Banks v. Zinke

Filed 6/25/10 Banks v. Zinke CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Dismissed.

Barry B. Banks, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

I. Introduction

Plaintiff Barry Banks appeals from an interlocutory order authorizing the sale of four horses, pursuant to the Livestock Lien Statutes. (Civ. Code, 3080-3080.22)^[1] Banks is representing himself in propria persona. Defendant Sonja Zinke did not file a respondents appellate brief.

Upon review, we conclude the interlocutory order is not appealable and dismiss the appeal. Even if the order was subject to review, we would have identified no legal error and affirmed the trial courts order.

II. Factual and Procedural Background

Banks boarded horses with Zinke, doing business as Sunshine A-Z Friesians^[2]or Sunshine Horse Ranch.

On August 1, 2008, Banks filed a complaint against Zinke seeking the return of personal property, his horses. He also filed an ex parte application for writ of possession. In his supporting declaration, he asserted that he had boarded 17 Arabian horses with Zinke. Zinke had demanded Banks remove the horses from her property by July 31, 2008. When Banks tried to remove the horses on July 30, there was a dispute about whether he could do so and the sheriffs department was called. Banks was only allowed to take 13 horses and he observed the other horses were not being fed and watered properly. He sought possession of feed, equipment, and the remaining four horses.

Zinke opposed the application, explaining that Banks was habitually delinquent and in arrears on his agreement to pay $200 per month per inside stall and $300 per month per outside stall. The current amount owing was $5,482. Zinke was asserting a statutory livestock lien, also known as an agiters lien. ( 3080.01.) She provided a letter from a veterinarian who said the four horses were in good physical condition.

On August 22, 2008, the trial court granted a writ of possession to Banks, subject to Banks posting an $8,000 undertaking. Banks never posted an undertaking.

On December 3, 2008, Zinke filed a statutory motion for an order to sell the horses because Banks had not filed the undertaking and Zinke maintained the cost of caring for the horses exceeded their value. ( 3080.02.)

Banks responded by opposing Zinkes motion and asking the court to order Zinke to post a $55,000 bond, his estimate of the minimum value of the horses.

On January 26, 2009, the court issued its ruling, ordering Zinke to be able to sell the horses and again allowing Banks to post an $8,000 bond.

Banks filed motions for reconsideration and for sanctions, which the court denied on March 3, 2009. No judgment was entered as of the latter date.

II. Analysis

A. Appealability

There is no judgment in this case and the statutory scheme at issue does not provide that an interlocutory order allowing a prejudgment lien sale is appealable. ( 3080.06.) Additionally, Banks does not identify under what statute the subject order is appealable. This is not an order after judgment under Code of Civil Procedure section 904.1, subdivision (a)(2), as asserted by Banks in the Civil Case Information Statement he filed on April 17, 2009.

The subject order does not appear to come within any of the provisions of Code of Civil Procedure sections 904.1 or 904.2. Section 904.1, subdivision (a)(8), as proposed by Banks in oral argument, does not apply because further judicial action is essential to a final determination of the rights of the parties. (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 962-966; In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1218-1219.)

Finally, we cannot find a case holding that an order under section 3080.06 is appealable. An appeal of an order under section 3080.09 was entertained in Jakubaitis v. Fischer (1995) 33 Cal.App.4th 1601 but the court in that case did not consider the issue of appealability. Therefore, we are jurisdictionally barred from conducting a review. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696-697.)

B. The Validity of the Lien

Although the interlocutory order is not appealable, in recognition that Banks is not represented by legal counsel, we briefly advise him about why the livestock lien was probably valid. Our comments in this regard are not to be taken as dispositive in any future proceedings.

A fundamental principle of appellate law is that an appellant must affirmatively show error by an adequate record. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) This is because the judgment or order of the lower court is presumed correct. (Ibid.) We disregard Banks references to proceedings occurring after March 3, 2009. We are limited to matters appearing in the record. (In re Mark C. (1992) 7 Cal.App.4th 433, 445.) In the absence of any information to the contrary, we assume the court properly performed its judicial function. (Evid. Code, 664.)

Banks argues Zinke failed to comply with sections 3080.03 and 3080.04. We disagree. In her application and supporting declaration, Zinke included the following as required by section 3080.03: (1) A statement showing that the sale was sought to enforce a livestock service lien; (2) A statement Zinke sought to recover from Banks at least $10,000, supported by billing invoices and becoming due in 2008; (3) A statement that the sale should be held before judgment because the value of the horses was declining and exceeding the cost of their care; (4) A description of the four horses to be sold and a statement that their value was less than $10,000. Additionally, the notice of application and hearing informed Banks of the date, time and place of the hearing on the application. ( 3080.04.) Because defendant filed opposition, the failure to give notice as stated in section 3080.04, subdivisions (e) and (g), was not prejudicial.

The order, in accordance with section 3080.06, included findings that Zinkes claim gave rise to a livestock lien, that Zinke had established the probable validity of her claim, that the sale was necessary to prevent a decline in the value of the horses, that the sale was sought for a proper purpose, and that the sale should be conducted as provided by sections 3080.16 and 3080.17. The proceeds of the sale were to be deposited with the court, pending further proceedings. Even if Zinkes application was originally deficient regarding the statutory requirements of sections 3080.03, subdivision (a)(5), and 3080.04, subdivisions (b), (c), (d), and (f), the courts order ultimately complied with section 3080.06.

Any arguments about the amount obtained in the sale may be raised by Banks in post-sale proceedings and as part of the judgment. Other issues raised by Banks on appeal involve a meritless discovery dispute and repeated and repetitive attacks on the sufficiency of the evidence, which we would disregard.

III. Disposition

We dismiss the appeal. Banks shall bear his own costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Richli

J.

We concur:

s/Ramirez

P. J.

s/Miller

J.

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^[1] All further statutory references are to the Civil Code except as otherwise stated.

^[2] The Friesian (also Frisian) is a horse breed originating in Friesland, a province of the Netherlands.