Kowal Law Group Logo
legal error

Amendments to Judgment During Appeal Reversed for Violating Appellate Stay

Tim Kowal     June 23, 2022

The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it.

Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But to the attorney’s chagrin, the judgment stated that the parties shall bear their own fees and costs. The attorney didn’t like this because he claimed he was entitled to contractual attorney fees. So the attorney moved the trial court to amend the judgment to remove that part.

But before the trial court ruled on the motion, the client appealed. So when the trial court amended the judgment confirming the arbitration award, the client appealed again. The client’s second appeal, then, argued the amended judgment violated the appellate stay.

Compounding the confusion, the trial court also granted the attorney’s motion under Code of Civil Procedure section 187 to add the client’s business entities as co-judgment debtors. Again, while the appeal was pending. This was the subject of yet another appeal, 3123 SMB, LLC v. Horn (D2d7 Dec. 14, 2021) no. B309412 (nonpub. opn.).

The court noted the trial court created a “procedural mess” by amending the judgment pending appeal.

The Appellate Stay Made the Amended Judgment Adding Alter Ego Defendants Void:

In the 3123 SMB case, the court held that the appellate stay applied to proceedings to add judgment debtors under Code of Civil Procedure section 187.

The appellate stay under Code of Civil Procedure section 916 “divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 (Varian).) "When triggered, [section 916] bars all proceedings" in the trial court "that 'directly or indirectly seek to "enforce, vacate or modify [the] appealed judgment"'" (LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 872.)

One of the exceptions to this rule is that a trial court may amend a judgment to correct clerical errors "when the mistake is obvious from the other parts of the record and the proper correction can be made therefrom.” (Crawford v. Meadows (1921) 55 Cal.App. 4, 11.)

But amending a judgment to add a new defendant is not a clerical error: 'The difference between judicial and clerical error rests . . . on whether [the alleged error] was the deliberate result of judicial reasoning and determination'" and on "'whether the error was made in rendering the judgment, or in recording the judgment 6 rendered.'" (Machado v. Myers (2019) 39 Cal.App.5th 779, 797.)

The ruling adding new entities “was an intentional decision based on the trial court's understanding of the law and the facts; it was not an "inadvertent one made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion."” (Bowden v. Green (1982) 128 Cal.App.3d 65, 71.)

The Appellate Stay Made the Amended Judgment Entitling the Attorney to Fees Void:

In the Kling v. Horn case, the court again analyzed the appellate stay under section 916. Another exception is for collateral matters. And generally, orders of attorney fees and costs are collateral to the judgment, and the appellate stay does not prevent the trial court from determine fee and cost motions. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369.)

But the amended judgment here did not involve a routine fee or cost motion. Instead, the original judgment stated that no party was entitled to recovery of fees and costs. So by “amending the judgment to remove the provision stating each side was to bear its fees and costs, the court "directly" sought to "'modify [the] appealed judgment.'" The trial court was without jurisdiction to do this.

The court reversed the amended judgment.

Comment: Note that the underlying judgment on the arbitration award was affirmed. So Horn, the prevailing party on that judgment, likely will ask the trial court for the same relief again. But will Horn be entitled to attorney fees? Recall that the underlying judgment stated the parties are to bear their own fees and costs. And Horn did not appeal from that judgment. At this point over a year later, that challenge arguably is untimely.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

Copyright © 2024 Kowal Law Group
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram