Filed 7/2/14 Pistotnik v. Mercedes Benz USA CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


GALIA PISTOTNIK,                                                     B249140

                   Plaintiff and Appellant,                          (Los Angeles County
                                                                      Super. Ct. No. BC482850)
         v.

MERCEDES BENZ USA, LLC,

                   Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Daniel J. Buckley, Judge. Affirmed.



         Law Offices of Jim Whitworth and Jim O. Whitworth, for Appellant.



         LeClairRyan, Gary P. Simonian and Robert G. Harrison, for Respondent.




                                       __________________________
       Galia Pistotnik appeals following the entry of an amended judgment that reduced
the attorney’s fee award in her successful lemon law action against Mercedes Benz USA,
LLC, contending that the trial court lacked jurisdiction to amend the judgment. We
disagree and affirm the amended judgment. For the same reason, we find no error in the
court’s order quashing a writ of execution pursuant to the original judgment.

                        FACTS AND PROCEDURAL HISTORY

       Galia Pistotnik sued Mercedes Benz USA, LLC, under the “lemon law” act,1
contending that her leased car was defective. Mercedes stipulated to liability, and at a
bifurcated bench trial on November 2012 Pistotnik was awarded more than $45,000 in
damages. Two weeks later at the second phase of the trial, the trial court declined to
impose a civil penalty against Mercedes and awarded Pistotnik attorney’s fees of
$50,000. As part of that ruling, the trial court found that “legal work was not necessary
after May 21, 2012, and . . . that many time entries were excessive and unreasonable.”
On December 31, 2012, the trial court entered a written judgment prepared by Mercedes
that included both the $50,000 fee award and the trial court’s comments concerning the
amount and reasonableness of those fees. On January 10, 2013, Pistotnik filed and
served by FAX a Notice of Entry of Judgment to which the judgment was attached.
       On January 16, 2013, Mercedes filed and served a motion captioned as one
seeking to clarify the trial court’s attorney’s fee ruling, or, in the alternative, to reconsider
its order. The basis for the motion was the trial court’s earlier findings that attorney’s
fees incurred by Pistotnik after May 21, 2012, were unnecessary and that many of her
lawyer’s time entries were excessive and unreasonable. According to Mercedes, its
review of the time sheets submitted by Pistotnik’s lawyer showed that she incurred fees
of $23,412.50 as of May 21, 2012, making the trial court’s fee award of $50,000
inconsistent on its face. Furthermore, the finding that many of the lawyer’s charges were
excessive or unreasonable meant that some portion of the $23,412.50 was also excessive


1      The Song-Beverly Consumer Warranty Act. (Civ. Code, § 1790, et seq.)
                                               2
and unreasonable. In order to eliminate this inconsistency, Mercedes asked the trial court
to “clarify” its order insofar as it awarded attorney’s fees of $50,000.
       On February 28, 2013, the trial court granted Mercedes’s motion and reduced the
fee award to $10,000. Pistotnik did not oppose the motion and did not appear at the
hearing. On March 25, 2013, Pistotnik filed a writ of execution on the original judgment
that included the $50,000 attorney’s fee award. On April 3, 2013, the trial court granted
Mercedes’s ex parte application to quash that writ. On April 16, 2013, the trial court
signed and filed an amended judgment that reduced the fee award to $10,000. Pistotnik
contends that the trial court lacked jurisdiction to amend its original judgment because
Mercedes did not follow any of the procedures that would have allowed it to do so. As a
result, Pistotnik also contends the trial court erred by quashing its writ of execution.

                                       DISCUSSION2

1.     The Trial Court Properly Treated Mercedes’s Motion as a Motion to Vacate
       Under Code of Civil Procedure Section 663

       Pistotnik’s opening appellate brief focuses on Mercedes’s alternative request that
the trial court reconsider its attorney’s fee award, correctly contending that the trial court
lacked jurisdiction to consider such a motion once it entered judgment. (Passavanti v.
Williams (1990) 225 Cal.App.3d 1602, 1606 (Passavanti).) Mercedes does not contest




2       Because Pistotnik’s notice of appeal was expressly limited to the ex parte order
quashing her writ of execution, Mercedes contends we may not consider the appeal as to
the amended judgment itself. However there is no dispute that the appeal is proper as to
the order quashing the writ, and resolution of that issue turns solely on whether the
amended judgment was proper. Mercedes does not contend that it was in any way misled
or prejudiced by the notice of appeal and it is reasonably clear that Pistotnik intended to
challenge the amended judgment. Therefore, under the well-settled rule that we must
liberally construe notices of appeal, we treat the appeal as including the amended
judgment. (Cal. Rules of Court, rule 8.100(a)(2); Bullock v. Philip Morris USA, Inc.
(2008) 159 Cal.App.4th 655, 672, fn. 3; Norco Delivery Service, Inc. v. Owens-Corning
Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960-961.)
                                              3
that point, but contends that the trial court was free to treat its motion as having been
brought under Code of Civil Procedure section 663 (section 663.)3
       Under section 663, a judgment may be set aside or vacated and another and
different judgment entered when there was an incorrect or erroneous legal basis for the
decision that was not consistent with or supported by the facts. (In re Marriage of
Rothrock (2008) 159 Cal.App.4th 223, 237.) Pistotnik contends in her appellate reply
brief that section 663 was not applicable because Mercedes did not show by way of
uncontroverted facts an erroneous legal basis for the original judgment.4
       We disagree. A section 663 motion is proper when a different judgment is
compelled by the facts found: when the trial court draws an incorrect legal conclusion or
renders an erroneous judgment upon the facts found by it to exist. (Payne v. Rader
(2008) 167 Cal.App.4th 1569, 1574.) We believe relief was available under section 663
because the trial court’s original award of attorney’s fees was inconsistent with the facts
it found concerning the reasonableness and necessity of the fees claimed by Pistotnik’s
lawyer. Although the trial court’s attorney’s fee order awarded Pistotnik $50,000 in fees,
it also found that fees incurred after May 21, 2012, were unnecessary and that many of
her lawyer’s time entries were excessive or unreasonable. Mercedes’s motion argued that
the lawyer’s billing entries up to May 21, 2012, were just over $23,000 and contended
that the amount was also subject to reduction based on the finding that much of the work
done was unwarranted. As Mercedes’s motion pointed out, the $50,000 fee award was



