Opinion
D057690
12-20-2011
MICHAEL G. HUDSON, Plaintiff and Appellant, v. WASHINGTON MUTUAL BANK, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2007-00079971-CU-OR-NC)
APPEAL from an order of the Superior Court of San Diego County, Earl H. Maas III, Judge. Affirmed.
Michael Hudson, appearing in propria persona, appeals from a postjudgment order setting proposed repayment terms on a judgment for equitable subrogation entered in favor of Washington Mutual Bank (WaMu). Michael's opening brief, however, addresses the judgment entered in favor of WaMu. WaMu argues that we lack jurisdiction to review the purported appeal from the judgment. We agree that, to the extent Michael sought to appeal from the judgment, that appeal is untimely and we lack jurisdiction to review the judgment. Because Michael offered no argument addressing the postjudgment order, that order is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Matthew Hudson, Michael's brother, held title to certain real property located in Fallbrook, California (the Subject Property), through a grant deed executed by John Dunstan and recorded in 2003. In 2004, Matthew obtained two loans on the Subject Property from different lenders (Loans One and Two) in the total amount of $399,500. Both loans were secured by deeds of trust recorded against the Subject Property.
On February 28, 2005, Matthew transferred his interest in the Subject Property to Michael through a grant deed recorded on March 10, 2005. However, eight days earlier and unbeknownst to Michael, on March 2, 2005, Matthew obtained a $423,750 loan from WaMu (the WaMu Loan), which was secured by a deed of trust recorded against the Subject Property on May 23, 2005. At the closing of the WaMu Loan, Matthew used $410,584.56 of the funds to pay off Loans One and Two. As a part of the payoff of Loans One and Two, the trustees executed and recorded full reconveyances of the liens on the Subject Property.
On May 17, 2005, Matthew executed and recorded a grant deed purportedly transferring title to the Subject Property from Michael back to him (the Fraudulent Grant Deed). Matthew then took out a construction loan from Dunstan (the Dunstan Loan) in the amount of $34,445, secured by the Subject Property. At some point thereafter, Matthew failed to make required payments under the Dunstan Loan.
In 2007, Michael learned about the Dunstan Loan, the WaMu Loan and the Fraudulent Grant Deed. Michael filed this action against WaMu and Dunstan to quiet title and sought injunctive and declaratory relief. WaMu filed a cross-complaint for, among other things, equitable subrogation, on the ground that Michael had been unjustly enriched by the funding of the WaMu Loan. Ultimately, Dunstan foreclosed on the Subject Property in 2008.
After the trial court granted judgment on the pleadings on Michael's request to quiet title and for injunctive relief, it held a bench trial on Michael's remaining claim for declaratory relief and WaMu's claim for equitable subrogation. On October 23, 2009, the court entered a judgment ordering that title to the Subject Property be placed in Michael's name subject to an equitable lien held by WaMu in the amount of $410,584.56. On May 7, 2010, the trial court issued a postjudgment minute order setting forth a repayment plan for Michael's outstanding obligation to WaMu. (Unless otherwise indicated, all further dates are in 2010.) The May 7 order gave Michael the option to reject the terms or 30 days to accept the terms. On May 12, Michael filed for bankruptcy protection. On June 24, the trial court signed a written order repeating the terms of the May 7 minute order and restating that WaMu was entitled to equitable subrogation and had a lien on the Subject Property as previously stated in the judgment.
DISCUSSION
The timely filing of a notice of appeal is a jurisdictional prerequisite to the appellate court's power to entertain the appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Under rule 8.104 of the California Rules of Court, unless a statute or rule 8.108 (concerning new trial motions) provides otherwise, a notice of appeal must be filed on or before the earliest of: (1) 60 days after the superior court clerk mails the notice of entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; (2) 60 days after the date of service of the notice of entry of judgment; or (3) 180 days after the date of entry of the judgment. Where several judgments or orders occurring close in time are separately appealable, 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. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.)
Here, the trial court entered its judgment on October 23, 2009. On July 6, Michael filed his notice of appeal, which is on a Judicial Council form. The form contains a series of boxes to be checked off by the appellant indicating the type of judgment or order being appealed. Michael checked the "Judgment after court trial" box, but then crossed this out and initialed the change. He then checked the "Other" box, following which he wrote: "Tentative Ruling 5-7-10 Ex Parte []."
There is no indication that a notice of entry of judgment was ever filed and served by any of the parties. Thus, to the extent Michael sought to appeal from the judgment, he was required to file his appeal within 180 days of the entry of judgment. (Cal. Rules of Court, rule 8.104(a)(3).) The time period between October 23, 2009, and July 6, 2010, is 256 days, rendering any appeal from the judgment untimely by 76 days. Accordingly, we lack jurisdiction to review the judgment entered on October 23, 2009.
The only matter for which a timely notice of appeal was filed, and that is thus within our jurisdiction, is the postjudgment minute order dated May 7, addressing payment terms on the judgment. As to that matter, Michael has tendered no argument and has not met his burden of showing how the trial court erred when it set forth the optional payment terms. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' "].) Thus, the May 7 postjudgment minute order is affirmed.
Although Michael asserts that the trial court also addressed a request for reconsideration at the May 7 hearing, there is no motion for reconsideration in the Clerk's Transcript, the minute order does not address such a request and the parties did not argue a reconsideration request at the hearing. Finally, Michael complains that the trial court signed the June 24 order after he filed for bankruptcy. Michael, however, did not appeal from the June 24 order and we render no opinion thereon.
DISPOSITION
The May 7, 2010, postjudgment order is affirmed. Respondent is entitled to its costs on appeal.
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MCINTYRE, J.
WE CONCUR:
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MCCONNELL, P. J.
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AARON, J.