Opinion
G029453.
7-8-2003
TARI SODERLING, Plaintiff and Appellant, v. RENIX, INC., et al., Defendants and Appellants.
John R. Marshall III for Plaintiff and Appellant. Carolyn M. Dunnett for Defendants and Appellants.
Tari Soderling appeals the judgment in favor of Renix, Inc., doing business as Newport Boats and its president Sid Partow (hereafter collectively "Newport Boats" unless the context indicates otherwise) in her action alleging Newport Boats breached a written contract requiring it to pay her a commission on the sale of a new yacht. She contends the trial court erred in finding she was not the "procuring cause" of the yacht sale. In its cross-appeal, Newport Boats contends the trial court erred in striking its memorandum of costs because it was untimely. We affirm the judgment and postjudgment order.
I
SODERLINGS APPEAL
FACTS
Soderling worked for Newport Boats as an independent contractor. She was the manager of the brokerage department and was responsible for the sale of used boats. In June 1996, she signed the "Broker Salesperson Contract" at issue here (the contract). Although Soderling was hired to sell only used boats, the contract provided, "`New boat commission will be 6 percent of gross profit to salesperson." The contract also provided it would "`supercede any previous agreement entered into between Newport Boats and salesperson."
Unfortunately, although this is a breach of written contract action and the contract was an exhibit at trial, it has not been provided to us on appeal. Soderling did not file a Rule 18 notice (Cal. Rules of Court, rule 18) designating any exhibits to be considered by this court on appeal. The contract is not contained in the clerks transcript. Some of the provisions of the contract were read into the record at trial and we rely upon that record for the pertinent provisions. Beyond what has been read into the record, we cannot assume that any of the other documentary evidence supports Soderlings position. (See Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291 ["Where exhibits are missing we will not presume they would undermine the judgment"].)
The contract also contained the following provisions: "`Salesperson shall have absolute discretion in deciding upon whether to work and the method for dealing with any such lead suggested by the brokerage[;]" "`The brokerage agrees, however, to obtain no authority or right to direct or control salespersons actions except as specifically required by law[;]" "`Salesperson assumes and agrees to perform no other activities in association with the brokerage except to solicit and obtain listing and sales for the parties mutual benefit."
The parties stipulated to the following facts: A potential customer, Rusty West, called Newport Boats expressing interest in a new yacht he saw on the cover of a magazine. He later came in and was greeted by Soderling. Soderling did not log West into Newport Boats guest register. She showed West some used and new vessels, including the new yacht he eventually purchased. West was not ready to buy a boat and left. Soderling did not negotiate a sales price, obtain a deposit, obtain a signed purchase agreement, or demonstrate or deliver any boat to West.
West later returned, spoke with Newport Boats manager, Anita Mays, who directed him to Newport Boats new yacht salesperson, Scott Bruce. Bruce showed West the new yacht he eventually bought, demonstrated the yacht, negotiated the purchase, got a signed contract, and delivered the yacht to West. Bruce was paid his usual commission of 20 percent of the profit. Soderling refused Newport Boats offer of a $ 1,000 bonus for "greeting the customer," and instead resigned.
Soderling testified that on the day West came in, he expressed interest only in used boats. She "spent quite a bit of time" on the phone with West, and several hours with him at the brokerage showing him various used vessels. She also showed him a couple of new vessels including the one he eventually bought, a 560 Sedan Bridge. Soderling spent about 30 minutes showing West the 560 Sedan Bridge. When they stepped off the boat, Soderling asked Mays about the yachts pricing; Mays replied $ 1.2 million. When West left, he was still interested in a used vessel so he made an appointment with Soderling to come back later; Soderling was to continue looking for a used boat for him. That was the last she heard from West; he did not return her subsequent phone calls. She later learned he had bought the 560 Sedan Bridge.
Soderling agreed she was hired to sell used boats for Newport Boats and had never sold a new vessel. She conceded she had received a copy of Newport Boats employee handbook that specified a sale was not complete until the vessel has been delivered and paid for in full. Soderling agreed it was Newport Boats policy that if a customer was interested in a new yacht, she was to refer the customer to Bruce. She also testified that she "never had an opportunity to make [the sale to West because the] client was stolen from me."
Mays testified that on the day West came in, Mays saw West and Soderling get off the yacht and Soderling asked her about the price. Soderling did not log West into the guest register despite a Newport Boats policy that all customers must be registered. When West returned later that day, Mays spent a couple hours showing him yachts, narrowing it down to two. She then turned West over to Bruce, Newport Boats only new yacht salesperson. Newport Boats profit on the yacht was about $ 92,000, from which Bruce received his commission of about $ 18,000.
