Opinion
G047064
12-03-2013
NELLIE GAIL RANCH OWNERS ASSOCIATION, Plaintiff and Respondent, v. RALPH COLOMBO, Defendant and Appellant.
Law Offices of Lana J. Feldman and Lana J. Feldman for Defendant and Appellant Neuland & Whitney, Frederick T. Whitney and Nancy Michael for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 06CC02010)
OPINION
Appeal from an order of the Superior Court of Orange County, Andrew P. Banks and Ronald L. Bauer, Judges. Request for judicial notice. Order affirmed. Request denied.
Law Offices of Lana J. Feldman and Lana J. Feldman for Defendant and Appellant
Neuland & Whitney, Frederick T. Whitney and Nancy Michael for Plaintiff and Respondent.
Defendant Ralph Colombo appeals from an order which (1) modified the 2007 judgment entered in this case, nunc pro tunc, to incorporate postjudgment awards of attorney fees and abatement costs made in favor of plaintiff Nellie Gail Ranch Owners Association (the Association), and (2) denied his motion to set aside those earlier orders. The challenged modification order reflects the culmination of a long-running dispute concerning unfinished construction on Colombo's property. In our first of now three opinions in this matter, Nellie Gail Ranch Owners Ass'n v. Colombo (Mar. 24, 2008, G038603) (nonpub. opn.) (Colombo I), we affirmed the trial court's original judgment, including issuance of an injunction which allowed the Association to enter Colombo's property and demolish the evidence of his still-nascent construction efforts, but slightly modified the terms of a conditional stay of the Association's right to enforce that injunction. In essence, the stay of enforcement required Colombo to complete construction of a residence on his property within a specified time frame. His failure to do so triggered the Association's right to enforce the injunction.
In 2011, the Association commenced enforcement of the injunction. In April of that year, the trial court granted the Association's motion for "additional attorneys fees and costs for the enforcement of judgments . . . in the total sum of $26,250.00 . . . ." In December 2011, the court denied Colombo's motion for reconsideration of the April order, and granted the Association's motion for additional fees in the amount of $22,486.36, plus "abatement costs" of $109,991.23. Colombo did not directly appeal from either of those orders, but instead appealed from the subsequent order, entered in May 2012, which granted the Association's motion to correct the judgment, nunc pro tunc, and denied his motion to set aside the awards.
Colombo argues he was denied due process when the court awarded the fees and abatement costs to the Association, because those earlier orders were made without the benefit of any evidentiary hearing to ascertain whether Colombo had in fact violated the conditions of the stay. He contends that absent such a hearing, and an express ruling dissolving the stay, the Association had no right to enforce the injunction, let alone to recover the expenses associated with that enforcement.
We conclude the argument has been waived. Because both of the orders awarding attorney fees and abatement costs were directly appealable as orders after judgment, we cannot review the propriety of those orders in this subsequent appeal. Colombo does not otherwise contend the court's subsequent incorporation of those final orders into the judgment was improper, and we consequently affirm the order.
FACTS
1. Background
This case has a complicated history, which was cogently summarized as follows in our second opinion, Nellie Gail Ranch Owners Association v. Colombo (Sept. 9, 2009, G040957) (nonpub. opn.) (Colombo 2): "Ralph Colombo obtained the approval of the Nellie Gail Ranch Homeowners Association to build a house, a retaining wall, and a barn on his Nellie Gail lot back in 2001. Nellie Gail CC&Rs require that work on any construction projects must be completed within a year of approval. Even so, by 2003, Colombo still had not begun construction of the house, and the Association gave Colombo notice that it would begin mediation proceedings to resolve the construction delays. Colombo did not heed the notices, the mediation proceedings fell through, and the Association filed suit against Colombo, requesting an injunction to require him to stop construction on the improvements on his lot and to substantially build the house within the year. The Association requested further that if Colombo did not substantially build the house within the year, then the Association would have access to Colombo's property and would be able to tear down the improvements on his lot.
"At the conclusion of the trial, the court issued an injunction against Colombo which contemplated the possibility that the Association might actually come onto the property and demolish half-completed structures. But there was an important safety valve. To quote what we wrote the last time: 'The February 2007 injunction has a built-in, albeit now obsolete, safety valve: If the Colombos had submitted plans for the construction of a single-family house 30 days within of February 5, 2007, and a good faith review by the architectural review committee had resulted in approval of those plans, and if construction had commenced within 120 days of February 5, 2007, and if the Colombos had, thereafter, "diligently undertake[n]" that construction, and the construction was entirely completed within one year from February 5, 2007, then the injunction would have been stayed, by its own terms.' (Colombo I, supra, 2008 WL 762008 at p. 1, (original italics deleted).)
