Hogan v. DeAngelis Construction CA1/2

Filed 2/4/16 Hogan v. DeAngelis Construction CA1/2 Order modifying opinion filed January 13, 2016

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO RONALD HOGAN, et al.

Plaintiffs and Appellants,

A143637 v. DEANGELIS CONSTRUCTION, INC., et (Sonoma County al., Super. Ct. No. SCV230846)

Defendants and Respondents.

BY THE COURT:

It is ordered that the opinion filed herein on January 13, 2016, be modified as follows:

On page 7, in the second full paragraph, the fourth sentence beginning with “Instead of working to fulfill . . .” should be deleted and should be replaced with the sentence “Since then, the parties have engaged in endless litigation.”

This modification does not change the judgment.

Dated:___________________ _________________________

Richman, Acting P.J. Filed 1/13/16 Hogan v. DeAngelis Construction CA1/2 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO RONALD HOGAN, et al.

Plaintiffs and Appellants,

A143637 v. DEANGELIS CONSTRUCTION, INC., et (Sonoma County al., Super. Ct. No. SCV230846)

Defendants and Respondents.

Plaintiffs Ronald and Victoria Hogan appeal the trial court’s order granting defendants’ motion to vacate the Hogans’ application to renew a judgment pursuant to Code of Civil Procedure section 683.170.1 The trial court concluded that the purported judgment the Hogans sought to renew was merged into a later judgment, and that the Hogans sought interest, attorney fees, and costs that they were not entitled to recover. We will affirm. We will also deny defendants’ request for sanctions against the Hogans for filing a frivolous appeal because the request does not comply with the California Rules of Court.

FACTUAL AND PROCEDURAL BACKGROUND

This is our fourth opinion in this apparently interminable litigation, and it is filed on the same day as our third opinion in this case, Hogan, et al. v. DeAngelis Construction, Inc., et al. (A138118, Jan. 13, 2016) [nonpub. opn.] (Hogan III). We direct readers to the “Factual and Procedural Background” section of Hogan III and incorporate that section of Hogan III into this opinion as if we have restated it in full here.2 Additional Procedural History Pertinent to this Appeal

On May 8, 2014, the Hogans––plaintiffs below and appellants on this appeal–– filed an application for renewal of judgment, purporting to renew the May 2004 rescission order. The Hogans claimed the May 2004 rescission order was actually a judgment for $606,245 because that was the amount of consideration awarded to them in the December 2006 conditional judgment. The Hogans’ application stated that the judgment included an additional $711,604.26 in interest, which the Hogans claimed had been accruing since September 2002 when they filed their complaint. The application also stated the Hogans were entitled to “[p]ayment of all costs and fees incurred as a result of the purchase and rescission of [the Gardenview property] per the deemed offer of rescission, accepted unconditionally by Developer Defendants. Total not yet known and to be determined at a later date.”

The Developers––defendants below and respondents on this appeal––moved to vacate this “renewal of judgment.” They argued that the purported May 2004 rescission order no longer existed because it was merged into the April 2010 modified amended judgment in this matter. The Developers also argued that the amount of the judgment listed on the Hogans’ application was incorrect because it included interest, attorney fees, and costs that the trial court and this court had determined the Hogans were not entitled to recover.

The trial court granted the Developers’ motion to vacate. Its order stated, in pertinent part: “The Court finds that the December 14, 2006 order on which Plaintiffs rely was merged into the [June] 2007 amended judgment that subsequently was reviewed by the Court of Appeal [in Hogan I] resulting in the entry of the conditional modified amended judgment filed in April 2010. . . . The appellate court also ruled [in Hogan II] that no interest starts accruing until Plaintiffs perform and return the property, which to date still has not taken place, and Plaintiffs improperly seek fees and costs that the appellate court already ruled Plaintiffs may not recover. The motion to vacate is granted.” The trial court also ordered expunged the renewal application that the Hogans filed with the Sonoma County recorder.

The Hogans timely appealed the trial court order granting the Developers’ motion to vacate.3

DISCUSSION

A. The Developers’ Motion to Vacate the Hogans’ Renewal Application

The Hogans argue that the trial court erred in granting the Developers’ motion to vacate their application to renew a judgment.

