Glade v. Glade

• Citation: 45 Cal.Rptr.2d 695,38 Cal.App.4th 1441
• Decision Date: 04 October 1995
• Docket Number: No. B088795,B088795
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 7859, 95 Daily Journal D.A.R. 13,396 Martin GLADE, as Trustee, etc., Plaintiff and Respondent. v. Carla Jean GLADE, Defendant and Appellant.

Page 695

45 Cal.Rptr.2d 695

38 Cal.App.4th 1441, 95 Cal. Daily Op. Serv. 7859,

95 Daily Journal D.A.R. 13,396

Martin GLADE, as Trustee, etc., Plaintiff and Respondent. v. Carla Jean GLADE, Defendant and Appellant.

No. B088795.

Court of Appeal, Second District, Division 5, California.

Oct. 4, 1995.

Certified for Partial Publication ^*.

Rehearing Denied Oct. 24, 1995.

Review Denied Jan. 24, 1995.

Trope and Trope, Thomas Paine Dunlap and Donna Beck Weaver, for Defendant and Appellant.

Lewis, Goldberg & Ball, and Michael L. Goldberg and Rowell & Tessier and John D. Rowell, for Plaintiff and Respondent.

GODOY PEREZ, Associate Justice.

Defendant Carla Jean Glade appeals from the entry of summary judgment in favor of plaintiff Martin Glade as trustee of the Martin and Sally Glade Revocable Family Trust, along with the denial of her motion for reconsideration of that judgment. For the reasons set forth below, we hold that the summary judgment should have been denied by the trial court upon reconsideration.

FACTS AND PROCEDURAL HISTORY

On August 27, 1993, Carla Jean Glade ("Carla") filed a petition to dissolve her 10-year marriage to Roger Glade ("Roger"). Martin and Sally Glade ("the Glades") are Roger's parents. On March 18, 1994, Martin Glade, as trustee of the Martin and Sally Glade Revocable Family Trust ("the Trust") filed a complaint against Roger and Carla, seeking to foreclose on Roger and Carla's community property residence under the terms of a note and trust deed used to secure a loan by the Trust to Roger and Carla ("the foreclosure action").

Carla brought a motion in the family law court on July 8, 1994, to consolidate the foreclosure action with the marital dissolution action because of overlapping issues such as: the community or separate property characterization of the house; right and title to the house; distribution of proceeds from any sale of the house; whether the loan secured by the note and trust deed was in fact a gift; and whether the Trust and the Glades held any community property funds of Roger and Carla which should be offset against amounts owed under the note. It was unclear whether the Trust had ever served Roger with a summons and complaint, Carla contended, and the Glades, by foreclosing on the house and reconveying it to their son Roger afterward, might provide Roger relief which would not otherwise be possible upon division of the community estate. ¹

On August 5, 1994, Carla filed a motion in the family law court to join the Glades, the Trust and the Glade family business as parties to the marital dissolution action. Joinder of the Glades and the Trust was proper, she contended, because they claimed an ownership interest in the community property residence and because Roger testified at his deposition that his father held more than $300,000 derived from the sale of Roger and Carla's community property, monies which should be offset against the sums claimed in the foreclosure action. ²

On August 16, 1994, the Trust brought a summary judgment motion against Roger and Carla in the foreclosure action. The basis for the motion was simple and straightforward: the Trust loaned Roger and Carla more than $500,000, secured by a note and trust deed on their house; when no payments were made for some time, Carla and Roger reduced their debt by quitclaiming certain real properties to the Trust in 1991; that no further payments were made; and that judicial foreclosure was therefore proper. Carla opposed the motion, contending that the loan was in fact a gift; there were questions as to whether the note was valid; and her marital community estate was entitled to offsets from the Glades or the Trust of not only the more than $300,000 held by the Glades from the unrealized real estate transaction but by a $35,000 bonus from Roger's employer which he gave to his mother. Her opposition included declarations by herself and her lawyer noting that the motions for consolidation and joinder were pending in the dissolution action.

