Filed 2/29/16 Toups v. Chen CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


JILL TOUPS,
         Plaintiff and Appellant,
                                                                     A143309
v.
HONG BING CHEN et al.,                                               (City & County of San Francisco
                                                                     Super. Ct. No. CGC-10-498490)
         Defendants and Respondents.


         This is the second appeal involving Jill Toups’s (Toups) action against Hong Bing
Chen, Yao Li, and Afresh Enterprises, Inc. (collectively, defendants). In the prior appeal,
we reversed the trial court’s order awarding summary judgment and/or summary
adjudication in favor of Toups. Thereafter, the trial court entered judgment in favor of
defendants, and Toups now appeals from that judgment. She does not challenge the trial
court’s rulings in any way but contends the judgment must be reversed because this court
lacked jurisdiction to decide the prior appeal. For the reasons set forth below, we shall
affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND1
         Toups filed an action against defendants on April 9, 2010, alleging that a third
party engaged in fraudulent acts that resulted in damages to her and unjust enrichment to


         1
        Detailed factual and procedural background summaries are included in our prior
opinion in Toups v. Chen et al. (September 28, 2012, A133657) [nonpub. opn.]. To
obtain context, maintain consistency and economize judicial resources, we hereby take
judicial notice of our prior opinion. (Evid. Code, § 451, subd. (a).)


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defendants. The operative complaint alleged six causes of action: (1) unjust enrichment;
(2) involuntary trust; (3) conversion; (4) intentional infliction of emotional distress;
(5) negligence; and (6) violation of Penal Code, section 496, subdivision (c), receipt of
stolen property. Toups filed a “Motion for Summary Judgment and/or Summary
Adjudication of the Plaintiff’s First and Second Causes of Action,” raising arguments
only as to her first and second causes of action. The trial court granted the motion and
entered “Judgment” in favor of Toups, also making no mention of the third to sixth
causes of action. Toups filed a motion for attorney fees and costs, which the trial court
denied. Both parties appealed.
       On appeal, we first questioned whether we had jurisdiction if the third to sixth
causes of action remained, for an appeal cannot be taken from a judgment that fails to
completely dispose of all causes of action between the parties. The parties requested that
we proceed with deciding the merits of the appeal, and stipulated to dismiss the third to
sixth causes of action without prejudice and to toll the statute of limitations as to those
causes of action. Based on settled law, including Don Jose’s Restaurant Inc. v. Truck
Ins. Exchange (1997) 53 Cal.App.4th 115 (Don Jose’s), that the parties’ stipulation to
dismiss remaining causes without prejudice and to toll the statute of limitations does not
render a “Judgment” from which they appeal final and appealable, we declined to take
jurisdiction based on the parties’ stipulation.
       Nevertheless, we exercised our discretion to address the merits of the appeal and
cross-appeal on equitable principles, noting that “an appellate court has the power to
‘ “ ‘preserve [an] appeal by amending the judgment to reflect the manifest intent of the
trial court’ ” ’ when ‘ “ ‘the trial court’s failure to dispose of all causes of action results
from inadvertence or mistake rather than an intention to retain the remaining causes of
action for trial.” ’ (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 308; see also
Prichard v. Liberty Mut. Ins. Co. (2000) 84 Cal.App.4th 890, 901.)” We concluded that
the fact that Toups moved for “Summary Judgment and/or Summary Adjudication
(emphasis added)” and obtained a “Judgment” under which she was awarded the entire
disputed amount aside from attorney fees and costs, and the fact that she raised


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arguments only as to the first two causes of action even though all of her causes of action
were based on the same allegations, showed she intended to abandon the remaining
causes of action. Defendants in turn addressed only the first and second causes of action,
and the trial court evidently—and reasonably—deemed the remaining causes of action
abandoned, as it did not sever those causes of action or retain jurisdiction over them, but
rather, issued a “Judgment” and a writ of execution to enforce that judgment. We then
turned to the merits of the appeal and reversed the trial court’s order granting summary
judgment in favor of Toups against defendants.
       Thereafter, on September 18, 2014, the trial court entered judgment in favor of
defendants. Toups filed a timely notice of appeal from that judgment.
                                        DISCUSSION
       Toups’s sole contention in this appeal is that the judgment must be reversed
because this court lacked jurisdiction to decide the prior appeal. As noted, however, the
parties briefed—and we fully addressed—the issue of jurisdiction in our prior appeal and
exercised jurisdiction based on equitable principles. Toups did not seek review of our
decision from the Supreme Court, and the remittitur issued on November 29, 2012. She
cites no authority to support her position that she is entitled to a second opportunity to
argue the issue of jurisdiction. In fact, it has been long settled that a “second appeal must
be limited to questions arising from the action of the trial court which were not involved
in the prior appeal.” (E.g., Gore v. Bingaman (1942) 20 Cal.2d 118, 120; Overstreet v.
County of Butte (1962) 57 Cal.2d 504, 507.) Accordingly, she is precluded from
challenging that determination at this time.
       In any event, her contention lacks merit. She argues that we lacked jurisdiction in
the prior appeal because the Supreme Court recently held in Kurwa v. Kislinger (2013)
57 Cal.4th 1097, 1100 (Kurwa), that “a judgment that fails to dispose of all the causes of
action pending between the parties is generally not appealable.” In Kurwa, the Supreme
Court addressed “whether an appeal may be taken when the judgment disposes of fewer
than all the pled causes of action . . . and the parties agree to dismiss the remaining counts
without prejudice and waive operation of the statute of limitations on those remaining


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causes of action.” (Id. at p. 1100.) The Supreme Court stated: “We conclude such a
judgment is not appealable. As a line of Court of Appeal decisions beginning with Don
Jose’s . . . has recognized, the parties’ agreement holding some causes of action in
abeyance for possible future litigation after an appeal from the trial court’s judgment on
others renders the judgment interlocutory and precludes an appeal under the one final
judgment rule.” (Ibid.)
       Kurwa is not in any way inconsistent with our decision in the prior appeal. In fact,
we relied on the same case—Don Jose’s—in reaching the same conclusion the
Supreme Court did in Kurwa, i.e., that we cannot take jurisdiction over the appeal based
on the parties’ stipulation to dismiss the third to sixth causes of action without prejudice
and to toll the statute of limitations as to those causes of action. As noted, we relied
instead on equitable principles in exercising jurisdiction over the appeal. Kurwa, which
did not address the issue of jurisdiction based on equitable principles, provides no support
for Toups’s position that we lacked jurisdiction over the prior appeal. The cases on
which we relied in exercising jurisdiction based on equitable principles—Sullivan v.
Delta Air Lines, Inc., supra, 15 Cal.4th 288, and Prichard v. Liberty Mut. Ins. Co., supra,
84 Cal.App.4th 890—are still good law, and Toups does not argue otherwise.
                                       DISPOSITION
       The judgment is affirmed. Respondents/defendants Hong Bing Chen, Yao Li, and
Afresh Enterprises, Inc., shall recover their costs on appeal.2




       2
        Defendants argue in their respondents’ brief that they are entitled to attorney fees
and costs as sanctions for “being required to respond to this appeal since it is being
brought without any legitimate basis.” A respondent to an appeal cannot request
sanctions in a brief; a separate motion is required. (Cal. Rules of Court, rule 8.276(a)(1).)
We therefore deny defendants’ request for attorney fees and costs as sanctions.


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                                _________________________
                                McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.




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