Horspool v. Super. Ct.
Filed 1/27/10 Horspool v. Super. Ct. CA4/2
Reposted to provide correct docket number; discard docket number E048539 posted today.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
WILLIAM F. HORSPOOL et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; RAYMOND P. HORSPOOL, JR., et al. Real Parties in Interest. | E050097 (Super.Ct.No. PROPS0600209) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. J. Michael Welch, Judge. Petition granted in part; denied in part.
Carter & Carter and Christopher C. Carter for Petitioners.
No appearance for Respondent.
Fullerton, Lemann, Schaefer & Dominick and Thomas W. Dominick for Real Parties in Interest.
INTRODUCTION
In this matter, we have reviewed the petition and the opposition filed by real parties in interest. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ of mandate is appropriate to secure limited relief to petitioners. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) As a preliminary matter, the request for judicial notice is granted.
DISCUSSION
In response to our order, real parties in interest do not attempt to argue that there is an enforceable final judgment against petitioners determining the legal right to the property in dispute. Instead, they argue that they have properly obtained a prejudgment writ of possession. There are two difficulties with this position. First, the writ itself clearly reflects that it authorizes a postjudgment writ pursuant to Code of Civil Procedure section 715.010 et seq. Secondly, the prejudgment procedures (formerly known as claim and delivery) are designed to secure the immediate possession of personal property, not real property. (See Code Civ. Proc., 512.010 et seq.)
The fact (if it be a fact) that petitioners have filed numerous meritless petitions and appeals does not confer upon real parties in interest any right to immediate possession of the property not otherwise authorized by law. While we recognize that the procedural and multi-party nature of the matter below creates some difficulties in obtaining an actual judgment against petitioners, it does not obviate the necessity of such a judgment before possession may be obtained. We also note that any review of the existing terminating sanctions order would be (and has been) discretionary with this court, so that petitioners do not have a remedy as of right until a judgment is entered.
DISPOSITION
Accordingly, the petition for writ of mandate or other relief is granted in part. Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate, annul, or withdraw the writ of possession entered in this case. In all other respects, the petition is denied without prejudice.
Petitioners are to recover their costs.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.
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