Filed 6/8/22 Kling v. Horn CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ANTHONY N. KLING et al.,

Plaintiffs and Appellants,

v.

STEVEN J. HORN,

Defendant and Respondent.

B310164

(Los Angeles County

Super. Ct. No. BC682318)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, David Sotelo, Judge. Reversed.

Kling Law Firm and Anthony N. Kling; Law Office of 

David Knieriem and David Knieriem for Plaintiffs and 

Appellants.

Valerie F. Horn & Associates and Valerie F. Horn for 

Defendant and Respondent.
2

INTRODUCTION

This is the third appeal in long-running litigation between 

attorney Steven Horn and his former client, Anthony Kling (also 

an attorney), litigation that continues, even as we decide this 

appeal. Kling and three entities he is associated with—Kling 

Corporation, 3123 SMB LLC, and Lincoln One Corporation (the 

Kling Entities)—appeal from a postjudgment, post-notice-ofappeal order awarding Horn attorneys’ fees. The trial court

initially entered a judgment that stated each side was to bear its 

fees and costs. Horn filed a motion to amend the judgment to 

remove that provision, in preparation for filing a motion for 

attorneys’ fees. But before the court ruled on Horn’s motion,

Kling filed a notice of appeal from the judgment. The trial court 

eventually granted Horn’s motion to amend the judgment, 

amended the judgment to delete the provision stating each side 

was to bear its fees and costs, and issued an award of attorneys’ 

fees in favor of Horn and against Kling and the Kling Entities.

Kling and the Kling Entities appeal, contending the trial 

court did not have jurisdiction to amend the judgment and award 

attorneys’ fees after Kling filed his notice of appeal. They have a 

point: Because the original judgment stated each side was to 

bear its costs and fees, the trial court did not have jurisdiction to 

amend the judgment while it was on appeal. Though there are 

exceptions to this rule, Horn does not argue any of them applies. 

Therefore, we reverse.
3

FACTUAL AND PROCEDURAL BACKGROUND

This appeal, as did the previous two, arises out of a fee 

dispute between Kling and Horn that began in 2014. (See

Kling v. Horn (Dec. 14, 2021, B305967) [nonpub. opn.] (Kling I); 

3123 SMB LLC v. Horn (Dec. 14, 2021, B309412) [nonpub. opn.]

(Kling II).) For purposes of this appeal, we can start in

September 2018, when an arbitrator issued an award in favor of

Horn and against Kling. Horn filed a petition to confirm the 

arbitration award, which Kling opposed. The trial court granted

Horn’s petition to confirm and, on March 6, 2020, entered

judgment in favor of Horn and against Kling.

1

The judgment confirming the arbitration stated that “each 

side [is] to bear [its] own costs and fees.” On March 16, 2020

Horn filed a motion “to correct” this portion of the judgment,

arguing his retainer agreement with Kling included an attorneys’

fee provision that authorized him to recover attorneys’ fees and 

costs incurred in his petition to confirm the arbitration award. 

Horn also sought to add the Kling Entities to the judgment as 

judgment debtors under Code of Civil Procedure section 187. 

Kling filed a notice of appeal from the judgment before the 

court ruled on Horn’s motion to amend. In July 2020 the trial 

court granted Horn’s request to correct the portion of the 

judgment requiring each side to bear its fees and costs and his

1 The trial court entered judgment against Kling individually 

and as trustee of the Anthony N. Kling Trust of 1997. References 

to Kling include Kling in both capacities.
4

request to add the Kling entities as judgment debtors.

2 

Regarding the former, the court ruled that “Horn is entitled to 

fees and costs based on the retainer agreement” and that the 

court would award Horn attorneys’ fees “after the appropriate 

motion is filed.” 

The court did not file an amended judgment until 

September 28, 2020. In the amended judgment the court 

purported to strike the portion of the judgment stating each side 

was to bear its fees and costs and purported to add the Kling 

Entities as judgment debtors. Three weeks later Horn filed a 

motion for attorneys’ fees, seeking fees against both Kling and 

the Kling Entities. A substantial portion of the attorneys’ fees 

Horn sought were fees incurred confirming the arbitration award 

and obtaining the original judgment against Kling. The court 

granted Horn’s motion and awarded him $119,010 in attorneys’ 

fees against Kling and the King Entities. Kling and the entities

timely appealed from the order. 

DISCUSSION

A. The Trial Court Erred in Awarding Fees Against the 

Kling Entities

In Kling II, supra, B309412, we reversed the 

September 28, 2020 amended judgment because we concluded the 

trial court did not have jurisdiction to add the Kling Entities as 

judgment debtors after Kling filed his notice of appeal in Kling I. 

2 Horn had filed a notice of cross-appeal of the original 

judgment but abandoned the cross-appeal after the trial court 

granted his motion to amend. 
5

The parties agree, as do we, that because we reversed the 

amended judgment that added the Kling Entities, the court erred 

in awarding attorneys’ fees against those entities.

