Shabani v. Burton CA2/3 ( 2021 )

Filed 3/17/21 Shabani v. Burton CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JOSEPH SHABANI, B301371
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC696195
v.
CAL BURTON, as Successor
Trustee, etc.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stuart M. Rice, Judge. Appeal dismissed.
Collins Collins Muir + Stewart and James C. Jardin, for
Defendant and Appellant.
Law Offices of Saul Reiss, Saul Reiss and Fay Pugh for
Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Appellate jurisdiction is defined by statute. (Code Civ.
Proc., § 904.1.) With certain exceptions not relevant here,
appellate jurisdiction requires a final judgment that resolves all
claims and issues between the parties to the appeal. Jurisdiction
is lacking in the present case and we therefore dismiss the
appeal.
FACTS AND PROCEDURAL BACKGROUND
Although the underlying proceedings in this civil case and
tandem probate proceedings have consumed a great deal of time
and paper, the essential facts necessary to our opinion are
straightforward.
In 1998, Julius Burton, Sr. and Christopher Burton created
a trust (Burton trust) and transferred to the trust, as relevant
here, several pieces of real property located on Crenshaw
Boulevard in Los Angeles (Crenshaw properties). The Burton
trust authorized the trustee to sell or otherwise dispose of trust
property. In 2007, after the death of both trustors, Regions Bank
became the trustee of the Burton trust.
Regions Bank, as trustee of the Burton trust, entered into
an agreement with plaintiff Joseph Shabani (plaintiff) in July
2013 concerning the purchase of the Crenshaw properties.
Plaintiff fully performed under the agreement by depositing
funds into escrow and removing contingencies as required.
Regions Bank did not complete the transaction and subsequently
stipulated to the appointment of Cal Burton as successor trustee
of the Burton trust. The probate court approved the appointment.
Cal Burton refuses to proceed with the sale.
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In 2018, plaintiff filed the present action against Regions
Bank and Cal Burton as the successor trustee of the Burton
trust. As to Cal Burton, the complaint states causes of action for
breach of contract (the sales agreement), breach of the implied
covenant of good faith and fair dealing, and specific performance.
Plaintiff filed a motion for summary adjudication and/or
summary judgment on all causes of action. The court ruled in
favor of plaintiff on all causes of action. The court found that Cal
Burton breached the sales agreement between plaintiff and
Regions Bank. As to the breach of contract claim, the court stated
“there is no triable issue of fact as to whether [plaintiff] suffered
damage in the form of being deprived [of] the property he is
entitled to.” Although plaintiff alleged and argued he had
suffered monetary damages in an unspecified amount, the court
did not award monetary damages. The court also found that Cal
Burton breached the implied covenant of good faith and fair
dealing by refusing to honor the sales agreement without any
valid excuse. Finally, the court granted plaintiff’s request for
specific performance. The court also purported to grant summary
judgment for plaintiff in light of its resolution of each of the three
causes of action.
The court entered the order granting summary judgment
on September 4, 2019, and set a status conference for
November 5, 2019. On the same day, the court entered a “partial
judgment” prepared by plaintiff’s counsel. It reads, in relevant
part:
“ON THE FIRST CAUSE OF ACTION FOR BREACH OF
WRITTEN CONTRACT
“1. Judgment on the First Cause of Action of the Complaint
for Breach of Written Contract is hereby entered in favor of
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Plaintiff Joseph Shabani (“Plaintiff”) and against Defendant Cal
Burton, Successor Trustee of the [Julius] & Christopher Burton
Family Trust dated September 22, 1998 (“Defendant”) and all
persons unknown claiming any interest in the property described
herein (hereinafter collectively with Defendant referred to as
“Defendants”).
“2. Provided that Defendants duly comply with the orders
made herein pursuant to the Third Cause of Action, no monetary
damages will be awarded pursuant to the First Cause of Action.
