The Court of Appeal Time Machine – Interest Calculations on Modified Judgments

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Still from The Time Machine (1960)

If you obtained a judgment against your former client for over $7.7 million, and had the court of appeal knock it down to around $1.7 million, and the trial court entered judgment in that reduced amount 14 months after the date of the original judgment, you would want interest to run on the judgment — even from the reduced amount — from the date of the original judgment, right? Of course you would. After all, 14 months of interest at a simple 10% on the $1.7 million amount is nearly $200,000. That’s not pocket change. (Well, not for me, anyway.)

But in Chodos v. Borman, case no. B260326 (2d Dist. August 18, 2015), the trial court ordered that interest on the judgment was to run only from the date of entry of the later judgment entered after the original appeal. That’s $200,000 up in smoke. Chodos, the judgment creditor, appealed.

And wins. The Court of Appeal points out that whether interest runs from the date of the original judgment or the date of the later judgment depends on whether its disposition in the original appeal amounted to a reversal of the judgment (in which case interest would run from the later judgment only) or merely a modification of the judgment (in which case the interest would run from the date of the original judgment).

Well, that should be an easy question, right? After all, the court knows what it did in the last appeal. But let’s just say it was not obvious to everyone. The trial court got it wrong.

As in many areas of the law, one must look past the form of the Court of Appeal’s prior opinion and identify its substance. The court had phrased its disposition in the prior appeal as a reversal:

The judgment is reversed and the matter is remanded to the trial court with instructions to enter a new judgment based on that portion of the special verdict form that awarded the attorney a $1.8 million lodestar amount based on the jury’s finding of a reasonable hourly rate of $1,000 and a reasonable number of hours expended on the two divorce cases and the Marvin action of 1,800. As it did in the original judgment, the trial court shall make adjustments to the $1.8 million award by adding the amount of $24,921 and deducting the amount of $107,000.

Despite the use of the word “reversed,” however, the disposition was really a mere modification of the judgment. It directed the trial court to enter a judgment in favor of the original prevailing party in a reduced amount, rather than returning the case to theatrical court for any further hearings on the amount of the judgment.

Thus, appellant is able to “return” to the date of the original judgment via the Court of Appeal Time Machine, and watch the interest accrue from that date.

Judgment assignees better be careful

Last month’s decision in Cal-Western Business Services, Inc. v. Corning Capital Group, case no. B241714 (2d Dist., November 6, 2013) makes for some interesting reading and a cautionary tale for those who purchase assignments of judgments.

Corning Capital found itself on the losing end of a money judgment. The original judgment creditor assigned the judgment to Pacific West One Corp., who then assigned it to the unfortunate Cal-Western. Why unfortunate? Because Pacific West One’s corporate status was suspended at the time it gave the assignment and was never revived, and the trial court held that as a result, Cal-Western lacked capacity to enforce the judgment against Corning Capital. The Court of Appeal affirmed.

One could be forgiven for being confused by this statement of the court (my emphasis):

At the time Cal-Western filed the instant action on the Judgment four years later [after the assignment], Pacific West One’s corporate powers had not been revived and it remained a suspended corporation lacking capacity to file or maintain a suit. Therefore, because a defense based on lack of capacity to sue existed at the time of notice of the assignment and could have been asserted against Pacific West One had it brought the action itself, Cal-Western was subject to the same defense in suing to enforce the Judgment as Pacific West One’s assignee.

What is one to make of that? If the the notice of the assignment is the time when capacity is determined, then why mention that the assignor’s suspended corporate status had not been later revived? Later revival would be immaterial, unless the court is intimating that that the assignor’s revival prior to the notice of assignment would give the assignee standing that did not exist at the time of the actual assignment. Is the court doing so? That seems inconsistent with its citation to

the general rule that “`[t]he assignee “stands in the shoes” of the assignor, taking his rights and remedies, subject to any defenses which the obligor has against the assignor prior to notice of the assignment.'” (Johnson v. County of Fresno (2003) 111 Cal.App.4th 1087, 1096; see also Bliss v. California Co-op. Producers (1947) 30 Cal.2d 240, 250 [“an assignee of a chose in action is subject to all equities and defenses existing at or before the notice of the assignment“][.])

