Lee v. Rich
Filed 7/19/13 Lee v. Rich CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 THREE
YUNG-SHEN STEVEN LEE,
Cross-complainant and Respondent,
v.
HOWARD RICH,
Cross-defendant and Appellant.
G047047
(Super. Ct.
No. 30-2009-00271288)
O P I N I O
N
Appeal from orders of
the Superior Court
of
County, Corey S. Cramin, Judge. Appeal dismissed.
Law Office of Mitchel J.
Ezer and Mitchel J. Ezer for Cross-defendant and Appellant.
Law Offices of Niall
Sweetnam, Niall Sweetnam; Oswald & Yap and Andrew H. Do for
Cross-complainant and Respondent.
*
* *
Howard Rich purchased a
single‑family residence at an execution sale conducted to satisfy a
judgment against Yung‑Shen Steven Lee.
Rich was a third party purchaser; the plaintiff and judgment creditor
was Spyglass Hill Community Association (the HOA), which managed the common
interest development of which the residence was a part. After the sale, the trial court granted Lee’s
motion to vacate the judgment on the ground it had been obtained by the HOA
through fraud. Soon thereafter, the
court granted Lee’s motion for restitution and cancelled the sheriff’s deed to
Rich. Although Rich was not a party to
the HOA’s judgment against Lee, Rich moved for reconsideration of the order
vacating the judgment. The trial court
denied the motion for reconsideration.
Rich
appeals from two orders: (1) the
order denying his motion for reconsideration and (2) the order granting
Lee’s motion for restitution and cancellation of the sheriff’s deed of sale.
After
the matter was briefed, we issued an order stating we were considering whether
to dismiss the appeal for lack of jurisdiction and inviting the parties to
submit supplemental letter briefs
addressing three issues of appellate jurisdiction. Both Rich and Lee filed supplemental letter
briefs, which we have considered. We
conclude we have no jurisdiction over this appeal and decline to treat it as a
petition for writ of mandate. The appeal
is therefore dismissed.
Relevant Facts and Procedural
History
In
1991, Lee purchased a single‑family home in Corona del Mar. The home is part of a common interest
development formed pursuant to the Davis‑Stirling Common Interest
Development Act (Civ. Code, § 1350 et seq.). The common interest development is managed by
the HOA, which was established pursuant to a declaration of covenants,
conditions, and restrictions.
Beginning
in April 2007, Lee ceased paying the HOA assessments. Over the next two years, the HOA sent Lee
notices of delinquency, intent to record a lien, and lien recordation. In June 2009, the HOA sent Lee an assessment
invoice advising that his delinquency balance was $7,283.49.
In
May 2009, the HOA filed a lawsuit against Lee for, among other things,
foreclosure of the assessment lien.
Thereafter, attempts were made to serve process on Lee. In November 2009, the HOA filed an ex parte
application for publication of summons, which included a declaration from a
registered process server. In June 2010,
the HOA obtained by default a judgment of foreclosure of the assessment lien
against Lee. The notice of entry of
judgment was served on Lee by mail.
A
writ of execution issued in October 2010.
In June 2011, a sheriff’s deputy posted a notice of sheriff’s sale under
foreclosure on the front door of the home.
The notice advised that the home would be sold at auction to the highest
bidder on July 14, 2011.
Rich
learned of the sale about three weeks before the scheduled date by obtaining a
copy of the notice of sale posted outside of the Orange County Sheriff’s
Office. He and four other bidders
attended the sale on July 14. The
bidding opened at the amount of the judgment ($19,578.32) and overbids increased
in $5,000 increments. Bidding continued
until Rich made a bid of $210,000. No
one outbid him, and the property was sold to him for that amount. Rich immediately paid the required
10 percent deposit by cashier’s check and paid the balance at the end of
the three‑month redemption period.
In
November 2011, Rich received a sheriff’s deed to the home. He obtained an unlawful detainer judgment by
default against Lee, who had vacated the property.
In
February 2012, Lee filed a motion to set aside and vacate the default judgment
obtained by the HOA. Lee argued, in
essence, the HOA’s attorney lied and misled the court into granting the order
for service by publication. The HOA,
represented by new counsel, opposed the motion.
Lee and the HOA submitted declarations and evidence to support their
respective positions. Rich was not
served with the motion.
On
March 8, 2012, the
trial court granted Lee’s motion to set aside and vacate the judgment, ordered
the judgment against Lee vacated, and granted him leave to answer. Lee filed his answer and a cross‑complaint
against the HOA the next day.
On
March 23, 2012, Lee
filed an amended cross‑complaint against the HOA, Rich, and the Orange
County Sheriff. The only recovery sought
by Lee was restitution of the amount of the judgment ($19,578.32).
