Filed 12/14/21 3123 SMB v. Horn CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

3123 SMB LLC et al.,

Plaintiffs and Appellants,

v.

STEVEN J. HORN,

Defendant and Respondent.

B309412

(Los Angeles County

Super. Ct. No. BC682318)

APPEAL from an amended judgment of the Superior Court 

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

Law Office of David Knieriem and David Knieriem; Kling 

Law Firm and Anthony N. Kling for Plaintiffs and Appellants.

Skane Mills and Jonathan Belaga; Valerie F. Horn & 

Associates and Valerie F. Horn; and Law Offices of Steven J. 

Horn and Steven J. Horn for Defendant and Respondent.
2

INTRODUCTION

Steven J. Horn obtained a judgment confirming an

arbitration award against Anthony Kling (Kling) and Mary J. 

Kling. Kling appealed from the judgment. (Kling v. Horn

(Dec. 14, 2021, B305967) [nonpub. opn.] (Kling I).) While that 

appeal was pending, the trial court granted a motion by Horn to 

amend the judgment to add three entities as judgment debtors: 

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

Kling Entities). The court ruled the entities were alter egos of 

the Klings and amended the judgment. The Kling Entities 

appealed from the amended judgment—the subject of this appeal 

(Kling II). But because Kling had already filed a notice of appeal

from the original judgment, the trial court did not have 

jurisdiction to amend the judgment. One judgment, two appeals: 

What to do? We affirm in Kling I and reverse in Kling II.

FACTUAL AND PROCEDURAL BACKGROUND

As discussed in more detail in our opinion in Kling I, supra, 

B305967, this action arises from a fee dispute between Horn, an 

attorney, and the Klings, his former clients.1 (Kling is also an 

attorney.) In September 2014 Horn initiated an arbitration with 

the American Arbitration Association (AAA) against the Klings. 

An arbitrator eventually issued an award in September 2018 in 

1 Horn represented the Klings in a lawsuit—Kling in his 

individual capacity and as the trustee of his trust, but Mary 

Kling only as the trustee of her named trust. All references to 

the Klings are to the Klings in those capacities.
3

favor of Horn and against the Klings and the Kling Entities.

Horn filed a petition to confirm the award, and the Klings filed a 

petition to vacate the award. The trial court granted Horn’s

petition to confirm the award against the Klings (but not against

the Kling Entities), denied the Klings’ petition to vacate the 

award, and in March 2020, entered judgment in favor of Horn

and against the Klings. 

Shortly after the court entered the judgment, Horn filed a 

motion to amend the judgment to add the Kling Entities as 

judgment debtors (although not as alter egos of Kling). Before 

the trial court ruled on the motion, Kling filed a notice of appeal 

from the judgment. The Klings then opposed Horn’s motion to 

amend the judgment, arguing (among other things) the trial 

court did not have jurisdiction to amend the judgment while the 

appeal was pending.

The trial court granted Horn’s motion. The court ruled that 

it retained jurisdiction to amend the judgment under Code of 

Civil Procedure section 917.1, subdivision (a)(1), which provides 

that, “[u]nless an undertaking is given, the perfecting of an 

appeal shall not stay enforcement of the judgment or order in the 

trial court if the judgment or order is for . . . [¶] . . . [m]oney or 

the payment of money . . . .”2 The court also ruled each of the

Kling Entities was an alter ego of the Klings and “had the 

opportunity to ‘litigate’ the matter.” The court entered an 

amended judgment, from which the Kling Entities timely filed 

this appeal.

2 Undesignated statutory references are to the Code of Civil 

Procedure.
4

DISCUSSION

We asked the parties under Government Code section 

68081 to brief whether the trial court had jurisdiction to amend 

the judgment to add the Kling Entities after Kling filed his notice 

of appeal from the judgment. Horn argues the trial court had 

jurisdiction to add judgment debtors to the judgment while the 

judgment was on appeal “because it ensured that justice would be 

done and there was no undertaking posted [to] stay enforcement 

of the judgment pending appeal.” Kling asserts the “lone 

reported case to address this issue” ultimately “declined to 

specifically address” it. We conclude that, because the trial court 

did not have jurisdiction, the amended judgment is void and must 

be reversed.

