Stevens v. Super.
Filed 1/23/13 Stevens v. Super. Ct. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
RANDY
STEVENS et al.,
Petitioners,
v.
THE SUPERIOR
COURT OF SONOMA
COUNTY,
Respondent;
FRANCISCO
OROZ et al., as Trustees etc.,
Real Parties in Interest.
A137014
(Sonoma County
Super. Ct.
No. SCV 247164)
FRANCISCO OROZ et al.,
Plaintiffs and Respondents,
v.
RANDY
STEVENS,
Defendant and Appellant.
A137060
Real
parties Francisco and Antoinette Oroz, as Trustees of the Oroz Family Trust,
brought an unlawful detainer action
against petitioners Randy Stevens, individually, and doing business as Flamingo
Properties/Jiffy Lube, alleging that petitioners failed to pay rent on a piece
of commercial property in Rohnert Park, California. Trial was set for May 11, 2010. However, petitioners
abandoned the property in April 2010 and, on May 11, formally surrendered
possession. The case was re-set for trial on June 23, 2010, to determine the amount of back rent
petitioners owe real parties.
Trial
commenced as scheduled but the court continued the case to permit real parties
to file a first amended complaint alleging breach of contract, which they did
on July 22, 2010. On August 25, 2010, petitioners answered
the amended complaint and filed a cross-complaint, naming real parties, plus an
additional party, Bryan Shiflett, as cross-defendants.
On
October 3, 2011, real
parties filed a motion to sever the cross-complaint, which the court granted.
The court also ruled that petitioners’ affirmative defenses should not be
presented during the trial on the complaint, but could be presented at the
trial on the cross-complaint. On February
27, 2012, the court granted real parties’ ex parte application for
an order confirming the severance of the cross-complaint and re-setting the
continued trial. During the subsequent trial proceedings on the complaint, the
court did allow testimony regarding waiver, one of the
petitioners, but did not allow testimony on the other affirmative defenses.
After hearing additional testimony, on June 29 the court issued an order
awarding real parties approximately $34,000 plus interest. On August 7, 2012 the court entered a
judgment against petitioners in the amount of $69,422.33.
The
court issued a writ of execution on September
11, 2011, and on October 25 a notice of levy was delivered to
petitioners, levying “any and all cash/check proceeds during the on-going
business.†On November 5, 2012,
petitioners served a notice of appeal, in which they included the contention
that the August 7 judgment is neither final nor enforceable. The next day,
November 6, petitioners filed their petition for writ of mandate and/or
prohibition, contending that the appeal would provide an inadequate remedy
because it would be impossible to reverse the effects of the premature
enforcement of the judgment. Simultaneously, petitioners sought a stay of the
enforcement of the “purported judgment.†On November 15, 2012, this court
temporarily stayed the writ of execution and notice of levy, requested informal
briefing, and served notice that if circumstances so warranted, we might issue
a peremptory writ in the first instance pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.
If a judgment is void, an
order to execute that judgment is beyond a court’s jurisdiction. (See Garra
v. Superior Court of San Diego County (1943) 58
Cal.App.2d 588, 591, footnote 2, superseded by statute on another ground as
stated in In re McMillin’s Estate (1956) 284 P.2d 864, 878, vacated by
of McMillin (1956) 46 Cal.2d 121.) If a judgment is
entered prematurely, it is void. (See Shapiro v. Equitable Life Assurance
Soc. (1946) 76 Cal.App.2d 75, 99.) Thus, if the judgment in this case was
entered prematurely it is void and unenforceable.
As explained in Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th
109, 132, generally a complaint and a cross-complaint are treated as if they
were independent actions, except with respect to the one final judgment rule.
If a complaint and cross-complaint involve the same parties, a judgment entered
with respect to one is not a final judgment until both are resolved.
is not final if the cross-complaint remains unresolved.
Relying on Moreheart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743-744,
real parties argue that if a trial has been bifurcated, there is no final
judgment until all the causes of action have been adjudicated, but that where
final judgment is appropriate when the first of the severed cases is decided.
In Moreheart, some causes of action
were tried separately from others. The appellant contended that a judgment
entered on those causes of action that had been tried was final “because it
resolved issues that had been severed from separate and independent issues
remaining to be tried†(id. at
p. 736) and the Court of Appeal considered the judgment “separately
appealable on a severed issue†(ibid.).
The Supreme Court, however, disagreed. Disapproving of contrary statements in
prior cases, including Schonfeld v. City
of Vallejo (1976) 50 Cal.App.3d 401 (Moreheart,
p. 743), the high court held that a judgment entered on causes of action
tried first is not final if it does not dispose of “all the causes of action
between the parties, even if the causes of action disposed of by the judgment
have been ordered to be tried separately or may be characterized as ‘separate
and independent’ from those remaining†(ibid.).
Nothing in Morehart supports the
bifurcation/severance distinction urged by real parties. The reasoning in
the causes of action are bifurcated or severed. If the complaint and cross-complaint
have been severed, there is no final judgment until both have been adjudicated.
This principle is particularly important in a case such as this, where
resolution of affirmative defenses to the complaint is deferred until trial on
the cross-complaint.
DISPOSITION
Resolution
of this issue is sufficiently clear-cut such that “no purpose could
reasonably be served by plenary consideration of the issue.†(See
29, 35; Lewis v. Superior Court (1999)
19 Cal.4th 1232, 1236-1237, 1240-1241.) Accordingly, we employ the
court to vacate its August 7, 2012 judgment in Oroz v. Stevens (Super. Ct. Sonoma County,
No. SCV-247164) and to rescind the writ of execution and notice of levy
issued pursuant to the judgment. Upon entry of the trial court orders complying
with this directive, the stay issued by this court on November 15, 2012, will
be automatically dissolved.
Pursuant to this court’s own motion,
the appeal Oroz v. Stevens (A137060)
is consolidated with this petition and the appeal is dismissed as moot.
Petitioners are awarded allowable
costs.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
A second amended cross-complaint was filed on July 23, 2012, which names real
parties, Shiflett, and Glenn Meyers as cross-defendants. According to real
parties, a July 2011 first amended cross-complaint had also named Shiflett and
Meyers as cross-defendants; no copy of the first amended cross-complaint is
contained in our record. Regardless, neither Shiflett nor Meyers is a party to
these writ proceedings.
name="_ftn2" title="">[2]
Here, although there is not a complete identity of the parties to the complaint
and cross-complaint, the petitioners and the real parties in interest are
parties in both.
