Filed 8/25/26 Soltanabadi v. Aminpour CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
AHMAD EDDIE SOLTANABADI, B337756
Plaintiff and Appellant, (Los Angeles County v. Super. Ct. No. 20STCV28542)
ATAOLLAH AMINPOUR et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles County, William F. Fahey, Judge. Affirmed.
Farivar Law Firm, Fahim Farivar; Ross, Peter W. Ross, Ira Bibbero and Steven B.F. Stiglitz for Plaintiff and Appellant.
Kashfian & Kashfian, Robert A Kashfian, Ryan D.
Kashfian and Eric W. Wang for Defendants and Respondents.
____________________________
INTRODUCTION
After having judgment entered against him for approximately $4.86 million in a business dispute, Ahmad Soltanabadi turned around and sued persons and entities involved in that same business: Ataollah Aminpour, Michael Aminpour, Daniel Aminpour, MD Management 55, Inc., and 522 Canon LLC (collectively, respondents). After Soltanabadi obtained a judgment in that second lawsuit of approximately $2.17 million in his favor, respondents acquired by assignment the earlier judgment against Soltanabadi and sought to offset it against the later judgment against them.
The trial court granted respondents’ motion under Code of Civil Procedure1 section 724.050 to offset the two judgments. In doing so, the court rejected Soltanabadi’s argument that his attorney’s fee lien in the second case was entitled to priority over the offset claim.
Soltanabadi now appeals the court’s offset ruling. His arguments lack merit and we therefore affirm. In making his arguments, Soltanabadi’s attorney Fahim Farivar repeatedly misrepresents the record.2 Given their repeated nature, as well as Farivar’s failure to acknowledge them, these misrepresentations are not the result of innocent mistake but sanctionable misconduct. We accordingly impose sanctions on
1 Unspecified statutory references are to the Code of Civil Procedure.
2 Soltanabadi substituted in Ross LLP as his counsel after the appellate briefing was complete. The sanctionable conduct was committed by Farivar as part of the briefing he submitted, and our criticisms are not directed at Ross LLP or its attorneys.
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Farivar of $5,000 payable in equal part to respondents and this court.
FACTUAL AND PROCEDURAL BACKGROUND A. The Spirit Lawsuit and Judgment We begin by describing the judgment which respondents later acquired by assignment and successfully moved to offset against Soltanabadi’s judgment against them.
On April 3, 2017, Spirit SPE Portfolio CA C-Stores, LLC (Spirit) sued SB Gas and Wash Management, Inc. (SB Gas) and Soltanabadi in the Los Angeles County Superior Court to recover rent and other charges due under leases. The claims arose from transactions in which SB Gas had leased gas station properties from Spirit and in which Soltanabadi had personally guaranteed certain SB Gas lease payment obligations. (Spirit SPE Portfolio CA C-Stores, LLC v. SB Gas and Wash Management, Inc. et al. (case No. BC656516).)
On March 28, 2018, Spirit obtained a judgment (the Spirit judgment) against Soltanabadi for $4,860,831.27 and against SB Gas for $1,240,308.40.3
3 There was an overlap of $100,171.81 in the judgments against Soltanabadi and SB Gas representing attorney’s fees for which they were jointly and severally liable. Soltanabadi’s opening appellate brief represents that he filed a voluntary bankruptcy petition in April of 2024 and in July 2024 he was discharged from pre-petition liabilities, including the Spirit judgment. We disregard this claim as no bankruptcy-related filings are included in the record. Even if this were true, Soltanabadi fails to provide any cogent argument about any impact this discharge would have on the issues before us.
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B. Soltanabadi’s Lawsuit Against Respondents On July 29, 2020, Soltanabadi sued respondents4 alleging that he and Ataollah Aminpour5 entered into a joint venture in which he “contributed funds, and a number of businesses, . . . and [Ataollah] contributed his purported expertise” and “handle[d] all of the day-to-day finances of the [j]oint [v]enture.” Soltanabadi alleged that Ataollah, with the help of the other defendants (members of Ataollah’s family and companies he and his family controlled), misappropriated and diverted the income and assets of the joint venture. Soltanabadi alleged the joint venture engaged in two types of business—operation of gas stations through SB Gas and operation of fast food restaurants through several Illinois companies. Soltanabadi also alleged that Ataollah and his family members defrauded Soltanabadi in personal transactions. Soltanabadi asserted various claims, including for intentional and negligent misrepresentation, breach of contract, and conversion, and sought various types of relief, including compensatory damages and an accounting.
