Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIC426928 Craig G. Riemer, Judge.
Law Office of John Derrick and John Derrick for Plaintiffs and Appellants.
Jon H. Lieberg for Defendants and Respondents.
OPINION
MILLER, J.
Plaintiffs Alex Kodnegah (Kodnegah) and Royal Homes (Royal) (collectively Plaintiffs) appeal from a judgment of dismissal entered after the trial court sustained the demurrer of defendants Prestige Developers, Inc. (PDI) and Arthur J. Fleming (A. Fleming) without leave to amend. Plaintiffs claim that the trial court erred when it determined that the fifth amended complaint failed to state a cause of action under any theory. We find that we have no jurisdiction to hear this appeal because it was not timely filed. Therefore, the appeal is dismissed.
FACTUAL AND PROCEDURAL HISTORY
On March 10, 2005, Kodnegah filed a verified complaint against Engineering Ventures, Incorporated (EVI), the estate of Randolph F. Fleming (R. Fleming), PDI, A. Fleming, and others not relevant to this appeal, alleging breach of contract, negligence and fraud. Kodnegah alleged that he entered into a contract with defendants on December 4, 2003, to have a tract map finalized and presented to the appropriate county planning commission so that he could construct 28 homes. He tendered the sum of $15,288 for the professional engineering services. Although defendants represented that the work would be completed in a timely and professional manner and knew that time was of the essence, little if any work was performed for eight to nine months resulting in an unnecessary delay in construction. The failure of defendants to timely file the map approved by the City of Beaumont with the county planning commission (instead, filing a new tract map) and failure to have a licensed, registered engineer present at the final planning commission hearing, allowed the new map to be rejected. This resulted in a reduction of the number of homes that Kodnegah could construct from 28 to 23 and consequent damages in excess of $1,800,000. Although Kodnegah was variously advised that R. Fleming, to whom the work was assigned, was on vacation, was out sick, or was unavailable, R. Fleming was actually seriously ill and ultimately died. Defendants concealed that fact so as not to lose the contract with Kodnegah. Had Kodnegah known of R. Fleming’s health problems, he would have retained another engineering firm. A proof of service was filed on August, 8, 2005, showing that A. Fleming was served with the initial complaint. He never filed a responsive pleading and two days after the proof of service was filed, Kodnegah filed an amended complaint.”
Kodnegah originally named the estate of Randolf R. Fleming and later amended the complaint to name the estate of Randolf F. Fleming. It appears from the record that the proper spelling of the name is Randolph F. Fleming.
The first amended complaint added causes of action for successor liability, to set aside a fraudulent transfer, conspiracy (deceit) and alter ego liability, and sought injunctive relief and the appointment of a receiver. This complaint added the allegations that R. Fleming and A. Fleming owned EVI, that R. Fleming was the sole registered civil engineer employed by EVI, and that A. Fleming was the legal representative of R. Fleming’s estate. After R. Fleming’s death, A. Fleming became the CEO and sole owner of EVI. After learning of Kodnegah’s claim, defendants changed the name of EVI to PDI to avoid liability. PDI occupied the same office space and employed all of the same employees as EVI. PDI did not compensate EVI for the assets over which it assumed ownership. As such PDI was alleged to be the successor and alter ego of EVI. The transfer of EVI’s assets to PDI, which rendered EVI insolvent, was done with the intent to defraud Kodnegah, a creditor of EVI.
On August 31, 2005, Kodnegah sought and was granted an order allowing him to file a second amended complaint. That complaint, filed the same day, further alleged that defendants’ failure to inform Kodnegah that R. Fleming was not performing under the contract was part of a pattern and practice whereby EVI would make false billing entries, allowing defendants to debit client accounts and give the false impression that work was proceeding.
On October 7, 2005, PDI and A. Fleming (individually and as executor of the estate of R. Fleming) filed a demurrer to the second amended complaint on the grounds that the estate of R. Fleming could not be sued, that the breach of contract and negligence causes of action failed to allege compliance with Code of Civil Procedure section 411.35, that the cause of action for deceit failed to state a cause of action because it lacked the required specificity, and that the causes of action for deceit and alter ego did not state a cause of action against the estate or against A. Fleming as executor because no claim was made in the probate action. The demurrer was sustained on the entire complaint as to the estate of R. Fleming, and as to the causes of action for breach of contract, conspiracy (deceit), negligence and alter ego liability, with leave to amend. It alleged that EVI was no longer a corporation in good standing. It identified the EVI employee who was alleged to have misinformed Kodnegah as to whether the work was being done and by whom. It alleged that the declaration required by section 411.35 had been filed. It claimed that the name change from EVI to PDI was a fraudulent attempt to avoid liability for this claim, for other similar claims, and for income taxes. The fourth cause of action was renamed deceit and the conspiracy allegations were removed. A. Fleming was no longer named in the causes of action for deceit and negligence.
