Filed 2/10/15; opinion following rehearing




                                 CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


DUCOING MANAGEMENT INC.,

    Petitioner,                                             G050457

        v.                                                  (Super. Ct. No. 30-2010-00361854)

THE SUPERIOR COURT OF ORANGE                                OPINION
COUNTY,

    Respondent,

WINSTON & ASSOCIATES
INSURANCE BROKERS, INC., et al.,

    Real Parties in Interest.


                 Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, John C. Gastelum, Judge. Petition granted.
Motion for Sanctions. Denied.
                 Foley Bezek Behle & Curtis, Roger N. Behle, Jr., Justin P. Karczag and
Muhammed T. Hussain for Petitioner.
                 No appearance for Respondent.
                 Wood, Smith, Henning & Berman, Seymour B. Everett III, David L. Martin
and Christopher C. Hossellman for Real Parties in Interest.
                                             *         *          *
THE COURT:*
                                        INTRODUCTION
               This writ petition demonstrates the importance of the disposition in an
appellate opinion in determining the form of judicial relief, particularly when the
disposition reverses a judgment and remands for retrial. The disposition articulates what
the trial court should do, with clear and understandable instructions, and whether and
how the trial court should exercise its discretion upon remand.
               Here, this court issued an opinion in an appeal from two plaintiffs,
represented by the same counsel, who were both nonsuited at trial. We affirmed the
judgment of nonsuit as to the first plaintiff, but reversed the judgment “in all other
respects,” and remanded the matter for a retrial by the second plaintiff. Essentially, we
left plaintiffs’ claims intact, holding they properly were pursued in their entirety by the
second plaintiff, the first plaintiff being superfluous for purposes of recovery. We
awarded no costs on appeal. No party filed a petition for rehearing.
               Are defendants automatically entitled to recover all their trial costs as
prevailing parties from the first plaintiff, without further review by the trial court
following the appellate judgment? If yes, defendants will succeed in recovering their
very substantial trial costs from the first trial even though all plaintiffs’ original litigation
objectives yet may be achieved by and through the one remaining plaintiff at the second
trial.
               In this writ proceeding, we apply the plain words of the disposition to
preclude such an irrational outcome. Because we reversed the judgment “in all other
respects,” our disposition reversed not only the judgment of nonsuit as to the second
plaintiff, but also that portion of the judgment which assessed unapportioned costs




         * Before O’Leary, P.J., Fybel, J., and Thompson, J.


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against both plaintiffs. In accordance with our prior notification to the parties, we issue a
peremptory writ in the first instance to effectuate the clear meaning of our disposition.
                  STATEMENT OF FACTS AND PROCEDURAL HISTORY
              In Ducoing Enterprises, Inc. v. Winston & Associates Insurance Brokers,
Inc. (Sept. 9, 2013, G046734) [nonpub. opn.] (hereafter Slip Opn.), we considered an
appeal from a judgment of nonsuit in a trial against real parties, an insurance broker and
his insurance brokerage, who were sued for negligent failure to procure insurance
coverage.
              Brent and Ami Ducoing, a married couple, created a corporation, Ducoing
Enterprises, Inc. (DEI), to provide painting services. At their accountant’s advice and
with real party’s assistance, the Ducoings later created another corporation, petitioner
Ducoing Management, Inc. (petitioner), ostensibly to take advantage of lower rates for
workers’ compensation insurance. Both petitioner and DEI do business under the
fictitious name “Perfection Painting.” A dishonest payroll manager concocted a scheme
to create so-called “ghost” employees and embezzled more than $90,000, causing
substantial losses. To their consternation, the Ducoings discovered their current coverage
did not include employee dishonesty coverage, even though real party recalled that
employee dishonesty coverage had been included in prior policies. (Slip Opn. at pp. 2-7.)
              In April 2010, petitioner and DEI filed suit against real parties for
negligence, negligent misrepresentation, and breach of fiduciary duty in failing to procure
full insurance coverage with “‘all the bells and whistles,’” as allegedly promised by the
insurance broker. (Slip Opn. at p. 3.) Petitioner and DEI jointly pursued the same causes
of action, and jointly sought the same damages from real parties.
              The matter came to jury trial over several days in January 2012. At the
close of plaintiffs’ case-in-chief, the trial court (Judge David R. Chaffee) granted real
parties’ motion for nonsuit against both petitioner and DEI. The trial court reasoned that
DEI sustained no loss because the payroll manager only stole money from petitioner, not