Consistent with Spirit’s allegations in its prior lawsuit, Soltanabadi alleged that SB Gas leased gas stations from Spirit and he had personally guaranteed some of SB Gas’s payment obligations under the leases. Soltanabadi further alleged “SB Gas performed poorly and below expectations under [Ataollah’s] management . . . and . . . [Ataollah] funneled hundreds of thousands of dollars from SB Gas,” which led to, among other
4 Nasrin Aminpour was also named as a defendant but is not a party to this appeal.
5 We refer to Ataollah Aminpour by his first name for clarity and the reader’s ease, and not out of any disrespect.
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things, Soltanabadi agreeing to the personal guaranty. Soltanabadi alleged that SB Gas later arranged for Spirit’s gas stations and other properties to be sold to a third party and that Ataollah diverted money SB Gas received from the transaction for his own use and failed to pay various taxes, which Soltanabadi ultimately had to pay.
Soltanabadi was represented in his 2020 lawsuit by Farivar Law Firm, APC (Farivar). Under their retainer agreement, dated June 3, 2020, Farivar was to be paid hourly rates plus a contingency fee of either 40 or 50 percent, depending on the amount of the recovery. C. Soltanabadi and Respondents Stipulate to Settle their Lawsuit and an Accounting is Conducted Pursuant to the Settlement On August 20, 2021, Soltanabadi and respondents stipulated to settle the second lawsuit. Under the settlement, a neutral forensic accountant would analyze the relevant financial transactions and opine as to the net amounts owed. The parties could file objections to the accountant’s report, and the trial court would make a final determination and enter judgment accordingly.
The forensic accountant issued a final report on April 10, 2023, concluding that respondents owed Soltanabadi $2,553,567.34.6
6 This net amount was based on the accountant’s conclusions that respondents owed Soltanabadi $4,267,756.30 and Soltanabadi owed respondents $1,714,188.96.
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D. Respondents File a Notice of Lien Based on an Assignment of the Spirit Judgment On August 14, 2023, respondents filed a notice of lien based on an assignment to them of the Spirit judgment; the assignment had been executed earlier that month. E. The Court Determines the Amount of the Judgment On August 18, 2023, the court held a hearing on the parties’ objections to the forensic accounting report and found that Soltanabadi was entitled to judgment in the amount of $2,172,180.22. F. Respondents File a Motion to Offset the Spirit Judgment against Soltanabadi’s Anticipated Judgment; the Court Denies the Motion On October 3, 2023, respondents filed a non-statutory motion to offset the Spirit judgment against Soltanabadi’s anticipated judgment. The court denied the motion on October 25, 2023, concluding the motion was premature and respondents could only seek an offset through a procedure established by statute. G. The Trial Court Enters Judgment On December 8, 2023, the trial court entered judgment in favor of Soltanabadi for $2,172,180.22 (the second judgment). The second judgment was apportioned among respondents as follows: $1,827,593.57 to MD Management 55 Inc., $152,978 to Ataollah, $43,010.51 to Michael Aminpour, $74,817.80 to Daniel Aminpour, and $73,780.34 to 522 Canon LLC.
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H. Respondents File a Motion under Section 724.050 to Offset the Spirit Judgment against the Second Judgment On January 5, 2024, respondents filed a motion under section 724.050 to compel Soltanabadi to file an acknowledgment of satisfaction of judgment based on their claim the second judgment was fully satisfied by offsetting against it the larger Spirit judgment. As relevant here, section 724.050 provides a procedure for a judgment debtor to demand the judgment creditor file an acknowledgment of satisfaction of judgment where “a money judgment has been satisfied” and, where the judgment creditor fails to do so, to apply to the court for an order requiring the judgment creditor to comply with the demand. (§ 724.050, subds. (a)(1), (b) & (d).)
Respondents adduced evidence that, on August 15, 2022, Spirit assigned the Spirit judgment to an LLC which in turn assigned the judgment to respondents in August 2023.7 Respondents also adduced evidence that they had demanded Soltanabadi file an acknowledgment of satisfaction of judgment but Soltanabadi refused on the ground “[t]he [second] judgment has not been satisfied.”