All further statutory references will be to the Code of Civil Procedure unless otherwise indicated.
EVI’s status with the Secretary of State was listed as “suspended.”
On January 3, 2006, PDI and A. Fleming demurred to the third amended complaint. PDI challenged the causes of action for breach of contract, deceit, and negligence on the grounds that Kodnegah failed to comply with section 411.35 and failed to state facts sufficient to constitute a cause of action. A. Fleming challenged the entire complaint for failure to state a cause of action against him. PDI’s demurrer was sustained only as to the cause of action for fraud, with leave to amend, while A. Fleming’s demurrer was sustained with leave to amend as to both causes of action pled against him.
Kodnegah filed his fourth amended complaint on February 27, 2006. He omitted the cause of action alleging alter ego liability and alleged that A. Fleming conspired to transfer EVI’s assets to PDI without compensation in order to make them unavailable for this claim. PDI and A. Fleming demurred to the fourth amended complaint in its entirety on the grounds that Kodnegah lacked standing, that A. Fleming cannot have conspired with EVI or PDI, and that the facts alleged were insufficient to state a cause of action.
Prior to the hearing on the demurrer, Kodnegah moved for leave to file a fifth amended complaint in order to add Royal (the title holder of the property at issue) as a plaintiff, and to add a cause of action against A. Fleming for aiding and abetting the fraudulent transfer of assets from EVI to PDI. Over the objections of PDI and A. Fleming, and despite its recognition that the motion was technically defective in that Plaintiffs had made no showing of good cause supported by newly discovered evidence, the trial court granted the motion on conditions expressly accepted by Plaintiffs, and the demurrer was taken off calendar. In making this order the trial court warned Plaintiffs that it was concerned about the points raised by the defendants concerning the adequacy of the proposed fifth amended complaint and suggested that they consider revising the complaint before submitting it. They failed to do so.
The operative fifth amended complaint was filed on July 18, 2006. PDI was named in causes of action for breach of contract, imposition of successor liability, to set aside a fraudulent conveyance, deceit, negligence, conspiracy to defraud, and aiding and abetting a fraudulent transfer. A. Fleming was named only in the last two. Plaintiff Royal was a Nevada corporation authorized to do business in California and wholly owned by Kodnegah. Royal was the title owner of the land for which the final tract map was to be obtained and was a third party beneficiary of the contract between Kodnegah and EVI. In this latest complaint, it was alleged that EVI was solely owned by R. Fleming until his death, at which time A. Fleming became EVI’s president, CEO, and owner.
On August 17, 2006, PDI and A. Fleming filed a demurrer to the fifth amended complaint on the grounds that Kodnegah lacked standing, that the pleading was false and constituted a sham, and that none of the allegations of Plaintiff under any of their theories were sufficient to state a cause of action. More specifically, PDI and A. Fleming alleged that the premise for the complaint, that they failed to convert an approved tentative tract map to a final map, was not supported because there never was an approved tentative tract map. Because the claimed damages flowed from the failure to convert an approved tentative map that never existed, each cause of action fails. Kodnegah does not have standing because the claimed damages belonged to the owner of the land; Royal and Kodnegah cannot rely on the fact that he is the sole shareholder. Royal cannot pursue a contract action because it is not a party to the contract, and because it had no capacity to contract at the time the contract was entered, it cannot be a third party beneficiary to the contract. Further, because the negligence and fraud causes of action were based upon duties that depended on the existence of a contract, Royal had no claim for those either.
Because the remaining causes of action are dependent on underlying liability for breach of contract, negligence and fraud claims upon which Royal cannot recover, they also fail to state a claim for which Royal can recover. Because an employee of a corporation cannot conspire with or aid and abet the corporation, those causes of action also fail to state a claim. The facts supporting the fraud/deceit cause of action are inconsistent with prior pleadings (including a verified pleading) without explanation and the cause of action should therefore be deemed a sham. Further, Plaintiffs failed to plead justifiable reliance on any misrepresentations: They should have known that the tentative map had not been approved, they could not rely on any promise regarding the future decisions of the planning commission, and the contract expressly excluded any guarantee regarding the number of lots that might be approved. Finally, the fraud cause of action failed to plead each of the elements of fraud with the required specificity. At the hearing the trial court asked counsel for Plaintiffs why the case should continue if no tentative map was ever approved. Counsel stated that he had no answer for that question and based largely upon that response the trial court sustained the demurrer without leave to amend.
