LA Community College Dist. v. GS Roosevelt
Filed 10/2/13 LA Community College Dist. v. GS Roosevelt
CA2/4
NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 FOUR
LOS ANGELES
COMMUNITY COLLEGE DISTRICT,
Cross-complainant and Appellant,
v.
GS ROOSEVELT, LLC,
Cross-defendant and Respondent.
B244809
(Los Angeles County
Super. Ct. No. BC377008)
LOS ANGELES
COMMUNITY COLLEGE DISTRICT,
Petitioner,
THE SUPERIOR COURT
OF
LOS ANGELES COUNTY,
Respondent;
GS ROOSEVELT, LLC,
Real Party in Interest.
B247683
APPEAL
from an order of the Superior Court of
County, Frederick Carl Shaller, Judge. Reversed and remanded.
ORIGINAL PROCEEDING;
petition for a writ of mandate.
Dismissed.
Haight
Brown & Bonesteel, Morton G. Rosen, and Jeffrey A. Vinnick for
Cross-complainant, Appellant, and Petitioner.
No
appearance for Respondent (B247683).
Abelson
Herron Halpern, Vincent H. Herron, Susan P. Welch, and Gregory O. Lunt for
Cross-defendant, Respondent, and Real Party in Interest.
_______________
In this consolidated appeal and petition for writ of mandate, Los Angeles
Community College District (District) challenges the denial of its motions for
entry of injunction and judgment. As to
the appeal from the October 1, 2012 order denying District’s
request for a preliminary injunction and judgment against GS Roosevelt, LLC, we
reverse with directions. As to the
petition for writ of mandate from the January 10,
2013
order denying District’s request to enter a judgment and injunction against
Roosevelt Lofts, LLC, and its successor in interest, we dismiss the petition as
moot.
This
litigation, which was the subject of a prior appeal, concerns a dispute over the use of a private
alley in downtown Los Angeles. The 30-foot by 90-foot alley is surrounded by
buildings on three sides and the owners of those three buildings share a common
easement over the alley.
The
700 Wilshire Building sits on the eastern edge of
the alley. 700 Wilshire Properties (700
Wilshire), which owns the 700 Wilshire Building and the appurtenant easement
over the alley, also owns the eastern half of the alley.
The
770 Wilshire Building sits on the western edge of the alley. District, which owns the 770 Wilshire
Building and the appurtenant easement over the alley, also owns the western
half of the alley.
The Roosevelt Building sits at the southern
end of the alley. GS Roosevelt, which
presently owns the Roosevelt Building and the appurtenant easement over the
alley, has no ownership interest in the alley.
During this litigation, the Roosevelt Building and the appurtenant
easement had two prior owners: (1) When the complaint was filed, the Roosevelt
Building and easement were owned by Alliance Property Investments, Inc., Carla
Ridge, LLC, Maverick Holdings, LLC, S & M Yashoua Investments,
and Desert Field, LLC (collectively, Alliance).
(2) When the prior appeal from the judgment was filed, the Roosevelt
Building and easement were owned by Roosevelt Lofts. In order to distinguish between GS Roosevelt,
who did not own the building and easement during trial, and the defendants who
appeared at trial—Alliance, Roosevelt Lofts, Urban Builders, Inc., and The
Roosevelt Building Owners’ Association—we will refer to GS Roosevelt as GSR and
to the defendants who appeared at trial as the Roosevelt Parties.
The
common easement was created by grant deeds recorded in the early 1900’s, before
the three buildings were constructed.
The Roosevelt Building and the 700 Wilshire Building were constructed in
1925 and the 1960’s, respectively, with loading docks that face the alley. The 770 Wilshire Building was constructed in
the 1970’s with a subterranean service elevator that, when in use, partially
blocks the alleyway and, when not in use, descends beneath doors that, when closed,
form part of the alleyway’s surface.
For
several decades, the three buildings used the alley for commercial delivery and
trash trucks, loading docks, the subterranean elevator, and dumpsters. The 700 and 770 Wilshire Buildings also used
the alley as an emergency exit.
This
litigation concerns a dispute over the Roosevelt Building’s unilateral decision
in 2007 to change the way in which the alley was being used. Before 2007, the alley had never been used
for private vehicular traffic and there were no parking garage entrances or
exits on the alley. But in 2007, the
Roosevelt Building was converted to condominiums and its loading dock was
replaced with a parking garage entrance/exit on the alley. The sudden prospect of private vehicular
traffic in the alley led 700 Wilshire to initiate this lawsuit.
