Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIC815807 William R. Nevitt, Jr., Judge.
HUFFMAN, J.
Plaintiffs/cross-defendants Benjamin and Gisela Huberman (plaintiffs) appeal after court trial from that portion of the judgment entered in favor of defendants/cross-complainants G. Scott Lutz and Lori Coleman (defendants) on their nuisance cause of action for violation of covenants, conditions and restrictions (CC&Rs) in favor of the Seacrest Villas condominium development (Seacrest) in which they and plaintiffs had lived. Plaintiffs essentially contend that the trial court had no subject matter jurisdiction to render this part of the judgment in favor of defendants because defendants were without standing to pursue their nuisance claim based on a violation of the CC&Rs as they had sold and vacated their condominium before trial on their cross-complaint, and the court subsequently dismissed their declaratory relief cause of action based on their interpretation that the CC&Rs applied to plaintiffs. Plaintiffs also assert the trial court lacked subject matter jurisdiction because Seacrest's homeowners' association (the Association) amended their CC&Rs to eliminate ambiguity in the section relevant to this lawsuit several weeks before the trial thereby rendering any case or controversy regarding the CC&Rs moot. Finally, plaintiffs claim that the trial court improperly awarded defendants attorney fees on the appealed portion of the judgment.
Defendants respond that this appeal is frivolous and have filed a separate motion seeking $7,775 in sanctions. Because we agree the appeal is specious, we affirm the judgment and grant the motion for sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
The genesis of this lawsuit concerning an ongoing dispute about noise coming from the plaintiffs' use of their upstairs unit at Seacrest (specifically its flooring tile), which allegedly affected the use and enjoyment of the defendants' property, is fully set forth in our earlier unpublished opinion in this case, Huberman v. Lutz (Nov. 29, 2005, D045693), and will not be repeated here. Suffice it to say that because of the dispute, essentially occurring from May 2002 through approximately May 2003, plaintiffs filed this action for declaratory relief, and alleged tort relief resolved on demurrers, to which defendants cross-complained also seeking declaratory relief, injunctive relief and damages for nuisance and negligent infliction of emotional distress.
We first reviewed the matter when defendants appealed the judgment entered in plaintiffs' favor after the trial court granted plaintiffs' motion for summary judgment on their declaratory relief action and denied defendants' opposing motion for summary adjudication on the declaratory relief action in their cross-complaint. The trial court's ruling in essence accepted plaintiffs' interpretation of paragraph 5.22 of the CC&Rs for Seacrest, which regulated the interior improvements of condominiums, instead of defendants' interpretation, thereby relieving plaintiffs of any obligation to add soundproofing to their flooring. The ruling also disposed of the cross-complaint's related tort theories, on grounds there were no triable issues of fact remaining since the nuisance, injunctive relief, and negligent infliction of emotional distress causes of action were based primarily on violations of section 5.22 of the CC&Rs, and plaintiffs were deemed to have prevailed on that issue in their declaratory relief action.
After thoroughly reviewing the matter de novo, we reversed, finding that the trial court had incorrectly interpreted section 5.22 of the CC&Rs for Seacrest as exempting plaintiffs from its application and in determining that there were no triable issues of material fact on defendants' tort theories. We specifically held that declaratory relief should have been granted in defendants/cross-complainants' favor because section 5.22 of the CC&Rs was applicable and binding upon plaintiffs, and that the matter required further proceedings "for the trial court to determine any appropriate relief and to resolve triable issues of fact remaining on the cross-complaint." In reversing summary judgment in favor of plaintiffs and the order denying summary adjudication to defendants on the declaratory relief causes of action, we noted that we expressed no view on the merits of the remaining claims in the cross-complaint and remanded the matter to the trial court "with directions to grant defendants/cross-complainants' summary adjudication motion as to the interpretation of paragraph 5.22 [of the CC&Rs], and to conduct further appropriate proceedings."
