Hume v. Hume CA1/3

Filed 6/8/22 Hume v. Hume CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JANET E. HUME,
Plaintiff and Respondent,
A161616
v.
EDWARD D. HUME, (San Mateo County
Super. Ct. No. CIV426301)
Defendant and Appellant.

The doctrine of law of the case “ ‘precludes a party from obtaining
appellate review of the same issue more than once in a single action.’ ”
(Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1153.) This principle
determines the present appeal because appellant has previously raised in
this court, and lost, the sole issue he presses here.
In 2017, Edward D. Hume filed a trial court motion to enforce a 2004
judgment that incorporated a settlement agreement between Edward and his
family, claiming that his mother Janet had breached the agreement.1 The
trial court denied the motion, finding that it was Edward rather than Janet
who had breached the settlement agreement. In 2018, Edward filed a motion
to vacate the 2004 judgment, claiming that the judgment is void for lack of

1 We use given names to distinguish between the parties.

1
jurisdiction. This motion was also denied. In 2019, both rulings were
affirmed by another panel of this court. (Hume v. Hume (Aug. 30, 2019,
A152546, A154161) [nonpub. opn.].) For our purposes, we will refer to this
prior appeal as Hume I, although it is not the first appeal arising from the
2004 judgment.2
The present appeal is from 2020 orders awarding Janet attorney’s fees
that she incurred opposing Edward’s 2017 and 2018 motions. Edward
contends the orders must be reversed because the 2004 judgment is void.
The same argument was rejected in Hume I, which we follow here in
affirming the attorney’s fees orders.
BACKGROUND
I. The 2004 Judgment and Related Appeals
In October 2002, Edward’s parents, Janet and Edward A. (parents),
filed this action against Edward after he claimed a one-third beneficial
interest in Woodside property where his parents had built their family home.
Edward filed cross-claims against his parents, two sisters and others. The
complaint and cross-complaint were dismissed with prejudice pursuant to a
settlement agreement executed in July 2004, which resolved several disputes
among the parties. The settlement agreement contains a provision stating
that the trial court “ ‘shall keep jurisdiction of this matter’ ” and that the

2 Hume I is part of the record in this appeal and the primary source of
our background summary. Pursuant to Evidence Code section 452, we take
judicial notice of the following other appellate decisions relating to the 2004
judgment: Hume v. Hume (May 31, 2005, A108674) (nonpub. opn.); Hume v.
Hume (Oct. 30, 2006, A111424) (nonpub. opn.); Hume v. Hume (Aug. 31, 2020,
A160202) (nonpub. opn.). Janet’s October 20, 2021, motion for judicial notice
of court dockets pertaining to the prior appeals in this action is denied as the
material is not relevant to our resolution of this appeal.

2
settlement agreement is enforceable under Code of Civil Procedure section
664.6 (section 664.6).3
As pertinent here, the 2004 settlement agreement vested beneficial
title and use of the Woodside property with the parents. Edward agreed that
(1) he would not transfer or encumber his one-third legal interest in the
property without the parents’ consent, (2) he would transfer two-thirds of his
interest in the property to his two adult children via a series of annual gift
transfers, and (3) interests worth $750,000 would be transferred to each of
Edward’s children by December 31, 2004. To ensure his compliance with
these obligations, Edward agreed to execute two grant deeds; a deed
transferring Edward’s “remaining interest” in the property to his parents
would be recorded if Edward encumbered the property in violation of the
agreement, and a deed transferring two-thirds of Edward’s interest to his
children would be recorded if Edward failed to make the agreed gift transfers.
In exchange for Edward’s agreement to these terms, the parents agreed to
transfer to Edward one-half of their interest in property they owned in Tustin
and to release Edward from a financial obligation pertaining to another
transaction.
In or around October 2004, the parents filed a motion to enforce the
settlement agreement after discovering that Edward transferred his entire
one-third interest in the Woodside property to his limited liability company,
Hollow Echo, LLC (the Hollow Echo transfer). In December 2004, the trial
court entered a judgment enforcing the 2004 settlement agreement. The

3 Section 664.6 provides that when “parties to pending litigation
stipulate . . . for settlement of the case, . . . the court, upon motion, may enter
judgment pursuant to the terms of the settlement. If requested by the
parties, the court may retain jurisdiction over the parties to enforce the
settlement until performance in full of the terms of the settlement.”

