Filed 2/19/16 Pointe San Diego Residential Community v. Weingarten CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



POINTE SAN DIEGO RESIDENTIAL                                        D066395
COMMUNITY, L.P. et al.,

         Plaintiffs and Respondents,
                                                                    (Super. Ct. No. GIC809277)
         v.

PALOMBA WEINGARTEN et al.,

         Defendants;

ANZA BUTTERFIELD ROAD 34, LLC,

         Intervener and Appellant.


         APPEAL from a judgment and orders of the Superior Court of San Diego County,

Ronald L. Styn, Judge. Reversed and remanded with directions.

         Best Best & Krieger, Robert J. Hanna, Matthew L. Green and Irene S. Zurko for

Intervener and Appellant.

         Vivoli Sacuzzo, Michael W. Vivoli; Dentons US and Charles A. Bird for Plaintiffs

and Respondents.
       Anza Butterfield Road 34, LLC (Anza) appeals a judgment entered in favor of

plaintiffs Pointe San Diego Residential Community, L.P., Gosnell Builders Corporation

of California, and Pointe SDMU, L.P. (collectively Pointe) and against defendants

Palomba Weingarten, W.W.I. Properties, LLC (WWI), Atlas Holdings Corporation, and

Astra Management Corp. (collectively Weingarten) and prejudgment orders denying

Anza's motions for leave to intervene in the action. As discussed below, Anza contends

the trial court erred by denying its motions for leave to intervene in the action and

entering the judgment on the parties' stipulation for rescission of some of the various

transactions among them that occurred more than 17 years earlier. Anza asserts that,

contrary to the court's conclusion, its first motion for leave to intervene in Pointe's fifth

cause of action for rescission complied with all of the requirements for mandatory

intervention under Code of Civil Procedure section 387, subdivision (b).1 It also asserts

the court erred by entering the judgment on stipulation because the rescission agreement

between Pointe and Weingarten is invalid and/or void.




1      All statutory references are to the Code of Civil Procedure unless otherwise
specified.

                                               2
                  FACTUAL AND PROCEDURAL BACKGROUND2

       In 2003, Pointe filed the instant action against Weingarten alleging causes of

action for rescission of a series of complex 1996 transactions involving the development

of a 1,000-acre mixed use real property project known as The Pointe San Diego in the

Spring Valley area of San Diego County. The project would include more than 900

single-family residences. As part of the project, Weingarten provided financing to Pointe

and received in return certain real property, including the Dictionary Hill (also known as

the Private Drive Estates) single-family residential development, title to which was

ultimately transferred to WWI. In 2006, WWI obtained a $3.8 million loan from D&A

Semi-Annual Mortgage Fund III, L.P. (D&A), secured by a trust deed against the

Dictionary Hill property. However, WWI subsequently defaulted on that loan and at a

trustee's sale in 2009 D&A acquired title to the Dictionary Hill property. D&A

subsequently sold the Dictionary Hill property to GFI-Sabre Springs, Inc., which in turn

transferred it to Anza in 2011.

       Pointe's fifth cause of action against Weingarten for rescission alleged it

transferred real property to WWI based on Weingarten's fraudulent promises and sought

partial rescission of the 1996 transactions (i.e., recovery of title to only the Dictionary

Hill property). In 2009, Palomba Weingarten's chapter 11 bankruptcy proceeding


2       For purposes of deciding this appeal, we need not summarize all of the complex
transactions, and extensive litigation following those transactions, among the various
parties. For a more detailed discussion of the transactions and prior litigation in this
matter, see Pointe San Diego Residential Community, L.P. v. W.W.I. Properties, L.L.C.
(Jul. 11, 2007, D044695) [nonpub. opn.].

