IIIIIIII

11111
IIII
111111
IIIII
IIII
IIIII
MIIIII
111111111
IIII
IIIILI
MIIII
IIII
CA2DB243062-01
{D8A596B8-41
{141392}

91-4B29-B908-11928161369E}
{30-131105:114436}{110413}

APPELLANT'S
BRIEF

No. B243062

COURT

OF APPEAL

SECOND

OF THE

APPELLATE

STEPHEN

STATE

DISTRICT,

M. GAGGERO,

OF CALIFORNIA
DIVISION

Plaintiff

and

EIGHT

Appellant,

V.

KNAPP,
PETERSEN
& CLARK,
STEVEN
RAY
M. HARRIS;
ANDRE
JARDINI,
Defendants

Appeal

from
Los

the

Superior

Angeles

Court
Superior

Honorable

Court

Robert

APPELLANT'S

David

of California,
Case

L. Hess,

GARCIA;
STEPHEN
and Respondents.

County

of Los Angeles

No. BC286925
Dept.

OPENING

24

BRIEF

Blake Chatfield,
State Bar No. 88991
WESTLAKE
LAW GROUP
2625 Townsgate
Road, Suite 330
Westlake
Village,
California
91361
Telephone:
805-267-1220
Facsimile:
805-267-1211
Attorneys
STEPHEN

for Appellant
M. GAGGERO

TO BE FILED IN THE COURT OF APPEAL

COURT

OF

APPEAL,

_OP_N

Ey _

PA, R'W

Secolld
V_l r ROUT_. A TTOR

APPELLATE

N Ey_(_a

m_ SJa_ar

DISTRICT,

number,

DIVISION

,,

co_._a

and a_[e=):

Superior

DavtdBlake
Chattteld
(uar #88991)
-- Westlake
Law Group
2625 Townsgate
Rd., Suite 330
Westlake
Village,
CA 91361
TELEPHONENOs
(805)
267-1220
FAXNO,(O_.._: (805)
E._WL
_D_S_(O_,,O: davidblakec@yahoo.com
ArroRn=.YveatNarael:
Appellant Stephen M. Gaggero
,

Eight

APP-008

Court

C=,N_
B243062
Ca=

Num_e_

BC286925
FOR

267-121

COURT

USE ONLY

,,,

APPELLANT/PETITIONER:
Stephen

M. Gaggero,

RESPONDENT/REALPARTYIN INTEREST: Knapp,

CERTIFICATE
(Check one),

OF INTERESTED

F'_ INITIAL CERTIFICATE

et al.
Petersen

& Clarke,

et al.

ENTITLES OR PERSONS
_

SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8,488 before completing this form. You may use this form for the initial
certificate in an appeal when you file your brief or a prebriefing motion, application
or opposition to such a
motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you learn of changed or additional information that must
be disclosed.
1. This form is being submittedon beha f of the fo owing party (name) Appellant
2. a, I-'7

Stephen M. Gaggero

There are no interested entities or persons that must be listed in this certificate under rule 8,208,

b, l_

Interested entities or persons required to be listed under rule 8.208 are as follows:

Fullentity
nameor
of person
interested

(1) Terra

Mar

Nature
(Explain):
of Interest

"['rust

(2)
(3)
(4)
(5)
r--I Continued on attachment 2.

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other
association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or
more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as defined in rule 8.208(eX2).

Date: November

3, 2013
David
(TYPE

F_.-m Approved
Judicial C_l
APP-OO8

{Re_

|or Op_C_J
USe
of Ca1_o_a
JanUa_

1. 2009]

Blake
OR

Chatfield

PRINT

NAME)

CERTIFICATE

OF INTERESTED

RPERSONS

ENTITIES OR.........PERSONS

Page

1of

vr.._'w.ooucdtlloea.gov

TABLE

TABLE

OF CONTENTS

TABLE

OF AUTHORITIES

APPELLANT'S

OFCONTENTS

...............................................................................

........................................................................

iii

OPENING

BRIEF

STATEMENT

OF APPEALABILITY

STATEMENT

OF THE

STATEMENT

OF FACTS

ARGUMENT

CASE

.........................................................

.....................................................................

............................................................................

................................................................................................
GAGGERO
THIS

IS

FOR
THE

ENTITLED

COURT

JUDGMENT

II

..............................................................

THE

IN APPEAL

COURT

B.

Moving

to Amend

Debtors

Was

to Add

of the

Are

May

not

Performed

Respondents

Were

Gaggero's

not

The
Trial
Respondents
Appeal

Recover

in Other

Appeals

Court
Fees
Fees

for

New

Judgment

........

Court

Fees

Incurred

Pending

Had

no

for

14

Work

their

.........................

to Recover

14

Fees

..................................

15

Improperly
Awarded
They
Incurred
when
Gaggero's

Authority

in an Appeal

at the Time

13

Routine

Original

.............................................................

The

11

Enforcement

Cases

not Entitled

Other

Seeking

2.

......................

and

Tasks

.........................................................................

Attorneys

1.

COSTS

Judgment

not Enforcement

Respondents

from

IF ONLY

AWARDED

Communications

Efforts

D,

-EVEN

........................................

AND

the

IF

ALTER-EGO

IMPROPERLY

Administrative

C.

B241675

FEES

Client

REVERSAL

THE

APPELLANTS

NON-RECOVERABLE
A.

REVERSES

OTHER

TRIAL

TO

15

to Award
that Was

Still

........................................

16

E.

The

Court

Billing
F.

CONCLUSION

Erred

Entries

The Trial
Court
Non-Recoverable

by

Awarding

that Had

Been

Fees
Heavily

Based

on

Redacted

Improperly
Awarded
Several
Costs ..............................................

...........................................................................................

....... 17

18
19

WORD

COUNT

CERTIFICATION

...........................................................

20

WORD

COUNT

CERTIFICATION

...........................................................

20

PROOF

OF SERVICE

................................................................................

21

TABLE

OF AUTHORITIES

Cases
Berti

v. Santa

Chinese

Barbara

Yellow

(2008)

Pages

Internet

(2008)

Assoc.
235

Misikv.

Purdy

v. Johnson

Ripley

v. Pappadopoulos

Sonora

Press,

Slates,
Diamond

Inc.