What about other scenarios? For example, if if a corporate assignor is in good standing at the time of the assignment but is suspended by the time notice of the assignment is given, does the assignee have standing?

Maybe there are cases definitively answering these questions.  But caution should be the watchword for those purchasing assignments of judgments. Any assignee who purchases a judgment from a corporate assignor better be careful about confirming that the assignor is a corporation in good standing at the time of the assignment and then serve notice of the assignment immediately, before that status can change. Some warranties and guarantees in the assignment agreement wouldn’t hurt, either.

They're capacitors, get it? Capacity, capacitor . . aw, forget it. That's what you get when your humble law blogger also majored in electrical engineering.

What does “abuse of discretion” mean in your case?

Sometimes, it seems that defining an “abuse of discretion” is like nailing jello to the wall (maybe worse, since the latter is difficult, but not impossible).  There are many nuances to the standard, which can depend on the statute being applied, the basis for the abuse of discretion, and the particular procedural posture of the case. 

The last of these variables is what helps the appellant overcome this highly deferential standard of review and have the default judgment against it lifted in Fasuyi v. Permatetex, Inc. case no. A117760 (1st Dist. Oct. 15, 2008).  Permatex made a motion under Code of Civil Procedure section 473 to vacate the default judgment against it and appealed from the order denying relief.  The court of appeal tells us at the outset that the “abuse of discretion” standard applicable here may not be quite as deferential as you would expect (footnote omitted): 

The law favors resolution of cases on their merits, and because it does, any doubts about whether Code of Civil Procedure section 473 relief should be granted “must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]” (Rappleyea v. Campbell(1994) 8 Cal.4th 975, 980 (Rappleyea).) Justice Mosk began Rappleyea with a succinct statement of the question before the Supreme Court and its answer: “The question is whether a default must be set aside and a default judgment reversed on the ground of abuse of discretion. We conclude that they must be.” (8 Cal.4th at p. 978.) The question before us is the same. And so is our answer.

There are two dichotomies here, one clearly defined, one not.  Orders denying 473 relief will be “scrutinized more carefully” than orders granting relief.  That is clear-cut.  What isn’t so clear is what “scrutinized more carefully” actually means while remaining within the “abuse of discretion” standard.” 

In any event, the case is yet another reminder that “abuse of discretion” may have a particularized meaning or application in your case.  And if you happen to be requesting a default judgment any time soon, I suggest you read this case for some of the pitfalls and an exposition on the gatekeeping role of the trial court.

Is Summary Judgment Unconstitutional?

That’s surely a heretical thought to many. And not one that would have popped into my head had reader Joe Norman not commented on my post regarding new trial motions following summary judgment by sending a link to an article by University of Cincinnati College of Law professor Suja Thomas entitled “Why Summary Judgment is Unconstitutional.” Before you laugh off that idea, you ought to read the abstract at that link. An excerpt:

While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Odds are slim that I can read the article any time soon, so if anyone reads it, I’d sure be interested in your comments, which I encourage you to leave on this post.

Be Careful with those Plea Agreements

Be very, very careful with the language of your plea agreement. After all, it’s a contract, and deserves the same careful consideration before entering into it.

You might live to regret it, even if it takes 20 years for it to catch up with you, as happened to the defendant in People v. Paredes, case no. D050150 (4th Dist. Feb. 26, 2008). Paredes, a legally resident alien, pleaded guilty to voluntary manslaughter in 1987 in part because the prosecutor agreed to a “JRAD” — a judicial recommendation against deportation — that, under 1987 federal law, precluded the government from removing him from the country on the basis of the conviction. He received probation conditioned on serving 365 days in jail.