On
March 27, 2012, Lee
filed his motion for restitution and
to cancel the sheriff’s deed. The motion
sought restitution of $19,578.32 from the HOA and cancellation of the sheriff’s
deed issued to Rich. Rich made his first
formal appearance in the action by opposing the motion. The HOA also filed opposition to the motion
for restitution and to cancel the sheriff’s deed.
On
April 17, 2012, Rich
filed his motion for reconsideration of the order setting aside and vacating
the default judgment against Lee.
On
April 19, 2012, the
trial court granted Lee’s motion for restitution and cancellation of the
sheriff’s deed of sale. The court
ordered that the sheriff’s deed issued to Rich be cancelled as “void
to Rich.
On
May 3, 2012, the trial court denied Rich’s motion for reconsideration for
three reasons: (1) the declaration
submitted by the HOA’s former counsel to obtain an order for publication of
summons was false; (2) the motion for reconsideration was untimely; and
(3) the motion for reconsideration raised no new factual or legal
issues. The court also questioned
whether Rich had standing to bring the motion.
On
May 7, 2012, Rich filed
a “Cross‑complaint to Amended Cross‑complaint†asserting a cause of
action for quiet title against Lee.
Rich’s cross-complaint alleged, as the basis for title, the sheriff’s
certificate of sale of real property and the sheriff’s deed of sale. Rich contended that under Code of Civil
Procedure section 701.680, subdivision (a), his purchase of the home at
the sheriff’s sale was “absolute and may not be set aside for any reason.â€
Discussion
I. Order Denying Motion for
Reconsideration
Code
of Civil Procedure section 1008, subdivision (g) states: “An order denying a motion for
reconsideration made pursuant to subdivision (a) is not separately
appealable. However, if the order that
was the subject of a motion for reconsideration is appealable, the denial of
the motion for reconsideration is reviewable as part of an appeal from that
order.â€
The
order denying Rich’s motion for reconsideration is not appealable. The motion sought reconsideration of the
order granting Lee’s motion to vacate the judgment. Some appellate court opinions have concluded
an order granting a motion to vacate a judgment is appealable. (E.g., Concerned
Citizens Coalition of Stockton v. City of Stockton (2005) 128 Cal.App.4th
70, 80; County of Stanislaus v. Johnson (1996)
43 Cal.App.4th 832, 834.) Rich did not,
however, appeal from the order vacating the judgment against Lee. An order denying a motion for reconsideration
is never separately and independently appealable: Code of Civil Procedure section 1008,
subdivision (g) does not say denial of a motion for reconsideration is
separately appealable if the order
that was the subject of reconsideration is appealable. Section 1008, subdivision (g) says
denial of a motion for reconsideration is reviewable
as part of an appeal from an order
that is appealable.
Order Granting Motion for Restitution
and Cancellation of Sheriff’s Deed of
The
right to appeal is conferred by statute.
(Dana
subdivision (a) lists appealable judgments and orders. An order granting a motion for restitution
and cancellation of a sheriff’s deed of sale is not among them.
In
determining whether a particular order is appealable, its substance and effect,
rather than its label, are determinative.
(Dana Point Safe Harbor Collective
v. Superior Court, supra, 51
Cal.4th at p. 5.) Rich argues the
order granting Lee’s motion for restitution and cancellation of the sheriff’s
deed of sale is the functional equivalent of a final judgment because the order
cancels the sheriff’s deed and transfers the property back to Lee.
Rich
filed a cross‑complaint against Lee for quiet title and that cross‑complaint
remains pending. A judgment that does
not resolve all cross‑complaints between the parties is not
appealable. (Morehart v. County of
Santa Barbara (1994) 7 Cal.4th 725; Angell v. Superior Court (1999)
73 Cal.App.4th 691; Don Jose’s Restaurant, Inc. v. Truck Ins. Exchange
(1997) 53 Cal.App.4th 115.) Rich
acknowledges the cross-complaint has not been resolved or dismissed. He asserts the cross‑complaint “no
longer serves any purpose and therefore should be dismissedâ€; however, he has
not dismissed the cross‑complaint, and its pendency deprives us of appellate
jurisdiction.
We
decline to exercise our discretion to treat the appeal as a petition for writ
of mandate. Rich’s briefs do not include
in substance the elements of a petition for writ of mandate. (Olson
v. Cory (1983) 35 Cal.3d 390, 401.)
In particular, Rich has made no showing he would suffer irreparable
injury by waiting until resolution or dismissal of his cross‑complaint
before appealing from the order granting the motion for restitution and
cancellation of the sheriff’s deed of sale.
The appeal is
dismissed. Respondent shall recover
costs incurred on appeal.
FYBEL,
J.
WE CONCUR:
MOORE, ACTING
P. J.
THOMPSON, J.