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DEI, and because real parties owed no duty to petitioner to provide employee dishonesty
coverage; such duties, if any, were owed only to DEI. (Slip Opn. at pp. 7-8.)
              On March 28, 2012, the trial court entered judgment in favor of real parties
and against petitioner and DEI. In the first paragraph, the trial court ordered that real
parties “shall have JUDGMENT entered in their favor and against PLAINTIFFS,
DUCOING MANAGEMENT, INC., and DUCOING ENTERPRISES, INC. dba
PERFECTION PAINTING (hereinafter ‘Plaintiffs’) who shall recover nothing by reason
of their Complaint against Defendants.” In the second paragraph, the trial court ordered
that real parties were entitled to costs in the amount of $50,089.
              Both petitioner and DEI appealed from the March 28, 2012 judgment.
              On September 9, 2013, we filed our unpublished decision in the Ducoing
appeal. The decision affirmed the judgment of nonsuit as to petitioner, but reversed the
judgment “[i]n all other respects,” and remanded the matter for “further proceedings.”
(Slip Opn. at p. 11.)
              Here is our disposition in the Ducoing appeal: “The judgment against
[petitioner] is affirmed. In all other respects, the judgment is reversed and the matter is
remanded for further proceedings. In the interest of justice, no party may recover costs
incurred on appeal.” (Slip Opn. at p. 11, italics added.)
              In particular, we reversed the trial court on its key evidentiary finding: that
the payroll manager’s theft did not affect DEI. We held “[t]he evidence at trial
established that all of the money stolen by [the payroll manager] came from DEI.” (Slip
Opn. at p. 9, italics added.) “This is not a matter of blurring corporate distinctions, as the
trial court stated. The money embezzled by [the payroll manager] came from her
employer, DEI. Although the falsified checks were drawn from [petitioner’s] payroll
account, the money came from DEI.” (Ibid.)
              As to petitioner, we affirmed the judgment of nonsuit, but for a different
reason than that provided by the trial court. Because the payroll manager was not

                                              4
petitioner’s employee, we concluded that petitioner could have no claim under any
employee dishonesty coverage, even were real parties to owe a duty of reasonable care to
petitioner to procure such protection. We stated: “But one fact is dispositive: [The
payroll manager] was not an employee of [petitioner] at the time her dishonest conduct
occurred. She was employed by DEI. Thus even if [real parties] owed [petitioner] a duty
of care, and breached that duty of care by failing to procure employee dishonesty
coverage for [petitioner], no claim could have been made by [petitioner] under such
coverage.” (Slip Opn. at p. 10.)
              As a result of our opinion in the Ducoing appeal, real parties remained
potentially liable for all damages proximately caused by their negligent failure to provide
employee dishonesty coverage. Real parties did not file a petition for rehearing, nor did
they seek clarification of our disposition.
              Following the remand, the case was reassigned to a different trial judge
(Judge John C. Gastelum), who set the matter for retrial as to DEI.
              Instead of filing a new cost bill to seek costs against petitioner alone, real
parties began trying to execute against petitioner on the full amount ($50,089) of the
original joint cost award in the March 28, 2012 judgment. They secured an order from
the trial court for petitioner to appear at a judgment debtor examination, and they placed
liens on its bank accounts.
              Petitioner filed a motion to quash the judgment debtor examination, and for
an order deeming the costs portion of the March 28, 2012 judgment to be unenforceable.
According to petitioner, “. . . all Defendants still face the very same claims and damages
that they faced in the original trial. The Court of Appeal merely confirmed that these
claims and damages may not be pursued jointly by both [petitioner] and DEI, but may be
pursued by DEI, alone.”




                                              5
                The trial court denied petitioner’s motion. The court construed our
disposition affirming the judgment against petitioner to include the full cost award of
$50,089. The court held it had no power to stay enforcement.
                Petitioner timely filed a writ petition, with an immediate stay request, and
real parties filed a preliminary opposition. After reviewing the submitted documents, we
granted an immediate stay of the scheduled judgment debtor examination and any further
enforcement efforts. We issued a Palma notice and gave real parties the option of filing a
further supplemental response. (Palma v. U.S. Industrial Fasteners, Inc. (1984)
36 Cal.3d 171, 179 (Palma).) Real parties filed a supplemental response, with supporting
exhibits.
                We issued our original per curiam opinion on September 19, 2014. On
October 15, 2014, we granted real parties’ petition for rehearing, and augmented the
record to include some additional proceedings below.
                                         DISCUSSION

