Gomez v. Carrillo

Filed 10/27/06 Gomez v. Carrillo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County. Laura A. Matz, Judge. Affirmed.

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Law Offices of Marty O’Toole and Marty O’Toole for Plaintiff and Appellant.

Blut & Campain, Elliot S. Blut and Alberto J. Campain for Defendants and Respondents Eduardo Carrillo, Joshua Friedlander, Thomas Ashton and Two Bad Apples, Inc.

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Jorge Gomez filed suit against Eduardo Carrillo, Joshua Friedlander, Thomas Ashton, and Two Bad Apples, Inc., all of whom cross-complained against Gomez. The trial court entered judgment against Gomez and granted some of the relief sought in the cross-complaint. Gomez appeals, arguing that the judgment is inconsistent with the jury’s special verdict. We affirm.

BACKGROUND

The record on appeal contains no pleadings, no motions before or during trial, and none of the opening statements, evidence, or closing arguments from the trial. Our summary of the background is consequently limited to the facts we have been able to glean from the special verdict, the judgment, and the few other components of the record before us.

It appears that the parties’ claims and cross-claims relate to a screenplay for a film called “Stage Kiss,” and to the parties’ evidently unsuccessful attempts to produce that film. Gomez sued respondents for breach of contract, conversion, and specific performance. Carrillo cross-complained for breach of contract, intentional misrepresentation, and negligent misrepresentation. Ashton cross-complained for intentional misrepresentation, as did Friedlander and Two Bad Apples, Inc. The cross-complaint also alleged claims for declaratory relief and unjust enrichment and sought rescission and a constructive trust.

The jury returned a special verdict on the legal claims, finding no party liable to any other, principally because there were no damages. After the jury returned its verdict, the court ordered briefing and oral argument on the remaining equitable claims, which the court then decided. As part of its resolution of the claim for declaratory relief, the court found that “Carillo owns the copyright and all other rights in the intellectual property, Stage Kiss,” and the court ordered that “any film and sound elements pertaining to Stage Kiss that are in Gomez’[s] possession should be turned over to cross-complainants immediately.” The court entered judgment on May 27, 2005. In the judgment, the court expressly set forth each of the jury’s findings of the special verdict without alteration.

Gomez moved for a new trial and also moved to vacate the judgment under Code of Civil Procedure section 663. In support of the motion to vacate, Gomez argued that the judgment was inconsistent with the special verdict. According to Gomez, the judgment “disregarded” and “is not consistent with” the jury’s affirmative answer to question number 8 of the special verdict, which asked, “Did . . . Jorge Gomez own the film and sound footage produced in December, 2002[?]”

The trial court denied both of Gomez’s post-trial motions, observing at the hearing that Gomez’s ownership of certain “cans of film“ (as found by the jury) does not mean that he owns any of the relevant “intellectual property” rights (which the court found belonged to Carillo). Gomez appealed.

DISCUSSION

I. Timeliness of the Appeal

Respondents moved to dismiss Gomez’s appeal as untimely, and their motion was denied. In their brief, respondents again argue that the appeal is untimely. Respondents’ renewal of the argument is not improper, because the previous denial of their motion does not operate as law of the case. (Department of Industrial Relations v. Nielsen Construction Co. (1996) 51 Cal.App.4th 1016, 1023, fn. 6.) We agree that Gomez did not timely appeal from the judgment, but we conclude that he did timely appeal from the order denying his motion to vacate the judgment under Code of Civil Procedure section 663, which is separately appealable. (Norager v. Nakamura (1996) 42 Cal.App.4th 1817, 1819, fn. 1.) We accordingly decline to dismiss the appeal.

Gomez filed his notice of appeal on September 26, 2005. The trial court entered judgment on May 27 and mailed notice of entry of judgment on the same day. Gomez’s time to appeal from the judgment therefore expired on July 26, unless it was extended by statute or rule. (Cal. Rules of Court, rule 2(a).) Gomez timely filed a motion for new trial and a motion to vacate the judgment, both on June 8. The motion for new trial was denied by operation of law on July 26 (Code Civ. Proc., § 660), so the motion extended Gomez’s time to appeal from the judgment only until August 25 (Cal. Rules of Court, rule 3(a)), well before Gomez filed his notice of appeal on September 26. And the motion to vacate extended his time to appeal from the judgment only until 90 days after the motion was filed, i.e., until September 6. (Cal. Rules of Court, rule 3(b).) We conclude that Gomez did not timely appeal from the judgment.

As we have already noted, however, the order denying Gomez’s motion to vacate the judgment is separately appealable. That order was entered on August 26, so Gomez had 60 days from notice of entry to file his notice of appeal from that order. Because Gomez filed his notice of appeal on September 26, it was timely.

Finally, the notice of appeal states that Gomez is appealing from a judgment after jury trial; it does not say that he is appealing from a postjudgment order. But the notice of appeal states that the “judgment or order“ appealed from was entered on August 26, 2005, i.e., the date of entry of the order denying the motion to vacate. A notice of appeal must be liberally construed in favor of its sufficiency, and courts have construed notices referring to a “judgment” as applying to an order. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20.) We accordingly construe the notice of appeal as applying to the order denying the motion to vacate. So construed, the notice was timely filed.

II. The Denial of the Motion to Vacate

Gomez argues that the trial court erred when it denied his motion to vacate the judgment, because the judgment was inconsistent with the special verdict. We disagree.

The jury found that Gomez “own[ed] the film and sound footage produced in December, 2002[.]” The judgment incorporated the jury’s finding verbatim. The judgment also provided that “Carillo owns the copyright and all other rights in the intellectual property, Stage Kiss,” and it further directed that “any film and sound elements pertaining to Stage Kiss that are in Gomez’[s] possession should be turned over to cross-complainants immediately.”

Nothing in the special verdict, the jury instructions, the judgment, or anywhere else in the record before us explains what “the film and sound footage produced in December, 2002[,]” is. There is consequently no basis for us to conclude that the jury’s finding is inconsistent with the judgment’s provision concerning ownership of “the copyright and all other rights in the intellectual property, Stage Kiss”--for all the record indicates, “the film and sound footage produced in December, 2002” did not even relate to Stage Kiss. It is the appellant’s burden to provide us with a record adequate to establish prejudicial error. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) On these grounds alone, the order denying the motion to vacate must be affirmed.

Moreover, assuming that the footage did relate to Stage Kiss, there is still no inconsistency. The jury made its finding concerning ownership of the footage in the context of Gomez’s claim for conversion. Conversion generally requires interference with tangible personal property. (See generally 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, §§ 701-702, 722, pp. 1025-1026, 1046-1047.) We must therefore agree with the trial court’s conclusion that the jury’s finding concerning ownership of the footage relates only to “the cans of film[,]” not to any intellectual property rights. And there is no inconsistency in finding both that Gomez owns certain cans of film and that Carillo owns all intellectual property rights in the work depicted, in whole or in part, in those cans of film. An individual can, for example, own a home video copy of the movie Million Dollar Baby without owning any of the intellectual property rights in that work.

DISPOSITION

The order denying the motion to vacate the judgment is affirmed. Respondents shall recover their costs on appeal. NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J. VOGEL, J.

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