Carla filed an application in the family law court on September 2, 1994, seeking an order to stay further prosecution of the foreclosure action. The stay was necessary, she contended, because: (1) it would prevent a large community property asset--the family home where she and her two children lived--from being lost to foreclosure; (2) one of her On September 21, 1994, Judge Michael Pirosh of the family law court denied without prejudice Carla's motion to consolidate the foreclosure action with the dissolution action due to the absence from the files of a jury waiver form. The motion for joinder was denied as to the Glade family business but granted as to the Glades themselves because they claimed or controlled interests subject to disposition by the family law court. The Trust opposed joinder in part on the ground that Carla's claimed offsets were against the Glades in their individual capacities only, not against the Trust. Counsel for Carla argued that the Trust was in essence a legal fiction since the Glades were both the settlors and beneficiaries of the Trust, which was revocable. After hearing argument, the court joined the Trust in the marital dissolution action, then, except for discovery, stayed the foreclosure action. The court did so under Code of Civil Procedure section 526, which relates to the issuance of injunctions, and by analogy to the decision in In re Marriage of Van Hook (1983) 147 Cal.App.3d 970, 195 Cal.Rptr. 541 (hereafter "Van Hook "), in order to prevent a multiplicity of actions. ⁵

                children was autistic and she intended to seek a family home award pursuant to Family Code section 3800, et seq. 3  ;  (3) the community was owed substantial sums of money by the Glades and the Trust which should be offset from any sums owed under the note and trust deed;  and (4) failure to grant a stay would force the needless and duplicative litigation of overlapping issues in the two actions, leading to the possibility of inconsistent results.  On September 9, 1994, Carla filed a request that the court in the foreclosure action take judicial notice of her motions for consolidation and joinder. 4
                

The next day, September 22, counsel for the Trust and for Carla tried unsuccessfully to contact the clerk of the court hearing the summary judgment motion in the foreclosure action and apprise the court of the family law court's ruling. As part of this effort, John D. Rowell, counsel for the Trust, contends that he told Randy E. Bendel, Carla's lawyer, that he (Rowell) believed the stay order was ineffective. Rowell contends he told Bendel that if Bendel tried to present the stay order to the court hearing the summary judgment motion, that he would argue as much to the court. Rowell agreed to bring a copy of Judge Pirosh's minute order for Bendel to use at the hearing, but claims he told Bendel that he could not present the order, given his belief that the order was invalid. Bendel contends that he and Rowell agreed to notify the court of Judge Pirosh's ruling and that Rowell agreed to bring a copy of the minute order to the hearing. ⁶

The Trust's motion for summary judgment was set to be heard at 9 a.m. on September 23. The motion was called for hearing before Judge David M. Schacter at 9:05 a.m. that day. Bendel was not yet present and Rowell, on behalf of the Trust, submitted the matter on the briefs. After Judge Schacter granted the motion and told Rowell to give notice, Rowell told the court that Bendel had just walked in. Judge Schacter said, "Well, I just called it. So that's it." Bendel was five minutes late, he contends, because the courthouse was partially concealed by a construction facade which was in place to protect pedestrians and he drove on past before realizing his error. Even though Rowell knew Bendel intended to appear and even though Rowell knew about the stay order and had a copy of the minute order with him, he failed to alert Judge Schacter to these matters, Bendel contends. The motion was granted and judgment for the Trust was entered that day.

On October 7, 1994, Carla brought a motion pursuant to Code of Civil Procedure section 1008, asking Judge Schacter to reconsider his grant of summary judgment for the Trust. The motion was based on Judge Pirosh's joinder and stay orders and Rowell's failure to advise Judge Schacter of their existence. The Trust opposed the motion on several grounds, the most pertinent of which was the family law court's lack of power to restrain the foreclosure action. ⁷

Judge Schacter denied the motion for reconsideration on November 4, 1994. He ruled that because his court was a court of equal jurisdiction with Judge Pirosh's, that "[h]e has no authority over me. It's a court of equal jurisdiction. [p] The only person that can stay me is the court of appeal...." Judge Schacter also pointed out that the stay order was never served on him, but even if it had been, the stay would be invalid: "I would have called up and said: What are you doing? The answer is basically: No. [p] Here is the way--I will look at it another way. I am happy to give another judge all my cases. They can have my whole calendar, if somebody wants my cases. So if they ask for it, I will be happy to give it to them. Nobody asked for it. That's the problem we have here...."

Carla appeals, contending that the existence of triable, material fact issues precluded summary judgment in the first instance and that in any event, the family law court's joinder and stay orders barred Judge Schacter from proceeding further with the matter. Because we hold that the latter contention was correct, we need not reach the former.

DISCUSSION

1. Appealability Of The Order Denying Reconsideration ^**

2. The Principle Of Priority Of Jurisdiction

Even though a superior court is divided into branches or departments, pursuant to California Constitution, article VI, section 4, there is only one superior court in a county and jurisdiction is therefore vested...