Bruce testified about what selling the yacht to West entailed. After spending time on the telephone with West, Bruce spent several hours getting the two yachts West was interested in ready for sea trials. Bruce took West out on the two yachts for about five hours total, then spent several more hours talking to West about the yachts, negotiating the terms of the sale, preparing documents, obtaining Wests signature and getting the payment. He then spent the next two days preparing the yacht for delivery to West at the Channel Islands Harbor. Bruce sailed the yacht to Channel Islands Harbor and spent the next few days with West, training him on all of the yachts systems, and giving him instruction on piloting. Bruce spent subsequent time with West, helping him with specific issues about the yachts, and giving him more advanced training.
Bruce denied that Soderling ever suggested to him that West was her customer. He testified there was no procedure for splitting commissions since he was the only salesperson allowed to sell new yachts. Bruce was present when Soderling was instructed that all new yacht sales were to be referred to him.
Soderling sued Newport Boats for breach of written contract. Her complaint also contained several tort causes of action, including one for assault and battery against Sid Partow, the president of Newport Boats. At the beginning of trial, Soderling dismissed all but the breach of contract cause of action.
Following a bench trial, the court ruled against Soderling. Although the court found Soderling "had the right to sell new boats," it found she had not done so. Soderling did not procure the customer and was not the "procuring cause" of the sale because she did nothing more than show West some new and used boats.
DISCUSSION
Soderling assails the courts finding she was not the procuring cause of the sale of the new yacht to West. She contends she was the procuring cause and, therefore, was entitled to 6 percent of Newport Boats gross profits on the sale. We disagree.
The concept of procuring cause most often arises in the context of a real estate broker or agent, but has been applied in other agency situations when the agent claims an entitlement to commissions. (Chamberlain v. Abeles (1948) 88 Cal. App. 2d 291, 295-296, 198 P.2d 927.) Whether a particular sale is primarily the result of the agents efforts is a question of fact and we will not disturb the trial courts ruling if supported by substantial evidence. (Id. at p. 297; see also Buckaloo v. Johnson (1975) 14 Cal.3d 815, 829, 122 Cal. Rptr. 745, 537 P.2d 865, disapproved on other grounds in Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 388, 393, fn 5, 902 P.2d 740.)
In the real estate context, the principle has been explained as follows: "`A broker is the "procuring cause" of a . . . transaction if he finds a purchaser who is ready, willing, and able to buy the property on the terms stated and he obtains a valid contract obligating the purchaser on these terms. If the broker cannot secure a written offer from the purchaser, he is still considered the "procuring cause" if he brings the principal and the purchaser together so that they may enter into such a contract. In other words, if the brokers efforts result in a "meeting of the minds" between the buyer and the seller but the final negotiations and the conclusion of the sale are conducted by them without the aid of the broker, he will still earn his commission. [Citations.]" (Buckaloo v. Johnson, supra, 14 Cal.3d at p. 820, fn. 2.) "To constitute himself the causa causans, the predominating effective cause, it is not enough that the broker contributes indirectly or incidentally to the sale by imparting information which tends to arouse interest. He must set in motion a chain of events, which, without break in their continuity, cause the buyer and seller to come to terms as the proximate result of his peculiar activities." (Sessions v. Pacific Improvement Company (1922) 57 Cal.App. 1, 17, 206 P. 653.)
Substantial evidence supports the trial courts finding Soderling was not the procuring cause of the sale of the yacht to West. West contacted Newport Boats as a result of a magazine ad for a new yacht placed by Newport Boats. Soderling showed him several new and used boats. Among the many vessels Soderling showed, she spent about one-half hour showing him the yacht he eventually bought. West left without expressing interest in any particular vessel and Soderling believed he was only interested in purchasing a used vessel. She did not negotiate a sales price, obtain a deposit, obtain a signed purchase agreement, or demonstrate any boats to West.
Bruce testified about what was required to sell a $ 1.2 million yacht and about his extensive efforts in that regard. Soderlings contention that Bruces testimony was inadmissible extrinsic evidence is not well taken. Bruces testimony on this point was not offered to interpret the contract (or alter its material terms as Soderling argues). Rather, the testimony went to the factual issue of whether Soderling had in fact performed the contract, i.e., whether she was the salesperson of the yacht. As the trial court concluded, she was not. At best Soderling contributed indirectly or incidentally to the sale by giving West some information that piqued his interest in the yacht and caused him to return. (Sessions v. Pacific Improvement Company, supra, 57 Cal.App. at p. 17.) But she was not the procuring cause of the sale.
We decline to consider Newport Boats passing suggestion made in its respondents brief that Soderling should be sanctioned for pursuing a frivolous appeal because it has not filed an appropriate motion. (Cal. Rules of Court, rule 27(e).)
II
NEWPORT BOATS APPEAL
FACTS
Judgment was entered on May 11, 2001. On May 30, Newport Boats counsel mailed a notice of entry of judgment to Soderlings counsel. The notice of entry was later rejected for filing by the superior court because of a typographical error-an extra number "2" was placed on the end of the otherwise correct case number. Counsel prepared a second notice of entry of judgment, which she mailed to Soderlings counsel on June 8, and filed on June 12.