3

A. Section 916 Deprived the Trial Court of Jurisdiction 

To Amend the Judgment

Section 916 provides that, unless a listed exception 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, including enforcement of 

the judgment or order, but the trial court may proceed upon any 

other matter embraced in the action and not affected by the 

judgment or order.” “[S]ection 916, as a matter of logic and 

3 A “void judgment or order is appealable if that judgment or 

order is otherwise appealable.” (Varian Medical Systems, Inc. v. 

Delfino (2005) 35 Cal.4th 180, 200; see Phelan v. Superior Court

(1950) 35 Cal.2d 363, 366; Young v. Tri-City Healthcare Dist.

(2012) 210 Cal.App.4th 35, 51; In re Marriage of Micalizio (1988) 

199 Cal.App.3d 662, 670, fn. 2.)
5

policy, divests the trial court of jurisdiction over the subject 

matter on appeal—i.e., jurisdiction in its fundamental sense.” 

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

198 (Varian); see Vosburg v. Vosburg (1902) 137 Cal. 493, 496; 

Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1409; 

Davis v. Thayer (1980) 113 Cal.App.3d 892, 912.) The “filing of a 

notice of appeal deprives the trial court of jurisdiction of the 

cause and vests jurisdiction with the appellate court until the 

reviewing court issues a remittitur.” (In re Anna S. (2010) 

180 Cal.App.4th 1489, 1499.) “The purpose of the automatic stay 

. . . ‘is to protect the appellate court’s jurisdiction by preserving 

the status quo until the appeal is decided’” and to “‘prevent[ ] the 

trial court from rendering an appeal futile by altering the 

appealed judgment or order by conducting other proceedings that 

may affect it.’” (Varian, at p. 189; accord, LAOSD Asbestos Cases 

(2018) 28 Cal.App.5th 862, 872; Elsea v. Saberi (1992) 

4 Cal.App.4th 625, 629.) 

“When triggered, [section 916] bars all proceedings”in the 

trial court “that ‘directly or indirectly seek to “enforce, vacate or 

modify [the] appealed judgment”’” (LAOSD Asbestos Cases, supra, 

28 Cal.App.5th at p. 872; see Varian, supra, 35 Cal.4th at p. 189), 

and generally divests the trial court of the “‘power to amend or 

correct its judgment . . . .’” (Vosburg v. Vosburg, supra, 137 Cal. 

at p. 496; accord, Davis v. Thayer, supra, 113 Cal.App.3d at 

p. 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”].) There is little dispute here 
6

that, absent an applicable exception, section 916 precluded the 

trial court from amending the judgment while that judgment was 

under review in this court. 

It is true, as Kling (for some reason) suggests, the court 

may correct a “clerical error” in a judgment, even after a party 

perfects an appeal, “when the mistake is obvious from the other 

parts of the record and the proper correction can be made 

therefrom.” (Crawford v. Meadows (1921) 55 Cal.App. 4, 11; see 

Lang v. Superior Court (1961) 198 Cal.App.2d 16, 17-18; Lewis v. 

Firestone (1959) 170 Cal.App.2d 129, 139-140.) And the trial 

court’s amendment to the judgment adding the Kling Entities as 

judgment debtors was a correction of sorts. The court’s authority 

to amend a judgment “‘“‘to add additional judgment debtors on 

the ground that a person or entity is the alter ego of the original 

judgment debtor . . . “‘is an equitable procedure based on the 

theory that the court is . . . inserting the correct name of the real 

defendant.’”’”’” (Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 

942; accord, Rubio v. CIA Wheel Group (2021) 63 Cal.App.5th 82, 

101; Lopez v. Escamilla (2020) 48 Cal.App.5th 763, 766.) But it 

was not a correction of a mere clerical error.

“Clerical error . . . is to be distinguished from judicial error 

which [generally] cannot be corrected by amendment.” (In re 

Candelario (1970) 3 Cal.3d 702, 705; accord, Aspen Internat. 

Capital Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204; 

Pettigrew v. Grand Rent-A-Car (1984) 154 Cal.App.3d 204, 210.) 

