Stockton v. Rattner

• Decision Date: 18 January 1972
• Citation: 22 Cal.App.3d 965,99 Cal.Rptr. 787
• Court: California Court of Appeals Court of Appeals
• Parties: Richard M. STOCKTON, Plaintiff, Cross-Defendant, and Appellant, v. Jack P. RATTNER et al., Defendants and Respondents. DEBTOR REORGANIZERS, INC., a California corporation, Cross-Complainant and Respondent, v. Richard M. STOCKTON and Phyllis I. Stockton, Cross-Defendants and Appellants. Civ. 37800.

Page 787

99 Cal.Rptr. 787

22 Cal.App.3d 965

Richard M. STOCKTON, Plaintiff, Cross-Defendant, and Appellant, v. Jack P. RATTNER et al., Defendants and Respondents.

DEBTOR REORGANIZERS, INC., a California corporation, Cross-Complainant and Respondent, v. Richard M. STOCKTON and Phyllis I. Stockton, Cross-Defendants and Appellants.

Civ. 37800.

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

Jan. 18, 1972.

Goldberg & Franklin, Encino, for appellants.

Gendel, Raskoff, Shapiro & Quittner, Richard S. Berger, Bernard P. Simons, Los Angeles, for respondents.

KAUS, Presiding Justice.

Plaintiff appeals from an order authorizing the sale of a residence at Avalon, Catalina Island, and ordering the proceeds of the sale to be impounded, pending final determination of the action in which the order was sought and obtained.

FACTS

In 1964 plaintiff made an assignment for the benefit of the creditors of certain corporations. One of the properties assigned was the Avalon residence involved in this appeal. The contract of assignment provided that the residence was not to be sold by the assignee, without plaintiff's consent, 'until and unless all of the other assets which have been transferred and conveyed pursuant to this agreement shall first have been sold and disposed of and there shall still remain monies due and payable under the terms of this agreement.' In February, 1967, plaintiff filed the action in the course of which the order appealed from was made. Essentially plaintiff claims that the assignee has not complied wih certain provisions of the assignment, has failed to render proper accountings and, in particular, has failed to pursue certain accounts receivable. Various kinds of relief, including rescission, are prayed for. Significantly the third amended complaint, on which the action will apparently go to trial, nowhere alleges that had the assets assigned been properly managed and had plaintiff been credited with all that was due him, the corporations' debts would have been satisfied. Defendant and respondent, Debtor Reorganizers, Inc., as nominee of the original assignee, Jack Rattner, filed a cross-complaint claiming that plaintiff had failed to transfer all of the assets that he was bound to transfer under the 1964 agreement and had interfered in other ways with the performance of the covenants contained in the assignment for the benefit of the corporations' creditors. An additional cause of action for declaratory relief also sets forth, with respect to the Avalon property, that a dispute has arisen between the parties as to whether or not cross-complainant was entitled to sell it to satisfy the claims of the creditors.

The cross-complaint was filed on September 20, 1967. On August 7, 1969, defendant and cross-complainant assignee noticed a motion for an order authorizing the sale of the Avalon property. That motion was denied without prejudice on September 29, 1969. On August 17, 1970, the motion was renewed. The moving papers, if believed, show without question that under the terms of the 1964 agreement the sale was authorized because the other assets assigned, all of which had been liquidated, were quite insufficient to satisfy the debts of the corporations. ¹ Several offers for the Avalon property had been received, but plaintiff had not consented to a sale. The property was deteriorating and falling into disrepair. It was also the victim of vandalism. Its value was decreasing.

We are informed that the reason why the assignee sought the order authorizing the sale was that, without the order, no policy of title insurance could be obtained.

The opposing papers refer to the opposition filed against the 1969 motion for authority to sell, but that opposition is not included in the record. We gather that plaintiff opposed the motion primarily on two grounds, one legal, the other factual: legally plaintiff seems to claim that as long as any asset assigned under the 1964 agreement remains undisposed of, the Avalon residence cannot be sold even if there is no chance that a disposition of that asset can satisfy the creditors; factually he appears to dispute the assignee's contention that all assets have been disposed of.

The motion for authority to sell was granted by an order filed October 13, 1970.

The first question raised by respondent concerns the appealability of the order authorizing the sale. Concededly it is not made expressly appealable by any of the subsections of section 904.1 of the Code of Civil Procedure. Rather, plaintiff argues that if the authority granted by the order is exercised he will be permanently deprived of a residence and that under familiar equitable principles the fact that the cash proceeds of the residence are to be impounded, cannot make up for the loss of a 'unique' piece of real property.

In Degnan v. Morrow, 2 Cal.App.3d 358, 364--365, 82 Cal.Rptr. 557, 559--560, the law is summarized as follows:

'It is settled law that a party may appeal from part of a severable judgment. (3 Witkin, Cal. Procedure (1954) p. 2186.) Accordingly, no violence would be done to our appellate practice by allowing such a partial appeal here. And despite the 'one final judgment rule,' it is established that an interlocutory judgment, not expressly made appealable by statute, is nevertheless appealable to the extent that it requires as a collateral matter, the immediate payment of money, or the performance forthwith of an act (Greene v. Superior Court, 55 Cal.2d 403, 405, 10 Cal.Rptr. 817, 359 P.2d 249; Sjoberg v. Hastorf, 33 Cal.2d 116, 119, 199 P.2d 668; Draus v. Alfred M. Lewis, Inc., 261 Cal.App.2d 485, 489, 68 Cal.Rptr. 154); Or has the effect of a final determination of property rights (Southern Pac. Co. v. Oppenheimer, 54 Cal.2d 784, 786, 8 Cal.Rptr. 657, 356 P.2d 441; Carradine v. Carradine, 75 Cal.App.2d 775, 778, 171 P.2d 911; California etc. Ass'n. v. Superior Court, 8 Cal.App. 711, 713, 97 P. 769). When such an appeal is taken the litigation of the main issues continues to a final judgment. (Draus v. Alfred M. Lewis, Inc., Supra, at p. 489, 68 Cal.Rptr. 154; Woodman v. Ackerman, 249 Cal.App.2d 644, 649--650, 57 Cal.Rptr. 687.)' (Emphasis added.)

It can, of course, make no difference that the ruling complained of is denominated an order, rather than a judgment. If it has the effect of a final determination of property rights, it is appealable.

The case most in point and the one which persuades us that we may properly decide this appeal on the merits is California etc. Assn. v. Superior Court, 8 Cal.App. 711, 97 P. 769. In that case the defendant sought a writ of prohibition to restrain a receiver from selling certain personal property. The appellate court recognized that, in the exercise of his duties, the receiver might have to sell such property 'as where charges and expenses of care would absorb the property, or where it was likely to become valueless by reason of its perishable nature, or other attendant circumstances which might require the same. . . .' (California etc. Assn. v. Superior Court, Supra, ...