3
following March, the parents recorded the grant deed transferring Edward’s
interest in the Woodside property to the parents. In April 2005, the trial
court voided the Hollow Echo transfer, finding, among other things, that the
transfer was fraudulent and that it violated the 2004 settlement agreement.
In May 2005, a panel of this court dismissed Edward’s appeal from the
2004 judgment. (Hume v. Hume, supra, A108674.) The court based its
decision on the principle that a party who has accepted benefits under a
judgment that he would not be entitled to in the event of a reversal is
precluded from appealing its enforcement. (See Epstein v. DeDomenico
(1990) 224 Cal.App.3d 1243, 1246.) This waiver rule applied to Edward, the
court found, because he accepted a substantial interest in the Tustin property
as part of his settlement with his parents. (Hume v. Hume, supra, A108674.)
In October 2006, another panel of this court decided an appeal from
postjudgment orders. (Hume v. Hume, supra, A111424.) The parents
appealed orders denying as untimely their motion for attorney’s fees incurred
to enforce the 2004 judgment, and Edward filed a cross-appeal from the April
2005 order voiding the Hollow Echo transfer. The Court of Appeal affirmed
the challenged orders. (Ibid.)
II. Hume I
Edward’s father died in 2014. Approximately two years later, Edward
discovered that Janet had listed the Woodside property for sale. In June
2017, Edward filed a motion to “compel enforcement” of the 2004 judgment by
requiring Janet to record the grant deed transferring two-thirds of Edward’s
former interest in the property to his adult children. In his motion, Edward
took the position that the 2004 judgment “elevated” the terms of the
settlement agreement to the “status of Court orders,” and that the trial court
retained jurisdiction to enforce them against Janet. Edward claimed that

4
Janet had violated the settlement agreement by refusing to record the grant
deed that Edward had delivered to her in 2004, which would have transferred
two-thirds of Edward’s former interest in the Woodside property to his
children. He requested that the court exercise its retained jurisdiction to
enforce the settlement agreement by ordering the property transfer,
requiring an accounting, imposing a lien, and awarding him attorney’s fees
and costs.
In September 2017, the trial court denied Edward’s motion to compel
enforcement of the settlement agreement. The court confirmed that the
settlement agreement was reduced to a judgment in December 2004, but
found it was Edward who breached the agreement by transferring his
interest in the Woodside property to his LLC without his parents’ consent.
The court found that Edward’s breach triggered the parents’ right to record
the grant deed transferring Edward’s interest to themselves; that Edward
had been aware his breach resulted in the recording of the grant deed,
divesting him of any interest in the Woodside property; and that Edward
chose not to object for more than a decade. Under these circumstances, the
court concluded that Janet had the absolute right to sell the Woodside
property without any interference from Edward.
While Edward’s appeal from the order denying his motion to compel
enforcement was pending, Edward filed a trial court motion seeking to vacate
the 2004 judgment. In his March 2018 motion, Edward argued that the
judgment was void and subject to attack at any time because the trial court
lacked jurisdiction to enforce the settlement agreement. According to this
new argument, a provision in the settlement agreement stipulating that the
court would retain jurisdiction over the parties pursuant to section 664.6 was
ineffectual because the parties did not actually request that the court retain

5
jurisdiction until several months after their complaint and cross-complaint
were dismissed. As authority for this argument, Edward relied on Sayta v.
Chu (2017) 17 Cal.App.5th 960 (Sayta).
The trial court denied Edward’s motion to vacate for two related
reasons. First, it found that Edward was judicially estopped from suddenly
taking the position that the 2004 judgment is void after previously invoking
the “completely opposite position” that the court had jurisdiction to enforce
the settlement agreement under section 664.6. Second, the court found that
it had jurisdiction to enforce the settlement agreement under the doctrine of
law of the case because the Court of Appeal had necessarily found that the
court had jurisdiction by upholding the 2004 judgment and the 2005
postjudgment orders.
Edward appealed the order denying his motion to vacate, which was
consolidated with his pending appeal from the order denying his motion to
enforce the very same judgment. Another panel of this court affirmed both
orders in Hume I.
In affirming the order denying Edward’s motion to compel enforcement
of the judgment, the Hume I court adopted the trial court’s construction of the
settlement agreement and its straightforward application of the settlement
terms to the events that transpired. It concluded Edward had breached the
settlement agreement in 2004, entitling his parents to invoke their
contractual remedy to record the deed giving them full ownership of
Woodside, and that the prophylactic gift deed to Edward’s children thereafter
became superfluous. Based on these facts, the Hume I court affirmed that
Janet did not breach the settlement agreement by failing to record the
superfluous deed.

