Opinion
C096689
08-21-2023
JAMES MAI, Plaintiff, v. JENNY TRIEU et al., Defendants and Respondents; JEAN-PIERRE RUSHING, Third Party Claimant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 3420180227915CUBCGDS)
RENNER, J.
Appellant Jean-Pierre Rushing dba Interwest Judgment Recovery (Rushing), in pro. per., applied for an order for the sale of real property to enforce a money judgment against respondent Jenny Trieu (Trieu). The trial court took the application off calendar without prejudice for lack of jurisdiction based on defective service of notice on an interested third-party. Rushing appeals, arguing notice to the third-party was sufficient.
We will conclude the trial court's order is not appealable. Accordingly, we will dismiss Rushing's appeal.
I. BACKGROUND
James Mai (Mai) filed a first amended complaint against respondent Trieu in August 2018. The first amended complaint asserted causes of action for fraud and conversion, among other things, arising from various real estate dealings. Mai obtained a judgment against Trieu in the amount of $300,909 in January 2021. Mai assigned the judgment to Rushing in February 2021.
Rushing set about enforcing the judgment. He obtained a writ of execution from the court clerk and recorded an abstract of judgment in Sacramento County, creating a judgment lien on two parcels of real property owned by Trieu: (1) a residential property on Enrico Boulevard (the Enrico property), and (2) an industrial property on McComber Street (the McComber property). (Code Civ. Proc., §§ 699.080, subds. (a)(1)-(b), 699.510, subd. (a); see also § 697.310, subd. (a).)
Undesignated statutory references are to the Code of Civil Procedure.
A registered process server delivered copies of the writ of execution and instructions to the Sacramento County Sheriff's Office on May 24, 2021. The Sheriff's Department issued notices of levy for the Enrico and McComber properties that same day.
The process server recorded copies of the writ and notices of levy for the Enrico and McComber properties on May 24, 2021. (§§ 699.080, subd. (a)(1) &700.015, subd. (a).) She served copies of the writ and notices of levy on Trieu and persons related or otherwise personally associated with her that same day. (§§ 699.080, subd. (a)(1) &700.010, subds. (a) &(b).) As relevant here, she also posted copies of the writ and notice of levy on the door of the McComber property. (§§ 699.080, subd. (a)(1) &700.015, subd. (c).) The notice of levy was addressed to "occupant."
Rushing filed an application for an order for the sale of the Enrico and McComber properties and an ex parte application for an order to show cause why the properties should not be sold in July 2021. Another registered process server served copies of the application and order to show cause on Trieu and her associates. As before, the process server posted copies addressed to "occupant" at the McComber property.
Rushing moved to continue the hearing on the application so he could conduct discovery, including examinations of Trieu and others. As relevant here, Rushing examined Felipe Marin, the proprietor of Marin's Roofing, Inc. (Marin's Roofing), a business occupying the McComber property. Rushing also subpoenaed documents from Marin. The hearing was postponed several times as discovery continued.
Rushing filed an amended application for an order for the sale of the Enrico and McComber properties in April 2022. The amended application was supported by a declaration from Rushing, which describes the steps taken to enforce the judgment. Among other things, the declaration avers that Marin produced a copy of a" '[r]ent-to-[o]wn [a]greement'" for the McComber property in discovery. The agreement, which is dated April 1, 2013, identifies Trieu as the" '[l]andlord' or '[s]eller'" of the McComber property and Marin as the" '[t]enant' or '[b]uyer.'" The agreement contemplates that Marin would pay monthly rent in the amount of $1,700, which would be credited towards an agreed upon purchase price of $270,000.
The declaration explains that Rushing examined Marin on two separate occasions, each time pursuant to subpoena. According to the declaration, Marin testified he made lump sum payments to Trieu amounting between $70,000 and $80,000, which he understood to have been applied to the purchase price specified by the rent-to-own agreement.
As we shall see, these payments appear to have been made in addition to the monthly rental payments, which were also applied to the purchase price for the McComber property.
The amended application sought an injunction prohibiting Trieu and others, including Marin, from causing waste or damage to the McComber property. The amended application was accompanied by a proposed order to this effect, which identified Marin by name.
The amended application was personally served on Trieu and mail served on her associates. The amended application was not personally served or mail served on Marin or Marin Roofing. Instead, the documents were again addressed to "occupant" and posted to the McComber property.
Trieu, through an attorney, opposed the amended application. She argued Marin had an ownership interest in the McComber property, and the trial court lacked jurisdiction over him. The opposition was supported by a declaration from Marin, averring he had made monthly rental payments and a lump sum payment of approximately $80,000 under the rent-to-own agreement, "and upon payment of the unpaid purchase price (approximately $15,000.00) the McComber property will belong to me."
Rushing filed a reply brief and "opposition" to the Marin declaration, arguing: (1) Marin was properly served with the notice of levy as an "occupant" of the McComber property; (2) Marin failed to timely assert an ownership interest in the McComber property; and (3) Marin was not a party to the action and had a "lack of standing to file anything."
The trial court issued a tentative ruling on May 23, 2022. The tentative ruling explains that the matter was "DROPPED from the calendar due to insufficient service of notice on all known parties with potential interests in the properties at issue, including but not limited to Felipe Marin." The tentative ruling observes that Marin was described in the moving papers as a person with a potential interest in the McComber property and specifically named in the proposed order. "Nevertheless," the tentative ruling continues, "no proof of service reflects that Mr. Marin has been timely and properly served with the moving papers for this matter." (Emphasis omitted.)