"However, we further noted that a stay issued by this court, 'perhaps improvidently' as we would later fess up to, created some confusion in what would have otherwise been the workings of the trial court's 'well-crafted' order: 'The pendency of this appeal, has itself, however, had an unforeseen effect on the trial court's well-crafted injunction, not the least of which was this court's own, perhaps improvident, stay of trial proceedings during the pendency of this appeal. The appellate stay may have created some confusion as to the operation of the safety valve provided for in the injunction and may have cast doubt on the ability of either party to do anything during the pendency of the appeal. We thus find ourselves in a situation of reviewing an injunction which contained an important safety valve which this court itself may have inadvertently turned off.' (Colombo I, supra, 2008 WL 762008 at p. 6.)
"The modifications we subsequently made were, as we explained, undertaken to best approximate, as we could, what the trial court had initially done, but which might have been distorted by the stay issued by this court: 'Having jurisdiction over that injunction now, we will therefore use our authority under sections 43 and 187 of the Code of Civil Procedure to modify the judgment to closely approximate in the postremittitur time frame what the trial court did in the pre-appeal time frame.' (Colombo I, supra, 2008 WL 762008 at p. 6, italics added.)" (Colombo 2, supra, G040957.)
Our disposition in Colombo I, which is at the heart of this current appeal, states, in pertinent part, the following: "(1) The Colombos will have 30 days from the date of the remittitur to submit plans for the construction of a single family house.
"(2) The architectural review committee will perform a good faith review of those plans. We will also add this: Since the injunction reviewed arises out of a failure to implement plans approved in 2001, the Colombos may simply re-submit the plans already approved in 2001 by the [A]ssociation. If they do, the [A]ssociation is estopped to not approve those already approved plans. If the Colombos submit new plans, those plans may not be disapproved on the basis of more stringent or costly architectural standards adopted after 2001.
"(3) The Colombos will have 120 days after approval by the architectural review committee to commence construction. This is the one flaw in the trial court's safety valve -- requiring the Colombos to start construction 120 days after a date certain, but not giving the architectural committee a deadline by which to approve the plans. (As originally structured, the injunction permitted the architectural review committee to eat up the Colombos' allowed time.)
"(4) The construction must all be completed within this time frame: One year from the date of the remittitur plus the time from the date the Colombos submit plans to the date those plans are approved by the architectural committee and approved by the relevant municipal authorities. To use the taxi metaphor, the meter on the one year will not run during any period of plan approval over which the Colombos have no control.
"(5) If the construction is not completed within the time frame specified above, the February 2007 injunction will allow the Association to do what the injunction here otherwise allows it to do." (Colombo I, supra, G038603.) The injunction originally issued by the trial court expressly allowed the Association to "enter [Colombo's] property to immediately remove unapproved improvements on their Lot, including but not limited to the partially constructed auxiliary structure and retaining walls; to remove all unauthorized vehicles stored in plain view from the Lot or to store them away from view; and to remove all dirt, debris, building materials and other materials . . . ."
2. The Present Appeal
Our record reflects that in April 2011 the court awarded the Association $26,250 in "additional attorneys fees and costs for the enforcement of judgments," but it does not include the Association's motion for those fees and any opposition filed by Colombo. That is the first of the two fee awards which Colombo challenges in this appeal.
Ten days after the Association served Colombo with notice of that ruling, he filed a motion for reconsideration of that order. The motion included Colombo's assertion there was no evidence he was not complying with the conditions of the stay preventing the Association's enforcement of the injunction. That assertion, however, was unsupported by any authority that such a showing was required or any evidence that he actually remained in compliance.
Less than a week later, Colombo filed an ex parte application seeking a temporary restraining order to prevent the Association from enforcing the injunction. That application was supported by a conclusory recitation of the facts Colombo believed suggested he had not violated the terms of the stay, and included copies of unauthenticated documents. The court denied that application and the Association served notice of that denial on April 25, 2011.
