Opinion
G053796
10-20-2017
GORDON E. RUNYON, Defendant and Appellant, v. JAMES M. FACCIUTO et al., Defendants and Respondents; COMERICA BANK, Plaintiff.
Richard G. Elie for Defendant and Appellant. Law Offices of Joel W. Baruch, Joel W. Baruch and Christopher L. Gaspard for Defendants and Respondents. No appearance by plaintiff.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2009-00124583) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, John C. Gastelum, Judge. Appeal dismissed. Richard G. Elie for Defendant and Appellant. Law Offices of Joel W. Baruch, Joel W. Baruch and Christopher L. Gaspard for Defendants and Respondents. No appearance by plaintiff.
This is the fourth appeal we have decided in this case. Appellants Gordon Runyon and Donna Runyon appeal from the court's denial of Donna's motion for subrogation. We dismiss the appeal, because neither Gordon nor Donna has standing.
For convenience and to avoid confusion, we refer to Donna Runyon and Gordon Runyon by their first names. We mean no disrespect.
FACTS
Comerica's operative complaint alleged (1) that it loaned $474,500 (the loan) to a borrower entity (the borrower); (2) that Gordon and other guarantors had guaranteed the borrower's payment of the loan; (3) that the borrower had defaulted on the loan; and (4) that Gordon and the other guarantors had refused to pay the borrower's balance on the loan. Gordon and some other defendants answered the operative complaint on September 30, 2009. In June 2010, the court granted Comerica's summary judgment motion. Shortly thereafter, Comerica settled with two of the judgment debtors (James Facciuto and the Facciuto Family Trust) for $50,000. The court entered judgment in favor of Comerica against Gordon, Janet A. Kline, and respondents Steven Kissen, James Facciuto, and James M. Facciuto and Linda A. Facciuto as trustees of the Facciuto Family Trust in the sum of almost $430,000. (Comerica Bank v. Runyon (Jan. 7, 2016, G051364) [nonpub. opn.] (Comerica I).) As to the borrower, however, the court ruled that, due to the borrower's default, Comerica would have to obtain a default judgment against it. The borrower filed a voluntary petition in bankruptcy court. In September 2010, Comerica settled with Kissen for $50,000. (Comerica Bank v. Runyon (July 26, 2016, G051972) [nonpub. opn.] (Comerica II).)
In March 2011, Comerica requested the court to issue an abstract of judgment against judgment debtor Gordon only. Comerica stated it had settled with Kissen, Facciuto, and the Facciuto Family Trust, and that Kline had received a bankruptcy discharge. The court granted Comerica's request and ordered the court clerk to issue an abstract of judgment against Gordon only. (Comerica II, supra, G051972.)
In July and August of 2011, Comerica recorded the abstract of judgment in Orange County and Los Angeles County, respectively. (Comerica II, supra, G051972.) Gordon and Donna subsequently divorced. The judgment of dissolution was entered in September 2013. (Comerica I, supra, G051364.)
In July 2014, Comerica filed a memorandum of costs after judgment. Donna filed a motion to strike costs and fees as a "non party intended intervenor." The trial court denied the motion on grounds Donna lacked standing to challenge costs. (Comerica I, supra, G051364.) Donna appealed the denial and we affirmed in Comerica I, supra, G051364. We concluded Donna lacked standing because she is not a judgment debtor. (Ibid.)
In August 2014 Donna filed a "motion for post-judgment intervention to arrest or vacate the final judgment in this action." The trial court denied the motion as untimely and because Donna lacked standing to intervene. (Comerica II, supra, G051972.) Donna appealed the denial and we affirmed in Comerica II, supra, G051972. Like the trial court, we concluded Donna's motion was untimely. (Ibid.)
In July 2015 Donna filed an application for order of contribution and equitable indemnity. She argued she was entitled to contribution pursuant to Code of Civil Procedure sections 881 through 883. The trial court denied Donna's application on grounds she does not qualify as a judgment debtor. Donna did not appeal.
