Filed 2/23/23 Stahl Law Firm v. Apex Medical Technologies 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or
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purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
STAHL LAW FIRM et al., D079097
Plaintiffs, Cross-defendants and
Appellants,
(Super. Ct. No. 37-2010-
v. 00097839-CU-CO-CTL)
APEX MEDICAL TECHNOLOGIES,
INC., et al.,
Defendants, Cross-complainants
and Respondents;
ALICE DEPAUL et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Katherine A. Bacal, Judge. Dismissed.
Norbert Stahl for Plaintiffs, Cross-defendants and Appellants.
Arthur A. Wellman, Jr., for Defendants, Cross-complainants and
Respondents.
Norbert Stahl, doing business as Stahl Law Firm, purports to appeal
the amended judgment the superior court entered after we issued the
remittitur in a prior appeal in which we modified the judgment and affirmed
it as modified. Because the superior court took no new judicial action in
amending the judgment to include the modification we ordered in the prior
appeal and Stahl was not injured by the amendment, Stahl may not appeal
the amended judgment. We therefore dismiss the appeal.
I.
BACKGROUND
A. The Patent Infringement Action
Stahl represented Apex Medical Technologies, Inc. (Apex), and Zone
Medical, LLC (Zone), in a patent infringement action by a third party. Mark
McGlothlin signed the retainer agreement on behalf of Apex and Zone. When
McGlothlin was later added as a defendant in the action, Stahl also
represented him. The jury returned verdicts against Apex, Zone, and
McGlothlin, and awarded the third party several million dollars in damages.
The parties later settled the action and agreed to entry of a consent
judgment.
B. The Fee Action
Stahl sued Apex, Zone, McGlothlin, and two others alleged to be owners
and officers of Apex and Zone (Alice DePaul and Michael Marasco) to recover
$103,465.15 in unpaid fees for legal services he had provided in the patent
infringement action. Stahl asserted counts for breach of contract and breach
of the implied covenant of good faith and fair dealing against Apex and Zone
and common counts against Apex, Zone, McGlothlin, DePaul, and Marasco.
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Apex, Zone, and McGlothlin cross-complained against Stahl for
damages for professional malpractice and breach of fiduciary duty in his
representation of them in the patent infringement action.
The action proceeded to a jury trial. Stahl moved for a nonsuit on the
cross-complaint, which the superior court granted on the professional
malpractice count and denied on the breach of fiduciary duty count. The jury
returned verdicts against Stahl on the complaint and the cross-complaint,
and awarded Apex, Zone, and McGlothlin damages of $156,192.60,
$52,064.20, and $312,385.20, respectively. The court entered judgment in
conformity with the verdicts, and later awarded respondents costs and Apex
and Zone attorney fees.
C. Prior Appeals
Stahl appealed the judgment and claimed the damages awarded to
Apex, Zone, and McGlothlin had to be vacated as a matter of law based on the
allegations of damages in the cross-complaint, the trial court’s nonsuit ruling,
and the jury’s findings. We held the jury properly awarded as damages to
Apex and Zone the attorney fees they had paid Stahl in the patent
infringement action, but the award to McGlothin was improper because he
personally had paid no fees. We also rejected Stahl’s claim that the award of
costs had to be vacated, noting that all respondents had prevailed on his
complaint. We therefore modified the judgment by striking the $312,385.20
in damages the jury awarded McGlothlin and affirmed the judgment as
modified. (Stahl Law Firm v. Apex Medical Technologies, Inc. (Aug. 26, 2020,
D072906) [nonpub. opn.].)
Stahl also appealed the order awarding Apex and Zone attorney fees
incurred in the fee action. We affirmed. (Stahl Law Firm v. Apex Medical
Technologies, Inc. (Aug. 26, 2020, D073155) [nonpub. opn.].)
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In neither appeal did Stahl file a petition for review with the Supreme
Court of California.
D. Post-Remittitur Events
After we issued the remittitur in the appeal of the judgment, the
superior court issued a minute order on November 2, 2020, stating: “The
Court has received and reviewed the remittitur filed 10/28/20 and takes the
following action: [¶] Damages of $312,385.20 previously awarded to Mark
McGlothlin are stricken.” The clerk crossed out on the judgment the amount
of damages awarded to McGlothlin; inserted “0” above the crossed-out figure;
and in an adjacent blank space wrote, “Damages of $312,385.20 awarded to
Mark McGlothlin stricken per 11/2/20 minute order.”
