Renteria v. Cruz

Renteria v. Cruz

Filed 8/18/08 Renteria v. Cruz CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JOSE RENTERIA, Cross-Complainant and Appellant, v. ALEX CRUZ et al., Cross-Defendants and Respondents.

B196359 (Los Angeles County Super. Ct. No. BC334508)

APPEAL from an order of the Superior Court of Los Angeles County. Gregory W. Alarcon, Judge. Dismissed.

Onwaeze & Nwabuzor and Ogochukwu Victor Onwaeze for Cross-Complainant and Appellant.

Vanderford & Ruiz, Ty S. Vanderford, Rodolfo F. Ruiz, Heather J. Hamby and Coleman D. Heggi for Cross-Defendants and Respondents.

_

Jose Renteria appeals from the trial courts denial of his motion for attorney fees. We dismiss his appeal for lack of jurisdiction.

FACTS

Renteria, an unlicensed subcontractor, was hired to provide stucco and plaster work for a home improvement project. Mihran Novshatian fell from scaffolding built by Renteria and sued him for personal injuries as well as Alex Cruz, the contractor who hired Renteria, and Douglas Fregolee, the owner of the home.^[1] Cruz and Renteria filed cross-complaints against each other for indemnity and contribution. Summary judgment was granted as to the claims against Fregolee and judgment in his favor was entered on August 25, 2006.

On August 24, 2006, several days after trial began, Renteria filed a motion for directed verdict on his cross-complaint against Cruz and a motion for nonsuit on Cruzs cross-complaint against him. Renteria argued he was not liable to Cruz for indemnity, but that Cruz was liable to Renteria under the Labor Code because, as an unlicensed subcontractor, Renteria was Cruzs employee and he was acting within the course and scope of his employment. Under Labor Code section 2802, an employer is obligated to indemnify an employee for any costs, including attorney fees, incurred in connection with his employment. Cruz failed to oppose the motions. The trial court orally granted both motions on August 28, 2008, in two sentences: I think your motions have merit. So I will grant them.

Novshatian dismissed his complaint against Renteria without prejudice shortly thereafter and trial proceeded only as to Novshatians claims against Cruz. On August 30, 2006, Renteria filed a Brief re Attorneys Fees, disclosing his entitlement to attorney fees as a result of the courts ruling on his motions. No opposition or ruling resulted from this brief and Renterias counsel stopped appearing at trial. The jury returned a verdict against Cruz on September 19, 2006, assigning him 35 percent of the responsibility for Novshatians damages. Judgment against Cruz was entered on November 1, 2006.

On October 4, 2006, Renteria filed a motion for attorney fees in the amount of $132,837.50. Cruz opposed the motion. The trial court denied it on December 4, 2006, as follows:

Renteria argues that he is entitled to attorneys fees pursuant to Labor Code 2802 which provides that an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties. [] It is true that an employer is required to indemni[fy] his or her employee for all that the employee necessarily expends or loses in direct consequence of the discharge of the employees duties, including reimbursement of funds necessarily expended to obtain independent counsel to defend an action for conduct within the course and scope of his employment. Jacobus v. Krambo Corp. (2000) 78 Cal. App. 4th 1096, 1100; Labor Code 2802. However, no determination was made by this court as to whether Renterias conduct was within the course and scope of his employment. Renterias Motion for Directed Verdict, filed on August 24, 2006 and granted by August 28, 2006, only contains arguments as to whether Renteria was an employee or an independent contractor of Cruz. It does not make arguments as to whether Renteria was working within the course and scope of his employment. In granting Renterias Motion for Directed Verdict, the court concluded that Renteria was an employee of Cruz and not an independent contractor; it did not make any findings/conclusions as to whether Renteria was working within the scope of his duties. [] Therefore, the court finds that Renteria, is not entitled to attorneys fees under Labor Code  2802 and hereby DENIES Jose Renterias Motion for Attorneys Fees.

Renteria appeals pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2) from the December 4, 2006 order after judgment.

DISCUSSION

We must first determine whether the order denying the motion for attorney fees is appealable in this case. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) After considering the parties supplemental briefing on this issue, we conclude it is not and dismiss the appeal.

Renteria appeals from the order denying his attorney fees motion. Attorney fees orders after judgment are appealable under Code of Civil Procedure section 904.1, subdivision (a)(2). (Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal.App.4th 693, 706.) To be appealable as an order after judgment, the order must either affect the judgment or relate to it by enforcing it or staying its execution. (Williams v. Thomas (1980) 108 Cal.App.3d 81, 84; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  137, p. 203.) In the case at bar, one judgment was entered on the jury verdict in favor of Novshatian and another on the summary judgment in favor of Fregolee. Neither judgment mentioned Renteria or the directed verdict. Renteria cannot base his appeal on judgments directed to other parties that do not affect or relate to him. (Code Civ. Proc.,  904.1, subd. (a)(2); Olson v. Cory (1983) 35 Cal.3d 390, 400.) We therefore lack jurisdiction to consider this appeal. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.)

Nonetheless, Renteria claims [t]he order granting the motion for directed verdict need not be in writing and once granted operates as an adjudication upon the merits between the parties and is a final judgment. Since the granting of the motion amounted to a judgment, entry of the judgment itself is only a ministerial act to be performed by the clerk of the court. Contrary to Renterias assertions, the oral order granting the motion for directed verdict is not a final judgment merely awaiting the ministerial act of entry to make it appealable. (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 384-385 [order on motion for directed verdict is not itself appealable].)

We also decline to amend the judgment, as Renteria urges, to include the directed verdict so we may reach the merits. (See, Jordan v. Malone (1992) 5 Cal.App.4th 18, 22 [[t]he trend of recent cases of the Courts of Appeal is to hold appellate counsel to strict account for ensuring that their appeal rights are perfected according to the applicable statutes and rules of court].) Dismissal of this appeal allows Renteria to address this issue, whether by seeking a final judgment with the court below, through a separate action or by other means.^[2]

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

COOPER, P. J.

RUBIN, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Novshatians name is spelled Novshatian and Novshatyan in his complaint and throughout the record. Similarly, Fregolees name is spelled Fregolee and Fregolle in the record. For purposes of this opinion, we assume the correct spelling of these individuals names to be Novshatian and Fregolee.

^[2] We note that there is an apparent inconsistency between the trial courts order granting Renterias motion for directed verdict on his cross-complaint against Cruz and the order denying attorney fees. More specifically, the order denying attorney fees indicates no determination was made by [the trial] court as to whether Renterias conduct was within the course and scope of his employment. However, when the directed verdict was granted, there is no indication it was only a partial directed verdict. Further, the trial did not proceed on the issue of course and scope, thus impliedly resolving the matter. Finally, contrary to the trial courts ruling on the attorney fees motion, the issue of the course and scope of Renterias employment was brought to the trial courts attention by written motion at the time. Because we dismiss the appeal, we do not address this matter. But given that it may be brought up again if Renteria attempts to secure an appropriate judgment, we bring it to the trial courts attention for appropriate resolution.