Opinion
NOT TO BE PUBLISHED
Petition for Writ of Mandate. David Milton, Judge. Petition granted., Super. Ct. No. EC040854
Plotkin Marutani & Kaufman, Jay J. Plotkin for Petitioner Mitchell A. Karasov.
No appearance for Respondent.
Morgan Miller Blair, Richard G. Blair; Robert DeVries for Real Parties in Interest.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Mitchell A. Karasov, has filed a mandate petition seeking to set aside an August 28, 2009 mistrial ruling. We agree with plaintiff that given the present procedural posture, the respondent court did not have the discretion to grant the mistrial motion of defendant, Chandler Corners LLC. Thus, we issue our writ of mandate directing that the August 28, 2009 mistrial order be set aside.
II. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff filed his verified complaint on May 16, 2005, for declaratory relief, quiet title and specific performance. On July 28, 2006, plaintiff filed his first amended complaint. According to the first amended complaint, in July 2003, plaintiff entered into an agreement to purchase an office building at 5352 Laurel Canyon Boulevard plus 31 parking spaces from defendant, David Metcalf, the trustee of the Metcalf Family Trust, dated June 11, 1995. In addition, plaintiff purchased a perpetual easement across the remainder of the parking lot which was located near the office building. On December 1, 2003, plaintiff and Mr. Metcalf entered into a parking lot agreement which modified the initial July 2003 sales agreement. After the December 9, 2003 escrow close, a problem developed in that the lot transferred to plaintiff did not contain 31 recorded parking places. The first amended complaint alleges: plaintiff owned a parking easement across Mr. Metcalf’s property; plaintiff had a right to a total of 31 parking spaces; and plaintiff had a perpetual right of way easement across Mr. Metcalf’s property to permit parking on the parcel already conveyed. As a result, plaintiff alleges causes of action for declaratory relief, to quiet title and for specific performance. In the second cause of action for quiet title, defendant was named but no allegation explains its role in the transactions.
On August 3, 2006, defendant and Mr. Metcalf filed their first amended cross-complaint. The sole cross-defendant is plaintiff. Cross-complainants allege that when the parking lot agreement was entered into, the parties were unaware the 31 parking spaces could not fit within the borders of the property conveyed to plaintiff. By October 2004, the parties were aware that they had been incorrect in assuming their proposed conveyance would allow 31 spaces to be placed in the parcel conveyed to plaintiff. The parties then entered into a ‘“Covenant and Agreement for Community Driveway.”’ Mr. Metcalf believed that in executing the conveyance, he would be complying with his obligations to convey the 31 parking spaces. This agreement was entered into prior to escrow close. In the event the 31 spaces were not conveyed, Mr. Metcalf retained the option to relocate the parking spaces in a parking structure at 12032 Chandler Boulevard. As a result, cross-complainants allege causes of action for rescission of conveyance of covenant and agreement for community driveway, declaratory relief, quiet title and specific performance.
After a bench trial, Judge Alan S. Kalkin ruled in plaintiff’s favor. Judge Kalkin issued his statement of decision on August 8, 2007. The interlocutory judgment filed on August 31, 2007, provides: plaintiff was entitled to 4-half spaces and the adjacent row of 4-full parking spaces which are located on the westerly portion of lot 2 of tract 11034; plaintiff was to receive title to that foregoing property and have an easement of access; and a document was to be recorded which set forth the litigants’ rights to lots 1, 2, 3 and 4 of tract 11034. Plaintiff was ordered to prepare an application for submission to the County or City of Los Angeles for a lot line adjustment or split or a subdivision. Mr. Metcalf was ordered to cooperate in the processing of the lot line adjustment. If the lot line adjustment was approved, defendants were ordered to execute the documents necessary to convey the additional land containing the parking spaces to plaintiff. Judgment was entered on the cross-complaint in favor of plaintiff. Cross-complainants were to take nothing under their cross-complaint. Paragraphs 11 and 13 of the interlocutory judgment state: “If the lot line adjustment is denied, [plaintiff] shall file a Motion informing the court of this fact and seeking such other and further orders or judgments as justice may require to quiet title in [plaintiff] to an exclusive easement or license to the westerly portion of lot 2 of tract 11034 upon which the 4-half spaces and 4-full spaces as located. [¶]... The Court reserves jurisdiction of this action until this judgment has been complied with or until further order of this court.”