                                               3
apparently was converted to a chapter 7 proceeding. In December 2013, Pointe and

Weingarten entered into an agreement of mutual rescission (Agreement), pursuant to

which they purported to rescind the 1996 transaction "in its entirety" and stated that title

to the Dictionary Hill property "held by WWI as of January 1996 shall be returned to

[Pointe]." Pursuant to the Agreement, Pointe and Weingarten stipulated to entry of a

judgment in the instant action in favor of Pointe on its rescission cause of action with the

remaining causes of action to be dismissed.

       In December 2013, Anza (and D&A) filed a motion for leave to intervene in the

action between Pointe and Weingarten, asserting Anza held title to the Dictionary Hill

property and its interest in that property was no longer adequately represented by any

party in that action.3 Anza argued the proposed judgment on stipulation submitted to the

trial court by Pointe and Weingarten sought the return to Pointe of title to the Dictionary

Hill property and a declaration that Pointe's title to that property is superior to any other

title.4 On March 21, 2014, citing Anza's failure to submit a proposed complaint in

intervention that would show its position on the pleadings in the action, the court denied



3       Because D&A has not filed a notice of appeal challenging the judgment and orders
in this case, we limit our discussion to Anza's motions and arguments below and
disregard any joint or separate motions and arguments by D&A.

4       The proposed judgment on stipulation provided in part: "[Pointe] shall have
judgment in their favor on their fifth cause of action for rescission . . . and fee title
ownership of the remaining portion of the Pointe San Diego Residential project as of the
filing of [Pointe's] complaint, commonly known as [Dictionary Hill] shall vest in
[Pointe], and [Pointe's] title shall be superior to any other title as of the date of filing of
[Pointe's] complaint."

                                               4
its motion for leave to intervene. In April, Anza filed a second motion for leave to

intervene or, alternatively, to renew or reconsider its first motion for leave to intervene.

On May 9, the trial court denied that motion on the ground it did not comply with section

1008's requirements for motions for reconsideration. On June 12, the court entered a

judgment on stipulation in Pointe's favor on its fifth cause of action for rescission of the

parties' 1996 transactions and ordered fee title ownership of the Dictionary Hill property

reconveyed to Pointe. In so doing, the court omitted language from the parties' proposed

judgment that would have stated: "[Pointe's] title shall be superior to any other title as of

the date of filing of [Pointe's] complaint." Rather, the court ordered: "[N]othing in this

Judgment shall effect [sic] the rights or priorities of the parties in [Anza's separate quiet

title action against Pointe]." Anza timely filed a notice of appeal challenging the

judgment and both orders denying its motions for leave to intervene in the action.

                                       DISCUSSION

                                               I

                                 Anza's Standing to Appeal

       In a cursory fashion, Pointe asserts Anza's appeal must be dismissed because it

does not have standing to appeal the judgment and, apparently, the prejudgment orders,

arguing Anza was not "aggrieved" by the judgment and orders as required by section 902.

It argues that because the judgment preserves Anza's ability to litigate all of its

contentions in the quiet title action it filed against Pointe, Anza is not aggrieved and

therefore does not have standing under section 902. We disagree.



                                               5
                                              A

       Standing to appeal is jurisdictional and liberally construed. (People v. Stark

(2005) 131 Cal.App.4th 184, 200 (Stark).) Section 902 provides: "Any party aggrieved

may appeal . . . ." A person may, in certain circumstances, be sufficiently aggrieved to

appeal a judgment whether or not that person is a party of record. (Stark, at p. 200

[nonparty has standing to appeal a judgment or order to which the nonparty is bound

under the doctrine of res judicata]; Life v. County of Los Angeles (1990) 218 Cal.App.3d

1287, 1292; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736; Burrow v. Pike

(1987) 190 Cal.App.3d 384, 388-392.) To be sufficiently aggrieved by a judgment or

order, the appellant's rights or interests must be injuriously affected in an immediate,

pecuniary, and substantial way and not in a nominal or remote consequence of the

judgment or order. (Stark, at p. 201; Marsh v. Mountain Zephyr, Inc. (1996) 43

Cal.App.4th 289, 295.)