“‘The difference between judicial and clerical error rests . . . on 

whether [the alleged error] was the deliberate result of judicial 

reasoning and determination’” and on “‘whether the error was 

made in rendering the judgment, or in recording the judgment 
7

rendered.’” (Machado v. Myers (2019) 39 Cal.App.5th 779, 797; 

see Candelario, at p. 705; Aspen, at p. 1204.) 

Here, the trial court initially decided to confirm the AAA 

arbitration award and enter judgment against the Klings but not 

the Kling Entities because none of the Kling Entities had signed

an arbitration agreement with Horn and some of the entities did 

not exist at the time Horn provided legal services to the Klings. 

That ruling was an intentional decision based on the trial court’s 

understanding of the law and the facts; it was not an 

“inadvertent one made by the court which cannot reasonably be 

attributed to the exercise of judicial consideration or discretion.” 

(Bowden v. Green (1982) 128 Cal.App.3d 65, 71; see Machado v. 

Myers, supra, 39 Cal.App.5th at p. 798 [parties were not asking 

the court to correct a clerical error where the parties “were 

asking the court to correct the language of the judgment which 

the court intentionally adopted”]; Tokio Marine & Fire Ins. Corp. 

v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 118 

[error was not a clerical error where there was “no evidence that 

anyone suggested to the trial judge at the time of rendition of 

judgment that the [appellants] be named as judgment debtors,” 

that “the court had an intent to include them as judgment 

debtors,” or that “their name was omitted through mere 

inadvertence”].) 

The trial court subsequently decided to amend the 

judgment, not because of prior inadvertence, but because, in the 

court’s opinion, Horn proved under section 187 the Kling Entities 

were alter egos of the Klings and could be added as judgment 

debtors under such a theory. This was a separate exercise of the 

court’s discretionary power based on new facts, not a correction of 

a clerical error. (See Epley v. Califro (1958) 49 Cal.2d 849, 854 
8

[order setting aside a dismissal was not a correction for 

inadvertence or clerical error, but rather “a new decision after 

reconsideration of the facts and the applicable legal principles”]; 

Danko v. O’Reilly (2014) 232 Cal.App.4th 732, 736 [“‘“The 

decision to grant an amendment”’” to add a judgment debtor 

under an alter ego theory “‘“lies in the sound discretion of the 

trial court.”’”]; Greenspan v. LADT LLC (2010) 191 Cal.App.4th 

486, 508 [same]; see also Favila v. Pasquarella, supra, 

65 Cal.App.5th at p. 947 [stating the requirements for adding a 

judgment debtor under an alter ego theory].)4 Indeed, Horn 

concedes he “filed a motion to amend the judgment to add [the 

Kling Entities] because the trial court’s reasoning in removing 

[them] from the judgment was legally incorrect.” The clericalmistake exception to section 916 did not apply.

At oral argument, counsel for the Kling entities (who 

should be arguing the stay under section 916 applies) cited the 

court’s recent decision in Blizzard Energy, Inc. v. Schaefers (2021) 

4 At least one court has suggested that amending a judgment 

to add a judgment debtor under an alter ego theory corrects a 

clerical error, even where the amendment is based on extrinsic 

evidence. (See Thomson v. L. C. Roney & Co. (1952) 

112 Cal.App.2d 420, 427.) The court in Thomson was discussing 

the court’s general authority to amend a judgment to add a 

judgment debtor under an alter ego theory, not whether the court 

has jurisdiction to do so while the judgment is on appeal. There 

is no dispute a trial court generally has authority to make such 

an amendment under section 187. (See Favila v. Pasquarella, 

supra, 65 Cal.App.5th at p. 942.) But as discussed, such an 

amendment is not a clerical error that a court can correct after 

the defendant perfects an appeal.
9

71 Cal.App.5th 832, which held section 916 does not apply to 

proceedings under the Sister State Money Judgments Act (see 

§ 1710.10 et seq.) because they are “special proceedings, not civil 

actions.” (Blizzard Energy, at p. 843.) “Part 2 of the Code of Civil 

Procedure,” which includes section 916, “extends generally only 

to civil ‘actions,’ and not to ‘special proceedings’” (Agricultural 

Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 

43 Cal.3d 696, 707), and “‘[h]earings to confirm an arbitration 

award are “special proceedings” as contrasted with “actions”’”