A money judgment is enforceable for 10 years from the date it is entered. (§ 683.020.) To obtain a renewal of the judgment, the judgment creditor must file an application for renewal with the clerk of the court that entered the judgment before the expiration of the 10–year period of enforceability. (§ 683.130, subd. (a).) “Filing the renewal application (and paying the appropriate filing fee, Gov.C. § 70626(b)) results in automatic renewal of the judgment. No court order or new judgment is required. The court clerk simply enters the renewal of judgment in the court records.” (Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2015) ¶ 6:75.) Section 683.170 allows a judgment debtor to move to vacate a renewed judgment “on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect[.]” (§ 683.170, subd. (a).) “The judgment debtor bears the burden of proving, by a preponderance of the evidence, that he or she is entitled to relief under section 683.170.” (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 199.) “On appeal, we examine the evidence in a light most favorable to the order under review and the trial court’s ruling for an abuse of discretion.” (Ibid.) To the extent our review involves statutory interpretation and pure questions of law, our review is de novo. (Id. at p. 200.)

The Hogans raise a variety of arguments on appeal, none of which has any merit.4 They argue that the trial court erred by not treating the May 2004 rescission order as a judgment that existed independently of the April 2010 modified amended judgment. According to the Hogans, the May 2004 rescission order addressed the return of the Hogans’ consideration (in the amount stated in the December 2006 conditional judgment), while the April 2010 modified amended judgment was for additional consequential damages. The Hogans’ argument fails for the fundamental reason that the May 2004 rescission order is not, by definition, a “judgment.” The Code of Civil Procedure defines a judgment as “the final determination of the rights of the parties in an action or proceeding.” (§ 577, emphasis added.) As such, “[t]here is only one final judgment, the last or ultimate judgment that determines the rights of the parties.” (7 Witkin, Cal. Procedure (5th ed., 2008) Judgment, § 7, p. 551.) The May 2004 rescission order was not the final determination of the parties’ rights (and therefore, not a judgment) because the amount of money the Hogans were entitled to recover had yet to be determined. Since the May 2004 rescission order was not a judgment, the Hogans cannot renew it as such.

Even if the May 2004 rescission order could somehow be considered a separate judgment, the Hogans are incorrect in asserting that it related to the return of their consideration, while the April 2010 modified amended judgment addressed additional damages only. To the contrary, the April 2010 modified amended judgment included both return of consideration and consequential damages. The jury findings established that the Hogans were entitled to $252,000 for their down payment––i.e. restitution for the consideration they paid for purchase of the Gardenview property––plus additional money for consequential damages.5 These findings became a part of the March 22, 2007 judgment and were eventually incorporated into the April 2010 modified amended judgment. The trial court properly exercised its discretion by not treating the May 2004 rescission order separately from the April 2010 modified amended judgment. (§ 577; accord Jacuzzi v. Jacuzzi Bros., Inc. (1966) 243 Cal.App.2d 1, 35 [applying abuse of discretion standard to trial court’s interpretation of its own order].)

The Hogans also argue the trial court erred in denying their motion to renew the judgment based on an erroneous determination that the renewal application listed over $700,000 in interest that they were not entitled to recover. Even if the May 2004 rescission order was a separate judgment, the Hogans would not be entitled to the interest they seek. The trial court previously ruled, and we affirmed, that interest does not start accruing on the Hogans’ recovery until the Hogans return the Gardenview property to the Developers, which they had not done at the time they filed their renewal application.6 Since the Hogans had not returned the Gardenview property, they are not entitled to interest on their recovery, let alone over $700,000 in interest that has purportedly accrued since 2002. On this ground alone, it was proper for the trial court to vacate the Hogans’ renewal application since the amount of the renewed judgment is incorrect. (§ 683.170, subd. (a) [“The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect”].) (Emphasis added.)7 B. The Developers’ Request for Sanctions

The Developers request that we sanction the Hogans for bringing this appeal because the appeal is frivolous. The Developers request is denied because it was not made as a separate motion and did not include a declaration stating what sanction we should impose. (Cal. Rules of Court, rule 8.276(b)(1) [“A party’s motion [for sanctions] . . . must include a declaration supporting the amount of any monetary sanction sought and must be served and filed before any order dismissing the appeal but no later than 10 days after the appellant’s reply brief is due”].)

We do, however, have serious concerns that this litigation has not been concluded. More than six years ago in Hogan I, we unequivocally affirmed the trial court’s order confirming that the Hogans rescinded their purchase of the Gardenview property. More than five years ago, the trial court issued the April 2010 modified amended judgment, which we understand to be the final judgment in this case. Instead of working to fulfill their respective obligations under the April 2010 modified amended judgment, the parties have engaged in endless litigation. If any party raises further appeals in this case, and we determine the appeals are frivolous, we will not hesitate to issue sanctions.

DISPOSITION

The order appealed from is affirmed. The request for sanctions is denied. The parties shall bear their own costs on this appeal.

_________________________ Miller, J.

We concur: _________________________ Richman, Acting P.J. _________________________ Stewart, J.

A143637, Hogan, et al. v. DeAngelis Construction, Inc., et al.