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Padilla v. Serino

Padilla v. Serino
03/11/08



Padilla v. Serino



Filed 2/19/08 Padilla v. Serino CA2/5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FIVE



YOLANDA PADILLA,



Plaintiff,



v.



RICHARD SERINO et al.,



Defendants and Respondents;



JASON ENGEL,



Appellant.



B197704



(Los Angeles County



Super. Ct. No. BC226549)



APPEAL from orders of the Superior Court of Los Angeles County, Edward A. Ferns, Judge. Affirmed.



Lee & Biggins and Chad Biggins for Appellant.



Law Offices of Henry Yekikian and Henry Yekikian for Defendants and Respondents.



I. INTRODUCTION





This appeal concerns fees for the services of a court-appointed referee, Jason Engel. Mr. Engel appeals from two orders. First, Mr. Engel appeals from a January 29, 2007 order vacating as void a September 25, 2002 referees fee award. Second, Mr. Engel appeals from a March 9, 2007 order denying his motion for an allowance of referees fees. We conclude the trial court lacked jurisdiction to act following the June 3, 2002 dismissal of this action. We affirm the January 29 and March 9, 2007 orders on grounds the trial court had no jurisdiction to issue any order concerning referees fees.



II. BACKGROUND



A. The Record On Appeal



Mr. Engel elected to proceed on an appendix under California Rules of Court,[1]rule 8.124, without a reporters transcript. Both Mr. Engels appendix and the appendix filed by respondents, Richard Serino, Straight Construction, Inc., and Serino Commercial Contractors, Inc., include transcripts of oral proceedings that could have been designated under rule 8.130. Including the transcripts of oral proceedings in the appendices violates rule 8.124(b)(3). Rule 8.124(b)(3) states, An appendix must not contain transcripts of oral proceedings that may be designated under rule 8.130. Rule 8.130 governs the designation, preparation, contents, and filing of a reporters transcript. The Advisory Committee Comment to rule 8.124 explains: Subdivision (b)(3) prohibits the inclusion in an appendix of transcripts of oral proceedings that may be made part of a reporters transcript. . . . The prohibition is intended to prevent a party filing an appendix from evading the requirements and safeguards imposed by rule 8.130 on the process of designating and preparing a reporters transcript, or the requirements imposed by rule 8.144(d) on the use of daily or other transcripts instead of a reporters transcript . . . . Our factual discussion and legal analysis is based only on the documents properly included in the appendices; we disregard the reporters transcripts. (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 722-723; Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 111-112; see Canal Ins. Co. v. Tackett (2004) 117 Cal.App.4th 239, 243; rule 8.124(g).) It is an appellants burden to provide an adequate record on appeal. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Further, appealed judgments and orders are presumed correct, and an appellant must affirmatively demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Therefore, any issue as to which the record is inadequate will be resolved against Mr. Engel. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) We otherwise assume that the appendices consist[] of accurate copies of documents in the superior court file. (Rule 8.124(g); Butt v. State of California (1992) 4 Cal.4th 668, 674, fn. 1.)



B. The January 29, 2007 Order Vacating The September 25, 2002 Order



This was an action filed on March 16, 2000, for corporate dissolution and other claims brought by Yolanda Padilla against Straight Construction, Inc. and its president, Richard J. Serino. On June 3, 2002, following a settlement, this action was voluntarily dismissed with prejudice as to all parties and all causes of action.



While this action was pending, on May 24, 2001, the parties stipulated to have Mr. Engel act as a referee to determine Straight Construction, Inc.s value and that of a related partnership. The stipulation stated: 1. That Jason A. Engel, [certified public accountant], shall be the Referee to determine the issues and controversies pursuant to the Order For Reference issued by this court on May 18, 2001, in this action. [] 2. Jason A. Engel is a principal in Engel & Engel, LLP, Certified Public Accountants, located at . . . . [] 3. The rate to be charged by Jason A. Engel is $275.00 per hour. On May 25, 2001, pursuant to the parties stipulation, the trial court ordered: Jason A. Engel . . . shall be the Referee to determine the issues and controversies pursuant to the Order for Reference issued by this court on May 18, 2001, in this action; and The rate to be charged by Jason A. Engel is $275.00 per hour.



On January 8, 2002, the trial court relieved Mr. Engel of his duties as referee. As noted above, on June 3, 2002, this action was dismissed as to all parties and all causes of action. On July 26, 2002, after the lawsuit was dismissed, Mr. Engel filed a motion for an order awarding referees fees. On September 25, 2002, the trial court ordered counsel for Straight Construction, Inc. to pay Mr. Engel the requested compensation. On or about November 16, 2006, four years after the trial court awarded Mr. Engel compensation, Straight Construction, Inc. filed a motion to vacate that order as void. Counsel for Straight Construction, Inc. argued the fee motion had been served on its former attorney and not on any of the defendants personally. On January 29, 2007, the trial court granted the motion; the September 25, 2002 order requiring Straight Construction, Inc. to pay Mr. Engel compensation was vacated and set aside as void.