Anticipating that Soltanabadi would contend Farivar’s fee lien had priority over the Spirit judgment, respondents contended the Spirit judgment had priority because it was issued before Farivar’s fee lien came into existence. Respondents also contended the Spirit judgment had priority because it arose from a transaction which was also involved in Soltanabadi’s lawsuit.
7 Respondents also adduced evidence that notices of the assignments were filed and served in the Spirit lawsuit.
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Respondents relied on Pou Chen Corp. v. MTS Products (2010) 183 Cal.App.4th 188 (Pou Chen) where the court stated, “ ‘ “[T]he general rule is that while an attorney’s lien is subordinate to the rights of the adverse party to offset judgments in the same action or in actions based upon the same transaction, it is nevertheless superior to any right to offset judgments obtained in wholly independent actions.” ’ ” (Id. at p. 194.) Respondents asserted that Soltanabadi had previously conceded the same transaction was involved in both the Spirit lawsuit and his own later lawsuit.
In addition to offset, respondents sought attorney’s fees under section 724.080 and a $100 penalty under section 724.050 for Soltanabadi’s failure to acknowledge satisfaction of judgment “without just cause.” I. Soltanabadi’s Opposition to the Section 724.050 Motion As relevant here, Soltanabadi opposed respondents’ offset motion on the following grounds. He first contended that the motion was an improper attempt to obtain relief the court had previously denied, pointing to the court’s denial of respondents’ prejudgment non-statutory motion for offset. Soltanabadi next argued that his judgment had not in fact been satisfied so there was no basis to compel him to file an acknowledgment of satisfaction under section 724.050. Soltanabadi also challenged the assignment of the Spirit judgment, claiming it was “invalid,” it was unclear whether the assignment “was made properly and for what consideration,” and its terms were “vague and uncertain, as it [did] not establish how the Spirit [j]udgment [was] being apportioned between each of the [n]amed [a]ssignees.”
Soltanabadi contended that Farivar held a fee lien on the second judgment which became effective when he and Farivar
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entered their retainer agreement in June 2020, and which therefore had priority over the Spirit judgment, which was entered in 2018 but acquired by respondents after the attorney fee lien was created. Soltanabadi asserted that respondents’ argument that the Spirit judgment had priority because it was based on the same transaction as involved in Soltanabadi’s lawsuit “only applies if the set[]off is granted” and, thus, did not apply because the court had denied respondents’ prejudgment non-statutory setoff motion.
Lastly, Soltanabadi asserted the court should deny offset because respondents had unclean hands, contending among other things that “[t]he Spirit [j]udgment itself arose from [respondents’] wrongdoings and misappropriation of funds from [Soltanabadi’s] entities, which were the subject of this [c]ase and the [a]ccountant’s [r]eport.” According to Soltanabadi, he “alleged that [Ataollah] induced him into a personal guaranty of the rent increases due to Spirit from SB Gas, the consequence of which [was] the over $4 million judgment [respondents] [were then] looking to enforce against [Soltanabadi].” J. The Trial Court’s Ruling on the Section 724.050 Motion At the outset of the hearing on respondents’ section 724.050 motion, the court announced its tentative decision to grant the motion. As relevant here, the court indicated that section 724.050 “appl[ies] where a judgment debtor can establish an offset by a judgment in a greater amount,” Soltanabadi’s argument that the assignment was invalid was unsupported by any authority, and under Pou Chen Farivar’s fee lien was “subordinate to the rights of an adverse party to an offset for a
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judgment in the same transaction where that judgment predates the attorney lien.”
On behalf of Soltanabadi, Farivar argued during the hearing that Pou Chen was distinguishable because the Spirit judgment resulted from “a different case,” “a case that occurred in 2017 by Spirit, a different party unrelated to this case.” At one point during the hearing Farivar repeated the concession in the motion briefing that Soltanabadi’s case and the Spirit case were “based on the same transactions,” but then sought to backtrack after appearing to apprehend the upshot of that concession, asserting, “[the Spirit] judgment is from a completely different case, different parties, . . . arising from a different set of transactions.”
The court rejected the attempted flip-flop, stating that Soltanabadi had made “a crystal clear concession” in his written opposition that the two cases involved the same transactions. At the conclusion of the hearing, the court adopted its tentative ruling as the final ruling. In addition to offsetting the two judgments, the court awarded respondents $11,081.50 in attorney’s fees and a $100 penalty under section 724.050.
