Filed 7/15/15 R.E.F.S., Inc. v. Williams CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




R.E.F.S., INC.,                                                               B256426

                        Plaintiff,                                            (Los Angeles County
                                                                              Super. Ct. No. BS084615)
          v.

G. GREGORY WILLIAMS et al.,

                        Defendants and Appellants,

ELI LEVI,

                        Defendant and Respondent.




          APPEAL from orders of the Superior Court of Los Angeles County,
Mark A. Borenstein, Judge. Dismissed.
          G. Gregory Williams and Plernpit Polpantu, in pro. per., for Defendants and
Appellants.
          Christie Gaumer for Defendant and Respondent.
                                         ______________________________
       Appellants G. Gregory Williams and Plernpit Polpantu purport to appeal from an
April 29, 2014 order releasing funds deposited with the court to respondent Eli Levi and a
May 8, 2014 order denying appellants’ ex-parte application to vacate the April 29, 2014
order. We dismiss the appeal as premature because the May 8, 2014 order granted
appellants the relief they sought: it stayed release of the funds until further court order
and provided for a noticed hearing on appellants’ motion to vacate the April 29, 2014
order, thus turning the earlier order into a nonappealable interlocutory order.


                    FACTUAL AND PROCEDURAL SUMMARY
       This appeal is the most recent installment in a long-lasting dispute arising from the
foreclosure sale of appellants’ condominium. The dispute has engendered many federal
and state court proceedings. We borrow the relevant portions of its history from our
opinion in Levi v. Williams (June 25, 2009, No. B207734 [nonpub. opn.]).
       “Williams, who purchased the condominium in 1995, transferred title to his
fiancée, P. Toi Polpantu, by a deed recorded on April 21, 1999. However, by a quitclaim
deed that was also dated April 21, 1999, but was not recorded, Polpantu transferred title
back to Williams.
       “Williams and Polpantu were living in the condominium when the condominium
association served notice of an April 3, 2003 foreclosure sale for Polpantu’s nonpayment
of approximately $11,000 in association fees. Two days before the foreclosure sale,
Williams filed his April 1, 2003 bankruptcy petition, but the petition did not disclose his
interest in the condominium. When the April 3, 2003 foreclosure sale was held,
Polpantu, not Williams, was the owner of record title. Levi purchased the condominium
at the foreclosure sale for $215,000. One day after the foreclosure sale, Williams
recorded the previously unrecorded April 21, 1999 quitclaim deed from Polpantu.”
       Afterwards, the bankruptcy court “retroactively annulled the automatic stay to the
date of Williams’s . . . April 1, 2003 bankruptcy petition, thereby precluding Williams
from attacking the April 3, 2003 foreclosure sale on the ground that the sale was
conducted in violation of the automatic stay.” The bankruptcy court’s ruling was

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affirmed by the Ninth Circuit Court of Appeals. Levi was granted a writ of possession in
an unlawful detainer action, and appellants were evicted in late February 2004, ten
months after the foreclosure sale.
       In 2008, after many procedural complications, Levi obtained a default judgment,
in which “(1) title to the condominium was quieted in favor of Levi and against Polpantu
and Williams; (2) the quitclaim deed from Polpantu to Williams was cancelled and
removed from the real property records; (3) the lis pendens recorded by Williams against
the property was expunged; (4) record title to the property was perfected in favor of Levi;
(5) Levi was awarded $256,639.12 in damages against Polpantu and Williams, jointly
and severally, consisting of $30,550 in lost rents, $44,400.91 for waste, and $181,688.21
in lost profits; and (6) Levi was awarded costs and postjudgment interest.” We affirmed
that judgment in Levi v. Williams, supra.
       As relevant to the current appeal, the foreclosure trustee, R.E.F.S., Inc., filed a
“Petition and Declaration Regarding Unresolved Claims and Deposit of Undistributed
Surplus Proceeds” from the sale in the amount of $198,825. (Civ. Code, § 2924j.)
Appellants and respondent made claims to the funds, but no action to release them was
taken until 2014, when respondent applied ex-parte for their release. On March 26, 2014,
Judge Borenstein ordered respondent to serve appellants and issued an order to show
cause why the deposited funds should not be released to respondent. On April 3,
respondent filed a proof of service, indicating appellants were served by mail at addresses
listed in the trustee’s petition; one of them was the condominium, where they had not
lived for 10 years.
       Appellants did not appear at the April 29, 2014 hearing, and Judge Borenstein
ordered the funds released to respondent, but also ordered respondent “to make a diligent
effort” to serve appellants at their current addresses and to file a declaration as to those
efforts within two weeks. On May 8, appellants made an ex-parte application to set aside
the distribution order, or in the alternative to stay its enforcement and to set a noticed
motion to vacate it. Judge Borenstein granted the motion in part, staying the April 29
order “pending further order of the court” and setting a hearing on appellants’ motion to

