Ruling for Cussler to pay Crusader overturned

I thought you banned Nick Kitt, so how could I possibly be him ?

Nick Kismit, you don't want to back up your statements, then don't make them.

Hi Joe,

I'll refer to your previous post ;

Well, it's been a while since I was last here and a lot of the posts are missing. Wondered why Nick Kismit thought the judge's actions were so "reprehensible" and "suspicious". Guess no one has an intelligent answer and that maybe that guy Nick Kitt has it right after all.

You were obviously an avid reader of Nick Kitt's posts, enough to realise that a "lot" of his posts are now missing. You also seem to agree with him. I'd say that Mr. Kismet has made an educated guess as to your identity. As far as the banning goes, anyone can post from another computer or use proxy to get around a user's IP address which has been banned on this site.

Hello Dirk,

Sorry to disappoint you and Nick Kismit, but I am not Nick Kitt. I have only said I agree with some of his posts,not necessarily all of them. When Nick Kismit made some statements regarding the subject of the thread regarding the judge's actions, I asked for his reasons and he blew me off with a bogus charge and a false accusation of calling people names. If that's the way he answers inquiries about his posts,then I assume his words are empty.

I'm not sure it means anything, but I did an anagram search on Hopasagabus and one of the first ones was "buphaga asso." I found that buphaga africana was another name for the rhinoceros bird, a bird that "alights on the back (side?) of a rhinoceros in search of parsitic insects."

Interesting, huh? Other than that, it just seems like a nonsensical name.

Thats hilarious!

CUSSLER v. CRUSADER ENTERTAINMENT, LLC

CLIVE CUSSLER et al., Plaintiffs and Appellants,
v.
CRUSADER ENTERTAINMENT, LLC, Defendant and Respondent.
CLIVE CUSSLER et al., Plaintiffs and Appellants,
v.
CRUSADER ENTERTAINMENT, LLC, Defendant and Respondent.

Nos. B215815, B220761

Court of Appeals of California, Second District, Division Three.

Filed September 8, 2010.

Greenberg Glusker Fields Claman & Machtinger, Bertram Fields, Elisabeth A. Moriarty, Caroline Heindel Burgos and Ricardo P. Cestero for Plaintiffs and Appellants.

O'Melveny & Myers, Marvin S. Putnam and Jessica L. Stebbins for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.

INTRODUCTION
Plaintiffs and appellants Clive Cussler and various affiliated entities[ 1 ] (collectively Cussler) appeal two orders granting defendant and respondent Crusader Entertainment, LLC (Crusader) attorney fees. We reverse the orders.

FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Judgment and the Commencement of Cussler I
This dispute arises out of a contract between Cussler and Crusader for the production of films by Crusader based on books written by Cussler. Both parties sued each other for breach of contract and other causes of action. After a 14-week trial, the jury returned a special verdict rejecting most of the causes of action asserted by both sides. The jury, however, found that Cussler breached the implied covenant of good faith and fair dealing and that Crusader incurred damages in the amount of $5 million as a result of that breach. On May 15, 2008, the trial court entered a judgment for $5 million in favor of Crusader. Both Cussler and Crusader appealed that judgment (Cussler I).

2. Cussler II
While Cussler I was pending, the trial court issued an order awarding Crusader $13,949,131 in attorney fees (Fee Order). Cussler appealed the Fee Order (Cussler II). Cussler II has been fully briefed.

3. Crusader's Enforcement of the Judgment and Cussler III
On July 20 and 22, 2009, Crusader collected the sum of $20,907,200.14 from Cussler.

On October 22, 2009, the trial court issued an order (Second Fee Order) awarding Crusader $150,000 in attorney fees for its post-judgment enforcement efforts. Cussler appealed the Second Fee Order (Cussler III). The parties have not yet filed their briefs in Cussler III.