388 ...............

486

12

..........................

9, l0

Ctr. Assoc.

Inc.

(1996)

v. Kaswa

(1929)

Corp.

183 Cal.App.4th

191 Cal.App.4th

43 Cal.App.4th

197 Cal.App.4th

APC

Service

1220 .....................................................................

(2011)

Instant

Marketing

11, 12

..................................................................

(2010)

Zephyr,

Postal

RonaldP.

1267

Cal.App.3d

D'Arco

Overseas

70 ........

Inc. v. Reda

v. Las Palmas

v. Mountain

145 Cal.App.4th

Co. (2010)

Technologies,

v. LADTLLC

Las Palmas

(2006)

v. Chinese

Indem.

167 Cal.App.4th

Greenspan

Props.

868 ......................................................................

v. Financial

Globalist

Marsh

Co.

170 Cal.App.4th

Dominguez

(1991)

Beach

.......................

1065 .............................................

Corp.

100 Cal,App.
(1994)23

289

(2008)

162 Cal.App.4th

9
1510

.... 9

416 ..................................................
Cal.App.4th

v. Gorabi

(2010)

v. Sup.

Ct. (2000)

1616 ...............................

189 Cal.App.4th
83 Cal.App.4th

1210

..........

18
12, 13

523 ...................

Statutes
California

Rules

of Court,

rule

3.1702

California

Rules

of Court,

rule

8.104

............................................................

California

Rules

of Court,

rule

8.204

..........................................................

Code

of Civil

Procedure

685.040

Code

of Civil

Procedure

904.1

........................................................

......................................................
...................................................................

17
2
20
passim
1

Evidence

Code

452 .....................................................................................

Evidence

Code

453 .....................................................................................

iii

No. B243062

COURT

OF APPEAL

SECOND

OF THE

APPELLATE

STEPHEN

STATE

OF CALIFORNIA

DISTRICT,

M. GAGGERO,

DIVISION

Plaintiff

EIGHT

and Appellant,

V.

KNAPP,
PETERSEN
& CLARK,
STEVEN
RAY
M. HARRIS;
ANDRE
JARDINI,
Defendants

Appeal

from

the Superior

Los Angeles

Court

of California,

Superior

Honorable

Court

Robert

APPELLANT'S

which

appeal

challenges

an

both

denied

a motion

to tax

Code

a motion

for

Civil

Procedure

of

attorney

appealable

pursuant

appealable

as collateral

Mountain

Zephyr,
Where

filed

after

Inc.

of the

1 All statutory
noted.

section

to section

a judgment

entry

fees.

(1996)

citations

amended

24

BRIEF

judgment

post-judgment
Such

orders

904.1(a)(2.)

directing

the

a prior

but before

are
I

of fees

order
and

pursuant
judgments

and costs

of money.

to
are

are also

(Marsh

v.

297-298.)

order and the notice

entry

an
costs

appealable

Amended

payment
289,

following
enforcement

Awards

43 Cal.App.4th

embodies
order

Dept.

APPEALABILITY

904.1 (a)(1).

orders

of Los Angeles

No. BC286925

L. Hess,

OF

This

granted

County

Case

OPENING

STATEMENT

GARCIA;
STEPHEN
and Respondents.

of the judgment,

are to the Code of Civil Procedure

of appeal

was

the notice

unless

otherwise

of

appeal is construed "as being from the subsequently rendered final

judgment." (Dominguez v.

Financial

Indem.

388,

of appeal

filed

391

before

fn.

it is entered

judgment."

Rules

is filed

entered

notice
is valid

(Cal.

of appeal
has

1.) "A

is treated

of Court,

after

the

judgment

subsequent

and

judgment.

(Cal.

it may

Rules

of Court,

STATEMENT

Rule

OF THE

in favor

of respondents

Clarke,

Stephen

Ray

Garcia,

Stephen

M.

against

appellant

costs

were

from

affirmed

Gaggero
the

awarded

In

April

refer
appeal

format

with

to the joint

sake

of consistency,

by the other
and

and

and

related

asks

transcripts

of that
the

appeals

transcripts
appeal

court
per

CT1

114-116.)

record

opinion

Code

notice
sections

the

in interest

briefs
RT"

in related
and

from

"Opn."

Gaggero's

appeal.

Citations

pending
CT1

briefing
452,

the

in the

and "RT"

B241675

court

thereafter

to "CT"

of the other

2
and

This

are

"Trial

Citations

any

fees

citations

opening

and

421-423.)

amend

in their
and

Jardini

further

to "JA",

illustrate:

to judicially
Evidence

to

in the present

from
(to

&

were

plus $320,591.78

transcript

B207567.

Petersen

1884-1889.)

respondents

Gaggero's

reporter's

the

in attorney

a motion

Citations

it

from

(JA2

costs

ten appellants

judgment,

reporter's

reporter's

the number

filed

B245114.

appendix,

of the original

respectfully
these
453.

used

(B241675

appeal

Andre

2008.

(JA7

and

fees and

respondents

and

$1,327,674.40

2010,

2012,

B241675

to the clerk's
clerk's

the

in May

judgment.

Harris,

judgment.

in appellate

amended

2 For
appeals

judgment

but before

Knapp,

in February

awarded

in an amended

$193,245.90

in a second

same

thereafter

a notice

CASE

entered

Respondents

of

8.104(d)(2).)

was

M. Gaggero

an

but

entry

where

ruling

as

Judgment

Stephen

after

Further,

treated

Cal.App.4th

is rendered

immediately

its intended
be

183

judgment

8.104(d)(1).)

announces

thereon,

(2010)

after

as filed

Rule

court

Co.

refer
to the

appeals
1-2).

start

Gaggero

and

records

subdivision

(d),

in
and

judgment to add ten Entities3 asjudgment debtorsbasedon the ground that

they were Gaggero's alter egos and were thus the real parties in interest.
(B241675 CT1 24- B241675 CT3 376.) Gaggeroand the Entities separately
opposedthe motion. (B241675 CT3 379-396, 397-422.)
On May 15, 2012, while the alter-ego motion was still pending,
respondentsfiled both a memorandumof post-judgment enforcement costs
(CT1 23-27) and a motion for attorney fees.(CT1 28-CT2 214.)
On May 29, 2012, after oral argument, the trial court granted
respondents' motion and amendedthe judgment to add the ten Entities as
judgment debtors. (B241675 CT3 540-542.)

