Opinion
D060272
08-14-2013
P.O.P. ENTERPRISES, INC. et al., Plaintiffs and Appellants, v. JOHN S. LIVELY et al., Defendants and Respondents.
David A. Kay for Plaintiffs and Appellants. James S. Marinos; Kessler & Seecof and Daniel J. Kessler for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GIN048514)
APPEALS from orders of the Superior Court of San Diego County, Earl H. Maas III, Judge. Affirmed as to July 7, 2011 appeal; dismissed as to November 9, 2011 appeal.
David A. Kay for Plaintiffs and Appellants.
James S. Marinos; Kessler & Seecof and Daniel J. Kessler for Defendants and Respondents.
I.
INTRODUCTION
After we filed an opinion in a prior appeal in this case (P.O.P. Enterprises, Inc. v. Lively (Feb. 25, 2010, D051710) [nonpub. opn.] 2010 Cal.App.Unpub. Lexis 1365 (P.O.P. I)),the original defendant in this action, Riley J. Lively (Riley), died. Upon issuance of the remittitur, respondents John S. Lively and Onie O. Lively, Riley's son and wife, filed a motion in the trial court to continue the action as Riley's personal representatives, and a motion to dismiss the action. The trial court granted both motions. A few weeks later, the trial court entered a judgment of dismissal. In the ensuing months, the trial court entered several postjudgment orders, including awarding respondents $211,185 in attorney fees, amending the judgment to name Phillip O. Paccione as the alter ego of P.O.P. Enterprises, Inc. (P.O.P.) (collectively appellants), and denying appellants' motion to vacate the judgment.
Appellants appealed the trial court's order denying their motion to vacate the judgment and Paccione appealed the order amending the judgment. On appeal, appellants contend that the underlying judgment, and all subsequent orders made after the entry of that judgment, are void because John and Onie Lively filed their motion to dismiss prior to becoming parties to the case. Appellants also contend that the trial court erred in amending the judgment to include Paccione as P.O.P.'s alter ego.
Appellants also appealed an order requiring Paccione to increase the amount of a cash deposit posted pending appeal. For reasons we explain in part III.C., post, we dismiss this portion of the appeal as moot.
We conclude that the underlying judgment is not void, and that this conclusion mandates that we dismiss appellants' appeal from the trial court's order denying their motion to vacate the judgment. We further conclude that the court did not err in amending the judgment to include Paccione as a judgment debtor.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Portions of this factual and procedural background are drawn from our prior opinion in this matter, P.O.P. I, supra, D051710.
A. The underlying litigation
P.O.P. operated a billiards parlor in a commercial space that it leased from Riley. In November 2005, P.O.P. filed this action, alleging that Riley had interfered with P.O.P.'s attempt to sell its business and assets. In a first amended answer, Riley asserted that the lease between the parties required that P.O.P.'s claims be arbitrated. The trial court sustained P.O.P.'s demurrer to this affirmative defense, and the action proceeded to trial. A jury returned a verdict in favor of P.O.P. and awarded P.O.P. a total of $452,784 in compensatory and punitive damages. In September 2007, the trial court entered a judgment pursuant to the jury verdict. B. P.O.P. I
In February 2010, this court reversed the judgment on the ground that the trial court erred in sustaining P.O.P.'s demurrer to Riley's affirmative defense of arbitration, and remanded the matter to allow Riley to exercise his contractual right to arbitration. Shortly after we filed our opinion in P.O.P I., and prior to the issuance of the remittitur, Riley died. C. Prejudgment proceedings on remand
On April 28, 2010, the same day that the remittitur issued in P.O.P. I., respondents filed a motion to continue the action as Riley's personal representatives, a petition to compel arbitration, and a motion to dismiss the action.
On May 4, P.O.P.'s counsel, Shawn McMillan, filed a motion to be relieved as counsel.
On May 24, respondents filed an order of the probate court dated May 6 that authorized respondents to "take any and all actions necessary to proceed with the ongoing legal matters" in this action.
On May 28, the trial court held a hearing. Attorney McMillan appeared at the hearing and stated that prior to being relieved as counsel, he requested that the trial court continue the hearing on the motion to dismiss in order to give P.O.P.'s new counsel time to file an opposition. P.O.P's new counsel, Jeffrey Montez, of the law firm Nicholas & Butler, LLP, who also appeared at the hearing, stated, "I'm appearing here today representing that we are new counsel, and we're getting up to speed on the case." Attorney Montez requested that P.O.P. be permitted to brief the issue of whether dismissal of the action was appropriate. The court stated that it would "stay the dismissal for ten days," and would allow P.O.P. to "file something," because "bringing it up orally here today is probably not fair to them."
