Firemans Fund Ins. v. McColm

Filed 5/11/07 Firemans Fund Ins. v. McColm CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Introduction

Plaintiff and appellant Firemans Fund Insurance Companies had a judgment of dismissal entered against it after the trial court granted respondent George C. McColms motion to dismiss for failure to bring the action to trial within five years, pursuant to Code of Civil Procedure section 583.360.^[1]Appellant filed a notice of appeal against the judgment of dismissal in May 2005, and this court dismissed the appeal in December 2005 for failure to procure the record pursuant to former California Rules of Court, rule 8(b) (currently rule 8.140). While this appeal of the judgment of dismissal was pending, the trial court set aside the judgment of dismissal pursuant to appellants motion under section 473, subdivision (b). Respondent then filed a motion to vacate that order. After a hearing on the matter, the trial court granted respondents motion to vacate its prior order setting aside the judgment of dismissal. However, the trial court did not rule on, or notice further hearing on, appellants section 473 motion. Firemans Fund now appeals the order reinstating the judgment. As explained more fully below, we affirm the judgment on a ground different from that relied on by the trial court, namely, the trial court was without jurisdiction to hear appellants section 473 motion while the first appeal was pending. ( 916).

Background

We recite only those parts of the tortured procedural history in this case necessary to the resolution of the issues before us. On September 4, 1998, Firemans Fund filed its complaint for declaratory relief and injunction. The complaint stated the action concerned a property in San Francisco owned by Patricia McColm, respondents daughter. As relevant to these proceedings, the complaint alleged: In November 1992, judgment was entered in favor of appellants insured against Patricia McColm in the amount of $72,949.48, plus interest; appellants insured assigned the judgment to appellant; after entry of judgment, Patricia McColm began encumbering her property by, among other things, granting her father George McColm a Deed of Trust in the Subject Property in the amount of $124,500.00 in March 1995; the March 1995 deed of trust by Patricia McColm to her father George McColm was fraudulent in that it was intended to encumber the subject property to protect the property from execution of plaintiffs judgment. On September 25, 1998, appellant filed an amended complaint naming Patricia McColm and respondent as additional defendants, and added allegations of fraud, conspiracy and racketeering against them.

On February 28, 2005, more than six and a half years after appellant filed its complaint, respondent filed a motion to dismiss for failure to prosecute under section 583.360, asserting appellant failed to prosecute the above-entitled action as to any defendant and to bring it to trial within five years after it was commenced against the defendants in this action. Respondent noticed the hearing for his motion on March 23, 2005. On March 15, 2005, respondent filed a notice of non-opposition to his motion to dismiss, stating the opposition brief should have been served and filed at least nine court days before the hearing, and objecting to any late-filed brief.

The hearing on respondents motion to dismiss took place as noticed on March 23, 2005, before the Honorable James Warren. Respondent appeared by telephone. The trial court recited its tentative ruling on the motion to dismiss, stating: I am then taking your notice of motion to dismiss this case for failure to prosecute. Its a CCP section 583.360 motion. This case as I just indicated was filed back in 1998. More than five years has passed. The fact that it was remanded to federal court doesnt really make any difference for purposes of this. There was an invalid default taken by Firemans Fund. That doesnt toll anything. There is also no opposition that has been filed timely to your motion. [] Accordingly, your motion to dismiss this case for lack of prosecution is granted . . . . Thats the tentative.

Counsel for appellant argued time was tolled under section 583.340 when the case was under a bankruptcy stay, and also during the time default judgments were in place. The trial court declined to consider counsels arguments on the merits because no opposition was filed in a timely basis. The trial court refused to consider appellants belated opposition brief, stating: I cant consider it. . . . I dont think your argument on the merits is appropriate at this stage because there was no opposition timely filed. Counsel for appellant asked: May I speak to the opposition untimely filed? The trial court responded: You can but not in this proceeding, not at this time. I dont know what you are going to do in the future but I cant get into the arguments on the merits here. The trial court then adopted its tentative ruling, and granted respondents motion to dismiss under section 583.360.

The trial court entered judgment of dismissal on March 23, 2005, and respondent served appellant with a copy of the judgment by mail the same day. Appellant filed a notice of appeal on May 20, 2005. On June 6, 2005, the trial court clerk notified appellant it had failed to designate the record on appeal. On November 16, 2005, the trial court clerk notified appellant it had failed to deposit fees for preparation of the clerks transcript. On December 6, 2005, the trial court clerk notified this court appellant was in default for failure to deposit fees for a clerks transcript. On December 12, 2005, this court dismissed the appeal for failure to procure the record pursuant to former California Rules of Court, rule 8 (b) (currently rule 8.140). (See Court of Appeal, First District docket in A110580.)

Meanwhile, on August 29, 2005, appellant filed a notice of motion and motion to set aside the judgment of March 23, 2005. Appellant noticed its motion for hearing on September 26, 2005. Appellant requested relief from judgment pursuant to section 473, subdivision (b), contending the entry of judgment was due to its counsels mistake, inadvertence, surprise, or [excusable] neglect in failing to file an opposition brief.

On December 9, 2005, the Honorable Paul Alvarado entered an order to set aside the March 2005 order of dismissal. The order states: The Motion of Plaintiff, FIREMANS FUND INSURANCE COMPANIES, for an order setting aside the prior court Order dismissing the case, was regularly heard at the above date and time [September 26, 2005, at 9:00 a.m.]. There were no appearances on behalf of any of the parties, and the tentative ruling granting the motion was adopted. The trial court set aside the March 2005 judgment and restored the case to the Civil Active Calendar.

