City of Oakland v. Gray

Filed 4/5/07 City of Oakland v. Gray CA1/3

Opinion following order granting rehearing filed 4/5/07

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

This is an appeal from an order issued May 9, 2005 to distribute funds held in escrow after the termination of a receivership involving the real property of Benjamin Rogers (May 2005 Order).[1] Although far from clear from its poorly drafted briefs, appellant Alton Management Corporation, the receiver of Rogerss property, asks this court to vacate the May 2005 Order on the grounds that (1) a final order that issued on February 13, 2004, decided the same issues in a different way, and thus is res judicata with respect to those issues; and (2) the May 2005 Order was obtained by fraud or mistake in that Rogerss attorney represented Rogers in opposing reconsideration of the order after Rogers died on May 17, 2005, but before notifying the trial court of his death. We affirm.

Procedural and Factual Background

We note at the outset appellant has failed to provide this court with a complete and comprehensible statement of the significant facts. As such, we have relied on our own review of the record and on respondents brief to provide the necessary background for this appeal. We will discuss the consequences of appellants failure to comply with the mandatory rules of appellate procedure below. The significant facts, as we see them, are as follows.

Rogers was the owner of a six-unit rental property in Oakland (property). In 2001, plaintiff City of Oakland successfully petitioned the trial court for the appointment of appellant as receiver of the property after it fell into disrepair and was in violation of numerous health and safety code provisions.[2] Under the receivership, appellant incurred substantial costs rehabilitating the property.

On November 18, 2003, appellant filed an application for an order approving the final accounting and sale of the receivership property, discharging the receiver and terminating the receivership. Among other things, the application sought $74,750 for receivership fees and costs related to the propertys rehabilitation and $4,625 for legal fees.

On February 13, 2004, the trial court issued the Order Approving Receivers Final Account And Report, Terminating Receivership, And Paying Of Fees And Costs (February 2004 Order). Under the February 2004 Order, the trial court awarded appellants attorney $4,625 for legal services rendered on behalf of the receivership. The trial court also found appellant entitled to payment for services rendered on behalf of the receivership, but declined to award a particular amount until appellant filed a complete accounting of all time spent by the receiver. The trial court explained it could not understand the information submitted [by appellant] as exhibits to the application.

On March 1, 2004, Rogers filed a petition to reconsider the February 2004 Order, which the trial court denied. Then followed a series of contested motions filed by both parties over a two-year period that wrestled with the issue of what amounts were owed to appellant for legal and other services rendered on behalf of the receivership. We include below a brief description of those motions, and the trial courts orders with respect to them.

On July 9, 2004, appellant filed an ex parte application to complete the receivership sale and pay costs and fees. The application called on the trial court to complete the final requirement to close the receivership by disbursing funds held in escrow to pay all costs and fees including but not limited to the receivership costs and fees, attorneys fees and any and all fees hereinbefore approved by this court.

The trial court granted appellants application in part by ordering the sale of the property. But the trial court deferred ruling on the request to disburse funds, instead setting the matter for hearing on August 2, 2004, and ordering appellant to file documentation supporting the requested disbursement.

Appellant then filed a declaration attaching a cost schedule with the trial court, seeking over $76,000 in costs and fees for its alleged services on behalf of the receivership. The schedule identified the number of hours appellant allegedly spent providing those services (608.75 hours), but failed to describe the nature of those services. Accordingly, the trial court continued the matter again and, among other things, ordered appellant to serve and file an amended declaration, signed by a representative of [appellant], explaining in detail what services were performed by [appellant] and what fees and costs are being sought.

On August 16, 2004, appellant submitted an amended cost schedule, which attached a detailed ledger of its services, but failed to include the total amount of time expended or amount due for those services. Rogers filed a statement agreeing to some payments but objecting to others. At the hearing, the trial court again ordered appellant to provide supplemental documentation in support of its payment requests. Appellant submitted supplemental documentation on September 13, 2004.

On September 23, 2004, the trial court ordered several disbursements to appellant, as well as over $10,000 in legal fees to City of Oakland. The trial court further ordered the sum of $76,094 held in escrow for appellant and $20,000 held in escrow for appellants attorney pending a determination of the fees and costs to which each was entitled.

Appellant submitted further documentation in support of its payment requests on October 13, 2004. Rogers again objected to certain payments, contending, among other things, appellants attorney should not be awarded fees for time expended responding to Rogerss efforts to procure an adequate accounting. At the hearing, the trial court dropped appellants motion as resolved (according to respondent, [i]nexplicably), and ordered the parties to further meet and confer.

On February 22, 2005, Rogers filed a motion, which appellant opposed, for an order releasing the funds held in escrow for appellant. In doing so, Rogers acknowledged appellants attorney was entitled to $10,000 and appellant to $48,952.99 in fees and costs, but objected to paying further amounts on the ground, among others, that the accounting in support of them was insufficient.