                A.     We Exercise De Novo Review of the Dispositional Language in the
                       Ducoing Opinion.
                The disposition constitutes the rendition of the judgment of appeal, and is
the part of the opinion where we, in popular parlance, deliver the goods. “The
‘judgment’ on appeal must be distinguished from the appellate court’s ‘opinion’ in
general. The body of the written opinion discusses the procedural history, the facts and
the applicable law. The actual judgment is the one-paragraph disposition . . . found at
the end of the opinion.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2013) ¶ 11:45, p. 11–16 (rev. #1, 2011), italics in original.)
                The appellate court has the authority in the disposition to “affirm, reverse,
or modify any judgment or order appealed from, and may direct the proper judgment or
order to be entered, or direct a new trial or further proceedings to be had.” (Code Civ.
Proc., § 43.)


                                               6
              A disposition is not intended to be a riddle, and the directions in the
dispositional language, as conveyed by the remittitur, are to be followed by the trial court
on remand. (Frankel v. Four Star International, Inc. (1980) 104 Cal.App.3d 897, 902
(Frankel); see also Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701-
702 [trial court may not reopen case after appellate court’s unqualified affirmance].)
              The appellate court need not expressly comment on every matter intended
to be covered by the disposition. The disposition is construed according to the wording
of its directions, as read with the appellate opinion as a whole. (Eldridge v. Burns (1982)
136 Cal.App.3d 907, 917-918.) “It is unnecessary and inappropriate for an appellate
court to attempt to envision and to set forth in detail the entire universe of matters
prohibited by its directions on remand.” (Ayyad v. Sprint Spectrum, L.P. (2012)
210 Cal.App.4th 851, 863 (Ayyad).)
              Whether the trial court has correctly interpreted an appellate opinion is an
issue of law subject to de novo review. In interpreting the language of a judicial opinion,
the appellate court looks to the wording of the dispositional language, construing these
directions “in conjunction with the opinion as a whole.” (Ayyad, supra, 210 Cal.App.4th
at p. 859; see also In re Justin S. (2007) 150 Cal.App.4th 1426, 1435 [“To the extent that
the dispositional language used in our remittitur did not expressly state [our directions]
. . . , the opinion as a whole compels that interpretation”].)

              B.      The Dispositional Language in the Ducoing Opinion Reversing the
                      Judgment “In All Other Respects” Reversed the Portion of the
                      March 28, 2012 Judgment Awarding Costs to Real Parties.
              Real parties claim to be “enforcing their rights against Petitioner as
affirmed by this Court.” According to real parties, “[t]he trial court’s decision permitting
such enforcement is directly in line with this Court’s ruling.”
              That is not what we held: our disposition says the very opposite. The
March 28, 2012 judgment lists the judgment on liability (against both petitioner and DEI)


                                               7
and the cost award (also against both petitioner and DEI) in separate paragraphs. In our
disposition, we affirmed the judgment as to petitioner but reversed the same judgment
“[i]n all other respects” and remanded it for retrial. (Slip Opn. at p. 11, italics added.)
              Our reversal was unqualified (“in all other respects”), with the single
exception of the judgment of nonsuit as to petitioner. It necessarily included the cost
award, which was contained in a separate and distinct portion of the judgment decreeing
that petitioner take nothing from real parties. There is nothing in our opinion to suggest
that the cost portion of the second paragraph of the judgment survived our reversal “[i]n
all other respects.”
              A disposition that reverses a judgment automatically vacates the costs
award in the underlying judgment even without an express statement to this effect. (See
Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284, disapproved on another ground in San
Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315; Evans v.
Southern Pacific Transportation Co. (1989) 213 Cal.App.3d 1378, 1388.) We added the
extra qualifier that the judgment is reversed “[i]n all other respects” to make it clear that
this rule applies even though we also were affirming in part the judgment of nonsuit as to
petitioner.
              In their petition for rehearing on this writ petition, real parties contend that
we made a “mistake of fact” when we reversed the cost award in the Ducoing opinion.
For good measure, real parties challenge other alleged “mistakes of fact” in our original
opinion regarding the Ducoings’ corporate entities and the losses that DEI allegedly
sustained. Real parties have difficulty understanding why we did not then summarily
dismiss all the claims against them, including those asserted by DEI.
              A petition for rehearing is the correct remedy to address material
inaccuracies or omissions in a disposition. “It is not inconceivable that the directions of a
reviewing court may be imperfect, or impractical of execution. Under those