700 Wilshire contended the historic uses of the alley
(delivery and trash trucks, loading docks, subterranean elevator, dumpsters,
emergency exit) were dangerously incompatible with the Roosevelt Building’s
proposed use of the alley for parking garage access. Based on its belief that such a change in use
would overburden the easement, 700 Wilshire filed a complaint for
declaratory and injunctive relief to prevent the Roosevelt Building from using
the alley for parking garage access.
District, who was named as an indispensible party in 700 Wilshire’s
complaint, shared 700 Wilshire’s belief that the change in use was incompatible
with the existing uses of the alley and filed a similar cross-complaint for
declaratory and injunctive relief.
At
trial, an advisory jury found the proposed use of the alley for parking garage
access would overburden the easement.
However, the trial court rejected this finding and, based on its
determination that the proposed use would not overburden the easement, entered
a judgment that prohibited 700 Wilshire and District from interfering with the
Roosevelt Building’s use of the alley for parking garage access.
While
700 Wilshire and District were appealing from the judgment, Roosevelt Lofts,
which then owned the Roosevelt Building and the appurtenant easement, went
bankrupt. While the prior appeal was pending, the
bankruptcy court confirmed a reorganization plan that allowed Roosevelt Lofts
to transfer the Roosevelt Building, the appurtenant easement, and the judgment
(which was still being appealed) to GSR, the present owner.
Before
the prior appeal was argued, GSR and Roosevelt Lofts filed a joint motion for
substitution of parties, which we granted on October 14, 2011. After GSR was substituted for Roosevelt
Lofts, GSR appeared at oral argument and, after we reversed the judgment, filed
unsuccessful petitions for rehearing and review.
After
the matter was remanded to the superior court, 700 Wilshire and District filed
several motions for entry of a preliminary injunction, injunction, and judgment
that, in accordance with our disposition in the prior appeal, would have
prohibited GSR from using the alley for parking garage access. However, the superior court refused to
prohibit GSR from using the alley for parking garage access based on its belief
that it was precluded from doing so by certain orders of the bankruptcy
court.
In
the matters currently before us—District’s appeal and petition for writ of
mandate—District contends that because GSR was a party to the prior appeal, GSR
was bound as a party by our disposition in the prior appeal and the superior
court had no valid grounds for refusing to prohibit GSR from using the alley
for parking garage access. In opposition
to District’s appeal and petition for writ of mandate, GSR denies that it is a
party to this litigation and argues to affirm the orders because, in the
absence of personal jurisdiction, the court may not enter injunctive or
declaratory relief against a nonparty.
GSR also argues the orders, if reversed, would violate orders of the
I. Additional Allegations
In
addition to its claims for declaratory
and injunctive relief to prohibit the use of the alley for parking garage
access, 700 Wilshire alleged claims against the Roosevelt Parties for trespass
and nuisance. 700 Wilshire contended
that during the Roosevelt Building’s condominium conversion project, the
Roosevelt Parties entered the alley to perform work that 700 Wilshire did not
approve (installation of an underground conduit and a gate, the grading and
repaving of pavement).
In
addition to its similar claims for declaratory and injunctive relief, District
alleged a fraud claim against the Roosevelt Parties, who allegedly had
concealed their plan to use the alley for parking garage access. District claimed that if it had known of this
plan, it would have denied the underground
utility easement for the conversion project.
District also claimed the Roosevelt
Parties had promised but failed to replace District’s subterranean elevator in
the alley, which they allegedly damaged while working on the alley.
The Roosevelt Parties claimed they
had a secondary easement to maintain the alley.
The Roosevelt Parties filed a cross-complaint against 700 Wilshire,
seeking to apportion the cost of the work performed on the alley, which they
contended was necessary to maintain the easement.
II. Sanctions
Against District
Before
trial, District installed several bollards (steel posts) around the damaged
subterranean elevator doors in the alley.
District contended the Roosevelt Parties’ resurfacing work had raised
the pavement several inches above the elevator doors, which were no longer
flush with the pavement. District
installed the bollards to keep pedestrians and vehicles away from the doors.
The
Roosevelt Parties obtained a temporary
restraining order (TRO) that required District to remove the bollards. While District was appealing the TRO, the
Roosevelt Parties requested that District be held in contempt for failing to
remove the bollards. After a contempt
hearing, the trial court sanctioned District $1,000 per day. District removed the bollards and tendered,
under protest, a $1,000 check to the court clerk.
III. Trial and Judgment
During
trial, the Roosevelt Parties moved for nonsuit of District’s fraud claim. The trial court granted the motion based on
insufficient evidence of compensatory damages for fraud.