6
 The Hume I court also affirmed the order denying Edward’s motion to
vacate the 14-year-old judgment as void. Edward had based his motion on
Sayta, supra, 17 Cal.App.5th 960, which was a direct appeal from an order
denying a motion to enforce a settlement agreement pursuant to section
664.6. The Court of Appeal remanded that matter with directions to vacate
the order as void. The Sayta court held that the trial court lacked
jurisdiction to entertain the motion because the parties failed to request,
prior to dismissal of their action, that the court retain jurisdiction to enforce
their settlement agreement. (Id. at p. 962.)
The Hume I court found that Sayta was not dispositive. As a
preliminary matter, the Hume I court articulated the view that a delay in
asking the trial court to retain jurisdiction under section 664.6 would render
a subsequent judgment voidable rather than void, an issue that was not
addressed in Sayta. Ultimately though, the Hume I court deemed it
unnecessary to decide whether the 2004 judgment was void or merely
voidable.
The Hume I court found that because Edward filed his motion to vacate
under Code of Civil Procedure section 473, subdivision (d), the dispositive
question was whether the trial court abused its discretion by denying
Edward’s motion. (Citing e.g. Nixon Peabody LLP v. Superior Court (2014)
230 Cal.App.4th 818, 822 [holding that “even if the trial court determines the
order or judgment was void, it still retains discretion to set the order aside or
allow it to stand”].) The trial court did not abuse its discretion, the Hume I
court found, in light of the following facts: Edward accepted the benefits of
the 2004 settlement agreement; he soon breached his obligations under that
agreement; more than 10 years later, he filed a motion requesting that the
trial court “exercise its continuing jurisdiction under section 664.6 to ‘enforce’

7
his novel interpretation of the 2004 judgment under which his parents, not
he, breached the settlement in 2005”; and, after Edward’s motion was denied,
he “turned around and argued for the first time that the very same judgment
was void all along because the court never had jurisdiction to enter it.”
The Hume I court concluded that the trial court acted within its
discretion by applying the doctrine of judicial estoppel to prevent Edward
from disputing the validity of the 2004 judgment after he invoked that very
judgment as the basis for engaging in protracted litigation against his
parents. (Citing Jackson v. County of Lost Angeles (1997) 60 Cal.App.4th
171, 181 (Jackson); Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th
935, 957.) As the Hume I court put it, the trial court’s “refusal to allow
Edward to conscript the judicial system in his seemingly unending game of
‘gotcha’ was an appropriate exercise of discretion. . . . There is no conceivable
way the court’s decision exceeded the bounds of reason or resulted in a
miscarriage of justice.”4
III. The Present Appeal
In December 2019, Janet filed a motion for an award of attorney’s fees
and costs that she incurred defending against Edward’s 2017 motion to
compel enforcement of the 2004 judgment and Edward’s 2018 motion to
vacate the 2004 judgment, including Edward’s Hume I appeals.5 In February

4 Janet’s November 19, 2021, motion for judicial notice seeks judicial
notice of Edward’s appellate brief in Hume I as proof that Edward took
inconsistent positions regarding the validity of the 2004 judgment. This
request is denied because the material is not relevant to any disputed issue.
For the same reason, we deny Janet’s request for judicial notice of a 2019
grant deed transferring the Woodside property to a third party.
5 We grant Janet’s September 22, 2021, motion to augment the record
with documents pertaining to her motion for attorney’s fees that were filed in
the trial court but not included in the Clerk’s Transcript. Respondent’s

8
2020, Edward filed a motion to quash service of Janet’s motion or in the
alternative to dismiss it for lack of jurisdiction. Edward argued that the
court did not have “fundamental, or subject matter, jurisdiction” over him
because this entire action was dismissed in July 2004.
On February 27, 2020, the trial court denied Edward’s motion to quash
or dismiss the attorney’s fees motion. The court found that when the Hume I
court affirmed the order denying Edward’s motion to vacate the 2004
judgment for lack of jurisdiction, the Court of Appeal necessarily considered
and rejected Edward’s “no jurisdiction” argument. Therefore, the court
found, the determination by the Court of Appeal that the trial court had
jurisdiction after the dismissal of the underlying action was entered is now
law of the case.6
On October 9, 2020, the trial court granted Janet’s motion for
attorney’s fees in the amount of $167,044. The court found that declarations
from Janet’s counsel were sufficient to show that the number of hours spent
on the matters and the hourly rates for that work are reasonable. Moreover,
the court observed, Edward did not file “any evidence contesting the amounts
requested.”
In December 2020, Edward filed the present appeal from the attorney’s
fee order and the order denying his motion to quash (the fee orders). Janet
has filed a motion to dismiss this appeal on the ground that it is frivolous.

