Opinion
A129172
01-26-2012
STEPHANIE ROSEN, Plaintiff and Respondent, v. LEGACYQUEST et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. CIV440930)
Plaintiff and respondent Stephanie Rosen (Stephanie), along with her husband Michael Rosen (who is not a party to this appeal), obtained a significant judgment against defendants and appellants Christopher Cook (Cook) and LegacyQuest for breach of contract. Cook and LegacyQuest appealed and obtained a stay of execution by posting an undertaking by personal sureties, appellants Ruo Hui Chen, James Jin Q Li, James Kenneth Menasco, and Nikii Menasco. After this court dismissed Cook and LegacyQuest's appeal at their request, Cook and LegacyQuest, and then the sureties, failed to pay the judgment. Upon motion by Stephanie to enforce the undertaking, the trial court entered judgment against the sureties. We reject appellants' challenges, including that Stephanie's motion was untimely, and affirm the judgment.
For the sake of clarity henceforth, we will refer to the Rosens by their first names and collectively as the Rosens. (See 11601 Wilshire Associates v. Grebow (1998) 64 Cal.App.4th 453, 455, fn. 1 (Wilshire Associates).)
I. BACKGROUND
This is one of numerous appeals arising from a morass of litigation between the parties that has now spanned some seven years. We set forth the history of this litigation in our opinion in consolidated appeals in related cases. (See Rosen v. Cook (Jan. 11, 2011, A123548, A123558) [nonpub. opn.].) We do not repeat that history here, but set forth only those facts necessary to the resolution of the present appeal.
In July 2004, the Rosens filed suit for breach of contract against Cook and LegacyQuest. The case went to trial in February 2006, and the jury returned a verdict in favor of the Rosens, and against Cook and LegacyQuest, for $434,743.36. Judgment was entered on March 24, 2006.
The lawsuit also involved other claims that are not pertinent to the instant appeal.
After unsuccessful posttrial motions, Cook and LegacyQuest appealed from the judgment in April 2006 (case No. A114176). Shortly thereafter, Cook and LegacyQuest filed undertakings by personal sureties to stay execution, and filed an amended undertaking more than a year later, in November 2007. The amended undertaking states the sureties "obligate themselves, jointly and severally for double the amount of the judgment of $434,743.36, to the plaintiffs Mike and Stephanie Rosen."
After Cook and LegacyQuest sought and received a 90-day stay of their appeal on the ground settlement efforts were under way, and then sought and were granted numerous extensions of time to file their opening brief on appeal on other grounds, this court ordered counsel to personally appear on August 7, 2008, to show cause why the appeal should not be dismissed. At that hearing, Cook and LegacyQuest orally requested dismissal of their appeal. This court granted their request and issued an order on August 11, 2008, dismissing the appeal. Remittitur issued on October 14, 2008, and was filed with the trial court two days later.
The two, nonconsecutive pages of transcription of the hearing which Cook and LegacyQuest submitted in opposition to Stephanie's motion, do no more than show Cook and LegacyQuest asked that their appeal be dismissed. The two pages are otherwise too cryptic to understand the substance of what was discussed at the hearing.
On December 10, 2008, Stephanie demanded payment of the March 2006 judgment from the sureties. The sureties did not comply.
Eight months later, on August 18, 2009, Stephanie served Cook, LegacyQuest, and the sureties with a motion under Code of Civil Procedure section 996.440 for entry of judgment against the sureties in the amount of $573,148.96 (the original judgment as modified by later court orders, credits, costs, and interest). Stephanie filed her motion one week later, on August 25, 2009, and noticed a hearing for September 25, 2009. Cook and LegacyQuest filed opposition, but the sureties did not; nor did the sureties join in Cook and LegacyQuest's opposing papers. Six months later, on March 11, 2010, the trial court granted Stephanie's motion. Judgment was entered against the sureties two months later, on May 11, 2010, in the amount of $592,558.74 (reflecting additional postjudgment interest).
All further statutory references are to the Code of Civil Procedure.
For reasons not relevant here, Michael did not join in this motion.
Cook, LegacyQuest, and the sureties all moved to vacate the judgment and for a new trial under sections 663 and 657. The trial court denied the motions on June 28, 2010. Cook, LegacyQuest, and the sureties then filed a timely notice of appeal from the May 11, 2010, judgment against the sureties and the June 28, 2010, order denying their posttrial motions.