On June 25, Newport Boats filed its memorandum of costs. Soderling moved to strike the memorandum of costs because its was untimely. Newport Boats opposed the motion. Although the order is not in the record, the trial court apparently agreed with Soderling and on August 10 struck the cost bill in its entirety. Newport Boats filed a motion for reconsideration under Code of Civil Procedure section 1008 and a motion for relief under Code of Civil Procedure section 473 (hereafter section 473) arguing the tardiness was the result of counsels excusable mistake in believing that the first notice of entry of costs she served did not start the time for filing the memorandum of costs because it had been rejected for filing. On October 5, the court denied the motion for reconsideration as "improper." The court denied the motion for section 473 relief concluding the time limit for filing a memorandum of costs is jurisdictional and the court could not grant section 473 relief. Newport Boats filed its notice of appeal from " the August 10, 2001, Order Striking the Memorandum of Costs. . . ."
Separate cost bills were filed by Newport Boats and Partow, but for convenience we continue to refer to them collectively as Newport Boats.
DISCUSSION
Order Striking Memorandum of Costs
Newport Boats contends mailing of the first notice of entry of judgment on May 30 did not start the time for filing its memorandum of costs because the notice was later rejected for filing by the superior court. We disagree.
California Rules of Court, rule 870(a)(1) reads: "[Trial costs] A prevailing party who claims costs shall serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. . . ." Accordingly, there are three possible events that trigger the time for filing the memorandum of costs: (1) 15 days from when the clerk mails notice of entry of judgment in accordance with Code of Civil Procedure section 664.5; (2) 15 days from a partys service of notice of entry of judgment; or (3) 180 days from entry of judgment.
Newport Boats mailed a notice of entry of judgment to Soderling on May 30. Generally, service is complete when a document is mailed. (Code Civ. Proc., § 1013, subd. (a).) Newport Boats had 15 days from service to file its cost bill and the cost bill filed on June 25 was untimely.
Newport Boats argues that because the superior court clerk later rejected the document for filing due to a typographical error, the notice it served on May 30 did not trigger its time to file its cost bill. We disagree. As our Supreme Court just recently noted in Palmer v. GTE California, Inc. (June 26, 2003, S104997) ___ Cal.App.4th ___ , we look first to the plain language of a statute (or in this case the court rule) and if it is plain on its face, it is binding on us. (Id. at p. ___.) On its face, California Rules of Court, rule 870 requires only that written notice of entry of judgment be served to start the time running for service and filing of the memorandum of costs. It does not also require that the notice be filed with the court in order to trigger such time. Newport Boats does not suggest the typographical error in the document that it prepared and it served on Soderling rendered the first document ineffective to give actual notice of entry of judgment. And while its counsels mistake might have been an appropriate basis for section 473 relief (see Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal. App. 3d 924, 929, 272 Cal. Rptr. 899), as we explain below, Newport Boats has not appealed the order denying such relief.
Order Denying Section 473 Relief
Newport Boats also contends the trial court erred in denying its section 473 motion for relief from the order striking its memorandum of costs on the grounds the failure to timely file a memorandum of costs was the result of mistake, inadvertence, surprise, or excusable neglect. We decline to consider the argument because we lack jurisdiction to review the order.
The October 5 order denying Newport Boats section 473 relief was a separately appealable order. (Garcia v. City etc. of San Francisco (1967) 250 Cal. App. 2d 767, 770, 58 Cal. Rptr. 760.) Newport Boats notice of appeal is specific and unambiguous-it appeals only the August 10 order striking its memorandum of costs. (See Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625 ["`The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders"]; see also Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal. App. 3d 35, 47, 269 Cal. Rptr. 228.)
In supplemental briefing on this issue, Newport Boats relies on Moyal v. Lanphear (1989) 208 Cal. App. 3d 491, 256 Cal. Rptr. 296, and urges we should apply the rule that a notice of appeal be liberally construed in favor of sufficiency. (Id. at p. 497; see also Cal. Rules of Court, rule 1(a).) In Moyal, an attorney listed himself as an additional appellant in the notice of appeal from an order imposing sanctions against the attorney and his client. Although, the court agreed the attorney should have filed a separate notice of appeal, "The strong public policy in favor of hearing appeals on the merits operates against depriving an aggrieved party or attorney of a right to appeal because of noncompliance with technical requirements. [Citations.]" (Moyal v. Lanphear, supra, 208 Cal. App. 3d at p. 497.) Moyal is inapposite. In that case, the order being appealed was clearly designated in the notice of appeal. (See Cal. Rules of Court, rule 1(a)(2) ["the notice is sufficient if it identifies the particular judgment or order being appealed"].) Here, the notice of appeal is unambiguous that only the August 13 order is being appealed. We cannot construe the notice as including another order that was not mentioned.
Appealability of the order denying section 473 relief was not raised by either party, therefore we invited the parties to submit supplemental briefing. (See Gov. Code, § 68081 [decision may not be based on issue not proposed or briefed by parties].)
The judgment and postjudgment order are affirmed. Each side shall bear its own costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., and FYBEL, J.