was barred by the one-year statute
of limitations in Code of Civil Procedure section 340.6,
subdivision (a).
As Zelma
correctly points out, her cross-complaint is not time-barred because, by law,
it relates back to the date Kenne filed the complaint, February 13, 2007. (Luna
Records Corp., Inc. v. Alvarado (1991) 232 Cal.App.3d 1023,
1026-1027.) For this reason, there is
also no merit to Kenne’s claim that the trial court erred in changing a date on
a jury instruction and in refusing Kenne’s special verdict form on the one-year
statute of limitations at issue. The
trial court simply corrected the date on the jury instruction to be consistent
with applicable law.
name="_ftnref7" title="">[7]
Expert Testimony and Instructional Error
Kenne
claims that the testimony of Zelma’s experts, David Parker and Gerald Phillips,
was improper and lacked the proper foundation.
She also claims that Zelma submitted numerous improper jury instructions
concerning the Rules of Professional Conduct applicable to attorneys. Kenne does not cite or discuss supporting
authority for her conclusory statement.
Kenne concludes that, “[d]espite[] the experts’ improper testimony and
other trial irregularities there were no findings by the jury of legal
malpractice†or of actual economic damages.
She presents no cogent argument that she was impermissibly prejudiced by
the irregularities. She therefore has
failed to meet her burden on appeal. (
supra, 28 Cal.App.4th at p. 971;
Kohlruss, supra, 196 Cal.App.3d at p. 598; see also Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 579-580 [where evidentiary or
instructional errors do not result in harm or prejudice to the person challenging
them on appeal, they do not provide a basis for reversing any part of the
judgment].)
B. Absence of Damages for Zelma’s Causes of Action
Kenne
contends she was entitled to a directed verdict as to all of Zelma’s causes of
action, in that there was a total lack of damages suffered by Zelma. As Kenne points out, “[u]ncertainty as to the
fact of damage negatives the existence of a cause of action.†(Shopoff
& Cavallo LLP v. Hyon, supra,
167 Cal.App.4th at p. 1510.)
Kenne
states that, at the close of evidence, she made an oral motion for a directed
verdict on all of Zelma’s causes of action alleged in the first amended
cross-complaint on the basis that Zelma failed to establish any damages. She provides no citation to the record
identifying her motion or its content or the trial court’s response. Although Kenne explains why the facts show
that Zelma had no economic damages, Kenne does not cite to any evidence in the
record demonstrating the existence of these facts. She presents no argument or legal basis to
show any impropriety in the trial court’s denial of her oral motion and
allowing the issue of damages for each of Zelma’s causes of action to go to the
jury. In light of her failure to present
a cogent argument, supported by citation to facts in the record and by analysis
of relevant legal authority, we may treat the issue as forfeited and pass it
without consideration. (
793; Guthrey v. State of California, supra, 63 Cal.App.4th at pp. 1115-1116.)
In any event, Kenne’s contention is
not supported by the record, in that the jury found that Zelma was entitled to
damages, albeit noneconomic damages, for Kenne’s breach of her fiduciary duties
to Zelma. On Zelma’s remaining causes of
action, the jury agreed with Kenne that Zelma had not proven damages and the
jury ruled in favor of Kenne.
C. Attorney’s
Fees Award to Kevin
Kenne
contends the trial court erred in awarding attorney’s fees and costs to
Kevin. Kenne asserts that (1) the trial
court erred in relying on Business and Professions Code section 6204,
subdivision (d), as the basis for the fee award; (2) there was no legal basis
for the award; (3) Kevin was not a prevailing party under Business and
Professions Code section 6204, subdivision (d); (4) Kenne was the prevailing
party based upon the greater dollar amount awarded to her under the judgment
and based upon Kenne’s achievement of her litigation objectives against Kevin
and Zelma, given their unity of interest; and (5) the amount awarded to Kevin
was unreasonable.
Kenne’s
opening cross-appellant’s brief devotes 20 pages to this issue. She provides relevant legal authority
concerning the appealability of a post-judgment attorney’s fees order and the
standards of review applicable to the issues raised. She makes conclusory statements that Kevin
was not entitled to attorney’s fees and costs under Business and Professions
Code section 6204, subdivision (d), or under Code of Civil Procedure
sections 1032 and 1033.5.
Otherwise, in her argument, she cites no legal authority and makes no
attempt to support her conclusory statements by discussing the application of
relevant legal authority to the facts.
Kenne’s
failure to support her contention with reasoned argument and
citations to authority justifies forfeiture of her claim. (People
v. Stanley, supra, 10 Cal.4th at
p. 793; Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784-785.) In any event, even if we did consider
Kenne’s contentions, we would affirm the attorney’s fees award to Kevin. Kenne primarily maintains that she, rather
than Kevin, is the prevailing party under Business and Professions Code
section 6204, subdivision (d), of the Mandatory Fee Arbitration Act
(Bus. & Prof. Code, § 6201), as well as under Code of Civil Procedure
sections 1032 and 1033.5. She is
mistaken.
The jury
exonerated Kevin on all causes of action Kenne brought against him. She brought two causes of action, breach of
oral contracts and common counts, against him as well as Zelma to recover the
attorney’s fees and costs to which she alleged she was entitled. Kenne sought damages from Kevin and Zelma for
fraud and from Kevin only for intentional interference with contractual
relations and intentional interference with prospective economic advantage.