Soltanabadi moved for reconsideration of this order under section 1008. That reconsideration motion also contended that the court should grant relief under section 473, subdivision (b) for Farivar’s alleged mistakes in conceding the relatedness of the two actions and in failing to make certain other arguments when opposing the offset motion. The trial court denied these requests, stating Soltanabadi had failed to identify any new facts or law which could provide a basis for relief under section 1008, and relief was not available under section 473, subdivision (b) for the alleged mistakes. The court also found that Soltanabadi had
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“[o]n multiple occasions . . . identified or . . . admitted judicially in [his] papers that the Spirit [j]udgment was based on the same series of transactions as are found in this case,” but was “taking a wholly opposite position” in his reconsideration motion.
Soltanabadi timely appealed. Although his notice of appeal lists both the section 724.050 order and the order denying his motion for reconsideration, his briefing does not include any reasoned argument regarding the latter. It does not discuss the elements a party must meet to be eligible for relief under sections 1008 or 437, subdivision (b), nor does it provide any cogent analysis of how he purportedly met those elements. Accordingly, we deem his challenge to the court’s order denying reconsideration abandoned (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852) and address only the court’s section 724.050 ruling.
DISCUSSION
A. Applicable Law and Standard of Review “[T]he offset of judgment against judgment is a matter of right absent the existence of some facts establishing an equitable principle precluding it.” (Salaman v. Bolt (1977) 74 Cal.App.3d 907, 919.) The party opposing offset has the burden of establishing facts to show offset would be inequitable. (Margott v. Gem Properties, Inc. (1973) 34 Cal.App.3d 849, 854.)
A trial court’s decision whether equitable principles preclude offset is “subject to an exercise of its equitable powers” and, thus, “the only issue before us on this appeal is whether [the trial court’s] discretion was so abused that it resulted in a manifest miscarriage of justice.” (Wm. R. Clarke Corp. v. Safeco
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Ins. Co. of America (2000) 78 Cal.App.4th 355, 358-359 [motion for setoff under § 724.050].)8 “[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) “ ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court.’ ” (Id. at p. 609.) B. Section 724.050 Empowers a Court to Determine a Judgment has been Satisfied through Offset Soltanabadi first contends that section 724.050 “presupposes an actually satisfied judgment” and cannot be utilized to compel acknowledgment of satisfaction “where no payment has occurred.” He provides no authority or analysis to support this claim, and the law is clearly to the contrary.
Under section 724.050, a “judgment debtor . . . may serve . . . on the judgment creditor a demand in writing that the judgment creditor . . . [¶] . . . [f]ile an acknowledgment of
8 We recognize that Pou Chen and Brienza v. Tepper (1995)
35 Cal.App.4th 1839 both involved issues similar to those before us but applied a de novo standard of review, based on their apparent conclusion that those questions were solely ones of law. (Pou Chen, supra, 183 Cal.App.4th at p. 192; Brienza, supra, at p. 1843.) Given that a trial court, in deciding whether to order an offset, must balance competing equitable considerations, we apply the abuse of discretion standard articulated in Wm. R. Clarke Corp.
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satisfaction of judgment with the court.” (Id., subd. (a)(1).) Where the judgment creditor fails to comply and the judgment debtor files a motion to compel, “If the court determines that the judgment has been satisfied and that the judgment creditor has not complied with the demand, the court shall either (1) order the judgment creditor to comply with the demand or (2) order the court clerk to enter satisfaction of the judgment.” (Id., subd. (d).)
The Legislature adopted section 724.050, along with the other provisions in the Enforcement of Judgments Law (§ 680.010 et seq.), based on a recommendation of the California Law Revision Commission, and the commission’s notes are thus entitled to great weight in interpreting the statute. (Union Bank of California v. Superior Court (2004) 115 Cal.App.4th 484, 488.) Those notes indicate that “[s]ection 724.050 provides a means whereby the judgment creditor can be compelled to file an acknowledgment of satisfaction of judgment in any case where a money judgment has been satisfied, whether pursuant to a writ, by payment, offset, or other means.” (16 Cal. Law Revision Com. com. (1982) p. 2106, italics added.) The statute’s legislative history makes “clear that a motion to compel the acknowledgment of satisfaction . . . is an appropriate means of claiming . . . an offset against [an] outstanding judgment.” (Passanisi v. Merit-McBride Realtors, Inc. (1987) 190 Cal.App.3d 1496, 1513).