C. The March 9, 2007 Order Denying Mr. Engels Motion For Compensation



On February 8, 2007, Mr. Engel, who acted as a principal of Engel & Engel, LLP, filed a motion for an order requiring Mr. Serino, Straight Construction, Inc., and Serino Commercial Contractors, to pay the unpaid referees fees. The trial court denied the motion.





III. DISCUSSION



We asked the parties to brief the question whether, following the June 3, 2002 voluntary dismissal of this action with prejudice, the trial court lacked jurisdiction to issue any orders with respect to Mr. Engels fee requests. This is a question of law on undisputed facts. (Zuniga v. Los AngelesCounty Civil Service Com. (2006) 137 Cal.App.4th 1255, 1260; Zapanta v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167, 1171.) We find that the trial court had no jurisdiction to issue a post-dismissal award of referee fees.



An action may be dismissed, as here, with prejudice as to all parties and all causes of action pursuant to Code of Civil Procedure section 581, subdivision (b). (Zapanta v. Universal Care, Inc., supra, 107 Cal.App.4th at p. 1171; Harris v. Billings (1993) 16 Cal.App.4th 1396, 1401-1402.) It is well settled that once a voluntary dismissal with or without prejudice has been filed, the trial court is without jurisdiction to act further in the action. (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 192, fn. 6; Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 542; In re Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 866-867; Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1409; Maxwell v. Cooltech, Inc. (1997) 57 Cal.App.4th 629, 631-632, fn. 2; Harris v. Billings, supra, 16 Cal.App.4th at p. 1405; Aetna Casualty & Surety Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931; Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120; Egly v. Superior Court (1970) 6 Cal.App.3d 476, 483.) Any subsequent court order is void. (In re Conservatorship of Martha P., supra, 117 Cal.App.4th at pp. 866-867; Zapanta v. Universal Care, Inc., supra, 107 Cal.App.4th at p. 1171; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 909; Casa de Valley View Owners Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1191-1192; Gherman v. Colburn (1971) 18 Cal.App.3d 1046, 1050.) The Court of Appeal has held, A voluntary dismissal of an entire action deprives the court of subject matter jurisdiction as well as personal jurisdiction of the parties. (Casa de Valley View Owners Assn. v. Stevenson, supra, 167 Cal.App.3d at p. 1192; accord, Shapell Industries, Inc. v. Superior Court (2005) 132 Cal.App.4th 1101, 1108; Harris v. Billings, supra, 16 Cal.App.4th at p. 1405.) Moreover, the Courts of Appeal have held, Such jurisdiction cannot be conferred by consent, waiver, or estoppel, . . . [Citation]. (Harris v. Billings, supra, 16 Cal.App.4th at p. 1405, quoting Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 207; Casa de Valley View Owners Assn. v. Stevenson, supra, 167 Cal.App.3d at p. 1191, fn. 4.) The trial court retains limited power only to vacate the dismissal under Code of Civil Procedure[2]section 473 (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254-255; McDonald v. Severy (1936) 6 Cal.2d 629, 631; Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1007-1008; Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21-23) or to award costs and attorney fees. (Shapell Industries, Inc. v. Superior Court, supra, 132 Cal.App.4th at p. 1108; Maxwell v. Cooltech, Inc., supra, 57 Cal.App.4th at pp. 631-632, fn. 2; Harris v. Billings, supra, 16 Cal.App.4th at p. 1405; Aetna Casualty & Surety Co. v. Humboldt Loaders, Inc., supra, 202 Cal.App.3d at p. 931.)