On March 4, 2005, appellant filed a motion, which Rogers opposed, for an order awarding it and its attorney further payment of fees and costs. The motion included requests for payment of $20,000 to the appellants attorney (for, among other things, defending against Rogerss claims of insufficient accounting) and over $76,000 to appellant. The motion also included requests for payment of over $51,000 to YSC Construction and $8,805 to Barrett Plumbing.

On March 29, 2005, the trial court heard both motions, and again found inadequate appellants accounting with respect to certain alleged outstanding fees and costs. The trial court thus ordered appellant to file supplemental documentation, and instructed that, should appellant fail to provide sufficient documentation to support its claims, the balance of funds will be awarded to [Rogers] when final order is issued on distribution. The trial court continued the hearing to May 4, 2005.

At the May 4 hearing, appellant provided supplemental documentation for its requests for payment of $20,000 to its attorney, $76,000 to itself, $8,805 to Barrett Plumbing, and over $51,000 to YSC Construction. In requesting the payments, appellants attorney insisted the trial court had already approved those amounts under the February 2004 Order: I mean, everything was approved. The only issue that was outstanding was the itemization from [appellant] that the court could understand, it was a 22-page itemization. The trial court specifically rejected appellants attorneys claim that the amounts had been approved: Ive been though this file . . . [] on more than one occasion. And it was your position, your offices position at the outset that Judge Kraetzer had decided everything and all I had to do was sign on the dotted line. And I went back and looked at his February [2004] order and it was quite clear to me that he hadnt decided everything. Among other things he hadnt decided what [appellants] fees would be. That was to be decided at the final approval. And that your offices attorneys fees, he awarded what he thought was reasonable up to the date of the hearing in February of 2004, which was a discount from what was being sought, and left to a further day any subsequent attorneys fees.

The trial court, among other things, noted that certain invoices, including those from Barrett Plumbing and YSC Construction, were not before the trial court at the February 2004 hearing, and thus could not have then been approved. The trial court also noted appellant had yet to provide adequate documentation, such as cancelled checks and invoices, to support several of its requests.

On May 9, 2005, the trial court awarded payments from escrow to appellant and its attorney in amounts substantially less than appellant requested (May 2005 Order). Specifically, the trial court ordered payments of $50,406 to appellant ($25,688 less than requested), $13,062 to appellants attorney ($6,938 less than requested), and $8,805 to Barrett Plumbing. The trial court declined to order payment of over $51,000 to YSC Construction. The trial court ordered the balance of all escrow funds paid to Rogers.

Appellant then requested a stay of the effective date of the order pending a hearing on a petition for reconsideration. The trial court denied the request, but agreed to issue a stay until June 20, 2005, to permit appellant to file a notice of appeal.

Appellant filed a motion for reconsideration of the May 2005 Order on the ground that, among other things, new facts warranted a new hearing. Appellant argued those new facts consisted of the trial courts request at the May 4 hearing for documentation, including cancelled checks and invoices, to support the requested payments to Barrett Plumbing and YSC Construction. Appellant sought leave of court to obtain the documentation, which it claimed had not previously been ordered and was not in its possession.[3]

On May 17, 2005, Rogers died. No notation of his death appeared in the record. On June 2, 2005, his attorney filed an ex parte application to have appellants motion for reconsideration taken off calendar. The application failed to mention Rogerss death, and it is unclear from the record whether his attorney knew of it. The trial court denied the application on June 2, 2005. Rogerss attorney then filed an opposition to the motion for reconsideration on June 6, 2005.

The trial court denied appellants motion for reconsideration on June 16, 2005, finding appellant failed to present new or different facts warranting a new hearing, or to adequately explain why the alleged new or different facts could not have been presented earlier. The trial court noted appellant had still not provided adequate documentation regarding certain requested payments. This appeal followed.

Discussion

As we discuss in more detail below, appellants briefs are in dramatic noncompliance with relevant rules of appellate procedure. In fact, this court could not determine the basis for appeal from reviewing appellants opening brief alone. Only after reviewing the record and respondents brief, and to a lesser extent appellants reply brief, could we begin to understand appellants contentions. Appellant asks that we vacate the May 2005 Order on the following grounds: (1) the February 2004 Order decided the same issues in a different way, and is res judicata as to those issues; and (2) the May 2005 Order was obtained by fraud or mistake in that Rogerss attorney represented Rogers in opposing reconsideration of the order after Rogers died on May 17, 2005, but before notifying the trial court of his death. We reject both grounds.

Appellant has waived the right to challenge the May 2005 Order.