As to
the remaining claims, the jury returned
the following special verdict and interrogatory findings:
(1)
The jury
found the Roosevelt Parties had intentionally entered 700 Wilshire’s side of
the alley without permission to perform work that was not authorized by a
secondary easement to maintain the alley.
Based on this finding, the trial court denied the Roosevelt Parties’
cross-claim for apportionment of repair costs.
(2) Although the jury found the work
on the alley was not authorized by a secondary easement, the jury found the
work did not cause any actual harm or
unreasonably interfere with 700 Wilshire’s enjoyment
of the alley. Based on this finding, the
trial court denied 700 Wilshire’s claims for trespass and nuisance.
(3) The jury found that allowing private vehicular traffic in the
alley would overburden the easement.
However, the trial court rejected this finding. Based on its
trial court found the evidence was insufficient to show that allowing private
vehicular traffic in the alley would overburden the easement.
After
permitting the Roosevelt Parties to amend their cross-complaint to allege a
claim for injunctive relief, the trial court entered a judgment and permanent
injunction against 700 Wilshire and District.
The judgment permanently enjoined and restrained 700 Wilshire and
District from directly or indirectly interfering with the free passage of
vehicles or pedestrians in the alley, from “erecting, placing or maintaining
steel bollards or other obstructions in the ALLEYWAY,†and from “damaging or
destroying the surface of the ALLEYWAY.â€
700 Wilshire and District timely appealed from the judgment (the prior
appeal).
Transfer of Property, and Motion for Substitution of Parties
While
the prior appeal was pending, Roosevelt Lofts filed a Chapter 11 bankruptcy
petition. Its bankruptcy estate included
the Roosevelt Building, the appurtenant easement, and the judgment (which was
being appealed) that permanently enjoined and restrained 700 Wilshire and District
from interfering with Roosevelt Loft’s use of the alley for parking garage
access.
While
the prior appeal was pending, the bankruptcy court allowed Roosevelt Lofts to
sell approximately 65 condominium units in the Roosevelt Building. The bankruptcy court ordered that the
condominium purchasers be informed of the pending appeal from the judgment,
which, if successful, could eliminate the access to the parking garage on the
alley, but would not eliminate the two other access points on the street.
Also
while the prior appeal was pending, the bankruptcy court confirmed a
reorganization plan that allowed GSR to acquire the Roosevelt Building, the
appurtenant easement, and the judgment (which was being appealed) from
Roosevelt Lofts. After the property was
transferred, GSR and Roosevelt Lofts filed a joint motion in the prior appeal
for substitution of parties.
name="_ftnref2" title="">[2] In that motion, GSR described itself as the
“sole owner†of the Roosevelt Building, the appurtenant easement, and the
judgment, and asked to be substituted “as Respondent for all purposes in this
action.â€
We
granted GSR’s motion for substitution of parties on October 4, 2011.
counsel at oral argument and the appeal was submitted on that date.
V. Our Reversal of the Judgment in
On
November 8, 2011, we issued our opinion in the prior appeal reversing the
judgment and permanent injunction against 700 Wilshire and District. (700
Wilshire Properties v. Alliance Property Investments, Inc. (Nov. 8, 2011, B225501, B226613) review den. Feb. 15, 2012,
S198808 (700 Wilshire I).) We concluded the Roosevelt Parties’
unilateral decision to begin accessing the parking garage through the alley was
not within the normal development of the Roosevelt Building and would therefore
overburden the easement. We held that,
in light of the jury’s special findings and the applicable law pertaining to
the shared use of a common easement, 700 Wilshire and District were entitled to
a judgment in their favor on their claims for declaratory and injunctive
relief. We also reversed the order
imposing sanctions and the nonsuit and dismissal of District’s cross-complaint
for fraud and remanded for a new trial of the fraud claim. We directed that upon completion of the new
trial of District’s fraud claim, the superior court was to enter a new judgment
that, consistent with the views set forth in our opinion, granted appropriate
declaratory and injunctive relief to 700 Wilshire and District.
GSR
filed a petition for rehearing in which it challenged the substantive merits of
our decision.
name="_ftnref4" title="">[4] After we denied the rehearing petition, GSR
filed a petition for review in the California Supreme Court.
remittitur issued on February 22, 2012.
Proceedings in the Superior Court and Bankruptcy Court
After
the matter was remanded to the superior court,
motions in an attempt to sever District’s fraud claim
injunction, permanent injunction, and judgment on the declaratory relief and
injunction claims that would prohibit the use of the alley for parking garage
access.
At
the August 17, 2012 preliminary injunction hearing, GSR made a purported special
appearance under the name of its affiliate Greystar Equity Partners VII REIT
(Greystar). GSR claimed that because GSR
was not a party, the superior court lacked personal jurisdiction over it and
could not prohibit its use of the alley for parking garage access.