The tentative ruling went on to note a contradiction between Rushing's amended application and proposed order, both of which specifically name Marin and seek relief against him, and his arguments that Marin lacks standing to file anything in the case, and could not be heard to object to the proposed sale. The trial court tentatively rejected Rushing's argument. The trial court observed that other third parties were said to have interests in the Enrico property, and Rushing should be prepared to address all such interests should he choose to refile the application. In the meantime, however, the trial court tentatively concluded that it lacked jurisdiction to act. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)
Rushing contested the tentative ruling. The trial court heard argument and took the matter under submission. The trial court then affirmed the tentative ruling. In a submitted matter ruling dated June 2, 2022, the trial court noted Rushing "failed to address the contradiction described in the Court's tentative ruling, i.e., even though the relief sought in the proposed order names Marin specifically, [Rushing] simultaneously argues that Marin is not a party to this action, did not need to be served with the moving papers, and cannot now assert any interest in the real property or challenge the proposed sale." Instead, Rushing focused on the notice requirements for levying upon real property (§§ 700.015, subds. (a)-(c), 704.770), and Marin's failure to challenge the notice of levy. These arguments were not enough to convince the trial court that service was sufficient under the circumstances presented. The trial court explained: "In the specific circumstances of this particular case, the Court has determined that due process and fairness require service of notice upon known interested parties, i.e., Marin. Again, the moving papers themselves concede that Marin is a third party with a potential ownership interest in the real property. The argued compliance with the requirements for the levy process do not, under these facts, preclude the Court's finding that due process and fairness necessitate service on Marin."
The trial court rejected Rushing's argument that Marin forfeited any right to assert his ostensible interest in the McComber property, noting that third party claim procedures are optional, not mandatory. (§ 720.150, subd. (b); see also Regency Outdoor Advertising, Inc. v. Carolina Lanes, Inc. (1995) 31 Cal.App.4th 1323, 1329.) The trial court also rejected Rushing's argument that Marin's declaration could not properly be considered. The trial court concluded: "For all the foregoing reasons, and to ensure fairness and due process here, the matter is dropped from the calendar without prejudice to re-filing." Rushing did not refile the application, but instead filed the instant appeal.
II. DISCUSSION
We begin with the issue of appealability. (West v. Arent Fox LLP (2015) 237 Cal.App.4th 1065, 1069.) Rushing argues the order is appealable under section 904.1, subdivision (a)(2). Trieu responds that the order is not appealable because it does not determine the rights or obligations of any of the parties. We agree with Trieu.
An order entered after an appealable judgment is itself appealable under section 904.1, subdivision (a)(2). However, not every postjudgment order is appealable. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 [construing former § 904.1, subd. (b), now § 904.1, subd. (a)(2)].) Postjudgment orders are not appealable when they are "preliminary to some future judgment from which the order might be appealed." (Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1123; cf. Finance Holding Co., LLC v. Molina (2018) 29 Cal.App.5th 663, 679 ["the key test for finality of a third party discovery order in enforcement proceedings is whether the challenged order reflects a final determination of the rights or obligations of the parties or whether it contains language showing it is preparatory to a later ruling that will be embodied in an appealable judgment or order"].)
It is hard to imagine an order more "preliminary" than the one currently before us. (Day v. Collingwood, supra, 144 Cal.App.4th at p. 1123.) The order expressly declines to consider the merits of the amended application and drops the matter from the calendar without prejudice to refiling. The order thus makes clear that the parties' rights and obligations will be adjudicated later, after proper service of notice has been effected. Such an order cannot be said to finally resolve anything.
Sensing trouble, Rushing argues in the alternative that we should exercise our discretion to treat his purported appeal as a petition for writ of mandate. (See generally MinCal Consumer Law Group v. Carlsbad Police Dept. (2013) 214 Cal.App.4th 259, 265 ["appellate courts have the discretion to treat an appeal from a nonappealable order as a petition for writ relief, and thus determine the merits of the challenge to the order, but only under limited, extraordinary, circumstances"].) Where a petitioner has an adequate remedy at law by way of an appeal, writ relief will ordinarily be denied. (See Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211, 214 ["We dismiss the appeal as taken from a nonappealable order and deny the petition for a writ of mandate because Bergen has an adequate remedy at law"].)
Rushing argues he cannot simply refile the amended application, as the trial court's order suggests. Instead, Rushing says he would be forced to levy anew, "thereby losing his execution lien created by his May 24, 2021 levies." That Rushing may lose his execution lien does not, in the circumstances of this case, present an extraordinary or compelling reason for treating the purported appeal as a petition for writ relief.
Rushing directs our attention to section 697.710, which provides: "A levy on property under a writ of execution creates an execution lien on the property from the time of levy until the expiration of two years after the date of issuance of the writ unless the judgment is sooner satisfied." As previously discussed, Rushing obtained a writ of execution and delivered the writ with instructions to the Sheriff's Office on May 24, 2021. A registered process server created an execution lien by recording the writ and notice of levy with the Sacramento County Recorder's Office that same day. The lien expired by operation of law on May 24, 2023, while Rushing's purported appeal was pending.
We note in passing that the case was not fully briefed until April 14, 2023.
Rushing may lack the present ability to refile the amended application, but nothing prevented him from doing so in June 2022, when the trial court suggested it. Had he refiled and properly served the amended application then, he might not now be faced with the prospect of returning to square one. Rushing's litigation choices do not constitute extraordinary and compelling grounds for treating an appeal from a nonappealable order as a petition for writ relief. (MinCal Consumer Law Group v. Carlsbad Police Dept., supra, 214 Cal.App.4th at p. 265.)
We reiterate that Rushing filed an initial application in July 2021 and continued the hearing on the application several times in order to conduct discovery.
III. DISPOSITION
The appeal is dismissed. Respondent is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: EARL, P. J., HULL, J.