Filed 8/5/26 Szeto v. Chen CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
GENE SZETO,
Plaintiff, Cross-defendant, and G065926
Appellant;
(Super. Ct. No. 30-2019-
SHUN C. CHEN, 01087212)
Objector and Appellant, OPINION
v.
SUNG YI,
Defendant, Cross-Complainant,
and Respondent.
Appeal from an order of the Superior Court of Orange County,
Gassia Apkarian, Judge. Reversed and remanded.
Law Offices of Shun C. Chen and Shun C. Chen for Plaintiff,
Cross-defendant, and Appellant Gene Szeto and for Objector and Appellant
Shun C. Chen.
Greenberg Glusker Fields Claman & Machtinger and Fred A.
Fenster for Defendant, Cross-complainant, and Respondent Sung Yi.
Cross-defendant Gene Szeto and his counsel appeal from an
attorney fee order. Because the trial court made the order while a different
appeal concerning that same issue was still pending and before remittitur
issued, the order is void. We therefore reverse.
FACTS
Szeto filed an unsuccessful anti-SLAPP motion to strike
defendant Sung Yi’s cross-complaint. The trial court found Szeto’s motion
was frivolous and ordered Szeto and his counsel to pay Yi $24,880 in attorney
fees. (Code Civ. Proc.,1 § 425.16, subd. (c).) The order did not include specific
factual findings to support the award.
Szeto and his counsel appealed. Although we rejected the
majority of their challenges to the fee order, we reversed and remanded
because the order failed to recite the conduct justifying the fee award. (See §§
425.16, subd. (c)(1), 128.5, subd. (c).) In our opinion, which we filed on July 2,
2025, we directed the trial court to either enter a new sanctions order in
accordance with those provisions, or in the alternative, deny sanctions. (Szeto
v. Yi (July 2, 2025, G064497) [nonpub. opn.].) We expressly did not reach the
issue of whether Szeto’s anti-SLAPP motion was frivolous. (See id. at p. 5, fn.
4.)
On July 10—before our opinion became final2 and before
remittitur issued—the trial court issued a sua sponte minute order again
awarding Yi $24,880 in attorney fees, but this time explaining why Szeto’s
1 All further statutory references are to this code.
2 See California Rules of Court, rule 8.264(b)(1) [decision becomes
final 30 days after filing].
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anti-SLAPP motion was frivolous. Remittitur issued on September 2. Szeto
and his counsel appealed the court’s order the following day.
DISCUSSION
Szeto and his counsel assert the trial court lacked jurisdiction to
act before remittitur issued. We agree.
As a general rule, the filing of a valid notice of appeal vests
jurisdiction in the appellate court until the appeal is determined and
remittitur is issued. (Stubblefield v. Superior Court (2025) 108 Cal.App.5th
675, 679−680.) Before then, “‘the trial court is divested of’ subject matter
jurisdiction over any matter embraced in or affected by the appeal.” (Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196–197; see § 916,
subd. (a).) Once “remittitur issues, the jurisdiction of the appellate court
terminates and the jurisdiction of the trial court reattaches.” (Andrisani v.
Saugus Colony Limited (1992) 8 Cal.App.4th 517, 523.)
Given these jurisdictional rules, “‘any order the lower court
makes affecting an order or judgment on appeal is null and void if made
before the remittitur issues.’ [Citation.] It makes no difference if the lower
court purports to act in accordance with the appellate court’s direction, e.g.,
the disposition of a filed opinion. Such an act exceeds the trial court’s
jurisdiction.” (People v. Superior Court (2024) 17 Cal.5th 228, 253.) “‘When, as
here, there is an appeal from a void judgment, the reviewing court’s
jurisdiction is limited to reversing the trial court’s void acts.’” (JHVS Group,
LLC v. Slate (2024) 107 Cal.App.5th 30, 35–36.)
In this case, the trial court issued its minute order explaining
why Szeto’s anti-SLAPP motion was frivolous about a week after we filed our
opinion, but six weeks before remittitur issued. Because the court lacked
jurisdiction at the time, we must reverse and remand for further proceedings.
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We do not reach Szeto’s remaining arguments about whether his anti-SLAPP
motion was in fact frivolous.
Yi asserts the order is valid because the trial court specified its
order would only take effect “on remand.” This misconstrues the language of
the order, which instead stated that the court, “on remand, enters a new
sanctions order.” The court had no jurisdiction to take any action on the
attorney fee issue at that time.
In his briefing and at oral argument, Yi insisted the trial court
had the power to act because the issuance of a remittitur is only a
“ministerial act.” The two cases he cites do not support this position, however,
and in fact the more recent of the two confirms our holding that the court
lacked jurisdiction. (See Bellows v. Aliquot Associates, Inc. (1994) 25
Cal.App.4th 426, 433 [“‘the filing of the notice of appeal deprives the trial
court of jurisdiction of the cause and vests jurisdiction with the appellate
court until issuance of a remittitur by the reviewing court’”]; Wilson v.
Nichols (1942) 55 Cal.App.2d 678, 681 [trial court had inherent power to
correct record to include copy of missing remittitur].)
DISPOSITION
The order is reversed. On remand, after remittitur has issued,
the trial court is directed to either enter a new sanctions order in accordance
with sections 425.16, subdivision (c), and 128.5, subdivision (c), or in the
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alternative, deny sanctions. Szeto and his counsel shall recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
SCOTT, J.
WE CONCUR:
MOTOIKE, P. J.
DELANEY, J.
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