When the matter was returned to the trial court, the trial judge, who had ruled on the original summary judgment and summary adjudication matters (San Diego Superior Court Judge Jeffery B. Barton), followed our directions and entered an order June 2, 2006 granting defendants' motion for summary adjudication on their declaratory relief cause of action in the cross-complaint.
That order reads: "It is ordered that cross-complainants' summary adjudication motion (heard on September 17, 2004) is granted as to the interpretation of paragraph 5.22 of the CC&Rs, and the plaintiffs' motion for summary judgment is denied."
In preparation for the trial on the remaining issues, defendants submitted a brief solely on the cross-complaint's causes of action for nuisance and negligent infliction of emotional distress, noting they were dismissing their injunctive relief claim and that the declaratory relief action raised in plaintiffs' complaint and in the cross-complaint had been adjudicated against plaintiffs and in defendants' favor by our earlier opinion in case no. D045693. Defendants further noted that they were proceeding on the nuisance claim on both a common law theory and on the theory that there had been a violation of section 5.22 of the CC&Rs which constituted a nuisance under the terms of the CC&Rs.
Plaintiffs claimed in their trial brief that the trial court had no subject matter jurisdiction to make any ruling with regard to defendants' causes of action for declaratory relief, injunctive relief, and nuisance based on a violation of Seacrest's CC&Rs because they were moot and defendants were without standing to pursue their claims as they had sold their unit at Seacrest in September 2005 and the subject CC&R had recently been amended (two weeks before trial) so that plaintiffs no longer needed to comply with that section.
In a supplemental trial brief, defendants noted that plaintiffs had admitted in the trial readiness conference (TRC) report that the marble floors in their unit "were not in compliance with [section] 5.22(b) of the CC&Rs during the time that [defendants] owned and occupied [their unit.]" When plaintiffs suddenly claimed they would contest at trial whether they had violated section 5.22 of the CC&Rs, the original trial judge granted defendants' ex parte request that the trial go forward as originally framed in the TRC report. Such report included plaintiffs' above admission and permitted the matter on the nuisance cause of action to go to trial for a determination of whether plaintiffs' noncompliance with section 5.22 of the CC&Rs during the time the defendants occupied their unit at Seacrest interfered with defendants' quiet enjoyment of their property and whether it caused them substantial harm.
At the beginning of trial, after acknowledging our opinion and Judge Barton's order consistent with our decision, the court expressed its belief that the competing declaratory relief actions, as well as defendants' tort causes of action, were remaining in the case, stating it would proceed on the tort claims first and address the cross-claims for declaratory relief after the taking of evidence. After two days of taking evidence and considering argument of counsel, the court took the matter under submission on the causes for nuisance and negligent infliction of emotional distress, and inquired what the parties were proposing with respect to the declaratory relief actions. When plaintiffs' counsel advised the court that he had filed a motion to dismiss defendants' declaratory relief action for lack of subject matter jurisdiction, the court set the matter for further briefing.
After a short recess, the court then ruled on the causes before it at trial, finding that defendants had met their burden of proof as to both causes of action and that they had done so on the nuisance claim "on both bases advanced by the cross-complaint, that is on the violation of CC&Rs' basis and [on] the common law basis." The court specifically found that plaintiffs were jointly and severally liable to defendants for damages for a period of about eight months from early October 2002 through May 2003. The court stated that "[o]n the evidence presented, [it found] $24,000 to be a reasonable and fair amount of damages to compensate the [defendants/]cross-complainants."