B. The Trial Court Erred in Awarding Fees Against 

Kling

The procedural mess created by the court entering an 

amended judgment after Kling filed a notice of appeal from the 

original judgment makes evaluating whether the trial court erred 

in awarding attorneys’ fees against Kling a little more 

complicated. Code of Civil Procedure section 916 states that,

unless one of the listed exceptions applies, “the perfecting of an 

appeal stays proceedings in the trial court upon the judgment or 

order appealed from or upon the matters embraced therein or 

affected thereby, . . . but the trial court may proceed upon any 

other matter embraced in the action and not affected by the 

judgment or order.” “When triggered, the automatic stay 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; see Varian

Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189

(Varian)), and generally divests the trial court of the “‘power to

amend or correct its judgment.’” (Vosburg v. Vosburg (1902) 

137 Cal. 493, 496; accord, Davis v. Thayer (1980) 113 Cal.App.3d 

892, 912; Estate of Hirschberg (1964) 224 Cal.App.2d 449, 

466-467; Huskey v. Berini (1955) 135 Cal.App.2d 613, 617; 

Linstead v. Superior Court (1936) 17 Cal.App.2d 9, 12; see 

Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 

658, 666 [“an appeal from a judgment order strips the trial court 

of any authority to rule on the judgment”].) “Indeed, [Code of 
6

Civil Procedure] section 916, as a matter of logic and policy, 

divests the trial court of jurisdiction over the subject matter on 

appeal—i.e., jurisdiction in its fundamental sense.” (Varian, at 

p. 198; accord, Blizzard Energy, Inc. v. Schaefers (2021) 

71 Cal.App.5th 832, 842; see People v. Bhakta (2008) 

162 Cal.App.4th 973, 981 [“trial court acted in excess of its 

subject matter jurisdiction by entering an amended judgment 

modifying the terms of the permanent injunction after a notice of 

appeal had been filed”].)

“By contrast, an appeal does not stay proceedings on 

‘ancillary or collateral matters which do not affect the judgment 

[or order] on appeal’ even though the proceedings may render the 

appeal moot.” (Varian, supra, 35 Cal.4th at p. 191; see 

Association for Los Angeles Deputy Sheriffs v. Macias (2021) 

63 Cal.App.5th 1007.) As Kling acknowledges, generally “an 

award of attorney fees as costs is a collateral matter which is 

embraced in the action but is not affected by the order from 

which an appeal is taken,” and “[c]onsequently, filing of a notice 

of appeal . . . does not prevent the trial court from determining a 

proper award of attorney fees claimed as costs.” (Bankes v. Lucas 

(1992) 9 Cal.App.4th 365, 369; see United Grand Corp. v. Malibu 

Hillbillies, LLC (2019) 36 Cal.App.5th 142, 161 [“‘The primary 

example of collateral matters not affected by a notice of appeal 

are awards of attorney fees or sanctions.’”].)

Kling argues, however, that because the original judgment 

stated each side was to bear its costs and fees, the order 

awarding Horn attorneys’ fees was not collateral to the judgment. 

Again, Kling has a point. 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.’” 
7

(Varian, supra, 35 Cal.4th at p. 189; see LAOSD Asbestos Cases, 

supra, 28 Cal.App.5th at p. 872.) Similarly, by issuing an order 

awarding costs and fees to Horn—an award that included the 

costs and fees Horn incurred to obtain the original judgment—the 

trial court “indirectly” sought to “‘modify [the] appealed 

judgment.’” (Varian, at p. 189; see LAOSD Asbestos Cases, at 

p. 872) By granting Horn’s motion for attorneys’ fees to amend 

the prior judgment that each side was to bear its fees and costs, 

the trial court effectively amended the judgment, which the court 

had no jurisdiction to do after Kling filed his notice of appeal. 

(See People v. Bhakta, supra, 162 Cal.App.4th at p. 981 [trial 

court acted in excess of jurisdiction by adding to a judgment, 

after a party had filed a notice of appeal from the judgment, that

“‘[a]ny future costs relating to enforcement and/or modification of 

the [j]udgment shall also be recoverable’”].)

The facts here differ from those where courts have held an 

award of attorneys’ fees was collateral to an appealed judgment 

or order. In none of those cases did the trial court state in the 

appealed-from judgment or order that neither side was entitled to 

fees and costs. (See, e.g., Korchemny v. Piterman (2021) 

68 Cal.App.5th 1032, 1052 [trial court had jurisdiction to consider 

a motion for attorneys’ fees after the plaintiff filed a notice of 

appeal from a judgment following an order granting a motion for 

summary judgment]; People v. Bhakta, supra, 162 Cal.App.4th at 

pp. 980-981 [after the defendant filed a notice of appeal from a 

judgment that awarded the plaintiff “‘attorney[ ] fees, costs and 

court costs incurred’” in the case, the “trial court had jurisdiction”

to rule on a motion for attorney fees and costs]; Bankes v. Lucas, 

supra, 9 Cal.App.4th at pp. 368-369 [trial court had jurisdiction 

to award attorneys’ fees incurred in postjudgment proceedings 
8

after the defendant filed a notice of appeal from a judgment 

awarding damages and attorneys’ fees]; In re Marriage of 

Sherman (1984) 162 Cal.App.3d 1132, 1136, 1140 [in a marriage 

dissolution action, the trial court had jurisdiction to consider the 

wife’s motion for attorneys’ fees after the husband filed notice of 

appeal from an order denying a request to terminate spousal 

support].)

Significantly, Horn has not responded to any of Kling’s 

arguments why the court erred in awarding fees against Kling

(aside from conceding the award against the Kling Entities was 

improper). Horn does not, for example, contend any exception 

applies that would have permitted the trial court to amend the 

judgment and award fees to Horn after Kling filed his notice of 

appeal (though there may be some that apply). (See County of 

Butte v. Bach (1985) 172 Cal.App.3d 848, 867 [deeming “matter 

submitted on the [opening] brief” where the respondent did not 

respond to the appellant’s contentions]; see also California Ins. 

Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2005) 

128 Cal.App.4th 307, 371 fn. 2.)3

3 Because we reverse the order on the ground the trial court 

did not have jurisdiction to award attorneys’ fees after Kling filed 

his notice of appeal, we do not consider Kling’s argument that 

Horn’s request for attorneys’ fees was untimely.
9

DISPOSITION

The order granting Horn’s motion for attorneys’ fees is 

reversed. The parties are to bear their costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.