Gaggero and the Entities

challengedthat order in appealB241675, which they filed on June 1, 2012.

(B241675 CT3 543-545.)
Gaggero filed a motion to tax the costs memorandum on May 31,
2012. (CT Supp4-92.) Both respondents'fee motion and Gaggero's motion
to tax were heard on July 13, 2012. (CT2 245.)

The court granted

respondents' motion in its entirety and denied the entire motion to tax,
issuing a minute order to that effect the sameday. (CT2 245.) Gaggero and
the Entities filed their notice of appealon August 3, 2012. (CT2 246-248.)
Three days later, the court formally entered a third amended judgment
incorporating the additional fees,costsand interest. (CT2 249-250.)

3 The Entities are Pacific Coast Management, Inc., 511 OFW L.P.,
GingerbreadCourt L.P., Malibu Broadbeach,L.P., Marina GlencoeL.P., Blu
House L.L.C., Boardwalk SunsetL.L.C., andJosephPraskeasTrustee of the
the Giganin Trust ("Giganin"), the Arenzano Trust ("Arenzano") and the
AquasanteFoundation ("Aquasante"). They havealso appealedthe May 29
order and judgment. This brief shall refer to them collectively as the
"Entities".

STATEMENT
Appellant
developer

Stephen
owned

a number

In

1997,

he

various

limited

created

on the

benefit

of his family.

124-125;

liability
advice

B241675

at $35 million
other

CT3

CT3

have

31:11-12,

plan,

360-

B241675

longer

including

owned

29:1-4,

CT3
the

29:21-22,
432:7-9,

residence

in Ventura

conceded

that

within

193-194.)

residence,
title passes

Am.Jur.2d

Praske

Aquasante.
have

after

36:2-6,
He

(B241675

CT2

is a Qualified

of 26 U.S.C.

Personal

2702,

432.)

29:21-22,
B241675
Pursuant

his

created

to

ownership

as part
CT2

both

of his

191-193,

that Gaggero

(B241675

CT1

42:15-16;

no

28:6-8,

B241675

separately

CT3

transferred

193-196.)

(a)(3)(A).

or

properties

28:2-6,

Respondents

Residence

subd.

the

42:15-16;

conceded

432:11-12.)

CT3

(B241675

the transfers.

33:13-15,

to Giganin.

CT1

also

CT1

for mortgages

transferred

had

for the

as of 1997

432:11-12.)

then

been

Trust
(B241675

his
have

("QPRT")
CT1

31;

4 A QPRT
personal

or LP's

value

owned

40:4-6,

to

B241675

B241675

432:9-10,

Respondents

432:9-10,

Giganin

the meaning

and

their

by the

had

Praske,

2720;

(B241675

Gaggero

Arenzano

RT5

longer

36:2-6,

area

and

properties

Joseph

31;

no

Entities.

which

investor

which

did not account

28,

432:5-7,

31:12-18,

432:3-5,

they

to trusts

LLC's

Trial

Gaggero

advice,

partnerships

estimated

32:4-5,

estate

of those

attorney,

CT1

to those

370.)

limited

602-604;

that

planning

to several

planning

though

31:18-20,

in the Entities

estate

before

million,

real

in the Los Angeles

Respondents

430:20-21,

estate

interest

CT2

411.)

them

428:15-17,

and

RT1

conceded

a successful

title

(B241675

he transferred

Praske's

transferred

(Trial

FACTS

of properties

companies

encumbrances.

31:8-11,

was

of his estate

to $40

Respondents
after

Gaggero

who

mid-1990s.

OF

Federal

is an irrevocable
allowing

trust which

him

to the beneficiaries.
Taxation

40203;

to live

takes

there

(26 U.S.C.
Bogert,

ownership

for

a fixed

2702,

The Law

of the settlor's
period

subd.

of Trusts

of years

(a)(3)(A);
and

34

Trustees

In August
lawsuits

2000,

in which

January

2002,

908-909,

he was

appellant

2002
of contract.

summer

of 2007,

on September

(JA7
until

court

disparaging

to justify

the

entered

(JA7

judgment.

(Opn.
time

appellate

fees

judgment

(B241675
management
employee;
limited

partner;

member

two

or manager;

CT2

Praske
193-194;

that

of which

and three

the

B241675

were

CT3

373,

than

against

affirmed

was

5, 2008,
Gaggero.
to

award
retainer

the amended
was

$513,837.68

in interest

to amend

These

amended

their

a
and

Entities

appellant

5 trusts

contained

all irrevocable.
469-471,473,

is not

a general

or

he was

481.)

CT1

As the

a
or

of which

testimony

of

officer,

appellant

(B241675

debtors.

consist

in which

sworn

February

as judgment

is not a shareholder,

companies

irrevocable

1201.)
own papers

trusts

376.)

in which

liability

length

on the parties'

ten Entities

appellant

partnerships

decision,

the judgment

a motion

the

CT3

of

366.)

114-116.)

brought

by adding

limited

(Thomson
West 2013)
s Respondents'
and

CT1

B241675

limited

2010,

of judgment

amended

this court

a further

(B241675

corporation
four

In December

time

24-

2010,

in the

147; JA2

and

based

In
and

tried

.) On February

was

and costs,

In May

respondents

a third

CT1

in fees

judgment

5750.)

was

greater

CT1 60-91

the

case

statement

at far

RT3

malpractice

JA1

32-page

In

(Trial

for entry

of respondents

respondents

2012,

moved

in five

610-615.)

RT10

for legal

19.) The

credibility

2008,

at 21-23.)

and costs.

RT2

Trial

5737-5738;

(B241675

1884-1889.)

them

RT10

in favor

May

to award

In April
2008

and

judgment

4616;

CT1

wrote

of $1,327,674.40

agreement.

second

(Trial

ethics

In

RT8

against

Trial

him

out of his cases.

successfully

its decision.