That same day, the trial court entered an order granting Attorney McMillan's request to be relieved as counsel, and granted respondents' motion to substitute into the case as defendants. The court also granted respondents' petition to compel arbitration and their motion to dismiss the action, but stayed the dismissal until June 7, 2010.
P.O.P did not file any opposition to the motion to dismiss. On June 11, Attorney Matthew B. Butler filed a substitution of attorney form indicating that he was P.O.P.'s new legal representative. Approximately one week later, on June 17, the trial court entered a judgment of dismissal. D. Postjudgment orders and appeals
In June 2010, respondents filed a motion seeking attorney fees based on an attorney fee provision in the lease. P.O.P. opposed the motion. In November 2010, the court awarded respondents $211,185 in attorney fees.
In April 2011, respondents filed a motion to amend the judgment to add Paccione as the alter ego of P.O.P. Over P.O.P. and Paccione's opposition, and after further briefing and a hearing, the trial court granted the motion to amend the judgment. On June 20, 2011, the trial court entered a formal order granting the motion. On July 7, Paccione timely appealed the trial court's June 20 order.
The parties offered numerous declarations and exhibits related to the motion.
In August 2011, appellants filed a motion to vacate the June 17, 2010 judgment on the ground that the judgment on remand, and all postjudgment orders, were void because respondents had not been substituted as proper parties at the time they filed their motion to dismiss. The trial court denied the motion to vacate. On November 9, appellants filed an appeal from the denial of the motion to vacate.
III.
DISCUSSION
A. The appeal from the trial court's order denying appellants' motion to vacate the judgment must be dismissed
Respondents contend that the appeal from the trial court's September 14, 2011 order denying appellants' motion to vacate the judgment must be dismissed. We agree.
Together with their opposition to the motion to dismiss, appellants filed a motion for sanctions on the ground that respondents' motion was frivolous. In light of our granting of respondents' motion to dismiss the appeal from the order denying appellants' motion to vacate the judgment, we deny appellants' motion for sanctions.
1. The appealablity of an order denying a motion to vacate the judgment
"[A]n order denying a motion to vacate a judgment is generally not appealable; otherwise, an appellant would receive 'either two appeals from the same decision, or, if no timely appeal has been made, an unwarranted extension of time in which to bring the appeal.' [Citation.]" (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 690.) "[H]owever, an exception to this general rule applies when the underlying judgment is void. In such a case, the order denying the motion to vacate is itself void and appealable because it gives effect to a void judgment." (Id. at p. 691.) Courts have stated that this narrow exception to the rule of nonappealability applies where the "underlying judgment is void." (Ibid.; see, e.g., 311 South Spring Street Co. v. Department of General Services (2009) 178 Cal.App.4th 1009, 1014.)
We acknowledge that there are some cases in which courts have stated that "when an appellant attacks an order on the ground that it gives effect to a judgment that is void for lack of jurisdiction, the order may be appealed even if the underlying judgment was also appealable." (Residents for Adequate Water v. Redwood Valley County Water Dist. (1995) 34 Cal.App.4th 1801, 1805 (Residents), italics added, citing County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 110-111 (County of Ventura).)However, the rationale for allowing such an appeal is that "an order giving effect to a void judgment is also void and is subject to attack." (County of Ventura, supra, at p. 110.) Permitting such an appeal where the underlying judgment is not in fact void, merely because the appellant contends that the order gives effect to a void judgment would be inconsistent with this rationale since it would not apply where the underlying judgment is not actually void. Further, allowing an appeal merely upon a contention that a judgment is void would permit an appellant to have two appeals from the same decision, or to obtain an unwarranted extension of time in which to bring the appeal, in contravention of the rationale for precluding such appeals. Finally, allowing such an appeal, merely upon the contention that the underlying judgment is void is inconsistent with the presumption of the validity of judgments. (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1231 [" 'A trial court's judgment and orders, all of them, are presumptively valid and must be obeyed and enforced' [citation]"].)
Accordingly, we conclude that appellants may appeal from the September 14 order denying their motion to vacate the underlying judgment only if that judgment is in fact void. We consider whether the judgment is void in the following section.