The demurring defendants then prepared and filed a request for dismissal on November 8, 2006. The clerk entered the dismissal on the same date. Notice of entry of the dismissal was served on the following day.
On November 13, 2006, after retaining new counsel, Plaintiffs filed a motion for reconsideration. The motion asserted that based upon newly discovered evidence, the allegations of the complaint would no longer revolve around a tentative map approval that preceded the contract between Kodnegah and EVI, but rather would be based upon the June 20, 2004, approval of subdivision conditions. Allegedly, due to the actionable conduct of the defendants, the approval was for 23 lots instead of 28, despite the recommendation of the planning director that 28 lots be approved. At a hearing on April 3, 2007, the motion was denied because by that time, a judgment of dismissal had been entered and the trial court no longer had jurisdiction to grant the motion.
While that motion was pending, on November 17, 2006, the trial court, on its own motion, vacated the order made at the hearing on the demurrer to the fifth amended complaint dismissing the action as to all defendants, as well as the dismissal as to all defendants entered by the clerk on November 8, 2006. Instead, the action was dismissed with prejudice only as to the moving defendants, leaving it viable as to EVI. A signed, written order dismissing the action as to the moving defendants was filed on November 20, 2006.
The prevailing defendants filed a motion for attorney’s fees on January 16, 2007, based upon the provisions in the contract. At the April 3, 2007, hearing the motion was granted in the amount of $70,000. The first notice of appeal was filed on April 12, 2007, and purported to appeal from the “judgment of dismissal . . . entered on October 24, 2006,” and the orders denying Plaintiffs’ motion for reconsideration and granting the motion for attorney’s fees. A second notice of appeal, filed on May 18, 2007, appealed from the judgment of dismissal entered on November 20, 2006.
DISCUSSION
A. The Appeal is Not Timely.
Because our jurisdiction to entertain this appeal depends upon it having been timely filed (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666-667; Estate of Hanley (1943) 23 Cal.2d 120, 122), we address this issue first.
Defendants contend that the appeal was not timely filed because more than 60 days had passed from mailing of notice of entry of judgment. California Rules of Court, rule 8.104(a) provides that “a notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (3) 180 days after entry of judgment.”
All further rule references will be to the California Rules of Court unless otherwise indicated.
The trial court’s oral pronouncement of dismissal on October 24, 2006, was not a final, appealable judgment. (§ 581d [dismissal orders must be written, signed by the court and filed to constitute judgment].) Therefore, the attempted appeal from that order was not appropriate. Next, without passing on whether it was proper for the demurring defendants to file a request for dismissal (see § 581, subds. (b)(1), (2) & (f)(1)), we observe that the dismissal entered by the clerk on November 8, 2006, was subsequently vacated, not just as to EVI, but in its entirety. “A judgment, when vacated, cannot be effective for any purpose. [Citations.]” (Levy v. Drew (1935) 4 Cal.2d 456, 459.) Consequently, there was no November 8, 2006, judgment to appeal from. The final, appealable judgment in this matter was that entered by the trial court on November 17, 2006, and filed on November 20, 2006. (§ 581d.)
Although defendants incorrectly argue that Plaintiffs had 60 days to appeal from notice of the November 8, 2006, dismissal instead of the November 20, 2006, judgment, Plaintiffs did address the issue whether the superior court clerk’s notice of the November 20, 2006, judgment triggered the 60-day time limit for filing this appeal in their opening brief.
In the instant case there is no contention made, nor is there any evidence in the record, that any of the parties to the action served a notice of entry of the November 20, 2006, order or a file-stamped copy of that order. The question we must consider then, is whether the 60-day time limit of rule 8.104(a)(1) applies, or whether Plaintiffs had 180 days to file their appeal. The California Supreme Court has determined that rule 8.104(a)(1) must be strictly complied with in order to trigger the 60-day time limit. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902-903 (Alan).) It also held that rule 8.104(a)(1) requires the existence of a single document, one titled “notice of entry” or a file-stamped copy of the appealable order or judgment, in order to satisfy its conditions. (Alan, supra, 40 Cal.4th at p. 905.) In Alan, the appealable order was the minute order, but it was not file-stamped. The clerk’s notice did also contain a file-stamped statement of decision, but that was not the appealable order. Further, the minute order did not expressly incorporate the statement of decision. The court held that the two documents could not be combined in order to comply with the rule and therefore concluded that the court clerk’s mailing did not trigger the 60-day time limit in which to file a notice of appeal. (Id. at pp. 901-902, 905.)
