Opinion
B298993
11-29-2021
CHARLES BLUTH, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, APARTMENTS 425, LLC, et al., Real Parties in Interest.
Gunderson Law Firm and Catherine A. Reichenberg for Petitioner. No appearance for Respondent. RMO, Scott E. Rahn, Sean D. Muntz, Matthew F. Baker and David G. Greco for Real Parties in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS in mandate; petition for extraordinary writ. Marc D. Gross, Judge Los Angeles County Super. Ct. No. SC129131.
Gunderson Law Firm and Catherine A. Reichenberg for Petitioner.
No appearance for Respondent.
RMO, Scott E. Rahn, Sean D. Muntz, Matthew F. Baker and David G. Greco for Real Parties in Interest.
MANELLA, P. J.
INTRODUCTION
Real party in interest Walter Van Buskirk, III, purchased real property from his mother, Ellen J. Van Buskirk, in her capacity as the trustee of a trust she had established with her late husband. As part of the consideration for this purchase, Walter executed a promissory note, secured by a deed of trust recorded against the property. Ellen forgave the balance on the promissory note not long after the purchase was consummated. Years later, Walter and real party in interest Apartments 425, LLC (to whom Walter had transferred his interest in the property) brought this action against Ellen and her brother, petitioner Charles Bluth. Real parties alleged that Bluth -named in the caption of the complaint as "acting trustee" of Ellen's trust -- had abducted 89-year-old Ellen from a rehabilitation center, and unduly influenced her to demand payment on the previously forgiven promissory note, under threat of foreclosure on the property. Bluth was personally served with the summons and complaint, but failed to file a responsive pleading. On October 19, 2018, real parties filed and served Bluth with a request for entry of default. Default was entered the same day.
Because Walter and Ellen Van Buskirk share a surname, we refer to them by their first names to avoid confusion.
About four months later, Bluth filed a motion to set aside the default under Code of Civil Procedure section 473, subdivision (b), on the ground of excusable neglect. He argued that because he was named in the complaint as acting trustee of Ellen's trust, he had reasonably assumed that counsel for Ellen or the trust would file a responsive pleading on his behalf. Although he declared that he had asked unspecified family members to act on his behalf, he did not specify whom he contacted, when he contacted them, or what response, if any, he received. The trial court denied Bluth's motion, concluding that he had failed to show either (1) a satisfactory excuse for his default, or (2) diligence in filing his motion. At the hearing on the motion, real parties withdrew a pending request for entry of default judgment. No judgment had been entered at the time Bluth filed an appeal from the court's order.
On appeal, Bluth contends the trial court abused its discretion by denying his motion to set aside the default. Real parties dispute this contention on the merits. They additionally contend that the appeal must be dismissed because the order denying Bluth's motion is not appealable. Bluth asks us to treat the appeal as a valid premature appeal from a default judgment.
We conclude that we must dismiss the appeal. We exercise our discretion, however, to treat the appeal as a petition for an extraordinary writ within our original jurisdiction. On the merits, we deny the petition. We conclude the trial court acted within its discretion in finding that Bluth failed to show either a satisfactory excuse for his default or diligence in seeking relief.
BACKGROUND
A. The Complaint
According to the allegations of the operative first amended complaint (FAC), in August 2005, Ellen (Bluth's sister) established a trust with her husband, who died soon thereafter, leaving Ellen as the sole trustee. In October 2007, Ellen, as trustee, sold real property in Santa Monica to her son Walter (who later transferred his interest in the property to Apartments 425, LLC). As part of the purchase price, Walter executed a promissory note secured by a recorded deed of trust on the real property. Soon thereafter, Ellen forgave the balance of the promissory note. Nearly a decade later, however, Ellen demanded payment on the note under threat of foreclosure on the Santa Monica property. Walter made the payment in December 2017.
