Tehrani v.Newport Sports Corp.

Filed 8/29/06 Tehrani v.Newport Sports Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed.

Glenn H. Johnson for Cross-complainant and Appellant.

No appearance for Cross-defendants and Respondents.

* * *

Introduction

In this opinion, we confirm that the processes used generally by the Superior Court of the State of California for the County of Orange and followed in this case comply fully with Code of Civil Procedure section 668.5,[1] and therefore affirm the trial court’s judgment. (As explained below, the appeal was taken from a nonappealable order. In our discretion, we have deemed the appeal to be from the judgment.)

Additionally, we find no abuse of discretion in the trial court’s denial of a motion for leave to amend to add a new defendant and a new cause of action, based on conduct occurring after the original judgment was entered.

Statement of Facts

This is the second time this court has considered this case. The facts underlying the parties’ claims are set forth in an earlier unpublished opinion by a different panel of this court. (Newport Sports Corporation v. Tehrani (Nov. 3, 2003, G030553).) A full recitation of those facts is unnecessary for resolution of the present appeal. In short, Newport Sports Corporation (Newport) filed a claim for declaratory relief regarding $135,000 being held in escrow, which represented the proceeds from the sale of a property owned by Newport. Shahnaz E. Tehrani asserted a lien against those proceeds based on a loan she made to David Kang, for which Kang pledged Newport’s assets as security. Tehrani filed a cross-complaint against Newport, D & W International Ltd., LLC, and Wei Yu Ren (collectively cross-defendants). During the pendency of the litigation, the disputed funds were interpleaded with the court pursuant to the parties’ stipulation. After a bench trial, the court concluded judgment must be entered in favor of Newport on its complaint and in favor of cross-defendants on Tehrani’s cross-complaint.

A judgment prepared by Newport’s counsel was signed by the trial judge and file-stamped by the court on November 5, 2001. On December 6, 2001, the finance office of the superior court issued a check to the Law Offices of Dieter K. Rapp Client Trust Account, apparently at the request of Dieter Rapp, then counsel for cross-defendants. (The facts regarding the disbursement of the interpleaded funds are based on statements from superior court personnel included in a declaration by Tehrani’s counsel. We have only hearsay to establish whether and how the money was, in fact, disbursed.)

In an earlier opinion, this court reversed the judgment with respect to the declaratory relief action and Tehrani’s first cause of action for claim and delivery, and remanded the matter for further proceedings. (Newport Sports Corporation v. Tehrani, supra, G030553.) On remand, another bench trial was conducted. Immediately before trial commenced, Tehrani filed a motion in limine asking the court to determine the November 2001 judgment was never entered, and to therefore order the interpleader account replenished. That motion was denied by the trial court. On January 26, 2005, the trial court entered judgment in favor of Tehrani, and against cross-defendants, jointly and severally.[2]

Before the second bench trial was conducted, Tehrani moved for leave to amend her cross-complaint to assert claims against Rapp for his impairment of Tehrani’s rights by taking the interpleaded funds, allegedly without providing her notice of entry of the November 2001 judgment. That motion was denied at a hearing on November 22, 2004.

Tehrani filed a notice of appeal on April 1, 2005, purportedly from the denial of the motion in limine on November 22, 2004.

Discussion

I.

Appealability

Initially, we consider whether we have jurisdiction over this appeal. The denial of a motion in limine is not an appealable order. (§ 904.1.) In our discretion, we deem the appeal to be from the judgment. (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69.)

Next, we address the fact the judgment was entered in Tehrani’s favor. Generally, a party cannot appeal from a judgment in his or her favor. (§ 902.) In this case, however, it would be inequitable to dismiss Tehrani’s appeal on this ground. In the earlier opinion, another panel of this court did not consider the issue raised by Tehrani then and now: “Because we find in Tehrani’s favor on the decisive issue of whether the trial court should have granted collateral estoppel effect to the decision . . . , we need not consider her contentions regarding the procedural irregularities surrounding disbursement of the escrow funds. Whether the funds were disbursed properly is irrelevant in light of our decision that the judgment must be reversed as to the declaratory relief action and as to the cause of action in Tehrani’s cross-complaint for claim and delivery.” (Newport Sports Corporation v. Tehrani, supra, G030553.)

II.

Entry of Judgment

Tehrani’s primary argument on this appeal is that the trial court improperly gave the interpleaded funds to Attorney Rapp in December 2001, because, she contends, the November 2001 judgment was never entered. Based on the statute addressing entry of judgments maintained on the court’s electronic data processing system, case law interpreting that statute, and the facts of this case, we conclude the trial court did not err in determining the original judgment was entered on November 5, 2001, and there was no failure to comply with section 668.5.

Section 668.5 provides: “In those counties where the clerk of the court places individual judgments in the file of actions and either a microfilm copy of the individual judgment is made, or the judgment is entered in the register of actions, or into the court’s electronic data-processing system, prior to placement of the judgment in the file of actions, the clerk shall not be required to enter judgments in a judgment book, and the date of filing the judgment with the clerk shall constitute the date of its entry.”

In County of Los Angeles v. Ranger Ins. Co. (1994) 26 Cal.App.4th 61, 65, the court clarified what is required by section 668.5: “In our view, section 668.5 contains two independent provisions concerning judgments rendered in counties which do not maintain judgment books: One prescribes the time and manner of entering judgments (by filing the judgment with the clerk), and the other specifies the manner of documenting entry of those judgments so as to provide a public record of the judgments (by entering them in the register of actions, or in the court’s data processing system, or by microfilming them). Neither portion of the statute is dependent upon the other for its effectiveness. Once a judgment is filed with the clerk, it is entered, and no subsequent action is required to effect entry of judgment.