On September 27, 2007, defendant appealed from the August 31, 2007 interlocutory judgment. Plaintiff moved to dismiss the appeal. On November 20, 2007, we dismissed the appeal on the ground that material parts of the interlocutory judgment were dependent on the governmental approval of the lot line adjustment. (Karasov v. Chandler Corners (Nov. 20 2007, B202718) [nonpub. order].) Our dismissal order states: “The dismissal motion is granted. The analysis in this case is governed by the holding of Lyon v. Goss (1942) 19 Cal.2d 659, 669-670. (See Eldridge v. Burns (1978) 76 Cal.App.3d 396, 404-405.) At present, there are issues potentially requiring further judicial action which may be essential to a final determination of the rights of the parties. Hence, the present decree is interlocutory. Material parts of the interlocutory judgment are dependent upon whether the lot line adjustment is approved by the City of Los Angeles. In paragraph 11 of the judgment, the trial court has retained jurisdiction to make other orders if the lot line adjustment application is rejected by the City of Los Angeles. In paragraph 9, in the event that the lot line adjustment is approved by the City of Los Angeles, the trial court has retained jurisdiction to approve the language of the recordable document setting forth the parties’ rights and obligations under the Parking License And Agreement. (Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 498-500; Olmstead v. West (1960) 177 Cal.App.2d 652, 653-655.) Moreover, a trial will be held on the remaining cause of action for contract breach. (Sullivan v. Delta Airlines, Inc. (1997) 15 Cal.4th 288, 307; Whitacre v. Hall (1940) 40 Cal.App.2d 68, 72.) Nothing in this order is intended to foreclose any challenge to the interlocutory judgment by means of a mandate petition. [¶] The appeal is dismissed without prejudice to the filing of a notice of appeal upon entry of a final judgment. All parties are to bear their own costs incurred on appeal.” (Karasov v. Chandler Corners, supra].) On December 21, 2007, defendants filed a mandate petition seeking to set aside the interlocutory judgment. We denied the mandate petition on inadequate record grounds. (Chandler Corners, LLC v. Superior Court (Jan. 11, 2008, B204475) [nonpub. order].)
Beginning in 2008, the application for lot line adjustment was filed with the City of Los Angeles. On March 27, 2008, plaintiff dismissed without prejudice his fourth cause of action for contract breach. On September 24, 2008, plaintiff moved for an order requiring defendant sign deeds or, in the alternative, the court clerk be directed to execute the instruments. According to plaintiff’s counsel’s declaration, the City of Los Angeles required the grant deeds be recorded in order to complete the lot line adjustment. Once the grant deeds were recorded, the parties were required to prepare and record the maintenance agreement for the parking lot. If the city did not approve the lot line adjustment, then further proceedings would be necessary in order to grant an easement or other relief to plaintiff.
Defendant opposed the motion because: the parking lot maintenance agreement had not been drafted nor approved by the parties; the description of the parking spaces on the border of the parcels was too vague; the deeds did not conform to the interlocutory judgment; under the proposed lot line adjustment, plaintiff would receive more that 31 parking spaces; and the deeds created legally ambiguous fractional parking spaces. Hearing on the motion was continued for a total of six months on the respondent court’s own motion.
At a case management conference, it was revealed Judge Kalkin was unavailable to preside over the case. On August 5, 2009, defendant moved for a mistrial. The ground for the motion was that Judge Kalkin had retired and was unavailable. The issues which required further action were whether the lot line adjustment could be accomplished. And if it was possible to secure the lot line adjustment, at issue was whether the deeds provided the lot line adjustment required by the interlocutory judgment. Mr. Metcalf joined in the mistrial motion.
Plaintiff argued the proposed deeds complied with the interlocutory judgment as follows: parking lot 1 was comprised of lots 1, 2, 3 and 4 of tract 11034; plaintiff purchased 31 marked, painted spaces; Mr. Metcalf was obligated to convey a separate legal parcel to plaintiff which contained the 31 parking spaces; lot 1, which was conveyed to plaintiff, did not contain the contracted for 31 parking spaces; lots 1 and 2 straddled a row of 4 parking spaces; this resulted in a half parking space of the was on the 2 lots; and there was another row of parking spaces east of the 4 half-parking spaces. According to plaintiff, he was to receive the land on which there were the four half spaces and with the four full spaces. The new lot line was to run along the eastern-most existing line of the four full parking spaces which were to be conveyed. Plaintiff agreed that the maintenance agreement could not be prepared until the deeds were recorded. On August 28, 2009, Judge David Milton granted the mistrial motion. The motion to compel signature of the grant deeds was taken off calendar.