While it is somewhat unusual to address the merits of appellants' contention that the judgment is void in determining the jurisdictional issue of whether appellants may appeal the denial of their motion to vacate, to conclude that appellants may appeal the denial of their motion to vacate regardless of whether the underlying judgment is in fact void would be problematic, for the reasons stated in the text. In addition, while in this case we address the voidness issue in a full opinion with reasons stated after briefing on the merits, our view of appealability as expressed in this opinion has the virtue of permitting an appellate court to dismiss a nonappealable denial of a motion to vacate a nonvoid judgment at an earlier stage in the appellate proceedings, in the event that dismissal is appropriate. Finally, even if were to conclude that appellants could appeal the September 14, 2011 order denying their motion to vacate, we would affirm the trial court's order, in light of our conclusion in the following section that the judgment is not in fact void. (See Residents, supra, 34 Cal.App.4th at p. 1808 [affirming trial court's denial of motion to set aside judgment as void].)
2. The appeal from the trial court's order denying appellants' motion to vacate the judgment must be dismissed because the underlying judgment is not void
Appellants contend that the underlying judgment is void because respondents had not been substituted as proper parties in the case in the wake of Riley's death at the time they filed their motion to dismiss. We are not persuaded.
" 'The distinction between void and voidable orders is frequently framed in terms of the court's jurisdiction. "Essentially, jurisdictional errors are of two types. 'Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' [Citation.] When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and 'thus vulnerable to direct or collateral attack at any time.' [Citation.]" ' [Citation.] . . . ' "A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." [Citation.]' [Citation.]" (Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 149.)
It is undisputed that at the time the trial court entered judgment in favor of respondents, it had jurisdiction over the subject matter and the questions presented in the case. Further, the trial court granted respondents' motion to substitute in as parties in place of Riley prior to entering judgment in their favor. Thus, at the time the trial court rendered judgment, the court had fundamental jurisdiction over the action.
Further, the California Supreme Court has long held that,"when, in his lifetime, jurisdiction of the party and of the subject matter has been acquired, the rendition of a judgment after his death, without substitution of parties, is not void, but at the most erroneous." (Martin v. Wagner (1899) 124 Cal. 204, 205, italics added; see Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957, fn. 5 [noting the "long line of cases disallowing collateral attacks upon such judgments"].) In light of this case law, we can think of no compelling reason, and appellants have not advanced any, as to why a judgment of dismissal entered with the proper substitution of parties for the decedent could nevertheless be collaterally attacked as void based on the contention that respondents filed a motion seeking dismissal prior to becoming proper parties to the case. In other words, since the judgment in this case would have been immune from collateral attack even if it had been rendered in favor of Riley after his death, it is clear that a judgment in favor of his successors rendered after their appointment as proper parties would also necessarily be immune from collateral attack.
None of the case law that appellants cite in their briefing on appeal supports a contrary conclusion. Appellants cite a number of cases, including Difani v. Riverside County Oil Co. (1927) 201 Cal. 210, that stand for the proposition that "one who is not a party to a proceeding may not make a motion therein." (Id. at p. 214.) However, in none of the cited cases had the entity that filed a motion become a party by the time the trial court ruled on the motion, as in this case. Further, neither Difani nor any other case that the appellants cite supports the proposition that a judgment of dismissal is void merely because a party filed a motion to dismiss prior to becoming a party. Respondents were parties, both at the time the court granted respondents' motion to dismiss and at the time the court entered a judgment of dismissal in respondents' favor. Under these circumstances, the fact that respondents filed the motion to dismiss prior to becoming parties did not deprive the trial court of fundamental jurisdiction to dismiss the action. Accordingly, we conclude that the underlying judgment is not void on the ground that respondents had not been substituted as proper parties at the time they filed their motion to dismiss.
Appellants also contend that P.O.P. was not represented by counsel at the time the trial court entered the judgment of dismissal and the orders at issue, and argue that the orders and judgment are therefore void. P.O.P. did not raise this contention in its August 2011 motion to vacate, and appellants make no argument in their opening brief that they may raise this contention on appeal notwithstanding their failure to raise it earlier. We therefore deem the contention forfeited. (See, e.g., Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 798 [party forfeits contentions by failing to "demonstrate either that it preserved . . . arguments in the trial court, or that it may properly raise such arguments for the first time on appeal"].)
