Opinion
C049917
12-8-2006
EDWARD BENT, Plaintiff and Appellant, v. RIVERGATE COMMONS et al., Defendants and Respondents.
Plaintiff Edward Bent appeals in propria persona from a judgment dismissing an action against Rivergate Commons, Liz Franco, James Boyd, Ronald Harper, and Katzakian Property Management Company after the trial court sustained the defendants demurrer to Bents fifth amended complaint. Bent, a condominium owner, alleged he suffered damages because of mold growth. He seeks to hold defendants responsible because of an alleged obligation to repair the alleged defects.
Bent also named Allstate Insurance Company as a defendant and respondent. We granted defendant Allstates motion to dismiss the appeal against it; therefore, we do not address any of the arguments Bent makes on appeal with respect to defendant Allstate.
Bents amended complaint is fatally uncertain with respect to the nature of his injury and defendants responsibility for the injury. A complaint must state the essential facts upon which a determination of the controversy depends with clearness and precision, leaving nothing to surmise. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) A complaint that fails to plead clearly the essential facts of the case is subject to demurrer for uncertainty. (Ibid.) Although Bents complaint suffers other defects, the problem of uncertainty pervades the entire pleading. We shall conclude the trial court properly sustained the demurrer, and shall affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
This is an action by a condominium owner (Bent) against his condominium association (Rivergate Commons), its officers (Harper and Boyd), and the associations managing agent (Katzakian and Franco). Bent contends the defendants have failed to appropriately repair and maintain "parts of the structures and land at the Rivergate Commons," otherwise undescribed, resulting in damage to him and to his property. The operative complaint (the fifth amended complaint) attempts to state both breach of contract and tort causes of action arising out of this alleged failure.
Bents statement of facts in his opening appellate brief contains many factual statements not alleged in his fifth amended complaint. For example, he claims the Covenants, Conditions and Restrictions (CC&Rs) for Rivergate Commons provided the association would maintain common walls, roofs, and drainage, and that a common wall in his condominium unit had been damaged by water that had come through a hole in the exterior of the wall. He claims when he requested that the defendants inspect the wall and make repairs, he was told the maintenance of the common wall was his responsibility. On appeal from a judgment of dismissal after the trial court has sustained a demurrer, we accept only the well pleaded allegations of the complaint. (General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1171, fn. 1.) We shall ignore those statements of fact in appellants brief that are not also allegations of the complaint.
This action was commenced in December 2002. The plaintiffs, appearing in pro per, were Bent and Thomas and Lynne Mantz. The Mantzs were tenants occupying Bents condominium unit. They requested a dismissal of the action, and are no longer parties to the action.
After Bent amended his complaint four times, and after Judge Bob McNatt had issued at least six orders in the case, Bent filed a request to disqualify Judge McNatt on the ground he was "most probably going to be called as a witness[.]" Bents request to disqualify Judge McNatt was denied by Judge Peter Saiers.
Thereafter, Bent filed his fifth amended complaint, to which defendants demurred. At the hearing scheduled on the demurrer to the fifth amended complaint, Bent informed Judge McNatt that he had contacted the Judicial Council regarding disqualification of Judge McNatt. Judge McNatt gave the parties the option of continuing the matter until the Judicial Council acted, or reassigning the matter to another judge. The parties agreed to a reassignment. The minute order indicated Judge McNatt recused himself "pursuant to [Code of Civil Procedure section] 170.1.6(c)[.]" The court set the matter for February 15, 2005, and stated the parties would be advised as to the department that would hear the demurrer. On February 2, 2005, defendants attorney wrote Bent a letter advising him the case had been reassigned to Judge Saiers in Department 13. However, there is no indication in the record that the court notified Bent of the department in which the demurrer would be heard. Bent did not appear at the hearing, and the court (Judge Saiers) sustained the demurrer to the fifth amended complaint without leave to amend. Although Judge Saiers heard and sustained the demurrer, the written order was signed by Judge McNatt.
Bent filed a motion for relief from default pursuant to Code of Civil Procedure section 473. He argued that relief was warranted because he had not been notified by the court of the department in which the demurrer would be heard. The plaintiff also claimed he filed a sixth amended complaint prior to the hearing on the demurrer, and that the fifth amended complaint (on which the demurrer was sustained) was no longer the operative pleading.
References to section of an undesignated code are to the Code of Civil Procedure.
A complaint may be amended once as a matter of course before the answer or demurrer is filed or before trial of an issue of law raised in the demurrer. (§ 472.) After that, the complaint can be amended only with permission of the court. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612-613.) There is no indication in the record that Bent requested permission to file a sixth amended complaint.