The jurisdiction in question is the fundamental power to act. The lack of fundamental jurisdiction may be raised at any time. (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6; Parrott v. Mooring Townhomes Assn., Inc. (2003) 112 Cal.App.4th 873, 876, fn. 1; Casa de Valley View Owners Assn. v. Stevenson, supra, 167 Cal.App.3d at p. 1191, fn. 4.) Our Supreme Court has explained: In its fundamental sense, jurisdiction refers to a courts power over persons and subject matter. (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) Less fundamentally, jurisdiction refers to a court's authority to act with respect to persons and subject matter within its power. (See ibid.) Issues relating to jurisdiction in its fundamental sense indeed may be raised at any time. (See Cowan v. Superior Court (1996) 14 Cal.4th 367, 372 [speaking of subject matter jurisdiction]; People v. Chadd (1981) 28 Cal.3d 739, 757 (plur. opn. of Mosk, J.) [same]; Summers v. Superior Court (1959) 53 Cal.2d 295, 298 [same].) By contrast, issues relating to jurisdiction in its less fundamental sense may be subject to bars including waiver (i.e., the intentional relinquishment of a known right) ( Cowan v. Superior Court, supra, 14 Cal.4th at p. 371) and forfeiture (i.e., the loss of a right through failure of timely assertion) ( ibid.). (See People v. Williams (1999) 77 Cal.App.4th 436, 447; In re Andres G. (1998) 64 Cal.App.4th 476, 482; People v. Ruiz (1990) 217 Cal.App.3d 574, 584.) (People v. Mower, supra, 28 Cal.4th at p. 474, fn. 6.) Further, courts possess the inherent power to set aside void orders and judgments. (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194; Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121.) The Supreme Court has held: It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. [Citations.] [Citations.] (Hiroko Kawakita Hayashi v. Lorenz (1954) 42 Cal.2d 848, 851; see Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 19.)



A review of the record before us demonstrates the orders entered following the dismissal were void. This action was voluntarily dismissed with prejudice on June 3, 2002. The trial court thus lacked jurisdiction to enter the September 25, 2002 order awarding Mr. Engel compensation. It follows that the January 29, 2007 order vacating the September 25, 2002 order must be affirmed. The March 9, 2007 order denying Mr. Engels motion for compensation must also be affirmed. The trial court was without jurisdiction to consider Mr. Engels request.



Pacific Bank v. Madera Fruit & Land Co. (1899) 124 Cal. 525, 525-527, on which plaintiff relies, is distinguishable. Pacific Bank concerned a court-appointed receiver of property. The appeal was from an order settling the receivers account and fixing his compensation. The order did not address liability for the compensation or the manner of its payment. The order was entered after the plaintiff dismissed its action. In opposition, the plaintiff had argued the dismissal divested the trial court of jurisdiction to settle the receivers account. On appeal, the Supreme Court held, although the plaintiff had dismissed its lawsuit, the receiver remained in charge of the property until discharged by the court. (Ibid.) The Supreme Court held dismissal of the action did not discharge the receiver from accountability to the trial court in relation to the property placed in his hands. Nor did the dismissal deprive the trial court of jurisdiction to settle the receivers account. (Id. at p. 526.) The receiver subsequently filed a lawsuit against Pacific Bank. In a later appeal, the Supreme Court held because the lawsuit in which the receiver was appointed had been dismissed it was proper to bring an action for compensation against the party that requested the receivership. (Ephraim v. Pacific Bank (1900) 129 Cal. 589, 590-594.) Here, Mr. Engel was court appointed as a referee to determine the value of a corporation and a related partnership. Mr. Engel was not a court-appointed receiver. No property was placed under Mr. Engels control. In addition, the court relieved him of his duties five months before this action was dismissed. Mr. Engel then sought to recover his fees in this dismissed action.



There is no merit to the suggestion the payment of referee fees is akin to the recovery of costs. When the parties stipulate to the appointment of a referee, the order to pay fees is made pursuant to section 645.1: When a referee is appointed pursuant to Section 638, the referees fees shall be paid as agreed by the parties. If the parties do not agree on the payment of fees and request the matter to be resolved by the court, the court may order the parties to pay the referees fees as set forth in subdivision (b). There is no statutory or rule based authority permitting post dismissal litigation over referee fee disputes. By contrast, prejudgment costs are claimed in accordance with section 1034, subdivision (a) and rule 3.1700(a)(1), which provide specified times frames, all after the entry of judgment, for recovering litigation expenses. No such provisions exist for the postjudgment recovery of referee fees.



IV. DISPOSITION





The January 29, and March 9, 2007 orders are affirmed. Respondents, Richard Serino, Straight Construction, Inc., and Serino Commercial Contractors, Inc., are to recover their costs on appeal from appellant, Jason Engel.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



TURNER, P. J.



We concur:



ARMSTRONG, J.



KRIEGLER, J.



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[1] All further references to a rule are to the California Rules of Court.



[2] All future statutory references are to the Code of Civil Procedure.





Description This appeal concerns fees for the services of a court-appointed referee, Jason Engel. Mr. Engel appeals from two orders. First, Mr. Engel appeals from a January 29, 2007 order vacating as void a September 25, 2002 referees fee award. Second, Mr. Engel appeals from a March 9, 2007 order denying his motion for an allowance of referees fees. Court conclude the trial court lacked jurisdiction to act following the June 3, 2002 dismissal of this action. Court affirm the January 29 and March 9, 2007 orders on grounds the trial court had no jurisdiction to issue any order concerning referees fees.

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