An order denying a motion for new trial is not separately appealable, although it may be challenged on appeal from the judgment. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19-20.) An order denying a motion to vacate is appealable. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003) 111 Cal.App.4th 1328, 1337, fn. 6.) However, other than simply asserting the trial court erred in denying their posttrial motions, appellants provide no discussion and cite to no authority. Accordingly, appellants have waived any separate challenge to the trial court's posttrial order. (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 314; see also Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Cal. Rules of Court, rule 8.204(a)(1)(B) [each point made on appeal must be under a separate heading and supported by argument and, if possible, citation to authority].)
II. DISCUSSION
Appealability
Stephanie previously moved to dismiss this appeal on the ground the sureties cannot appeal from the judgment against them. Although we denied the motion, Stephanie has again challenged their ability to appeal in her respondent's brief.
"It is true that it has been held that a judgment on an appeal bond may not be appealed by the surety . . . because the judgment against the surety is a consent judgment." (Merritt v. J. A. Stafford Co. (1968) 68 Cal.2d 619, 622; see also Duerr v. Sloan (1920) 50 Cal.App. 512, 516.) However, "where the judgment is not entered in accordance with the consent it is appealable, because in the latter case a consent judgment is not involved." (People v. Aymar (1929) 98 Cal.App. 1, 5.) A judgment is not by consent if the court enters it outside the time period allowed for its entry. (See Duerr v. Sloan, supra, 50 Cal.App. at p. 516 ["Where, as in that case, a judgment [against a surety] is entered prior to the expiration of the thirty-day period, it is not a 'consent' judgment; that is to say, the judgment is not in accord with the consent given."].)
Because the instant appeal primarily concerns the timeliness of Stephanie's motion to enforce the undertaking, we may consider the sureties' appeal in this case.
However, we have considerable doubt that Cook and LegacyQuest can appeal from the judgment. The "judgment was entered against the suret[ies] on the bond" but "not against defendant[s.]" Therefore, Cook and LegacyQuest do not appear to be "aggrieved" by the judgment, and thus have no standing to challenge it. (See Fidelity & Deposit Co. v. Whitson (1962) 205 Cal.App.2d 713, 716-717 [because "judgment was entered against the surety on the bond pursuant to section 942, Code of Civil Procedure, and not against defendant," the "latter is not a party aggrieved by it and no appeal therefrom may be taken by him (Code Civ. Proc., § 938)"].) We need not decide the issue, however, because all appellants have raised identical contentions in a jointly filed brief, and therefore Cook and LegacyQuest's effort to participate in the appeal adds nothing to our consideration of the merits and decision. Appellants also note in their opening brief that Cook filed for federal bankruptcy protection on February 25, 2011, and assert "the automatic stay provisions of the bankruptcy are believed to be applicable." However, they have not cited to or sought judicial notice of any order of the bankruptcy court. (Ct. App., First Dist., Local Rules, rule 12, Bankruptcy Stays.) In any case, Cook's status is irrelevant because the judgment on appeal was entered against the sureties, not against Cook and LegacyQuest.
Judgment Against the Sureties
Standard of Review
In reviewing a trial court's grant of judgment against sureties under section 996.440, we apply a standard of review similar to the standard we apply when reviewing a grant of summary judgment. (See Simmons v. California Coastal Com. (1981) 124 Cal.App.3d 790, 796 [concerning review under section 1058a, the predecessor to section 996.440].) "It is well established" for summary judgment review "that we apply a de novo standard of review to the construction of a statute based on undisputed facts." (Dacey v. Tarady (2011) 196 Cal.App.4th 962, 979, citing Shapiro v. Board of Directors (2005) 134 Cal.App.4th 170, 178.) This appeal presents only such questions of law.
Timeliness of Motion
The filing of an appeal does not stay enforcement of a money judgment, but an appellant may obtain a stay of execution by posting an appropriate undertaking. (§ 917.1, subd. (a)(1).) An undertaking can be made by personal sureties, who are third parties that meet certain criteria and promise to answer for the debt created by the judgment. (Code Civ. Proc., §§ 995.185, 995.190, 995.510; Civ. Code, § 2787; see generally Lewin v. Anselmo (1997) 56 Cal.App.4th 694, 698.)
"The liability on the undertaking may be enforced if the party ordered to pay does not make the payment within 30 days after the filing of the remittitur from the reviewing court." (§ 917.1, subd. (b).)
Such liability can be enforced by motion in the action in which the undertaking was filed, eliminating the need to file a separate lawsuit against the surety. (§ 996.440, subd. (a); see Wm. R. Clarke Corp. v. Safeco Ins. Co. of Am. (2000) 78 Cal.App.4th 355, 359; compare § 996.430, subd. (a) [also allowing enforcement in another action].) When the motion procedure is used: "The motion shall not be made until after entry of the final judgment in the action or proceeding in which the bond is given and the time for appeal has expired or, if an appeal is taken, until the appeal is finally determined. The motion shall not be made or notice of motion served more than one year after the later of the preceding dates." (§ 996.440, subd. (b), italics added.)