In April 2018, real parties filed a complaint against Ellen. In July 2018, real parties filed the FAC, adding Bluth as a defendant on the following causes of action: (1) quiet title; (2) declaratory relief; (3) promissory estoppel; (4) civil extortion; and (5) unjust enrichment. In the caption of the FAC, Ellen was named "individually and as successor trustee of the Van Buskirk Trust," whereas Bluth was named solely as "acting trustee of the Van Buskirk Trust."
The FAC alleged that Bluth had been making many decisions for the trust since the death of Ellen's husband in 2005. Although Ellen repeatedly had asked Bluth to record documents reflecting her forgiveness of Walter's promissory note, Bluth had failed to do so. In September 2016, when Ellen was 89 years old and recovering from a hospitalization, Bluth (acting in concert with Walter's sisters) "abducted" her from a rehabilitation center in California and relocated her to Idaho. Ellen took action against Walter in connection with the promissory note only after her abduction, and only as a result of the undue influence of Bluth and Walter's sisters. Walter's sisters were not named as defendants.
B. Entry of Default
On July 26, 2018, Bluth was personally served with the FAC and summons at his office in Reno, Nevada. The summons stated that a responsive pleading was due within 30 days of service, and warned, "The court may decide against you without your being heard unless you respond within 30 days." Bluth did not file a responsive pleading.
On October 19, 2018, real parties filed a request for entry of default against Bluth, and served the request on Bluth by first-class mail. The same day, the clerk of the trial court entered the requested default.
Bluth did not appear in the action for some months. On January 25, 2019, real parties filed a request for entry of default judgment against Bluth for a specified amount, and mailed the request to Bluth. Ten days later, counsel for Bluth filed a notice of appearance.
About two months later, real parties filed a request for entry of default judgment against Bluth for a slightly higher amount, but later withdrew the request.
C. Motion to Set Aside Default
On February 21, 2019 (about four months after Bluth had been served with the request for entry of default), Bluth filed a motion to set aside the default under Code of Civil Procedure section 473, subdivision (b), on the ground of excusable neglect. In his supporting declaration, Bluth acknowledged receiving the FAC at his Reno office, but declared, "Believing this and [other actions filed by Walter] to be issues concerning the Trust only, I contacted my family members and requested that they include me in the defense of this and other actions filed by Walter concerning the Trust. [¶] As I was named solely as 'acting Trustee' in this matter, I did not see that I was required to hire separate counsel and assumed that the attorney for the Trust or Ellen would respond on my behalf." Bluth did not specify whom he contacted, when he contacted them, or what response, if any, he received. He continued, "Eventually, early in 2019, I learned that I was not going to be defended in this action or the others by counsel for Ellen or for the Trust. As a result, I retained present counsel in this and the other matters filed by Walter." Bluth did not address the request for entry of default served on him in October 2018.
Accompanying his motion, Bluth submitted declarations from Ellen and his counsel, as well as a proposed demurrer to the FAC. Ellen's declaration did not address Bluth's alleged request to be included in her defense. The declaration from Bluth's counsel addressed only her efforts to meet and confer with real parties concerning the proposed demurrer.
Bluth's moving papers asserted additional facts, unsupported by any evidence in the record. These included the assertion that Bluth began communicating with Ellen about his requested defense "immediately" after receiving notice of the FAC, and that after "some lengthy discussion" over a "reasonable amount of time," Bluth learned that counsel for Ellen and the trust had determined they could not represent him. The moving papers additionally asserted that Bluth did not receive any default in the mail, and that he was unaware of the default at the time he retained counsel. Finally, the moving papers represented that Bluth's counsel "discovered" the default only upon reviewing the docket on an unspecified date.
Bluth argued that his default was the result of excusable neglect, as he had "reasonably assumed" counsel for Ellen or the trust would file a responsive pleading on his behalf. He further argued that he had shown diligence in filing his motion shortly after his counsel discovered the default.
