Guo v. Zhang
Filed 8/21/12 Guo v. Zhang CA2/4
NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 FOUR
JIA NONG GUO et
al.,
Plaintiffs and Respondents,
v.
SHUMIN ZHANG et
al.,
Defendants and Appellants.
B235748
(Los Angeles County
Super. Ct. No. BC415219)
APPEAL
from orders of the Superior
Court of
County, Robert L. Hess, Judge. Affirmed.
Shumin
Zhang, in pro. per., for Defendant and Appellant Shumin Zhang.
Jungfeng
Han, in pro. per., for Defendants and Appellants Jungfeng Han and Hong Yei
Group, Inc.
No
appearance for Plaintiffs and Respondents.
In these appeals from postjudgment orders for attorney
fees and costs, we reject appellants’ contentions and affirm.
Defendant
and appellant Jungfeng Han and his wife, defendant and appellant Shumin Zhang,
operated the Hong Yei Restaurant where plaintiffs and respondents Jia Nong Guo
and Jiam Hui Han were employed. In 2009,
plaintiffs sued defendants and Hon Yei Group, Inc., doing business as Hong Yei
Restaurant (the corporation) for various Labor Code violations including
nonpayment of overtime wages and failure to provide meal and rest breaks.
actions, they were deemed to be related actions and were consolidated.
After
consolidation, the parties entered into a conditional settlement agreement that
resulted in the filing by plaintiffs of a January 21,
2010
notice of settlement pursuant to rule 3.1385(c) of the California Rules of
Court.
title="">[2] The notice stated that the parties had
conditioned the dismissal of the case on the satisfactory completion of
specified items that would not be completed within 45 days, but that a
dismissal would be filed by March 22, 2010. However, the case was not dismissed and a
bench trial was held in June 2010.
When
trial began, the restaurant was no longer being operated by defendants and the
corporation had been dissolved. In an
effort to hold the individual defendants liable for the corporation’s Labor
Code violations, plaintiffs pursued an alter ego theory of liability against
Han and Zhang.
name="_ftnref3" title="">[3] The trial court found that Han was the
corporation’s sole alter ego. It stated
that although Zhang “had significant responsibilities for the operation of the
restaurant, the evidence did not show that she had or claimed an ownership
interest, or that she had a position as an officer or director of†the
corporation.
The
trial court entered a judgment against Han and the corporation and awarded
damages of $63,292.12 to plaintiff Han and $53,785.02 to plaintiff Guo, plus
reasonable costs and attorney fees under Labor Code section 226, subdivision
(e). The judgment absolved Zhang of
liability and awarded her costs.
The
present appeals by defendants Zhang and Han concern two different postjudgment
orders. Defendant Zhang, who is in pro.
per., challenges the July 7, 2011 order taxing costs,
claiming she is entitled to more than her (reduced) costs award of $470. Defendant Han, who is also in pro. per.,
challenges (both individually and as the corporation’s alter ego) the October 17, 2011 order granting plaintiffs’ motion for costs of
$10,444.25 and attorney fees of $95,680.09.
Additional facts relevant to their contentions will be discussed below.
DISCUSSION
Preliminarily, we note that no respondent’s brief was
filed by either plaintiff. This allows
us to “decide the appeal on the record, the opening brief, and any oral
argument made by the appellant.†(Rule
8.220(a)(2).)
I. Defendant Zhang’s Appeal From the July
7, 2011 Order Taxing Costs
Although
the two cases had been consolidated, Zhang filed (without the assistance of
counsel) a separate memorandum of costs
for each complaint. She requested $7,430
in costs from each plaintiff, for a total award of $14,860.
Plaintiffs
filed a joint motion to tax costs, in which they argued that Zhang’s costs did
not exceed $546.69. They pointed out
that many of Zhang’s claimed litigation expenses were incurred jointly with her
husband Han who, as the losing party, remained liable for his own costs.
Zhang
argued below that plaintiffs’ motion to tax costs was both untimely and
invalid. The trial court rejected her
arguments, granted plaintiffs’ motion to tax costs, and entered the July 7,
2011 order awarding her $470 in (reduced) costs.
On
appeal, Zhang raises four arguments regarding the July 7 order. First, she contends that because she filed a
separate memorandum of costs for each complaint, each plaintiff was required to
file his own motion to tax costs. However,
the consolidation of the two cases allowed the trial court to conduct a joint
hearing on all common issues, including costs.
