Filed 1/28/15 Wells Fargo Bank v. Bennett CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Lassen)
                                                            ----




WELLS FARGO BANK N.A., as Trustee, etc., et al.,

                   Cross-complainants and Respondents,                                       C072171

         v.                                                                        (Super. Ct. Nos. 45679,
                                                                                           50324)
DWIGHT A. BENNETT,

                   Cross-defendant and Appellant.

         Appellant Dwight A. Bennett appeals from a judgment in which the trial court
granted respondent Wells Fargo Bank, N.A. (Wells Fargo) an equitable lien and an
equitable mortgage on a 40-acre parcel of land in Susanville, California. The judgment
being appealed also reformed the deed of trust to the property to award a first priority
security interest in favor of Wells Fargo.
         Bennett contends the judgment must be reversed because (1) triable issues of fact
precluded summary adjudication in favor of Wells Fargo, (2) Wells Fargo should not
have been granted the equitable relief because it did not properly amend its cross-
complaint, (3) insufficient evidence supports the judgment in favor of Wells Fargo, (4) no


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receiver should have been appointed for the real property, and (5) a contempt order was
erroneously imposed on him.
       Wells Fargo counters that the appeal must be dismissed. To this end, Wells Fargo
argues (1) the judgment is interlocutory in nature and cannot be appealed under the one
final judgment rule, (2) the purported appeal from orders of receivership are untimely
because the appeal was filed more than 180 days after entry of the challenged orders, and
(3) review of a contempt order is only by writ, not direct appeal. We agree we lack
jurisdiction and dismiss the appeal.
                                       BACKGROUND
                                       The Litigation
       In 2010, Norman W. Allen sued numerous defendants including Bennett, Wells
Fargo, and Judith A. St. John.1 Allen sought tort damages, reformation of contract, and
imposition of an equitable trust after he entered into an agreement with Bennett and St.
John to partition a 54-acre property in Susanville, California. The partition mistakenly
omitted certain improvements from Allen’s 14-acre portion, which jeopardized a
mortgage obtained by Allen from Option One Capital Mortgage Corporation. All of
Allen’s causes of action related to the partition and the parties’ resulting property rights.
       St. John filed a cross-complaint seeking, among other things, declaratory relief and
indemnity from Bennett.
       Wells Fargo also filed a cross-complaint for eight causes of action as successor
trustee and beneficiary of a deed of trust to the partitioned property. Wells Fargo alleged
the error in partitioning the property left Allen to pay for improvements Bennett and
St. John ended up owning. Based on the erroneous partitioning, Wells Fargo sought
declaratory relief, reformation of the deed of trust, imposition of an equitable lien, and




1      Allen is not a party to this appeal.

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imposition of an equitable mortgage against Bennett, Allen, and St. John. Wells Fargo
alleged equitable subrogation against Bennett and St. John. Wells Fargo also alleged
negligent misrepresentation and professional negligence against cross-defendant Evans
Appraisal Services, Inc. (Evans Appraisal). As to Allen, Wells Fargo also alleged
rescission of the deed of trust.
       Evans Appraisal in turn filed a cross-complaint against Bennett, Allen, and
St. John for non-disclosure of material information and seeking indemnity from these
cross-defendants.
       In May 2011, Wells Fargo moved for summary adjudication on its claims for
equitable lien and equitable mortgage. On July 20, 2011, Wells Fargo requested the
appointment of a receiver for the property. After a hearing, the trial court appointed a
receiver on July 21, 2011.
       In November 2011, the trial court entered an order granting summary adjudication
in favor of Wells Fargo on its claims for equitable lien and equitable mortgage. On July
19, 2012, the trial court entered a judgment on the summary adjudication that granted
Wells Fargo an equitable lien and equitable mortgage over the 40 acres containing the
improvements. The judgment also reformed the deed of trust to give Wells Fargo a first
priority security interest in the 40 acres.
                             The Partial Settlement Agreement
       In October 2012, Evans Appraisal filed a motion under Code of Civil Procedure
section 664.6 to enforce a partial settlement agreement seemingly entered into by all
parties except Bennett. Paragraph 16 of the partial settlement agreement provides, in
pertinent part, that: “All Parties further understand and agree that . . . there are claims
and causes of action[] remain[ing] to be litigated as relate[] to the REMAINDER
PARCEL. Therefore, any Party will be allowed to introduce into evidence at any trial
this Partial Settlement Agreement.” Paragraph 17 recognizes: “This Partial Settlement
Agreement does not settle or resolve claims between ALLEN, BENNETT, and