At the subsequent hearing on plaintiffs' motion to dismiss the defendants' declaratory relief action, after the court vacated the original order granting judgment for plaintiffs which Judge Barton's order after our earlier decision had not done, plaintiffs basically asserted that regardless of our earlier opinion and Judge Barton's order, the court still needed "jurisdiction [at the time of the hearing] in order to issue a declaratory judgment," explaining such judgment was only sought by defendants to base a nuisance claim under the CC&Rs for the purpose of obtaining attorney fees, which would not attach to a common law nuisance claim or negligence claim. Plaintiffs argued that the court was without jurisdiction to enter final judgment because the declaratory relief action was moot based on the changed circumstances that the section of the CC&Rs interpreted in our opinion had recently been amended and the defendants had sold their unit at Seacrest and thus could no longer rely on the CC&Rs, which were now not ambiguous, rendering defendants without standing as a party for declaratory relief.
Defendants argued that judgment on the competing declaratory relief causes of action had already been rendered in our earlier decision and Judge Barton's order and such summary adjudication in their favor only needed to be included in the final judgment along with their tort causes of action. Defendants also explained that attorney fees were not solely dependent on their declaratory relief action but could also be based on being the prevailing party on plaintiffs' originally filed complaint based on an interpretation of the then existing CC&Rs as well as on the nuisance claim based on plaintiffs' admitted violation of those CC&Rs.
Although disagreeing with plaintiffs' definition of subject matter jurisdiction, the court found their arguments well taken, and ruled it was not precluded by the directions given in our earlier opinion to grant the motion to dismiss defendants' first cause of action for declaratory relief. The court explained that it was doing so under Code of Civil Procedure 1060 "in light of the circumstances before the court today."
All statutory references are to the Code of Civil Procedure unless otherwise specified.
On August 4, 2006, the court filed its written order of judgment, stating:
"NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: [¶] 1. On the complaint, the Court finds in favor of Defendants G. Scott Lutz and Lori Coleman. [¶] 2. On the cause of action of the cross-complaint for declaratory relief, the Court finds in favor of Cross-Defendants Benjamin Huberman and Gisela Huberman, because that cause of action was dismissed by the Court upon Cross-Defendants' motion. [¶] 3. On the nuisance cause of action of the cross-complaint, Cross-Complainants G. Scott Lutz and Lori Coleman recover from Cross-Defendants Benjamin Huberman and Gisela Huberman, jointly and severally, twenty-four thousand dollars ($24,000) as a result of Cross-Defendants' violation of common law nuisance and as a result of Cross-Defendants' violation of [CC&Rs] in effect at Seacrest Villas during the relevant time period. [¶] 4. On the negligence cause of action of the cross-complaint, Cross-Complainants G. Scott Lutz and Lori Coleman recover from Cross-Defendants Benjamin Huberman and Gisela Huberman, jointly and severally, twenty-four thousand dollars ($24,000). [¶] 5. The monetary awards under the nuisance and negligence causes of action ($24,000 for each) are not cumulative."
A sixth paragraph, inadvertently numbered as a second paragraph "5," for the recovery of costs and attorney fees, was left blank at the time the judgment was filed, but was later filled in on October 27, 2006 as follows: "That G. Scott Lutz and Lori Coleman recover from Benjamin Huberman and Gisela Huberman costs in the amount of $2,005.60 and attorneys' fees of $77,633.00."
Plaintiffs filed their notice of appeal September 28, 2006 from that portion of the judgment entered in favor of defendants on August 4, 2006 on the nuisance cause of action for violation of Seacrest's CC&Rs.
DISCUSSION
I
THE APPEAL
Before turning to plaintiffs' various assertions that the trial court lacked subject matter jurisdiction to determine defendants' nuisance cause of action in their cross-complaint based on a violation of Seacrest's CC&Rs and to award attorneys fees on such cause, we set out some fundamental rules regarding appellate review.
Generally, we will review only issues that are presented by the judgment or order from which the appeal is taken (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625) and have jurisdiction to review only that part of a sever able judgment that is brought up for review. (Cal. Rules of Court, rule 8.100(a).) In addition, our review is normally confined to the proceedings that took place in the court below that are brought up for review in a properly prepared record on appeal. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 328, pp. 369-371.)
All rule references are to the California Rules of Court.