The ways in which appellant fails to comply with minimum standards of appellate practice are numerous. Most significantly, in violation of mandatory requirements set forth in California Rules of Court, rule 8.204, subdivision (a)(2), appellants opening brief fails to adequately identify the order from which the appeal is taken, much less to provide a fair description of what the order provided, or of the events that led to its issuance.[4] In fact, only the notice of appeal specifically identifies the order being appealed: the May 2005 Order.[5]

With respondents assistance, we piece together that appellant is appealing the May 2005 Order on the ground that it improperly modified the February 2004 Order, which appellant identifies as a final order that became res judicata when Rogers failed to appeal it. Appellant insists under the February 2004 Order all receivership expenses approved by the court . . . became due and payable. Accordingly, appellant continues, the trial court erred by allow[ing] [Rogers] to file unlimited challenges to appellants accounting with respect to those approved expenses. Appellant asks us to find respondent equitably estopped from filing further such challenges.

Even after piecing together appellants contentions, however, our review of those contentions is rendered nearly impossible by appellants violation of another mandatory requirement of appellate procedure the requirement that an opening brief [p]rovide a summary of the significant facts limited to matters in the record. (Cal. Rules of Court, rule 8.204, subd. (a)(2)(C).) To the extent appellants briefs can be said to include any summary of significant facts, that summary is one-sided and largely without citation to the record.

Appellants briefs, for example, omit that the trial court specifically rejected its contention that the February 2004 Order was a final order regarding approval of receivership expense, as noted at page 5, ante.

As another example, appellant argues without record citation that [n]otwithstanding the [February 2004 Order] . . . [Rogers] has waged a campaign of untimely and unwarranted objections to the adequacy and sufficiency of any and all work done for the receivership. But our independent review of the record reveals less a campaign of untimely and unwarranted objections by Rogers and more a history of inadequate accounting by appellant. Appellant wholly ignores that evidence. Most importantly, appellant disregards that the May 2005 Order awarded it substantially less in receivership fees and costs than requested mainly because of its inadequate accountings: The Court has provided [appellant] and its attorneys several opportunities to document the claims it has made and encouraged [appellant] and Rogers to reach accommodation where possible. Third Party claims which have not been documented will not be paid. Discounts in the amounts paid to [appellant] and its attorneys represent the Courts view of the reasonable value of their services. The court has been extremely disappointed with [appellants] inability to present his accounting in a straightforward manner, thereby necessitating numerous hearings.

Indeed, appellant generally proceeds as if the trial court and its May 2005 Order do not exist. In doing so, it wrongly assumes we will try the dispute anew. (Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791 [unlike trial, the purpose of an appeal is not to determine the case on its merits, but to review for trial court error].) Appellant also violates another mandatory rule of appellate procedure the requirement that the appellant set forth a coherent argument with citation to law and evidence for reversing the order appealed from. (Cal. Rules of Court, rule 8.204, subdivision (a)(1)(B) [appellant must support each point by argument and, if possible, by citation of authority]; accord, Sehulster Tunnels/Pre-Con v. Traylor Brothers Inc./Obayashi Corp. (2003) 111 Cal.App.4th 1328, 1345 fn. 16 [appellant must provide meaningful argument with citation to law or the evidentiary record]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006)  9:21, p. 9-6 [appellant must support contentions with pertinent or cognizable legal argument and proper citation of authority].) For where, as here, an appellant fails to directly acknowledge the order being appealed from, any argument put forth for reversing it can hardly be deemed coherent.

Given appellants substantial noncompliance with the mandatory rules set forth above, we conclude it has waived any right to appeal the trial courts May 2005 Order. (Sehulster Tunnels/Pre-Con., supra, 111 Cal.App.4th at p. 1345 fn. 16 [an appellant that fails to support a theory by any meaningful argument with citation to law or the evidentiary record . . . has abandoned that theoretical theory for . . . liability; it is equivalent to a concession]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra,  9:21, p. 9-6 [appellate court can treat as waived any issue which, although raised in the briefs, is not supported by pertinent or cognizable legal argument or proper citation of authority]; Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [appellate arguments are waived where appellants briefs are devoid of citations to the reporters transcript and . . . in dramatic noncompliance with appellate procedures].)

Our conclusion of waiver likewise disposes of the claim of error based on Rogerss attorneys failure to promptly advise the trial court of his death. And in any event, had appellant not waived this claim by failing to comply with mandatory rules of appellate procedure, we would nonetheless decline to consider it for other reasons.

First, Rogers died May 17, 2005, after the trial court issued, on May 9, 2005, the order from which this appeal is taken. As such, his death provides no basis for concluding the trial court erred in issuing the order.

Second, even assuming for the sake of argument Rogerss death could have provided a basis for vacating or modifying the May 2005 Order (we have identified no such basis), appellant waived the issue by failing to raise it before the trial court.[6] (In re Marriage of Eben King & King (2000) 80 Cal.App.4th 92, 117 [It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal.])