In accord with the statute, cases have recognized that section 724.050 can be utilized where a judgment has not been paid in money but has been satisfied by some sort of offset. (See, e.g., Wade v. Schrader (2008) 168 Cal.App.4th 1039, 1048 [offsets for settlements by codefendants; “a motion to compel acknowledgment of satisfaction of a judgment (§ 724.050, subd.
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(d)) . . . is an entirely acceptable procedure for balancing offsetting judgments”]; Quintana v. Gibson (2003) 113 Cal.App.4th 89, 94 [the defendant and his liability insurer sought to apply an offset based on a worker’s compensation lien the insurer had acquired].)9 C. The Trial Court Did Err in Determining that Farivar’s Fee Lien Did Not Have Priority Over the Spirit Judgment for Purposes of Offset Soltanabadi next contends that the trial court erred in offsetting the Spirit judgment against the second judgment because Farivar’s fee lien had priority over the Spirit judgment. He relies upon a statement in Pou Chen that “ ‘ “while an attorney’s lien is subordinate to the rights of the adverse party to offset judgments in the same action or in actions based upon the same transaction, it is nevertheless superior to any right to offset judgments obtained in wholly independent actions.” ’ ” (Pou Chen, supra, 183 Cal.App.4th at p. 194.)10 Under this rule,
9 Soltanabadi also contends that respondents failed to timely invoke section 431.70, which allows a defendant to assert in its answer “the defense of payment” based on “cross-demands for money” between the parties. But the procedure established in section 724.050 does not require a party to invoke section 431.70. Soltanabadi provides no analysis or authority supporting the proposition that a party must plead a defense under section 431.70 to invoke section 724.050.
10 Applying this rule, Pou Chen concluded two attorney fee liens were not superior to the right of offset because the two judgments resulted from cross-actions involving the same series of transactions. (Pou Chen, supra, 183 Cal.App.4th at pp. 191- 192.)
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Soltanabadi argues, “[t]he ‘Spirit’ judgment is a separate action with no adjudicated same-transaction finding,” and “the trial court made no finding of transactional identity and could not on this record.”
Soltanabadi has forfeited this argument, as he did not present it to the trial court in opposing respondents’ section 724.050 motion. “ ‘ “ ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” ’ ” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.) Respondents’ section 724.050 motion argued that under Pou Chen the Spirit judgment had priority over Farivar’s fee lien for purposes of offset, and in opposition Soltanabadi contended that such an argument would apply only “if the set off is granted” which could not happen because the court had denied respondents’ prejudgment offset motion. He did not make the argument he now seeks to advance.
Soltanabadi argues, “Any suggestion of waiver is incorrect”
and claims “[his] opposition did cite Cetenko v. United California Bank (1982) 30 Cal.3d 528, Pangborn Plumbing Corp. v. Carruthers & Skiffington (2002) 97 Cal.App.4th 1039,[ and] Brown v. Superior Court[] (2004) 116 Cal.App.4th 320, etc., and clearly argued that his attorney’s lien was senior and could not be cut off by [respondents’ claimed] offset.” This claim is demonstrably untrue. Soltanabadi’s opposition to the section 724.050 motion did not cite Pangborn Plumbing Corp. or Brown. It did cite Cetenko, but only for the proposition that Farivar’s fee lien was effective even though no notice of the lien had been given and no judgment had been entered on the lien. Soltanabadi
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did argue in his trial court opposition that Farivar’s lien had priority over other liens, but that is an entirely different contention; respondents’ claim was based on offset, and not on a judgment lien or any other type of lien.11 Even if Soltanabadi had not forfeited this argument, it fails on the merits. The trial court stated that the Spirit judgment and the second judgment “arose from the same transactions” and that Farivar had “concede[d] that these events all are interrelated.” The court’s findings are supported by substantial evidence that Spirit’s judgment against Soltanabadi was premised on his personal guaranty of SB Gas’s lease obligations and Soltanabadi was suing respondents for having diverted funds from SB Gas and inducing him to provide the personal guaranty. Based on these findings, the court did not abuse its discretion in
11 Although his written opposition in the trial court made no such claim, Soltanabadi did argue during the hearing on the section 724.050 motion that Pou Chen was distinguishable because the Spirit judgment resulted from “a different case” and involved “different parties.” Even were we to consider Soltanabadi to have properly raised these arguments in the trial court by doing so only at oral argument, they are unavailing. Pou Chen does not require that the two judgments arise from the same case, only that the cases be “ ‘ “based upon the same transaction” ’ ” and not be “ ‘ “wholly independent actions.” ’ ” (Pou Chen, supra, 183 Cal.App.4th at p. 194.) Furthermore, Soltanabadi’s appellate brief misrepresents that in Pou Chen “the offset was between the exact same two parties who were opposing each other in one litigation (each had a judgment against the other).” Not true. The judgment debtor in Pou Chen was not a party to the cross-action which resulted in the judgment which it later acquired by assignment and was permitted to offset against the other judgment. (Id. at pp. 191-192.)