In any event, even if we were to consider this claim, we would reject it. P.O.P. was represented at the May 28, 2010 hearing at which the trial court granted respondents' motion to dismiss and granted P.O.P.'s former counsel's request to be relieved. Further, P.O.P.'s new counsel filed a formal substitution of counsel on June 11, prior to the trial court's entry of judgment of dismissal on June 17. Thus, P.O.P. was represented both at the hearing on the motion to dismiss, and at the time of entry of the judgment of dismissal.
In addition, as noted in part III.A., ante, the trial court permitted P.O.P.'s new counsel to file a brief concerning the motion to dismiss prior to entering the judgment of dismissal.
Accordingly, we conclude that the appeal from the trial court's September 14, 2011 order must be dismissed. B. The trial court did not err in amending the judgment to include Paccione as P.O.P.'s alter ego
We emphasize that even if we were to conclude that appellants could appeal the September 14, 2011 order denying their motion to vacate, we would affirm the trial court's order, in light of our conclusion that the judgment is not in fact void. (See Residents, supra, 34 Cal.App.4th at p. 1808 [affirming trial court's denial of motion to set aside judgment as void].)
Appellants claim that the trial court erred in amending the judgment to include Paccione as P.O.P.'s alter ego. Appellants claim both that the procedure that the court employed in amending the judgment to include Paccione as P.O.P.'s alter ego was flawed, and that the court's alter ego ruling was substantively erroneous.
1. Appellants' procedural contentions are without merit
Appellants contend that the trial court erred in denying their requests to continue the hearing on the motion to amend the judgment to include Paccione as P.O.P.'s alter ego. We review the trial court's rulings for an abuse of discretion. (See Dailey v. Sears, Roebuck and Co. (2013) 214 Cal.App.4th 974, 1004.)
On April 7, 2011, respondents served Paccione with a motion to amend the judgment to include Paccione as P.O.P.'s alter ego. The motion stated that the hearing on the motion would be held on May 6. On April 25, P.O.P. filed an opposition to the motion in which it requested a 90-day continuance of the hearing. P.O.P. explained that its current counsel was seeking to withdraw and noted, "In November 2010, [P.O.P.] was informed that [its current counsel's] representation concluded." Two days later, respondents filed an opposition to the request for a continuance, arguing that the request was "untimely and reasonable," and adding that "it is not even in P.O.P.'s interest to oppose the motion." At an April 27 hearing, the trial court discussed the request for a continuance on the record, noting the court's belief that P.O.P. did not "really have . . . a right to ask for a continuance of the pending motion that's being heard on the 6th because that deals with [Paccione] as an individual." The court denied the request to continue the May 6 hearing.
Respondents served P.O.P. with the motion on April 5, 2011.
P.O.P. did not address the merits of the motion in its opposition.
Respondents filed a reply brief in support of their alter ego motion in which they argued that "[i]f P.O.P. were truly a separate entity from [Paccione], it should want Paccione, the person who appropriated all of P.O.P.'s assets, to be found responsible to pay the judgment against P.O.P."
At the May 6 hearing, counsel for Paccione appeared and requested a 60-day continuance, explaining that her office was "just consulted the day before yesterday." Respondents' counsel opposed the request, noting that his original client had died during the litigation, and referring to Paccione as "a Houdini of alibis for delays." The trial court held a lengthy discussion with counsel concerning the request for a continuance. Near the conclusion of the hearing, Paccione's counsel stated, "I would be an enthusiastic participant if we can have three weeks." The trial court ultimately continued the hearing to June 3.
The record indicates that the trial court carefully considered both P.O.P.'s and Paccione's requests for a continuance of the hearing on the alter ego motion. Appellants make no argument on appeal that the trial court erred in concluding that P.O.P. did not have a right to seek a continuance of the May 6 hearing. With respect to Paccione's request for a continuance made at the May 6 hearing, the trial court discussed on the record the factors militating for and against granting a continuance. In addition, the trial court granted a substantial continuance, which resulted in Paccione having a total of more than two months to respond to the motion. Under these circumstances, the trial court clearly did not abuse its discretion in denying appellants' requests for an even longer continuance.
Appellants also contend that the trial court improperly confirmed its initial tentative order granting the motion to amend the judgment to include Paccione as P.O.P.'s alter ego without adequately considering the merits of appellants' opposition. However, the trial court's final order expressly states that the court considered appellants' briefing. Further, the court sustained some of appellants' evidentiary objections, which indicates that the court did read and consider appellants' briefing on the issue. In addition, the trial court held a hearing on the motion at which it heard argument from appellants' counsel. The record thus does not support appellants' "due process" objection to the manner by which the trial court considered respondents' motion to amend the judgment to include Paccione as P.O.P.'s alter ego.