All further references are to the Code of Civil Procedure. Section 881 provides, "This chapter governs contribution among joint judgment debtors other than joint tortfeasors." Section 882 provides in relevant part, "If two or more judgment debtors are jointly liable on a money judgment: [¶] (a) A judgment debtor who has satisfied more than his or her due proportion of the judgment, whether voluntarily or through enforcement procedures, may compel contribution from another judgment debtor who has satisfied less than his or her due proportion of the judgment. [¶] (b) If the judgment is based upon an obligation of one judgment debtor as surety for another and the surety satisfies the judgment or any part thereof, whether voluntarily or through enforcement procedures, the surety may compel repayment from the principal." Section 883 provides, "(a) A judgment debtor entitled to compel contribution or repayment pursuant to this chapter may apply on noticed motion to the court that entered the judgment for an order determining liability for contribution or repayment. The application shall be made at any time before the judgment is satisfied in full or within 30 days thereafter. [¶] (b) The order determining liability for contribution or repayment entitles the judgment debtor to the benefit of the judgment to enforce the liability, including every remedy that the judgment creditor has against the persons liable, to the extent of the liability. [¶] (c) Nothing in this section limits any other remedy that a judgment debtor entitled to contribution or repayment may have."
In December 2015 Gordon filed an application for order of contribution. In April 2016 the trial court denied Gordon's application on grounds it was untimely and "there exists an independent cause of action for equitable contribution . . . ." Gordon appealed. In our published opinion filed in case No. G053691, we reversed concluding Gordon's application was timely filed, and we remanded for further proceedings to adjudicate the merits of the application. (See Comerica Bank v. Runyon (Oct. 20, 2017, G053691) ___Cal.App.5th ___.)
Meanwhile, in April 2016 Donna filed a "motion to compel satisfaction of judgment and for restitution of over-payments; for subrogation." On June 7, 2016, Donna filed an "amended and supplemental motion to compel satisfaction of judgment and for restitution of over-payments; for subrogation." Then on June 20, 2016, Donna filed a "2nd amended and supplemental motion . . . for subrogation." Citing section 882, subdivision (b), Donna argued as neither a judgment debtor nor maker on any note or guaranty sued on by Comerica, but having been forced to pay its demand, she is entitled to subrogation to Comerica Bank as a matter of law.
In July 2016 the court ruled on the last iteration of Donna's motion — the 2nd amended and supplemental motion for subrogation. The court found the notice of motion did not comply with California Rules of Court, rule 3.1110(a). Further, the court found to the extent Donna relied on sections 881 through 883 as enabling statutes to give her the unspecified relief requested, they did not support her request, because she is not a judgment debtor. The court stated she previously relied on these code sections, and her latest motion appeared to be an improper motion for reconsideration of her prior application for an order of contribution and equitable indemnity.
California Rules of Court, rule 3.1110(a) provides, "A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order."
Donna and Gordon purport to appeal from the court's denial of Donna's motion.
DISCUSSION
Neither Gordon nor Donna has standing to appeal.
An aggrieved party may appeal. (§ 902.) "One is considered 'aggrieved' whose rights or interests are injuriously affected by the judgment." (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737 (Carleson).) The "interest '"must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment."'" (Ibid.)
Donna was never named as a party, and her attempt to intervene was unsuccessful. Once Donna's motion to intervene was denied and once we upheld the denial, Donna had no further cognizable interest in the case. (See Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1515 [appeal from judgment dismissed as untimely when wife failed to appeal earlier motion for leave to file complaint in intervention; wife had no further cognizable interest in case after leave to intervene denied]; see also Carleson, supra, 5 Cal.3d at p. 736 [one who is denied right to intervene may not appeal from subsequent judgment].) We and the trial court have repeatedly told Donna she is not a judgment debtor or a party. As a nonparty, Donna cannot keep filing motions and appealing the trial court's denials. She is not a party and cannot be heard in this action.
On the merits, Donna's appeal is also frivolous. At oral argument she relied on Finnell v. Finnell (1911) 159 Cal. 535, Painter v. Berglund (1939) 31 Cal.App.2d 63, and Coca Cola Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372. In both Finnell and Painter, the party seeking subrogation as a surety was a judgment debtor and a party to the action. Similarly, in Coca Cola the party seeking contribution was a party and a joint tortfeasor seeking contribution under section 875. These cases are simply inapt.
Gordon also lacks standing to appeal, albeit for a different reason. Gordon was not named as a moving party in the motion from which the appeal is taken. Hence, he was not aggrieved by the court's denial of Donna's motion, because his rights or interests were not injuriously affected in an immediate, pecuniary, and substantial way. (See Carleson, supra, 5 Cal.3d at 737.)
DISPOSITION
The appeal is dismissed. Respondents are entitled to costs on appeal.
Given our disposition, the Facciutos' motion for judicial notice is moot. --------
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.