The parties dispute when Cook and LegacyQuest's appeal from the March 2006 judgment was "finally determined," thus triggering the one-year period to make or serve a motion for judgment against the sureties. Appellants contend the one-year period ran from August 11, 2008, the date this court ordered the appeal from the March 2006 judgment dismissed. Stephanie maintains the one-year period ran from October 14, 2008, the date the remittitur issued following dismissal, and that her motion was timely served and filed within that period.
We first consider, however, whether the sureties have waived any challenge to the judgment against them. As we have recited, they did not oppose Stephanie's motion for enforcement of the undertaking, either by filing their own opposing papers or by joining in the opposition filed by Cook and LegacyQuest. Indeed, the trial court, in its order granting Stephanie's motion, observed: "No one appeared on behalf of the sureties, and they filed no opposition." In a later order rejecting objections to the proposed judgment against the sureties (made after the trial court had ruled on and granted Stephanie's motion), the trial court similarly stated that while two sureties filed letters joining in Cook and LegacyQuest's objections: "None of the sureties have filed any written objections [of their own]. None of the sureties opposed the motion, and none of the sureties have brought a motion for reconsideration. Indeed, the sureties were invited by the Court in its order for further briefing to submit briefs on the issues presented by the motion, and they chose not to file any papers whatsoever prior to the determination of the motion."
Generally, a party who has failed to oppose a ruling sought from the trial court cannot complain about such ruling for the first time on appeal, either under the doctrine of waiver or invited error. (See Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1414 [invited error]; Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 [waiver]; McCulloch v. M & C Beauty Colleges, Inc. (1987) 194 Cal.App.3d 1338, 1347.) Ordinarily, then, we would not reach the merits of the instant appeal, and would affirm on waiver and invited error grounds. However, given that the trial court heard Stephanie's motion on the merits in light of the opposition filed by Cook and LegacyQuest, we exercise our discretion to review the judgment on the merits.
We turn then to the meaning of the phrase "until the appeal is finally determined" in section 996.440, subdivision (b).
An appellate court's issuance of remittitur has long been viewed as the definitive event concluding all appellate activity in a case. "The remittitur is not issued until the appellate opinion is final for all purposes. (Cal. Rules of Court, rule 8.272.) The issuance of remittitur is the act by which the reviewing court transfers jurisdiction to the court reviewed. [Citation.] When the remittitur issues, the jurisdiction of the reviewing court terminates and the jurisdiction of the trial court reattaches." (In re Anna S. (2010) 180 Cal.App.4th 1489, 1500.) "The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned." (Id. at p. 1499.)
All further rules references are to the California Rules of Court.
Accordingly, it is the general rule that limitations periods run (or begin to run again) from the date of remittitur, not other appellate events. (See White v. Lieberman (2002) 103 Cal.App.4th 210, 217 [statute of limitations runs from date remittitur issued, not filing date of opinion reversing the judgment]; Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc. (1998) 202 Cal.App.3d 330 [statute of limitations runs from date remittitur issued, not Supreme Court's denial of a petition for rehearing]; Barkley v. City of Blue Lake (1996) 47 Cal.App.4th 309, 312 ["We dismissed the appeal on April 5, 1982, and the judgment became final when remittitur issued on June 7, 1982."]; see generally Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 479 ["[a]n appeal is final on the date remittitur issues"].) A rule that pins the statute of limitations to issuance of the remittitur "provides uniformity and predictability." (White, supra, 103 Cal.App.4th at p. 217.)
In Charles F. Harper Co. v. De Witt Mortg. & Realty Co. (1938) 10 Cal.2d 467, 468 (Charles), the Supreme Court applied an older version of the bond statutes and the then-applicable four-year limitations period and concluded that because the "[n]otice of the motion to enter judgment against the sureties was given more than four years after the remittitur was filed in the superior court," the motion was "properly denied." (Id. at p. 470, italics omitted.) That statute provided in pertinent part: "if the appellant does not make such payment [on the undertaking] within thirty days after the filing of the remittitur from the supreme court in the court from which the appeal is taken, judgment may be entered on motion of the respondent in his favor against the sureties . . . ." (Former Cal. Code Civ. Proc § 942, as amended by Code Am. 1873-1874, ch. 383, § 124, p. 336.) While Charles reinforces the importance of remittitur in establishing when an appeal is finally determined, it suggests filing of the remittitur in the trial court, rather than issuance by the appellate court, may be the triggering event for limitations periods to enforce an undertaking—an issue we will return to shortly.