Thereafter, on May 12, 2005, Judge Saiers entered an order dismissing the complaint, entering judgment, and awarding defendants costs of suit. Bent then withdrew his motion for relief from default without prejudice because he had been unable to obtain hearing transcripts to support the motion.
On May 31, 2005, Bent filed a notice of appeal "from all aspects of the May 12, 2005 orders of dismissal of the Superior Court in the above-entitled cause, including award or fixing of attorneys fees."
On June 29, 2005, Judge Saiers entered a judgment for costs in favor of defendants pursuant to their memorandum of costs in the amount of $26,614.60.
DISCUSSION
I
The Demurrer was Properly Sustained
The fifth amended complaint contained 16 causes of action, each of which Bent claims the trial court improperly sustained. We disagree, and shall affirm the judgment of dismissal.
The standard for reviewing the sufficiency of a complaint after a demurrer has been sustained without leave to amend is well settled. "`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
A. Breach of Written Contract
The first cause of action alleged that the Bylaws, Articles of Incorporation, and CC&Rs of Rivergate Commons constituted a written contract between defendants and Bent. It alleged defendants breached the written contract by "failing to cause physical repairs and maintenance to be done on the parts of the structures and land at the Rivergate Commons Common Interest Development . . . , [and] refusal to allow [Bent] to have access to records . . . ."
A cause of action for breach of a written contract must plead the contract terms verbatim, or must attach and incorporate the contract by reference. (Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459.) Neither the Bylaws, Articles of Incorporation, nor CC&Rs were incorporated into the complaint. In fact, the complaint does not allege what contract terms were breached. The demurrer to this cause of action was properly sustained.
B. Breach of Implied Contract
Bents second cause of action for breach of an implied contract incorporates the allegations of the first cause of action, and alleges the defendants were "obligated to act in a competent, professional and honest manner" and that they breached this obligation by failing to make repairs at Rivergate Commons and failing to release information to Bent.
An implied contract is one whose existence and terms are manifested by conduct. (Civ. Code, § 1621.) It arises from "mutual agreement and intent to promise where the agreement and promise have not been expressed in words." (Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762, 773.) A complaint alleging a cause of action for breach of implied contract must state the facts, such as a practice or course of conduct, from which the promise is implied. (California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1134.)
Bents implied contract cause of action alleges defendants breached the contract by failing to make repairs and by failing to release information, but it does not allege any facts from which an unexpressed mutual agreement or intent to promise may be implied. As alleged, the complaint is insufficient to state a cause of action for breach of implied contract.
C. Conversion
Bents third cause of action alleged the board of Rivergate Commons was entrusted with the disbursement of funds from the settlement of a lawsuit, and that the funds were for the purpose of correcting defects in Bents condominium and the common areas. Bent alleged the funds were not properly disbursed, but were converted by the board members. He claimed the conversion took place in 1996, 1997, and 1998. He alleged he attempted to research the allocation of the funds in 2002 and 2003, but defendants "dilatory conduct" made the research impossible.
The statute of limitations for conversion is three years from the wrongful taking. (§ 338, subd. (c); Strasberg v. Odyssey Group, Inc. (1996) 51 Cal.App.4th 906, 915-916.) The statute may be tolled where a fiduciary fraudulently concealed the material facts giving rise to the cause of action. (Id. at p. 916.) Bent did not allege fraudulent concealment during the running of the statute of limitations. He merely alleged his attempts to research the matter after the statute of limitations had run were thwarted. This pleading is insufficient to allege that the facts giving rise to the cause of action were fraudulently concealed from him so that he was unable to bring an action within the time allowed.
Bent argues a four year statute of limitations is applicable pursuant to the holding in Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379 (Cutujian). In Cutujian, the court held that the statute of limitation to enforce the disputed provision of CC&Rs commences when a demand for performance is made. (Id. at pp. 1384-1385.) Bents cause of action for conversion of funds is not a cause of action to enforce the provisions of the CC&Rs, thus Cutujian is inapplicable.
The elements of a cause of action for conversion are: "`"(1) plaintiffs ownership or right to possession of the property at the time of the conversion; (2) defendants conversion by a wrongful act or disposition of plaintiffs property rights; and (3) damages." [Citation.]" (Messerall v. Fulwider (1988) 199 Cal.App.3d 1324, 1329.) In an action for conversion, the plaintiff must establish he had possession or the right to immediate possession of the property at the time of the alleged conversion. (Pope v. National Aero Finance Co. (1965) 236 Cal.App.2d 722, 731.) Bent has not alleged any facts indicating he a right to immediate possession of the funds from the settlement of the unnamed lawsuit. The demurrer was properly sustained as to this cause of action.
