Judge Layne H. Melzer, Case 2016-00848288 2022-10-13 Tentative Ruling

Judge: Layne H. Melzer, Case: 2016-00848288, Date: 2022-10-13 Tentative Ruling

DEF Kabir's Investment Corp.

Motion to Vacate

Defendant/Cross-Complainant Kabir Investment Corp. moves to vacate the Court’s recent 7/14/22 order setting aside the 12/1/17 order and reinstating the 8/18/17 Judgment. Kabir also moves to vacate the 5/5/18 attorney fee award, and requests an order that Khan return the $9,244.85 that was released to her and also that Khan’s Cross-Complaint against Kabir be dismissed.

Defendant’s motion is denied.

As this litigation dates back to 2016, it is useful to set forth the pertinent procedural history of this matter.

In 2017, a court trial was held on the Cross-Complaints. On 7/25/17, the court issued a tentative decision finding in favor of Bilkis Khan on both cross-complaints, and ordered the court clerk to release to Bilkis Khan the sum of $9,244.85 of the funds deposited with the court by interpleader. [ROA 126.]
Thereafter, the Judgment was executed on 8/18/17, and the original Statement of Decision was signed by the court and entered on 9/8/17. (ROA 148, 158.)
On 11/6/17, Kabir filed a Notice of Appeal.
On 12/1/17, the court granted Kabir’s motion to set aside and vacate the judgment, on the grounds that the judgment was erroneously entered before the statement of decision. (ROA 216.) The court also ordered: “Khan has already timely filed a proposed statement of decision, and moving party [Kabir] has already timely filed objections to same. The court will consider the proposed statement of decision and objections thereto without a hearing.” [Id.]
On 1/5/18, the court signed a new Statement of Decision, which was served on the parties that same date. (ROA 222.)
On 1/8/18, the Appellate Panel issued a Minute Order dismissing the appeal under CRC, Rule 8.842(a)(1) for failure to prosecute. (ROA 226.) The Remittitur was filed on 3/13/18. (ROA 259.)
The new Judgment was signed, filed and entered 2/16/18. Notice of Entry of Judgment filed and served 3/6/18 by Khan.
On 5/4/18, the court denied Kabir’s motion to vacate/set aside the judgment pursuant to CCP 663, and took Khan’s motion for attorney fees under submission. On 5/15/18, the court issued an order granting Khan’s motion for attorney fees in the amount of $59,755.00.
On 5/16/18, Kabir filed a Notice of Appeal appealing the 2/16/18 Judgment; on 6/18/18, Kabir filed its Abandonment of Appeal.
On 5/25/18, the court granted Khan’s motion to strike Kabir’s Memo of Costs, and denied Kabir’s motion to strike and/or tax costs.
On 6/15/18, the court denied Kabir’s motion for attorney fees.
Khan originally filed an appeal of the judgment, but later filed a notice of abandonment of that appeal. (ROA 302, 333.)
On 7/13/18, Kabir filed an appeal of the following post-trial orders: (1) the 5/15/18 order granting Khan's motion for attorney fees; (2) the 6/15/18 order denying Kabir’s motion for attorney fees; and (3) the court’s 5/4/18 order dated 5/4/18 denying Kabir’s motion to set aside and vacate the judgment. (ROA 357.)
On 8/10/18, the court denied Khan’s motion for CCP 128.7 sanctions against Kabir, as well as two motions by Kabir seeking reconsideration of the court’s 5/4/18 and 5/15/18 orders.
On 9/5/19, Kabir’s appeal was dismissed, due to failure to file an opening brief. (ROA 389.) The Remittitur was issued on 11/12/19. (ROA 390.)
On 7/14/22, the Court heard Defendant/Cross-Complainant Kabir’s motion to vacate the 2/16/18 Judgment following trial, and the subsequent 11/18/19 and 12/29/20 judgments for attorney fees. It granted the motion to vacate the 02/16/2018 judgment and attorney fees award of 9,377.50 entered on 10/22/2020 filed by Kabir. It also granted the oral motion by Khan to vacate the 12/01/2017 ruling which vacated the original judgment entered on 08/18/2017. The court held that the 08/18/2017 Judgment remains the only valid judgment and remains in effect. The hearing was continued to 08/25/2022 at 2:00 PM in Department C12, regarding the remaining issue of the validity of award of costs and attorney fees made in favor of Khan on 05/15/2018.
Thereafter, on 8/25, the Court ruled that the award of costs and attorney fees made in favor of Khan on 5/15/18 is hereby valid and in effect. (ROA 481)

