Judge Daniel M. Crowley, Case Number: BC414854, Date: 2024-12-02 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDEPT71@lacourt.org. Do not click on the email address, either copy and paste it or type it into your email. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.

            If you elect to argue your matter, you are urged to do so remotely, via Court-Connect. If the moving party fails to appear and/or submit to the Court’s tentative ruling, the Court will take the matter off calendar.

            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.

If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.

Judgment Debtors Sina Akhtarzad (“Sina”), Amey Enterprise, Inc. (“Amey Enterprise”), Kourosh Akhtarzad (“Kourosh”), Yousef Akhtarzad (“Yousef”), Shirin Akhtarzad (“Shirin”), and Shahpar Akhtarzad (“Shahpar”) (collectively, “Judgment Debtors”) move to strike Judgment Creditors 8451 Melrose Property, LLC’s (“8451 Melrose”) and Jack Simantob’s (“Simantob”) (collectively, “Judgment Creditors”) Memorandum of Costs After Judgment, Acknowledgement of Credit, and Declaration of Accrued Interest (“Memorandum of Costs”). (Notice Motion, pg. 2; C.C.P. §685.070.)

Judgment Debtors move on the grounds that the numbers and calculations set forth in the Memorandum of Costs are in direct violation of the orders entered by the bankruptcy court in Sina’s Chapter 11 bankruptcy case, and the Memorandum of Costs improperly seeks to impose the interest accrued on the original judgment against Judgment Debtors when they were complete strangers to said judgment. (Notice Motion, pg. 2.)

C.C.P. §916 provides that, “[e]xcept as provided in Sections 917.1 . . . the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order.” (C.C.P. §916(a).) Where a money judgment is at issue, the perfecting of appeal requires posting of an undertaking on appeal. (C.C.P. §917.1.)

“The purpose of the automatic stay provision of section 916, subdivision (a), is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided.” (Cunningham v. Magidow (2013) 219 Cal.App.4th 298, 304.) “In determining whether a matter is embraced in or affected by the appeal, [the trial court] must consider the appeal and its possible outcomes in relation to the proceeding and its possible results.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189; see also In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381 [“[W]hether a matter is ‘embraced’ in or ‘affected’ by a judgment [or order] within the meaning of [section 916] depends on whether post-judgment [or post-order] proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal.”].)

Judgment Debtor’s motion is continued to February 25, 2024, at 8:30 AM to be heard on the same day as Judgment Creditors’ motion for attorneys’ fees.

Judgment Debtors have perfected their appeal by posting the corrected undertaking on appeal in the amount ordered by the Court. Judgment Debtors’ Notice of Appeal states that their appeal involves both the Court’s June 11, 2024, order granting Judgment Creditors’ motion to add Judgment Debtors to the Judgment and the July 17, 2024, Amendment of Judgment.

The instant motion to tax costs requires this Court to rule on issues embraced by the appeal. “[W]hile an appeal from a judgment is pending, [the trial court] has no power to amend or correct its judgment.” (Shay v. Chicago Clock Co. (1896) 111 Cal. 549, 552.) Any “proceedings taken after the notice of appeal was filed are a nullity.” (Davis v. Thayer (1980) 113 Cal.App.3d 892, 912.) “This is true even if the subsequent proceedings cure any purported defect in the judgment or order appealed from.” (Varian Medical Systems, Inc., 35 Cal.4th at pg. 197.) Therefore, this Court is without jurisdiction to rule on the instant motion at this juncture.

Accordingly, Judgment Debtor’s motion is continued to February 25, 2024, at 8:30 AM to be heard on the same day as Judgment Creditors’ motion for attorneys’ fees.

Judgment Debtors’ motion to tax Judgment Creditors’ Memorandum of Costs is continued to February 25, 2024, at 8:30 AM to be heard on the same day as Judgment Creditors’ motion for attorneys’ fees, pending the final resolution of the non-dischargeability action in In re Ramesh Akhtarzad and Sina Akhtarzad, U.S. Bankruptcy Court C.D. Cal. Case No. 2:11-BK-61640.

Hon. Daniel M. Crowley

Judge of the Superior Court