D. Defalcation
Bent alleged that "if the funds referred to in the Third Cause of Action of this Complaint were not willfully taken in a manner such to constitute Conversion under the law, then said funds were misappropriated in such a manner to constitute Defalcation."
Defalcation is not a recognized tort cause of action in California. As pled, Bents pleading is too vague. It is not clear how or if this cause of action differs from one for conversion. In any event, the statute of limitations for the taking of goods or chattels is three years. (§ 338, subd. (c).) Thus, the fourth cause of action is barred by the statute of limitations.
E. Fraud
Bents fraud cause of action alleged, "the concealment of the information above complained of (during the actual misallocation of funds, and after the misallocation of funds) constitutes the dissemination of deliberately false information for the express purpose of enriching defendants at the expense of [Bent]." Bent alleged he was harmed by his reliance on the misrepresentations. Since no affirmative representation is alleged, we will assume the fraud cause of action is based on concealment.
The elements of a cause of action for fraud based on concealment are: "`(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. [Citation.] [Citation.]" (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 665-666.) Every element of a fraud cause of action must be factually and specifically alleged, and the policy of liberal construction will not save a defective complaint. (Cooper v. Equity Gen. Insurance (1990) 219 Cal.App.3d 1252, 1262.)
The fifth cause of action for fraud was directed to all defendants except Allstate. Bent does not allege who concealed information from him, or when such concealment occurred. Not having alleged who concealed the information, Bent cannot claim any fiduciary duty on the part of such unknown person to disclose information. It is not clear what information was concealed. Certainly, defendants could not have concealed the fact the funds they received were not used to repair Bents condominium unit. He necessarily would have known that repairs to his condominium were not made. It is not clear how defendants intended Bent to rely on any concealment, or in what manner he relied on the concealment. In short, the complaint is vague and ambiguous, and insufficient to state a cause of action for fraud by concealment.
F. Breach of Fiduciary Duty
Bent alleged that the members of the board of directors of Rivergate Commons (specifically Boyd, Harper, and Doe VII) had a fiduciary duty to protect his interests in accordance with Civil Code section 1365.5. That section provides at subdivision (c)(1) that the board may not use reserve funds for any purpose other than the repair, restoration, replacement, or maintenance of the major components for which the reserve fund was established. Bent alleged that from 2001 through 2003, the board members breached their fiduciary duty to repair, replace, and maintain.
Bent has not alleged that Rivergate Commons had a reserve fund or for what purpose such a reserve fund might have been established. He has not alleged the board used a reserve fund for any purpose other than that for which it was established.
Homeowners associations owe a fiduciary duty to their members for the maintenance and repair of public areas. (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 650-651.) However, Bent has not alleged any facts to show that Rivergate Commons or its officers breached their fiduciary duty to repair and maintain the common areas of the condominium complex, or in what manner such a failure might have harmed Bent. Accordingly, Bent has not sufficiently stated a cause of action against Boyd, Harper, and Doe VII for breach of the fiduciary duty to repair and maintain the common areas of Rivergate Commons.
Bent also alleged defendant Katzakian was hired to manage Rivergate Commons, and on that basis had a fiduciary duty to protect his interests. We are, however, aware of no such duty owed to a member by a manager hired by the association, and Bent has offered no authority for such a claim. The demurrer was properly sustained as to the allegations of breach of fiduciary duty against Katzakian and the other defendants.
G. Fraud
Bent attempted to state a second fraud case of action, claiming that Doe IV made "wrongful representations" to Bent and to unidentified third persons. The complaint alleged, "[s]aid wrongful representations included but were not limited to: leading [Bent] to believe that his personal insurance needs as a homeowner would be taken care of as part of a policy purchased from Defendants DOE IV, and ALLSTATE." Bent further alleged he relied upon this false information, and that he suffered damages. Bent also alleged defendants Franco, Boyd, Rivergate, Harper, and Katzakian conspired with Doe IV to file insurance applications they knew were false. He alleges the unnamed recipient of the information reasonably relied on it, and as a result of the unnamed recipients reliance, Bent suffered harm.
As explained, every element of a fraud cause of action must be factually and specifically alleged. This means the plaintiff must plead facts to "`show how, when, where, to whom, and by what means the representations were tendered." [Citation.]" (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) In this case, Bent has failed to plead who made the false representation, to whom it was made, when it was made, or how it was made. There is no allegation that Bents wrongful allegations resulted in damage. The allegations that someone relied on false insurance applications, and that Bent was harmed do not sufficiently allege that Bent relied on these misrepresentations to his harm. The seventh cause of action for fraud is thus fatally flawed.