On August 23, 2012, the superior court issued a preliminary
injunction that did not mention GSR. The
preliminary injunction prohibited only the Roosevelt Parties—who had no current
ownership interest in the Roosevelt Building or easement—from using the alley
for parking garage access.
Although
the preliminary injunction did not apply to GSR, 700 Wilshire Properties
and District began prohibiting private vehicles from using the alley to access
the parking garage. Claiming that its use of the
alley could not be restricted in this litigation, GSR filed a motion for
emergency relief in the bankruptcy court.
A. GSR’s Motion for Emergency Relief in
the Bankruptcy Court
One
of the points GSR raised in its motion for emergency relief was that under the
bankruptcy court’s order confirming Roosevelt Loft’s reorganization plan
(confirmation order), GSR had acquired the Roosevelt Building, the appurtenant
easement, and the judgment (which at the time was subject to the appeal and was
later reversed on appeal) without assuming any successor liability for
Roosevelt Lofts’ conduct prior to the effective date of the confirmation order
(pre-effective date conduct). GSR’s
theory, as we understand it, was that this court reversed the judgment in the
prior appeal based on Roosevelt Lofts’ pre-effective date conduct and, under
the confirmation order, GSR did not assume and was immune from any successor
liability for Roosevelt Lofts’ pre-effective date conduct, and, therefore, GSR
was immune from our reversal of the judgment.
GSR
also contended that it was not a party to the prior appeal from the judgment
and, therefore, it could not be bound as a nonparty by our reversal of the
judgment. GSR claimed that because the
substitution of parties in the prior appeal was for the limited purpose of
preserving the judgment that it had acquired under the confirmation order, its
appearance in the appeal did not constitute a general appearance for
jurisdictional purposes.
B. The Bankruptcy Court’s Order of August
28, 2012
On August 28, 2012, the bankruptcy court issued a three-part
ruling in response to GSR’s motion for emergency relief. First, the bankruptcy court prohibited GSR
from using the alley for parking garage access during school hours (i.e.,
during the hours when a school located in the 700 Wilshire Building was in
session),
title="">[8] but allowed GSR to use the alley during
nonschool hours for parking garage access.
The bankruptcy court restricted GSR’s use of the alley during school
hours to “deliveries, trash pick-up, and tenant move-in and move-out vehicles
(the ‘Non-Car Use’).â€
Second,
the bankruptcy court held that the confirmation order had eliminated GSR’s
successor liability for Roosevelt Lofts’ pre-effective date conduct, but had
not eliminated GSR’s independent liability for its own conduct.
Third,
the bankruptcy court held that in any pending or future state court litigation
concerning the effect of the confirmation order on GS Roosevelt’s use of the
easement for parking garage access, “the following shall govern the application
of the Confirmation Order:
“(a) If the State Court finds that [GS
Roosevelt and Greystar] have independent liability for the use of the Easement
arising from [their] actions following the Effective Date, the Confirmation Order
shall not bar (i) the State Court from entering any appropriate order or ruling
against [them] or (ii) [District] or 700 Wilshire from continuing or commencing
the Litigation against [them].
“(b) If the State Court finds . . .
that (i) [GS Roosevelt and Greystar] have no such independent liability for the
use of the Easement arising from [their] actions following the Effective Date,
but (ii) ha[ve] liability solely as a successor to the Debtor, then the
Confirmation Order shall bar (ii[i]) the entry of any order or ruling against
[GS Roosevelt and Greystar] and (iv) [District] or 700 Wilshire from continuing
or commencing the Litigation or action against [GS Roosevelt and
Greystar]. If the State Court makes the
foregoing finding set forth in this Paragraph 8(b), then (A) the limitations on
[GS Roosevelt and Greystar’s] Car Use set forth in Paragraph 4 of this Order
shall have no further force or effect and (B) [District] and 700 Wilshire shall
not have the right to block or impede [GS Roosevelt and Greystar’s] access to
the Easement in any way.
“(c) If the State Court makes the findings set
forth above in Paragraph 8(b) of this Order, and additionally finds that [GS
Roosevelt and Greystar] have acted to gain liability under any order against
the Debtor in the Litigation (other than as a successor to the Debtor as
described in Paragraph 8(b)(ii) hereof), the Confirmation Order shall not bar
the State Court from entering any appropriate order or ruling against [GS
Roosevelt and Greystar].