421-423.)

respondents

Trial

subsequently

necessary

521-534;

B241675

year.

to represent

respondents

action

1934;

respondents

(JA2

respondents

Gaggero's

court

this

10 of that

The

a party.

1288-1289;

he filed

breach

hired

substituted

1278-1279,

December

(JA2

Gaggero

is not

the settlor

by

Gaggero

31;

B241675

proponents

of

but is neither the trustee nor a beneficiary.6(B241675 CT3 395, 411-413.)

Respondents' motion did not claim that it was based on any
information they had obtained after the judgment was entered in February
2008,or even after the trial endedin September2007.They did not so much
as try to explain why they had waited until April 2012 before bringing it.
During the 2007 trial, their questions and arguments showed not only that
they already had all the information
motion

but also

from

that

Gaggero.

Trial

RT6

they

(Trial

3005,

because

real parties

RT4

piercing

that the court

it was

the

barred

While

the

memorandum
for

$86,247.70

that

respondents

Const.

(2006)

720,

140 Cal.App.4th
is revocable.

re VincentB.

6 Though

trusts.

(B241675

The

as an issue

(1981)

nominally
CT1

31:23-24;

$1,474.55

admission

387-89,

389-92,

(CT1

offered
their

23-27)
These

752,

407-09)

papers

no evidence
would

sought

costs,

(Evid.

v. Lockheed

filed
and a motion

in additional

admissions

404-

392-94.)

a "conclusive

(Gelfo

reverse

respondents

its truth.
has

They

B241675

CT3

the

and the

outside

Code,

of City of Los Angeles

in the case."

a foundation,

CT3

was

actually

Gaggero

CT3

214.)

admitted

125 Cal.App.3d

2769-2773;

thus

it sought

costs

Authority

if they had,

and

24-42.)

pending,

28-CT2
fees,

34, 47-48.)

But even

egos

(B241675

enforcement

judicially

752.)

the matter

ego

was

Co. v. Housing

separateness

RT5

to do (B241675

motion

attorney

Entities'

alter-ego

that the amendment

that

(B241675

(CT1

in their

Trial

CT1

grounds.

costs.

in additional

Cal.App.4th

trusts

and

alter

grounds

of alter

alter-ego

fees

evidence,

"removes

not authorized

of post-judgment

attorney

Fassberg

was

on estoppel

the

motion

(B241675

on the

evidence

used

4814-4816.)

Gaggero's

motion

sufficient

later

2132-2134;

alter-ego

in this action.

opposed

and

were

they

disputing

RT9

in their

the Entities

Entities

07) it lacked

Trial

alleged

in interest

already

1836-1839,

3067-3068;

Respondents
proper

were

that

and

1220;

(2007)
effect"

152
and

Martin

Corp.

that any

of the

trump

it. (ln

757.)
Aquasante
CT2

is one of the irrevocable

193:8-16.)

$569.569.96 in additional interest. (CT1 23, 29.) The motion and the costs
memo were both servedonly on counselfor Gaggeroand not on the Entities
or anyoneacting on their behalf. (CT 215-220.) The motion arguedonly that
Gaggero should have to pay respondents' costs, and said nothing about
holding any of the Entities liable. (CT1 28-36.)
The alter-ego motion was heard and granted on May 29, 2012.
(B241675RT 1-28.) The court orderedthejudgment amendedto addthe ten
Entities asjudgment debtors. (B241675 RT 25-28; B241675 CT3 540-42.)
On June 1, 2012, appellant and the Entities appealedthis order. (B241675
CT3 543-45.)
Gaggero filed a motion to tax costson May 31, 2012. (CT Suppl 492.) His motion arguedthat mostof respondentsclaim was for feesandcosts
that were not reasonableandnecessaryto enforcing thejudgment asrequired
by section685.040. (CT Suppl 6-9.) He explained,inter alia, thatrespondents
were improperly seekingfeesthey incurred in their pending alter-egomotion,
as well as in other cases. (CT Suppl 9:5-15.) He also noted that they were
seeking fees for such non-enforcementtasks as pursuing an award of fees
and costs from

Gaggero's original

appeal (CT

Suppl

8:26-27),

communications between themselvesand their counsel, and that they were

seeking non-recoverable costs such as routine photocopying. (CT Suppl
7:22-8:6, 8:24-26.) In addition, he noted that the bills had been redactedso
heavily that it was impossibleto determinewhether many of the chargeswere
recoverable or not. (CT Suppl 8:28-9:2.) He made similar argument in his
opposition to the fee motion, which he filed on June29. (CT2 221-237.)
Gaggero supported both his motion to tax and his fee motion with
spreadsheetslisting, page by page, the recoverable and non-recoverable
amounts respondentshad sought on each page of their attorney invoices.
(CT2 228-236; CT Supp 11-19.) Additionally, he attached highlighted
copies of the attorney bills to his motion

to tax so that

the court

could

readily

determinewhich items he was challenging. (CT Suppl 20-91.)7

The fee motion and motion to tax were heard on July 13, 2012. The
court denied the motion to tax and granted the fee motion "in the amount
sought". (CT2 245.) Respondentssubmitteda proposedamendedjudgment
three dayslater. (CT2 253-256.) Thatjudgment namednot only Gaggerobut
also the Entities (CT3 250), even though they had not been named in the
original fee motion (CT1 28-42) or the reply (CT2 238-244)
they

had

been

served

with

neither

nor the fee motion.

(CT2

on August

249-250.)

6. (CT2

Gaggero
(CT2

and

the memorandum

218-220.)

the Entities

The

filed

court

of costs

signed

a notice

and even
(CT2

it without

of appeal

though

215-217)

modification

on August

3, 2012.

246-248.)

