Filed 8/25/26 Soltanabadi v. Aminpour CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
AHMAD EDDIE SOLTANABADI, B337756
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No. 20STCV28542)
ATAOLLAH AMINPOUR et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, William F. Fahey, Judge. Affirmed.
Farivar Law Firm, Fahim Farivar; Ross, Peter W. Ross, Ira
Bibbero and Steven B.F. Stiglitz for Plaintiff and Appellant.
Kashfian & Kashfian, Robert A Kashfian, Ryan D.
Kashfian and Eric W. Wang for Defendants and Respondents.
____________________________
INTRODUCTION
After having judgment entered against him for
approximately $4.86 million in a business dispute, Ahmad
Soltanabadi turned around and sued persons and entities
involved in that same business: Ataollah Aminpour, Michael
Aminpour, Daniel Aminpour, MD Management 55, Inc., and 522
Canon LLC (collectively, respondents). After Soltanabadi
obtained a judgment in that second lawsuit of approximately
$2.17 million in his favor, respondents acquired by assignment
the earlier judgment against Soltanabadi and sought to offset it
against the later judgment against them.
The trial court granted respondents’ motion under Code of
Civil Procedure1 section 724.050 to offset the two judgments. In
doing so, the court rejected Soltanabadi’s argument that his
attorney’s fee lien in the second case was entitled to priority over
the offset claim.
Soltanabadi now appeals the court’s offset ruling. His
arguments lack merit and we therefore affirm. In making his
arguments, Soltanabadi’s attorney Fahim Farivar repeatedly
misrepresents the record.2 Given their repeated nature, as well
as Farivar’s failure to acknowledge them, these
misrepresentations are not the result of innocent mistake but
sanctionable misconduct. We accordingly impose sanctions on
1 Unspecified statutory references are to the Code of Civil
Procedure.
2 Soltanabadi substituted in Ross LLP as his counsel after
the appellate briefing was complete. The sanctionable conduct
was committed by Farivar as part of the briefing he submitted,
and our criticisms are not directed at Ross LLP or its attorneys.
2
Farivar of $5,000 payable in equal part to respondents and this
court.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Spirit Lawsuit and Judgment
We begin by describing the judgment which respondents
later acquired by assignment and successfully moved to offset
against Soltanabadi’s judgment against them.
On April 3, 2017, Spirit SPE Portfolio CA C-Stores, LLC
(Spirit) sued SB Gas and Wash Management, Inc. (SB Gas) and
Soltanabadi in the Los Angeles County Superior Court to recover
rent and other charges due under leases. The claims arose from
transactions in which SB Gas had leased gas station properties
from Spirit and in which Soltanabadi had personally guaranteed
certain SB Gas lease payment obligations. (Spirit SPE Portfolio
CA C-Stores, LLC v. SB Gas and Wash Management, Inc. et al.
(case No. BC656516).)
On March 28, 2018, Spirit obtained a judgment (the Spirit
judgment) against Soltanabadi for $4,860,831.27 and against SB
Gas for $1,240,308.40.3
3 There was an overlap of $100,171.81 in the judgments
against Soltanabadi and SB Gas representing attorney’s fees for
which they were jointly and severally liable. Soltanabadi’s
opening appellate brief represents that he filed a voluntary
bankruptcy petition in April of 2024 and in July 2024 he was
discharged from pre-petition liabilities, including the Spirit
judgment. We disregard this claim as no bankruptcy-related
filings are included in the record. Even if this were true,
Soltanabadi fails to provide any cogent argument about any
impact this discharge would have on the issues before us.
3
B. Soltanabadi’s Lawsuit Against Respondents
On July 29, 2020, Soltanabadi sued respondents4 alleging
that he and Ataollah Aminpour5 entered into a joint venture in
which he “contributed funds, and a number of businesses, . . . and
[Ataollah] contributed his purported expertise” and “handle[d] all
of the day-to-day finances of the [j]oint [v]enture.” Soltanabadi
alleged that Ataollah, with the help of the other defendants
(members of Ataollah’s family and companies he and his family
controlled), misappropriated and diverted the income and assets
of the joint venture. Soltanabadi alleged the joint venture
engaged in two types of business—operation of gas stations
through SB Gas and operation of fast food restaurants through
several Illinois companies. Soltanabadi also alleged that
Ataollah and his family members defrauded Soltanabadi in
personal transactions. Soltanabadi asserted various claims,
including for intentional and negligent misrepresentation, breach
of contract, and conversion, and sought various types of relief,
including compensatory damages and an accounting.