H. Slander and Libel
Bents eighth and ninth cause of action alleged slander and libel, respectively, for the allegedly slanderous statements, "to the effect of: [Bent] was financially irresponsible; [Bent] was irresponsible as a homeowner; [Bent] filed frivolous lawsuits; and [Bent] is the cause of the Associations insurance and other financial problems[,]" and the allegedly libelous statements "about [Bents] general character[.]"
Defamation is "the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage." (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Statements of opinion do not fall within the definition of a statement of fact. (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 444-445.) The alleged statement that Bent was financially irresponsible and irresponsible as a homeowner fall into the category of statements of opinion because they involve "an application of an ethical standard to facts, reflecting the exercise of judgment[.]" (Ibid.) As such they are not actionable.
The statements that Bent filed frivolous lawsuits and was the cause of financial problems for Rivergate Commons are also not actionable. The statement that Bent is causing financial problems for Rivergate Commons is obviously true, since Rivergate Commons is necessarily spending money to defend this action. The statement that Bent files frivolous lawsuits may appear to be a statement of fact, but is actually a statement of opinion under the circumstances. "[E]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an `audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole . . . . [Citations.]" (Information Control Corp. v. Genesis One Computer Corp. (Cal. 1980) 611 F.2d 781, 784, fn. omitted.) In the context of this ongoing lawsuit between Bent and defendants, the statement that Bents lawsuit is "frivolous" assumes the character of opinion, not fact. The statements are not actionable.
Allegations of libel must be specifically identified, if not pleaded verbatim. (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.) The allegation in Bents libel cause of action that defendants published a newsletter that contained misstatements about his character is patently insufficient.
I. Intentional Interference with Contractual Relations
Bents 10th and 11th causes of action were for intentional and negligent interference with contractual relations. He alleged defendants conduct "caused contractual relationships that [Bent] had with his business clientele, his tenants, and others to be interfered with in a way which was damaging to [Bent], which caused financial damaged [sic] to [Bent] in May June, and July of 2002." He alleged defendants knew their actions were wrongful and knew or should have known their actions would interfere with Bents "valuable contractual relationships[.]"
To state a cause of action for intentional interference with contractual relations, a plaintiff must allege: "(1) a valid contract between plaintiff and a third party; (2) defendants knowledge of this contract; (3) defendants intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)
Bent has failed to allege defendants knew of his contracts. He has also failed to allege, other than in the most inadequate and conclusory manner, that defendants actions caused the breach of any contractual relationship. Bent must plead the ultimate facts of interference, such as defendants advising, counseling, or persuading the third party to terminate the contract. (Rosenfeld, Meyer & Susman v. Cohen (1983) 146 Cal.App.3d 200, 221, overruled on another point in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 521, fn. 10.) Finally, Bent must plead the interference was wrongful "`by some measure beyond the fact of the interference itself." (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393.) Bent has attempted to meet this requirement through his allegations of defamation, but as we have discussed, he has failed to successfully plead any claim for defamation. Accordingly, his causes of action for intentional and negligent interference with contractual relations fail.
J. Intentional and Negligent Infliction of Emotional Distress
Bents causes of action for infliction of emotional distress incorporated all his prior allegations, and alleged defendants "wrongful actions" caused him to suffer emotional distress. Bent did not specify which conduct caused him emotional distress.
A plaintiff seeking damages for intentional infliction of emotional distress must allege: "(1) the defendant engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, severe emotional distress to the plaintiff; (2) the plaintiff actually suffered severe or extreme emotional distress; and (3) the outrageous conduct was the actual and proximate cause of the emotional distress." (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744-745.) To qualify as "extreme and outrageous," the conduct "must be `so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]" (Id. at p. 745.)
Whatever conduct Bent claims caused him emotional distress, none of the conduct alleged in the complaint was sufficiently outrageous to state a cause of action for infliction of emotional distress. Having failed to allege fraud or defamation, Bent has alleged little more than a failure to make repairs. This is insufficiently extreme to be actionable.
K. Breach of Statute
Bents 14th cause of action alleged defendants wrongful conduct violated Title 6 of the California Civil Code. There is more than one Title 6 of the Civil Code. The allegations are too vague to state a cause of action.
