Newstart Real Estate Investment LLC v. Huang

Filed 7/3/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

NEWSTART REAL ESTATE B292417
INVESTMENT LLC,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC502938)

v.

JACK HUANG,

Defendant and Respondent.

APPEAL from orders of the Superior Court of Los Angeles
County. Edward B. Moreton, Judge. Affirmed.

Gary Hollingsworth for Plaintiff and Appellant.

No appearance for Defendant and Respondent.
_______________________

* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts 1 and 3 of the Discussion.
 Plaintiff New Start Real Estate Investment LLC appeals
from three postjudgment orders thwarting its attempts to collect
on a judgment against defendant Jack Huang, also known as
Ming Shan Huang, and imposing sanctions against it. These
rulings were based on the trial court’s conclusion there was no
enforceable judgment, because the court had granted defendant’s
motion for a new trial of punitive damages. Plaintiff contends
the part of the judgment awarding compensatory damages was
enforceable despite the order granting a new trial of punitive
damages. We affirm.
BACKGROUND
A jury awarded plaintiff $1,620,000 in compensatory
damages, and $280,000 in punitive damages in its action against
defendant (and others not relevant to this appeal), and judgment
was entered in plaintiff’s favor on January 3, 2018. After entry of
judgment, defendant successfully moved for a new trial of
punitive damages. The court granted defendant’s motion “subject
to denial if Plaintiff accepts a reduction to $10,000.”
Plaintiff did not accept the court’s proposed reduction of
punitive damages to $10,000, and therefore punitive damages
were to be retried. No date for retrial was set, however, because
plaintiff appealed the order granting a new trial.1
After the court’s ruling on the new trial motion, plaintiff
sought to enforce the judgment. On March 14, 2018, plaintiff
obtained a writ of execution from the clerk of the superior court
for the entire judgment (including the punitive damages award).
In May 2018, plaintiff also served subpoenas for production of
business records upon several banks at which defendant held

1 That appeal is pending before this court, case No. B289513.

2
accounts. Additionally, plaintiff sent levy instructions to Bank of
America, and accounts held by defendant’s wife and son were
levied. In June 2018, plaintiff sought orders requiring defendant
and others to appear for judgment debtor examinations.
Defendant vigorously opposed plaintiff’s efforts to enforce
the judgment. Defendant filed claims of exemption with the
sheriff’s department, supported by declarations from his wife and
son testifying that the money in the levied accounts belonged
only to them.
Defendant also objected to the subpoenas for production of
business records, and demanded plaintiff withdraw them. In
June 2018, defendant filed a motion to quash the subpoenas,
arguing that the order granting the new trial motion had vacated
the judgment. Defendant sought sanctions against plaintiff for
its efforts to enforce the judgment. A hearing on the motion was
calendared for September 20, 2018.
On August 7, 2018, defendant filed a motion to quash the
writ of execution, again seeking sanctions against plaintiff.
Plaintiff opposed the claims of exemption, and the claims
were set for hearing on August 23, 2018. In his reply to plaintiff’s
opposition, defendant again requested sanctions for plaintiff’s
repeated efforts to enforce the judgment despite the grant of a
new trial of punitive damages.
At the August 23, 2018 hearing on the claims of exemption,
the trial court found there was no enforceable judgment and
ordered the sheriff to instruct Bank of America to release the
levied funds immediately. The court declined to impose
sanctions. The proceedings were not reported, and no settled or
agreed statement appears in the record on appeal.

3
 The hearing on defendant’s motion to quash the writ of
execution was held on August 30, 2018. The proceedings were
reported, and a transcript was included in the record on appeal.
The trial court observed that “the issue here is essentially the
same that was presented on the motion heard in this case on
August 23rd; that is, can judgment be enforced when a motion for
a new trial has been granted as to part of it. And so my
conclusion is going to be the same, and that is that it cannot.”
The court declined to award sanctions. However, the court did
caution plaintiff that it was inclined to award sanctions in the
future if plaintiff persisted with its efforts to enforce the
judgment.
On August 31, 2018, plaintiff filed a notice of appeal,
appealing the August 30, 2018 order. (Case No. B292417.)
That left for resolution defendant’s third motion, to quash
the subpoenas for production of business records. On
September 14, 2018, plaintiff’s counsel filed a declaration with
the court, stating that plaintiff had taken its scheduled judgment
debtor examinations off calendar, and had offered to withdraw
the subpoenas, rendering the pending motion moot. However,
defendant would not agree to take the motion off calendar unless
plaintiff agreed to pay his fees and costs associated with the
motion. Plaintiff refused to pay the requested fees and costs, so
the motion remained on calendar.
The September 20, 2018 hearing on defendant’s motion to
quash the subpoenas for production of business records was not
reported, and no settled or agreed statement of what occurred at
the hearing has been included in the record on appeal. The
minute order reflects that the motion to quash was granted, and