ARGUMENT
I
GAGGERO

IS ENTITLED

REVERSES

THE
EVEN

Most
to deem
naming
motion
their

Entities

them

in case

memorandum
Gaggero

and

7 The exhibits

attached

respondents'

brief

alter

not yet been

their

motion

explained

has not.

have

briefs

from

respondents'

to amend

Although

the

argued

when

for fees

opening

court

by
that
filed

15.

the May
briefs

have

granted

respondents

29, 2012

order

that the motion

copy were highlighted

in that appeal

motion

the judgment

on May

appealed

in their

to the service

the opening

and

B241675

APPELLANTS

stemmed
egos

COURT

IN APPEAL

OTHER

debtors.

and the Entities

8 They

of today,

THE

fee award

it had

no. B241675.

s As

FOR

judgment

29, 2012,

IF THIS

JUDGMENT

Gaggero's

additional

on May

Both

IF ONLY

of the $86,247.70

the

costs

TO A REVERSAL

ALTER-EGO

been

the same way.

filed

but the

was not just technically flawed but fundamentally improper for many
reasons.To name but a few:
1. Even though an alter ego must either own the original
judgment debtor or share common ownership with it in order to be
held responsible for the debt (Las Palmas
Assoc.

(1991)235

LLC

(2010)

Cal.App.3d
191

claimed

that any

Entities

were

be taken

Cal.App.4th

jointly

owned
even

2. Although
may

(2011)
any

an alter

be added

of the

Entities

37:21-22,

is precisely

the opposite
found

CT3

B241675

540;

that

any

liability

Gaggero

for

instrumentalities

Entities
the

had

other's
of one

Court

(2000)

83 Cal.App.4th

piercing
transferred

California
-

meaning
to a business

ever

another,

of alter-ego

status.

law
that

v. D'Arco
claimed

that

they

claimed

that

28:10-11,

29:18-19,

424:10-11,428:25-26.)That

had

to show.
his own

no evidence

And

the trial

litigation
means

court

(B241675

no one can be

whatsoever

commingled

debts,

indicia

and the

debtor.

offered

usual

4.

they

CT1

controlled

judgment

Respondents
of the

CT3

not

never

Instead,

RT 2, 17, 18, 22, 27), which

an additional
3.

of what

(Misik

respondents

(B241675

B241675

could

the party

debtor

Gaggero.

Entities.

38:1-4;

expressly

named

the

controlled

judgment

1073),

controlled

controlled

36:23,

1065,

that

it.

ego who

as a new

197 Cal.App.4th

Gaggero

and

only

never

or that he and the

else - a claim

made

Ctr.

v. LADT

respondents

Mr. Gaggero

by somebody

Palmas

Greenspan

513-514),

owned

if they had

v. Las

1249-1251;

486,

of the Entities

seriously

litigation

1220,

Assoc.

held

their

funds,

themselves

or demonstrated
(Sonora

that

Diamond

accepted

out
any

Gaggero

as

mere

of the

other

Corp.

v. Superior

523,538-539.)
expressly
the

liability

he owns.

(Postal

forbids
of

an

Instant

outside
owner
Press,

reverse
may
Inc.

never

veilbe

v. Kaswa

Corp.

(2008)

Greenspan,
really
Yet

162
supra,

did own

191

the

respondents

piercing

5.

Entities,

a claim

Entities,

assets.

more,

given

CT1

31:12-18,

31:18-20,

B241675

CT3

432:9-10,

432:11-12.)

own

own

Gaggero

Entities

and

share

alter

common

estopped

both

because

position

in other

had won

at trial by arguing

(Trial

RT 3629;
7.

months

before
more

36-38,

This

is but a sampling

here.

Instead,

list goes

51-52;

than

B241675

it is to note

432:7-9,

that

Gaggero
did not

him,

the

the

most

missing.

Entities

taken

the

were

opposite

and because
separate

from

they
them.

85-87.)

judgment

by laches
2007
was

and a half years

CT2 223,283-288;

of the reasons

on, but Gaggero's

42:15-16;

that

financially

by September

four

40:4-6,

obviously

had

their

31:11-12,

CT2 285,287-288)

was barred

the original

CT1

The

claim

information

to act on it until

stand.

CT1

he had

and

is completely

to claim

the

31:8-11,

with

liability

that he was

B241675

Respondents'

all the relevant

five

(B241675

Entities

Entities

they

owned

432:5-7,

ownership

were

deliberately

that

admitted

the

for alter-ego

egos,
cases

respondents

veil-

42.)

in the

432:3-5,

because

by

repeatedly

36:2-6,

his debt.

outside

Gaggero

29:21-22,

33:13-15,

Because

Respondents

Gaggero's

interest

430:20-21,

requirement

6.

and

29:1-4,

allow

CT1
that

if Gaggero

to pay

only

(B241675

ownership
28:2-8,

does

of claiming

("PIP");

So even

make

expressly

32:4-5,

or

fundamental

of PIP.

428:15-17

the

to

1518

be forced

law

able

instead

up any

not

California

were

1512-13,

at p. 513.)

could

conceded

(B241675

did not

that

they

respondents

since

they

the holding

What's

1510,

Cal.App.4th

argued

misrepresenting

long

Cal.App.4th

point

the absurdity

why

at the
entered
had

passed.

alter-ego

tens

had

- almost

- yet chose

not

(B241675

B241675

him pay

they

latest

is not to re-argue

of making

10

the

because

CT3
order

case

394.)
cannot

B241675

of thousands

of dollars to reimburse respondentsfor the legal fees they incurred in

bringing a motion that was so utterly meritless.
When ajudgment is reversedon appeal,any associatedaward of fees
andcostsmust alsobe reversed.(Purdy v.
420-421.)

It is bad

If anybody

enough

deserves

that

Gaggero

to be compensated

he and

the Entities.

Respondents

of the

associated

costs

THE

TRIAL

Johnson

had

(1929)

to oppose

100 Cal.App.
the alter-ego

for the associated

are not entitled

especially

if the

to make

May

29

416,

motion.

fees and

costs,

Gaggero

bear

rulings

are

it is
any

reversed

on

appeal.

II
COURT

IMPROPERLY

NON-RECOVERABLE
"The
costs

of

judgment

enforcing

contained

(Section

Cal.App.4th

fees

and

Creditors
and

item

CT2

214.)