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vacate the order for July 18, 2014. The May 8 order was later corrected nunc pro tunc to
require that the funds transferred to the client trust account of respondent’s counsel
should remain there until further court order. The order also directed that respondent’s
attorney mail appellants the deposit check and all moving papers regarding the
distribution order.
       Appellants filed their notice of appeal from the April 29 and May 8 orders on
May 12.
       On May 14, 2014, Judge Borenstein accepted the peremptory challenge Williams
had filed against him on May 8. (Code Civ. Proc., § 170.6.) The case was then
reassigned to Judge Mary H. Strobel. The July 18 hearing was advanced and vacated and
was to be “reserved and re-noticed for the new designated court by the moving party.”
Subsequent proceedings before Judge Strobel, of which we take judicial notice, indicate
that respondent applied ex-parte for distribution of the funds because appellants had not
renoticed their motion to vacate the April 29 order. Appellants argued the trial court
lacked jurisdiction because of the pending appeal. Judge Strobel denied the ex-parte
application and set the matter for a noticed hearing. A noticed motion for distribution
was denied on February 4, 2015, and a motion for reconsideration is scheduled to be
heard on July 17, 2015.
       We issued an order to show cause why the appeal should not be dismissed as
premature in light of the pending proceedings in the trial court at the time of filing of the
notice of appeal, and why appellants should not be required to make a noticed motion in
the trial court to vacate the default distribution order in the first instance. In the
opposition to the order to show case, appellants represented that the trial court has stayed
the proceedings.


                                        DISCUSSION
       A reviewing court lacks jurisdiction on direct appeal in the absence of an
appealable order or judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th
688, 696.) Under the “one final judgment” rule, review of intermediate rulings by appeal

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must await final resolution of the case. (Id. at p. 697.) “‘[W]here anything further in the
nature of judicial action on the part of the court is essential to a final determination of the
rights of the parties’” following the issuance of an order, the order is merely interlocutory
rather than final and appealable. (Id. at p. 698.)
       Standing on appeal also is a jurisdictional issue, which requires that a party of
record be sufficiently aggrieved by a judgment or order, in the sense that the party’s
rights or interests must be “injuriously affected.” (Code Civ. Proc., § 902; County of
Alameda v. Carleson (1971) 5 Cal.3d 730, 736–737.) “[I]f the judgment or order is in
favor of a party he is not aggrieved and cannot appeal.” (Nevada County Office of
Education v. Riles (1983) 149 Cal.App.3d 767, 779.)
       In their opposition to the order to show cause, appellants argue that the April 29,
2014 order releasing the funds to respondent is final and appealable. It is true that a
judgment or order resolving priority claims and releasing surplus funds under Civil Code
section 2924j may be treated as final and appealable. (See Wells Fargo Bank v. Neilsen
(2009) 178 Cal.App.4th 602, 608–609; CTC Real Estate Services v. Lepe (2006) 140
Cal.App.4th 856, 859–860.) But in this case, it is questionable that the April 29, 2014
order was intended to be a final order because, on its face, it shows Judge Borenstein’s
concern about the possible lack of proper notice to appellants at their current address.
That the order is not final was made clear in the May 8, 2014 order, which stayed the
release of funds to respondent until further court order and set appellant’s motion to
vacate for a noticed hearing. Because the latter order required further judicial action to
finally determine the rights of the parties to the funds, it rendered the former order
interlocutory rather than final and appealable. (Griset v. Fair Political Practices Com.,
supra, 25 Cal.4th at p. 696.)
       Contrary to appellants’ contention, the proper procedure to claim funds deposited
with the court is not at issue here. Because the funds were ordered released to respondent
on April 29, 2014, appellants would need to have that order set aside in the first instance.
Their argument that a void order may be set aside on an ex-parte basis is not well taken
since Code of Civil Procedure section 473, subdivision (d) requires a noticed motion.

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(Code Civ. Proc. § 473, subd. (d)) [“The court may, . . . on motion of either party after
notice to the other party, set aside any void judgment or order”]; Schwab v. Southern
California Gas Co. (2004) 114 Cal.App.4th 1308, 1320.)
       Appellants contend they were not required to make a further motion to vacate the
April 29, 2014 order after the trial court denied their ex-parte application. They
apparently assume the denial was on the merits, but nothing in the record indicates the
trial court denied the ex-parte application on substantive grounds. To the contrary, the
court deferred ruling on the merits by granting appellants the alternative procedural relief
they sought—a stay of the April 29 order and a noticed hearing on their motion to vacate
that order. Because they had been granted procedural relief from the April 29 order, at
the time they filed this appeal appellants were not aggrieved. (Nevada County Office of
Education v. Riles, supra, 149 Cal.App.3d at p. 779.)
       In light of the pending proceedings in the trial court when the notice of appeal was
filed, the orders from which the appeal was taken were not final. Nor were appellants
aggrieved in light of the relief they had been granted. We, therefore, have no jurisdiction
over this appeal and must dismiss it.


                                        DISPOSITION
       The appeal is dismissed. The parties shall bear their own costs.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EPSTEIN, P. J.
We concur:




       WILLHITE, J.                              MANELLA, J.




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