Appellants also argue, "Most egregiously, the trial court actually prepared a tentative ruling based solely on the Lively attorney papers." The trial court filed the tentative opinion to which appellants refer in their brief on May 5, one day prior to the scheduled May 6 hearing. At the time the trial court filed this tentative opinion, appellants had not filed an opposition on the merits. It was therefore far from "egregious" for the trial court to have relied solely on respondents' briefing in preparing its initial tentative opinion. In their statement of facts, appellants also state, "Despite the filing of . . . opposition papers, [on June 1] the trial court posted the same tentative ruling it had prepared without any opposition papers." Appellants are incorrect. On June 1, the trial court filed a revised tentative opinion that differed, at least in part, from the May 5 tentative opinion, and in which the court expressly stated that it had considered appellants' opposition to the motion.
Appellants do not provide any authority in support of this component of their procedural argument other than to discuss the record and then assert, "That is not due process."
2. There is substantial evidence to support the trial court's alter ego finding
a. Governing law
In Misik v. D'Arco (2011) 197 Cal.App.4th 1065, 1071-1072, the Court of Appeal outlined the law governing the determination of whether an individual may be deemed to be the alter ego of a corporate entity:
" '[T]he conditions under which the corporate entity may be disregarded vary according to the circumstances in each case and the matter is particularly within the province of the trial court. [Citations.] This is because the determination of whether a corporation is an alter ego of an individual is ordinarily a question of fact.' [Citation.] There are two requirements for disregarding the corporate entity: first, that there is a sufficient unity of interest and ownership between the corporation and the individual or organization controlling it that the separate personalities of the individual and the corporation no longer exist and, second, that treating the acts as those of the corporation alone will sanction a fraud, promote injustice, or cause an inequitable result. [Citation.] . . . . '[S]ince this determination is primarily one for the trial court and is not a question of law, the conclusion of the trier of fact will not be disturbed if it is supported by substantial evidence.' [Citations.]" (Id. at p. 1072.)
b. Application
With respect to whether there is substantial evidence of a sufficient unity of interest and ownership between P.O.P and Paccione, appellants do not dispute any of the trial court's numerous factual findings pertaining to this issue, including that Paccione was P.O.P.'s incorporator, president, manager, financial advisor, "public face," agent for service of process, "creative force," and majority shareholder. Further, appellants do not dispute that Paccione's home address is also the address of the corporation, and that the name "P.O.P." represents Paccione's initials. Accordingly, we conclude that there is substantial evidence of a "unity of interest" between Paccione and P.O.P. to support the trial court's alter ego finding.
With respect to the equity prong of the alter ego test, appellants acknowledge that when Paccione carried out the sale of P.O.P.'s assets in 2007, P.O.P.'s action against Riley was not yet final. Appellants also do not dispute that as a result of the sale and payments made by P.O.P. to Paccione after the sale, P.O.P. had essentially no assets other than its judgment against Riley, which remained pending on appeal. In light of these facts, the trial court could reasonably find that Paccione and P.O.P. pursued a " 'heads I win—tails you lose' tactic" (Ryman v. American Nat. Ins. Co. (1971) 5 Cal.3d 620, 635) pursuant to which Paccione would have benefited greatly if the initial judgment had been affirmed, and would have suffered no adverse consequences if P.O.P. were ultimately to suffer a judgment against it. Under these circumstances, the trial court reasonably found that Paccione was P.O.P.'s alter ego. (See Alexander v. Abbey of the Chimes (1980) 104 Cal.App.3d 39, 47 [concluding evidence "was more than sufficient for the trier to find . . . an inequitable result if the alter ego doctrine is not applied" where corporation's sole stockholder and chief executive officer received proceeds of corporation's sale while litigation was pending since the "net effect of the transaction was to leave [the corporation] as a hollow shell without means to satisfy its existing and potential creditors"].)
In his declaration in support of appellants' opposition, Paccione described his extensive involvement in the sale of P.O.P.'s assets. Paccione explained that he negotiated the terms of the sale and signed a letter of intent, a sale agreement, and escrow instructions, all on behalf of P.O.P.