Accordingly, we conclude that in those counties which do not maintain a judgment book but instead record the judgment by one of the methods authorized in section 668.5, all judgments are entered by the clerk’s filing of the judgment (which is the date of entry of judgment) without regard to the time that the judgment is placed in the court file.”

Here, the court services manager for the Superior Court of the State of California for the County of Orange declared: “The procedure used by the Superior Court for entering a judgment is as follows. The judgment is first signed by the judge. It is file stamped by the clerk. The information is then entered into the Court’s automated case[] management system. Thereafter, the judgment is placed in the case file. This is the procedure set forth by Code of Civil Procedure, Section 668.5.

. . . In the instant action, judgment was entered on November 5, 2001. The original judgment was signed by the Honorable Ronald L. Bauer and file stamped on November 5, 2001. It was input into the computer on November 7, 2001. Pursuant to the express provisions of Code of Civil Procedure, Section 668.5, the date of entry of judgment is the date of filing the judgment.” The court services manager’s declaration further states: “Based upon the Superior Court’s Civil Case Management Activity Report, the judgment was input into the electronic records on November 7, 2001.” Given the clear and unambiguous language of section 668.5, the date the judgment was filed with the clerk--November 5, 2001--constitutes the date of its entry. Nothing more was required to constitute entry of the judgment, and there was no failure on the part of the superior court to comply with section 668.5.

Tehrani claims the superior court’s automated case management system is not publicly viewable and therefore does not meet the requirements of section 668.5. Tehrani attached to her motion in limine copies of “the public record which were available to Tehrani.” One copy, which Tehrani obtained from the court on November 15, 2001, states: “05-Nov-2001 Judgment -- Other (Other -- Judgment)

In favor of plaintiff on the complaint; on the cross-complaint judgment is in favor of cross defendants Newport Sports C.” Another copy, obtained on July 30, 2002, reads: “05-Nov-2001 Judgment -- Other (Other -- Judgment)

In favor of plaintiff on the complaint; on the cross complaint judgment is in favor of cross defendants Newport Sports Corporation.”

Given this record, we must, as a matter of law, conclude section 668.5 was complied with. Tehrani’s counsel admitted he obtained and reviewed a copy of the court’s docket on November 15, 2001, which makes reference to the judgment filed November 5, 2001.

Tehrani’s response is that the reference in the court’s electronic data processing system to the judgment on November 5, 2001 is a reference to a minute order entered that day. The court did enter a minute order on November 5, 2001, denying Tehrani’s request for a statement of decision. The court’s electronic data processing system reflects that minute order being served on the parties by the clerk on November 14, 2001. We cannot accept Tehrani’s assumption that the reference to a judgment on November 5, 2001, refers to the minute order. “It is presumed that official duty has been regularly performed.” (Evid. Code, § 664.)

III.

Motion for Leave to Amend

Tehrani also argues the trial court erred by failing to grant her motion for leave to amend. The denial of a motion for leave to amend is reviewed for an abuse of discretion. (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1124.)

Regarding the motion for leave to amend, Tehrani’s appellate brief states: “Tehrani[‘s] second motion for leave to file an amended cross-complaint was filed for the purpose of adding opposing counsel, Dieter Rapp, as a party to defend a new cause of action for Interference with Contract.” The record on appeal includes a document entitled “Notice of Motion and Motion to Amend the Cross-complaint to Allege Additional Causes of Action and Add Parties; or, in the Alternative for Leave to Designate ‘Investors’ and Dieter Rapp as Roe Cross-defendants and for Leave to File a ‘Supplemental’ Pleading.” The proposed amended cross-complaint attached to the motion does not name Rapp as a cross-defendant, and no proposed supplemental pleading is included in the appellate record. The motion also includes an “Errata to the Proposed First Amended Cross-complaint,” which purports to change the title of one cause of action to allege a claim for interference against Rapp, although Rapp was never named or alleged as a cross-defendant. The reporter’s transcript indicates that on the day of the hearing, additional papers were filed further revising the motion; those papers do not appear in the appellate record, however. As the trial court noted, “I’m hard-pressed to deal with that motion [for leave to amend] because, honestly, I’m not sure what it is.” The trial court did not abuse its discretion by denying a motion that was, in essence, a moving target.

On the merits of the motion, it is clear the acts of interference by Attorney Rapp, which Tehrani sought to add to her cross-complaint, all occurred after the original judgment on the complaint and cross-complaint was entered. The trial court was well within its discretion to decline to permit amendment at that point based on those facts.

We find no abuse of discretion in the court’s denial of Tehrani’s motion for leave to amend. Tehrani is not barred from pursuing a separate action against Rapp, if her claim or claims meet general pleading requirements, including being brought within the applicable statute of limitations.

Disposition

The judgment is affirmed. Appellant shall bear her own costs on appeal.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] All further statutory references are to the Code of Civil Procedure, unless otherwise noted.

[2] On our own motion, we augment the record on appeal with the judgment in Orange County Superior Court case No. 00CC12463, filed January 26, 2005. (Cal. Rules of Court, rule 12(a)(1)(A).)