Judge: Anne Richardson, Case: 19STCV27360, Date: 2023-09-08 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 19STCV27360    Hearing Date: September 8, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff/Cross-Defendant Afshin Moghavem, Inc. (“AMI”) sued Defendant/Cross-Complainant Dollar Shave Club, Inc. (“DSC”) pursuant to claims pleaded in its Second Amended Complaint, including breach of contract and misrepresentation claims.

DSC filed a Cross-Complaint against AMI alleging (1) Declaratory Judgment as to the monies owed to AMI for work performed, (2) Declaratory Judgment as to AMI’s entitlement to the milestone award, and (3) Declaratory Judgment relating to alleged fraud by DSC to AMI.

The Court entered judgment after cross motions for summary judgment on November 15, 2022 with notice of entry of judgment on November 16, 2022.

On November 30, 2022, DSC filed a memorandum of costs with the court seeking $136,997.58 in costs and expenses from AMI.

On December 1, 2022, AMI filed its own memorandum of costs, later amending it to seek $119,340.47 in costs and expenses from DSC.

On December 16, 2022, AMI filed the motion to strike or tax costs from DSC’s November 30, 2022 memorandum of costs.

On December 20, 2022, DSC filed its own motion to strike or tax costs from AMI’s December 1, 2022 amended memorandum of costs.

On January 23, 2023, AMI filed a notice of appeal against the Court’s October 24, 2022 ruling and judgment.

On March 1, 2023, DSC opposed AMI’s motion to strike or tax costs.

On March 7, 2023, AMI replied to DSC’s March 1st opposition.

On March 14, 2023, the Court ruled on AMI’s motion to strike or tax costs, finding, in relevant part, that DSC had been the prevailing party in this action.

On April 3, 2023, DSC filed a proposed amended judgment.

On April 20, 2023, the Court entered the amended judgment, which adjudges DSC to be the prevailing party in this action.

On July 13, 2023, AMI opposed DSC’s motion to strike or tax costs.

On July 19, 2023, DSC replied to AMI’s July 13th opposition.

The Court ruled on the motion on July 26, 2023, and on its own, vacated the April 20, 2023 amended judgment as impermissible during the pendency of AMI’s appeal. (Code Civ. Proc., § 916, subd. (a), emphasis added; see In re Anna S. (2010) 180 Cal.App.4th 1489, 1499 [The “filing of a notice of appeal deprives the trial court of jurisdiction of the cause and vests jurisdiction with the appellate court until the reviewing court issues a remittitur”]; see also Vosburg v. Vosburg (1902) 137 Cal. 493, 496 [“[S]ection 916, when triggered, generally divests the trial court of the ‘“power to amend or correct its judgment …”’”].)

The parties requested further briefing, which the Court allowed. The matter is now before the Court.

The April 20, 2023 Amended Judgment Shall Remain Vacated

Nothing in the parties’ submissions to the Court alter its conviction that the Amended Judgment should remain vacated. It is true, as the Court itself noted in its prior ruling and as noted by Dollar Shave Club in its supplemental submission, that this Court retains jurisdiction to amend the judgment for the limited purpose of including a dollar amount for costs and attorneys’ fees so long as the original judgment had provided for such costs and fees. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369.)  However, here, the Court did not merely add in a number. Rather, here, the proposed Amended Judgment would indicate that a particular party was the prevailing party entitled to costs and fees. The prior November 15, 2022 Judgment was silent on that point and did not make any determination of prevailing party status or entitlement to fees and costs.

For this reason, the proposed amended judgment does not consist of adding in mere collateral matters and none of the cases cited by Dollar Shave Club address this very different situation. The proposed amended judgment modifies the original appealed judgment by including a finding that was not previously addressed; indeed, the parties very much disagreed as to who was the prevailing party. Accordingly, the Court finds that it lacks jurisdiction to modify the judgment pending the appeal which was filed between the date of the original judgment and the date of the proposed amended judgment. (See People v. Bhakta (2008) 162 Cal.App.4th 973, 981 [trial court acted in excess of jurisdiction by adding to a judgment, after a party had filed a notice of appeal from the judgment, that “’[a]ny future costs relating to enforcement and/or modification of the [j]udgment shall also be recoverable’”].)

The Court believes it is far preferable to deal with this potential problem now rather than erroneously amend a judgment which would itself be subject to a subsequent appeal. The Court’s other orders remain in place, but the Amended Judgment which was signed on April 20, 2023, will remain vacated.

Conclusion

In light of the January 23, 2023 appeal by AMI, the Court VACATES the April 20, 2023 amended judgment.