Kabir continues to challenge the original 8/18/17 Judgment that was entered more than five years ago after the court trial. No evidence has been introduced that would lead this court to believe that Judgment was based on an incorrect interpretation of the law or facts, or that the court did not consider all available admissible evidence in reaching its decision. As it has now been extensively briefed, the only issue with this underlying judgment is that it was erroneously made before the statement of decision was issued. However, the court did ultimately issue a statement of decision and did fully consider the objections thereto, before entering a new judgment virtually identical to the original judgment. Given this, Kabir has not shown, nor can it show any colorable prejudice resulting from the original judgment being entered out of order.

Kabir has now had five years to challenge this Judgment, and indeed has three appeals all relating to the Judgment. Kabir failed to follow through on any of these appeals. Moreover, in recent months, Kabir has had ample opportunity to extensively brief these issues again, both in writing and during oral argument. Kabir argues in the instant motion that the court erred in granting Khan’s oral motion to vacate the 12/1/17 order and reinstate the original 8/18/17 Judgment because it was not provided the opportunity to fully brief this issue. This is disingenuous, as counsel for Kabir did not object at the hearing to the oral motion, and as indicated, has challenged the Judgment on several occasions over the past five years, never with success.

As Kabir has argued on several occasions, an appeal divests the trial court of subject matter jurisdiction to rule on any matters embraced by that appeal. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-198.) While the 2/16/18 Judgment was entered while one of Kabir’s appeals was pending, there was no appeal pending at the time the original 8/18/17 Judgment was pending.

The oral motion by Kahn, which followed the Court’s tentative ruling granting Kabir’s motion to set aside the 2/16/18 Judgment, was based on the same legal authority and legal reasoning employed by Kabir—orders/judgments made during the pendency of an appeal (and embraced by the appeal) are void for want of jurisdiction. As such, not only was the 2/16/18 Judgment void (as Kabir asserted) but so was the 12/1/17 order purporting to set aside the 8/18/17 Judgment (as Kahn asserted on parity of reasoning). As detailed above Kabir’s appeal of the 8/18/17 Judgment began on 11/16/17 (notice of appeal) and ended 3/13/18 (Remittitur).

There can be no legitimate or unfair surprise to Kabir from Kahn’s oral motion which simply asked the Court to apply Kabir’s logic (legal reasoning and authority) to the order that purported to set aside (on entirely technical grounds) the very judgment from which the appeal was taken (and while that appeal was pending). Upon application of Kabir’s own arguments one valid judgment remained: the 8/18/17 Judgment. No doubt recognizing Kabir had invited this very result, he made no objection at the hearing to the oral motion by Kahn. In substance, that motion asked the Court to rule consistently and confirm that only the 8/18/17 Judgment remained—a judgment that was a result of a full evidentiary trial and withstood an onslaught of appellate and other challenges by Kabir.

In F.P. v. Monier (2017) 3 Cal.5th 1099, the California Supreme Court addressed the implications of a Judgment being entered before a statement of decision. It held that such constituted a “harmless error,” that was not subject to reversal “absent prejudice.” (Id. at 1113.)

Here, no miscarriage of justice has been shown that would justify granting the relief that Kabir seeks. (See Id. at 1107 (“No judgment shall be set aside… for error as to any matter of pleading or procedure, unless, after an examination of the entire cause including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” [emphasis in original; internal citations omitted].)

Grasping at straws, Kabir cites to Code Civ. Proc., § 663 as the basis for his instant motion. This provides that a judgment “materially affecting the substantial rights of the party” may be set aside if it is shown that there was an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts.”

The court in Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 477, explains: “[A] motion to vacate lies only where a ‘different judgment’ is compelled by the facts found. [Citation.] A motion to vacate under section 663 may only be brought when ‘the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist.” (Internal citations omitted.)

The Court’s 7/14/22 order was not based on findings of fact. Rather, it was based on its review of the procedural history of this case and prior judicial error. Thus, § 663 is inapplicable.

Kabir additionally argues that the original statement of decision did not address the principal controverted issues pursuant to CRC, Rule 3.1590(d). This argument is untimely. As noted above, Kabir has had ample opportunity in the past five years to challenge the statement of decision, and has failed to follow through with three separate appeals.

For the court to grant Kabir’s requested relief and vacate a five-year old judgment that has already been challenged multiple times, and hold a new trial, would truly be a miscarriage of justice.

The motion is therefore denied.