Judge: Layne H. Melzer, Case: 2016-00848288, Date: 2022-08-25 Tentative Ruling

Dft. Kabir'S Investment Corp.
Motion to Set Aside/Vacate Judgment

Defendant/Cross-Complainant Kabir Investment Corp. (“Kabir”) filed a motion to vacate the 2/16/18 Judgment following trial, and the subsequent 11/18/19 and 12/29/20 judgments for attorney fees in favor of Defendant/Cross-Complainant/Cross-Defendant Bilkis Khan (“Khan”), which was heard on 7/14/22.

A trial was held in this matter from 7/17/17 to 7/21/17.  The Court found in favor of Khan and entered a judgment dated 8/18/17, which Kabir appealed.  Because the judgment was erroneously entered before the statement of decision was entered, the Court vacated the 8/18/17 Judgment and subsequently entered a materially identical Judgment on 2/16/18. (ROA 2/16/18.)  At this time, Kabir’s appeal that it had filed on 11/6/17 was still pending; the remittitur was not issued until 3/13/18.

As a result, on 7/14/22, the Court vacated the 2/16/18 judgment and the attorney fees award of 9,377.50 entered on 10/22/20 filed by Kabir.  The Court also vacated the 12/1/17 ruling which vacated the original judgment entered on 8/18/17, pursuant to an unopposed oral motion by Khan to which Kabir’s counsel agreed at the hearing.

Given these rulings, the 8/18/17 Judgment remains the only valid judgment in effect.

The Court finds that the award of costs and attorney fees made in favor of Khan on 5/15/18 is hereby valid and in effect.

The 8/18/17 and 2/16/18 Judgments both include the following rulings:

1. On the First Amended Cross-Complaint by Bilkis Khan, the Court finds in favor of Cross-Complainant Bilkis Khan and orders the Court Clerk to release to Cross-Complainant Bilkis Khan the sum of $9,244.85 of the funds deposited with the Court by interpleader. The Court Clerk shall make the check payable to Cross-Complainant Bilkis Khan's counsel as follows: Borchard and Callahan Client Trust Account, and mailed to Borchard & Callahan, APC, located at 25909 Pala, Suite 300, Mission Viejo, CA 92691.
2. On the First Amended Cross-Complaint by Bilkis Khan, the Court further orders that any remaining funds on deposit shall be released to Cross-Defendant Kabir's Investment Corp. The check will be made payable to Kabir's Investment Corporation, and mailed to Law Offices of Michael J. Peng, located at 1500 Rosecrans Ave., Suite 500, Manhattan Beach, CA 90266.
3. On the Cross-Complaint by Cross-Complainant Kabir's Investment Corporation, the Court finds for Cross-Defendant Bilkis Khan.
4. Cross-Complainant/Cross-Defendant Bilkis Khan shall be awarded costs and attorney's fees per motion.

The only difference is the Court’s referral to Khan “individually and as Co-Trustee of The Khan Family Trust dated 12-20-2012 and as Successor in Interest to Nadir Khan” in the 2/16/18 Judgment. 

Here, the original judgment was the only valid judgment at the time the fee award was issued, because the order vacating the original judgment was void.  The only reason that the Court ever entered a second judgment on 2/16/18 after Kabir’s appeal was dismissed, was because of a prior finding that the original judgment was erroneously entered before the statement of decision. (See 12/1/17 Minute Order.)   That second 2/16/18 Judgment, however, was void, as it was entered while the case was on appeal.  (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189; Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10.) 

Accordingly, based on the above, and based on the Court’s inherent powers under Code Civ. Proc., §§ 187 and 128(a)(8), the Court finds that the attorney fee and cost award dated 5/15/18 is in force, as it relates to the 8/18/17 Judgment.