In opposition, real parties argued that Bluth had not established it was reasonable for him to assume he would be included in Ellen's defense. They submitted: (1) a May 2017 letter sent by Ellen's counsel to their counsel, stating that he would not represent Bluth in any litigation they brought; and (2) their counsel's declaration that during an August 2018 phone conference (after Bluth had been served with the FAC), Ellen's counsel confirmed he was not representing Bluth. Real parties further argued that in filing his motion some four months after being served with the request for entry of default, Bluth had failed to show the requisite diligence.
In reply, Bluth argued there was no evidence that he had been privy to Ellen's counsel's statements in May 2017 and August 2018 that he would not represent Bluth. Bluth maintained that he had reasonably assumed Ellen's counsel would file a responsive pleading on his behalf, and that he had diligently filed his motion shortly after his counsel discovered the default.
D. Hearing and Ruling
In May 2019, the trial court held a hearing on Bluth's motion to set aside the default. Bluth's counsel argued that Bluth's declaration attesting that he had "assumed" Ellen's counsel would file an answer on his behalf was sufficient to demonstrate excusable neglect. Counsel for real parties disagreed. During the hearing, real parties orally withdrew their request for entry of default judgment.
At the conclusion of the hearing, the court issued an order denying Bluth's motion, concluding, "Bluth has not met his burden to show [1] a satisfactory excuse for default and [2] diligence in making this motion." First, the court found Bluth's asserted excuse for his default unreasonable. It observed, "[H]is declaration is vague regarding how and when Bluth contacted his family, including who he contacted, and how often he contacted them. He also does not specify the substance of any such communication." The court further observed that Bluth did not indicate he "took steps to follow up and ensure he was being represented," which a reasonably prudent person in Bluth's position would have done, given that (1) "no one volunteered . . . to act on Bluth's behalf"; (2) the FAC specifically named Bluth as a defendant; and (3) no attorney contacted Bluth to discuss his response to the FAC within the 30-day deadline for a responsive pleading (which was stated on the summons Bluth received). The court found that Bluth's lack of inquiry in response to these "red flags" became "further inexcusable" when he was served with the request for entry of default.
Second, the court concluded Bluth had not shown diligence in moving to set aside the default. It reasoned that Bluth had failed to explain his inaction during the four months between October 19, 2018, when he was served with the request for entry of default, and February 21, 2019, when he filed his motion. Disregarding the unsupported assertions in Bluth's motion brief, the court observed that Bluth had not denied receiving the request for entry of default.
Bluth filed a notice of appeal from the order denying his motion to set aside the default. Although the notice indicated that the appeal was from a default judgment and an order after judgment, it is undisputed that no judgment had been entered, as real parties orally withdrew their request for entry of default judgment at the May hearing.
DISCUSSION
A. Appealability and Treatment as Writ Petition
"A default entry is reviewable only on appeal from the default judgment (or on a postjudgment appeal of the order denying a statutory motion to set aside the default and default judgment [citation])." (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2020) Ch. 2-B, ¶ 2:172.) Thus, an order denying a prejudgment motion to set aside a clerk's entry of default is not appealable. (Ibid.; accord, 9 Witkin, Cal. Procedure (5th ed. 2020) Appeal, § 169.) However, an order denying a motion to set aside a default may be reviewed on a petition for an extraordinary writ. (See Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 762 [granting petition for writ of mandate vacating such order].) "[I]n limited situations, appellate courts may be willing to determine the merits of an attempted appeal from a nonappealable judgment or order by treating the matter as a writ proceeding." (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs, supra, Ch. 2-A, ¶ 2:7.) "[E]xercise of that power is reserved for unusual circumstances . . . typically where dismissal of the appeal in lieu of proceeding with immediate writ review would be 'unnecessarily dilatory and circuitous.'" (Id. at ¶ 2:7.1, italics omitted.)
Here, the trial court's order denying Bluth's prejudgment motion to set aside the default was not appealable. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs, supra, Ch. 2-B, ¶ 2:172; 9 Witkin, Cal. Procedure, supra, § 169.) Bluth cites no authority to the contrary, and we are aware of none.