                                              B

       "An order denying intervention is directly appealable because it finally and

adversely determines the right of the moving party to proceed in the action." (Bame v.

City of Del Mar (2001) 86 Cal.App.4th 1346, 1363; Siena Court Homeowners Assn. v.

Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1422 (Siena).) Anza is entitled to

appeal the trial court's orders denying its motions for leave to intervene. (Cf. ibid.)

Likewise, as an unsuccessful moving party, Anza is a party of record at least as to its

motions for leave to intervene.



                                              6
                                              C

       Furthermore, based on our review of the record, we conclude, as a matter of law,

Anza was sufficiently aggrieved by the trial court's orders denying its motions for leave

to intervene in the instant action that it has standing to appeal those orders. By its denial

of Anza's first motion, the court precluded Anza from filing a complaint in intervention

on Pointe's rescission cause of action and challenging the parties' proposed judgment on

stipulation declaring that title to the Dictionary Hill property vested in Pointe and that its

title was superior to any other title as of the date of the filing of its complaint. Anza

claimed title to the Dictionary Hill property by virtue of its purchase of the property after

Weingarten's lender foreclosed on the trust deed on that property. Pointe's proposed

judgment and attempt to reclaim title to the Dictionary Hill property was therefore in

direct conflict with Anza's claim of title to that property. Although the judgment

ultimately entered by the court after denying Anza's motion to intervene omitted

language that Pointe's title was superior to any other claims to title, it nevertheless

ordered that fee title ownership of the Dictionary Hill property was reconveyed to Pointe.

In denying Anza's motion to intervene and entering that judgment, the court injuriously

affected Anza's rights or interests in the Dictionary Hill property in an immediate,

pecuniary, and substantial way and not in a nominal or remote consequence of the

judgment or order.5 (Stark, supra, 131 Cal.App.4th at p. 201; Marsh v. Mountain


5      Furthermore, Anza was also aggrieved by Pointe's defensive use of the judgment
on stipulation in Anza's separate quiet title action against Pointe. In that action, Pointe
argued the judgment on stipulation, along with its lis pendens, showed its title to the
Dictionary Hill property had priority over Anza's claim of title to that property.
                                               7
Zephyr, Inc., supra, 43 Cal.App.4th at p. 295.) Contrary to Pointe's assertion, the fact the

judgment included language providing that "nothing in this Judgment shall effect [sic] the

rights or priorities of the parties in [Anza's separate quiet title action against Pointe]" does

not show Anza was not, or could not have been, aggrieved by the order and judgment.

By virtue of the orders and judgment, Anza was required to prosecute its separate quiet

title claim and otherwise incur additional costs in defending its claim of title to the

Dictionary Hill property. We conclude Anza was aggrieved not only by the orders

denying its motions to intervene but also by the judgment entered "reconveying" title of

the Dictionary Hill property to Pointe. Anza has standing to appeal those orders and the

judgment.

                                               II

                Order Denying Anza's First Motion for Leave to Intervene

       Anza contends the trial court erred by denying its first motion for leave to

intervene. It argues its motion for leave to intervene in the fifth cause of action for

rescission complied with all of the requirements for mandatory intervention under section

387, subdivision (b), and the court wrongly denied its motion based on its failure to

submit a proposed complaint in intervention.

                                               A

       As discussed above, Pointe and Weingarten entered into the Agreement pursuant

to which they purported to rescind the 1996 transaction "in its entirety" and stated that

title to the Dictionary Hill property "held by WWI as of January 1996 shall be returned to

[Pointe]." They stipulated to entry of a judgment in the instant action in favor of Pointe

                                               8
on its rescission cause of action. Anza then filed a motion for leave to intervene in the

action, asserting it held title to the Dictionary Hill property and its interest in that

property was no longer adequately represented by any party in that action. It argued the

parties' proposed judgment on stipulation submitted to the trial court sought the return to

Pointe of title to the Dictionary Hill property and a declaration that Pointe's title to that

property is superior to any other title.