Consistent with Spirit’s allegations in its prior lawsuit,
Soltanabadi alleged that SB Gas leased gas stations from Spirit
and he had personally guaranteed some of SB Gas’s payment
obligations under the leases. Soltanabadi further alleged “SB
Gas performed poorly and below expectations under [Ataollah’s]
management . . . and . . . [Ataollah] funneled hundreds of
thousands of dollars from SB Gas,” which led to, among other
4 Nasrin Aminpour was also named as a defendant but is
not a party to this appeal.
5 We refer to Ataollah Aminpour by his first name for
clarity and the reader’s ease, and not out of any disrespect.
4
things, Soltanabadi agreeing to the personal guaranty.
Soltanabadi alleged that SB Gas later arranged for Spirit’s gas
stations and other properties to be sold to a third party and that
Ataollah diverted money SB Gas received from the transaction
for his own use and failed to pay various taxes, which
Soltanabadi ultimately had to pay.
Soltanabadi was represented in his 2020 lawsuit by Farivar
Law Firm, APC (Farivar). Under their retainer agreement, dated
June 3, 2020, Farivar was to be paid hourly rates plus a
contingency fee of either 40 or 50 percent, depending on the
amount of the recovery.
C. Soltanabadi and Respondents Stipulate to Settle
their Lawsuit and an Accounting is Conducted
Pursuant to the Settlement
On August 20, 2021, Soltanabadi and respondents
stipulated to settle the second lawsuit. Under the settlement, a
neutral forensic accountant would analyze the relevant financial
transactions and opine as to the net amounts owed. The parties
could file objections to the accountant’s report, and the trial court
would make a final determination and enter judgment
accordingly.
The forensic accountant issued a final report on April 10,
2023, concluding that respondents owed Soltanabadi
$2,553,567.34.6
6 This net amount was based on the accountant’s
conclusions that respondents owed Soltanabadi $4,267,756.30
and Soltanabadi owed respondents $1,714,188.96.
5
D. Respondents File a Notice of Lien Based on an
Assignment of the Spirit Judgment
On August 14, 2023, respondents filed a notice of lien based
on an assignment to them of the Spirit judgment; the assignment
had been executed earlier that month.
E. The Court Determines the Amount of the Judgment
On August 18, 2023, the court held a hearing on the
parties’ objections to the forensic accounting report and found
that Soltanabadi was entitled to judgment in the amount of
$2,172,180.22.
F. Respondents File a Motion to Offset the Spirit
Judgment against Soltanabadi’s Anticipated
Judgment; the Court Denies the Motion
On October 3, 2023, respondents filed a non-statutory
motion to offset the Spirit judgment against Soltanabadi’s
anticipated judgment. The court denied the motion on
October 25, 2023, concluding the motion was premature and
respondents could only seek an offset through a procedure
established by statute.
G. The Trial Court Enters Judgment
On December 8, 2023, the trial court entered judgment in
favor of Soltanabadi for $2,172,180.22 (the second judgment).
The second judgment was apportioned among respondents as
follows: $1,827,593.57 to MD Management 55 Inc., $152,978 to
Ataollah, $43,010.51 to Michael Aminpour, $74,817.80 to Daniel
Aminpour, and $73,780.34 to 522 Canon LLC.
6
H. Respondents File a Motion under Section 724.050 to
Offset the Spirit Judgment against the Second
Judgment
On January 5, 2024, respondents filed a motion under
section 724.050 to compel Soltanabadi to file an acknowledgment
of satisfaction of judgment based on their claim the second
judgment was fully satisfied by offsetting against it the larger
Spirit judgment. As relevant here, section 724.050 provides a
procedure for a judgment debtor to demand the judgment creditor
file an acknowledgment of satisfaction of judgment where “a
money judgment has been satisfied” and, where the judgment
creditor fails to do so, to apply to the court for an order requiring
the judgment creditor to comply with the demand. (§ 724.050,
subds. (a)(1), (b) & (d).)
Respondents adduced evidence that, on August 15, 2022,
Spirit assigned the Spirit judgment to an LLC which in turn
assigned the judgment to respondents in August 2023.7
Respondents also adduced evidence that they had demanded
Soltanabadi file an acknowledgment of satisfaction of judgment
but Soltanabadi refused on the ground “[t]he [second] judgment
has not been satisfied.”
Anticipating that Soltanabadi would contend Farivar’s fee
lien had priority over the Spirit judgment, respondents contended
the Spirit judgment had priority because it was issued before
Farivar’s fee lien came into existence. Respondents also
contended the Spirit judgment had priority because it arose from
a transaction which was also involved in Soltanabadi’s lawsuit.
7 Respondents also adduced evidence that notices of the
assignments were filed and served in the Spirit lawsuit.
