Opinion
A146886
03-17-2017
COUNTY OF NAPA, Plaintiff, Cross-defendant and Respondent, v. DAVID D. WESNER et al., Defendants, Cross-complainants 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 26-59313)
The County of Napa (the County) filed an action for declaratory relief against David D. Wesner, Janice I. Wesner, and Don Wesner, Inc. (collectively the Wesners), seeking to set aside a settlement agreement reached by the parties in an earlier federal action. The County prevailed and was subsequently awarded fees and costs. The Wesners were awarded rescissionary damages. The Wesners now appeal several subsequent orders: (1) an order denying their motion to vacate the judgment, (2) orders requiring David Wesner to appear at a debtor's exam and compelling the production of documents at the exam, and (3) an order denying the Wesners' motion for order to show cause regarding contempt.
We conclude a final judgment has yet to be entered in this matter, and therefore dismiss the appeals of the first and third orders listed above. The trial court entered a judgment on November 25, 2013, finding for the County on its claims for declaratory relief. But as we held in a prior appeal, that judgment was not final because it did not address the issue of rescissionary damages, which the trial court had expressly reserved jurisdiction to decide. The trial court later adjudicated the rescissionary damages issue, and also made a prevailing party determination and awarded fees and costs. However, the orders on these issues were never reduced to a final judgment. Nor were they attached to the notice of entry judgment served on the Wesners by the County. The only document attached to that notice was the nonfinal November 25, 2013 judgment.
As there was no final judgment, the trial court's orders compelling David Wesner to participate in the debtor's exam were in error. We construe the Wesners' appeal from these orders as a petition for a writ of mandate and grant that petition.
The County has moved to dismiss the Wesners' appeal on different grounds. The motion is denied as moot.
I. BACKGROUND
A. County's Action for Declaratory Relief
In April 2008, the County's Board of Supervisors passed a resolution declaring the existence of a public nuisance at a property on Skellenger Lane in Napa and ordering the Wesners to abate that nuisance. The Wesners filed an action against the County in federal court, seeking an order setting aside the County's resolution. The parties engaged in an early neutral evaluation and entered into a settlement agreement.
The County subsequently filed the instant action in the Napa County Superior Court, asserting the settlement agreement was based on a mutual mistake and should therefore be declared void. Specifically, the County alleged the parties mistakenly believed the County had abandoned a portion of Conn Creek Road adjacent to the subject property. The County also sought reimbursement of the $15,000 it had paid in connection with the cleanup of certain areas of the Wesners' property. The Wesners filed a cross-complaint, asserting claims for quiet title, reformation, and partial cancellation of contract. B. Judgment
On November 25, 2013, the trial court entered a "judgment" in favor of the County on its claims for rescission and declaratory relief. In that judgment, the court stated it was reserving jurisdiction to determine the issue of restitution. It also stated "[t]he issue of recoverability and amount of costs and attorney's fees" would be determined upon the filing of a motion or a memorandum of costs. On January 22, 2014, the court issued an order finding the County was the prevailing party and awarding it fees and costs in the amount of $128,965.37. On February 7, 2014, the court entered an order directing the clerk to immediately enter the costs on the judgment.
In the meantime, on February 3, 2014, a few days before the court directed the clerk to enter judgment on costs, the Wesners filed a notice of appeal from the November 25, 2013 judgment. The notice also indicated the Wesners were appealing the January 22, 2014 order on fees and costs. The Wesners filed a motion with this court requesting it to examine the appealability of the judgment. We dismissed the appeal, finding the judgment was not final because the trial court had retained jurisdiction to award rescissionary damages.
On May 19, 2014, the trial court issued an order granting the Wesners' motion for restitution/rescissionary damages. The court awarded the Wesners rescissionary damages in the amount of $20,030. The Wesners served notice of entry of this order on May 30, 2014.
Notice of entry of judgment was served by the County on September 16, 2014, and filed on September 18, 2014. The only document attached to this notice was the November 25, 2013 judgment. On October 14, 2014, the Wesners filed with the trial court a proposed final judgment. The court declined to sign the document, stating: "already have a judgment in this case."