While section 996.440, subdivision (b), uses the terminology "finally determined," section 917.1, subdivision (b), which imposes an initial, 30-day waiting period to file a motion to enforce an undertaking, expressly refers to the filing of the "remittitur" as triggering this period. However, the specific reference to the "remittitur" in section 917.1, subdivision (b)—language carried over from the version of the predecessor statute cited in Charles—does not mean the terminology "finally determined" in section 996.440, subdivision (b)—drafted in 1982—must refer to something other than the remittitur. On the contrary, given the wealth of case law establishing in similar limitations contexts that the date an appeal is finally determined is inextricably linked with the remittitur, the only way to reasonably harmonize sections 917.1 and 996.440 is to read both as linked to the remittitur. (See Baker v. Workers' Comp. Appeals Bd. (2011) 52 Cal.4th 434, 446 [statutory language " 'must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible' "].)
In fact, when Stephanie first filed a motion to enforce the undertakings on September 28, 2008, Cook and LegacyQuest opposed the motion as premature because no remittitur had issued, let alone been filed, and the trial court denied the motion without prejudice on that basis.
Appellants contend rule 8.264(b)(2)(B), specifies when Cook and LegacyQuest's appeal was "finally determined" for purposes of section 996.440, subdivision (b). Rule 8.264(b)(2)(B), provides that a dismissal by the Court of Appeal upon the written request or stipulation of the parties is a "decision" by the Court of Appeal and is "final in that court on filing." (Rule 8.264(b)(2)(B), emphasis added; see Rule 8.244(a)(1) [where case settles on appeal, appellant must "serve and file" either a notice of abandonment (if the record on appeal has not yet been filed with the appellate court) or a request to dismiss (if the record has been filed)]; 8.244(b)(1)-(2) [even in absence of a settlement, an appealing party may file an abandonment or seek dismissal of the appeal].)
By its terms, rule 8.264(b)(2)(B), only addresses finality in the Court of Appeal, not finality for all purposes. Thus, while an intermediate appellate court's decision may be final as to that court, it remains open to challenge by petition for review in the Supreme Court and thus is not final in all respects. (See Chinese Yellow Pages Co. v. Chinese Overseas Marketing Service Corp. (2008) 170 Cal.App.4th 868, 888, citing 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 838, pp. 902-903; cf. In re Anna S., supra, 180 Cal.App.4th at p. 1500 ["The remittitur is not issued until the appellate opinion is final for all purposes."], italics added.)
In contrast, section 996.440, subdivision (b), speaks in terms of when "the appeal is finally determined," i.e., when no further appellate proceedings can be had and the remittitur issues. (Italics added.) The broad terminology employed in section 996.440, subdivision (b), cannot reasonably be read as referring to the more limited and technical concept of finality only as to the Court of Appeal. Indeed, it would make no sense. Until the remittitur issues, the trial court has no jurisdiction over the case, and until the trial court has jurisdiction, no party can make a motion to enforce under section 996.440, subdivision (b). The 12 month period to serve and file such a motion certainly cannot begin running before the trial court even has jurisdiction to hear such a motion.
Nor, contrary to what appellants suggest, was there anything untoward about this court's issuance of the remittitur some two months after issuance of the dismissal order. While the Rules of Court permit a Court of Appeal to issue a remittitur immediately upon granting a request for dismissal, they by no means require it. Rule 8.244 provides "[o]n receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur." (Rule 8.244(c)(2), italics added.) Similarly, rule 8.272, governing remittitur, states "[a] Court of Appeal may direct immediate issuance of a remittitur . . . on dismissal of the appeal under rule 8.244(c)(2)." (Rule 8.272(c)(1), italics added.) This flexibility enables the appellate courts to treat cases individually while using one clear device—the remittitur—to signal finality for all purposes. (See Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 12 ["[A]ll the different possible dispositions at the time the reviewing court issues its opinion necessarily compel some nonspecificity of time in the 'rules' surrounding when remittitur should issue."].)
We now return to the question of whether the twelve month period to serve or file a motion to enforce an undertaking set forth in section 996.440, subdivision (b), begins to run from the issuance of remittitur by the court of appeal or the filing of the remittitur in the trial court. In Bellows v. Aliquot Associates, Inc. (1994) 25 Cal.App.4th 426, the court wrestled with whether the issuance, or filing, of a remittitur triggered a limitations period—but in ascertaining the timeliness of a malicious prosecution action, not a motion for judgment against sureties under section 996.440, subdivision (b). (Bellows, at p. 430.) Nevertheless, the court's analysis is of note. Looking at the history of the California Rules of Court regarding remittitur, which were adopted after Charles, and the weight of the ensuing case law, the court concluded issuance, not filing, started the clock. (Bellows, at p. 430.)