       Pointe opposed Anza's motion for leave to intervene, arguing Anza unreasonably

delayed in seeking to intervene and had failed to submit a proposed complaint in

intervention. Citing Bowles v. Superior Court (1955) 44 Cal.2d 574 (Bowles), it argued:

"On a very basic level, the motion to intervene here is improper as it fails to include a

proposed complaint in intervention. Case law is clear that the Court must be presented

with the proposed pleading to evaluate whether it presents an appropriate case for

intervention. . . . Here, as no proposed pleading has been included with the moving

papers, this motion must be denied as procedurally inadequate and incomplete."

Regarding Anza's purported unreasonable delay, Pointe argued that its delay was "made

more egregious by the fact Anza and D&A have been aware . . . that the outcome of this

action had the absolute potential, and indeed the likelihood[,] of harming their title in the

Dictionary Hill Property."

       The trial court denied Anza's motion for leave to intervene. In so doing, it first

quoted language from Bowles that the right to intervene is statutory and a person should

be allowed to intervene only if he or she takes a position on the pleadings. It also noted

that in Bowles the moving party submitted a proposed complaint in intervention that did

                                                9
not meet those requirements. Applying that law to this case, the court stated: "[Anza]

fail[ed] to submit any proposed complaint in intervention. Thus, it is unknown whether

[it] 'take[s] a position on the pleadings in accordance with the requirements of section

387.' " The court rejected Anza's argument that Pointe was well aware from its motion

for leave to intervene, as well as from its prior filings in the case, that Anza sought to

resume the defense of Pointe's rescission cause of action Weingarten had abandoned.

The court concluded: "Irrespective of what [Anza] may have stated in previous motions

and filings with the court, absent a pleading setting forth [Anza's] claims in this case, [it]

fail[s] to meet the statutory requirements for intervention." (Italics added.)

                                              B

       Section 387 provides two alternative means for intervention in an action (i.e.,

either permissive or mandatory intervention). Section 387, subdivision (a), provides for

permissive intervention. Subdivision 387, subdivision (b), on which Anza relies in this

appeal, was added in 1977 and provides for mandatory intervention, stating:

          "If any provision of law confers an unconditional right to intervene
          or if the person seeking intervention claims an interest relating to the
          property or transaction which is the subject of the action and that
          person is so situated that the disposition of the action may as a
          practical matter impair or impede that person's ability to protect
          that interest, unless that person's interest is adequately represented
          by existing parties, the court shall, upon timely application, permit
          that person to intervene." (Italics added; see Historical and Statutory
          Notes, 14 West's Ann. Code Civ. Proc. (2004 ed.) foll. § 387,
          p. 383.)

The threshold question for mandatory intervention under section 387, subdivision (b), is

whether the person has an interest relating to the property or transaction that is the subject


                                              10
of the action. (Siena, supra, 164 Cal.App.4th at p. 1423.) If that threshold showing is

made, the person must then show he or she " 'is so situated that the disposition of the

action may as a practical matter impair or impede that person's ability to protect that

interest.' " (Id. at p. 1424.) "Once this showing is made, the court must permit the person

to intervene unless the 'person's interest is adequately represented by existing parties.' "

(Ibid.)

                                                 C

          Anza asserts that because it satisfied all of the statutory requirements for

mandatory intervention under section 387, subdivision (b), the trial court erred by

denying its motion for leave to intervene in the instant action. It argues the court erred by

denying its motion based on its failure to submit with its motion a proposed complaint in

intervention. Anza argues that neither section 387, subdivision (b), nor relevant case law

(e.g., Bowles), requires the submission of a proposed complaint in intervention for

mandatory intervention to be granted.