Some

on their

of the charges

removed

charges
which

may

arose

fees

only

trial

court

December

Beach

if the

judgment

between

the

(2006)

145

Props.
entitled

charges

to all their

they

only if the charges

to make
2010

Gaggero

pay,

April

2012.

through

as respondents

for work
from

necessary

contract

recover

then,

and

incurred
were

both

purpose.

did precisely
were

attorney

Barbara

and even

the

bills from

The court

of these

They

for that

asked

reasonable

are thus not automatically

costs.

necessary

COSTS

to an underlying

v. Santa

their judgment-

Respondents
every

(Berti

AND

to the

including

pursuant

685.040.)

enforcing

reasonable

of fees

70, 77.)

post-judgment

is entitled

a judgment",

an award

parties.

while

creditor

FEES

AWARDED

this

had

done

on entirely

case

were

asked.

different

not related

in full,
(CT1

for
131-

(CT2

245.) 9

cases.

Most

to enforcing

the

9 Respondents
noted that their claim did not include charges which they had
in subsequent
bills. (CT1 95:25-27.)
Even so, they claimed that every

charge they'd
asked their clients to pay was
awarded them everything
they had asked for.

11

recoverable.

The

trial

court

then

judgment.

And

were

either

were

redacted

whether

supra,

of the charges

unreasonable

were

that

such

Procedure

there
and

at

as that

section

was

p.

["in

contained

685.040,

no way

that

the judgment

purpose,

to tell what

the

sums

final

were

for or

measures.

of

The
(Berti,

express

sentence

post-judgment

many

to respondents.

absence

in the

and

they

enforcement

any of these

77

to enforcing

for

necessary

to award

Cal.App.4th

authorization,

unnecessary

reasonable

had no authority

145

that did relate

and/or

so heavily

they

trial court

many

statutory

of Code

attorney

fees

of Civil

cannot

be

recovered."])
"The
discretion

calculation

of the trial court."

Marketing

Service

discretion

to award

and

necessary

costs

or fees

fees

or costs

enforcement

is simply

beyond
that

judgment

is not
that

the

entry

It must

judgment.

risk "imposing

... beyond

245.)

Only

trial court
$28,103

Gaggero.

That

proceedings

thereon,

Cal.App.4th

of that
amount
as well

1210,

liability

debtor's
awarded

An

control."

$86,247.70

incurred

covered

enforcing

post-judgment

as other

time

12

an award

of

Internet

to the underlying
incurred

in order

against
the

another

interests

(RonaldP.
To

award

debtors

to

of the
Slates,

such

fees

... for events

(Id.)

respondents
was

other

1273.)

advance

on judgment

has no

of any

(Globalist

litigating

1214.)

Overseas

reasonable

Whether

been

to the

court

award

fees are not recoverable.

open-ended

the judgment

The

189

they were

1267,

have

might

the associated

would

actually

priority

creditor,

unless

relationship

has

judgment

(2010)

tangential

though

who

But the

de novo.

even

over

885.)

authority.

Thus,

creditor

v. Gorabi

court's

addressed

Co. v. Chinese

167 Cal.App.4th

has some

enough.

868,

is reviewed

(2008)

judgment

APC

Pages

of the judgment.

authority

v. Reda

is a matter

fees and costs

to the

a billing

Yellow

170 Cal.App.4th

post-judgment

Inc.

That

fees and costs

(Chinese

(2008)

exceeds

Technologies,

enforce

of attorney

spent

in attorney
the

judgment

discovery
pursuing

fees.

(CT2
against

and

Gaggero.

court
(CT2

224, 226, 228-236; CT Suppl 5, 8-9, 10-19.) The

award

only

that

A.

amount.

The

Moving

rest

to Amend

the alter-ego

already

motion

is also reversed.

But

cannot

to enforce

a judgment

been

collectible

unable

been

"It

seems

assets

awards

are

judgment.

supposed
(Id.)

the court

But the court

could

parties

pockets

Even
can qualify
cost

of

judgment
reasonable

if this court
as enforcing

doing
creditor

so

could

and necessary,

they

were

still
not
to

debtors

the

at p.
turned

is

financial

1215.)

to other

intended

him."

(ld.)

him

him

for respondents'

sources

a section
debtor

reason

pay

had
such

in paying

respondents

make

Had

Instead,

to cooperate

properly
pay

a judgment

the judgment

against

gave

that

debtor's

Legislature

debtor

was

the

to pursue

for those

efforts.

pursuit

of third

deeper.

believes

that

a judgment,

necessarily

would

the

to turn on whether

not also make

were

of

not have

Gaggero

it should

But whether

would

the

judgment

it.

Cal.App.4th

that

to encourage

with

to add other parties

189

all judgments

To the extent

aggressively,

whose

supra,

fee award

connected

because

Trying

"happenstance"

unlikely

to satisfy

him.

fees

Gaggero.

respondents

postjudgment

sufficient

him

Gorabi,

wealthier,

payment.

685.040

v.

Was

amended

to add new judgment

from

the

Debtors

that argument,

as enforcing

to collect

fees

29, 2012

to pay those

tried

upon

(Slates

Gaggero

thing

New

of attorney

rejects

against

respondents

depends

condition.

of

be made

to

stand.

to Add

if the May

if this court

is not the same

had

that the award

the judgment

The reason
they

even

had discretion

Judgment.

must be reversed

find that Gaggero

incurred

of the

seen

cannot

the Judgment

not Enforcement
We have

of the award

trial court

also

moving
that

would

recoverable
have

and that

to show
it was

13

to add new

not be enough

under
that bringing
done

judgment

section

to make
685.040.

the motion

in a reasonable

debtors

and

was

the
The
both

necessary

way.

Respondents

found

that they

for

relief

made
did.

that

no such

It can never

is expressly

to bring

a motion

law

record.

And

spend

tens

its most

of thousands

fundamental

original

Are

status

extensive

amounts

138,

142,

139,

do this work,

143,

159,

but that

does

judgment.

Respondents'

they

twice

all.

spent
This

170,

work

may

maintain

a good

enforcing

the

related
185,

have

It

necessary

ownership

control

and

to
that

of the

- are absent.

Administrative

efforts

Tasks

insurance

reports.