Flash forward roughly 17 years, to when Paredes applies for citizenship and, in response to this act of patriotism, has removal proceedings initiated against him by the Department of Homeland Security. The removal proceedings are instigated because federal law had since changed to make his conviction a basis for removal notwithstanding the JRAD. Perhaps the worst part: had he been sentenced to just one day less in jail, the conviction would not have subjected him to removal.

After running through a mill of immigration proceedings, Paredes sought relief in superior court. He sought to vacate his conviction, withdraw his guilty plea and enter a plea of not guilty or, alternatively to “enforce” the plea agreement, which he contended contained a “no deportation” promise.

The superior court granted relief by vacating the 20-year-old judgment and entering a new judgment nunc pro tunc that included a sentence of only 364 days in order to avoid a “miscarriage of justice” in light of the facts that Paredes relied on protection from deportation, neither party contemplated the change in federal law and, had they done so, would have agreed to a 364-day jail term as a condition of probation, and its finding that the plea agreement included a “promise of no deportation, embodied in the JRAD.”

The court of appeal reverses, finding no breach of the plea agreement and relying on precedent that so long as the defendant is adequately advised (as Paredes was) that his conviction may have immigration consequences, including deportation, later changes in immigration law do not warrant modification of the judgment.

I’m only disappointed in the result because it kept the court from reaching some interesting issues regarding judgment and jurisdiction. Specifically, whether judgment could be entered nunc pro tunc under the circumstances and whether the court acted in excess of its jurisdiction by modifying the terms of probation after probation was complete.

O.J.’s Jurisdictional Challenge Goes Nowhere

Does a court need to have personal jurisdiction over a judgment debtor at the time it renews a judgment in order for that renewal to be valid? In Goldman v. Simpson, case no. B200082 (2d Dist. Feb. 20, 2008), O.J. Simpson moved to vacate the renewal of the judgment against him on the ground it was void for lack of personal jurisdiction because he resided in Florida at the time the court renewed the judgment. He appealed from the denial of the motion to vacate. The Court of Appeal affirms.

Code of Civil Procedure section 683.170, subdivision (a) provides in part that “[t]he renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment.” Simpson contended that because lack of personal jurisdiction could be raised in an action on the judgment, he could raise it in his motion to vacate. However, a successful jurisdictional defense in any action on the judgment would have to attack jurisdiction to enter the original judgment. The court notes that “it is an entirely different matter to contend that the renewed judgment must be vacated because the debtor has insufficient personal contacts with the state to confer personal jurisdiction at the time of the renewal.” (Emphasis in original.)

The court finds no independent jurisdictional requirement for renewal. Code of Civil Procedure section 410.50, subdivision (b) provides that once subject matter and personal jurisdiction have been established, this jurisdiction “continues throughout subsequent proceedings in the action.” The court logically holds that renewal of a judgment under Code of Civil Procedure section 683.120 is a “subsequent proceeding” for purposes of section 410.05o, for at least two reasons: (1) the renewed judgment exists only as a derivative of the original judgment, and (2) renewal under section 683.120 is a purely ministerial act that merely extends the life of the original judgment.

Potentially Void Judgment Reversed on the Merits

Here’s a post I’ve been saving for a time where I’m too busy to spend much time on new content. I may get a post up later in the day, but in the meantime, I’ll get on my soapbox about why I think the Court of Appeal blew it on a jurisdictional question in Holland v. Union Pacific Railroad Co., case no. C052833 (3d Dist. July 30, 2007, certified for publication August 29, 2007).

The case came up on appeal from a summary judgment granted on the ground that the plaintiff’s administrative complaint was untimely. The timeliness of the administrative complaint turned on whether the Department of Fair Employment and Housing caused plaintiff to miss his filing deadline for filing a verified administrative complaint (thus equitably tolling the limitations period) rather than whether there was a triable issue on the substantive allegations of his complaint against his employer. (Thus, the Court of Appeal deemed the substantive allegations of the complaint “largely irrelevant,” so we needn’t discuss them here.) The court found that equitable tolling applied, the summary judgment on timeliness grounds was error, and remanded to the trial court to consider the remaining issues

The most interesting aspect of the case (at least for this jurisdiction geek) is how the court addressed the plaintiff’s contention that the court commissioner lacked jurisdiction to decide the motion. After evaluating the competing evidence over whether plaintiff had consented to the commissioner and the legal positions of the parties, the court says that it is “immaterial” which side is right on the jurisdictional question.