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ST. JOHN as to ownership rights in the REMAINDER PARCEL. Those claims remain
unresolved and will not be dismissed pursuant to this Agreement. . . . The only issue left
to be determined by the Court at the hearing on Friday, August 19, 2011, will be a
determination of the equitable percentage of ownership by ALLEN, BENNETT, or
ST. JOHN to the REMAINDER PARCEL. The Court will resolve this issue by briefs
with supporting financial contributions towards the maintenance, upkeep of the property.
The Court will after determining the percentage of ownership among ALLEN,
BENNETT, and ST. JOHN will order a partition by sale. The proceeds of which will be
set in a percentage of ownership to be determined by the Court.”
       Allen objected to entry of judgment on the settlement agreement on grounds it had
been obtained by coercion. Bennett also objected on grounds the partial settlement
agreement divested him of rights even though “[t]he Bennett property remains Bennett’s
vested property.”
       The trial court has not yet resolved the validity of the partial settlement agreement.
Moreover, litigation continues on Allen’s complaint and the related cross-complaints.
                                Bennett’s Notice of Appeal
       On September 24, 2012, Bennett filed a notice of appeal on the Judicial Council
form (APP-002) in which he did not specify the date of the judgment(s) being appealed.
Instead, he specified a multitude of bases for appealability in a seven-page attachment
that cites numerous statutes. Bennett’s notice seemingly focuses on the July 19, 2012,
judgment on Wells Fargo’s motion for summary adjudication as to Bennett.
                                      DISCUSSION
                                              I
                    Appeal from Judgment after Summary Adjudication
       Wells Fargo contends we lack jurisdiction over Bennett’s appeal from an
interlocutory judgment. We agree.



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                                              A.
                              The One Final Judgment Rule
       The existence of an appealable order or judgment is a jurisdictional prerequisite
for appellate review. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) As the California
Supreme Court recently explained, “Under California’s ‘one final judgment’ rule, a
judgment that fails to dispose of all the causes of action pending between the parties is
generally not appealable. (Code Civ. Proc., § 904.1, subd. (a); Morehart v. County of
Santa Barbara (1994) 7 Cal.4th 725, 740-741 (Morehart ).)” (Kurwa v. Kislinger (2013)
57 Cal.4th 1097, 1100 (Kurwa), fn. omitted.) As the Kurwa court elaborated, “ ‘A
judgment that disposes of fewer than all of the causes of action framed by the pleadings .
. . is necessarily “interlocutory” (Code Civ. Proc., § 904.1, subd. (a)), and not yet final, as
to any parties between whom another cause of action remains pending.’ (Morehart,
supra, 7 Cal.4th at p. 741.) The theory of the rule is that ‘ “piecemeal disposition and
multiple appeals in a single action would be oppressive and costly, and that a review of
intermediate rulings should await the final disposition of the case.” (9 Witkin, Cal.
Procedure (4th ed. 1997) Appeal, § 58, p. 113 [citations].)’ (Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 697.)” (Kurwa, supra, at p. 1101.) Consequently,
an appeal from an interlocutory judgment not otherwise made appealable by statute must
be dismissed. (Id. at p. 1108.)
                                              B.
                   Bennett’s Appeal is from an Interlocutory Judgment
       Bennett’s notice of appeal appears to focus on the judgment entered by the trial
court on July 19, 2012. In that judgment, the trial court granted Wells Fargo an equitable
lien and equitable mortgage on the contested property. The judgment also reformed the
deed of trust to give Wells Fargo a security interest in the property. However, the




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judgment did not dispose of six of the eight causes of action brought by Wells Fargo that
remain pending.2
       Two of the pending causes of action (negligent misrepresentation and professional
negligence) are against Evans Appraisal. One of the pending causes of action (rescission)
is against Allen. However, three of the remaining causes of action are against Bennett for
declaratory relief, reformation, and equitable subrogation. These causes of action against
Bennett arise out of the same partition action as the equitable lien and equitable
mortgage. Thus, there are unresolved issues that carry separate types of remedies if
Wells Fargo is able to establish its remaining claims.3 For this reason, the judgment
being appealed is interlocutory in nature and not appealable. (Kurwa, supra, 57 Cal.4th
at pp. 1100-1101.)
       Bennett contends the judgment is final and appealable because he “has nothing left
that could be awarded to any party, litigant or otherwise.” Given that the trial court has
not yet entered a final judgment disposing of the entirety of the contested property, it has
not yet been established what property interest Bennett might have. Moreover, the
unresolved causes of action against the various defendants might warrant declaratory
relief, contract rescission, reformation of the contract, and/or damages. These remedies
differ from each other in how they are measured and what wrong they address. (See, e.g.,
Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 92.) Consequently, the




2       Wells Fargo’s request for judicial notice of the pleadings and minute order filed in
the trial court is granted. (Evid. Code, §§ 453, 459) However, we deny Wells Fargo’s
request for judicial notice of the transcript of proceedings of July 21, 2011, and further
objections of defendant and cross-complainant St. John as unnecessary for the resolution
of this appeal. (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115
Cal.App.4th 168, 174 & fn. 4.)
3     To be clear, we express no opinion on the merits of any of the claims that remain
pending in the trial court in this case.

