HAROLD TENNEN v. MICHAEL FINSTAD

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Court of Appeal, Second District, California.

HAROLD TENNEN et al., Plaintiffs and Respondents, v. MICHAEL FINSTAD, Defendant and Appellant.

B217765

Decided: February 10, 2010

Law Offices of Walter J. Sawicki and Walter J. Sawicki for Defendant and Appellant. Law Office of Joseph M. Kar and Joseph M. Kar for Plaintiffs and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Finstad did not file a petition for rehearing or otherwise seek review of the Court of Appeal's decision in the prior appeal.

Following issuance of the remittitur and a hearing, the trial court awarded postoffer attorney fees and costs to Tennen and against Finstad in the amount of $109,723.50.   In this appeal, Finstad challenges the trial court's award, arguing only that (1) the Court of Appeal failed to follow the law in the first appeal and, therefore, that opinion should be vacated;  and (2) we are not bound by the “law of the case” doctrine.   Finstad does not challenge the reasonableness of the trial court's cost award.

A. We lack jurisdiction to vacate the decision in Finstad I

Quite simply, we do not have jurisdiction to grant Finstad the relief sought.  “[A] Court of Appeal decision in a civil appeal ․ is final in that court 30 days after filing.”  (Cal. Rules of Court, rule 8.264(b)(1).)   “Once a court of appeal decision becomes final as to that court, the appellate court loses jurisdiction to modify the decision [citation], grant a rehearing [citation] or grant a request for publication [citation].  [Citation.]”   (Eisenberg et al., Cal. Practice Guide:  Civil Appeals and Writs (The Rutter Group 2009) ¶ 11:195, p. 11-81.)

Moreover, a “decision becomes final for all purposes once the time for supreme court review has expired and (assuming review is not granted) the remittitur issues.”  (Eisenberg et al., Cal. Practice Guide:  Civil Appeals and Writs, supra, ¶ 11:196, p. 11-82.);   see also Cal. Rules of Court, rule 8.272.)

Here, the Court of Appeal issued its decision in Finstad I on August 6, 2008.   Time has long since passed in which Finstad could have filed a petition for rehearing in this court or sought review in the Supreme Court.  (Cal. Rules of Court, rule 8.268(b)(1) [petition for rehearing must be filed 15 days after the filing of the decision];  rule 8.500(e)(1) [petition for review must be served and filed within 10 days after the Court of Appeal decision is final in that court].)   Thus, the decision in Finstad I is final for all purposes.   We have no power to review it, modify it, or otherwise revisit the legal issues raised therein.

B. The doctrine of law of the case applies

Finstad argues that the doctrine of law of the case does not apply here because application of that doctrine would result in an unjust decision.   “Under the doctrine of ‘law of the case,’ any principle or rule of law stated in an appellate court opinion that is ‘necessary’ to the court's decision must be followed in all subsequent proceedings in the action, whether in the trial court or on a later appeal.”  (Eisenberg et al., Cal. Practice Guide:  Civil Appeals and Writs, supra, ¶ 14:172, p. 14-64.)   This is true even if we were to believe (which we do not) after subsequent consideration that the former opinion is erroneous.  (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156.)  “The primary purpose served by the law-of-the-case rule is one of judicial economy.   Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding.”  (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435.)

That being said, courts “have declined to adhere [to this doctrine] where its application would result in an unjust decision, e.g., where there has been a manifest misapplication of existing principles resulting in substantial injustice, or where the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations.   The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination.”  (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492;  see also Searle v. Allstate Life Ins. Co., supra, 38 Cal.3d at p. 435 [where there are exceptional circumstances, the rule of law of the case does not apply].)

Finstad has not demonstrated that a substantial injustice will result from application of the doctrine of law of the case.   At best, he simply disagrees with the prior appellate determination.   That is not grounds to set it aside.   (See Searle v. Allstate Life Ins. Co., supra, 38 Cal.3d at p. 435.)

In reaching this conclusion we cannot disregard the fact that Finstad seems to have ignored his responsibilities in connection with this litigation.   He could have filed a respondent's brief in Finstad I. He could have filed a petition for rehearing or otherwise sought review of our decision in Finstad I. He could have contested the reasonableness of the costs and fees sought by Tennen following issuance of the remittitur.2  Instead, Finstad remained silent.   Even in this appeal, Finstad neglects to explain why he failed to respond to these critical legal filings, writing that he “would like to tell you where he was during the previous appeal, but he cannot, since it is improper to refer to matters outside the record.”   While Finstad blames his prior attorney for his neglect, and he might have a viable claim for legal malpractice, he has not offered us any basis upon which we could and should shun the well-established doctrine of law of the case.

C. Tennen's request for sanctions is denied

Finally, Tennen asks that we award sanctions against Finstad and his counsel for bringing a frivolous appeal.   Section 907 provides:  “When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.”  (See also Cal. Rules of Court, rule 8.276(a) [“On motion of a party or its own motion, a Court of Appeal may impose sanctions ․ on a party or an attorney”].)   While Finstad's appeal appears frivolous, Tennen's failure to file a proper motion for sanctions compels denial of Tennen's request.  (See Cal. Rules of Court, rule 8.276(b).)

DISPOSITION

The order awarding costs to Tennen is affirmed.   Tennen is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Code of Civil Procedure unless otherwise indicated..  FN1. All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

FN2. It is unclear from the appellate record and comments in Finstad's opening brief whether he or his attorney filed a response to Tennen's request for attorney fees..  FN2. It is unclear from the appellate record and comments in Finstad's opening brief whether he or his attorney filed a response to Tennen's request for attorney fees.

_, Acting P.J. DOI TODD _, J. CHAVEZ

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