“(d) Nothing contained herein shall bar
[District] or 700 Wilshire from commencing any lawsuit against [GS Roosevelt
and Greystar] solely arising out of or related to [their] post-Effective Date
actions.â€
Superior Court’s Order of October 1, 2012
On
October 1, 2012, the superior court applied the bankruptcy court’s August 28,
2012 order concerning the confirmation order to the easement issues in this
case. The superior court reasoned that: (1) because GSR had done nothing to incur any
independent liability for its use of the easement, its liability arises solely
from its status as a successor to Roosevelt Lofts; (2) according to the
bankruptcy court’s August 28, 2012 order, the confirmation order eliminated
GSR’s successor liability for Roosevelt Loft’s pre-effective date conduct; and
(3) because GSR is immune under the confirmation order from successor liability
for Roosevelt Lofts’ pre-effective date conduct, GSR is not bound by the
reversal of the judgment in the 700
Wilshire I appeal and the superior court may not enter any declaratory or
injunctive relief restricting GSR’s use of the alley.
The
superior court’s analysis was based on the following paragraph in the
bankruptcy court’s August 28, 2012 order:
“If the State Court makes the foregoing finding set forth in this
Paragraph 8(b) [i.e., GSR has liability only as a successor for Roosevelt
Loft’s pre-effective date conduct], then (A) the limitations on [GS Roosevelt
and Greystar’s] Car Use set forth in Paragraph 4 of this Order shall have no
further force or effect and (B) [District] and 700 Wilshire shall not have the
right to block or impede [GS Roosevelt and Greystar’s] access to the Easement
in any way.â€
The
superior court explained there was no evidence that GSR had incurred
“independent liability for the use of the easement arising from [GSR’s own]
actions following 08/09/2011 [the effective date of the confirmation
order].†The superior court further
stated: “Because the orders made by this
court are in personam, [GSR’s] liability is only as successor to [Roosevelt
Lofts] — therefore, under the order from the Bankruptcy Court[,] the Los
Angeles County Superior Court is barred from entering any order or ruling
against [GSR].â€
Bankruptcy Court’s Order of October 16, 2012
On
October 16, 2012, the bankruptcy court reviewed the superior court’s
October 1, 2012 ruling and, based on the superior court’s failure to find
any basis to impose “independent liability†against GSR: (1) lifted the bankruptcy court’s August 28,
2012 restriction on GSR’s use of the alley for parking garage access during
school hours; and (2) barred 700 Wilshire and District from blocking or
impeding GSR’s “access to or use of the Easement in any way.â€
In
its October 16, 2012 ruling, the bankruptcy court declared that it had made no
attempt to define the scope of the easement.
The bankruptcy court stated the state courts would be free to determine
“the scope of the Easement†and “the validity of any action taken by [Roosevelt
Lofts] to increase or affect the scope of the Easement.â€
Superior Court’s Order of January 10, 2013
On
January 10, 2013, the superior court considered the request by District and 700
Wilshire to enter an amended proposed declaratory judgment and injunction
(proposed judgment) prohibiting Roosevelt Lofts and its (unnamed) successors in
interest from using the alley for parking garage access.
mention GSR by name, it referred to GSR indirectly by: (1) attaching our opinion in
Wilshire I appeal, in which we discussed the substitution of GSR in place
of Roosevelt Lofts; and (2) purporting to bind Roosevelt Lofts’ “successors in
interest.â€
Because
the proposed judgment referred to GSR indirectly, the superior court refused to
sign it, stating the proposed judgment “seeks to do indirectly what the court
has already indicated it cannot do directly.â€
The superior court also concluded the proposed judgment would violate
the bankruptcy court’s October 16, 2012 order.
In the superior court’s view, it was prohibited by the bankruptcy
court’s October 16 order “from blocking GS Roosevelt’s and Greystar’s access or
use of the easement in any way. . . .
The proposed judgment would contradict this order from a court of
superior authority.â€
VII. The Present Appeal and Petition for Writ of
Mandate
On
October 26, 2012, District filed a notice
of appeal from the October 1, 2012 order denying its request to enter a
preliminary injunction and judgment against GSR. (No. B244809.)
On
March 25, 2013, District filed a petition for writ of mandate from the
January 10, 2013 order denying its request to enter a judgment and
injunction against Roosevelt Lofts and its (unnamed) successors in
interest. (No. B247683.)
On
April 30, 2013, we issued an alternative writ of mandate in which we directed
the superior court to either: (1) vacate
the January 10, 2013 order denying District’s motion for entry of judgment and
enter a new and different order granting the motion and enter the proposed
judgment and permanent injunction governing the uses of the easement; or (2)
show cause why a peremptory writ of mandate should not issue. After the superior court did not grant the
requested relief, we vacated the original hearing date on the petition and, on
our own motion, consolidated the petition and appeal for purposes of oral
argument and decision. On June 25, 2013,
we denied GSR’s motion to dismiss the appeal.