L. Gross Negligence
Bents 15th cause of action was for "gross negligence." With respect to the defendants on appeal, the complaint merely incorporated the prior causes of action, and alleged, "the conduct above complained of constituted a callous disregard for the consequences of their actions, and therefore constitutes gross negligence." This is insufficient to state a cause of action for gross negligence.
A complaint alleging a defendant is guilty of gross negligence must state the specific facts upon which the charge is based. (Bartlett v. Jackson (1936) 13 Cal.App.2d 435, 436; Nichols v. Smith (1934) 136 Cal.App. 272, 276.) It is insufficient to merely conclude in general language that the defendants callously disregarded the consequences of their actions, as Bent has done. (Bartlett v. Jackson, supra, at p. 436.)
M. General Negligence
As in his previous causes of action, Bents 16th cause of action for negligence incorporated the prior allegations. With respect to the defendants on appeal, the allegations of the negligence cause of action, in full, are as follows: "If the wrongful actions of Defendants were not willful, or intentional, under the law, or if Defendants did not know the consequences of their actions, Defendants should have known the consequences of their actions by using reasonable prudence and common sense. [¶] Wherefore [Bent] suffered damages, and is therefore entitled to an award of damages, as below enumerated in the Prayer for Damages section of this Complaint."
Negligence may be pleaded in general terms, but a plaintiff must indicate what acts or omissions it claims were negligently performed. (Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 101.) Bents vague and general pleading fails even this lenient test.
Finally, we cannot say the trial court erred in sustaining the demurrer without leave to amend. This was Bents sixth attempt to successfully plead his case. The grounds upon which defendants demurred to the fifth amended complaint were all raised earlier in the demurrer to the fourth amended complaint. With the exception of additions to the complaint to address some statute of limitations issues, the allegations of the fifth amended complaint were not materially different with respect to the defendants on appeal. "[T]here is a limit to which the patience of the trial court may be extended in the matter of allowing repeated attempts to amend a faulty pleading." (Consolidated Concessions Co. v. McConnell (1919) 40 Cal.App. 443, 446.) The trial court did not err in sustaining the demurrer without leave to amend.
II
Orders of Judge McNatt
Bent challenges the orders issued by Judge McNatt after he recused himself on the ground that orders made by a disqualified judge are void. The record is in some conflict as to whether Judge McNatt recused himself, or merely had the case reassigned. The transcript of the hearing indicates Judge McNatt merely ordered that the case be reassigned to another judge. However, the minute order issued by the court states Judge McNatt recused himself "pursuant to [section] 170.1.6(c)." At the time of the hearing, section 170.1, subdivision (a)(6)(C) stated that a judge "shall be disqualified if . . . a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial . . . ." (Stats. 2002, ch. 1094, § 1.)
Bent points specifically to the order sustaining the demurrer to the fifth amended complaint, signed by Judge McNatt after he recused himself. Judge McNatt signed the order even though Judge Saiers presided at the hearing on the motion and issued the ruling sustaining the demurrer. Even though this is irregular, we will not reverse the dismissal for two reasons. First, the signing of the order did not involve any decision-making on the part of Judge McNatt. He was merely signing the order confirming the ruling previously made by Judge Saiers. Second, this appeal is not from the order sustaining the demurrer because such orders are not appealable. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) The appeal is from the order and judgment dismissing the action, which was signed by Judge Saiers.
Bent also argues Judge Saiers should have decided his section 473 motion for relief from default prior to granting the order and judgment of dismissal. The record indicates this motion was on calendar to be heard when the order of dismissal was entered. Bent voluntarily withdrew the motion because he could not obtain the necessary transcripts. Had Bent not withdrawn the motion, it would have been heard in due time, and he might have been granted relief. He cannot complain when his own actions were responsible for withdrawing the motion from the courts consideration. There was no error.
III
Attorney Fees
Bent argues attorney fees were not correctly awarded. Bent has not appealed from the award of attorney fees. The award of attorney fees was a post-judgment order that is separately appealable. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 45-46.) "`"[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified-in either a single notice of appeal or multiple notices of appeal-in order to be reviewable on appeal." [Citations.]" (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.)
The notice of appeal does not include the judgment for costs and attorney fees, which was entered after the notice of appeal was filed. Rules of Court, Rule 2, subdivision (e), pertaining to a premature notice of appeal, states: "(1) A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment. [¶] (2) The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." The notice of appeal in this case may not be treated as a premature notice of appeal from the judgment for costs because it was filed before, not after the court made any ruling on the costs and attorney fees.
DISPOSITION
The judgment is affirmed. Defendants and respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 27(a)(1).)
We concur:
SIMS, J.
NICHOLSON, J.