Mauchley v. Katakis, F047149 (Cal. App. 12/5/2006)
| Decision Date | 05 December 2006 |
| Docket Number | F047149 |
| Parties | GREGORY MAUCHLEY et al., Plaintiffs and Appellants, v. ANDREW KATAKIS et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Appeal from a judgment of the Superior Court of Stanislaus County, No. 254996, Hurl Johnson, Judge.
Richard C. Sinclair, for Plaintiffs and Appellants.
Timothy M. Ryan, for Defendants and Respondents.
Respondents Andrew Katakis (Katakis) and California Equity Management Group, Inc. (CEMG) were successful defendants in this civil action brought by plaintiffs/appellants Gregory Mauchley and Mauctrst LLC ("Mauctrst"). A "Judgment on Order of Dismissal" was filed in the superior court on June 3, 2004. Respondents then moved for and obtained an award of attorney fees in the amount of $29, 317.77.
Mauchley and Mauctrst LLC appeal from the attorney fee award. Appellants contend: (1) the court lacked jurisdiction to award attorney fees because respondents' motion for attorney fees was untimely; (2) respondents "lacked standing" to request attorney fees "because they are not a defendant"; (3) respondents could not obtain an attorney fee award pursuant to Civil Code section 1717 because respondents "were not parties to a contract with plaintiffs"; and (4) appellants were denied due process of law because the hearing on the motion for attorney fees was held "prior to the noticed hearing date." As we shall explain, however, we must dismiss this appeal because there is not yet an appealable final judgment in this case, and the order awarding attorney fees is therefore not an "order made after a judgment made appealable by" Code of Civil Procedure section 904.1, subdivision (a)(1). (Code Civ. Proc., § 904.1, subd. (a)(2).)1 A cross-complaint filed by respondent CEMG naming Mauchley and Mauctrst as cross-defendants has never been dismissed, tried or otherwise adjudicated, and is still pending. The judgment dismissing appellants' action is therefore not appealable, and the attorney fee award order is not appealable as an order made after an appealable final judgment.
In May of 2000 appellants filed a civil action naming as defendants Lonestar Mortgage Services, LLC (Lonestar) and Contimortgage Corporation. The action sought to halt a nonjudicial foreclosure on property owned by appellants. On May 23, 2000 the superior court issued an "Order to Show Cause and Temporary Restraining Order" temporarily halting a scheduled foreclosure sale and ordering the named defendants to appear in court and show cause why they should not be enjoined and restrained from conducting a foreclosure sale "during the pendency of this action." The order further stated that "for this Order to remain in effect, the Plaintiff shall make the regular monthly payments on the promissory note as it comes due on the 1st of each month ...." On June 6, 2000 the court issued a preliminary injunction enjoining the sale "during the pendency of this action," again stating that "for this Order to remain in effect, the Plaintiff shall make the regular monthly payments on the promissory note ...." The June 6 order was directed at Lonestar only. This was because the court was informed on June 6 that Contimortgage Corporation was in bankruptcy.
In late 2002 appellants were ordered to appear and show cause why their action should not be dismissed. After two continuances, the court held a hearing on March 21, 2003 on the order to show cause and took the matter under submission. On March 25, 2003 the court issued its ruling. The ruling stated in pertinent part:
Apparently the plaintiffs did not make the payments on the note. On May 15, 2003 the court issued a stating that the case was "dismissed by previous court order." This was an apparent reference to the above-quoted March 25, 2003 order. We note that the March 25 order did not dismiss the case on that date. Rather it said that the case "will be dismissed" if the payments were not made current by April 17. Appellants assert that the March 25 order was a "Conditional Order of Dismissal" and that the case was dismissed on April 17, 2003 "by operation of" the court's March 25 order.
We have not yet recounted how respondents CEMG and Katakis became involved in this case. We now turn to that topic.
On March 21, 2003 plaintiff/appellant Mauctrst (but not appellant Mauchley) filed an amended complaint. The amended complaint named as defendants not only the original two defendants (Lonestar and ContiMortgage) but also four additional defendants — M&T Bank Corporation, Fairbanks Capital Corp., and respondents Katakis and CEMG. The additional defendants are alleged to be assignees of the notes and deeds of trust pertaining to the properties involved in the suit and/or entities involved in nonjudicial foreclosure sales alleged by Mauctrst to have taken place. The proof of service for the amended complaint states that the pleading was served by mail on March 21, 2003 on Lonestar, Contimortgage, M&T Bank Corporation and Fairbanks Capital Corp., but the proof of service makes no mention of any service on Katakis or CEMG. The court's minute order for the May 21 hearing states that those present were attorneys Richard Sinclair and Steven Lawrence. Mr. Sinclair represented appellants Mauchley and Mauctrst (just as he now does on this appeal). According to the May 21, 2003 proof of service on the amended complaint, attorney Lawrence represented defendants Lonestar and Contimortgage. Copies of the court's March 25, 2003 order (quoted at length above) were served by mail on attorneys Sinclair and Lawrence.
Appellants' opening brief asserts that "Mr. Sinclair served the Amended Complaint on Mr. Katakis in Court on March 25, 2003 ...." Nothing in the record indicates that any court hearing took place on March 25, 2003. The court's March 25 order states that the matter was heard on March 21, with attorneys Sinclair and Lawrence appearing, and that the matter was then "taken under submission." Nothing in the record on appeal indicates that respondents CEMG and Katakis were ever served with the court's March 25, 2003 order or the court's May 15, 2003 Case Management Conference Order.
In any event, CEMG and Katakis were served at some point with the amended complaint, and on April 21, 2003 CEMG and Katakis filed an answer to the amended complaint. CEMG also filed on that date a cross-complaint naming Mauchley, Mauctrst and others as cross-defendants.
Meanwhile, plaintiffs/appellants Mauchley and Mauctrst on April 2, 2003 filed a motion for reconsideration of the court's March 25, 2003 order (the order calling for dismissal of the complaint if payments were not made current by April 17). The motion also sought leave to file the amended complaint which had already been filed on March 21. The declaration of attorney Sinclair in support of the motion suggests that he was unaware that the amended complaint already had been filed. Sinclair's declaration stated in part: The amended complaint itself, however, shows not only that it was received at 12:46 p.m. on March 21, 2003 but also that it was filed at 12:47 p.m. on that same date. The proof of service for this motion shows that the motion was served on all of the named defendants except CEMG and Katakis. Lonestar and Contimortgage filed written opposition to appellants' motion and asked the court to issue an order dismissing the case due to appellants' failure to make the payments required by the court's March 25 order.
On May 6, 2003 the court heard appellants' motion for reconsideration and to amend the complaint. The court denied both motions. The court's order denying appellants' motion for reconsideration also stated: The order made no express mention of the fact that the amended complaint already had been filed on March 21, and made no mention of the CEMG cross-complaint that had recently been filed on April 21, 2003. The court's May 6, 2003 minute order reflects that attorneys were present on that date representing Contimortgage, Lonestar, Fairbanks Capital Corp. (all represented by Mr. Lawrence), M&T Bank Corp. (represented by Mr. Martin H. Kresse), and plaintiffs/appellants Mauchley and Mauctrst (represented by Mr. Sinclair). Nothing in the record on this appeal indicates that CEMG or Katakis had any notice of the May 6 hearing. The court served its May 6, 2003 minute order on Messrs. Lawrence, Kresse and Sinclair.
Meanwhile, on April 25, 2003 M&T Bank Corp. and Fairbanks Capital Corp. filed a motion to quash service of the summons on the amended complaint. The court heard and granted the motion on May 20,...
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