Filed 8/29/14 Marcisz v. Ultrastar Cinemas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LINDSAY MARCISZ et al., D063902
Plaintiffs and Respondents,
v. (Super. Ct. No. GIC820896)
ULTRASTAR CINEMAS,
Defendant and Respondent;
ROBIN A. KAY, as Personal Representative,
etc.,
Movant and Appellant;
JOHN W. DALTON et al.,
Movants and Respondents.
APPEAL from an order of the Superior Court of San Diego County,
William S. Dato, Judge. Affirmed.
Murphy, Pearson, Bradley & Feeney, Thomas J. D'Amato, Simone S. McCormick,
and David J. Gibson for Movant and Appellant.
No appearance for Defendant and Respondent.
Law Offices of Jason L. Oliver, Jason L. Oliver; Law Offices of John W. Dalton
and John W. Dalton for Plaintiffs and Respondents and for Movants and Respondents.
Attorneys John W. Dalton and Jason L. Oliver (together Dalton/Oliver) and Philip
E. Kay represented four plaintiffs in this sexual harassment case against defendant, their
former employer and two managers. A jury found in favor of plaintiffs. Plaintiffs later
appealed the ruling on defendant's new trial motion. We resolved the appeal and
remanded the matter to the trial court for further proceedings. (Marcisz v. Movie Theatre
Entertainment Group, Inc. (May 30, 2008, D047009) [nonpub. opn.].) The trial court
granted the separate motions of Kay and Dalton/Oliver for an award of attorney fees and
costs. At issue in this appeal is a nunc pro tunc order (the Order) directing that the fees
and costs awarded to Dalton/Oliver be paid by defendant directly to Dalton/Oliver.
Robin A. Kay, the personal representative of the estate of attorney Philip E. Kay
(the Estate) appeals from the Order. We reject the Estate's assertions and affirm the
Order.
FACTUAL AND PROCEDURAL BACKGROUND
Before the trial court entered the judgments, Kay filed a notice of lien stating that
under his contract with plaintiffs, he "has a lien on a portion of any and all awards,
judgments, settlement proceeds, attorney's fees and/or costs awarded or to be paid in this
case" by defendant or any other source. After we remanded this matter, Kay moved to
withdraw as counsel for plaintiffs based on a conflict with Dalton/Oliver and a
breakdown of the attorney-client relationship. The trial court granted the motion, noting
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that Kay had been suspended from the practice of law. Dalton/Oliver remained as
counsel for plaintiffs.
Kay and Dalton/Oliver filed separate motions seeking an award of attorney fees
under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.;
FEHA). Kay later suffered a cardiac arrest and passed away. The Estate sought to
continue the hearing on Dalton/Oliver's motion, stating that its fee agreement contained
"certain terms respecting the division of fees between" plaintiffs, Kay and Dalton/Oliver.
The Estate claimed it had a "financial interest" in Dalton/Oliver's fee motion and
requested that the trial court review the fee agreement in camera or hear argument
regarding limited waiver of the attorney-client privilege. The trial court denied the
Estate's request, but invited it to the hearing on the Dalton/Oliver motion to explain its
position.
In September 2012, the trial court granted Dalton/Oliver's motion for an award of
attorney fees and costs. The court's order stated that its ruling was limited to
Dalton/Oliver's fee request and that Kay's fee request would be addressed at a later date.
At the hearing on the motion, the Estate explained it had a contractual interest in any fee
award to Dalton/Oliver. The trial court sidestepped the issue, stating any contract
between Kay and Dalton/Oliver did not impact its ability to award fees under FEHA and
the Estate could pursue its contractual rights against Dalton/Oliver in a separate action.
Dalton/Oliver asked the court to order that defendant pay the fees awarded directly to
them. Dalton/Oliver envisioned the court could enter such an order that day or,
alternatively, Dalton/Oliver could make a supplemental motion for a nunc pro tunc
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modification of the court's ruling. The court acknowledged this was an "open issue" that
it needed to decide and specifically inquired whether any other language needed to be
added to make the order "final" so that Dalton/Oliver could take whatever action to
enforce the fee award. The court then set a time frame for Dalton/Oliver to make the
request and asked the Estate for something explaining why it should not enter such an
order.
Based on these discussions, Dalton/Oliver submitted a proposed nunc pro tunc
order directing that the fees and costs awarded to Dalton/Oliver be paid by defendant
directly to Dalton/Oliver. Among other things, the Estate objected to the proposed order
arguing the trial court lacked jurisdiction to order direct payment of the fees to
Dalton/Oliver because the order amounted to an improper adjudication of the Estate's
contractual rights under the fee agreements between Kay, Dalton/Oliver and plaintiffs.