          We agree with Anza and conclude neither the statutory language of section 387,

subdivision (b), nor relevant case law require a person to submit a proposed complaint in

intervention before a trial court may grant a motion for mandatory intervention. On the

contrary, absent an unconditional statutory right to intervene, section 387, subdivision

(b), requires the moving person to show only three elements: (1) an interest relating to the

property or transaction that is the subject of the action; (2) he or she is so situated that the

disposition of the action may, as a practical matter, impair or impede that person's ability



                                                11
to protect that interest; and (3) the person's interest is not adequately represented by

existing parties. (Siena, supra, 164 Cal.App.4th at pp. 1423-1424.)

       There is nothing in the language of section 387, subdivision (b), that requires the

moving person to submit a proposed complaint in intervention. Likewise, contrary to the

trial court's conclusion, there is no published case of which we are aware that requires

submission of a proposed complaint in intervention as part of a section 387, subdivision

(b), motion. Bowles, cited by Pointe and relied on by the trial court, not only is factually

inapposite, but also does not stand for the proposition on which the court apparently

relied. Bowles was decided in 1955 when section 387 provided for only permissive

intervention. The language of section 387 at that time was substantially the same as that

included in the current version of section 387, subdivision (a). (See § 387, subd. (a);

Bowles, supra, 44 Cal.2d at p. 588, fn. 5.) Accordingly, Bowles could not, and did not,

address the statutory requirements for mandatory intervention, which appear in section

387, subdivision (b), and were enacted in 1977. In any event, Bowles does not hold that a

proposed complaint in intervention is required for permissive intervention under section

387. Rather, in that case the moving person had submitted a proposed complaint in

intervention, but that proposed complaint did not reveal what the person's position was on

the pleadings in that case. (Id. at p. 589.) There is nothing in Bowles that holds a moving

person is required to submit a proposed complaint in intervention to disclose what

position he or she takes on the pleadings in the case. Anza's omission of a proposed

complaint in intervention was not a ground on which the trial court could deny its motion

for leave to intervene.

                                              12
       Furthermore, assuming arguendo that a fourth (and nonstatutory) element is

required for mandatory intervention under section 387, subdivision (b), namely, a

showing of the moving person's position on the pleadings in the action per Bowles, that

showing was clearly made by Anza in the circumstances of this case. It sought to

intervene in the case to defend Pointe's rescission cause of action and prevent the

reconveyance of the Dictionary Hill property from Weingarten to Pointe. It clearly did so

because it claimed title to that same property. At a minimum, Anza's moving papers

implicitly, if not expressly, disclosed that Anza sought to defend Pointe's fifth cause of

action for rescission of the 1996 transaction with Weingarten and Pointe's attempt to

obtain reconveyance to it of the Dictionary Hill property. Anza's moving papers,

especially considering its prior filings in the matter, left no doubt that it claimed title to

the Dictionary Hill property and sought to prevent Pointe from rescinding its 1996

transaction with Weingarten and obtaining a reconveyance to it of the Dictionary Hill

property. No person could reasonably infer that Anza sought to intervene in the case to

support Pointe's attempt to regain title to the Dictionary Hill property. Therefore, even if

Anza was required to disclose its position on the pleadings in the case, it adequately did

so. The trial court erred by denying Anza's motion on that ground.

                                               D

       We address the question of whether Anza satisfied all three requirements for

mandatory intervention under section 387, subdivision (b). Pointe concedes Anza

satisfied the first and third requirements (i.e., (1) Anza had an interest relating to the

Dictionary Hill property that is the subject of the action; and (3) its interest was not

                                               13
adequately represented by existing parties (e.g., Weingarten)). Rather, Pointe argues

Anza did not meet its burden to show the second element, i.e., Anza was so situated that

the disposition of the action may, as a practical matter, impair or impede its ability to

protect that interest. (§ 387, subd. (b); Siena, supra, 164 Cal.App.4th at p. 1424.)