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concluding the Spirit judgment and the second judgment arose from the same transactions. (See Pou Chen, supra, 183 Cal.App.4th at p. 194.)
In his appellate briefing, Soltanabadi simply asserts that the Spirit judgment and his judgment “are not based on the same transaction or occurrence,” and he fails to provide any cogent analysis of this bald claim. Instead, he adopts an ostrich-like head in the sand approach, feigning unfamiliarity with the Spirit judgment, stating “by its name and size, [the Spirit judgment] appears to involve a lease from a company/entity named ‘Spirit’ or related to Spirit, entirely separate.” That does not suffice to demonstrate error.
Soltanabadi alternatively contends that even if the second judgment and the Spirit judgment arose from the same transaction, the trial court still retained discretion to deny offset. (See Crasnick v. Marquez (2016) 248 Cal.App.4th Supp. 1, 7 [“where the judgments used as setoff [are] rendered in different courts in different actions, albeit ones involving the same subject matter and parties, the right to setoff is not absolute”].) Soltanabadi has forfeited this argument because he did not present it to the trial court in opposing respondents’ section 724.050 motion. (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at p. 264.) As the party opposing offset, it was Soltanabadi’s burden to establish that offset would be inequitable. Yet Soltanabadi offered no argument in his trial court opposition why, under equitable principles, Farivar’s lien should have been granted priority over the Spirit judgment.12 Furthermore, the trial court
12 In his appellate reply brief, Soltanabadi contends that the facts here are analogous to those in Brienza v. Tepper, supra,
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considered and rejected Soltanabadi’s arguments that respondents had unclean hands and the assignment of the Spirit judgment was improper or ineffective, and Soltanabadi gives us no reason to second guess the trial court’s determination. D. The Purported Priority of Farivar’s Fee Lien over Other Liens Is Irrelevant Soltanabadi contends Farivar’s fee lien was “ ‘first in time’
relative to any subsequent judgment liens that creditors [might] later acquire on that recovery.”13 He further argues “that [his] attorney’s lien (created in 2020) had priority over [r]espondents’ judgment lien (created in 2023).” Soltanabadi also relies on Civil Code section 2897, which provides, “Other things being equal, different liens upon the same property have priority according to the time of their creation . . . .”
35 Cal.App.4th 1839. Soltanabadi has also forfeited this argument because he did not present it to the trial court in opposing respondents’ section 724.050 motion (Keener v. Jeld- Wen, Inc., supra, 46 Cal.4th at p. 264) and for the additional reason that he failed to raise it in his opening brief in this court (see Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [“Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant”]).
13 An attorney’s fee lien is established by contract and is created when the contract is entered. (Cetenko v. United California Bank, supra, 30 Cal.3d at pp. 531, 534.) “Unlike a judgment creditor’s lien, which is created when the notice of lien is filed [citation], an attorney’s [fee] lien is a ‘secret’ lien; it is created and the attorney’s security interest is protected even without a notice of lien.” (Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th 1168, 1172.)