III. DISCUSSION
A mistrial may only be granted when a party’s right of receiving a fair trial have been irreparably damaged. (People v. Bolden (2002) 29 Cal.4th 515, 555; Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 679.) We review a mistrial motion for an abuse of discretion. (City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384, 428; see Falls v. Superior Court (1987) 194 Cal.App.3d 851, 855; Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 795.) A mistrial order may be reviewed by means of a mandate petition. (Juarez v. Superior Court (1982) 31 Cal.3d 759, 765.)
Defendants argue they have a due process right to have one judge decide the merits of the dispute relying on the following analysis in European Beverage, Inc. v. Superior Court (1996) 43 Cal.App.4th 1211, 1214-1215: “The law has long been settled that in a civil action ‘[a] party litigant is entitled to a decision upon the facts of his case from the judge who hears the evidence, where the matter is tried without a jury, and from the jury that hears the evidence, where it is tried with a jury. He cannot be compelled to accept a decision upon the facts from another judge or another jury.” (Guardianship of Sullivan (1904) 143 Cal. 462, 467; Bodine v. Superior Court (1962) 209 Cal.App.2d 354, 364-365.) Where there has been an interlocutory judgment rendered by one judge, and that judge then becomes unavailable to decide the remainder of the case, a successor judge is obliged to hear the evidence and make his or her own decision on all issues, including those that had been tried before the first judge, unless the parties stipulate otherwise. (Rose v. Boydston (1981) 122 Cal.App.3d 92, 97.) This is because an interlocutory judgment is subject to modification at any time prior to entry of a final judgment. (Ibid.) It is considered a denial of due process for a new judge to render a final judgment without having heard all of the evidence. (In re Marriage of Colombo (1987) 197 Cal.App.3d 572, 581; Accord, 7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 45, p. 483.)”
This rule finds application typically in scenarios: involving bifurcated trials where a judge cannot complete the second phase of the trial (European Beverage, Inc. v. Superior Court, supra, 43 Cal.App.4th at p. 1214); where one judge hears all the testimony and another, with or without review of the record, decides the merits (Guardianship of Sullivan, supra, 143 Cal. at p. 467; Linsk v. Linsk (1969) 70 Cal.2d 272, 279); where one judge issues a statement of intended decision, becomes incapacitated, and another judge signs the findings of fact and conclusions of law (Swift v. Daniels (1980) 103 Cal.App.3d 263, 265-266); where one judge issues a statement of intended decision and another judge signs the judgment (In re Marriage of Colombo, supra, 197 Cal.App.3d at pp. 577, 581-582); or where an interlocutory judgment fails to determine whether the parties breached duties owed to one another. (Rose v. Boydston, supra, 122 Cal.App.3d at pp. 96-97.) This rule has its broadest application when there are controverted facts to be resolved. (Linsk v. Linsk, supra, 70 Cal.2d at p. 279.) This rule of law does not apply when the entry of judgment is a ministerial act such as signing a judgment after a signed order granting summary judgment has been entered. (Hayward Union etc. School Dist. v. Madrid (1965) 234 Cal.App.2d 100, 114-115.)
However, Code of Civil Procedure section 635 states, “In all cases where the decision of the court has been entered in its minutes, and when the judge who heard or tried the case is unavailable, the formal judgment or order conforming to the minutes may be signed by the presiding judge of the court or by a judge designated by the presiding judge.” Here, Judge Kalkin’s statement of decision was filed on August 8, 2007. Code of Civil Procedure section 635 grants the respondent court the authority to issue a final judgment which conforms to the August 8, 2007 statement of decision. Code of Civil Procedure section 635 applies under two circumstances. The first circumstance arises when no statement of decision has been requested. (Raville v. Signh (1994) 25 Cal.App.4th 1127, 1131, fn. 1; Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 127.) The second circumstance is when the judge who heard the evidence has already provided a statement of decision. (Heenan v. Sobati (2002) 96 Cal.App.4th 995, 1004-1005; Armstrong v. Picquelle, supra, 157 Cal.App.3d at p 127.)