       Based on our independent review of Anza's moving papers and the circumstances

of this case, we conclude Anza satisfied its burden to show it was so situated that the

disposition of Pointe's rescission cause of action may, as a practical matter, impair or

impede its (Anza's) ability to protect its interest in the Dictionary Hill property. At the

time of Anza's motion, Pointe had submitted a proposed judgment on stipulation that

would not only return to Pointe title to the Dictionary Hill property, but also would

declare that Pointe's title to that property was superior to any other title (e.g., Anza's

claim to title). Thus, Anza's ability to protect its interest in the Dictionary Hill property

was potentially impaired or impeded by Pointe's rescission cause of action and, in

particular, its attempt to obtain a judgment on stipulation that would directly contravene,

or conflict with, Anza's claim of title to that property.

       Contrary to Pointe's assertion, the fact that Anza filed a separate quiet title action

against it the day before Anza filed its motion for leave to intervene in this action does

not show that Pointe's rescission cause of action and proposed judgment on stipulation

could not possibly impair or impede Anza's ability to protect its interest in the Dictionary

Hill property. Rather, Anza's separate quiet title action was simply another means by




                                              14
which it sought to protect its claim of title to the Dictionary Hill property. 6 Anza had no

assurance that its separate action would be successful. Furthermore, had Anza been

allowed to intervene in the instant action, it is possible it may have been able to prevent

the entry of the judgment on stipulation that awarded to Pointe mutual rescission of the

1996 transaction and reconveyance to Pointe of the Dictionary Hill property. Had Anza

been successful in preventing entry of that judgment, its separate quiet title action against

Pointe may have become unnecessary and moot. Based on the same reasoning, we also

reject Pointe's assertion that Anza's ability to protect its interest in the Dictionary Hill

property could not have been impaired or impeded (or that Anza was not aggrieved or

prejudiced) by Pointe's rescission cause of action and the judgment on stipulation entered

thereon because that judgment included a provision stating it did not affect the rights or

priorities of the parties in Anza's separate quiet title action. We conclude Anza carried its

burden to show it satisfied the second element for mandatory intervention under section

387, subdivision (b).

                                               E

       Although Pointe appears to have abandoned on appeal its argument below that

Anza unduly delayed in moving for leave to intervene, we nevertheless briefly address

6        Pointe also misstates Anza's burden in moving for leave to intervene. It argues
that because Anza did not show its separate quiet title action could not have protected its
interest in the Dictionary Hill property, it did not carry its burden in moving for leave to
intervene. On the contrary, it was not Anza's burden to show there were no other means
for it to protect its interest in the Dictionary Hill property. Rather, its burden on the
second element was to show it was so situated that disposition of Pointe's rescission
cause of action may, as a practical matter, impair or impede its ability to protect its
interest in that property. (§ 387, subd. (b).) We conclude Anza met that burden.

                                               15
that issue. Until such time as Weingarten ceased actively defending Pointe's rescission

cause of action against it and entered into the Agreement with Pointe, Anza had no reason

to intervene because Weingarten presumably was adequately representing its interest in

the Dictionary Hill property by defending the rescission cause of action. However, on

December 11, 2013, when Weingarten ceased her defense of that cause of action and

entered into the Agreement, Anza's interest in the Dictionary Hill property was no longer

adequately represented in the action. (§ 387, subd. (b).) By any standard, Anza acted

promptly by moving for leave to intervene in the action on December 18, 2013, only one

week after Weingarten entered into the Agreement. We conclude Anza timely filed its

motion for leave to intervene in the action.

                                               F

       Because we conclude the trial court erred by denying Anza's first motion for leave

to intervene in the action under section 387, subdivision (b), we need not, and do not,

address whether the court also erred by denying that motion to the extent it sought

permissive intervention under section 387, subdivision (a). Likewise, because we

conclude the court erred by denying Anza's first motion for leave to intervene, we need

not, and do not, address whether the court erred by denying Anza's second motion for

leave to intervene or, alternatively, to renew or reconsider its first motion for leave to

intervene.