Appendix containing these documents is incorporated into the record on
appeal.

6 Edward filed a premature appeal from the order denying his motion
to quash, which was dismissed on the ground that the order was not final and
that any “appellate challenge to the denial of Edward’s motion . . . must await
adjudication of the fee motion.” (Hume v. Hume, supra, A160202.)

9
Edward opposes the motion to dismiss and has filed his own motion for
“summary reversal” of the fees orders, which Janet opposes. Having deferred
ruling on these motions, we now deny them and resolve this appeal on the
merits.7
DISCUSSION
Edward contends the fee orders must be reversed for lack of jurisdiction
because the 2004 judgment is void. Under the law of the case, we reject this
contention, which is the sole ground upon which Edward prosecutes the
present appeal.
Hume I holds that the doctrine of judicial estoppel bars Edward from
challenging the validity of the 2004 judgment. “The doctrine of judicial
estoppel, sometimes called the doctrine of ‘ “ ‘preclusion of inconsistent
positions’ ” ’ [citation], ‘ “ ‘precludes a party from gaining an advantage by
taking one position, and then seeking a second advantage by taking an
incompatible position. [Citations.] The doctrine’s dual goals are to maintain
the integrity of the judicial system and to protect parties from opponents’
unfair strategies.’ ” ’ ” (Blix Street Records, Inc. v. Cassidy (2010) 191
Cal.App.4th 39, 47 [applying judicial estoppel to preclude party from
disputing enforceability of a settlement agreement].) Judicial estoppel differs
from equitable estoppel in that “ ‘[t]he gravamen of judicial estoppel is not
privity, reliance, or prejudice. Rather, it is the intentional assertion of an
inconsistent position that perverts the judicial machinery.’ ” (Jackson, supra,
60 Cal.App.4th at p. 183.)

7 Janet’s September 22, 2021, motion for judicial notice of various
documents purportedly showing that Edward has a history of abusing the
judicial process is denied. The material is not relevant to a disputed issue in
this appeal.

10
 The holding in Hume I that judicial estoppel precludes Edward from
seeking to vacate the 2004 judgment applies with equal force here pursuant
to the doctrine of law of the case. Under this doctrine, “ ‘ “[t]he decision of an
appellate court, stating a rule of law necessary to the decision of the case,
conclusively establishes that rule and makes it determinative of the rights of
the same parties in any subsequent retrial or appeal in the same case.” ’
[Citation.] The doctrine ‘precludes a party from obtaining appellate review of
the same issue more than once in a single action.’ ” (Dickinson v. Cosby,
supra, 37 Cal.App.5th at p. 1153.)
The law of the case doctrine is applied properly in a case such as this
one to preclude “relitigation of an appellate decision that a court has
jurisdiction.” (Findleton v. Coyote Valley Band of Pomo Indians (2018) 27
Cal.App.5th 565, 571 (Findleton) [Indian tribe barred by law of the case from
contesting court’s jurisdiction to award attorney’s fees to opposing litigant];
see also Water Replenishment Dist. of Southern California v. City of Cerritos
(2012) 202 Cal.App.4th 1063, 1066.) Moreover “application of law of the case
extends to issues both expressly and implicitly decided that were essential to
the decision of the prior appeal.” (People v. Goodner (1992) 7 Cal.App.4th
1324, 1335, citing Olson v. Cory (1983) 35 Cal.3d 390, 399.)
Courts may decline to apply the doctrine where its application would
result in an “unjust decision.” (Morohoshi v. Pacific Home (2004) 34 Cal.4th
482, 491.) The unjust decision exception has been invoked where there was a
manifest misapplication of existing principles that resulted in “substantial
injustice,” and where an intervening decision altered or clarified a controlling
rule of law. (Id. at pp. 491–492) However, “[t]he unjust decision exception
does not apply when there is a mere disagreement with the prior appellate
determination.” (Id. at p. 492.) Because Edward has not attempted to invoke