4
the court awarded sanctions in the amount of $1,810 against
plaintiff and its counsel.
On October 1, 2018, plaintiff filed a notice of appeal from
the September 20, 2018 order. (Case No. B292969.) We
consolidated the appeals concerning the August 30 and
September 20 orders.
DISCUSSION
1. Scope of the Appeal
According to plaintiff’s appellate brief, plaintiff is appealing
the orders made on August 23, 2018, August 30, 2018, and
September 20, 2018. Plaintiff claims the August 31, 2018 notice
of appeal designated both the August 23 and August 30 orders. It
did not. The notice of appeal designated only the August 30
order.
The notice of appeal must identify “the particular judgment
or order being appealed.” (Cal. Rules of Court, rule 8.100(a)(2).)
“ ‘[W]here several judgments and/or orders occurring close in time
are separately appealable . . . each appealable judgment and
order must be expressly specified—either a single notice of appeal
or multiple notices of appeal—order to be reviewable on appeal.’ ”
(DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) Orders after a
judgment are separately appealable. (Code Civ. Proc., § 904.1,
subd. (a)(2).)
Therefore, plaintiff’s claim of error regarding the August 23
order is not cognizable on appeal. In any event, as discussed
post, the claim fails for other reasons.
2. Enforceability of Judgment
Plaintiff contends the partial granting of a new trial of
punitive damages did not vacate the entire judgment, and that
the judgment for compensatory damages was still enforceable.

5
 We review the trial court’s legal conclusions de novo. (Tom
v. City and County of San Francisco (2004) 120 Cal.App.4th 674,
678-679.) Notwithstanding the de novo standard of review, it is
still plaintiff’s duty to adequately raise and support its claims of
error in its appellate briefs. (Reyes v. Kosha (1998)
65 Cal.App.4th 451, 466, fn. 6.)
Plaintiff has cited to cases holding that a retrial of punitive
damages does not require the retrial of liability and
compensatory damages (Torres v. Automobile Club of So.
California (1997) 15 Cal.4th 771, 780; Barmas, Inc. v. Superior
Court (2001) 92 Cal.App.4th 372, 376-377). Plaintiff also cited
cases finding that an appeal from a judgment does not vacate the
judgment (see, e.g., McFarland v. City of Sausalito (1990)
218 Cal.App.3d 909, 912), and cases holding that a judgment
reversed against an unrelated codefendant remains enforceable
as to other defendants (see, e.g., Bishop v. Superior Court (1922)
59 Cal.App. 46, 49).
None of these cases controls the entirely different issue
here regarding the enforceability of a judgment for compensatory
damages after the grant of a new trial of punitive damages. (In
re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 [an
appellant must support each contention with argument and
citation to authority that demonstrates prejudice resulting from
the error].)
We are not persuaded the trial court erred. When a court
grants a partial new trial, “the new trial order has the effect of
vacating the entire judgment and holding in abeyance the
portions which are not subject to a new trial until one final
judgment can be entered.” (Beavers v. Allstate Ins. Co. (1990)

6
225 Cal.App.3d 310, 329.) Here, there was no final judgment; it
was vacated by operation of law.
And, even if the compensatory damages award remained
enforceable, plaintiff’s writ of execution sought to collect on the
entire judgment, including punitive damages, which
unquestionably had been vacated. Therefore, we can discern no
prejudicial error.
3. Sanctions
Lastly, plaintiff contends the court erred in awarding
sanctions on September 20, reasoning that plaintiff had ceased
its efforts to enforce the judgment. Sanctions generally fall
within the trial court’s discretion. (See, e.g., New Albertsons, Inc.
v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) However,
without the benefit of a reporter’s transcript or settled or agreed
statement, we cannot know the basis for the trial court’s ruling.
(Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121,
132 [failure to provide an adequate record prohibits appellate
review]; Cal. Rules of Court, rules 8.120(b)(2), (b)(3), 8.134,
8.137.) We presume that, having warned plaintiff on August 30
the court would award sanctions if plaintiff persisted in trying to
enforce a partial judgment, the court found plaintiff’s conduct
was sanctionable. Defendant agreed to stipulate to take the
motion off calendar if plaintiff paid his costs for bringing the
motion, and the trial court apparently found plaintiff’s refusal to
accept those terms was unreasonable. On this record, we cannot
say the court abused its discretion.

7
 DISPOSITION
The orders are affirmed.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

WILEY, J.

8