Holt v. Rutherford
Filed 7/3/13 Holt v. Rutherford CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
GARY HOLT et al.,
Plaintiffs and
Appellants,
v.
VALENTINE RUTHERFORD et al.,
Defendants and
Respondents.
2d Civil No.
B241921
(Super. Ct. No.
56-2011-00390056)
(Ventura
County)
Plaintiffs acquired
title to real property by way of a nonjudicial foreclosure.
Plaintiffs' complaint
included causes of action for quiet title, to set aside an
demurrer to some, but not all, causes of action without leave to amend. Thereafter, plaintiffs dismissed their entire
action without prejudice and appealed.
While the appeal was pending, plaintiffs conveyed their interest in the
subject real property to a third party.
We determine the
judgment is final for the purposes of appeal.
The conveyance of plaintiffs' interest in the subject property rendered
the appeal moot concerning the causes of action relating to quiet title and
unlawful detainer. Plaintiffs raise no
substantive challenges to the court's rulings on the other causes of
action. We affirm.
FACTS
Valentine Rutherford
(Rutherford) was the owner of a parcel of real property in Ojai. Gary Holt is the sole shareholder of U.S.
Lease financing, Inc., (hereafter collectively "Holt.")
Holt and Rutherford
reached a settlement in a lawsuit. As
part of the settlement agreement, Rutherford agreed to
execute a note in favor of Holt by a deed of trust in which Holt is the
beneficiary of Rutherford's Ojai property.
Unknown to Holt, prior
to the execution of the deed of trust Rutherford
conveyed the property to himself and his wife, Christine, and they both
conveyed the property into a family trust.
Rutherford
paid nothing on the note, and Holt foreclosed on the deed of trust. Holt prevailed at the foreclosure sale and
received the trustee's deed to the Ojai property.
Holt brought an unlawful
detainer action against the Rutherfords to obtain
possession of the property. The Rutherfords
defended the action by showing the deeds purporting to convey the property from
Rutherford to himself and Christine and then into
trust. This was the first Holt had heard
of those deeds. Because those deeds were
recorded prior to Holt's trust deed, the Rutherfords'
theory was that Rutherford had no title on which Holt
could foreclose. The trial court in the
unlawful detainer action gave Holt judgment against Rutherford but not
Christine.
Holt brought the instant
case alleging, among other causes of action, an action to set aside the
unlawful detainer judgment and to set aside the settlement agreement. At some point, Rutherford
filed a cross-complaint against Holt and Holt apparently filed a
cross-complaint against Rutherford. Neither cross-complaint appears of record.
The trial court
sustained Rutherford's demurrers to some, but not all,
of the causes of action alleged in Holt's first and second amended
complaints and cross-complaint without leave to amend.
THE
DISCOVERY
moved to file a third amended complaint.
His motion was based on the discovery that the deeds conveying the
property from Rutherford to himself and his wife and
then into the family trust did not have the same legal description as the trust
deed on which he foreclosed. Instead,
those deeds conveyed the neighboring parcel, also owned by Rutherford. Therefore the trust deed on which he
foreclosed gave him legal title.
Nevertheless, the trial
court denied Holt's request to file a third amended complaint. But it allowed Holt to file an amendment to
the common allegations and to amend the remaining causes of action. The court, however, would not allow Holt to
reallege causes of action for quiet title or to set aside the unlawful detainer
judgment, to which it had sustained demurrers without leave to amend.
After Holt filed
amendments to the second amended complaint he dismissed his entire action
without prejudice.
Rutherford
moved for judgment on all the causes of action for which the trial court
sustained his demurrers without leave to amend.
The second trial court to rule on this matter granted the motion. The court summarized those causes of action
as follows: "Judge Rebecca Riley
sustained the Rutherfords' demurrers to Plaintiffs'
first and second amended complaints, without leave to amend, as to causes of
action 1 (fraud), 4 (quiet title), 5 (interference with prospective
economic advantage), 7 (negligence) and 15 (to set aside a UD
judgment). . . . Judge
Riley also sustained without leave to
amend, a demurrer to the Cross-complaint, causes of action 1 (for
breach of settlement agreement), 3 (slander of title), 4 (fraud),
5 (accounting) and 6 (unjust enrichment)."
DISCUSSION
I.