7
Respondents relied on Pou Chen Corp. v. MTS Products (2010)
183 Cal.App.4th 188 (Pou Chen) where the court stated, “ ‘ “[T]he
general rule is that while an attorney’s lien is subordinate to the
rights of the adverse party to offset judgments in the same action
or in actions based upon the same transaction, it is nevertheless
superior to any right to offset judgments obtained in wholly
independent actions.” ’ ” (Id. at p. 194.) Respondents asserted
that Soltanabadi had previously conceded the same transaction
was involved in both the Spirit lawsuit and his own later lawsuit.
In addition to offset, respondents sought attorney’s fees
under section 724.080 and a $100 penalty under section 724.050
for Soltanabadi’s failure to acknowledge satisfaction of judgment
“without just cause.”
I. Soltanabadi’s Opposition to the Section 724.050
Motion
As relevant here, Soltanabadi opposed respondents’ offset
motion on the following grounds. He first contended that the
motion was an improper attempt to obtain relief the court had
previously denied, pointing to the court’s denial of respondents’
prejudgment non-statutory motion for offset. Soltanabadi next
argued that his judgment had not in fact been satisfied so there
was no basis to compel him to file an acknowledgment of
satisfaction under section 724.050. Soltanabadi also challenged
the assignment of the Spirit judgment, claiming it was “invalid,”
it was unclear whether the assignment “was made properly and
for what consideration,” and its terms were “vague and uncertain,
as it [did] not establish how the Spirit [j]udgment [was] being
apportioned between each of the [n]amed [a]ssignees.”
Soltanabadi contended that Farivar held a fee lien on the
second judgment which became effective when he and Farivar
8
entered their retainer agreement in June 2020, and which
therefore had priority over the Spirit judgment, which was
entered in 2018 but acquired by respondents after the attorney
fee lien was created. Soltanabadi asserted that respondents’
argument that the Spirit judgment had priority because it was
based on the same transaction as involved in Soltanabadi’s
lawsuit “only applies if the set[]off is granted” and, thus, did not
apply because the court had denied respondents’ prejudgment
non-statutory setoff motion.
Lastly, Soltanabadi asserted the court should deny offset
because respondents had unclean hands, contending among other
things that “[t]he Spirit [j]udgment itself arose from
[respondents’] wrongdoings and misappropriation of funds from
[Soltanabadi’s] entities, which were the subject of this [c]ase and
the [a]ccountant’s [r]eport.” According to Soltanabadi, he
“alleged that [Ataollah] induced him into a personal guaranty of
the rent increases due to Spirit from SB Gas, the consequence of
which [was] the over $4 million judgment [respondents] [were
then] looking to enforce against [Soltanabadi].”
J. The Trial Court’s Ruling on the Section 724.050
Motion
At the outset of the hearing on respondents’ section 724.050
motion, the court announced its tentative decision to grant the
motion. As relevant here, the court indicated that section
724.050 “appl[ies] where a judgment debtor can establish an
offset by a judgment in a greater amount,” Soltanabadi’s
argument that the assignment was invalid was unsupported by
any authority, and under Pou Chen Farivar’s fee lien was
“subordinate to the rights of an adverse party to an offset for a
9
judgment in the same transaction where that judgment predates
the attorney lien.”
On behalf of Soltanabadi, Farivar argued during the
hearing that Pou Chen was distinguishable because the Spirit
judgment resulted from “a different case,” “a case that occurred in
2017 by Spirit, a different party unrelated to this case.” At one
point during the hearing Farivar repeated the concession in the
motion briefing that Soltanabadi’s case and the Spirit case were
“based on the same transactions,” but then sought to backtrack
after appearing to apprehend the upshot of that concession,
asserting, “[the Spirit] judgment is from a completely different
case, different parties, . . . arising from a different set of
transactions.”
The court rejected the attempted flip-flop, stating that
Soltanabadi had made “a crystal clear concession” in his written
opposition that the two cases involved the same transactions. At
the conclusion of the hearing, the court adopted its tentative
ruling as the final ruling. In addition to offsetting the two
judgments, the court awarded respondents $11,081.50 in
attorney’s fees and a $100 penalty under section 724.050.
Soltanabadi moved for reconsideration of this order under
section 1008. That reconsideration motion also contended that
the court should grant relief under section 473, subdivision (b) for
Farivar’s alleged mistakes in conceding the relatedness of the two
actions and in failing to make certain other arguments when
opposing the offset motion. The trial court denied these requests,
stating Soltanabadi had failed to identify any new facts or law
which could provide a basis for relief under section 1008, and
relief was not available under section 473, subdivision (b) for the
alleged mistakes. The court also found that Soltanabadi had
10
“[o]n multiple occasions . . . identified or . . . admitted judicially
in [his] papers that the Spirit [j]udgment was based on the same
series of transactions as are found in this case,” but was “taking a
wholly opposite position” in his reconsideration motion.