Further, although an appeal from a judgment usually does not permit review of a post judgment order that is separately appeal able (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436), where the post judgment order concerns costs and fees awarded by the judgment, and the amounts of those are filled in at a later date, the right to review may be preserved if the notice of appeal from the judgment which subsumes those later set amounts recites or somehow gives notice that the appellants are actually seeking review of the award of costs and fees. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997-998.)
In this case, plaintiffs do not appeal from the entire judgment against them and specifically note they do not challenge the judgment entered against them on their original complaint or in defendants' favor on their causes of action in their cross-complaint for nuisance based on a common law theory of recovery or for negligence. Rather, plaintiffs' notice of appeal narrowly defines their appeal as being only from "the judgment in favor of [defendants/]cross-complainants in the nuisance cause of action for violation of [the CC&Rs] in favor of Searest Villas." Plaintiffs did not mention that they were also appealing from the subsequently added award of costs and attorney fees to defendants and submitted no designation of the record which involved such awards. Thus, in addition to the failure to give notice to the defendants that they were appealing from the portion of the judgment awarding costs and attorney fees, plaintiffs have failed to provide a properly prepared record on appeal.
Because plaintiffs, as the appellants, bear the burden of providing an adequate record to establish prejudicial error (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), we consider their failure to supply us with the necessary transcripts to resolve their claims regarding the post judgment costs and attorney fees, which would necessarily include defendants' post judgment motion, their own opposition to that motion, any reply, and record transcripts concerning the court's ruling, as a waiver of the issue on appeal.
As to their narrow claim that the court had no subject matter jurisdiction to enter judgment in favor of defendants on their nuisance cause of action based on the theory that plaintiffs had violated Seacrest's CC&Rs, we conclude the appeal is specious.
Subject matter jurisdiction, or the competency of a court to adjudicate the type of controversy involved, is often referred to as jurisdiction "in the fundamental or strict sense," or the "power to hear or determine the case." (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288; 2 Witkin, Cal. Procedure (4th ed. 1997) Jurisdiction, §§ 6, 10, pp. 551, 555.) Generally, once jurisdiction of the subject matter and of the person is obtained in an action, that jurisdiction continues throughout the action and in related proceedings and is implied in the concept of "fundamental jurisdiction" of the subject matter and the parties. (See Maloney v. Maloney (1944) 67 Cal.App.2d 278, 280 (Maloney); 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 401, p. 1010.)
Since 1969, this principal has been codified in section 410.50, subdivision (b) to provide that "[j]urisdiction of the court over the parties and the subject matter of an action continues throughout subsequent proceedings in the action."
Here, plaintiffs initiated the lawsuit against defendants, seeking declaratory relief based on their interpretation of section 5.22 of Seacrest's CC&Rs. Defendants cross-complained with their own declaratory relief cause of action based on their interpretation of that same CC&R section as well as related nuisance and negligence claims based on plaintiffs' violation of that section. The declaratory relief actions were in controversy at that time and conferred subject matter jurisdiction for the court to resolve the interpretation of the then existing CC&Rs. As noted in the procedural summary above, we reversed the trial court's initial determination of that disputed matter, resolving it against plaintiffs and in defendants' favor when we rendered our earlier decision with directions to the trial court to enter summary adjudication in defendants' favor. The trial court did so and the matter then proceeded to trial before a second trial judge on the remaining causes for which controversy still existed; i.e., on whether plaintiffs' actions during the relevant period of 2002 through 2003 constituted a nuisance on either a common law or CC&R violation theory, and whether their actions were negligent and caused defendants emotional distress.
Clearly, the trial court had subject matter jurisdiction regarding all causes of action from the commencement of the lawsuit through its final decision on the contested nuisance and negligence claims. Even though the second trial judge eventually dismissed defendants' declaratory relief cause of action, such was done after his rulings on the nuisance cause, and not before, as plaintiffs represent in their recitation of the sequence of events at trial in their appellate brief, which is not supported by the record. Thus, at the time the court ruled upon the nuisance cause of action, it had continuing jurisdiction to decide the subject matter of the dispute between plaintiffs and defendants as to whether the plaintiffs' actions at the relevant times in 2002 and 2003 constituted a nuisance under the then existing CC&Rs or common law.