                                              8
circumstances the aggrieved party has his remedy in a petition for rehearing.” (Kenney v.
Kenney (1954) 128 Cal.App.2d 128, 133.)
              But real parties’ chosen remedy is well past its expiration date. We issued
the Ducoing opinion on September 9, 2013. The time for real parties to have called our
attention to any alleged omissions or misstatements in our original opinion was by
petition for rehearing within 15 days of the filing of the decision, not more than a year
later. (Cal. Rules of Court, rule 8.268(b).) Real parties did not file any objection to our
disposition reversing the judgment in “all other respects,” nor did they ask us to explain
or amplify whether this disposition vacated the cost award. Our disposition became final
as to this court on October 9, 2013. (Cal. Rules of Court, rule 8.264(b)(1).) It is law of
the case and is binding upon the parties and the trial court. (Lucky United Properties
Investment, Inc. v. Lee (2013) 213 Cal.App.4th 635, 651.) We will not revisit the ruling
here.

              C.     The Dispositional Language in the Ducoing Opinion Accords With
                     Statutory and Case Law on Cost Awards.
              The recovery of costs is purely statutory, and a prevailing party is entitled
as a matter of right to recover costs of suit in any action or proceeding. (Code Civ. Proc.,
§ 1032, sub. (b).) Statutorily allowable costs, however, must be “reasonably necessary to
the conduct of the litigation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5
subd. (c)(2), (3).) In apportioning costs in cases involving multiple litigants, trial courts
should look to the reason the costs were incurred. (Fennessy v. DeLeuw-Cather Corp.
(1990) 218 Cal.App.3d 1192, 1196 (Fennessy).)
              The trial court had made a single cost award against both petitioner and
DEI, without any apportionment, in the mistaken legal belief that neither plaintiff had
been able to establish an affirmative case against real parties. Where a defendant is the
prevailing party against multiple plaintiffs who sue jointly on a single liability theory,
there is little need to apportion the cost award as between or among the plaintiffs. “The


                                              9
reason is that in most cases where a defendant is entitled to costs as of right because
plaintiffs took nothing in their joint action, there will be nothing to apportion. The costs
are joint and several because the plaintiffs joined together (represented by the same
attorney) in a single theory of liability against a defendant who prevailed.” (Acosta v. SI
Corp. (2005) 129 Cal.App.4th 1370, 1376 (Acosta).)
               After our prior opinion and our reversal “in all other respects,” this no
longer can be said to be true. Unlike the defendants in Acosta, who obtained a total
victory against all plaintiffs, real parties, at the end of the day, may obtain no victory at
all as DEI’s action proceeds to trial.
               By reversing the judgment of nonsuit against DEI and reinstating its lawsuit
against real parties, we purposefully reversed the unapportioned cost award in the March
28, 2012 judgment. As petitioner puts it, “[I]t would be patently unfair to make
[petitioner] liable for all costs incurred and collectable by [real parties] as part of these
expenses were incurred defending against DEI’s causes of action.”
               Based upon the same reasoning, our prior opinion did not award costs on
appeal to any party. Had we been inclined to adopt real parties’ theory, we would have
awarded real parties’ costs on appeal as against petitioner. We did not do so. Instead, in
our disposition, we determined that the parties should each bear their own costs on appeal
“in the interest of justice.” (Slip Opn. at p. 11.)
               Following our disposition in the prior opinion, the trial court never had the
opportunity to limit or reduce real parties’ cost recovery to those costs reasonably
attributable to litigating against petitioner alone, not those attributable to litigating jointly
against petitioner and DEI. (See discussion in Fennessy, supra, 218 Cal.App.3d at
p. 1196.) Barring such a discretionary review by the trial court, real parties cannot
enforce the original joint cost award.
               Anderson v. Pacific Bell (1988) 204 Cal.App.3d 277 (Anderson), cited by
real parties and the trial court, is distinguishable. Anderson held that an employer was

