Koefoed v. Camejo

Filed 8/28/09 Koefoed v. Camejo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Allan J. Goodman, Judge. Affirmed in part; reversed in part with directions.

________

Law Offices of Nancy Kay Undem and Nancy K. Undem for Defendant and Appellant.

Jonathan Stein for Plaintiff and Respondent.

________

In this partition action, defendant Suzanne Camejo appeals from the judgment as amended by the trial court following our remand in her previous appeal. (Koefoed v. Camejo (July 30, 2007, B188429 [nonpub. opn.] (Koefoed I).) We agree with Camejo that the trial court materially exceeded the scope of our directions on remand by awarding plaintiff, for the first time, expert witness fees and post-judgment interest and making a different allocation from the original judgment of certain credits due plaintiff.

FACTS AND PROCEEDINGS BELOW

Koefoed and Camejo owned a house in West Los Angeles as tenants in common. In Koefoeds suit for partition, the court ordered the property sold, the proceeds distributed and ordered Koefoeds attorney fees and costs paid out of Camejos share of the proceeds. We reversed this judgment insofar as it ordered Camejo to bear all of Koefoeds attorney fees and costs and remanded the cause to the trial court. Our disposition stated in relevant part: The portion of the judgment awarding attorney fees and costs to plaintiff is reversed and the cause is remanded to the trial court with directions to apportion both parties attorney fees and costs in proportion to their interest in the property. In all other respects the judgment is affirmed.

DISCUSSION

Our judgment in the previous appeal reversed the judgment awarding attorney fees and costs to plaintiff and remanded the cause to the trial court with directions to apportion both parties attorney fees and costs in proportion to their interests in the property. In contrast to an unqualified reversal, which puts the entire case at large, (Odlum v. Duffy (1950) 35 Cal.2d 562, 564), a reversal with directions reinvests the trial court with jurisdiction only to the extent defined by the terms of the appellate judgment. (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.) The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void. (Ibid.)

Here, the trial court went beyond our instruction to reapportion the parties attorney fees and costs. It amended the judgment to specify, for the first time, that Koefoed was entitled to post-judgment interest and one half his expert witness fees These amendments to the judgment substantially reduced Camejos share of the proceeds and therefore constituted material variances from our directions on remand and are void.

The original judgment awarded neither party statutory post-judgment interest.^[1] Instead the court ordered [i]nterest actually earned on the funds on deposit [i.e., the sale proceeds] shall be distributed to the parties in direct proportion to the principal amounts actually distributed . . . . (Italics added.) Koefoed did not appeal from the original judgment.

Nor did the original judgment include an award of expert witness fees to Koefoed. There is no merit to Koefoeds claim that at the time of his original request for costs he was not afforded a full and fair opportunity to litigate his entitlement to expert witness fees. He admits that he did not include a request for expert witness fees in his original cost bill.

The court further erred by changing the distribution of the sale proceeds from the original judgment. In the original judgment, the court awarded Koefoed $43,596 in credits from the total amount available for distribution, $393,654, and then divided the remaining amount, $350,058, between the parties. This resulted in an award of $218,625 to Koefoed (393,654 - 43,596 = 350,058 2 = 175,029 + 43,596 = 218,625) and an award of $175,029 to Camejo ($350,058 2 = $175,029). Following remand the court divided the original amount of proceeds available for distribution, $393,654, equally between Koefoed and Camejo, $196,826 to each, and ordered $43,596 of Camejos share be paid to Koefoed, resulting in an award to Koefoed of $240,423 and an award to Camejo of $153,231a loss to Camejo of $21,798.^[2]

Nothing in our disposition of the prior appeal allowed the trial court to change the original allocation. Koefoed did not appeal from the judgment and our disposition specifically affirmed the original judgment [i]n all other respects. The trial court lacked authority to substantively amend or modify the judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 702.)

We reject Koefoeds claim that on remand Camejo stipulated to the distribution that she now contends is erroneous. The record shows the parties agreed that the original distribution of sale proceeds would remain the same.

Accordingly, we will modify the new judgment by striking the awards to Koefoed of expert witness fees and statutory post-judgment interest and we will order that the judgment follow the original distribution granting Koefoed $43,596 credit against the total proceeds and not Camejos share.

DISPOSITION

The portion of the judgment awarding Koefoed expert witness fees and post-judgment interest is reversed. In addition, the court is ordered to modify the judgment by adopting its original calculation, that is, by deducting the credit of $43,596 due Koefoed from the total proceeds, not from Camejos share. In all other respects the judgment is affirmed. Camejo is awarded her costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, Acting P. J.

We concur:

CHANEY, J. JOHNSON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Code of Civil Procedure section 685.010, subdivision (a) states: Interest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied. Code of Civil Procedure section 685.020, subdivision (a) provides that interest commences to accrue on a money judgment on the date of entry of the judgment.

^[2] The court also awarded the parties equal shares of the interest on the sale proceeds that had accumulated prior to the remand. This distribution is not challenged on appeal.