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Saaf v. Stepanian

Court of Appeals of California, Fifth Appellate District.
Nov 18, 2003
F040102 (Cal. Ct. App. Nov. 18, 2003)

Opinion

F040102.

11-18-2003

RICHARD W. SAAF, Plaintiff and Appellant, v. ALICE STEPANIAN, Defendant and Respondent.

Richard W. Saaf, in pro. per., for Plaintiff and Appellant. Lozano Smith, Jerome M. Behrens and Maiya Yang for Defendant and Respondent.


Plaintiff and appellant Richard W. Saaf (plaintiff), in pro. per., filed suit against defendant and respondent Alice Stepanian (defendant), alleging defendant breached a written contract to sell her home to him. The trial court granted defendants motion for judgment on the pleadings, dismissed the action with prejudice, and awarded defendant attorney fees and costs. We dismiss the appeal.

PROCEDURAL HISTORY

On November 18, 1999, plaintiff filed a complaint for breach of contract against defendant. Plaintiff alleged he entered into a written agreement with defendant pursuant to which defendant agreed to sell him a single-family residence next to his personal residence. Plaintiff prayed for an order of specific performance and attorney fees. After defendant answered the complaint, plaintiff moved for leave to file a first amended complaint to replace the breach of contract claim with causes of action for fraud and deceit, intentional and negligent misrepresentation, and suppression of fact. Plaintiff also sought to name plaintiffs realtor and title insurance company. The court denied the motion, concluding that insufficient facts were alleged to state causes of action for fraud, misrepresentation or suppression of fact.

Thereafter, defendant moved for judgment on the pleadings on the ground the complaint did not state facts sufficient to constitute a cause of action for breach of contract against her. The court granted the motion without leave to amend, finding "it [was] manifest from the face of the pleadings … that there was never any `mutual assent to the alleged [contract], and further, there [was] no written memorandum of the contract signed by the party to be charged, as required by the statute of frauds." The action was dismissed with prejudice, with costs awarded to defendant.

The court subsequently awarded defendant attorney fees in the amount of $7,377.50. The court also granted defendants motion for entry of judgment nunc pro tunc, to include the attorney fee and cost award in the judgment, effective as of the date of the original judgment. An amended judgment was filed that included the attorney fee and cost award.

DISCUSSION

Plaintiff argues the court erred in granting the motion for judgment on the pleadings and refusing to allow him leave to amend his complaint. Defendant argues the appeal should be dismissed as untimely, moot and/or frivolous, and plaintiff has waived any issues related to the attorney fee and cost award. Defendant also requests an award of sanctions.

Defendant first maintains that the notice of appeal was not timely filed. Plaintiff filed the notice of appeal within 60 days after the mailing of notice of entry of the amended judgment, but not within 60 days after the mailing of notice of entry of the original judgment. (See Cal. Rules of Court, rule 2(a).)

"`The effect of an amended judgment on the appeal time period depends on whether the amendment substantially changes the judgment or, instead, simply corrects a clerical error: … When the trial court amends a nonfinal judgment in a manner amounting to a substantial modification of the judgment … , the amended judgment supersedes the original and becomes the appealable judgment (there can be only one "final judgment" in an action … ). Therefore, a new appeal period starts to run from notice of entry or entry of the amended judgment.… On the other hand, if the amendment merely corrects a clerical error and does not involve the exercise of judicial discretion, the original judgment remains effective as the only appealable final judgment; the amendment does not operate as a new judgment from which an appeal may be taken. [Citations.]" (CC-California Plaza Associates v. Paller & Goldstein

(1996) 51 Cal.App.4th 1042, 1048; see also Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 744.)

In this case, the amended judgment, which awarded defendant in excess of $7,000 in attorney fees, was one of substance. There was no provision of any kind in the original judgment for the award of attorney fees. Therefore, plaintiffs notice of appeal was timely.

Defendant also maintains the appeal is moot, since no effective relief in the form of specific performance may be granted. "A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief." (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.) The parties concede that the property in question has been sold to a third party. In his complaint, plaintiff sought only an order for specific performance and attorney fees and costs. As a result of the sale of the property, relief in the form of specific performance cannot be granted to plaintiff. (See Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10 [dismissal proper where reversal of judgment cannot afford plaintiffs relief].)

The only remaining issue relates to the attorney fee and cost award. However, plaintiff does not raise this issue in his opening brief. We therefore treat it as abandoned. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [issues not raised in appellants brief deemed waived or abandoned].) Dismissal of the appeal is thus warranted.

Defendant requests sanctions on the ground the appeal is frivolous. In reviewing this request, we note that neither party was exemplary in the technical requirements relating to reliance on matters outside the record. Plaintiff, admittedly in pro. per., refers to a lis pendens on the property without proper citation to the record. But plaintiff properly acknowledges that defendant, who is represented by counsel, failed to utilize proper procedures in submitting an additional document to this Court. One simply cannot attach a document to correspondence and then rely on it as if it were part of the record. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; Evid. Code, § 459.) As a practical matter, the oversight was not material, since the parties conceded to the sale of the property in their briefs. (See Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 444, fn. 4 ["Although briefs are outside the record, we may take the factual assertions in a partys appellate brief as admissions."].) Given these deficiencies, this is not a case justifying sanctions.

DISPOSITION

The appeal is dismissed. Costs are awarded to defendant. Defendants request for sanctions is denied.

WE CONCUR: Buckley, Acting P.J., Levy, J. --------------- Notes: In any event, plaintiffs complaint fails to set forth facts to support a claim for breach of contract. Neither the original offer nor any of the subsequent counter offers for sale of the property at issue was signed by both parties. Thus, as recognized by the trial court, there was no mutual assent to support the alleged contract. In short, no contract was ever formed. (See Civ. Code, §§ 1550, 1565, 1580; Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 119, pp. 144-145.)


Summaries of

Saaf v. Stepanian

Court of Appeals of California, Fifth Appellate District.
Nov 18, 2003
F040102 (Cal. Ct. App. Nov. 18, 2003)
Case details for

Saaf v. Stepanian

Case Details

Full title:RICHARD W. SAAF, Plaintiff and Appellant, v. ALICE STEPANIAN, Defendant…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 18, 2003

Citations

F040102 (Cal. Ct. App. Nov. 18, 2003)