Salaman v. Bolt

• Decision Date: 10 November 1977
• Citation: 141 Cal.Rptr. 841,74 Cal.App.3d 907
• Court: California Court of Appeals
• Parties: J. Franklin SALAMAN et al., Plaintiffs and Appellants, v. Albert D. BOLT, Defendant, Field, DeGoff, Huppert & MacGowan, a law corporation, Claimant and Respondent. Civ. 39468.

Page 841

141 Cal.Rptr. 841

74 Cal.App.3d 907

J. Franklin SALAMAN et al., Plaintiffs and Appellants, v.Albert D. BOLT, DefendantField, DeGoff, Huppert & MacGowan, a law corporation, Claimant and Respondent.

Civ. 39468.

Court of Appeal, First District, Division 1, California.

Nov. 10, 1977.

Berlin & Goodman, Goth, Dennis & Aaron, Redwood City, for plaintiffs and appellants.

Field, DeGoff, Huppert & MacGowan, Sidney F. DeGoff, San Francisco, for defendant, claimants and respondents.

BROUSSARD, ^* Associate Justice.

This appeal is taken on the judgment roll from a judgment of the Superior Court of San Mateo County impressing and giving priority to a lien upon a judgment pursuant to section 688.1 of the Code of Civil Procedure and denying appellants' motion to offset their judgment against the liened judgment.Appellants make several contentions: (1) that the trial court improperly impressed the lien upon the judgment without relitigating respondent's entitlement thereto following a reversal on an earlier appeal of an order of the trial court denying the lien; (2) that the court improperly found that appellants were not due rent for the period prior to and during the receivership of the leased premises; and (3) that the trial court erroneously gave priority to the lien upon the judgment and denied appellants' claim of equitable offset.This latter contention presents a question of first impression in this state.

Preliminarily, we deny the motion to dismiss this appeal as frivolous.We have concluded that appellants' first and second contentions are without merit.As to the third contention, we have concluded that the trial court erred in giving priority to the lien upon the judgment and denying appellants' claim of equitable offset.The conclusions we have reached require some discussion of the unpublished opinion of Division Two of this court upon the earlier appeal.(Salaman v. Bolt, 1/Civil 37577.)We set forth the facts only to the extent necessary to resolve the issues presented by this appeal.

In May 1969J. Franklin Salaman and Joseph Waldo Salaman(hereinafter appellants) entered into a 30-year lease with Albert D. Bolt(hereinafter Bolt) and Thomas Seeger for land and improvements commonly known as Redwood Marina.Seeger subsequently assigned his interest in the lease to Bolt, leaving him as the sole lessee.AppellantJ. Franklin Salaman subleased a portion of the leased premises.Subsequently, appellants commenced proceedings in unlawful detainer against Bolt alleging a two-month default in the payment of rent.Appellants caused a receiver to be appointed to take possession of the leased property pursuant to a provision in the lease giving them that right upon any default by the lessee.Bolt was represented in the unlawful detainer action by Field, DeGoff, Huppert & MacGowan, a law corporation (hereinafter Field).Bolt obtained a judgment on November 6, 1973.The judgment was predicated upon equitable grounds.The court found that Salaman, as sublessee, had intentionally withheld payment of rent in retaliation against Bolt's refusal to agree to a modification of the primary lease, and that his conduct constituted "oppressive, retaliatory and inequitable conduct."The court further found that Bolt was entitled to an award of $8,000 attorneys' fees and to costs.

On May 20, 1975, Bolt confessed to judgment in favor of Field in the amount of $31,036.52 covering attorneys' fees for services rendered, inter alia, in defending the unlawful detainer action.On May 29, 1975, Field noticed a motion to impress a lien pursuant to the provisions of Code of Civil Procedure section 688.1¹ upon Bolt's cause of action for attorneys' fees and upon any judgment rendered thereon.This motion was denied on June 13, 1975.Field appealed the denial order and Division Two of this court reversed on April 23, 1976.

On June 23, 1975, Bolt's judgment in the unlawful detainer action was modified to include the award of $8,000 attorneys' fees.In an unrelated action (Superior Court, San Mateo, No. 176932)appellants recovered a judgment by default against Bolt for $6,214.44 and on April 14, 1976, filed a motion to offset their judgment against Bolt's judgment for attorneys' fees.This motion was amended on April 23, 1976 to include their claim for rent allegedly due for the period prior to and during which the receiver was in possession of the leased premises.Before this motion was heard, the decision reversing the denial of Field's motion was rendered.Field opposed appellants' motion urging that his right to a lien upon the judgment and the priority of that lien over appellants' claim of offset had been determined by the decision on appeal.He further urged that the general verdict in Bolt's favor in the unlawful detainer action constituted a finding against appellants on the rent they claimed to be due.On the hearing on appellants' motion, the court found that appellants were not entitled to the rent claimed, and that Field had a valid lien with priority over appellants' claim of offset.The court endorsed Field's lien upon the judgment and denied appellants' offset.It is from the ensuing judgment that this appeal is taken.