(Paramount Unified School Dist. v. Teachers Assn. of Paramount 

(1994) 26 Cal.App.4th 1371, 1387; see §§ 22, 23). But an appeal 

from a judgment confirming an arbitration award is an appeal 

from a judgment in a civil action. (See § 1287.4 [judgment 

confirming an arbitration award judgment “has the same force 

and effect as, and is subject to all the provisions of law relating 

to, a judgment in a civil action of the same jurisdictional 

classification”]; § 1294.2 [appeal from a judgment confirming an 

arbitration award “shall be taken in the same manner as an 

appeal from an order or judgment in a civil action”]; Rubin v. 

Western Mutual Ins. Co. (1999) 71 Cal.App.4th 1539, 1547 [“The 

express language of section 1287.4 requires that a judgment 

imposed after confirmation of an arbitration award be treated as 

one in an ordinary civil action.”]; Hall, Goodhue, Haisley &

Barker, Inc. v. Marconi Conf. Center Bd. (1996) 41 Cal.App.4th 

1551, 1555 [“the express mandate of section 1287.4 [is] that 

judgments confirming arbitration awards are subject to all the 

provisions of law relating to a judgment in a civil action”]; 

Trollope v. Jeffries (1976) 55 Cal.App.3d 816, 823 [“[a]s respects 

confirmation, its purpose is to raise the award to the status of a 
10

judgment having the same force as judgment in a civil action”].) 

Therefore, section 916 applies. 

B. Adding the Kling Entities as Judgment Debtors Was 

Not Enforcing the Judgment Under Section 917.1

Horn argues the “automatic stay from Code of Civil 

Procedure section 916 does not stay enforcement of money 

judgments, which are considered collateral matters and are 

excepted from the automatic stay.” As discussed, section 917.1, 

subdivision (a)(1), does provide an exception to the stay of trial 

court proceedings under section 916 for the enforcement of money 

judgments not subject to an undertaking, and Kling did not file 

an undertaking to stay enforcement of the judgment pending 

appeal. Horn argues that the trial court’s amendment adding the 

Kling Entities as judgment debtors was a means of enforcing the 

judgment and that, under section 917.1, subdivision (a)(1), the 

trial court had jurisdiction to amend the judgment. 

The language of section 917.1, however, does not support 

Horn’s interpretation.5 Section 917.1 uses the term 

“enforcement,” not “amendment,” to refer to trial court 

proceedings that are not stayed when an appealing party fails to 

5 “The law governing the right of an appellant to a stay of 

execution pending appeal is totally statutory, created by 

legislative enactment. As such, it is subject to the general rules 

of statutory construction, including the basic proposition that 

such enactments should be construed in accordance with 

legislative intent.” (Miller v. Gross (1975) 48 Cal.App.3d 608, 

612.) The interpretation of a statute is a question of law we 

review de novo. (Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 

190.)
11

post an undertaking. Conversely, cases repeatedly refer to the 

procedure of adding a judgment debtor to a judgment as an alter 

ego under section 187 as one to “correct,” “modify,” or “amend” 

the judgment, not one to “enforce” it. (See, e.g., Motores De 

Mexicali, S. A. v. Superior Court (1958) 51 Cal.2d 172, 174-175; 

Favila v. Pasquarella, supra, 65 Cal.App.5th at p. 942; 

MSY Trading, Inc. v. Saleen Automotive, Inc. (2020) 

51 Cal.App.5th 395, 402; Wolf Metals Inc. v. Rand Pacific Sales

Inc. (2016) 4 Cal.App.5th 698, 703-704; Toho-Towa Co., Ltd. v. 

Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 

1106.)

Moreover, moving to amend a judgment to add an 

additional judgment debtor is not part of the law governing 

enforcement of judgments. A motion to amend a judgment to add 

a judgment debtor is an equitable procedure that derives from 

the court’s authority to adopt proceedings necessary to carry its 

jurisdiction into effect under section 187. (Favila v. Pasquarella, 

supra, 65 Cal.App.5th at p. 942; Triyar Hospitality Management, 

LLC v. WSI (II)-HWP, LLC (2020) 57 Cal.App.5th 636, 641;

Highland Springs Conference & Training Center v. City of 

Banning (2016) 244 Cal.App.4th 267, 289; NEC Electronics Inc. v. 