4. Cussler I Opinion
On March 3, 2010, in an opinion issued in Cussler I, we reversed the judgment, and remanded the matter to the trial court to determine "whether there is a prevailing party and, if so, whether that party is Cussler or Crusador." (Clive Cussler et al. v. Crusader Entertainment, LLC (Mar. 3, 2010, B208738) [nonpub. opn.].)

5. Motions for Summary Reversal
On July 6, 2010, Cussler filed a motion for summary reversal and request for restitution in Cussler II. On the same date, Cussler filed a motion for summary reversal in Cussler III.

6. Consolidation
On August 18, 2010, we issued an order on our motion consolidating Cussler II and Cussler III for disposition in one opinion.

CONTENTIONS
Cussler contends that we should summarily reverse the Fee Order and the Second Fee Order. He further requests that this court order Crusader to pay restitution to Cussler in the amount of $14,197,581—the amount collected by Crusader pursuant to the Fee Order—plus interest.

Crusader concedes that the Fee Order and the Second Fee Order should be vacated by the trial court because those orders are void in light of the opinion in Cussler I. However, Crusader argues that rather than reversing the Fee Order and the Second Fee Order, this court should dismiss Cussler's appeals from those orders as moot.

DISCUSSION
A summary reversal of an order or judgment "is limited to situations where the proper resolution of the appeal is so obvious and without dispute that briefing would not serve any useful purpose. [Citation.] Such a remedy allows for speedy determination of the appeal." (Weinstat v. Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1224; accord Melancon v. Walt Disney Productions (1954) 127 Cal.App.2d 213, 215.)

This is one of those rare situations where summary reversal is appropriate. Crusader concedes that the two orders appealed from must be vacated because they are void. The only disputes are (1) whether this court should reverse the Fee Order and Second Fee Order or whether it should dismiss the appeals from those orders as moot; and (2) whether this court should order that Crusader pay Cussler restitution. These two issues have been fully briefed in the motions for summary reversal and oppositions to those motions. Accordingly, waiting for the briefs in Cussler III would not serve any useful purpose.

Crusader relies on cases in which the Court of Appeal dismissed pending appeals from orders relating to attorney fees as moot. (See e.g. Kreutzer v. City and County of San Francisco (2008) 166 Cal.App.4th 306, 312-313 fn. 3.) We agree that this court can resolve these appeals by dismissing them as moot. However, we are not required to do so.

We believe the better course in this case is to reverse the Fee Order and the Second Fee Order. The parties have each spent millions of dollars in attorney fees and consumed considerable judicial resources vigorously litigating a great number of issues. It is therefore in the interests of justice that we provide the trial court with guidance which is as specific as possible, thereby reducing the likelihood that the parties will engage in unnecessary litigation. If we were to simply dismiss the appeals as moot, there would be no guidance from this court to the trial court with respect to the Fee Order and Second Fee Order. This might cause unnecessary litigation.

We hold that the Fee Order and the Second Fee Order are void in light of the opinion in Cussler I, and are therefore reversed. As we directed in Cussler I, the trial court must determine if there was a prevailing party in this action and, if so, who that party was. The trial court's decision regarding those issues will affect its decisions regarding the amount, if any, of attorney fees that should be awarded to Crusader or Cussler and the amount, if any, of restitution Crusader should pay to Cussler. In other words, the trial court must take a new look at these issues in light of Cussler I. Nothing in this opinion should be interpreted by the trial court or the parties as prejudicing one side or the other regarding the issues of prevailing party, if there is one, the amount of attorney fees awarded, if any, and the amount of restitution awarded, if any.

DISPOSITION
The motion for summary reversal and request for restitution in Cussler II is granted in part and denied in part. The Fee Order is reversed. However, we decline to order Crusader to pay Cussler restitution. The motion for summary reversal in Cussler III is granted. The Second Fee Order is reversed. Each side shall bear their own costs on appeal in both Cussler II and Cussler III.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

1. The other plaintiffs and appellants are Sahara Gold, LLC, Clive Cussler Enterprises, Inc. and Sandecker, RLLLP.


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