In June 2011, the Association filed a motion for an additional award of attorney fees, plus $110,000 in costs incurred to "abate the nuisance" on Colombo's property in accordance with the terms of the earlier injunction. Colombo opposed that motion in November 2011, arguing only that the fees and costs claimed were unreasonably high. His declaration in support of the motion evidenced only that he was in difficult financial straits.
On December 9, 2011, the court entered an order denying Colombo's motion for reconsideration of the first fee award and granting the Association's motion for an award of additional attorney fees and abatement costs. The Association served Colombo with notice of that ruling on December 14, 2011.
In March 2012, the Association moved for an order correcting the judgment, nunc pro tunc, to incorporate both awards of fees and abatement costs made in favor of the Association. In its motion, the Association pointed out the court had previously modified the judgment, nunc pro tunc, to include earlier fee awards in its favor. In April 2012, Colombo filed a motion to set aside the court's earlier orders awarding fees and abatement costs, arguing the court was biased and had been defrauded by evidence submitted in favor of the Association's earlier motion to appoint a receiver, which was denied in September 2010.
In May 2012, the court granted the Association's motion to correct the judgment, nunc pro tunc, and denied Colombo's motion to set aside its earlier orders. It is from that order that Colombo appealed on June 12, 2012.
DISCUSSION
On appeal, Colombo makes no claim he actually satisfied the requirements of the stay set forth by this court in Colombo I back in 2008. As he explains, "[i]t is not the purpose of this appeal to seek a determination of whether Colombo was or was not in compliance with the Court of Appeal's timeline . . . ." Instead, he argues only that as a matter of due process he was entitled to an evidentiary hearing (complete with cross-examination of witnesses) to decide that issue before the Association could proceed with its enforcement of the injunction. Because no such hearing took place, he believes the court's award of attorney fees and abatement costs in favor of the Association, stemming from its enforcement of the injunction, must be reversed. He also contents the Association was equitably estopped from asserting he was not in compliance with the terms of the stay.
However, as always, "[w]e begin with perhaps the most fundamental rule of appellate review - that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance." (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 765-766.) It is Colombo's obligation, as appellant, to affirmatively demonstrate the court committed error below. Moreover, the general rule is that "issues raised for the first time on appeal which were not litigated in the trial court are waived." (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73.)
Here, Colombo's assertion the court erred by failing to afford him an evidentiary hearing is unsupported by any showing he ever claimed the right to such a hearing below, and that his request for such a hearing was improperly rejected by the trial court. His claim is likewise unsupported by any authority suggesting his right to demand such a hearing could be asserted for the first time on appeal. Consequently, he has shown no entitlement to relief on the merits of his argument.
Colombo's assertion the Association was equitably estopped from asserting he was not in compliance with the terms of the stay fares no better. Again, Colombo makes no effort to establish this claim was ever asserted below.
But there is an even more fundamental problem with Colombo's appeal. As the Association points out in its brief, Colombo had the right to appeal directly from each of the two orders awarding fees and abatement costs to the Association. Each of those orders was separately appealable as an order after final judgment. (Code. Civ. Pro., 904.1, subd. (a)(2); Bankes v. Lucas (1992) 9 Cal.App.4th 365 [postjudgment award of fees subject to direct appeal].) Colombo's failure to challenge those orders by direct appeal precludes our review of their propriety in a subsequent appeal. (Taper v. City of Long Beach (1982) 129 Cal.App.3d 590, 606-607.)
Further, we cannot save Colombo's challenge to the earlier orders by liberally construing his notice of appeal as encompassing those orders. Colombo's notice of appeal was filed on June 12, 2012, more than 180 days after December 9, 2011, which was the date the court entered the second of those two appealable postjudgment orders. (Cal. Rules of Court, rule 8.104(c)(2).) His appeal is consequently untimely if construed as a direct appeal from those orders. (Cal. Rules of Court, rule 8.104(a)(1)(C).)
Because Colombo's challenge to the court's May 2012 order relied solely on the alleged impropriety of the court's earlier appealable orders awarding fees and abatement costs to the Association - an issue which we cannot now consider - we affirm the order. And because we have no need to delve deeply into the merits of the trial court's now-final fee and cost orders, we have no need to review additional documents proffered by Colombo for inclusion in our record. His supplemental request for judicial notice is consequently denied.
DISPOSITION
The order is affirmed. Colombo's supplemental request for judicial notice is denied. The Association is to recover its costs on appeal.
RYLAARSDAM, ACTING P. J. WE CONCUR: MOORE, J. THOMPSON, J.