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These arguments are irrelevant. Although respondents did at one point file a notice of judgment lien, the trial court’s order did not rely on that lien and instead permitted respondents to offset the Spirit judgment against the second judgment through section 724.050. As respondents did not obtain any recovery or offset by way of their lien, the supposed priority of Farivar’s lien over that of other liens is immaterial. E. Soltanabadi Has Forfeited Any Claim the Trial Court Acted in Excess of its Jurisdiction Soltanabadi contends the trial court erred in ruling on respondents’ section 724.050 motion because it had “no jurisdiction to determine the validity or enforceability of” Farivar’s fee lien. He relies on the rule that “the trial court in the underlying action has no jurisdiction to determine the existence or validity of an attorney’s lien on the judgment.” (Carroll v. Interstate Brands Corp., supra, 99 Cal.App.4th at p. 1173; accord, Brown v. Superior Court, supra, 116 Cal.App.4th at p. 328.) As the Carroll court explained, “[a]fter the client obtains a judgment, the attorney must bring a separate, independent action against the client to establish the existence of the lien, to determine the amount of the lien, and to enforce it.” (Carroll, at p. 1173). “[B]ecause the attorney is not a party to the underlying action and has no right to intervene, the trial court acts in excess of its jurisdiction when it purports to determine whether the attorney is entitled to foreclose a lien on the judgment.” (Ibid.)
Respondents contend that Soltanabadi has forfeited this jurisdictional claim because he did not raise it in his opposition to the section 724.050 motion. We agree. The claim is subject to forfeiture because it does not involve the trial court’s fundamental jurisdiction, but only an act in alleged excess of
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jurisdiction. “[A] trial court does not lack fundamental jurisdiction to adjudicate contractual liens in the underlying action because ‘adjudication of [contractual] lien claims is clearly within the general subject matter jurisdiction of the superior court.’ [Citation.] ‘The jurisdictional issue is whether the court [in the underlying action] act[s] in excess of its jurisdiction by adjudicating [contractual] liens . . . .’ [Citation.] ‘ “Unlike some other jurisdictional defects, a party may, by its conduct, be estopped from contesting an action in excess of jurisdiction.” ’ [Citation.] Thus, when the parties to an action allow the trial court to adjudicate a contractual lien in the underlying case without objection, that adjudication—although in excess of the court’s jurisdiction—is nonetheless valid.” (Brown v. Superior Court, supra, 116 Cal.App.4th at p. 332.)
Soltanabadi contends he “did raise [this] jurisdictional issue” by citing Brown in his opposition to the section 724.050 motion. This is another false statement. In opposing the section 724.050 motion, Soltanabadi did not cite Brown or any other case addressing the jurisdictional argument he now seeks to assert.14 He has therefore forfeited the claim. (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at p. 264.)
14 Soltanabadi did raise the jurisdictional argument and cite Brown in his motion for reconsideration. This does not make the claim in his opening brief that he cited Brown “[i]n opposing the motion” as well as “again at reconsideration” true. The citation to Brown in the reconsideration motion does not assist Soltanabadi because, as already stated, he has failed to provide any argument on appeal as to how the trial court erred in denying reconsideration and we deem his appeal from that ruling to have been abandoned.
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If we were to address Soltanabadi’s jurisdictional argument, we would reject it. As respondents point out, “[their section] 724.050 motion did not seek to foreclose, adjudicate, invalidate, or expunge any attorney lien. It sought acknowledgment and satisfaction of [Soltanabadi’s] judgment by offsetting it against the earlier Spirit [j]udgment.” Although the offset had the effect of depleting Soltanabadi’s judgment so that there was no money left from which Farivar could satisfy his lien, the trial court did not rule that Farivar’s lien was invalid or unenforceable. Soltanabadi contends, “[r]espondents . . . effectively filed an application for satisfaction of their judgment lien” (italics added). Not so. A party seeking to have a judgment lien satisfied from a judgment must follow the procedure established in section 708.470. Here, respondents sought a different remedy—offset—and utilized the separate procedure established in section 724.050 to obtain an order effecting the offset. F. Soltanabadi Has Forfeited his Additional Claims Soltanabadi argues that the trial court “deprived [Farivar]
of his property interest in the judgment without due process.” Soltanabadi did not raise this issue in the trial court and has therefore forfeited the claim. (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at p. 264.)
Soltanabadi also argues that the assignment of the Spirit judgment was invalid. He raised this appellate argument for the first time in his reply brief and has therefore forfeited it. (Varjabedian v. City of Madera, supra, 20 Cal.3d at p. 295, fn. 11.)