The present case does not fall precisely inside any of the foregoing scenarios. This is not a case with a bifurcated trial where a second judge is to decide the disputed issues. Nor is this a case such as arises under Code of Civil Procedure section 635 where a statement of decision has been filed and a final judgment can be entered thereon. Here, as matters presently stand, the remaining issues concern resolution of the details resulting from the interlocutory judgment.
At the present juncture, the remaining decisions to be made are more ministerial than adjudicative in nature. The deeds must be signed and the parking maintenance agreement prepared. Judge Kalkin has found defendants breached their duties to convey the 31 parking spaces. (Compare Rose v. Boydston, supra, 122 Cal.App.3d at p. 96 [“It is clear from this record that substantial issues remained undecided. The findings do not determine whether the parties had performed their respective duties, nor do they determine what assets existed and which party had control of them. The mention of damages in the conclusions of law indicates that the court had not determined whether, and to what extent, any of the parties had been guilty of a breach of duties owed to the others.”].) An argument can be made that the maintenance agreement will involve a weighing of comparative burdens which should be accomplished by the judge who tried the case. But there is no evidence of that before us. Defendant’s core argument is Judge Kalkin, who tried the case and signed the interlocutory judgment, should be the one to resolve the remaining issues concerning the deeds and the maintenance agreement-a position that finds no support in the jurisprudence which requires the judge who tried the case be the one to sign the final judgment.
One last point, and this involves the European Beverage, Inc. v. Superior Court, supra, 43 Cal.App.4th at page 1214 language concerning the authority of a second judge to set aside an interlocutory judgment. In European Beverage, Inc., our Division Four colleagues held: “This is because an interlocutory judgment is subject to modification at any time prior to entry of a final judgment. [Citation.] It is considered a denial of due process for a new judge to render a final judgment without having heard all of the evidence. [Citations.]” (Ibid.) That language is in part dictum and overbroad. European Beverage, Inc. did not involve an interlocutory judgment The procedural scenario in European Beverage, Inc. was as follows: “The matter proceeded to trial on June 27, 1994, before Judge Thomas Schneider. The court bifurcated the issues, ordering that the equitable issues of accounting and constructive trust be tried first in a court trial. At the conclusion of this first phase of trial, Judge Schneider determined that real party is the owner of 50 percent of the shares of the corporation, and directed a special master to conduct an accounting of the net worth of the corporation and inquire into any diversion of assets to petitioners. [¶] The special master issued his report in November 1994. The second phase of the trial was set to begin on December 12, 1995, before Judge Schneider. Before that date, Judge Schneider became the assistant supervising judge of the Northwest District, assigned to the master calendar department. On December 12, the matter was ordered trailed to allow petitioners' counsel to conclude a trial in which he was engaged. Judge Schneider informed the parties that he was no longer available to try the case, and that the remaining issues would be transferred to another judge. On December 14, petitioners filed an ex parte application for an order to prevent transfer of the case to a new trial judge, or alternatively, for a mistrial. The trial court denied the application and ordered the case removed from the trailing calendar and transferred ‘forthwith’ to another judge for trial.” (Ibid.) As can be noted, the present case is materially different from the scenario in the European Beverage, Inc. decision.
Finally, we note a new judge can sign a judgment if a statement of decision has been issued or a written order granting summary judgment has been entered by the first judge. (Code Civ. Proc., § 635; Armstrong v. Picquelle, supra, 157 Cal.App.3d at p 127; Hayward Union etc. School Dist. v. Madrid, supra, 234 Cal.App.2d at pp. 114-115.) Judge Milton has taken no steps to modify Judge Kalkin’s statement of decision or the interlocutory judgment. At issue is merely the execution of documents which will be necessary for the City of Los Angeles to approve the lot split. No doubt, if the lot split request is disapproved by the City of Los Angeles, then the further exercise of equitable discretion may be in order. We do not address nor do we decide whether any parties’ mistrial motion should be granted under those circumstances. This is an issue we leave in Judge Milton’s good hands.
IV. DISPOSITION
The mandate petition filed September 25, 2009, is granted. Upon remittitur issuance, the respondent court is to set aside its mistrial motion. The respondent court is to then enter an order denying the mistrial motion. No costs are awarded in this proceeding.
We concur: KRIEGLER, J. FERNS, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.