VIII. Judicial Notice
On
May 23, 2013, we granted District’s request to take judicial notice of certain
court documents that included the following information:
1. A new superior court action was filed on
January 8, 2013, by District and 700 Wilshire against GSR for quiet title,
declaratory relief, and an injunction.
(L.A. Super. Ct. Case No. BC498665) (Quiet Title Action). The suit was filed in response to GSR’s
contention that it was never a party to this action and, therefore, was not
bound by our reversal of the judgment in the 700 Wilshire I appeal.
2. GSR (appearing as Greystar) moved for
emergency relief in the bankruptcy court.
GSR sought to enjoin prosecution of the Quiet Title Action on the ground
that it violated the protections afforded to it under Roosevelt Lofts’
confirmation order.
3. On January 30, 2013, the bankruptcy court
denied GSR’s motion. The order stated in
relevant part as follows: “(2) This Court makes no ruling as to whether the
Appellate Opinion [in 700 Wilshire I]
the defendants in the Original Case is in
personam, it cannot be applied against Greystar except as stated in
paragraph 5 hereto. [¶] (3)
Any issues concerning the use of the easement from and after August 20,
2011, which was the Effective Date of the confirmed plan, can be litigated in
the state court against Greystar.
[¶] (4) Except as set forth in paragraph 5 hereto,
Greystar has no liability for any damages that may be awarded as to the use of
the easement or other actions that occurred prior to August 20, 2011. [¶]
(5) This Court makes no ruling as
to whether Greystar’s activities in the Original Case or during the appeal of
the Original Case constitute a waiver or other modification of the immunity
granted to Greystar under the Confirmation Order. This is a matter of state law and is to be
determined in the state court.â€
In
its appeal from the October 1, 2012 order denying its motion for a preliminary
injunction and judgment against GSR, District contends because GSR was a party
to the prior appeal, personal jurisdiction was obtained over GSR, which
therefore is bound as a party by our disposition of the prior appeal, and the
superior court had no valid grounds to deny its motion. We conclude District is correct and the
October 1 order must therefore be reversed.
As we made clear in our 700
Wilshire I opinion, using the alley for parking garage access would
overburden the easement and District is entitled to a judgment and injunction
against GSR, as a party to this action, prohibiting such use.
Before
discussing the merits of District’s appeal, we briefly address GSR’s renewed
motion to dismiss the appeal, which was previously denied on June 25,
2013. In its respondent’s brief, GSR
renews its motion to dismiss on the ground that the appeal was taken from the
denial of a motion to join a party, which is a nonappealable order. We disagree, however, with GSR’s contention
that the appeal was taken from the denial of a motion to join a party. The record supports only one reasonable
conclusion, which is that the appeal was taken from the refusal to grant an
injunction.
According
to its caption, the motion requested “an order that: (1) GS Roosevelt, LLC is a party to this
action for all purposes; (2) that GS Roosevelt, LLC is subject to this court’s
orders, including its order granting the District’s motion [for] preliminary
injunction; and (3) that judgment may be entered against it or, alternatively,
for an order naming GS Roosevelt, LLC as a party and to amend the proposed
judgment.†Based on the caption and the
facts of this case, the purpose and effect of the motion was to: (1) bind GSR to the preliminary
injunction entered against the Roosevelt Parties; and (2) enter a judgment
and permanent injunction against GSR.
When
the trial court denied the motion, it refused to grant a preliminary or
permanent injunction against GSR.
Accordingly, when District appealed from the denial of the motion, it
appealed from an order refusing to grant an injunction, which is an appealable
order. (Code Civ. Proc., § 904.1, subd.
(a)(6).) The motion to dismiss is
therefore denied.
Jurisdiction May Be Conferred by Appearing in an Action
District contends that GSR’s substitution for
Roosevelt Lofts in the prior appeal constituted a general appearance in which
GSR consented to this court’s jurisdiction and became bound, as a party, by all
orders issued in this case. GSR
disagrees and argues that it is not subject to this court’s jurisdiction
because: “(i) this Court must give full
faith and credit to the Bankruptcy Court orders holding that GSR cannot be
bound in the Underlying Action; (ii) the Underlying Action was brought and
prosecuted as an in personam action that cannot be transformed at this stage
into an in rem proceeding; (iii) GSR has not taken any action that
equitably or legally constitutes its consent to being bound in the Underlying
Action; and (iv) as a non-party, GSR cannot otherwise be bound in the
Underlying Action.†As we now explain,
we conclude that District has the more persuasive argument.
of Review
In
evaluating the court’s jurisdiction over GSR, we apply the de novo standard of
review. Where, as here, no
conflict in the evidence exists, the question of jurisdiction is purely one of
law and the reviewing court conducts an independent review of the record. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.)