After Kenne
filed suit against Kevin, but prior to submission of the causes of action to
the jury, Kevin, as well as Zelma, requested and completed mandatory fee
arbitration. The arbitrator found that
Kevin was a non-client who had the right to receive a notice of client’s right
to arbitrate (Bus. & Prof. Code, § 6201, subd. (a)), in that he
would be Zelma’s heir and, according to Kenne, would be bound to pay on the
retainer agreements in the event of Zelma’s death. The arbitrator’s award was in favor of Kenne
and against Kevin and Zelma in the amount of $39,414.22. The jury later found that Kevin was not
liable to Kenne for the fees. Thus Kenne
recovered no part of the fees from Kevin.
In ruling
on Kevin’s post-trial motion for attorney’s fees, the trial court found that,
as between Kevin and Kenne, for purposes of Business and Professions Code
section 6204, subdivision (d), Kevin was the prevailing party and was
entitled to attorney’s fees and costs pursuant to that statute. Interpretation of the statute based upon its
plain language leads us to the conclusion that section 6204,
subdivision (d), is the proper basis for a statutory fees and costs award
to Kevin. (See Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
As the fee
arbitrator ruled, Kevin was entitled to be a party to the arbitration. Therefore, the trial court properly based its
ruling on Business and Professions Code section 6204, subdivision (d),
which provides: “The party seeking a trial after arbitration shall be
the prevailing party if that party obtains a judgment more favorable than that
provided by the arbitration award, and in all other cases the other party shall
be the prevailing party.†Here the
judgment was not that Kevin would be required to pay thousands of dollars to
Kenne for the attorney’s fees she was suing for, but rather, that Kevin would
pay nothing to Kenne. The judgment was
more favorable to Kevin than the arbitration award was and, accordingly, as to
recovery from Kevin, the judgment was less favorable to Kenne than the
arbitration award. Therefore, based upon
our interpretation of the plain language of section 6204,
subdivision (d) (McNairy v. C.K. Realty (2007)
150 Cal.App.4th 1500, 1506), Kevin was the prevailing party.
Under Business and Professions Code
section 6204, subdivision (d), “[t]he prevailing party may, in the discretion
of the court, be entitled to an allowance for reasonable attorney’s fees and
costs incurred in the trial after arbitration, which allowance shall be fixed
by the court.†Here, the trial court
used the commonly-applied lodestar figure method and determined the amount of a
reasonable fee award to be $38,477.25. (
Cal.App.4th 770, 774.) We will affirm a
trial court’s determination of a reasonable attorney’s fees award unless there
has been a manifest abuse of discretion, that is, unless we are convinced that
the award is clearly wrong. (
Cal.4th 1084, 1095.) We see no manifest
abuse of discretion in the trial court’s determination.
III. Kevin’s Appeal
Kevin
asserts that we should increase his attorney’s fees and costs award because his
portion of the litigation was 60 percent and Zelma’s was 40 percent. Kevin presents only a caption, one sentence
and citation to his attorney’s argument at trial. Without cogent argument based upon legal
authority, we need not and do not consider this issue Kevin raises. (Guthrey v. State of
California, supra, 63 Cal.App.4th
at pp. 1115-1116.)
As we noted
previously, however, the record shows that the trial court employed a
reasonable method for setting the amount of Kevin’s attorney’s fees award and
considered the information provided by Kevin’s two attorneys in arriving at the
amount. We cannot say that the amount is
“‘“clearly wrongâ€â€™â€ or is a “‘manifest abuse of discretion,’†and therefore, we
would have no basis to change the award.
(
IV. Kenne’s Motions to Dismiss
the Appeals
On September 24, 2012, Kenne filed
motions to dismiss Zelma’s appeal No. B221752 (filed January 20, 2010) and the subsequently-filed
appeal No. B241793 (filed June
11, 2012), together with a request for monetary sanctions in an
amount not less than $50,000, and her costs on appeal.
court proceeding, Los Angeles Superior Court Case No. SC092747. For the reasons discussed more fully below,
in this opinion, we deny Kenne’s motion to dismiss the instant appeal. In our separate proceedings on appeal No.
B241793, we will issue an order on Kenne’s motion with respect to that appeal.
Kenne
presents her motions as if the two appeals are being considered together. They are not.
The two appeals are separate; they have not been consolidated. For this reason, as necessary for clarity, we
will refer to appeal No. B241793 and the facts Kenne alleges that are relevant
to that appeal as part of our consideration of Kenne’s claims regarding the
instant appeal.
Kenne bases
her motions on two orders by the trial court and related orders issued by the
presiding justice of this division in appeal No. B241793, all having occurred
well after the notice of appeal was filed for the instant appeal. The following procedural history chronicles
Zelma’s noncompliance with court orders issued during Kenne’s post-judgment
efforts to obtain discovery in order to enforce her judgment.
In March
2012, Kenne propounded post-judgment special interrogatories and a demand for
production of documents, as permitted by Code of Civil Procedure
sections 708.020 and 708.030 for a party to use in order to enforce the
judgment the party obtained against the judgment debtor. When Zelma failed to respond, Kenne filed a
motion to compel. On May 30, the trial
court granted the motion and imposed discovery sanctions against Zelma. Just when the responses were due, Zelma filed
appeal No. B241793 from the orders and requested a stay of the orders
pending the appeal. We treated the
appeal as a petition for a writ of supersedeas with a motion to stay. The next day we issued