Even had the trial court adjudicated damages and entered default judgment after Bluth filed his notice of appeal, we could not treat the appeal as taken from the judgment, as he requests. (See Cal. Rules of Court, rule 8.104(d) [notice of appeal may be treated as filed immediately after entry of judgment only if filed after judgment is rendered or trial court has announced its intended ruling]; First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960-961 [dismissing appeal from order denying motion to set aside default, despite entry of default judgment after appeal was filed, where appeal was filed "before the default prove up occurred" and thus before trial court rendered judgment or announced its intended ruling].)
We exercise our discretion, however, to treat the appeal as a petition for an extraordinary writ within our original jurisdiction. Before Bluth even filed his motion to set aside the default, real parties filed a request for entry of default judgment. Had they pursued this request (or their successive request) to judgment, Bluth would have been able to file a valid appeal. Instead, they orally withdrew their request during the same hearing at which the trial court denied Bluth relief from default. More than two years later, in this court, they fully briefed the issue whether Bluth was entitled to such relief. It would be a waste of time and judicial resources to decline to reach the issue until Bluth reraises it on a subsequent appeal from a default judgment. (See In re Marriage of Vryonis (1988) 202 Cal.App.3d 712, 714, fn. 1 [treating appeal as petition for writ of mandate, where appeal had been fully briefed and presented dispositive issues of continuing interest, rendering mere dismissal "unnecessarily dilatory and circuitous"]; cf. Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) Ch. 5-D, ¶ 5:172 ["[T]here may be a lot of work involved in preparing a case for default 'prove-up.' That time and effort will be wasted if the court later grants relief from default"].)
Treating the appeal as a petition for a writ of mandate, we turn to the merits.
B. Denial of Motion to Set Aside Default
On the merits, we deny Bluth's petition for a writ of mandate. Bluth fails to show the trial court abused its discretion in denying his motion under Code of Civil Procedure section 473, subdivision (b), to set aside the clerk's entry of default. We conclude the court acted well within its discretion in finding Bluth failed to show either a satisfactory excuse for his default or diligence in seeking relief.
1. Principles
"The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (Code Civ. Proc., § 473, subd. (b).) "The moving party bears the burden of proving that he or she is entitled to relief under [Code of Civil Procedure] § 473(b). . . . [T]he moving party's evidence must preponderate as to the claimed 'mistake, surprise, inadvertence or excusable neglect.' Also, the moving party must show due diligence in seeking discretionary relief after discovering the default." (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial, supra, Ch. 5-G, ¶ 5:394, italics omitted.) The movant must produce admissible evidence to meet this double burden. (Id. at ¶ 5:395.)
An order on a motion to set aside a default under Code of Civil Procedure section 473, subdivision (b), is reviewed for abuse of discretion. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695.) The trial court's exercise of discretion is scrutinized more carefully if the court denied relief from default, in accord with the policy favoring resolution of cases on their merits. (Id. at 696.) In "'borderline'" cases, this policy prevails over the competing policy of deference to a trial court's exercise of discretion. (Id. at 703.) However, the policy favoring resolution on the merits does not "relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief." (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 900.)
2. Excusable Neglect
The trial court acted within its discretion in denying Bluth's motion on the ground that he failed to show a satisfactory excuse for failing to timely respond to the FAC. "It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under [Code of Civil Procedure] section 473 will be denied." (McClain v. Kissler (2019) 39 Cal.App.5th 399, 414-415.) "Reliance on a third party [to conduct one's defense] constitutes a satisfactory excuse only if it is reasonable." (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 507 (Cruz).) "'With regard to whether the circumstances warranted reliance by the defendant on a third party, the efforts made by the defendant to obtain a defense by the third party are, of course, relevant.'" (Ibid.)