On April 7, 2015, the County obtained an abstract of judgment, stating the amount of the judgment was $108,935.37, the amount of the fees and costs awarded less the amount of the Wesners' rescissionary damages. Attached to the abstract were copies of the order granting the Wesners' motion for restitution and the order for the entry of costs. C. The Wesners' Motion to Vacate the Judgment
At some point, the Wesners filed a motion to vacate the trial court's February 7, 2014 order for entry of costs. The motion and the briefing associated with it have not been included in the record. Nor has the transcript of the hearing on the motion. The trial court denied the motion on September 2, 2015. It appears the Wesners argued the February 7 order was void because it was entered after they appealed the underlying judgment. The trial court rejected this contention because the operative order awarding costs was issued before the appeal was taken, and the ministerial act of directing the clerk to enter the costs on the judgment was a nunc pro tunc collateral matter which had no effect on the appeal. D. Debtor's Exam
On April 30, 2015, the trial court issued an order requiring David Wesner to appear for a debtor examination on June 23, 2015. The Wesners petitioned this court for a writ staying the debtor's exam, arguing there was no underlying final judgment which would justify any collection activity. We summarily denied the writ.
In connection with the debtor's exam, on or around May 4, 2015, the County served on the Wesners a request for production of documents pursuant to Code of Civil Procedure section 708.030. The Wesners responded by objecting to each and every document request, arguing there was no underlying judgment or creditor/debtor relationship. On June 24, 2015, the court issued another order requiring David Wesner to appear for a debtor's exam on August 13, 2015, which was later continued to September 24, 2015. The order was served on David Wesner along with another section 708.030 request for production. David Wesner served a response, indicating he "will not be complying with the demand."
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
On August 25, 2015, the County moved to compel and requested sanctions. On October 8, 2015, the trial court issued two orders, one requiring David Wesner to appear at a debtor's exam, the other compelling the production of documents at the debtor's exam. The court denied the County's request for monetary sanctions. E. Contempt Proceedings
At one point, the Wesners filed a motion for an "order to show cause regarding contempt and/or for an amended judgment." The motion is not included in the record, but it appears the Wesners argued the County should be held in contempt for recording the abstract of judgment, because in doing so, the County tried to offset the Wesners' rescissionary damages against the fees and costs to which it was entitled without seeking leave of the court.
On September 2, 2015, the trial court denied the motion without prejudice. The court found the Wesners failed to comply with the statutory requirements for commencing a contempt proceeding because they did not submit an affidavit with charging allegations. The order stated that, in the event the Wesners renoticed their motion, "the parties shall fully brief the setoff issue and address whether: (1) a court order is a requirement for an offset; (2) the offset procedure the County followed is proper; and (3) any party may request an offset or if it is restricted to a judgment debtor."
The Wesners renewed their motion for an order to show cause regarding contempt on September 24, 2015. The Wesners once again asserted the County disobeyed the court's orders by unilaterally setting off the fees and costs award against the Wesners' recessionary damages. They also argued that, if the trial court believed an offset was appropriate, "it needs to reform its prior orders, and issue an amended judgment reflecting such an offset."
On October 27, 2015, the trial court denied the renewed motion, finding the Wesners again failed to comply with the statutory requirements. The court explained the declaration accompanying the motion failed to clearly address each element of proof necessary to find contempt. The Wesners' motion was denied with prejudice "until the Court is convinced offset is improper." The court once again invited the Wesners to renotice their motion. In the event they did, the court instructed the Wesners to fully brief the offset issue and address the three topics outlined in its September 2 order. F. The Instant Appeal
The Wesners subsequently appealed (1) the September 2, 2015 order denying their motion to vacate the judgment; (2) the October 8, 2015 orders regarding David Wesner's appearance at the debtor's exam and the County's motion to compel the production of documents for the exam; and (3) the October 27, 2015 order denying the Wesners' motion for an order to show cause regarding contempt. While the instant appeal was pending, the Wesners filed a motion with this court, asking for "a determination as to the appealability of the 'judgment' of the trial court entered on November 25, 2013."
We observe the Wesners' notice of appeal is not the model of clarity. It states the Wesners are appealing from orders entered on "9/2/15, 10/8/15, 10/23/15." Even though there were multiple orders issued on September 2 and October 8, the notice does not specify which are being appealed. Moreover, the trial court did not issue or enter any orders on October 23. The Wesners' opening brief provides more clarity on the orders at issue, and indicates they intended to appeal from the trial court's October 27 order regarding contempt.
II. DISCUSSION
The threshold issue is whether a final judgment was ever entered in this case. To the extent the orders referenced in the Wesners' notice of appeal are appealable at all, they are appealable under section 904.1, subdivision (a)(2) as orders made after a judgment. If there was no final judgment, then section 904.1, subdivision (a)(2) cannot possibly apply here. The County argues judgment became final on or around May 19, 2014, when the trial court signed an order on rescissionary damages. We cannot agree, and conclude there is no final judgment in this matter. We thus find the orders appealed from are not appealable. We nevertheless treat the appeal from the orders of October 8, 2015 regarding the debtor's exam as a petition for a writ of mandate.