Soltanabadi timely appealed. Although his notice of appeal
lists both the section 724.050 order and the order denying his
motion for reconsideration, his briefing does not include any
reasoned argument regarding the latter. It does not discuss the
elements a party must meet to be eligible for relief under sections
1008 or 437, subdivision (b), nor does it provide any cogent
analysis of how he purportedly met those elements. Accordingly,
we deem his challenge to the court’s order denying
reconsideration abandoned (Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852) and address only the court’s
section 724.050 ruling.
DISCUSSION
A. Applicable Law and Standard of Review
“[T]he offset of judgment against judgment is a matter of
right absent the existence of some facts establishing an equitable
principle precluding it.” (Salaman v. Bolt (1977) 74 Cal.App.3d
907, 919.) The party opposing offset has the burden of
establishing facts to show offset would be inequitable. (Margott
v. Gem Properties, Inc. (1973) 34 Cal.App.3d 849, 854.)
A trial court’s decision whether equitable principles
preclude offset is “subject to an exercise of its equitable powers”
and, thus, “the only issue before us on this appeal is whether [the
trial court’s] discretion was so abused that it resulted in a
manifest miscarriage of justice.” (Wm. R. Clarke Corp. v. Safeco
11
Ins. Co. of America (2000) 78 Cal.App.4th 355, 358-359 [motion
for setoff under § 724.050].)8
“[I]t is a fundamental principle of appellate procedure that
a trial court judgment is ordinarily presumed to be correct and
the burden is on an appellant to demonstrate, on the basis of the
record presented to the appellate court, that the trial court
committed an error that justifies reversal of the judgment.”
(Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) “ ‘In the
absence of a contrary showing in the record, all presumptions in
favor of the trial court’s action will be made by the appellate
court.’ ” (Id. at p. 609.)
B. Section 724.050 Empowers a Court to Determine a
Judgment has been Satisfied through Offset
Soltanabadi first contends that section 724.050
“presupposes an actually satisfied judgment” and cannot be
utilized to compel acknowledgment of satisfaction “where no
payment has occurred.” He provides no authority or analysis to
support this claim, and the law is clearly to the contrary.
Under section 724.050, a “judgment debtor . . . may serve
. . . on the judgment creditor a demand in writing that the
judgment creditor . . . [¶] . . . [f]ile an acknowledgment of
8 We recognize that Pou Chen and Brienza v. Tepper (1995)
35 Cal.App.4th 1839 both involved issues similar to those before
us but applied a de novo standard of review, based on their
apparent conclusion that those questions were solely ones of law.
(Pou Chen, supra, 183 Cal.App.4th at p. 192; Brienza, supra, at
p. 1843.) Given that a trial court, in deciding whether to order an
offset, must balance competing equitable considerations, we
apply the abuse of discretion standard articulated in Wm. R.
Clarke Corp.
12
satisfaction of judgment with the court.” (Id., subd. (a)(1).)
Where the judgment creditor fails to comply and the judgment
debtor files a motion to compel, “If the court determines that the
judgment has been satisfied and that the judgment creditor has
not complied with the demand, the court shall either (1) order the
judgment creditor to comply with the demand or (2) order the
court clerk to enter satisfaction of the judgment.” (Id., subd. (d).)
The Legislature adopted section 724.050, along with the
other provisions in the Enforcement of Judgments Law (§ 680.010
et seq.), based on a recommendation of the California Law
Revision Commission, and the commission’s notes are thus
entitled to great weight in interpreting the statute. (Union Bank
of California v. Superior Court (2004) 115 Cal.App.4th 484, 488.)
Those notes indicate that “[s]ection 724.050 provides a means
whereby the judgment creditor can be compelled to file an
acknowledgment of satisfaction of judgment in any case where a
money judgment has been satisfied, whether pursuant to a writ,
by payment, offset, or other means.” (16 Cal. Law Revision Com.
com. (1982) p. 2106, italics added.) The statute’s legislative
history makes “clear that a motion to compel the
acknowledgment of satisfaction . . . is an appropriate means of
claiming . . . an offset against [an] outstanding judgment.”
(Passanisi v. Merit-McBride Realtors, Inc. (1987) 190 Cal.App.3d
1496, 1513).
In accord with the statute, cases have recognized that
section 724.050 can be utilized where a judgment has not been
paid in money but has been satisfied by some sort of offset. (See,
e.g., Wade v. Schrader (2008) 168 Cal.App.4th 1039, 1048 [offsets
for settlements by codefendants; “a motion to compel
acknowledgment of satisfaction of a judgment (§ 724.050, subd.
