Santa Monica Properties v. A/R Capital

Filed 2/14/07  Santa Monica Properties v. A/R Capital CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SEVEN

            APPEAL from an order and a judgment of the Superior Court of Los Angeles County.  Teresa Sanchez-Gordon, Judge.  Affirmed.

            Cecil McNab for Cross-Defendants and Appellants.

            No appearance for Cross-Complainant and Respondent Santa Monica Properties.

            David Lynn for Respondent David Lynn.

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            A/R Capital, LLC (A/R) appeals from the trial court's order denying its motion to vacate a judgment in favor of Santa Monica Properties (SMP) on a cross-complaint.  A/R based its motion on the ground SMP was a suspended corporation which lacked the capacity to prosecute its cross-action.  Because A/R's challenge to the judgment on this basis came too late -- after the judgment was final -- we affirm the trial court's order.

            Cecil McNab challenges the trial court's denial of three motions he brought after the court granted his motion for judgment on the pleadings on SMP's cross-complaint: a motion for return of monies he paid as sanctions during the course of the litigation, a motion for attorney fees, and a motion for sanctions against SMP's attorney.  Because none of these motions has merit, we affirm.

FACTS AND PROCEEDINGS BELOW

            In April 1998, A/R and SMP[1] entered into an agreement pursuant to which they would purchase and manage several Good Nite Inn hotels.  In April 2000, A/R sued SMP, Good Nite Inn, Inc. and individual Eric Yokeno[2] alleging each had breached the agreement to provide management services to hotels operated by A/R.  In January 2001, SMP filed a cross-complaint against A/R for breach of contract and breach of fiduciary duty, adding as cross-defendants A/R's two owners, Cecil McNab and Hillary Shockley.[3]

            After a discovery dispute, on March 15, 2002, the trial court granted terminating sanctions against A/R, McNab and Shockley.  The court entered judgment for SMP and

Yokeno on the complaint and struck the cross-defendants' answers.  On September 26, 2003, the court entered judgment on the cross-complaint in the amount of $5,415,311.25 in favor of SMP (using the incorrect name â€