Appellants presented evidence that P.O.P. made these payments in order to repay loans that Paccione and his wife had made to P.O.P. However, the trial court was not required to credit such evidence, and there is nothing in the record to indicate that the court believed that that the Pacciones had made such loans. Rather, the court stated that there was evidence of "a diversion of corporate funds," in the wake of the sale of P.O.P.'s assets. Further, the trial court stated on the record at the alter ego hearing that it had "great concern about the credibility of Mr. Paccione."
In any event, even assuming that the trial court found that the payments in question were made to repay loans, such a finding would not undermine the trial court's alter ego finding, since it is undisputed that notwithstanding the sale of P.O.P.'s assets and post-sale payments to Paccione, P.O.P. continued to pursue litigation against Riley without sufficient assets to pay a possible judgment against P.O.P.
Accordingly, we conclude that the trial court did not err in amending the judgment to include Paccione as P.O.P.'s alter ego. C. Appellants' contentions pertaining to the cash deposit posted on appeal are moot
1. Procedural history
Approximately a week after filing his July 7, 2011 appeal of the trial court's alter ego ruling, Paccione filed a notice stating that he had posted a cash deposit effecting a stay of execution of the judgment pending appeal. Respondents objected to the amount of the cash deposit. On September 13, the trial court entered an order requiring Paccione to increase the amount of the cash deposit. Shortly thereafter, Paccione filed a notice stating that he had posted the additional cash deposit required by the court's September 13 order.
2. Appellants request that we exercise our discretion to consider various claims pertaining to the cash deposit
Appellants argue, "While the issues related to the cash deposit may appear to be unimportant, since the cash deposit was posted, the legal issues surrounding this cash deposit are recurring issues and they will probably never be addressed unless they are addressed in the context of an appeal." Appellants make no argument that a reversal of the September 13 order would provide them with meaningful relief.
Respondents note that appellants acknowledge that the "deposit issues are merely academic and without impact herein," and contend that this court need not, and should not, address appellants' contentions pertaining to the September 13 order because the claims are moot. In reply, appellants argue that there "is no existing published authority on the issues addressed concerning the cash deposit," and contend that "[t]he issues will recur."
We infer that appellants are requesting that we exercise our discretion to decide the merits of their claims pertaining to the cash deposit, notwithstanding that these claims are moot, in light of their "general importance and recurring nature." (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 385.)
3. We decline to exercise our discretion to consider appellants' claims
Two of appellants' arguments pertaining to the cash deposit—whether there is an adequate money judgment and whether the automatic stay provisions of Code of Civil Procedure section 917.1, subdivision (d) apply—are fact sensitive issues, peculiar to this case. Further, all of the contentions that appellants raise in their brief pertaining to the cash deposit were also raised in a petition for writ of mandate, prohibition, or supersedeas, which this court previously summarily denied. While appellants are correct that this court's denial of the writ petition is not a binding decision on the merits of their contentions, the potential for writ relief provides an adequate remedy under these circumstances. Accordingly, we decline to exercise our discretion to consider appellants' claims.
In their memorandum in support of their writ petition, appellants stated that issues pertaining to the cash deposit "are made moot by the time any appeal could be processed."
Accordingly, we dismiss as moot appellants' appeal of the September 13, 2011 order requiring Paccione to increase the amount of a cash deposit posted pending appeal. D. Any further proceedings in this case may be conducted by Judge Maas
Appellants request that we order that any further proceedings in this matter be conducted in front of a different trial judge. In support of this request, appellants contend that Judge Maas displayed "unjustified and pronounced impatience" in the trial court proceedings. We have carefully reviewed the record, including all of the instances of purported "unjustified and pronounced impatience" to which appellants refer in their brief, and conclude that there is nothing in the record that would require that any further proceedings in this matter be conducted by a different judge.
Appellants contend that Judge Maas displayed impatience concerning P.O.P.'s attempts to obtain new counsel, and that Judge Maas's impatience resulted in the entry of orders against P.O.P. while unrepresented and in the denial of P.O.P.'s requests to "be relieved from default."
IV.
DISPOSITION
The appeal from the trial court's September 14, 2011 order denying appellants' motion to vacate the judgment is dismissed. The trial court's June 20, 2011 order amending the judgment to name Paccione as a judgment debtor is affirmed. The appeal from the trial court's September 13, 2011 order increasing the cash deposit to be posted on appeal is dismissed as moot. Respondents are entitled to costs on appeal.
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AARON, J.
WE CONCUR: ____________
HUFFMAN, Acting P. J.
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HALLER, J.