1.The order impressing the lien upon the judgment.

Citing the rule that a general or unqualified reversal vacates the judgment and returns the case for further proceedings as if no judgment had ever been rendered (see generally, People ex rel. Dept. Pub. Wks. v. Lagiss(1963)223 Cal.App.2d 23, 44, 35 Cal.Rptr. 554;see alsoErlin v. National Union Fire Ins. Co.(1936)7 Cal.2d 547, 549, 61 P.2d 756;Estate of Pusey(1918)177 Cal. 367, 371, 170 P. 846;Davies v. Krasna(1970)12 Cal.App.3d 1049, 1053, 91 Cal.Rptr. 250(cert. den.403 U.S. 931, 91 S.Ct. 2253, 29 L.Ed.2d 710);Bate v. Marsteller(1965)232 Cal.App.2d 605, 618, 43 Cal.Rptr. 149;Weightman v. Hadley(1956)138 Cal.App.2d 831, 836, 292 P.2d 909;Rossi v. Caire(1919)39 Cal.App. 776, 778, 180 P. 58), appellants contend that the superior court erroneously endorsed Field's lien upon the judgment without relitigating the issue of Field's entitlement thereto.This general rule has a well recognized exception which was stated as follows in Stromer v. Browning(1968)268 Cal.App.2d 513, 518-519, 74 Cal.Rptr. 155, 158: "The fact that the rule we discuss is a 'general' rule implies that it has limitations.One limitation is that a case is to be set at large for retrial only when that is the intent of the appellate court.'Judgment reversed' at the end of an opinion is, of course, strong indication of such intent.But when the opinion as a whole establishes a contrary intention, the rule is inoperative.To hold otherwise would be to make a fetish of form."(See alsoBarth v. B. F. Goodrich Tire Co.(1971)15 Cal.App.3d 137, 92 Cal.Rptr. 809.)

Appellants recognize the Stromer exception, but contend that it is not here applicable because there were factual issues to be litigated on a rehearing.Field argues that a reading of the opinion indicates that the court intended to end litigation on the question of the lien, and that the reversal order was properly treated as a reversal with directions to impress the lien upon the judgment.With this we agree.The order of the trial court was reversed with the following language: "It follows that the trial court abused its discretion in denying the judgment lien.The order is reversed."Despite the absence of express language reversing with directions, it is clear that the intended effect of the court's decision was to require that the lien be impressed without further litigation on the issue of Field's right thereto.The judgment awarding Bolt attorneys' fees as the prevailing party in the unlawful detainer action had become final, as was Field's judgment against Bolt.There was no allegation or showing of any fraud or collusion between Field and Bolt.The reviewing court reasoned that Code of Civil Procedure section 688.1"is remedial in nature and should be liberally construed to give effect to the remedy that it authorizes (citations)."Under these circumstances, the Stromer exception to the general rule requiring retrial after a general reversal applies.The trial court's order that Field's lien be impressed upon Bolt's judgment against appellants was proper.

2.The claim for rent.

Appellants claim that they are entitled to offset, in addition to their judgment against Bolt, their claim for rent allegedly due prior to and during the period of the receivership.The unlawful detainer action against Bolt was commenced by appellants on the allegation of Bolt's default in rent payments.The judgment in Bolt's favor in that action is now final and is dispositive of this issue.That judgment was grounded on equitable principles and upon the finding that appellantJ. Franklin Salaman intentionally withheld rent due Bolt in retaliation for Bolt's refusal to agree to a modification of his lease, and that this conduct was oppressive and inequitable.No rent was awarded appellants in that action.The issue has been adjudicated and determined in Bolt's favor.Appellants are now estopped to assert a claim for rent for the period covered by that action, and the trial court correctly so found. (Todhunter v. Smith(1934)219 Cal. 690, 28 P.2d 916;Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd.(1962)58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439;Bernhard v. Bank of America(1942)19 Cal.2d 807, 810, 122 P.2d 892;Beverly Hills Nat. Bank v. Glynn(1971)16 Cal.App.3d 274, 283, 93 Cal.Rptr. 907.)

3.The question of priority.

We now reach the principal issue presented on this appeal: whether the trial court properly gave priority to Field's lien and denied appellants' claim to offset their judgment against Bolt's judgment.The question thus presented is one of first impression in this state.

We are compelled to point out that language in the opinion of Division Two of this court on the first...