"A judgment is the final determination of the rights of the parties in an action or proceeding." (§ 577.) "A paper filed in an action does not become a judgment merely because it is so entitled; it is a judgment only if it satisfies the criteria of a judgment." (City of Shasta Lake v. County of Shasta (1999) 75 Cal.App.4th 1, 10.) "It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory." (Lyon v. Goss (1942) 19 Cal.2d 659, 670.)
As we held in our order dismissing the Wesners' prior appeal, the November 25, 2013 judgment was not final since it left open certain issues for future consideration. Specifically, the trial court retained jurisdiction to consider the award of rescissionary damages. The County contends the November 25, 2013 judgment became final sometime after the trial court resolved this issue and awarded the Wesners rescissionary damages in the amount of $20,030. According to the County, the court's order on rescissionary damages concluded all issues between the parties and rendered the judgment complete and final. But the order on rescissionary damages was never reduced to a judgment. We cannot conclude that several distinct orders issued on separate dates—the November 25, 2013 nonfinal judgment, the January 22, 2014 order on fees and costs, and the May 2014 order on rescissionary damages—can be read together to constitute a single final judgment.
Our Supreme Court's decision in Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894 (Alan), is instructive. The issue in that case was whether the plaintiff had filed a timely notice of appeal from the trial court's order denying class certification. (Id. at p. 898.) The clerk had mailed two documents on the same day, neither of which satisfied the alternative ways the 60-day appeal period could be triggered under former rule 8.104(a)(1) of the California Rules of Court. (Ibid.) The Supreme Court held that under former rule 8.104(a)(1), "the 60-day period for filing a notice of appeal [applies] only when the clerk has sent a single, self-sufficient document satisfying all of the rule's conditions." (Id. at p. 903.) In doing so, the court rejected the defendant's contention that the two documents served by clerk could be considered together to establish compliance with the Rules of Court, explaining the rules did not "require litigants to glean the required information from multiple documents or to guess, at their peril, whether such documents in combination trigger the duty to file a notice of appeal. 'Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.' " (Alan, at p. 905.) Likewise, in the instant action, the Wesners should not be required to guess about whether the various nonfinal orders issued by the trial court concerning declaratory relief, rescissionary damages, and costs could be read together to constitute a final judgment triggering their right to appeal.
Contrary to the County's contentions, Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688 (Griset) does not demand a different result. In Griset, the plaintiffs filed a combined petition for a writ of mandate and complaint for declaratory and injunctive relief. (Id. at p. 693.) The trial court issued an order denying the plaintiffs' writ petition, and another order denying the plaintiffs' motions for summary adjudication and summary judgment. (Id. at pp. 693-694.) The rulings were not formally entered as a judgment. (Id. at p. 694.) After plaintiffs unsuccessfully petitioned the Court of Appeal for a writ, they appealed the trial court's order denying their writ petition. (Ibid.) The Court of Appeal affirmed, as did our Supreme Court. (Ibid.) A remittitur was issued, and the plaintiffs renewed their motions for summary adjudication and summary judgment based on a recent United States Supreme Court decision. (Ibid.) The trial court granted summary judgment for the defendant, and the Court of Appeal reversed. (Id. at p. 695.) Our Supreme Court held the Court of Appeal lacked jurisdiction to consider the second appeal on the merits because the trial court's original ruling and the first appellate proceeding disposed of the case in its entirety. (Id. at pp. 699-700.)
The Supreme Court focused on the substance and effect of the trial court's original order denying the plaintiffs' writ petition, concluding it disposed of the entire case and left nothing else to decide. (Griset, supra, 25 Cal.4th at pp. 699-700.) The court reasoned that, in affirming the superior court's ruling in the first appeal, the Court of Appeal "necessarily affirmed the superior court's disposition of all causes of action between the parties." (Id. at p. 700.) The instant action presents a distinct question. The issue here is not whether the substance of a single order disposes of all pending issues. Rather, the issue is whether several, separate orders in combination may be read to constitute a final judgment. Griset did not address this issue. While the superior court in that case had entered separate orders on the plaintiffs' writ petition and motions for summary judgment and summary adjudication, the Supreme Court did not treat these orders, collectively, as a single final judgment.
The other cases cited by the County are also distinguishable, as they do not address whether several interlocutory orders may be read together to constitute a final judgment. In Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, the issue was whether a trial court order enforcing a legislative subpoena was a final judgment subject to appeal. (Id. at p. 13.) In Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, the trial court issued an order resolving all issues between the parties. (Id. at p. 581.) After the time to appeal the order had passed, the parties caused the trial court to enter a judgment with the same effect as the earlier order, and then appealed from that judgment. (Ibid.) The court dismissed the appeals as untimely because the original order was appealable, as it contemplated no further action and disposed of all issues between the parties. (Id. at p. 583.) UAP-Columbus JV 326132 v. Nesbitt (1991) 234 Cal.App.3d 1028 held the award of costs and attorney fees after the entry of judgment did not render the judgment interlocutory. (Id. at p. 1030.) The court reasoned that, after judgment was entered, no further action by the trial court was essential to the final determination of the rights of the parties or the issues raised in their pleadings. (Id. at p. 1037.)