                                               10
entitled to an award of costs following its successful summary judgment against
employees. The employer prevailed on summary judgment because the employees, who
sued for retaliatory discipline, could not prove they had been disciplined. Despite this,
the trial court declined to award trial costs to the employer, reasoning that the remaining
employee plaintiffs might yet prove that they had been disciplined (and damaged)
because of employer’s same unlawful practices. On appeal, the Anderson court
disagreed, finding the employer’s “statutory right as prevailing party to recover its own
costs from the dismissed plaintiffs is not dependent on any hypothetical, future right the
remaining plaintiffs might have to recover their different costs.” (Id. at pp. 286-287.)
               Anderson involves a different situation. The Anderson plaintiffs each had
their own individual damage claims; by prevailing on summary judgment, the Anderson
employer lessened its overall potential liability. By contrast, petitioner and DEI together
seek recovery for the identical claims and damages, all of which we have found to flow
through DEI.
               Further, in Anderson, the employer only sought to recover statutory costs
for the depositions of the employees whose claims had been dismissed on summary
judgment, not for any other costs. (Anderson, supra, 204 Cal.App.3d at pp. 286-287.)
As a result, the cost award in Anderson distinguished between costs incurred as a result of
the actions or tactics of the dismissed employees, as opposed to the employees who
remained as plaintiffs in the litigation.
               Here, in contrast, real parties seek to require petitioner to pay all trial costs
from the first trial, without any apportionment and without regard to how they were
incurred. Without knowing how the second trial will conclude, there is a significant
danger of an award of costs to a nonprevailing party.




                                               11
              D.     A Peremptory Writ in the First Instance Should Issue to
                     Expeditiously Effectuate the Dispositional Language in the Ducoing
                     Opinion.
              We reiterate the obvious: the phrase “the judgment is reversed in all other
respects” means what it says. Had we meant otherwise, we would have expressly so
stated in the disposition. We do not “hide elephants in mouseholes.” (Whitman v.
American Trucking Associations, Inc. (2001) 531 U.S. 457, 468.) Real parties did not file
a petition for rehearing, or seek any clarification when we issued our opinion and
disposition on September 9, 2013.
              Petitioner’s entitlement to relief is clear and no useful purpose would be
served by plenary consideration of the issue. (See Brown, Winfield & Canzoneri, Inc. v.
Superior Court (2010) 47 Cal.4th 1233, 1237-1238 (Brown); Palma, supra, 36 Cal.3d
171.)
              Petitioner lacks any plain, speedy or adequate remedy at law. Real parties
insist upon enforcing the cost award, by obtaining confidential financial information and
by placing liens on its bank accounts and levying upon its property, even though the
March 28, 2012 judgment is not enforceable insofar as it awards costs against petitioner.
              Since an order to show cause would add nothing to the parties’
presentation, we follow the accelerated Palma procedure. (Code Civ. Proc., § 1088;
Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 416 (Frisk); Banning Ranch
Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, 919.) This opinion follows
a Palma notice because of an “‘“unusual urgency requiring acceleration of the normal
process.”’” (Frisk, supra, 200 Cal.App.4th at p. 416.)
              We twice requested and received opposition from real parties, the second
time after issuing a Palma notice. Because the papers adequately address the issues
raised by the petition and because of the absence of any factual dispute, we find the
statutory requirements to have been met. (Code Civ. Proc., §1088; Brown, supra,
47 Cal.4th at p. 1241; Frisk, supra, 200 Cal.App.4th at p. 416.)

                                            12
              E.     Petitioner Is Not Entitled to Sanctions.
              Petitioner seeks sanctions against real parties for using the cost award as a
“bludgeon” to “coerce” DEI into dismissing its yet-to-be-realized claims by obtaining
unmerited continuances of the retrial of its damage claims against real parties. Inasmuch
as we have granted rehearing, a sanctions award is not appropriate.
              While we deny petitioner’s sanction motion, we emphasize that real parties
have no basis to seek any further continuances of DEI’s action because of the pendency
of this writ proceeding. Although we asked real parties to do so, real parties have not
satisfactorily explained why DEI’s retrial should be further delayed.

                                       DISPOSITION
              Let a peremptory writ of mandate issue in the first instance directing
respondent court to vacate its order of June 17, 2014 denying petitioner’s motion to deem
unenforceable the cost portion of March 28, 2012 judgment, and to further vacate its
order of July 15, 2014 denying petitioner’s motion to quash the judgment debtor
examination, and to enter a new and different order granting petitioner’s motions. This
opinion shall become final as to this court 15 days after its filing. (Cal. Rules of Court,
rule 8.490(b)(2)(A).) Our temporary stay shall dissolve upon finality of the opinion as to
this court. Petitioner shall recover its costs in this writ proceeding. Petitioner’s motion
for sanctions is denied.




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