Here, Bluth failed to show he acted reasonably in relying on counsel for Ellen or her trust to file a responsive pleading on his behalf. As the trial court observed, "no one volunteered . . . to act on Bluth's behalf." Although Bluth declared that he requested a defense from unspecified members of his family, he failed to declare that he received any response, let alone a response that reasonably might have led him to believe he would be provided a defense. In Bluth's own words, he merely "assumed" that counsel for Ellen or her trust would respond to the FAC on his behalf. This assumption was unreasonable. (Cf. Iott v. Franklin (1988) 206 Cal.App.3d 521, 531 ["an attorney who assumes that opposing counsel has granted him extensions of time to file an answer because, in an effort to request such extensions, he has placed phone calls to but not spoken with, written letters to but not received answers from opposing counsel is guilty of inexcusable neglect within the meaning of [Code of Civil Procedure] section 473. Under such circumstances it is an abuse of discretion for a trial court to grant . . . relief"].) It was particularly unreasonable for Bluth to persist in this assumption through the expiration of the 30-day deadline for a responsive pleading (which was stated on the summons he undisputedly received), given that Ellen's counsel never sought his input on drafting his response to the FAC. A reasonably prudent person in Bluth's position would expect Ellen's counsel to do so, particularly in light of the FAC's allegations that Bluth had "abducted" Ellen and unduly influenced her to commit her alleged misdeeds. We conclude the trial court acted well within its discretion in determining that Bluth failed to show his inaction was excusable.
Ellen's declaration said nothing about responding to (or even receiving) Bluth's request for a defense. Although Bluth made additional, unsupported factual assertions in his motion brief, he did not claim to have received any response to his request. In contrast, real parties submitted evidence that Ellen's counsel advised their counsel he would not defend Bluth.
The cases on which Bluth relies are distinguishable. (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 137-141 [trial court abused its discretion in failing to find excusable neglect, where defendant was attorney and single parent burdened with family-law caseload and "significant family emergencies of her own, including an urgent need to take care of taxes and unpaid mortgage payments lest she lose her home"]; Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1140-1143 [trial court acted within its discretion in finding excusable neglect, where defendant attempted to file responsive pleading only one day after deadline, and only several days after sudden death of her son]; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 738-740 [same, where plaintiff reasonably relied on his own counsel to oppose motion to dismiss, but counsel abandoned him without notice]; Weitz v. Yankosky (1966) 63 Cal.2d 849, 852, 856 (Weitz) [same, where traffic-collision defendant "acted reasonably in assuming that [his auto insurer] would defend and in following the instructions in his insurance policy to mail any summons and complaint to [his insurer] at [its home office], and the trial court could properly conclude that the failure of these documents to arrive was neither defendant's nor [his insurer]'s fault"].)
3. Diligence
Even had the trial court abused its discretion in finding that Bluth failed to show excusable neglect, we would deny his petition for writ of mandate. The court acted within its discretion in denying his motion on an alternative ground, viz., his failure to show diligence in seeking relief. "Whether a party has acted diligently [in seeking relief from default] is a factual question for the trial court." (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.) While a motion for discretionary relief from default "must be made within 6 months of the . . . default at issue, discretionary relief may as a practical matter have to be sought far earlier." (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial, supra, Ch. 5-G, ¶ 5:290.) "If there is any substantial delay between discovery of the default and defendant's filing a motion for relief under [Code of Civil Procedure section] 473(b), defendant must show a reasonable excuse for the delay. Otherwise, regardless of the 'mistake' or 'neglect' causing entry of the default originally, defendant's application for relief will be denied." (Id. at ¶ 5:376.) "Delays of 3 months or more routinely result in denial of relief absent satisfactory explanation for the delay." (Id. at ¶ 5:377, italics omitted; see also Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529 (Benjamin) ["Defendant has not cited, nor has independent research disclosed, any case in which a court has set aside a default where, in making application therefor, there has been an unexplained delay of anything approaching three months after full knowledge of the entry of the default"]; Huh v. Wang, supra, at 1421-1422 [following Benjamin].)