(CT1

is therefore

may

have

and
but
not

carrier
133,

and

135; CT2
needed

to

of enforcing

been

the

identical

as much,

necessary"
it had

activities

have

as a cost

- or half

clients,

for such

their

would

tasks

the

was

Counsel

"reasonable

with

judgment.

nor

of the

concedes

it recoverable

on these

been

relationship

and
to those

enforcement
time

and

that repeatedly

fee award

196, 202.)

not make

as much

a motion

Efforts.

to respondents

of file review

court

unreasonable

reasonable

and Routine

of the attorney

reports

trial

misrepresentations

alter-egos

Communications

the

to bring

It is both

- here,

by the alleged

of dollars

law.

neither

predicates

though

or necessary

on a motion

not Enforcement

Thousands
as preparing

of dollars

even

on active

it is certainly

debtor

Client

U.

by

that relies

factual

judgment

here,

be reasonable

forbidden

unnecessary
and the

showing

had

or none

at

in order

nothing

recoverable

to

to do with

under

section

685.040.

C.

Respondents
Performed

Several
performed
Clarke,
long

entries

in other
et al.,

since

lost,

on respondents'

cases,

Ventura
and

May not Recover

in Other Cases.

including

S.C.
Bunge

No.

legal
Sulphur

CIV

214486,

v. 511 OFWLP,

14

for Work

bills

were

Mountain
a case
L.A.S.C.

their

for work
v. Knapp,
which
No.

Attorneys

their

lawyers

Petersen

respondents
SC100361,

&
had

a case

which wasstill pending atthe time andto which respondentswerenot parties.

(CT1 24, 71, 73-74.) By definition, that work was not done to enforce the
judgment in this case. It certainly was not a reasonableor necessarypart of
respondents' enforcement effort. The fees therefore were not recoverable.
Gaggeronotedthis twice (CT2 224:28;CT Suppl 8:28, 24), but the trial court
was unswayed. Gaggerourgesthis court to take a more critical approach.

D.

Respondents

Were

Gaggero's

Other

1.

Trial

The
Fees

had

charged

appeal

from

But that

Court

They

the

defending

Original

Appeal.

hundreds

judgment,

case

about

court

whether

its propriety.

Seeking

and

Fees

from

the judgment

were

for

connected

to Gaggero's

was

(CT1

fees

160; CT2

proper.

as enforcing

to award

Respondents

Fees

lawyers

no. B207567.

thing

Respondents

respondents'

costs

the judgment

is not the same

to amend

Awarded

of dollars

the original
was

Recover

Defending
it. Neither

and costs

not entitled

202.)
the
is

incurred

to the fees

in

and costs

incurred.

section

fees

685.040
aspects

were

makes
of the

not incurred
only

to enforce

enforcement

case - including

the judgment.

costs

Because

recoverable,

money

an appeal

- are not recoverable

v. Pacelli

(2008)

spent

on

under

statute.
The judgment

filed

when

of fees

Those

that

Incurred

an award

of a judgment

asking

other

included

to

Improperly

for seeking

appeal

propriety

they

fee award

Entitled

Appeals.

Gaggero's
The

not

a bankruptcy

promissory

note

action

which

asked

the trial

debtor
petition

with

resulted
court

in Jaffe
after

losing

an attorney-fee
in the
to award

dismissal

his appeal
clause.

The

from

a judgment

creditor

of the bankruptcy

him the fees he incurred

15

165 Cal.App.4th

filed
case.

in the

927
on a

an adversary
He then

bankruptcy

caseunder section 685.040 and the cost of enforcing the judgment. The trial
court denied his requeston the ground, inter alia, that opposing the
bankruptcy petition did not qualify as enforcing the judgment. The creditor
appealed,andDivision Three of this Court reversed,m
In the words of the appellatedecision, "the entire purpose of
Pacelli's bankruptcy filing, and her related appeals,was to avoid paying the
judgment Jaffe soughtto enforce. Pacelli soughtto sabotageJaffe's
collection efforts.... Jaffe's preventive measureswere directly related to the
continuedenforceability of the ...judgment .... Jaffe's actions in the
bankruptcy proceedingswere necessaryin order to maintain, preserve,and
protect the enforceability of the judgment." (Id. at p. 938.)
Gaggero's appeal,however, was aboutthe judgment's validity and
not its enforceability. Defending the validity of a judgment is distinct from
enforcing that judgment. That is why, in the absenceof a stay, ajudgment
may be enforced even while it is being challengedon appeal.

2.

The

Court

Incurred

Had

no Authority

in an Appeal

to Award

that

Was

Still

Fees
Pending

at the

of dollars

in fees

Time.
The
for dozens
an order

court

of billing

(CT1
had

October

been

awarded

entries
him

132,

related
to respond

133; CT2

filed

respondents

on

134,

October

thousands

to Gaggero's

then-pending

to post-judgment
138,

143,

196,

5, 2011,

and

discovery,

199, 200,
was

appeal

not

205,

from

case
207.)

no.
That

dismissed

until

3, 2012.

l0 The Jaffe
the earlier
nothing

also

compelling

B236834.
appeal

trial

appeal,
about

trial court

also awarded

but the debtor

whether

appellate

the creditor

did not challenge

attorney

685.040.]
16

fees

his fees

that award.

are recoverable

for defending
Jaffe
under

thus

says

section

Appellate attorney fees must be claimed after an appeal has been

resolved and within 40 days after the remittitur is issued. (Cal. Rules of
Court, rule 3.1702(c)(1).) Respondentscannot escapethis limitation by relabeling their appellate fees as enforcementcosts.Rule 3.1702(c)(1) applies
to all claims for appellatefees,regardlessof how they are labeled.
It is true, of course,that the prevailing party in an appealinvolving a
contract with an attorney-feeclausemay recover feesreasonablyincurred in
that appeal. But there was no prevailing party yet when the trial court
awardedthesefees. Besides,suchfees arerecoverableunder rule 3.1702 and
are not costsofenforeement recoverableunder section685.040. That is why
they areawardableeven to successfuljudgment debtors. It is also why they
are awardablefor fees incurred after a judgment hasbeencollected - or even
if there hasbeen no attemptto collect thejudgment at all.
Gaggeronoted- both in his motion to tax and in his opposition to the
fee motion - that respondentswere improperly seeking fees related to these
appeals.(CT2 224:26-28; CT Supp 8:26-28.) Respondentsdid not claim
otherwise. The trial court hadno authority to award those fees.

E.