After we issued the remittitur in the appeal of the attorney fees order,
the superior court issued a minute order on November 2, 2020, stating: “The
Court has received and reviewed the remittitur filed 10/28/20 and takes no
further action.”
E. Current Appeal
Stahl filed a notice of appeal from the judgment as amended on
November 2, 2020. In his opening brief, he “requests that all damages, costs
and interests [sic] awarded to McGlothlin, Apex and Zone by the Superior
Court in the Judgment be vacated and set at $0, so that the sole relief is the
amount in attorney’s fees awarded.” Stahl argues that after the prior appeal
of the judgment, McGlothin obtained no relief on the cross-complaint, and
therefore Stahl is the prevailing party entitled to costs. As to Apex and Zone,
Stahl argues the damages awarded are not supported by the evidence and are
inconsistent with the jury’s findings.
Respondents filed a request for judicial notice and augmentation of the
record by which they ask us to consider portions of the reporter’s transcripts
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from the prior appeal of the judgment. We deny the request because
consideration of the materials is neither necessary nor helpful to our
resolution of the appeal. (Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809,
819.)
When we reviewed the record and the parties’ briefs, questions arose
about our jurisdiction to consider the appeal. We solicited and obtained from
the parties letter briefs on whether the amended judgment is appealable and
whether Stahl has standing to appeal it.
II.
DISCUSSION
We first must decide whether we have jurisdiction to consider Stahl’s
appeal. (See Olson v. Cory (1983) 35 Cal.3d 390, 398 [appellate court must
determine jurisdiction on its own motion].) Stahl argues the amended
judgment is appealable and he has standing to appeal because the superior
court entered a new judgment that aggrieved him by striking the damages
the jury had awarded McGlothlin but erroneously leaving intact a provision
of the judgment stating, “Judgment shall be, and hereby is, entered, in favor
of cross-complainants [Apex, Zone, and McGlothlin], and against cross-
defendant [Stahl] on the cause of action for breach of fiduciary duty in the
cross-complaint.” Respondents argue the amended judgment is not
appealable because Stahl has raised only issues that were or could have been
raised in the prior appeal of the judgment, in amending the judgment the
superior court took no new action that could be challenged on a second
appeal, and Stahl has no standing to appeal because the amendment did not
injure him. As we shall explain, respondents have the better of this
argument.
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We begin with the jurisdictional rules applicable to this appeal.
Jurisdiction over a direct appeal requires an appealable judgment or an
appealable order. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th
688, 696; Kirk v. Ratner (2022) 74 Cal.App.5th 1052, 1060.) Jurisdiction also
requires a party with standing, i.e., a party who is injured by the judgment or
order in a direct and substantial way. (Dow v. Lassen Irrigation Co. (2022)
75 Cal.App.5th 482, 487-488 (Dow); Conservatorship of Gregory D. (2013)
214 Cal.App.4th 62, 68.) Thus, unless the amended judgment is appealable
and Stahl has standing to appeal, we have no jurisdiction and must dismiss
the appeal. (Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759,
769; In re Marriage of Tushinsky (1988) 203 Cal.App.3d 136, 143.)
The judgment as amended on November 2, 2020, is not appealable.
The right to appeal is wholly statutory (Sanchez v. Westlake Services, LLC
(2022) 73 Cal.App.5th 1100, 1105), and a judgment is appealable by statute
(Code Civ. Proc., § 904.1, subd. (a)(1)). Case law nevertheless has imposed
limits on appealability of judgments that have already been appealed. Our
Supreme Court held nonappealable a judgment the superior court had
entered in compliance with directions given in a prior appeal, and dismissed
an appeal from the judgment. (Heinlen v. Beans (1887) 73 Cal. 240, 241.)
The Supreme Court reasoned: “When this court, upon appeal, affirms the
judgment of the court below, or directs the entry of a specific judgment, and
such judgment is entered by the lower court as directed, the litigation is over
and the case ended.” (Ibid.) Citing Heinlen, the Court of Appeal held
nonappealable a judgment the superior court had amended to include a
modification ordered in a prior appeal, and dismissed an appeal from the
amended judgment. (Shank v. Blackburn (1923) 61 Cal.App. 577, 579, 582
(Shank).) The Court of Appeal reasoned: “When the original judgment of the
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superior court was modified by the district court of appeal and affirmed as
modified, the litigation was over and the case was ended.” (Id. at pp. 579-
580.) The situation here is the same as that in Shank: after the remittitur
issued, the superior court amended the judgment to include the modification
we ordered in the prior appeal of the judgment by striking the damages
awarded to McGlothlin. Thus, under Shank the amended judgment is not
appealable.