Wow. The existence of jurisdiction is, in the eyes of this panel and in this particular case, immaterial. I think this is wrong, wrong, wrong.

The court deems the trial court’s jurisdiction immaterial because it figures that if it remands, the case will just come up on appeal again on the exact same papers, so remanding would waste judicial resources:

Even if we were to concur that the judge pro tem lacked jurisdiction to hear the motion, there would not be any purpose in reversing the judgment and remanding the matter, only to exercise de novo review of the same materials on appeal from a ruling of a judge of the trial court (as our remittitur would not authorize reopening the motion), if we believe the outcome would be the same on the substantive timeliness issue. This only wastes scarce judicial resources and causes needless expense to the parties. We therefore proceed to the matter of whether the plaintiff’s failure to file a timely administrative complaint is excusable.

I don’t think I’ve ever seen the potential lack of jurisdiction treated so casually. If jurisdiction is lacking, the grant of summary judgment is void. So the court of appeal is analyzing the merits of a potentially void judgment. That is a big deal, and hardly consistent with the court of appeal’s usually zealous protection of its jurisdiction.

I think the court should have been more diligent in determining whether there was jurisdiction. Had it determined a lack of jurisdiction by the commissioner, it should have reversed and remanded without an examination on the merits. The reasons the court offers for the immateriality of jurisdiction don’t stand up well to scrutiny.

First, the court’s position that it would be reviewing “the same materials” on a subsequent appeal seems misguided. It rests on an anticipated remittitur that “would not authorize reopening the motion.” While it might be appropriate to preclude new declarations in support or opposition to the summary judgment motion, there seems no reason to restrict the scope of review by the new trial judge on legal issues. Suppose the new judge hearing the motion sees a legal point that the commissioner missed and wants to ask for additional briefing on an issue? Would the remittitur also preclude that?

A second problem with the “same materials” rationale is that even if the summary judgment papers are unchanged, a second appeal would afford the parties an opportunity to revise their appellate briefs. One of the briefs might be substantially more persuasive, cite additional authority, or otherwise differ from the briefs on this appeal, potentially leading the court of appeal to a different result.

Even more obviously, it is uncertain whether the Court of Appeal would ever see the case again. Suppose the superior court judge on remand disagreed with the commissioner’s disposition and denied the motion. The defendant would have to file a petition for writ of mandamus (which has a 90% + chance of not being heard on the merits) or await final judgment before appealing on the ground that the motion was improperly denied. The case would have a decent chance of settling with a trial on the horizon, so the court of appeal might not see the case again.

All of these possibilities argue against what the Court of Appeal did here.

Enforcing a Foreign Judgment

You don’t always get three positions advocated on a single issue in a single appeal. On the subject of the statute of limitations for enforcing a foreign money judgment, that’s exactly what the Court of Appeal heard in Guimaraes v. Northrup Grumman, case no. B194205 (2d Dist. Oct. 30, 2007).

For the position that the “catch-all” limitations period of Code of Civil Procedure section 343 applies, Northrup relied on a 116-year-old California Supreme Court case. Not usually a good sign. And despite prevailing in the trial court, Northrup loses on appeal. The court adopts Guimaraes’s position that the intervening enactment of the Uniform Foreign Money-Judgments Recognition Act (Code Civ. Proc., §§ 1713-1713.8) results in a 10-year limitations period because section 1713.3 makes foreign judgments “enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit,” and such sister state judgments are subject to a 10-year limitations period. (Code Civ. Proc., § 337.5, subd. 3.)