13
(d)) . . . is an entirely acceptable procedure for balancing
offsetting judgments”]; Quintana v. Gibson (2003) 113
Cal.App.4th 89, 94 [the defendant and his liability insurer sought
to apply an offset based on a worker’s compensation lien the
insurer had acquired].)9
C. The Trial Court Did Err in Determining that
Farivar’s Fee Lien Did Not Have Priority Over the
Spirit Judgment for Purposes of Offset
Soltanabadi next contends that the trial court erred in
offsetting the Spirit judgment against the second judgment
because Farivar’s fee lien had priority over the Spirit judgment.
He relies upon a statement in Pou Chen that “ ‘ “while an
attorney’s lien is subordinate to the rights of the adverse party to
offset judgments in the same action or in actions based upon the
same transaction, it is nevertheless superior to any right to offset
judgments obtained in wholly independent actions.” ’ ” (Pou
Chen, supra, 183 Cal.App.4th at p. 194.)10 Under this rule,
9 Soltanabadi also contends that respondents failed to
timely invoke section 431.70, which allows a defendant to assert
in its answer “the defense of payment” based on “cross-demands
for money” between the parties. But the procedure established in
section 724.050 does not require a party to invoke section 431.70.
Soltanabadi provides no analysis or authority supporting the
proposition that a party must plead a defense under section
431.70 to invoke section 724.050.
10 Applying this rule, Pou Chen concluded two attorney fee
liens were not superior to the right of offset because the two
judgments resulted from cross-actions involving the same series
of transactions. (Pou Chen, supra, 183 Cal.App.4th at pp. 191-
192.)
14
Soltanabadi argues, “[t]he ‘Spirit’ judgment is a separate action
with no adjudicated same-transaction finding,” and “the trial
court made no finding of transactional identity and could not on
this record.”
Soltanabadi has forfeited this argument, as he did not
present it to the trial court in opposing respondents’ section
724.050 motion. “ ‘ “ ‘ “No procedural principle is more familiar to
this Court than that a constitutional right,” or a right of any
other sort, “may be forfeited in criminal as well as civil cases by
the failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it.” ’ ” ’ ” (Keener v. Jeld-Wen,
Inc. (2009) 46 Cal.4th 247, 264.) Respondents’ section 724.050
motion argued that under Pou Chen the Spirit judgment had
priority over Farivar’s fee lien for purposes of offset, and in
opposition Soltanabadi contended that such an argument would
apply only “if the set off is granted” which could not happen
because the court had denied respondents’ prejudgment offset
motion. He did not make the argument he now seeks to advance.
Soltanabadi argues, “Any suggestion of waiver is incorrect”
and claims “[his] opposition did cite Cetenko v. United California
Bank (1982) 30 Cal.3d 528, Pangborn Plumbing Corp. v.
Carruthers & Skiffington (2002) 97 Cal.App.4th 1039,[ and]
Brown v. Superior Court[] (2004) 116 Cal.App.4th 320, etc., and
clearly argued that his attorney’s lien was senior and could not be
cut off by [respondents’ claimed] offset.” This claim is
demonstrably untrue. Soltanabadi’s opposition to the section
724.050 motion did not cite Pangborn Plumbing Corp. or Brown.
It did cite Cetenko, but only for the proposition that Farivar’s fee
lien was effective even though no notice of the lien had been
given and no judgment had been entered on the lien. Soltanabadi
15
did argue in his trial court opposition that Farivar’s lien had
priority over other liens, but that is an entirely different
contention; respondents’ claim was based on offset, and not on a
judgment lien or any other type of lien.11
Even if Soltanabadi had not forfeited this argument, it fails
on the merits. The trial court stated that the Spirit judgment
and the second judgment “arose from the same transactions” and
that Farivar had “concede[d] that these events all are
interrelated.” The court’s findings are supported by substantial
evidence that Spirit’s judgment against Soltanabadi was
premised on his personal guaranty of SB Gas’s lease obligations
and Soltanabadi was suing respondents for having diverted funds
from SB Gas and inducing him to provide the personal guaranty.