Hurt (1989) 208 Cal.App.3d 772, 778.) Though it may indirectly

assist the judgment creditor in satisfying the original judgment 

(see Wells Fargo Bank, N.A. v. Weinberg (2014) 227 Cal.App.4th 

1, 7; Greenspan v. LADT LLC, supra, 191 Cal.App.4th at 

pp. 516-517), it is not an enforcement procedure under the 

Enforcement of Judgments Law (§ 680.010 et seq.). 

In contrast, the Enforcement of Judgments Law, which is 

“set out elsewhere in the Code of Civil Procedure and in the 

California Rules of Court,” provides “in detail several means of 
12

enforcing a judgment, including liens on real and personal 

property (§§ 697.010-697.920), writs of execution (§§ 699.010-

701.830), garnishment of wages (§§ 706.010-706.154) and writs of 

possession or sale (§§ 712.010-716.030).” (Conservatorship of 

McQueen (2014) 59 Cal.4th 602, 609; accord, Highland Springs

Conference & Training Center v. City of Banning (2019)

42 Cal.App.5th 416, 424.) But nowhere does the Enforcement of 

Judgments Law “suggest[ ] that the filing and pursuit of an alter 

ego motion to amend a judgment to add an additional judgment 

debtor . . . constitutes the enforcement of the judgment the 

movant seeks to amend.” (Highland Springs, at pp. 425-426; see 

id. at pp. 423-425 [provisions in the Code of Civil Procedure 

governing “prejudgment costs,” rather than “postjudgment 

enforcement costs and fees,” applied to attorneys’ fees sought in 

connection with a motion to amend the judgment to add 

judgment debtors under an alter ego theory]; but see Oyakawa v. 

Gillett (1992) 8 Cal.App.4th 628, 630, fn. 2 [“arguably, the 

amendment adding a judgment debtor is simply a matter of 

enforcement,” but “[h]owever interesting this issue may be, our 

resolution [of the appeal] on other grounds . . . makes it 

unnecessary to consider this point”].) Indeed, it is not until the 

court grants the motion under section 187 that the judgment 

creditor can take any enforcement actions against the new 

judgment debtors. (See Highland Springs, at pp. 425-426 [while 

the Enforcement of Judgments Laws procedures result, “at least 

to some degree, in the satisfaction of the judgment,” a “section 

187 motion to amend a judgment to add an additional judgment 

debtor,” if granted, “merely allows the judgment creditor to 
13

enforce the now-amended judgment against the additional 

judgment debtor”].)6

C. The Amended Judgment Must Be Reversed

Because section 916 divested the trial court of jurisdiction 

over the subject matter of the judgment, “any ‘proceedings taken 

after the notice of appeal was filed are a nullity’” and “void—and 

not merely voidable.” (Varian, supra, 35 Cal.4th at pp. 197-198; 

see Davis v. Thayer, supra, 113 Cal.App.3d at p. 912.) When 

“‘there is an appeal from a void judgment’”—or in this case, a void 

amended judgment—our jurisdiction “‘is limited to reversing the 

trial court’s void acts.’” (Varian, at p. 200; see Griset v. Fair 

Political Practices Com. (2001) 25 Cal.4th 688, 701.) So that is 

what we must do here. Of course, because in Kling I we affirm 

the judgment confirming the arbitration award, the trial court 

will soon have jurisdiction to hear a(nother) motion to amend the 

judgment to add additional judgment debtors. (See Favila v. 

Pasquarella, supra, 65 Cal.App.5th at p. 949 [a judgment creditor 

may add an alter ego as a judgment debtor under section 187 at 

any time].)

6 Nor did ensuring “justice be done,” as Horn asserts, give 

the trial court jurisdiction to amend the judgment. Though 

courts may have power “to pursue whatever course . . . the justice 

of the case require[s]” (Bowers v. Dickerson (1861) 18 Cal. 420, 

421), the pursuit of justice, without more, does not give courts

jurisdiction where they otherwise lack it.
14

DISPOSITION

The amended judgment is reversed. The parties are to bear 

their costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.