A third position was advocated in an amicus brief from a law firm that frequently represents clients seeking to enforce foreign money judgments in California courts. That firm contended that a foreign judgment may be enforced so long as it is enforceable in the country where it was rendered. The Court of Appeal did not reach that contention.

The court notes that significant questions regarding foreign judgment enforcement that it need not consider are under consideration in a case under review by the California Supreme Court. (Manco Contracting Co. v. Bezdikian, review granted Aug. 22, 2007, S154076.) According to the case summary page at the Supreme Court’s website,though, Manco appears to pose the exact question at issue in this case: the statute of limitations applicable to the enforcement of foreign money judgments. If that apparent equivalence of issues is real, then Guimaraes is an excellent candidate for “grant and hold” review by the Supreme Court, whereby the Supreme Court can grant review but hold the case until it decides Manco.

Federal Judicial Review of Arbitration Decisions

I’m pretty sure that Judge Bea didn’t intend to give me a chuckle in the first paragraph of his opinion in Collins v. D. R. Horton, Inc., case no. 05-15737 (9th Cir. Sept. 24, 2007). But he did.

Appellants contend their motion [for summary judgment] should have been granted because the arbitrators manifestly disregarded the law when deciding not to apply offensive non-mutual collateral estoppel because judicial review of an arbitration award under the Federal Arbitration Act (“FAA”) is more limited than judicial review of a district court judgment. We hold the arbitrators did not manifestly disregard the law because no “well defined, explicit, and clearly applicable” law existed to be disregarded. [Citation.] Accordingly, we affirm.

(Footnote omitted.) At the very mention of the term “offensive non-mutual collateral estoppel,” I couldn’t help but think of the characters ordering coffee in rapid-fire succession in the movie L.A. Story:

Tom: I’ll have a decaf coffee.
Trudi: I’ll have a decaf espresso.
Morris Frost: I’ll have a double decaf cappuccino.
Ted: Give me decaffeinated coffee ice cream.
Harris: I’ll have a half double decaffeinated half-caf, with a twist of lemon.

Thus, I found it amusing that this tangle of words — “offensive non-mutual collateral estoppel” — would have no “well defined, explicit, and clearly applicable” in the context of this case. But maybe that’s just me.

On the merits, this decision is useful for its exposition on what constitutes an arbitrator’s “manifest disregard for the law” sufficient to justify vacating an arbitration award. For such “manifest disregard” to exist, mere error is insufficient; the arbitrator(s) must have understood and correctly stated the law but ignored it. A proper identification and statement of the law requires, in turn, that it be “well defined, explicit and clearly applicable.” Here, since there was no well-settled law on the issue of whether the arbitrator(s) were bound to apply collateral estopppel on the facts before it, they cannot be said to have ignored it.

Challenging Voidable Judgments

A short lesson in the difference between void judgments and valid but voidable ones is provided in Baron v. Fire Insurance Exchange, case no. H029830 (6th Dist. Sept. 4, 2007).  While I think the court’s decision not to avoid the “valid but voidable” order in this case is the correct one, I am a bit surprised by its rationale.

Two partners to a venture concerning the insured real property arbitrated a dispute between them.  During the arbitration, the property suffered a fire.  The insured partner submitted an insurance claim, and the arbitration award included the appointment of a receiver to take possession of the property and any insurance proceeds, including settlement proceeds from the existing insurance claim.  The trial court confirmed the arbitration award.

The receiver eventually grew dissatisfied with the handling of the claim.  He sued Fire insurance Exchange for insurance bad faith and misrepresentation, among other claims.

On appeal, Fire Insurance Exchange contended that the arbitrator lacked authority to appoint a receiver as part of the award.  It argued that the appointment was “void for all purposes,” thus the arbitrator was “‘not the proper real party in interest” and “was not entitled to damages, attorney fees, or costs.” 

The court held that the merits of this argument were immaterial because Fire waived the issue by not raising it in the trial court.

Here’s where the difference between void and voidable judgments becomes important . . . 

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