11
the unjust decision exception, he forfeits any claim that the exception applies
in this appeal. (Findleton, supra, 27 Cal.App.5th at p. 569.)
There is authority that the law of the case doctrine applies only if the
prior decision became a final judgment. (Crossroads Investors, L.P. v. Federal
National Mortgage Assn. (2017) 13 Cal.App.5th 757, 773.) Here, Edward
filed a petition for review of the Hume I decision, which the California
Supreme Court denied on November 13, 2019. Thus, Hume I is a final
decision and the court’s holding that Edward is subject to a judicial estoppel
is the law of the case.
Edward argues that the law of the case doctrine cannot be applied in
this appeal because Hume I did not actually decide that the trial court had
“fundamental jurisdiction” to adjudicate disputes in this action. Edward
reasons that because the Hume I court did not decide whether the 2004
judgment is void or voidable, it could not have decided that the trial court
had jurisdiction to rule on his motions.
The distinction between void and voidable judgments is important in
some cases. When a court lacks fundamental jurisdiction, the resulting
judgment is void and “subject to direct or collateral attack at any time.”
(Grados v. Shiau (2021) 63 Cal.App.5th 1042, 1050–1051.) By contrast, a
voidable judgment—the result of a court acting merely in excess of it
jurisdiction—remains “valid until it is set aside as void.” (Ibid.) A voidable
judgment is not “ ‘subject to collateral attack once the judgment is final
unless “unusual circumstances were present which prevented an earlier and
more appropriate attack.” ’ ” (Ibid.)
The distinction between void and voidable judgments is not important
in this case, however, since that was not the dispositive issue in Hume I. We
agree with Edward that the Hume I court did not reject his argument that

12
the 2004 judgment is void. Instead, it entertained the possibility that the
parties’ delay in complying with section 664.6 rendered the judgment
voidable rather than void; it expressed concern that a rule rendering such
judgments void would “wreak havoc on the settled expectations of unwary
parties;” but it then stopped short of actually deciding the issue. Instead,
Hume I affirmed the trial court’s conclusion that Edward is judicially
estopped from moving to vacate the 2004 judgment, and on that basis upheld
the validity of the judgment without having to decide whether delayed
compliance with section 664.6 renders a resulting judgment void or merely
voidable. It is this judicial estoppel ruling by the Hume I court to which we
apply the law of the case doctrine. The fact that the Hume I court did not
explicitly reject Edward’s argument that the 2004 judgment should be
deemed void does not preclude application of the law of the case doctrine with
regard to the issue the Hume I court considered dispositive.
Edward peppers this court with out-of-context quotations authorizing
attacks on void judgments at any time. (Citing e.g. County of San Diego v.
Gorham (2010) 186 Cal.App.4th 1215, 1229 [default child support judgment
was void due to failure of service of process]; Andrews v. Superior Court
(1946) 29 Cal.2d 208, 214–215 [police court created by city charter did not
have subject matter jurisdiction to enter judgment against appellant for
violating juvenile court law].)
Notably, Edward does not cite any case with a procedural posture that
is at all analogous to the present case, where the parties in a civil action
(1) expressly agreed that the court would retain jurisdiction over their
settlement, (2) made a delayed request that the court confirm their
settlement agreement, which was granted, and then (3) continued to litigate
disputes arising out of the agreement for almost 20 years. In any event, the

13
issue presented by the present appeal is not whether the 2004 judgment is
void but whether Edward may relitigate that matter in this court. Edward
may not use this appeal to relitigate his claim that the 2004 judgment should
be declared void because, as we have explained, the law of the case doctrine
precludes Edward from invoking the judicial process to set aside the 2004
judgment.
Finally, we turn to the fee orders that are the subject of this appeal.
“Generally, the amount of statutory or contractual attorney fees to be
awarded is a matter within the trial court’s discretion, which we review for
an abuse of discretion. But the determination of the legal basis for an
attorney fees award is a question of law, which we review de novo.”
(Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 849, 869.)
Under our de novo review, we conclude that Janet is entitled to an
award of attorney’s fees. The settlement agreement contains a provision
stating that “[t]he prevailing party in any legal proceeding arising out of this
Agreement shall be entitled to recover its reasonable attorneys’ fees.” This
settlement agreement, which is incorporated into the 2004 judgment,
establishes the legal basis for the fee award to Janet since Edward is barred
by judicial estoppel and law of the case from moving to set aside the
judgment.
Further, we find no abuse of discretion regarding the amount of the
attorney’s fees award. The trial court found that the fees requested by Janet
were reasonable and noted that Edward did not “file[] any evidence
contesting the amount requested.” Although Edward invokes this court’s
jurisdiction to entertain his appeal from the fee orders, he does not contend
that the amount of the award is unreasonable, thus waiving any such claim.
(Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.)

14
 DISPOSITION
We affirm the orders denying Edward’s motion to quash—and then
granting—Janet’s motion for attorney’s fees. Costs on appeal are awarded to
Janet.

TUCHER, P.J.

WE CONCUR:

PETROU, J.
RODRÍGUEZ, J.

Hume v. Hume (A161616)

15