Stahl Law Firm v. Apex Med. Techs.

• Decision Date: 23 February 2023
• Docket Number: D079097
• Parties: STAHL LAW FIRM et al., Plaintiffs, Cross-defendants and Appellants, v. APEX MEDICAL TECHNOLOGIES, INC., et al., Defendants, Cross-complainants and Respondents; ALICE DEPAUL et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

STAHL LAW FIRM et al., Plaintiffs, Cross-defendants and Appellants, v. APEX MEDICAL TECHNOLOGIES, INC., et al., Defendants, Cross-complainants and Respondents;

ALICE DEPAUL et al., Defendants and Respondents.

D079097

California Court of Appeals, Fourth District, First Division

February 23, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. 37-2010-00097839-CU-CO-CTL, Katherine A. Bacal, Judge. Dismissed.

Norbert Stahl for Plaintiffs, Cross-defendants and Appellants.

Arthur A. Wellman, Jr., for Defendants, Cross-complainants and Respondents.

IRION J.

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.

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.].)

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 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 crossdefendant [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.

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 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. 579580.) 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...