Based on these findings, the court did not abuse its discretion in
11 Although his written opposition in the trial court made
no such claim, Soltanabadi did argue during the hearing on the
section 724.050 motion that Pou Chen was distinguishable
because the Spirit judgment resulted from “a different case” and
involved “different parties.” Even were we to consider
Soltanabadi to have properly raised these arguments in the trial
court by doing so only at oral argument, they are unavailing. Pou
Chen does not require that the two judgments arise from the
same case, only that the cases be “ ‘ “based upon the same
transaction” ’ ” and not be “ ‘ “wholly independent actions.” ’ ”
(Pou Chen, supra, 183 Cal.App.4th at p. 194.) Furthermore,
Soltanabadi’s appellate brief misrepresents that in Pou Chen “the
offset was between the exact same two parties who were opposing
each other in one litigation (each had a judgment against the
other).” Not true. The judgment debtor in Pou Chen was not a
party to the cross-action which resulted in the judgment which it
later acquired by assignment and was permitted to offset against
the other judgment. (Id. at pp. 191-192.)
16
concluding the Spirit judgment and the second judgment arose
from the same transactions. (See Pou Chen, supra, 183
Cal.App.4th at p. 194.)
In his appellate briefing, Soltanabadi simply asserts that
the Spirit judgment and his judgment “are not based on the same
transaction or occurrence,” and he fails to provide any cogent
analysis of this bald claim. Instead, he adopts an ostrich-like
head in the sand approach, feigning unfamiliarity with the Spirit
judgment, stating “by its name and size, [the Spirit judgment]
appears to involve a lease from a company/entity named ‘Spirit’
or related to Spirit, entirely separate.” That does not suffice to
demonstrate error.
Soltanabadi alternatively contends that even if the second
judgment and the Spirit judgment arose from the same
transaction, the trial court still retained discretion to deny offset.
(See Crasnick v. Marquez (2016) 248 Cal.App.4th Supp. 1, 7
[“where the judgments used as setoff [are] rendered in different
courts in different actions, albeit ones involving the same subject
matter and parties, the right to setoff is not absolute”].)
Soltanabadi has forfeited this argument because he did not
present it to the trial court in opposing respondents’ section
724.050 motion. (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at
p. 264.) As the party opposing offset, it was Soltanabadi’s burden
to establish that offset would be inequitable. Yet Soltanabadi
offered no argument in his trial court opposition why, under
equitable principles, Farivar’s lien should have been granted
priority over the Spirit judgment.12 Furthermore, the trial court
12 In his appellate reply brief, Soltanabadi contends that
the facts here are analogous to those in Brienza v. Tepper, supra,
17
considered and rejected Soltanabadi’s arguments that
respondents had unclean hands and the assignment of the Spirit
judgment was improper or ineffective, and Soltanabadi gives us
no reason to second guess the trial court’s determination.
D. The Purported Priority of Farivar’s Fee Lien over
Other Liens Is Irrelevant
Soltanabadi contends Farivar’s fee lien was “ ‘first in time’
relative to any subsequent judgment liens that creditors [might]
later acquire on that recovery.”13 He further argues “that [his]
attorney’s lien (created in 2020) had priority over [r]espondents’
judgment lien (created in 2023).” Soltanabadi also relies on Civil
Code section 2897, which provides, “Other things being equal,
different liens upon the same property have priority according to
the time of their creation . . . .”
35 Cal.App.4th 1839. Soltanabadi has also forfeited this
argument because he did not present it to the trial court in
opposing respondents’ section 724.050 motion (Keener v. Jeld-
Wen, Inc., supra, 46 Cal.4th at p. 264) and for the additional
reason that he failed to raise it in his opening brief in this court
(see Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295,
fn. 11 [“Obvious reasons of fairness militate against consideration
of an issue raised initially in the reply brief of an appellant”]).
13 An attorney’s fee lien is established by contract and is
created when the contract is entered. (Cetenko v. United
California Bank, supra, 30 Cal.3d at pp. 531, 534.) “Unlike a
judgment creditor’s lien, which is created when the notice of lien
is filed [citation], an attorney’s [fee] lien is a ‘secret’ lien; it is
created and the attorney’s security interest is protected even
without a notice of lien.” (Carroll v. Interstate Brands Corp.
(2002) 99 Cal.App.4th 1168, 1172.)
18
These arguments are irrelevant. Although respondents did
at one point file a notice of judgment lien, the trial court’s order
did not rely on that lien and instead permitted respondents to
offset the Spirit judgment against the second judgment through
section 724.050. As respondents did not obtain any recovery or
offset by way of their lien, the supposed priority of Farivar’s lien
over that of other liens is immaterial.
E. Soltanabadi Has Forfeited Any Claim the Trial Court
Acted in Excess of its Jurisdiction
Soltanabadi contends the trial court erred in ruling on
respondents’ section 724.050 motion because it had “no
jurisdiction to determine the validity or enforceability of”
Farivar’s fee lien. He relies on the rule that “the trial court in the
underlying action has no jurisdiction to determine the existence
or validity of an attorney’s lien on the judgment.” (Carroll v.
Interstate Brands Corp., supra, 99 Cal.App.4th at p. 1173; accord,
Brown v. Superior Court, supra, 116 Cal.App.4th at p. 328.) As
the Carroll court explained, “[a]fter the client obtains a
judgment, the attorney must bring a separate, independent
action against the client to establish the existence of the lien, to
determine the amount of the lien, and to enforce it.” (Carroll, at
p. 1173). “[B]ecause the attorney is not a party to the underlying
action and has no right to intervene, the trial court acts in excess
of its jurisdiction when it purports to determine whether the
attorney is entitled to foreclose a lien on the judgment.” (Ibid.)
Respondents contend that Soltanabadi has forfeited this
jurisdictional claim because he did not raise it in his opposition to
the section 724.050 motion. We agree. The claim is subject to
forfeiture because it does not involve the trial court’s
fundamental jurisdiction, but only an act in alleged excess of
19
jurisdiction. “[A] trial court does not lack fundamental
jurisdiction to adjudicate contractual liens in the underlying
action because ‘adjudication of [contractual] lien claims is clearly
within the general subject matter jurisdiction of the superior
court.’ [Citation.] ‘The jurisdictional issue is whether the court
[in the underlying action] act[s] in excess of its jurisdiction by
adjudicating [contractual] liens . . . .’ [Citation.] ‘ “Unlike some
other jurisdictional defects, a party may, by its conduct, be
estopped from contesting an action in excess of jurisdiction.” ’
[Citation.] Thus, when the parties to an action allow the trial
court to adjudicate a contractual lien in the underlying case
without objection, that adjudication—although in excess of the
court’s jurisdiction—is nonetheless valid.” (Brown v. Superior
Court, supra, 116 Cal.App.4th at p. 332.)
Soltanabadi contends he “did raise [this] jurisdictional
issue” by citing Brown in his opposition to the section 724.050
motion. This is another false statement. In opposing the section
724.050 motion, Soltanabadi did not cite Brown or any other case
addressing the jurisdictional argument he now seeks to assert.14
He has therefore forfeited the claim. (Keener v. Jeld-Wen, Inc.,
supra, 46 Cal.4th at p. 264.)
14 Soltanabadi did raise the jurisdictional argument and
cite Brown in his motion for reconsideration. This does not make
the claim in his opening brief that he cited Brown “[i]n opposing
the motion” as well as “again at reconsideration” true. The
citation to Brown in the reconsideration motion does not assist
Soltanabadi because, as already stated, he has failed to provide
any argument on appeal as to how the trial court erred in
denying reconsideration and we deem his appeal from that ruling
to have been abandoned.
20
If we were to address Soltanabadi’s jurisdictional
argument, we would reject it. As respondents point out, “[their
section] 724.050 motion did not seek to foreclose, adjudicate,
invalidate, or expunge any attorney lien. It sought
acknowledgment and satisfaction of [Soltanabadi’s] judgment by
offsetting it against the earlier Spirit [j]udgment.” Although the
offset had the effect of depleting Soltanabadi’s judgment so that
there was no money left from which Farivar could satisfy his lien,
the trial court did not rule that Farivar’s lien was invalid or
unenforceable. Soltanabadi contends, “[r]espondents . . .
effectively filed an application for satisfaction of their judgment
lien” (italics added). Not so. A party seeking to have a judgment
lien satisfied from a judgment must follow the procedure
established in section 708.470. Here, respondents sought a
different remedy—offset—and utilized the separate procedure
established in section 724.050 to obtain an order effecting the
offset.
F. Soltanabadi Has Forfeited his Additional Claims
Soltanabadi argues that the trial court “deprived [Farivar]
of his property interest in the judgment without due process.”
Soltanabadi did not raise this issue in the trial court and has
therefore forfeited the claim. (Keener v. Jeld-Wen, Inc., supra, 46
Cal.4th at p. 264.)
Soltanabadi also argues that the assignment of the Spirit
judgment was invalid. He raised this appellate argument for the
first time in his reply brief and has therefore forfeited it.
(Varjabedian v. City of Madera, supra, 20 Cal.3d at p. 295,
fn. 11.)
Finally, to the extent Soltanabadi contends that the parties’
settlement encompassed his liability under the Spirit judgment,
21
he has forfeited the claim because he did not address it in his
opening brief. (Varjabedian v. City of Madera, supra, 20 Cal.3d
at p. 295, fn. 11.)15
G. Soltanabadi’s Motion to Augment
We deny as moot Soltanabadi’s motion to augment the
record on appeal with certified copies of the transcripts of the two
hearings which are already included in the reporter’s transcript.