While this appeal was
pending, Rutherford moved to dismiss the appeal as to
causes of action relating to quiet title and unlawful detainer. The motion was made on the ground that Holt
has transferred his interest in the subject property to a third party.
Rutherford
argues that only a party who is aggrieved has standing to appeal. (Citing Sabi
v. Sterling
"'rights or interests are injuriously affected by the judgment.' [Citation.]" (Ibid.) Rutherford claims that
because Holt no longer has any conceivable interest in the property, his rights
or interests cannot be affected by the judgment.
Holt concedes that he
transferred his interest in the property.
He argues, however, without citation to authority that as long as Rutherford
challenges his title he will always be the real-party-in-interest.
But by conceding that he
has transferred his interest in the property, Holt is conceding that he no
longer has a title to challenge.
Shimpones v. Stickney (1934) 219 Cal.
637, 644, is instructive. There,
Shimpones brought an action to quiet title to real property in herself. While the action was pending, Shimpones lost
a separate action brought by a third party to quiet title to the same
parcel. Our Supreme Court held that the
judgment in the separate action, in which title was quieted in a third party
against Shimpones, rendered the appeal moot.
In any event, it would seem obvious that where plaintiff has transferred
all of his interest in the property, a court cannot grant him relief to quiet
title.
The same infirmity exists
for Holt's appeal of the dismissal of his cause of action to set aside the
unlawful detainer judgment. The purpose
of an unlawful detainer action is to recover possession of property. (See 12 Witkin, Summary of Cal. Law (10th ed.
2005) Real Property, § 704, p. 825.)
Because Holt has transferred all of his interest, he can no longer
recover possession. Holt's appeal is
moot as to the causes of action to quiet title and set aside the unlawful
detainer judgment.
II.
Holt contends the
judgment is void.
Holt argues that once he
dismissed his case without prejudice, the trial court lost jurisdiction to act
further and any subsequent orders are void.
Holt relies on
1046, 1050. There plaintiff filed a
dismissal without prejudice prior to the commencement of trial. The Court of Appeal held that the trial court
had no jurisdiction to grant the defendant's motion to vacate the
dismissal. But granting such a motion
would require a substantive determination that the motion to vacate is
proper. A dismissal without prejudice
becomes a dismissal with prejudice as to those causes of action for which a
demurrer has been sustained without leave to amend. (See Fisher
v. Eckert (1949) 94 Cal.App.2d 890, 893.)
Entering judgment on such causes of action is merely ministerial. Holt cites no case in which such a judgment
has been held void.
The real question is
whether the judgment is interlocutory or final.
Only a final judgment can be appealed.
(9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 96, pp.
158-159.)
In Don Jose's Restaurant, Inc. v. Truck Insurance Exchange (1997) 53
Cal.App.4th 115, the trial court granted defendant's motion for summary
adjudication of two of eleven causes of action.
The parties stipulated to a dismissal without prejudice of the remaining
causes of action with a waiver of the statute of limitations. The plaintiff appealed. The Court of Appeal dismissed on the ground
that, under the one final judgment rule, an appeal cannot be taken from a
judgment that fails to complete the disposition of all the causes of action
between the parties.
But here the parties did
not stipulate to a dismissal or waive the statute of limitations. In Abatti
v. Imperial Irrigation District (2012) 205 Cal.App.4th 650, 665, the court
concluded that claims dismissed without prejudice are final for the purpose of
the one final judgment rule, unless, like Don
Jose's Restaurant, Inc., there is a stipulation that facilitates potential
future litigation. The court reasoned
that the "theoretical possibility of future litigation" is not
sufficient to prevent the judgment from being considered final. (Id.
at p. 667.)
Because Holt
unilaterally dismissed his complaint without a stipulation waiving the
final for the purposes of the one final judgment rule.
We have deemed the
causes of action to quiet title and set aside the unlawful detainer action
moot. Holt raises no substantive
challenges to the other causes of action on which the trial court sustained
demurrers without leave to amend. Under
the circumstances, we must affirm.
The judgment is
affirmed. Costs on appeal are awarded to
respondents.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Barbara A. Lane, Judge
Rebecca Riley, Judge
Superior Court County of Ventura
______________________________
Kirk J. Grossman for
Plaintiffs and Appellants.
Malcolm R. Tator for
Defendants and Respondents.
name="_ftn1" title=""> [1] We refer to Holt as
"he" for clarity.