Stahl contends he is entitled to a second appeal because the judgment
as amended by the superior court continues to state judgment was entered in
favor of McGlothlin and against Stahl on the breach of fiduciary duty count in
the cross-complaint, and that statement is false in light of our modification of
the judgment. The current appeal, says Stahl, is his first opportunity to
address that error in the amended judgment and therefore should be allowed
to proceed. We disagree.
Any second appeal from a judgment entered after a prior appeal “is
limited to questions arising from the action of the trial court which were not
involved in the prior appeal, such as whether the judgment entered by the
trial court complied with the directions of the appellate court.” (Overstreet v.
Butte County (1962) 57 Cal.2d 504, 507.) McGlothlin’s entitlement to a
judgment against Stahl for breach of fiduciary duty was involved in the prior
appeal, where we held McGlothlin was not entitled to any damages against
Stahl and modified the judgment by striking the jury’s award of $312,385.20
in damages. Although we did not direct the superior court to amend the
judgment by striking out that award, in doing so the court did nothing
inconsistent with our disposition of the prior appeal. There was no need for
the superior court also to amend the judgment by deleting McGlothlin as a
party in whose favor judgment was entered against Stahl on the cross-
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complaint. The clear legal effect of the modification we ordered, which the
superior court correctly implemented by amending the judgment to reduce
McGlothlin’s damages award to $0, was to determine that McGlothlin was
not entitled to a judgment against Stahl on the breach of fiduciary duty count
of the cross-complaint. (See Slovensky v. Friedman (2006) 142 Cal.App.4th
1518, 1534-1536 [client not entitled to judgment against attorney for breach
of fiduciary duty that caused client no damage]; Christ v. Schwartz (2016)
2 Cal.App.5th 440, 446, 456 [superior court properly entered judgment for
defendant when defendant conceded negligence but jury awarded plaintiffs
$0 in damages].) “It is an ancient axiom that the law regards the substance
of the words used rather than their form (Civ. Code, § 3528) and this rule is
applied in construing the effect of judgments.” (Schisler v. Mitchell (1959)
174 Cal.App.2d 27, 29.) “Accordingly, in effectuation of the [court’s] clearly
manifested intent, we should ignore those words,” i.e., that judgment is
entered in favor of McGlothlin and against Stahl on the cross-complaint, “just
as if they had been physically deleted from the decree.” (Verdier v. Verdier
(1953) 121 Cal.App.2d 190, 192.)
In arguing he is entitled to a second appeal, Stahl also asserts that by
amending the judgment to delete McGlothlin’s $312,385.20 damages award,
the superior court “ ‘substantially change[d] the judgment’ ” and did not
“ ‘simply correct[ ] a clerical error.’ ” (Torres v. City of San Diego (2007)
154 Cal.App.4th 214, 222; CC-California Plaza Associates v. Paller &
Goldstein (1996) 51 Cal.App.4th 1042, 1048.) Though correct, Stahl’s
characterization of the superior court’s action does not lead to the conclusion
the amended judgment is appealable. By amending the judgment as it did,
the superior court performed no judicial act that was not involved in the prior
appeal; the court merely performed ministerial acts to conform its records to
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this court’s judicial action in deciding the prior appeal. No appeal lies from
an amended judgment that does not “involve[ ] the exercise of a judicial
function or judicial discretion” by the superior court. (Nestlé Ice Cream Co.,
LLC v. Workers’ Comp. Appeals Bd. (2007) 146 Cal.App.4th 1104, 1109.) “[I]f
the trial court has taken no action, we have nothing to review.” (Pazderka v.
Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 667 [judgment
entered by clerk on acceptance of offer to compromise is not appealable].)
Stahl insists the superior court “did take new action in the form of two
Minute Orders, both of which issued on November 2, 202[0], after the last
appeal.” Stahl identified neither minute order in his notice of appeal,
however, and only the order striking the damages awarded to McGlothlin
took any action. We could liberally construe the notice of appeal to include
that minute order, which was entered on the same day as the amended
judgment identified in the notice of appeal and relates to the amendment.