GSR contends the denial of a motion
to join a party is subject to the abuse of discretion standard. As we previously discussed, however, we
reject GSR’s contention that the appeal was taken from the denial of a motion
to join a party. Because we believe the
dispositive issue is jurisdictional—whether GSR’s substitution for Roosevelt Lofts in the prior
appeal constituted a general appearance in which GSR consented to this court’s
jurisdiction and became bound, as a party, by all orders issued in this case—we
conclude the applicable standard is the de novo standard of review.
to Jurisdiction Generally
Code
of Civil Procedure section 410.50 provides:
“(a) Except as otherwise provided by statute, the court in which an
action is pending has jurisdiction over a party from the time summons is served
on him as provided by Chapter 4 (commencing with Section 413.10). A general appearance by a party is equivalent
to personal service of summons on such party.
[¶] (b) Jurisdiction of the court
over the parties and the subject matter of an action continues throughout
subsequent proceedings in the action.â€
“A
person’s consent to jurisdiction ‘may be expressed by words or by
conduct.’ (Rest.2d Conf. of Laws, § 32,
com. a, p. 130.)†(Szynalski v. Superior Court (2009) 172 Cal.App.4th 1, 7 (
equivalent to personal service of summons on that party. (C.C.P. 410.50(a); see Rest.2d, Conflict of
Laws § 33; Farmers & Merchants
Nat. Bank of Los Angeles v. Superior Court (1945) 25 C.2d 842, 846 . . . .)†(2 Witkin, Cal. Procedure (5th ed. 2008)
Jurisdiction, § 198, p. 808.)
“[A]
appearance as a ‘special appearance’ is not conclusive for purposes of
determining whether the party ‘consented’ to the court’s personal jurisdiction
by appearing in an action. (E.g., Greener
v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1037 [‘Notwithstanding
a “special appearance†designation on a motion to quash, if the movant seeks
relief on any basis other than lack of personal jurisdiction, he or she makes a
general appearance.’]; In re Clarke (1899) 125 Cal. 388, 392 [‘On
general principles, a statement that a defendant or party makes a special
appearance is of no consequence whatever. . . . [I]f he appears and asks for any relief which
could only be given to a party in a pending case, or which itself would be a
regular proceeding in the case, it is a general appearance, no matter how
carefully or expressly it may be stated that the appearance is special. It is the character of the relief asked, and
not the intention of the party that it shall or shall not constitute a general
appearance, which is material.’]; see generally, 2 Witkin, Cal. Procedure,
815-817.) Thus, a party’s effort to
restrict jurisdiction by a reservation is not necessarily conclusive.†(Szynalski, supra, 172 Cal.App.4th at p. 11.)
II. After GSR Was Substituted for Roosevelt Lofts in the Prior
Appeal, GSR Made a General Appearance and
Requested Relief That Is Available Only to a Party
It is
undisputed that in the prior appeal, GSR formally moved to be substituted in
place of Roosevelt Lofts for all purposes and we granted that motion. By appearing through its counsel and
defending the trial court’s judgment in the prior appeal on the merits, seeking
a rehearing of our reversal of the judgment, and petitioning the Supreme Court
for review of our decision, GSR sought relief that is available only to a
party. We conclude, as a matter of law,
GSR’s actions constituted a general appearance by which it consented to this
court’s jurisdiction. (
Cal.App.4th at pp. 10-11.)
GSR
never contested this court’s personal jurisdiction in the prior appeal. It was only after the matter was remanded to
the superior court that GSR purported to make a special appearance. By then, however, it was too late for GSR to
contest the superior court’s personal jurisdiction, for “[j]urisdiction of the
court over the parties and the subject matter of an action continues throughout
subsequent proceedings in the action.â€
(Code Civ. Proc., § 410.50, subd. (b).)
In other words, once personal jurisdiction is acquired, it continues
throughout the remainder of the litigation.
GSR’s
characterization of its appearance as a special appearance is “not conclusive
for purposes of determining whether the party ‘consented’ to the court’s
personal jurisdiction by appearing in an action. (E.g., Greener v. Workers’ Comp. Appeals
Bd. (1993) 6 Cal.4th 1028, 1037 [‘Notwithstanding a “special appearanceâ€
designation on a motion to quash, if the movant seeks relief on any basis other
than lack of personal jurisdiction, he or she makes a general
appearance’].)†(
Cal.App.4th at p. 11.)