In this case, the file-stamped, signed order constitutes the judgment. It is a single document that satisfies the first requirement of rule 8.104(a)(1). The second requirement, that the document show the date on which it was mailed, can be satisfied by the clerk attaching a certificate of mailing to that document. (Alan, supra, 40 Cal.4th at p. 905.) In the instant case, there is a clerk’s certificate of mailing dated November 20, 2006, indicating that the attached order was mailed to all counsel, including two attorneys that had represented Plaintiffs. This certificate of mailing establishes that the order to which it was attached was served on November 20, 2006. Consequently, the 60-day time limit in which to file a notice of appeal was triggered and Plaintiffs had only until January 19, 2007, to do so. (Rule 8.104(a)(1).) Plaintiffs did not file their first notice of appeal until April 12, 2007, well beyond the 60-day limit.
Plaintiffs argue that the record is ambiguous whether the notice mailed by the superior court clerk included the file-stamped judgment or not. We do not agree. The total notice consists of six pages. The first page is the signed, file-stamped judgment. The second page is a minute order dated November 17, 2006, reflecting that the trial court vacated the November 8, 2006, dismissal, dismissed the demurring defendants with prejudice, and set a date for a status conference hearing. That document separately reflects that notice was sent to counsel for all parties on November 20, 2006. The third page is a mailing list for the notice of the “‘SCH’” (status conference hearing). The fourth page is the notice of the status conference hearing including the clerk’s certificate of mailing for that “NOTICE.” The fifth page is a clerk’s certificate of mailing showing that the attached “order” was mailed on November 20, 2006. The sixth page is a mailing list for the “‘CCM’” (clerk’s certificate of mailing), which includes counsel for all parties. Plaintiffs ask us to conclude that the certificate of mailing applied only to the minute order, and not to the judgment, which was entitled “Order Vacating Erroneous Dismissal.” In order to credit the argument of Plaintiffs we would have to conclude that no proof of service can ever be trusted to have included the attachment or that a typographical error by which the court clerk omitted the letter “s” from the word “order” should defeat notice. This we decline to do. Both the minute order and the notice of the status conference hearing have separate indications that notice was sent. We are confident that the file-stamped order attached to the clerk’s certificate of mailing was the “order” referred to in that document.
Although neither party has cited the case, we note that our own review has shown Montgomery Ward & Co. v. Imperial Casualty & Indemnity Co. (2000) 81 Cal.App.4th 356, to be distinguishable. In that case, the court held that because it was not clear that a file stamped copy of the judgment was included with the minute order sent by the court clerk, the 60-day time period was not triggered and the appellant had 180 days in which to timely file a notice of appeal. (Id. at p. 372.) There, the clerk’s certificate of mailing stated that the parties were noticed “‘by copy of this minute order . . . .’” (Ibid.) The court’s conclusion that it was unclear whether the separate judgment was sent when the notice referred only to the minute order is patently correct. However, in this case the clerk’s certificate of mailing did not identify the attached minute order, but the attached order, which was the title borne by the November 20, 2006, judgment. Because the notice of appeal was filed late, we must dismiss the appeal. (Rule 8.104(b).)
B. Requests for Judicial Notice.
PDI and A. Fleming filed requests for judicial notice with this court on January 30, 2008, and March 18, 2008. These requests seek to enter for this court’s consideration certain responses to discovery, deposition testimony of Kodnegah, minutes of the Beaumont City Council, records from the court proceedings regarding the estate of R. Fleming, and records from the bankruptcy involving EVI. None of the documents sought to be introduced bear on the question whether this appeal was filed in a timely manner. Consequently, the documents being irrelevant to the determination of the issues in this appeal, the January 30, 2008, and March 18, 2008, requests for judicial notice are denied. (Evid. Code, § 459; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)
DISPOSITION
The appeal is dismissed for lack of jurisdiction. Respondents to recover their costs on appeal.
We concur: HOLLENHORST, Acting P. J., GAUT, J.