Disposition

The trial courts May 9, 2005 order is affirmed.

_________________________

Parrilli, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

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Analysis and review provided by Chula Vista Property line attorney.

[1] Benjamin Rogers died on May 17, 2005. The trial court appointed respondent William Gray as executor of his estate on June 5, 2006.

[2]Numerous documents in the appellate record, including the notice of appeal and both the opening and reply briefs, identify City of Oakland, the plaintiff below, as appellant in this matter. We conclude City of Oakland is notparty to thisappeal as the order at issue, the May 2005 Order, was issued in response to motions filed only by Alton Management and Rogers. Moreover, the opening and reply briefs were drafted by the attorneys who below represented Alton Management, notCity of Oakland. Although Alton Managements attorneys identify themselves as the attorneys representing Appellant City of Oakland in this court, the record does not bear out their claim.

[3] Appellant appears to forget the trial courts March 29, 2005 Order, which ordered it to provide documentation of the balance of funds in escrow, . . . the current claims made by third party contractors YSC Construction, Barrett Plumbing and John Taylor Termite, . . . the current total for unreimbursed out-of-pocket expenses by [appellant], and . . . the current status of Category 3 expenses (as that term is used on page 3 of the Courts Order filed September 23, 2004) that have not yet been paid or released.

[4] Former California Rules of Court, rule 14 was amended and renumbered as Rule 8.204 effective January 1, 2007. Subdivision (a) of rule 8.204 provides:

(a) Contents
 (1) Each brief must:
   (A) Begin with a table of contents and a table of authorities separately listing cases, constitutions, statutes, court rules, and other authorities cited;
   (B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority; and
   (C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in the record where the matter appears.

 (2) An appellants opening brief must:
   (A) State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from;
   (B) State that the judgment appealed from is final, or explain why the order appealed from is appealable; and
   (C) Provide a summary of the significant facts limited to matters in the record.

[5] Appellant filed two notices of appeal in this case. The first notice of appeal, filed June 21, 2005, identifies the Order to Terminate Receivership as the order from which this appeal is taken. The first notice fails to identify any date for that order, however it appears to be the February 2004 Order, i.e. the Order Approving Receivers Final Account and Report, Terminating Receivership, and Paying Fees and Costs, which issued on February 13, 2004. We are without jurisdiction to review the February 2004 Order because appellant filed the first notice of appeal substantially more than 60 days after the superior court clerk mailed them a file-stamped copy of the order. (Cal. Rules of Court, rule 8.104, subds. (a), (d)); Adoption of Alexander S. (1988) 44 Cal.3d 857, 864.)

Appellants second notice of appeal, filed June 28, 2005, identifies the May 2005 Order and the order issued on June 16, 2005 (June 2005 Order) as the orders from which this appeal is taken. The May 2005 Order, as mentioned above, ordered the distribution of all funds held in escrow in connection with the receivership involving Rogerss real property. It is thus appealable as an order relating to a collateral matter and directing the immediate payment of money. (Code Civ. Proc.,  904.1, subd. (a); 9 Witkin, Cal. Procedure, Appeal (4th ed. 1997)  60, 62, pp. 116-117 [an appeal may be taken from an order that relates to a collateral matter and requires the aggrieved party immediately to pay money or perform some other act]; Brown v. Memorial Nat. Home Foundation (1958) 158 Cal.App.2d 448, 458 [order approving report and account of receiver, fixing compensation, and ordering payment is appealable].) The June 2005 Order denied appellants petition to reconsider the May 2005 Order. It is not appealable because, as the trial court found, it was not based on new facts from those presented in the May 2005 Order. (Crotty v. Trader (1996) 50 Cal.App.4th 765, 769 [[i]f the court denied reconsideration because [appellant] failed to raise new facts, the reconsideration order would not be appealable]; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459.) We thus treat this matter as an appeal only from the May 2005 Order. (Cal. Rules of Court, rule 8.100, subd. (a)(2) [notice of appeal must be liberally construed].)

[6] Because the issue of Rogerss death was not raised below, the appellate record contains little if any of the evidence required to properly decide it. Respondent concedes Rogers died May 17, 2005, shortly after the May 2005 Order issued and before the order denying appellants petition for reconsideration issued. Respondent also concedes Rogerss attorney, Greer Smith, represented Rogers after May 17, 2005 without advising the trial court of his death. Appellant argues Ms. Smith misled the trial court by failing to promptly disclose Rogerss death. But the record contains no evidence regarding when Ms. Smith learned of his death, much less regarding whether she hid that fact from the trial court. Had appellant raised the issue with the trial court, as it was required to do to preserve the issue for appeal, an adequate record for appeal could have been established.