Although we are mindful that a court may dismiss a declaratory relief action as sham, moot, involving no controversy, or under section 1061, which provides that "[t]he court may refuse to exercise the power [to grant declaratory relief] in any case where its declaration or determination is not necessary or proper at the time under all the circumstances," such is a type of discretionary refusal to exercise jurisdiction to act in a particular manner as compared to a total lack of jurisdiction to decide the subject matter. (See Simpson v. Security First Nat. Bank (1945) 71 Cal.App.2d 154; 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 384, pp. 987-988.) When the second judge in this case dismissed defendants' declaratory relief cause of action of the cross-complaint rather than entering judgment on that cause after rendering its decision on the nuisance cause, it expressly explained it was doing so because no further action was necessary at that time. Even though we may disagree with the trial court's ruling in this regard, defendants have not appealed such dismissal or argued that it was improper.
Where a reviewing court has directed the trial court on remand to enter summary adjudication on a cause of action for a party, the trial court generally has no jurisdiction to do other than directed. (See Bell v. Farmers Ins. Exchange (2006) 135 Cal.App.4th 1138, 1143; Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982.)
Normally, when summary adjudication is granted under section 437c, subdivision (n)(1) by one judge and the remaining issues are tried by a different judge, the second judge is bound by the first judge's determination and the party who has lost the summary adjudication may not seek to relitigate the issues already decided by that adjudication before the second judge. (Conway v. Bughouse, Inc. (1980) 105 Cal.App.3d 194, 202-203.) In this case, plaintiffs' initial attempt to relitigate the issue of the applicability of the summary adjudication ruling against them was thwarted by a specific order from Judge Barton that plaintiffs would be bound at trial by their admission that they had violated the then existing CC&Rs which our earlier decision had interpreted in defendants' favor. We believe that plaintiffs' continual challenges to the subject matter jurisdiction of the second judge to apply that determination and their admission at trial and post trial are nothing more than thinly veiled attempts to relitigate or negate such ruling and interpretation against them in order to preclude defendants' right to attorney fees under the CC&Rs.
Plaintiffs fail to appreciate that the judgment against them on the original complaint for declaratory relief based on their interpretation of the then existing CC&Rs, which they do not challenge, as well as defendants' nuisance cause of action based on the same ground, could also support an award of attorney fees.
The record reflects that although the second judge discussed the changed circumstances that defendants had moved from Seacrest and the relevant CC&R had been amended since summary adjudication had been granted in their favor before dismissing the declaratory relief action, he properly considered plaintiffs bound by their admission that they had violated the then existing CC&Rs for purposes of the nuisance cause at trial. Contrary to plaintiffs' representations on appeal, the second judge's comments do not reflect that he agreed with plaintiffs' position that the court did not have subject matter jurisdiction to rule on the matters before it due to those changed circumstances.
In sum, we are simply at a loss to find any conceivable legal or factual merit in plaintiffs' contention that the trial court did not have subject matter jurisdiction to determine that during the relevant time the defendants occupied their unit at Seacrest that plaintiffs committed acts of nuisance by their admitted noncompliance with section 5.22 of the CC&Rs then governing Seacrest. Plaintiffs simply refuse to accept that their violation of Seacrest's CC&Rs during the 2002 to 2003 period when defendants lived there constituted a nuisance for which attorney fees can be awarded. Their arguments regarding subject matter jurisdiction are totally without merit.
II
SANCTIONS ON APPEAL
Defendants have filed a motion seeking sanctions in the form of attorney fees and costs from plaintiffs and their counsel for filing and pursuing a frivolous appeal. Their request is well taken.
