Pacific Trust Escrow v. Ryazanskiy

Filed 8/30/07 Pacific Trust Escrow v. Ryazanskiy CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, James P. Gray, Judge. Appeal dismissed.

Law Offices of Yevgeniya G. Lisitsa and Yevgeniya G. Lisitsa for Defendant and Appellant.

Carlson Law Group, Mark C. Carlson and Mitchell M. Tarighati for Plaintiff and Respondent.

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Defendant Vladimir Ryazanskiy appeals from orders denying his motion for judgment on the pleadings on plaintiff Pacific Trust Escrow, Inc.s complaint for interpleader and granting plaintiffs motion for discharge from the action. We conclude neither order is appealable and dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff served as the escrow holder for the refinancing of defendants primary residence in October 2005. A year earlier, defendant had been sued by United Yellow Pages, Inc. (United) for alleged nonpayment of advertising fees.

On December 14, 2005, United sent plaintiff a letter demanding that none of the remaining refinancing funds be released to defendant. Uniteds demand was based on a court order it had obtained the same date for the issuance of a writ of attachment in the amount of $127,174.11 and a temporary protective order prohibiting defendant from encumber[ing], refinanc[ing] or other wise [sic] enter[ing] into any sale or refinance of the property. At the time plaintiff was served with the order, it held $248,612.27 as proceeds from the refinance.

On the same date as Uniteds letter, defendant also demanded that plaintiff release the funds to him. He repeated the demand orally the next day and in writing the day after that.

Following the third demand, defendant sued plaintiff in Los Angeles Superior Court. On January 20, 2006, the court ordered plaintiff to release to defendant all funds in excess of $127,174.11. Plaintiff did so but continued to hold the remaining amount in escrow.

On February 2, 2006, plaintiff filed a complaint in interpleader in Orange County Superior Court and deposited the remaining amount with the court. After an unsuccessful demurrer to the interpleader complaint, defendant filed a motion for judgment on the pleadings. The trial court denied the motion.

By the time defendants motion for judgment on the pleadings was heard, plaintiff had filed a motion for discharge. The court granted the motion, dismissed plaintiff from the interpleader action, and awarded plaintiff attorney fees and costs.

DISCUSSION

Defendant purports to appeal from the order denying his motion for judgment on the pleadings and the order granting plaintiffs motion for discharge. Neither is an appealable order. (Neufeld v. State Bd. of Equalization (2004) 124 Cal.App.4th 1471, 1476, fn. 4 [An order granting or denying a motion for judgment on the pleadings is not an appealable order because it is not final, but only a preliminary or interlocutory order]; Lincoln Nat. Life Ins. Co. v. Mitchell (1974) 41 Cal.App.3d 16, 20 [interpleader order dismissing the plaintiff and requiring remaining parties to resolve dispute as to deposited funds is interlocutory and not appealable until ultimate resolution of claims]; cf. Sweeney v. McClaran (1976) 58 Cal.App.3d 824, 827-828 [only grant of attorney fee provision of order discharging stakeholder from liability was appealable].)

Defendant acknowledges that an order denying a motion for judgment on the pleadings is not a final adjudication, but contends the order in this case is because final judgment has been entered. According to defendant, the final judgment was the order dismissing plaintiff from the interpleader action. But he did not appeal from that order. The notice of appeal states defendant is appealing from the order . . . on [m]otion for [d]ischarge. Attached to the civil case information statement as a copy of the judgment or order appealed from is the minute order granting the motion to discharge

plaintiff. The order dismissing plaintiff from the interpleader action was not entered until two months later, over a month after defendant had filed his appeal.

Even if we treat the notice of appeal as having been taken from the latter order, the result would be the same. Because the order made no final disposition of the funds deposited by plaintiff in court, it is not appealable. (Lincoln Nat. Life Ins. Co. v. Mitchell, supra, 41 Cal.App.3d at p. 20.)

Plaintiff cites no contrary authority. The case he relies on, Neilsen v. Saylors (1956) 146 Cal.App.2d 139, merely confirms that an order in interpleader for the deposit of funds and discharge of the stakeholder is interlocutory and not appealable. (Id. at pp. 140-141.)

During oral argument, defendant advised the entire case had concluded, a final judgment had been entered, and the remainder of funds deposited in court by plaintiff had been released to him, except for the deduction of costs and legal fees. But he did not appeal from that final judgment and no final judgment appears in the record on appeal. Moreover, given defendants recovery of the remaining funds and the fact the interpleader action did not impair his right to pursue an action against plaintiff for wrongful withholding of the funds, plaintiffs right to interplead under the facts of the case is purely an academic question that we will not resolve. (Wells Fargo Bank, N.A. v. Zinnel (2004) 125 Cal.App.4th 393, 400.)

DISPOSITION

The appeal is dismissed. Respondent shall recover its costs on appeal.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

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