On December 28, 2005, respondent filed a notice of motion to vacate and set aside void order to set aside the order of dismissal, and noticed a hearing for January 27, 2006. Respondent contended the December 2005 order setting aside the March 2005 judgment was void because the trial court lacked jurisdiction to enter the order and because he was not properly served with the moving and supporting papers. In its opposition to respondents motion, appellant submitted the declaration of Kristine Kahoalii attesting to the proof of service showing she mailed notice of the motion to set aside entry of default to respondent at his San Francisco post office box.

The parties appeared before Judge Alvarado at a hearing on respondents motion on January 27, 2006. The trial court addressed respondents objection that the December 2005 order should be set aside because appellant had filed an appeal of the 23 March 05 order dismissing the case, and therefore, this court had no jurisdiction when it acted and granted the December 6th, 05 order which set aside the granting of dismissal. The trial court overruled this objection as follows: Well, it seems to me there is also an issue of C.C.P. 916 talks about the fact that perfecting of the appeal stays the proceedings in trial court, and the question is whether . . . anyone perfected the appeal, you need to file a stay bond, and so I dont ― there is no evidence at all about whether a stay bond was filed. So if a stay bond was not filed, then the court still had jurisdiction.

However the trial court also noted it had granted appellants motion to set aside the March 2005 judgment pursuant to section 473, subdivision (b), because there was no opposition. The court stated respondent and another party filed declarations stating they did not receive notice of the motion. The court observed: [S]o it seems to me its a question of credibility. [] If I find that their declarations are credible, and that they received notice after the date of the hearing on the motion, then it would seem to me that we would go back to your ― in effect, have a hearing on your initial motion . . . to set aside the order granting the dismissal. The hearing concluded after the trial court took the matter under submission.

Subsequently, on February 17, 2006, the trial court filed an order stating: Defendants Motion to Set Aside the Courts December 9, 2005 Order be and hereby is GRANTED because the Court finds, relying strongly on Defendant George L. McColms declaration, that Defendant George L. McColm was never properly served with Plaintiffs motion to set aside order of dismissal. On April 18, 2006, appellant fax-filed its notice of appeal against the ruling of. . . February 17, 2006, granting defendant George McColms Motion for Order to Set Aside Prior Order of the Court, dated December 9, 2005, which set aside the judgment of dismissal entered on March 23, 2005.

DISCUSSION

Code of Civil Procedure section 916 states, subject to certain exceptions not relevant here, that the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. ( 916, subd. (a) [italics added].)^[2] The purpose of the automatic stay provision of section 916, subdivision (a) is to protect the appellate courts jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it. [Citation.] (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.)

To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings upon the matters embraced in or affected by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. [W]hether a matter is embraced in or affected by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment . . . proceedings on the matter would have any effect on the effectiveness of the appeal. [Citations.] If so, the proceedings are stayed; if not, the proceedings are permitted. [Citation.] (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 189.)

In this regard, any proceeding directly or indirectly seek[ing] to enforce, vacate or modify [the] appealed judgment or order[] affects the effectiveness of the appeal, is subject to automatic stay, and therefore the trial court lacks jurisdiction to hear it. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at pp. 189-190; Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629 [The trial courts power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending.]; Copley v. Copley (1981) 126 Cal.App.3d 248, 298 [During the pendency of an appeal, the trial court is without power to hear a motion to vacate judgment from which an appeal has been taken [citations].].) Similarly, the judgment of dismissal in this case was subject to the automatic stay upon filing of the first notice of appeal on May 20, 2005.^[3] Therefore, the trial court lacked jurisdiction to consider appellants August 2005 motion to set aside the judgment of dismissal pursuant to section 473, subdivision (b). (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344 [trial court loses jurisdiction over matters embraced in the judgment when the appeal was perfected]; Betz v. Pankow (1993) 16 Cal.App.4th 931, 938 [holding that an appeal precludes the trial court from vacating the appealed judgment or order].) Accordingly, because the trial court lacked jurisdiction to set aside the judgment of dismissal under section 473, we affirm its subsequent order of February 17, 2006, revoking the section 473 order. Thus, appellants contention, that the trial court abused its discretion by revoking the section 473 order for lack of proper service, is moot.

DISPOSITION

The order reinstating the judgment of dismissal is affirmed. Firemans Fund shall bear the costs of appeal.

_________________________

Parrilli, Acting P. J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.

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^[1] Further statutory references are to the Code of Civil Procedure unless otherwise noted.

^[2] Unless other requirements are specified by statute (Code Civ. Proc.,  917.1 to 917.9), an appeal is perfected upon filing of the notice of appeal in the trial court. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  21, p. 82 [Generally speaking, the taking or perfecting of an appeal (by filing notice of appeal; see post,  453), deprives the trial court of jurisdiction of the cause]; California Rules of Court, rule 8.100(a) [To appeal from a superior court judgment . . . appellant must serve and file a notice of appeal in that superior court.]; Diesel Const. Equipment Co. v. Neveils (1963) 214 Cal.App.2d Supp. 877, 880-881 [filing of the notice of appeal divests trial court of jurisdiction]; Kadota Fig Assn. v. Case-Swayne Co. (1946) 73 Cal.App.2d 815, 822, [167 P.2d 523] [all that is now required to perfect the appeal is to file with the clerk the notice thereof].)

^[3] The trial court erroneously concluded the first appeal was not perfected by the filing of the notice of appeal because there is no evidence at all about whether a stay bond was filed. But the judgment appealed from was a judgment of dismissal in favor of defendant, not a money judgment against appellant, so appellant was not required to post security in order to perfect the appeal. ( 917.1; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2006) 7:70 to 7:72, pp. 7-25 to7-26; 7:95 to 7:100, pp. 7-28.3 to 7-28.5.)