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unresolved remaining claims of Wells Fargo preclude appeal by Bennett from the
interlocutory judgment.
       Bennett also asserts Wells Fargo “should be dismissed from the instant case and
appeal or sanctioned under the doctrine of preclusion [sic] inconsistent positions, the
statute of limitations, pursuant to [C]ode of Civil Procedure[] §§ 338 and/or 339, the ‘one
action rule,’ or for lack of standing.” We deem this contention forfeited for failure to
develop the argument with meaningful analysis. (Berger v. Godden (1985) 163
Cal.App.3d 1113, 1117.) In any event, whether Wells Fargo should have been dismissed
by the trial court has no bearing on whether we have jurisdiction to consider Bennett’s
appeal. Indeed, we note a failure to dismiss a party lacking standing is itself an issue that
may be raised in a properly taken appeal. (E.g., People ex rel. Department of
Conservation v. El Dorado County (2005) 36 Cal.4th 971, 988.)
       Bennett also seems to suggest the pendency of claims by Wells Fargo against
Evans Appraisal does not mean all claims between himself and Wells Fargo have not
been effectively adjudicated. Regardless of the status of claims between Wells Fargo and
Evans Appraisal, there are unresolved causes of action between Bennett and Wells Fargo
that render the judgment interlocutory and nonappealable in nature. Under the one final
judgment rule, we lack jurisdiction to consider Bennett’s appeal from the July 19, 2012,
judgment in favor of Wells Fargo.
                                             II
                   Untimely Appeal from Orders Appointing Receiver
       In his opening brief, Bennett challenges the orders appointing a receiver for the
property. Wells Fargo contends Bennett’s notice of appeal is insufficient and his appeal
from the orders was untimely. We agree on both grounds.
       The orders challenged by Bennett were entered on July 21, 2011, November 17,
2011, and December 14, 2011. However, Bennett does not list these orders on the first
page of his notice of appeal -- which does not specify any appealable judgment or order

                                              7
by date. Bennett’s accompanying seven-page attachment to the notice of appeal offers no
clarity about what exactly he intends to appeal. Accordingly, Wells Fargo did not receive
adequate notice and the appeal from the receivership orders may be dismissed on this
ground alone. (See Norco Delivery Service, Inc. v. Owens Corning Fiberglas, Inc.
(1998) 64 Cal.App.4th 955, 961 [even though notices of appeal are liberally construed,
they are valid only if there is no confusion on part of respondent as to what is being
appealed].)
       Moreover, the notice of appeal was untimely as to the orders of receivership. The
last of these orders was entered on December 14, 2011 –- a total of 285 days before
Bennett filed his notice of appeal. Orders appointing receivers are immediately
appealable. (Code Civ. Proc., § 904.1, subd. (a)(7).) And, appealable orders must be
appealed at the earlier date of 60 days after notice of entry of the order or 180 days after
the order was filed. (Cal. Rules of Court, rule 8.104(a)(1)(A) & (C).) Bennett’s notice of
appeal, being filed 285 days after the last challenged order, necessarily was untimely as
to those orders.
       Wells Fargo also contends that not all of the orders challenged by Bennett are
appealable. We need not resolve the appealability of the November 17, 2011, and
December 14, 2011, orders because –- regardless of appealability -- Bennett filed his
notice of appeal 285 days after the last challenged order. Consequently, his notice of
appeal is untimely and we lack jurisdiction.
                                             III
                   Civil Contempt is Challengeable Only by Writ Petition
       Finally, Bennett challenges an order entered August 19, 2011, which held him in
contempt. However, a contempt judgment is not appealable. “[C]ontempt judgments are
final, conclusive, and not appealable. ([Code of Civ. Proc.,] §§ 1222 & 904.1.)
Therefore, courts have found that writ proceedings are appropriate vehicles for review of
contempt orders.” (In re Holmes (1983) 145 Cal.App.3d 934, 941; accord Davidson v.

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Superior Court (1999) 70 Cal.App.4th 514, 522 [noting “[a] contempt judgment is not
appealable . . . and must be reviewed, if at all, by writ”].) Accordingly, Bennett may not
appeal the contempt order entered against him.
                                     DISPOSITION
       The appeal is dismissed. Wells Fargo Bank, N.A., shall recover its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)


                                                         HOCH        , J.



We concur:



      BUTZ         , Acting P. J.



      MAURO        , J.




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