Opinion
B229644
09-26-2011
CINDY KIM MI TSUI et al., Plaintiffs and Respondents, v. JAMES LI, Defendant and Appellant.
James Li, in pro. per., for Defendant and Appellant. Law Offices of Kenneth I. Gross & Assoc., Kenneth I. Gross and Thomas D. Shambaugh for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GC038906)
APPEAL from a judgment and order of the Superior Court of Los Angeles County. Jan Pluim, Judge. The appeal from the judgment is dismissed. The order is affirmed.
James Li, in pro. per., for Defendant and Appellant.
Law Offices of Kenneth I. Gross & Assoc., Kenneth I. Gross and Thomas D. Shambaugh for Plaintiffs and Respondents.
SUMMARY
Attorney James Li represented Michael Kin Wing Chui in this quiet title action and extended to Chui a line of credit to finance the litigation. In exchange, Chui gave Li deeds of trust to the subject property. After an adverse verdict and orders partitioning the property by sale and distributing the proceeds, Li, not Chui, moved to vacate the judgment. The trial court denied the motion.
Li appeals from the judgment and the order denying his motion to vacate the judgment, on several grounds. He contends he has standing to appeal because Chui's equity in the property will be insufficient to cover his legal fees. We conclude Li lacks standing to appeal from the judgment and his motion to vacate was properly denied.
FACTS AND PROCEEDINGS BELOW
Chui had jointly purchased with Cindy Kin Mi Tsui and Kwok Kwong Lo (plaintiffs) real property located at 9333 Guess Street, Rosemead, California (the property), in April 1992, obtaining a mortgage to do so. A main house and a guesthouse are located on the property. After the purchase, Chui lived in part of the guesthouse and rented to tenants the rest of the guesthouse and the main house. He kept all rental proceeds from the tenants and himself paid no rent to plaintiffs. Chui made mortgage payments and used rental proceeds and his own funds to cover the cost of repairs. At some point he obtained a home equity line of credit (HELOC).
Li defended Chui in this quiet title action filed by plaintiffs. He extended to Chui a $170,000 line of credit to finance the litigation in exchange for five deeds of trust to the subject property. After this conveyance, Li assigned to a third party three of the deeds of trust, totaling $140,000, retaining two, worth $30,000. Litigation costs consumed the entire line of credit that Li had extended to Chui.
At the close of trial, the trial court ordered the property to be partitioned by sale. It held that because Chui received more money in rent than he paid in mortgage principal and had exclusively possessed the property, he was not entitled to reimbursement for principal payments or any other expenses. The trial court specified that creditors were to be paid from Chui's share of the sale proceeds in the following order: all due property taxes, the remaining mortgage balance, the HELOC balance, and all sums due to Li for his legal services. Judgment was entered accordingly. Li filed on his own behalf a motion to vacate the judgment under Code of Civil Procedure section 663, which the trial court denied without comment.
All further statutory references are to the Code of Civil Procedure.
Li appeals both from the judgment and the order denying his motion to vacate. He contends Chui should have been reimbursed for mortgage payments and repair expenses and the judgment effectively requires Chui to pay rent to plaintiffs.
DISCUSSION
As a preliminary matter, plaintiffs contend Li, who was not a party of record, lacks standing to appeal from the judgment itself. We agree. Although section 902 provides that any "party aggrieved" may appeal from an adverse judgment, "[i]t is generally held . . . that only parties of record may appeal . . . ." (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736.) Because Li was not a party of record before judgment, he has no standing to appeal from the judgment.
However, "[a] person not a party to the action as originally commenced or tried may become a party to the record, subsequent to the judgment, by moving to vacate and thereby gain a right of appeal from the order denying the motion." (O'Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 662.) Having filed such a motion, Li has standing to appeal from the order denying it.
Section 663 permits a court, upon the motion of a "party aggrieved" to set aside a judgment that is "based upon a decision by the court," if there is an "[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts."(Although sections 902 and 663 both speak of a "party aggrieved," one need be a party of record only to appeal under the former section, not to file a motion to vacate under the latter.) The question is whether Li qualifies as a person aggrieved by the judgment. (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 9.)
Code of Civil Procedure section 663 states: "A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict."
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"An 'aggrieved party' is one having an interest in the subject matter recognizable by law, and injuriously affected by the judgment or order." (Estate of Cahoon (1980) 101 Cal.App.3d 434, 437; In re Pacific Standard Life Ins. Co. (1992) 9 Cal.App.4th 1197, 1201.) The interest "'"must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment."' [Citation.]" (County of Alameda v. Carleson, supra, 5 Cal.3d at p. 737.) One whose interest is not recognizable by law or is of a general and indefinite character has no right to seek to vacate a judgment.
Li contends a junior lienholder has standing to vacate a judgment that renders the security insufficient to satisfy the debt secured by the lien. Such a person is "aggrieved," he argues, because his interest in a sufficient judgment is, under County of Alameda v. Carleson, "immediate, pecuniary and substantial." Li fails to cite, nor have we discovered, any legal authority supporting the contention.
Clearly, any attorney who creates a lien to secure payment for legal services will be "interested" in obtaining a judgment sufficient to cover legal fees. But while the attorney's interest in being paid may be both legally protected and immediate, his interest that payment come as a result of the judgment is neither. Li is therefore not aggrieved within the meaning of section 663, and the trial court did not err in denying his motion to vacate the judgment.
Respondents move to dismiss the appeal on the ground that after judgment Li assigned the remainder of his liens to a third party, which deprives him of standing. The motion is denied.
DISPOSITION
The appeal from the judgment is dismissed. The order denying Li's motion to vacate is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED.
CHANEY, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.