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Filed 12/22/23 Sutherland v. Arent CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CANDYCE K. SUTHERLAND, as TRUSTEE, Plaintiff and Respondent,

v. BRIEN J. ARENT et al., Defendants and Appellants. A166632 (Lake County Super. Ct. No s . PR502326 & C V418910 )

After this court affirmed a judgment against appellants Brien Arent and Eva Keiser ( Sutherland v. Arent ( Mar

. 24, 2022, A160404) [nonpub. opn.] ( Sutherland I

)), respond ent Candyce Sutherland sought to recover her appellate costs. The trial court rejected appellants’ argument that the costs should be denied since the underlying judgment against them was “void.” In this memorandum opinion, we affirm. 1
Sutherland and Arent are siblings, and Keiser is Arent’s longtime partner. After Arent and Sutherland’s father died in February 2017, yearslong litigation about their father’s estate followed. T he trial court

1 A memorandum opinion disposes of cases that raise “no substantial issues of law or fact,” including appeals that raise “factual issues that a re determined by the substantial evidence rule.” (California Standards of Judicial Administration, section 8.1.)2

appointed Sutherland trustee over the trust that contained t he property of Sutherland, Arent, and their other two siblings’ late parents

. Sutherland
thereafter initiated unlawful detainer proceedings against both Arent and
Keiser to remove them from the ir home , which was trust property. Following a brief trial, t he trial court denied Sutherland relief after appellants produced a lease agreement that purported to permit them full access to the property. Sutherland filed a civil suit against both appellants to cancel the lease and
for other relief. She also filed a petition for instructions in the probate action

. The two cases were consolidated for trial. Arent and Keiser have been unrepresented throughout most of these proceedings. Keiser testified at the bench trial on Sutherland’s claims

. 2 She
also took a n active role in the trial , as she made arguments to the court and also questioned witnesses

. At one point Sutherland’s trial attorney object ed

to Keiser raising an issue relevant to the probate proceeding since Keiser was

not a beneficiary of the trust a nd thus not a party. Keiser argued that since the trust held property where she had been living for decades she “ha[d] a right to speak about being evicted and being put out on the street, and that whether it’s the successor trustee who’s doing it or a re gular landlord who is doing it that is not a trustee, I still have a right to address those issues.” The trial court allowed Keiser to question the witness at issue. Following trial, the trial court concluded that the lease agreement appellants had prese nted was a forgery and that both appellants had misappropriated property belonging to the trust, and it granted Sutherland the discretion to sell trust property.

2 On its own motion, the court augments the record to include the reporter’s transcript from Sutherland I

.3

After entry of judgment, Sutherland filed a memorandum of costs in
the trial court . At the hearing on appellants’ motion to tax costs, 3 Keiser argued that she was being asked to pay costs for an action where she was not a party. The trial court observed that “[w]hen I first started hearing this case, I was a little confused, Ms. Keiser, as to why you were making all the commentary, and you insisted that you were a party to all of these things and therefore you weren’t practicing law without a license. You were a party, a defendant, et cetera. [¶] To make the argument now that somehow that’s not the case is difficult for this Court to see as anything bu t disingenuous. I was always confused as to why you were always in the cases, you’re listed in the

cases

. . . , and the general statement was that this affected you and you were a party. [¶] I have accepted that going forward, but to now make the argument that somehow you are not a party this, well, makes everything that you did look like you were trying to practice law without a license. [¶] So I’m going to say that that argument is not going to be considered by the Court because it’s just simply

— it’s just simply inconsistent with what has been stated by you and/or Mr. Arent thr ough the entire case. ”
In Sutherland I

, this court affirmed the judgment against appellants. The disposition stated, “Sutherland shall recover her costs on appeal.” This was a reference to California Rules of Court, rule 8.278 (a)(1) (rule 8.278) , which provides that a prevailing party in a civil case is entitled to costs on appeal. Appellants petitioned for review in the Supreme Court, but the petition was denied on June 22, 2022 (S274358). This court issued the
remittitur on June 28.

3 On its own motion, the court augments the record to include the reporter’s transcript from Sutherland v. Arent (June 14, 2022, A161411) [nonpub. opn .] ( Sutherland II ) , which affirmed the costs award

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Within 40 days after the issuance of the remittitur (rule 8.278(c)(1)), Sutherland filed a memorandum of costs on appeal. She sought filing fees
and record

- preparation and copying costs, for a total of $3,950. Appellants filed a “Motion to Strike Costs on Appeal in its Entirety as Founded Upon a Void Judgment.” For the first time, t hey claimed that the “void judgment” against them was “replete with jurisdictional d efects [that] affected the[ir] procedural due process rights.” Apparently they cont ended that since Keiser was not a beneficiary of the trust at issue and was not a party to the probate proceeding, the single judgment entered in the consolidated action was void. Appellants’ motion did not include any objection to the amounts set forth i n Sutherland’s memorandum of costs. At the hearing on the motion, Keiser acknowledged that she was a party to the civil action but argued that the civil and probate actions required two separate judgments, and that the single judgment entered was thus vo id. The trial court denied the motion to strike costs on appeal, stating that “[i]t’s simply not the right motion for what’s trying to be accomplished, especially since there is something about the judgment and it’s been on appeal already [and]

. . . the motion itself just doesn’t make any sense.” Keiser and Arent appealed. Nowhere in appellants’ opening brief do they argue that the amount
Sutherland was awarded for her appellate costs was excessive. Instead, they contend that the judgment entered aga inst them in Sutherland I was “void” since it was “replete with jurisdictional defects.” In a section of their brief that includes no citations to the record, appellants suggest that Keiser lacked proper notice of the proceedings below, when the overwhelm ing evidence from
Sutherland I and Sutherland II is to the contrary. In another section of the5

opening brief that likewise lacks record citations, appellants appear to attack the judgment that this court already upheld in Sutherland I

. Appellants’ relia nce on Moore v. Kaufman (2010) 189 Cal.App.4th 604 is entirely misplaced. There, the court concluded that a judgment was void as to an attorney, but not her client, since the anti

- SLAPP (strategic lawsuit against public participation) statute (Code Civ. P roc., § 425.16) does not authorize an award of attorney fees against a nonparty attorney. ( Moore at

pp. 607, 615 .) Here, there is nothing whatsoever to suggest the Sutherland I judgment is void. The order denying the motion to strike costs on appeal is affirmed. Sutherland shall recover her costs on appeal. (Rule 8.278(a) (1) .)6 _________________________ Humes, P.J.

WE CONCUR:

_________________________ Banke, J.

_________________________ Getty, J.*

*Judge of the Superior Court of the County of Solano , assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Sutherland v. Are nt A166632