Finally, to the extent Soltanabadi contends that the parties’
settlement encompassed his liability under the Spirit judgment,
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he has forfeited the claim because he did not address it in his opening brief. (Varjabedian v. City of Madera, supra, 20 Cal.3d at p. 295, fn. 11.)15 G. Soltanabadi’s Motion to Augment We deny as moot Soltanabadi’s motion to augment the record on appeal with certified copies of the transcripts of the two hearings which are already included in the reporter’s transcript. Soltanabadi sought to include the certified copies in the record because he utilized the pagination from those copies, but he remedied the problem by filing a notice of errata. Augmentation is therefore unnecessary. H. Respondents’ Motion for Sanctions Respondents filed a motion for sanctions against Soltanabadi and Farivar under California Rules of Court, rule 8.276 and section 907, contending Soltanabadi’s appeal is frivolous and his opening brief violates the California Rules of Court in several ways, such as omitting material facts, misrepresenting the record, and incorrectly citing to the oral record. We gave notice we were considering imposing sanctions and Farivar filed an opposition.
We “may impose sanctions . . . on a party or an attorney for:
[¶] . . . [t]aking a frivolous appeal or appealing solely to cause delay; [¶] . . . [¶] . . .[or] [¶] . . . [c]ommitting any other unreasonable violation of [the California Rules of Court].” (Cal.
15 Respondents have moved to strike portions of Soltanabadi’s reply brief that raise arguments such as these that were not included in the opening brief. We deny the motion as moot. As we have disregarded arguments made for the first time in the reply brief, we need not also strike them.
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Rules of Court, rule 8.276(a)(1), (4).) Under section 907, if we conclude “the appeal was frivolous or taken solely for delay, [we] may add to the costs on appeal such damages as may be just.”
Although Soltanabadi’s appellate arguments lack merit, his appeal was not frivolous. “[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) “Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.” (Ibid.) Furthermore, “the power to punish attorneys for prosecuting frivolous appeals . . . should be used most sparingly to deter only the most egregious conduct.” (Id. at pp. 650-651.) Respondents fail to show that Soltanabadi has pursued this appeal solely for purposes of harassment or delay. Nor can we conclude that all of Soltanabadi’s legal arguments so blatantly lack merit that they meet the high bar for sanctions for a frivolous appeal.
But we do conclude that Farivar has unreasonably violated the California Rules of Court. Under California Rules of Court, rule 8.204(a)(2)(C), an appellant must “[p]rovide a summary of the significant facts limited to matters in the record.” An appellant violates this obligation by “present[ing] ‘facts’ not supported by or contrary to the record.” (Evans v. Cornerstone Development Co. (2005) 134 Cal.App.4th 151, 166.) As noted in our discussion of the merits, and as pointed out by respondents in
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their motion, Farivar’s appellate briefing contains false statements about the record to deceptively assert certain claims were raised before the trial court (and, thus, not forfeited) when in fact the opposite is true, namely, his present appellate claims regarding Pou Chen and the trial court’s alleged lack of jurisdiction. These false statements needlessly increased the time and effort expended by both respondents and this court to address the issues in this appeal. Given their intentional deceptive nature, and that Farivar’s opposition to the sanctions motion fails to acknowledge these misrepresentations (which respondents’ motion for monetary sanctions identified), sanctions are appropriate both to punish Farivar’s conduct and to deter its repetition.16 Accordingly, we impose sanctions of $5,000 against Fahim Farivar, $2,500 of which is payable to respondents and $2,500 to the clerk of this court.
DISPOSITION
The trial court’s orders granting respondents’ section 724.050 motion and denying Soltanabadi’s reconsideration motion are affirmed. Soltanabadi’s counsel Fahim Farivar shall pay sanctions in the amount of $5,000 ($2,500 to respondents, and $2,500 to the clerk of this court) within 30 days after the remittitur is filed. Farivar and the clerk of this court are directed
16 The other defects respondents identify in Soltanabadi’s opening brief do not merit monetary sanctions. We also reject respondents’ request that we impose monetary sanctions payable to them equaling the entirety of the costs and fees they incurred in responding to Soltanabadi’s appeal as it bears no relation to the actual sanctionable conduct.
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to forward a copy of this opinion to the California State Bar within 60 days. (Bus. & Prof. Code, §§ 6068, subd. (o)(3); 6086.7, subd. (a)(3); Cal. Rules of Court, rule 10.1017(a).) Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
BENDIX, Acting P. J.
M. KIM, J.