The County asserts the notice of entry judgment it served on the Wesners on September 18, 2014 triggered the 60-day limitations period to appeal set forth in California Rules of Court, rule 8.104. Because the Wesners failed to file an appeal during this period, the County argues they cannot now challenge the judgment. However, the only document attached to the County's notice was the November 25, 2013 judgment, which we have already held was nonfinal. The County argues its failure to attach the order on rescissionary damages was merely a "technical defect," and such defects do not render a notice of entry of judgment ineffective unless they are so egregious as to preclude actual notice. The County contends the Wesners had sufficient notice since they were aware of the order on rescissionary damages, as evidenced by their submission of a proposed judgment on October 14, 2014. We are not convinced that the County's failure to attach or even reference the documents they contend comprised the final judgment amounts to a mere technical defect. Even if it was, in the absence of a final judgment, there was nothing from which the Wesners could appeal. The County's service of the notice of entry of judgment does not cure its failure to obtain a final judgment.
As there is no final judgment in this matter, the orders from which the Wesners appeal are not appealable. The Wesners assert we should treat their appeal as a petition for a writ of mandate and address the merits of the orders on the motion to vacate the judgment, the motion for order to show cause regarding contempt, and the debtor's exam. But in light of the above findings, the Wesners' motion to vacate and contempt motion are moot. As there is no final judgment, there is nothing for the trial court to vacate. The Wesners' contempt motion is based on the County's action in recording an abstract of judgment. The Wesners argue the abstract improperly sets off the County's costs award against their award for rescissionary damages. As neither award was reduced to a judgment, the setoff issue is also moot. We strongly urge that a "final judgment" (referencing and attaching the November 25, 2013 judgment, the January 22, 2014 order awarding fees, and the May 14, 2013 order awarding restitution) be filed as soon as reasonably possible, followed by notice of entry.
In any event, it appears the Wesners failed to comply with the statutory requirements for commencing a contempt proceeding and also failed to brief the issues set forth in the trial court's September 2 order. --------
We reach a different conclusion as to the trial court's October 8, 2015 order regarding the debtor's exam. This issue remains live, as the County continues to try to collect on its cost award. We have the discretion to treat a purported appeal as a petition where there are "extraordinary circumstances, ' "compelling enough to indicate the propriety of a petition for writ . . . in the first instance . . . ." ' " (Estate of Weber (1991) 229 Cal.App.3d 22, 25.) Such extraordinary circumstances exist here. The County is essentially trying to execute on a final judgment that does not exist. In the absence of a final judgment, the only relief available to the Wesners is from a petition for a writ of mandate. Moreover, the Wesners already filed a writ requesting a stay of the debtor's exam. That writ was summarily denied. To dismiss this appeal and require the Wesners to file yet another writ would be unnecessarily dilatory and circuitous. (See Olson v. Cory (1983) 35 Cal.3d 390, 401.)
Turning to the merits, in the absence of a final judgment, it is clear the trial court erred in its October 8, 2015 order requiring David Wesner to appear for a debtor's examination and compelling the production of documents for the exam. The purpose of a debtor's examination is to obtain information to aid in the enforcement of a money judgment. (§ 708.110.) Here, there is no money judgment or a judgment debtor. Thus, there was no reason to compel David Wesner to appear at an examination or to produce documents in connection with one. The County contends the Wesners waived their argument concerning the absence of a money judgment by failing to raise it below. Not so. The Wesners raised this very argument in their opposition to the County's motion to compel, and the trial court acknowledged the contention in its tentative ruling on the motion. Accordingly, we construe the Wesners' appeal from the October 8 orders as a petition for a writ of mandate and grant that petition.
III. DISPOSITION
The Wesners' appeals of the order on their motion to vacate and the order on their motion for an order to show cause regarding contempt are dismissed. We construe the Wesners' appeal of the October 8 orders regarding the debtor's exam as a petition for a writ of mandate. So construed, we grant the petition. Let a writ of mandate issue directing the superior court to vacate its October 8, 2015 orders requiring David Wesner to appear at a debtor's exam and compelling the production of documents, and enter a new order denying the motion to compel. The County's motion to dismiss this appeal is denied as moot.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.