       Furthermore, because we conclude the trial court erred by denying Anza's first

motion for leave to intervene, we need not, and do not, address whether the trial court

should have denied the parties' request for entry of the judgment on stipulation because

                                               16
the Agreement was void and/or invalid for not requiring full restoration of the parties'

pre-1996 positions. Although Anza made substantive legal arguments below and argues

on appeal that the judgment on stipulation should be reversed because it was based on the

Agreement that was void and/or invalid for failure to require full restoration of the

parties' positions, we reverse the judgment instead because, as discussed below, the court

prejudicially erred by denying Anza's motion for leave to intervene in the action.

                                              III

                             Anza's Requests for Judicial Notice

       During the pendency of this appeal, Anza filed two motions for judicial notice.

On January 30, 2015, it requested that we take judicial notice of Pointe's fifth amended

complaint against Procopio, Cory, Hargreaves & Savitch, LLP, and Steven Strauss for

negligence and legal malpractice arising out of their representation of Pointe. In its

motion, Anza argues that separate action by Pointe shows the Agreement did not require

the full restoration of the parties' positions because it does not require the return of $3.8

million paid by Atlas Holdings Group, Inc., to purchase a $108 million note held by Long

Term Credit Bank of Japan or restoration of about $12 million in personal tax benefits

received by Palomba Weingarten by virtue of the 1996 transactions. Anza also argues it

shows Pointe alleges its former counsel committed malpractice by dismissing its

rescission cause of action because rescission would have required Weingarten to return

the value of the tax benefits, less the amount of her cash outlay. On February 19, 2015,

we issued an order stating we would consider the request for judicial notice concurrently

with the appeal. We now deny that request for judicial notice.

                                              17
       On November 5, 2015, Anza filed a second motion for judicial notice. Anza

requests that we take judicial notice of various documents filed in its separate quiet title

action against Pointe, including: (1) the September 2, 2015, judgment entered in Anza's

favor; (2) Anza's trial brief; (3) Pointe's trial brief; (4) the trial court's statement of

decision; (5) Pointe's notice of appeal challenging the September 2, 2015, judgment; and

(6) the notice of filing of Pointe's notice of appeal. On December 1, 2015, we issued an

order stating we would consider the request for judicial notice concurrently with the

appeal. Because the above documents are relevant to the issues in this appeal and consist

of records of the trial court, we grant Anza's request and take judicial notice of them.

(Evid. Code, §§ 459, 452, subd. (d).)

                                                IV

                                            Prejudice

       To the extent Pointe argues the trial court's error in denying Anza's motion for

leave to intervene was not prejudicial, we disagree. Had the court granted Anza's motion,

it presumably would have been able to file a complaint in intervention, oppose the

Agreement and the parties' proposed judgment on stipulation, and otherwise defend

Pointe's rescission cause of action. Furthermore, given Anza's argument below and on

appeal regarding the failure of the Agreement to fully restore the parties to their former

positions (which argument Pointe does not refute on appeal), we believe it is reasonably

probable Anza would have obtained a more favorable result had the court granted its

motion for leave to intervene. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Alternatively stated, there is a reasonable chance, more than an abstract possibility, the

                                                18
court would not have entered judgment in Pointe's favor on its rescission cause of action

and, in particular, would not have ordered the Dictionary Hill property reconveyed to

Pointe. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) Therefore,

the court's error in denying Anza's motion for leave to intervene also requires reversal of

its judgment on stipulation.

                                      DISPOSITION

       The March 14, 2014, order denying Anza's motion for leave to intervene and the

judgment entered on June 12, 2014, are reversed and the matter is remanded with

directions that the trial court vacate its March 14, 2014, order and issue a new order

granting Anza's motion for leave to intervene under section 387, subdivision (b), and

conduct further proceedings consistent with this opinion. Anza shall recover its costs on

appeal.




                                                                           McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


NARES, J.




                                             19