III. Our Determination in the Prior Appeal—That 700 Wilshire and
District Were Entitled to Declaratory and Injunctive Relief Because the
Proposed Use of the Alley Would Overburden the Easement—Constitutes the Law of
the Case and Is Binding on GSR as a Party to This Action
In the prior
appeal, we concluded in relevant part that the Roosevelt Parties’ unilateral
decision to access the parking garage through the alley was not within the
normal development of the Roosevelt Building and would therefore overburden the
easement. We held that, in light of the
jury’s special findings and the applicable law pertaining to the shared use of
a common easement, 700 Wilshire and District were entitled to a judgment in
their favor on their claims for declaratory and injunctive relief.
We directed that upon completion of the new trial of
District’s fraud claim, which has since been severed from the other causes of
action, the superior court was to enter a new judgment that, consistent with
the views set forth in our opinion, granted appropriate declaratory and injunctive
relief to 700 Wilshire and District.
This
was a final determination that constitutes the law of the case and is binding
on all parties including GSR. As we
previously explained, GSR consented to this court’s personal jurisdiction when,
after filing a formal motion for substitution of parties and being made a
party, it defended the trial court’s judgment in the prior appeal, sought a
rehearing of our reversal of the judgment, and petitioned the Supreme Court for
review of our decision.
In
its respondent’s brief, GSR contends the superior court “correctly denied the
under the bankruptcy court’s confirmation order, it is immune from the
judgments and orders issued in this case.
GSR is mistaken on both points. First, the motion to make GSR a party was
superfluous because GSR has been a party to this action since the date of our
October 14, 2011 order granting GSR’s substitution motion. Second, the bankruptcy court’s confirmation
order has no bearing on our authority to prohibit GSR, as a party who is
subject to this court’s personal jurisdiction, from overburdening the easement
by using the alley to access the parking garage.
The
record is undisputed that the bankruptcy court has never defined or attempted to
define the scope of the easement or to determine whether allowing private
vehicles to access the parking garage through the alley would overburden the
easement. In its October 16, 2012
ruling, the bankruptcy court specifically stated that it was not defining the
scope of the easement but was leaving it to the state courts to determine “the
scope of the Easement†and “the validity of any action taken by [Roosevelt
Lofts] to increase or affect the scope of the Easement.†Accordingly, GSR’s contention that the
superior court was prohibited by the bankruptcy court from granting declaratory
or injunctive relief is not supported by the record.
In
its petition for writ of mandate, District is challenging the January 13, 2013
denial of its motion for a declaratory relief judgment and injunction against
Roosevelt Lofts and its (unnamed) successors in interest. Because District has prevailed on its appeal,
which will result in the entry of a judgment and injunction against GSR as a
party to this action, we dismiss the petition as moot.
DISPOSITION
In the appeal (No. B244809) from the October 1, 2012
order denying District’s motion to enter a preliminary injunction and judgment
against GSR, the order is reversed. The
matter is remanded with directions to grant the motion and to enter an
injunction and judgment against GSR in accordance with the views set forth in
this opinion. District is entitled to
its costs.
>
In the petition for writ of
mandate (No. B247683), the alternative writ is discharged and the petition is
dismissed as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
MANELLA, J.
name="_ftn1" title="">[1] The
bankruptcy court ordered that prospective purchasers be informed that if
“District is successful in its appeal(s), use of the alleyway by vehicles
entering or exiting the ground floor and upper level parking garage may be
restricted or prohibited. In such event,
ingress to and egress to and from the Roosevelt Building would still be
available through two separate access points on Flower Street (one which serves
the lower level parking areas, and one which serves the ground floor and upper
level parking areas). As a result, there
will still be ingress to and egress from two separate access points on Flower
Street, although traffic flow could potentially increase at the ground floor
access. Although traffic flow within the
Roosevelt Building garage on the ground floor could potentially become more
inconvenient if the District prevails on its appeal(s), there is no change in
the ultimate fact that parking on both the lower and upper levels at the
Roosevelt Building will remain available for resident and guest use. [¶]
The lawsuit does not concern or have any effect on the use of the lower
levels of the parking garage which will continue to have access via a separate
access point on Flower Street.â€
name="_ftn2" title="">[2] Rule
8.36(a) of the California Rules of Court provides: “Substitution of parties in an appeal or
original proceeding must be made by serving and filing a motion in the
reviewing court. The clerk of that court
must notify the superior court of any ruling on the motion.â€