Here, Bluth failed to explain his delay of four months. He did not deny that he received real parties' request for entry of default, presumably shortly after it was served on him by mail on October 19, 2018 -- four months before he filed his motion. His receipt of the default request put him on notice that contrary to his assumption, no attorney for Ellen or the trust had filed a responsive pleading on his behalf. (Cf. Cruz, supra, 146 Cal.App.4th at 503, 506-509 [trial court abused its discretion in finding defendant reasonably relied on insurer to seek relief from default judgment, where defendant forwarded request for entry of default to its insurer, but failed to act diligently upon subsequent receipt of request for entry of default judgment, which "put [defendant] on reasonable inquiry notice that the insurer had not acted in response to the entry of default"].) Nevertheless, Bluth did not claim to have made any inquiry to ensure that Ellen's counsel would seek relief from the requested default on his behalf. Nor did he claim to have sought his own counsel until he belatedly "learned," through unspecified events in early 2019 (months after service of the default request), that Ellen's counsel would not defend him. In light of Bluth's unexplained four-month delay in seeking relief, the trial court acted well within its discretion in finding he failed to show diligence. (See Benjamin, supra, 31 Cal.2d at 528-533 [trial court abused its discretion in granting relief from default in face of defendant's unexplained three-month delay in seeking relief]; Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1144-1145 [similar, concerning plaintiffs' unexplained seven-week delay in seeking discretionary relief from dismissal].)
Although Bluth's motion papers asserted that he was unaware of the default until his counsel reviewed the docket on an unspecified date in 2019, he identified no evidence supporting that assertion. Nor does he identify any such evidence on appeal. As the trial court properly did, we disregard Bluth's unsupported assertions. (See Kendall v. Barker (1988) 197 Cal.App.3d 619, 625 [nothing in record supported inference that defendant exercised diligence in seeking relief from default, and this omission could not be cured by unsupported assertions in defendant's appellate brief].)
We need not decide whether real parties were prejudiced by Bluth's delay in seeking relief from default. (See Benjamin, supra, 31 Cal.2d at 532 ["While no counter-affidavit was filed by plaintiffs showing that they would be prejudiced by the setting aside of the default judgment, none was necessary until defendant had at least made some excuse for the delay in question. [Citation.] To hold otherwise that in the absence of any explanation a delay of more than three months in undertaking to open a default can be excused would empower the trial court to dispense with the 'reasonable time' requirement of the statute"].)
Again, the cases on which Bluth relies are distinguishable. (See Lasalle v. Vogel, supra, 36 Cal.App.5th at 131 & fn. 3 [trial court abused its discretion in failing to find diligence, where defendant obtained counsel within four days of receiving request for entry of default, and would have obtained counsel even earlier but for another attorney's conflict of interest]; Shapiro v. Clark, supra, 164 Cal.App.4th at 1143-1144 [trial court acted within its discretion in finding diligence, where defendant contacted counsel through her husband five days after default, she was not responsible for counsel's delay in filing motion, and her diligence was not challenged]; Aldrich v. San Fernando Valley Lumber Co., supra, 170 Cal.App.3d at 732, 740-741 [same, where plaintiff sought relief 21 days after learning that his counsel had abandoned him and his case had been dismissed]; Weitz, supra, 63 Cal.2d at 852-853, 858 [same, where traffic-collision defendant provided notice of motion to set aside default judgment within three weeks of learning auto insurer might not act on his behalf, and his earlier reliance on insurer was reasonable]; cf. Grappo v. McMills (2017) 11 Cal.App.5th 996, 999-1000, 1009-1010 [trial court did not err in granting motion by trustee of deceased defendant's trust to set aside default judgment entered against defendant, where plaintiff knew defendant had died at time he requested default, but did not give trustee notice of default or application for default judgment].)
DISPOSITION
The petition for a writ of mandate is denied. The appeal is dismissed. Real parties in interest are entitled to their costs on appeal.
We concur: WILLHITE, J. CURREY, J.