Soltanabadi sought to include the certified copies in the record
because he utilized the pagination from those copies, but he
remedied the problem by filing a notice of errata. Augmentation
is therefore unnecessary.
H. Respondents’ Motion for Sanctions
Respondents filed a motion for sanctions against
Soltanabadi and Farivar under California Rules of Court, rule
8.276 and section 907, contending Soltanabadi’s appeal is
frivolous and his opening brief violates the California Rules of
Court in several ways, such as omitting material facts,
misrepresenting the record, and incorrectly citing to the oral
record. We gave notice we were considering imposing sanctions
and Farivar filed an opposition.
We “may impose sanctions . . . on a party or an attorney for:
[¶] . . . [t]aking a frivolous appeal or appealing solely to cause
delay; [¶] . . . [¶] . . .[or] [¶] . . . [c]ommitting any other
unreasonable violation of [the California Rules of Court].” (Cal.
15 Respondents have moved to strike portions of
Soltanabadi’s reply brief that raise arguments such as these that
were not included in the opening brief. We deny the motion as
moot. As we have disregarded arguments made for the first time
in the reply brief, we need not also strike them.
22
Rules of Court, rule 8.276(a)(1), (4).) Under section 907, if we
conclude “the appeal was frivolous or taken solely for delay, [we]
may add to the costs on appeal such damages as may be just.”
Although Soltanabadi’s appellate arguments lack merit, his
appeal was not frivolous. “[A]n appeal should be held to be
frivolous only when it is prosecuted for an improper motive—to
harass the respondent or delay the effect of an adverse
judgment—or when it indisputably has no merit—when any
reasonable attorney would agree that the appeal is totally and
completely without merit.” (In re Marriage of Flaherty (1982) 31
Cal.3d 637, 650.) “Counsel and their clients have a right to
present issues that are arguably correct, even if it is extremely
unlikely that they will win on appeal. An appeal that is simply
without merit is not by definition frivolous and should not incur
sanctions.” (Ibid.) Furthermore, “the power to punish attorneys
for prosecuting frivolous appeals . . . should be used most
sparingly to deter only the most egregious conduct.” (Id. at
pp. 650-651.) Respondents fail to show that Soltanabadi has
pursued this appeal solely for purposes of harassment or delay.
Nor can we conclude that all of Soltanabadi’s legal arguments so
blatantly lack merit that they meet the high bar for sanctions for
a frivolous appeal.
But we do conclude that Farivar has unreasonably violated
the California Rules of Court. Under California Rules of Court,
rule 8.204(a)(2)(C), an appellant must “[p]rovide a summary of
the significant facts limited to matters in the record.” An
appellant violates this obligation by “present[ing] ‘facts’ not
supported by or contrary to the record.” (Evans v. Cornerstone
Development Co. (2005) 134 Cal.App.4th 151, 166.) As noted in
our discussion of the merits, and as pointed out by respondents in
23
their motion, Farivar’s appellate briefing contains false
statements about the record to deceptively assert certain claims
were raised before the trial court (and, thus, not forfeited) when
in fact the opposite is true, namely, his present appellate claims
regarding Pou Chen and the trial court’s alleged lack of
jurisdiction. These false statements needlessly increased the
time and effort expended by both respondents and this court to
address the issues in this appeal. Given their intentional
deceptive nature, and that Farivar’s opposition to the sanctions
motion fails to acknowledge these misrepresentations (which
respondents’ motion for monetary sanctions identified), sanctions
are appropriate both to punish Farivar’s conduct and to deter its
repetition.16
Accordingly, we impose sanctions of $5,000 against Fahim
Farivar, $2,500 of which is payable to respondents and $2,500 to
the clerk of this court.
DISPOSITION
The trial court’s orders granting respondents’ section
724.050 motion and denying Soltanabadi’s reconsideration
motion are affirmed. Soltanabadi’s counsel Fahim Farivar shall
pay sanctions in the amount of $5,000 ($2,500 to respondents,
and $2,500 to the clerk of this court) within 30 days after the
remittitur is filed. Farivar and the clerk of this court are directed
16 The other defects respondents identify in Soltanabadi’s
opening brief do not merit monetary sanctions. We also reject
respondents’ request that we impose monetary sanctions payable
to them equaling the entirety of the costs and fees they incurred
in responding to Soltanabadi’s appeal as it bears no relation to
the actual sanctionable conduct.
24
to forward a copy of this opinion to the California State Bar
within 60 days. (Bus. & Prof. Code, §§ 6068, subd. (o)(3); 6086.7,
subd. (a)(3); Cal. Rules of Court, rule 10.1017(a).) Respondents
are awarded their costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
BENDIX, Acting P. J.
M. KIM, J.
25