(Cal. Rules of Court, rule 8.100(a)(2); Barriga v. 99 Cents Only Stores LLC
(2020) 51 Cal.App.5th 299, 321.) But doing so would not help Stahl because
the order is not appealable.
An order made after an appealable judgment is appealable. (Code Civ.
Proc., § 904.1, subd. (a)(2).) “Despite the inclusive language of Code of Civil
Procedure section 904.1, subdivision [(a)(2)], not every postjudgment order
that follows a final appealable judgment is appealable.” (Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin).) To be appealable,
“the issues raised by the appeal from the order must be different from those
arising from an appeal from the judgment.” (Ibid.; accord, In re Marriage of
Deal (2022) 80 Cal.App.5th 71, 78.) “ ‘The reason for this general rule is that
to allow the appeal from [an order raising the same issues as those raised by
the judgment] would have the effect of allowing two appeals from the same
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ruling and might in some cases permit circumvention of the time limitations
for appealing from the judgment.’ ” (Lakin, at p. 651.) Allowing Stahl to
appeal the minute order would violate this rule, because in the current
appeal Stahl attacks the judgment on grounds that were raised and rejected
in the prior appeal, namely, that the damages awards were inconsistent with
the jury’s findings and that respondents were not entitled to costs. Under
Lakin, then, the minute order striking McGlothlin’s damages award is not
appealable.
Whether we consider the appeal taken from the amended judgment or
from the corresponding minute order, there is another jurisdictional defect:
Stahl’s lack of standing. Only a “party aggrieved” by a judgment or order has
standing to appeal it. (Code Civ. Proc., § 902; see In re K.C. (2011) 52 Cal.4th
231, 236; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736; Dow,
supra, 75 Cal.App.5th at pp. 487-488.) A party is aggrieved if the judgment
or order injures the party’s rights or interests in an immediate and
substantial way. (K.C., at p. 236; County of Alameda, at p. 737; Dow, at
p. 488.) By amending the judgment to strike the $312,385.20 in damages the
jury had awarded McGlothlin, the superior court did not harm Stahl; it
benefitted him by reducing his liability to McGlothlin on the cross-complaint
to $0. In light of that reduction, the court’s failure also to delete McGlothlin
from the list of parties identified as entitled to judgment against Stahl on the
cross-complaint did not injure him “in an immediate and substantial way.”
(K.C., at p. 236; cf. Shoemaker v. Goldman (1934) 2 Cal.App.2d 229, 231
[rejecting defendants’ challenge to jury award of $1 in damages to plaintiff
“upon principle that de minimis non curat lex”].) Stahl’s contention the
failure to make that deletion deprived him of his right to recover costs from
McGlothlin as the party prevailing on the cross-complaint has no merit. As
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we held in the prior appeal, McGlothlin was entitled to costs because he
prevailed on Stahl’s complaint. (See Code Civ. Proc., § 1032, subd. (a)(4)
[prevailing party includes “a defendant where neither plaintiff nor defendant
obtains any relief”]; McLarand, Vasquez & Partners, Inc. v. Downey Savings
& Loan Assn. (1991) 231 Cal.App.3d 1450, 1454 [“when neither the plaintiff
nor the defendant who has filed a cross-complaint prevails, the defendant is
the prevailing party entitled to costs”].) Therefore, the amendment of the
judgment and the corresponding minute order were in favor of Stahl, and he
may not appeal them. (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947;
Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1611.)
Finally, we note Stahl’s recourse for his apparent dissatisfaction with
our resolution of the prior appeal of the judgment was to file a petition for
review in the Supreme Court of California. (Cal. Const., art. VI, § 12,
subd. (b); Cal. Rules of Court, rule 8.500(a)(1); Safaie v. Jacuzzi Whirlpool
Bath, Inc. (2011) 192 Cal.App.4th 1160, 1171.) But he did not do so. Stahl
may not bypass that process and appeal the amended judgment or the
corresponding minute order and thereby obtain what in effect would be a
second appeal of the original judgment. (Lakin, supra, 6 Cal.4th at p. 651;
Shank, supra, 61 Cal.App. at pp. 579-580.)
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III.
DISPOSITION
The appeal is dismissed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
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Stahl Law Firm v. Apex Medical Technologies CA4/1
Combined Opinion