The Estate argued that if the court adopted the proposed order, it would be "adjudicating
the rights of the attorneys under the fee agreements." The trial court later entered the
requested Order directing that the fees and costs awarded to Dalton/Oliver be paid by
defendant directly to Dalton/Oliver.
The trial court subsequently granted Kay's motion for an award of fees and costs
under FEHA. The Estate asserts it has since filed a lawsuit in San Francisco Superior
Court against Dalton/Oliver and plaintiffs stemming from Dalton/Oliver's demand for
direct payment of their fees, claiming this deprived the Estate of about $2,000,000 in
attorney fees. The Estate timely appealed from the Order.
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DISCUSSION
As a preliminary matter, the narrow issue before us is the propriety of the Order
directing that the fees and costs awarded to Dalton/Oliver be paid by defendant directly to
Dalton/Oliver. The Estate argues that nunc pro tunc orders are used to correct clerical or
ministerial errors not substantive errors or omissions and that the trial court lacked
jurisdiction to issue the order because it made a substantive change to the Dalton/Oliver
fee motion order.
" 'The function of a nunc pro tunc order is merely to correct the record of the
judgment and not to alter the judgment actually rendered—not to make an order now for
then, but to enter now for then an order previously made.' " (Estate of Eckstrom (1960)
54 Cal.2d 540, 544, italics omitted.) The Eckstrom's Estate court explained that "[a]
court can always correct a clerical, as distinguished from a judicial error which appears
on the face of a decree by a nunc pro tunc order. [Citations.] It cannot, however, change
an order which has become final even though made in error, if in fact the order made was
that intended to be made." (Ibid., italics omitted.)
The record shows that when the trial court issued the Order, it had not yet issued a
"final" order on Dalton/Oliver's fee request and was merely adding language to its prior
fee order to address an issue that had not yet been resolved. The court had jurisdiction to
add this language as it had not yet issued a final order on the fee request. If there was
error, it was calling the Order a "nunc pro tunc" order, rather than the final ruling on
Dalton/Oliver's fee request.
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The Estate next asserts the trial court acted in excess of its jurisdiction because the
Order interfered with a contractual dispute between it and Dalton/Oliver. We reject this
assertion as the trial court refused to look at the fee agreement and made it abundantly
clear that it was not deciding any contractual dispute as this issue should be decided in a
different action. Because the merits of the contractual dispute were not before the trial
court, we reject the Estate's argument that the trial court abused its discretion when it
granted the Order without first reviewing the fee agreement. For the same reason, we
need not address the Estate's argument that the trial court erred when it granted the Order
because Dalton/Oliver presented no authority showing direct payment to them was proper
where, as here, the fee agreement contained a provision addressing fee splitting.
As argued by the parties, we recognize that fees awarded under FEHA and fees
potentially recoverable under a contingency fee agreement are different. The Estate's
primary concern in this appeal appears to be that in issuing the Order, the trial court
decided the Estate's purported contractual right to a portion of Dalton/Oliver's FEHA
fees. It did not. The trial court declined to decide this issue, which is apparently now the
subject of a separate action.
Finally, the Estate contends that by seeking direct payment, Dalton/Oliver pursued
an act adverse to plaintiffs and defendant; thus, Dalton/Oliver was required to seek
intervention under Code of Civil Procedure section 387. Accordingly, the Estate asserts
Dalton/Oliver lacked standing to take action detrimental to plaintiffs without seeking
intervention and its failure to do so renders the Order void. " ' "[I]t is fundamental that a
reviewing court will ordinarily not consider claims made for the first time on appeal
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which could have been but were not presented to the trial court." . . . "Generally, issues
raised for the first time on appeal which were not litigated in the trial court are waived." ' "
(Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1398-1399.) Because
the Estate did not raise this issue in the trial court, it has forfeited its right to assert the
claim on appeal. Moreover, even if we exercised our discretion to consider the argument,
the current record does not support the Estate's conclusion that the actions of
Dalton/Oliver were adverse to plaintiffs and defendant.
Dalton/Oliver make a number of arguments in their respondents' brief addressing
the propriety of this appeal or whether the Estate can permissibly claim a portion of the
FEHA fees awarded directly to Dalton/Oliver. We decline to address these issues as they
are not relevant given our resolution of this appeal.
DISPOSITION
The order is affirmed. Respondents are awarded their costs on appeal.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.
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