(Code Civ. Proc., § 1048, subd. (a) [“When actions involving a common
question of law or fact are pending before the court, it may order a joint
hearing or trial of any or all the matters in issue in the actions; it may
order all the actions consolidated and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.â€].) Assuming that Zhang objected to plaintiffs’
failure to file separate motions in the trial court (her opening brief does not
indicate whether she raised the issue below), we infer in favor of the July 7
order that her objection was overruled because, under the circumstances,
requiring separate motions would have increased unnecessary costs for no
substantive purpose. (
557, 564 [“‘A judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to which
the record is silent, and error must be affirmatively shown.’â€].)
Second,
Zhang argues that because she paid an appearance fee of $355 in each case, she
is entitled to recover two appearance fees, or a total of $710. We disagree.
Because defendants Zhang, Han, and the corporation were jointly
represented throughout the pretrial and trial proceedings by the same attorney,
the two appearance fees were jointly incurred by all three defendants. We infer in favor of the July 7 order that
the second appearance fee was taxed as a litigation expense that must be paid
by the other two defendants. (
Third,
Zhang claims that the trial court erred in not imposing sanctions against
plaintiffs’ trial counsel for failing to appear at trial on June 30, 2010, and
for filing a frivolous motion for sanctions.
We reject this contention for several reasons, including that the notice
of appeal identified only the July 7, 2011 order for costs. If there was an order denying sanctions, it
was not mentioned in the notice of appeal.
Moreover, the notice of appeal from the July 7, 2011 order is insufficient
to encompass the January 5, 2011 judgment because the judgment was not mentioned
in the notice of appeal. (
(1990) 217 Cal.App.3d 1041, 1045 [“a notice of appeal will not be considered
adequate if it completely omits any reference to the judgment being
appealedâ€].)
Finally,
Zhang asserts that the trial court erred in not awarding attorney fees under
Code of Civil Procedure sections 128.7 and 436, which she was entitled to
recover as the prevailing party. We
reject this contention because the notice of appeal, which identifies only the
July 7, 2011 order concerning costs, is insufficient to encompass the January
5, 2011 judgment for the reasons previously discussed.
II. Defendant Han’s Appeal From the October 17, 2011 Order
Awarding Fees and Costs to Plaintiffs
As we mentioned earlier, the judgment ordered defendant Han
and the corporation to pay plaintiffs’ reasonable attorney fees and costs. Plaintiffs then filed a postjudgment motion
with supporting documentation for an award of $95,680.09 in attorney fees and
$10,444.25 in costs. Defendant Han filed
an opposition (without the assistance of counsel) in which he argued that
plaintiffs were not entitled to fees and costs because: (1) their motion was untimely; and (2) they
failed to dismiss their complaints as required by the earlier notice of
conditional settlement. After rejecting
Han’s arguments, the trial court entered the October 17, 2011 order awarding
plaintiffs $95,680.09 in attorney fees and $10,444.25 in costs.
In
his appeal from the October 17 order, Han contends, as he did below, that the
order is invalid because the motion for fees and costs was untimely and the
complaint was not dismissed as required by the earlier notice of conditional
settlement. The record fails to support
either contention.
Turning
to the issue of timeliness, we observe that under rule 3.1702, a motion for
fees and costs must be filed within the time for filing a notice of
appeal. Where, as in this case, there is
no indication that the judgment (or notice of its entry) was mailed by the
clerk or served by either party, the notice of appeal must be filed within 180
days after the date of entry of judgment.
(Rule 8.104.) The judgment in
this case was entered on Wednesday, January 5, 2011. The 180th day fell on Sunday, July 3, 2011,
which was a holiday and therefore excluded from the 180-day period. (Code Civ. Proc., §§ 10, 12a.) Because the following day, Monday, July 4,
2011, was also a holiday, the 180-day period was extended to Tuesday, July 5,
2011. The motion, which was filed on
July 5, 2011, was timely.
Han’s
remaining contention is that plaintiffs failed to dismiss their complaints as
required by the notice of conditional settlement. We reject this contention because the notice
of appeal from the October 17, 2011 order does not encompass the January 5,
2011 judgment for the reasons previously discussed. In any event, the contention lacks
merit. According to the January 21, 2010
notice of settlement, the parties had conditioned the dismissal of the case on
the satisfactory completion of specified items that would not be completed
within 45 days. Given that the case was
not dismissed within the appointed time, we infer in favor of the judgment that
dismissal was not entered because the necessary conditions were not
fulfilled. (Denham v. Superior Court, supra,
2 Cal.3d at p. 564.)
The orders
are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
WILLHITE,
J.
name="_ftn1" title="">[1] As
defendants do not challenge the trial court’s factual findings concerning the
Labor Code violations, we will not discuss them in this opinion.
name="_ftn2" title="">
[2] All
further rule references are to the California Rules of Court.
