Filed 4/28/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| JONATHAN NEIL & ASSOCIATES, INC., Plaintiff and Appellant, v. FREDDIE JONES, Defendant, Cross-complainant and Respondent; MILDRED JONES et al, Cross-complainants and Respondents; CAL-EAGLE INSURANCE COMPANY, Cross-defendant and Appellant. |
F039797 & F040179
(Super. Ct. No. 01CECG03391)
O P I N I O N |
APPEAL from a judgment of the Superior Court of Fresno County. Franklin P. Jones, Judge.
Parichan, Renberg, Crossman & Harvey, Richard C. Crossman; Greines, Martin, Stein & Richland, Irving H. Greines, Robin Meadow and Peter O. Israel for Plaintiff and Appellant and Cross-defendant and Appellant.
McCormick, Barstow, Sheppard Wayte & Carruth, James P. Wagoner and David W. Burnett for Defendant, Cross-complainant and Respondent and Cross-complainants and Respondents.
-ooOoo-
This case concerns consolidated appeals from the entry of a renewal of judgment (Code Civ. Proc., § 683.130) and an order denying appellant's motion to vacate the renewal (Code Civ. Proc., § 683.170). (All further section references are to this code.) We conclude the renewal of judgment is not an appealable order, but the order denying the motion to vacate is appealable as an order after judgment. (See § 904.1, subd. (a)(2).) Next, we determine the trial court did not err in failing to vacate the renewal of judgment. We do not reach the question whether the court erred in declining to amend the renewal of judgment (see § 683.170, subd. (c)), however, since we conclude the renewal of judgment has no separate existence from the underlying judgment. Accordingly, the renewal of judgment was vacated by operation of law upon issuance of the remittitur in the appeal reversing the underlying judgment. The present appeal, as a result, is moot.
Facts and Procedural History
A longer account of the facts and history of this case is contained in the Supreme Court opinion in Jonathan Neil & Associates, Inc. v. Jones (2004) 33 Cal.4th 917, 923-930. For the purpose of the present appeal, a shorter version will suffice.
Respondent Fred Jones obtained insurance from appellant Cal-Eagle Insurance Company (Cal-Eagle) through the state's commercial assigned-risk insurance program. Respondent owned a trucking company and, after expiration of the policy, Cal-Eagle performed an audit of respondent's records for the purpose of adjusting the premium, as permitted by the policy. A dispute arose when Cal-Eagle asserted the right, at first, to $111,523 in additional premiums; it later lowered its demand to $51,294. When respondent refused to pay the premium, Cal-Eagle assigned its claim to appellant Jonathan Neil & Associates, Inc., a collection agency (Neil).
Neil sued respondent for the adjusted premium. Respondent (together with his wife and associated business entities, to whom we will collectively refer as respondent) filed a cross-claim against Cal-Eagle and respondent's insurance broker, Johnsey Insurance Company (Johnsey). Trial resulted in a 1997 jury verdict that respondent owed Neil no additional premium, that Cal-Eagle had engaged in bad faith breach of the contract and fraud toward respondent, and that Johnsey was not negligent in its handling of respondent's insurance application. The jury awarded respondent compensatory damages from Cal-Eagle in the amount of $2,027,167 and punitive damages in the amount of $11,445,714.23; judgment was entered on the verdict. In posttrial proceedings the trial court conditioned its denial of Cal-Eagle's new trial motion on remittitur of the punitive damages award to $4,350,887. Respondent agreed to the remittitur, reserving its right to appeal from that order. Cal-Eagle's request for entry of a modified judgment, reflecting the remittitur, was denied, apparently on the basis that the remittitur functioned simply as a credit against or partial payment of the original judgment.
Cal-Eagle appealed from the judgment in 1997. Respondent cross-appealed from the remittitur order and from the judgment in favor of Johnsey. Briefing and preparation of the record were delayed. We reversed the judgment against Cal-Eagle in 2002 on the basis that the alleged bad faith breach of the insurance contract was not actionable as a tort and could not support an award of punitive damages. (Jonathan Neil & Associates, Inc. v. Jones (May 14, 2002, F029400 & F030300) [hereafter referred to as F029400] rev. granted Aug. 20, 2002.) We also held that respondent's entire claim against Cal-Eagle was precluded until and unless respondent exhausted his administrative remedies to challenge Cal-Eagle's assertion of the right to additional premiums. We remanded the case, directing the trial court to stay further proceedings â€