3      Mercedes also contends that the trial court had postjudgment jurisdiction to reach
the collateral issue of attorney’s fees. The decisions it cites – Serrano v. Unruh (1982)
32 Cal.3d 621 and People v. Bhakta (2008) 162 Cal.App.4th 973 – concerned post
judgment attorney fee awards where the trial court did not reach the fee issue until after
entering judgment on the merits. We do not believe those decisions apply here, where
the original judgment included a specific award of attorney’s fees.

4      Pistotnik’s reply brief spends little time on section 663 motions. She devotes most
of her opening and reply appellate briefs to motions for reconsideration and new trial and
other procedural devices for attacking judgments that are not relevant here.
                                              4
inconsistent with those findings.5 A section 663 motion to vacate the judgment and enter
a new one consistent with the findings was therefore proper. The motion to vacate was
timely filed on January 16, 2013, which was within 15 days of the service of the Notice
of Entry of Judgment on January 8, 2013. (Code Civ. Proc. § 663a, subd. (a)(2).)
       We next consider whether the trial court could treat Mercedes’s motion as a
request to vacate the judgment under section 663. The nature of a motion is determined
by the relief sought, not its label, and a trial court is therefore free to construe a motion
bearing one label as a different type of motion. (Sole Energy Company v. Petrominerals
Corp. (2005) 128 Cal.App.4th 187, 193 (Sole).) Mercedes’s motion fit within the
section 663 paradigm because it asked the trial court to enter a different judgment that
was consistent with its factual findings on attorney’s fees. Therefore, the trial court was
free to treat it as a section 663 motion. Because Pistotnik did not designate the reporter’s
transcript from the hearing on that motion as part of the appellate record, we must
presume that what occurred at that hearing supports the amended judgment. (Hearn v.
Howard (2009) 177 Cal.App.4th 1193, 1201.) We therefore presume from the silent
record that the trial court elected to treat Mercedes’s motion as having been brought
under section 663.6


5      Neither party’s points and authorities from the fee motion were included in the
record, leaving us unable to determine whether $50,000 represented the full amount of
fees sought by Pistotnik or to verify Mercedes’s contention concerning the amount of
fees incurred through May 21, 2012. Pistotnik does not contest the $23,412.50 figure
asserted by Mercedes and does not contend on appeal that the reduced fee award is
incorrect. We deem Pistotnik’s failures to either oppose Mercedes’s motion in the trial
court or challenge the propriety of the reduced fee award on appeal a concession that the
reduced fee award is proper on the merits.

       We also observe that the error that Mercedes asked the trial court to correct was
solely Mercedes’ making when it submitted a judgment that was unclear on its face and
that contained language unnecessary for a judgment. The irony that Mercedes was
moving to vacate the very judgment it prepared is not lost on us.

6     Pistotnik contends the trial court recognized it lacked jurisdiction because its
February 28, 2013 minute order granting Mercedes’s motion to correct the judgment
                                               5
       Pistotnik cites 20th Century Insurance Co. v. Superior Court (2001)
90 Cal.App.4th 1247, 1261, for the proposition that a motion classified as one type of
motion should not be deemed a different kind of motion absent a showing of extremely
good cause.7 That rule applies only when the Court of Appeal is being asked to deem one
type of motion as another. (Sole, supra, 128 Cal.App.4th at pp. 192-193.) It does not
apply to the trial court, which is free to consider the motion regardless of its label. (Id. at
p. 193, citing Passavanti, supra, 225 Cal.App.3d at p. 1609.)

2.     The Motion to Quash Was Proper

       Pistotnik contends the trial court erred by quashing her writ of execution on the
original judgment. This argument is based solely on the contention that the trial court
erred by amending the judgment. Because we conclude that the trial court in fact
properly amended the judgment, the order quashing the writ of execution was correct,
and we affirm that order.




included the following comment: “The Court further orders that if in fact the Superior
Court retains jurisdiction of this case, any further motion shall be brought to this Court in
Department 1.” Without a reporter’s transcript to assist us, we view this ambiguous
comment as nothing more than a recognition that the trial court might soon lose
jurisdiction by way of settlement or appeal. It may also reflect that by the time the court
made its ruling on February 28, 2013, the trial judge had become Supervising Judge of
the Civil Courts and was then presiding in Department 1.
7
       Pistotnik contends Mercedes lacked good cause in part because it prepared the
erroneous original judgment and in part because it did not timely move for
reconsideration.
                                               6
                                    DISPOSITION

      The order quashing Pistotnik’s writ of execution and the issuance of the amended
judgment are affirmed. Each side to bear its own costs.




                                               RUBIN, ACTING P. J.
WE CONCUR:




             FLIER, J.



             GRIMES, J.




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