The

Court

Entries
Many
there

was

138-139,
was

no way

way

149,

to tell

case

enforce

the judgment.

Respondents
order

what

to prevent

they

154-155,

whether

at all, let alone

to the

by
Been

billing

to tell

present

opposition

Had

of respondents'

142-143,

no

Erred

that

argued
Gaggero

entries
were

for.

159-160,

whether

they

(CT2
only
from

the

learning

17

Based

on

so heavily
CT1

185,

entries

were

Billing

redactions
their

200,
were

that

136; CT2

205-208.)

There

connected

to the

and

his motion

CT Supp

redacted

132-CT2

reasonable

this in both

224-225;
that

(See

170,

of these

noted

Fees
Redacted.

had been

most

Gaggero

fee motion

Awarding
Heavily

necessary
to tax

to

and

his

8-9.)
had

enforcement

been

necessary
strategy.

in
(CT2

242; CT Supp 97.)

But explaining why they redacted their bills did not

change the fact that the redactions made it impossible to tell whether the
billing entrieswere for work that fell within the scopeof section 685.040.
Respondentscould havesupportedtheir motion with a declarationthat
explained the nature of eachredactedentry, much as a privilege log explains
the natureof items withheld from production. Perhapsthey could have come
up with another way to justify their claims without giving up their secrets.
But they were the ones who had to prove that the billing entries were for
enforcement of the judgment, and they were the ones who withheld the
contentsof those entries. Having provided no evidencethat the entrieswere
for recoverable services, respondents were not entitled to recover the
associatedfees.

F.

The
Trial
Recoverable

The

court

photocopying

Gaggero
did

(Ripley

not

address

the

issue

respondents

in his

yet

had

recoverable.

again

never

The
motion

196,

in his

Suppl.

reply

the issue.

the

the

1628.)

93-97.)

(CT2

to tax,

He

224:2-6.)

Gaggero
noting

raised
that

I 01:28-102:7.)

charges

why they

not

Respondents

Supp

238-242.)

Supp

are

1616,

motion.

motion

(CT

why

precisely

fee

(CT2

to

charges

8:2-6.)

(CT

Non-

unexplained

23 Cal.App.4th

to their
reply.

for

Such

opposition.

explained

explained

203.)

to tax. (CT

it in their

Several

$53.40

(1994)

opposition

never

Gaggero
them

139,

in their

addressed

Awarded

respondents

136,

argument

Respondents

ego

(CT2

did not address

same

awarded

awarded

this in his motion

it again

Respondents

Improperly

v. Pappadopoulos

explained

explained

the

also

charges.

recoverable.

Court
Costs.

were

were
not.

supposedly
The

trial court

anyway.

court
(CT2

also
160)

awarded
and

respondents
the

$40

filing

18

their
fee

$44

filing

fee

for an ex parte

for the alterapplication

to

correct an unspecified minute

his motion
224),

to tax

these

Gaggero

l_es

were

or to any

not address
failure

this

to even

again,

(CT

the

Supp

order.

8) and

"not

try

related

court's

order

these

was

As

to enforcement
discovery

in any

to justify

147.)

Gaggero

in his opposition

post-judgment

argument

(CT

of their
costs,

improper

noted

both

to the fee motion

of the judgment

proceeding."
papers.

the court

despite

refused

and should

(CT2
against

Respondents

Yet

in

did

respondents'

to tax

them.

Here

be reversed.

CONCLUSION
Most
judgment

of the

against

that purpose.
that

Even

Gaggero

Much

it would

Gaggero's
it.

fee award

be

fees
the

is for work
and/or

of it was
more

just

costs

portion

that was

it than
of the

that was

respondents
to make

award

unrelated

not reasonable

for a motion
to make

for opposing

that was

and

the

necessary

for

so baseless

in law or fact

should

made

him pay

includes

to enforcing

be

their

items

fees

that

to pay

for bringing

are

clearly

not

allowed.
Gaggero
no heed.

pointed

It denied

tee motion

his motion

court,

to tax in its entirety

but the court

and granted

paid

him

respondents'

in full.

For all these

this court

all of this out in the trial

to reverse

which

was

based

Dated:

November

reasons,
the trial

appellant,
court's

Stephen
orders

M. Gaggero

and the third

thereon.

3, 2013

WESTLAKE

LAW

Attorneys
STEPHEN

19

GROUP

for A_pe_lant
M. _3GERO

respectfillly
amended

asks

judgment

WORD COUNT
Pursuant
word

count

Microsoft

to Cal.

Rules

for Appellant's
Word

which

was

CERTIFICATION

of Court,
Opening

the

Rule
Brief

computer

8.204(c)(l),
is 5,526

software

words,

program

this brief.

Dated:

November

3, 2013

WESTLAKE

By:

LAW

GROUP

_
Attorneys
STEPHEN

20

for Al_p,_llant
M. (_GGERO

I certify

that

the

as counted
used

to produce

by

PROOF
I am
years,

and

Townsgate

a resident
not

a party

Road,

BY

Randall
Miller
515

MAIL

330,

of California,

within

action.

Westlake

I placed

thereon

Village,

California,

My

Village,

the above

fully

prepaid,

in the

addressed

Street,

Suite

Los

2150

address

is 2625

91361.

document(s)

States

described

envelope

mail

with

at Westlake

A. Hoffman
Wilshire

Angeles,

Blvd.,

Suite

1250

CA 90025

CA 90071

of the Superior

Court

Superior
Court of Los Angeles
111 North Hill Street

Clerk
County

San Francisco,

CA 9001

I declare
under
penalty
California
that the above is true
on November

of the

Supreme

Supreme
Court
350 McAllistcr

(Filed

Executed

of eighteen

below.

11755

Los Angeles,

business

United

Edward

Flower

age

in a sealed

as set forth

A. Miller

the

California

document(s)

LLP
South

over

4, 2013, I served the foregoing

OPENING
BRIEF

postage

Los Angeles,
Clerk

State

to the

Suite

On November
as: APPELLANT'S

x_._

of the

OF SERVICE

of perjut3,
and correct.
4, 2013

under

21

CA 94102

Electronically)

the

at Los Angeles,

David

Court

of California
Street

Blake

laws

of

the

State

California.

Chatfi_

of