On the other hand, in addition to Charles, which dealt specifically with an enforcement action against sureties, section 917.1 also speaks in terms of "filing" and specifies no motion to enforce an undertaking can be brought until "30 days after the filing of the remittitur." (§ 917.1, subd. (b).) Arguably, since both statutes pertain specifically to motions to enforce an undertaking, both should have the same reference point—i.e., the "filing" of the remittitur.
Filing of remittitur, as opposed to issuance, is also the start date for the three-year period of time in which a case must be brought to trial following a reversal and remand directing a new trial. (§ 583.320; see also Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280, 1286-1287 & fn. 10 [section 583.340, subd. (c), which tolls the five-year time limitation on bringing an action to trial when it is "impossible, impracticable, or futile" to do so, effectively "recognizes a tolling of the period from the filing of the notice of appeal from an order of dismissal until the filing of a remittitur"].)
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However, we need not decide in this case whether the 12-month period in section 996.440, subdivision (b), commences running from the issuance, or the filing, of the remittitur. This court issued its remittitur on October 14, 2008, and it was filed with the trial court two days later, on October 16, 2008. Stephanie served and filed her motion to enforce the undertakings in August 2009, well within a year of either issuance or filing of the remittitur.
Failure to Name Principals
Appellants also contend the May 2010 judgment is defective because it was entered only against the sureties and not against Cook and LegacyQuest, as well.
Section 996.410, subdivision (a), provides "[t]he beneficiary may enforce the liability on a bond against both the principal and sureties." (§ 996.410, subd, (a), italics added; see also § 995.140, subd. (a)(2) [defining "bond" as including undertakings executed by sureties alone].) This reflects the general rule that a plaintiff may choose to obtain relief on a bond from the principal, surety, or both. (See Impac Imported Parts & Accessories Corp. v. Rattray (1979) 95 Cal.App.3d 792, 796-797; Mahana v. Alexander (1927) 88 Cal.App.111, 122.)
Section 996.440, subdivision (d), provides, in turn, judgment "shall be entered . . . in accordance with the motion" to enforce the bond. (§ 996.440, subd. (d).) Stephanie's motion sought judgment only against the sureties, and judgment was entered accordingly.
Attorney Fees on Appeal
"Where attorney's fees are authorized by statute they are authorized on appeal as well as in the trial court." (People ex rel. Cooper v. Mitchell Brothers' Santa Ana Theater (1985) 165 Cal.App.3d 378, 387; see Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.) Section 996.480, subdivision (a)(2), provides: "If the beneficiary makes a claim for payment on a bond given in an action or proceeding after the liability of the principal is . . . established and the surety fails to make payment, the surety is liable for costs incurred in obtaining a judgment against the surety, including a reasonable attorney's fee, and interest on the judgment from the date of the claim, notwithstanding Section 996.470, [which otherwise limits the liability of sureties]." (§ 996.480, subd. (a)(2).)
Based on this section, Stephanie asks in her respondent's brief that she be awarded attorney fees on appeal if we affirm the judgment against the sureties, which we do. We may entertain a request for fees by motion in a brief, instead of by separate motion, if the brief offers "argument and analysis on the subject." (Banning v. Newdow (2004) 119 Cal.App.4th 438, 459 [denying award when these criteria not met]; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1130, 1134-1135 [awarding fees sought in brief].) Appellants made no response to this request in their reply brief.
The language of section 996.480, subdivision (a)(2), mandates an award of fees against a nonpaying surety. Accordingly, Stephanie is entitled to recover reasonable attorney fees in successfully defending the judgment against the sureties on appeal. (See Grade-Way Construction Co. v. Golden Eagle Ins. Co. (1993) 13 Cal.App.4th 826, 837-838 [awarding fees and costs on appeal based on section 996.480].) The amount of fees shall be determined by the trial court pursuant to a properly noticed motion. (See § 1033.5, subd. (c)(5); rule 3.1702(c).)
III. CONCLUSION
The judgment against the sureties is affirmed. Stephanie Rosen is entitled to costs on appeal, and also to reasonable attorney fees on appeal to be determined by the trial court.
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Banke, J.
We concur:
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Margulies, Acting P. J.
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Dondero, J.