We are authorized to impose various types of sanctions when a party or attorney prosecutes an appeal that is frivolous. (See § 907; rule 8.276(e).) Generally, "an appeal is sanction able as frivolous when it is prosecuted for an improper motive to harass the respondents or delay the effect of an adverse judgment, or where it indisputably is totally and completely without merit. [Citation.]" (Weber v. Willard (1989) 207 Cal.App.3d 1006, 1009-1010.)
In In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650 (Flaherty), the court "set forth two alternative tests for determining a frivolous appeal. The first test is subjective: Was the appeal prosecuted solely for an improper motive, such as to harass the respondent or delay the effect of an adverse judgment? [Citation.] . . . [¶] The second strand of Flaherty is objective: Was the appeal so indisputably without merit that any reasonable attorney would agree it was totally devoid of merit?" (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1773.) "The two standards are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay." (Flaherty, supra, at p. 649.)
"Penalties for prosecuting frivolous appeals should not be imposed without giving fair warning, affording the [appellant] an opportunity to respond to the charge, and holding a hearing." (Flaherty, supra, 31 Cal.3d at p. 654.) Before oral argument, we gave plaintiffs and their counsel written notice that the matter of sanctions requested by defendants would be considered when the appeal was heard on the merits. (Rule 8.276(e).) They filed no written opposition to defendants' motion.
Although we recognize sanctions should be used sparingly to deter only the most egregious conduct "so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal" (Flaherty, supra, 31 Cal.3d at p. 650), we conclude sanctions are warranted here. As discussed above, there simply is no basis on which plaintiffs could make a plausible argument that the trial court lacked subject matter jurisdiction to enter judgment on the nuisance cause of action in the cross-complaint based on a violation of Seacrest's CC&Rs at the time of the parties' dispute or to award attorney fees to defendants. Plaintiffs' continual actions taken in the trial court after our earlier decision in this matter and on this appeal to essentially impede the effect of that earlier decision to block an award of attorney fees can only be perceived as "bad faith" tactics to harass defendants and delay the consequences of that earlier adverse decision against them. No reasonable party or attorney would press such views. Thus, after thoroughly reviewing the record and listening to oral argument, we are convinced by clear and convincing evidence (San Bernardino Community Hospital v. Meeks (1986) 187 Cal.App.3d 457, 470) that any reasonable attorney would agree the grounds advanced by plaintiffs for appeal are totally without merit and would not have pursued this appeal. (Flaherty, supra, 31 Cal.3d at pp. 649-650.)
We therefore conclude an award of sanctions for a frivolous appeal is proper. (§ 907; rule 8.276(e).) Although there are no fixed guidelines for measuring an appropriate amount of sanctions, "[w]hen deciding the amount of sanctions to impose, courts may consider 'the amount of respondent's attorney fees on appeal; the amount of the judgment against appellant; the degree of objective frivolousness and delay; and the need for discouragement of like conduct in the future.' " (Keitel v. Heubel (2002) 103 Cal.App.4th 324, 342 (Keitel).)
In support of the sanctions motion, defendants' attorney submitted a declaration stating he has incurred $6,550 in attorney fees for preparing defendants' brief on appeal, $875 in attorney fees for preparing the sanction's motion, and $350 for the costs to prepare the clerk's transcript, for a total of $7,775. No objection to the amount of fees requested has been received. As in Keitel, "the degree of objective frivolousness and delay is extremely high and our desire to discourage like conduct in the future is very strong." (Keitel, supra, 103 Cal.App.4th at p. 342.) We, therefore, grant defendants' request for sanctions and award them $7,775 on a joint and several basis.
DISPOSITION
The judgment is affirmed. The motion for sanctions is granted and sanctions are imposed jointly and severally on plaintiffs and their attorney in the amount of $7,775, payable to defendants. Defendants are also entitled to costs on appeal.
WE CONCUR: McCONNELL, P. J.AARON, J.