“3. In the event, Defendants are unable to convey
marketable and insurable title to the property pursuant to the
judgment on the Third Cause of Action, a trial will be held on the
issue of monetary damages payable to Plaintiff only and a further
judgment will be rendered for the amount of damages determined
at such trial.
“ON THE SECOND CAUSE OF ACTION FOR BREACH
OF COVENANT OF GOOD FAITH AND FAIR DEALING
“4. Judgment on the Second Cause of Action of the
Complaint for Breach of Covenant of Good Faith and Fair
Dealing is hereby entered in favor of Plaintiff and against
Defendant.
“5. Provided that Defendants duly comply with the orders
made herein pursuant to the Third Cause of Action, no monetary
damages will be awarded pursuant to the Second Cause of
Action.
“6. In the event, Defendants are unable to convey
marketable and insurable title to the property pursuant to the
judgment on the Third Cause of Action, a trial will be held on the
issue of monetary damages payable to Plaintiff only and a further
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judgment will be rendered for the amount of damages determined
at such trial.
“ON THE THIRD CAUSE OF ACTION FOR SPECIFIC
PERFORMANCE AND DAMAGES
“7. Judgment on the Third Cause of Action of the
Complaint for Specific Performance and Damages is hereby
entered in favor of Plaintiff and against Defendants.
“8. Plaintiff shall have and recover from Defendants, title to
the real properties commonly known as 7100, 7106-7108, 7112
and 7114-7118 Crenshaw Blvd., Los Angeles, California 90043
(the “Property”) … .
[¶] … [¶]
“9. The legal properties legally described hereinabove
are also commonly known as Assessor’s Parcel Numbers
4006-032-001, 4006-032-002, 4006-032-003 and 4006-032-
004.
“10. In order to ensure that title is conveyed free and
clear of all monetary liens and encumbrances as agreed
pursuant to the purchase agreement, the following
procedure shall be followed:
“(A) An escrow shall be opened at Fidelity National
Title Company, 5000 Van Nuys Blvd, Suite 500, Sherman
Oaks, Ca 91403 (the “Escrow Holder”) … .
“(B) The parties to the escrow shall be Plaintiff and
Defendants.
“(C) The terms of the escrow shall be as set forth in the
Purchase Agreement dated July 2013, Additions and/or
Amendments to Escrow Instructions, Contingency Removals and
Amendments to Purchase Agreement (collectively the
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“Agreement”), copies of which are attached as Exhibits 5 through
12 to the First Amended Complaint, except to the extent that
such terms are modified by the terms of this Judgment.”
[¶] … [¶]
“11. In the event that the Preliminary Title Report
discloses liens and encumbrances which prevent the Escrow
Holder from closing the Escrow in accordance with the preceding
provisions of this Judgment, then the Court retains jurisdiction
to make such orders as may be necessary to convey good,
marketable and insurable title to Plaintiff … .
[¶] … [¶]
“12. Defendants shall deliver the Property vacant prior to
the close of escrow with [certain exceptions].
“13. This Court shall retain jurisdiction to hear and
determine all claims relating to the occupancy of the Property by
any person claiming the right to occupancy [of] the Property
under, by or through Defendants or [Julius] Burton, Jr.
“14. Should Defendants fail or refuse to comply with the
terms of this Judgment, Plaintiff may by ex parte application
obtain an order authorizing the Clerk of the Court to execute any
and all documents, including a grant deed necessary to convey
title to the Property to Plaintiff.
“15. Plaintiff shall have and recover attorney’s fees [to be
determined] … .”
Cal Burton, as successor trustee of the Burton trust, timely
appeals.
DISCUSSION
Pursuant to Code of Civil Procedure section 904.1, an
appeal lies only from a final judgment or one of the enumerated
orders listed. Interlocutory judgments are not appealable. (Code
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Civ. Proc., § 904.1, subd. (a)(1) [permitting an appeal “[f]rom a
judgment, except an interlocutory judgment, other than as
provided in paragraphs (8), (9), and (11), or a judgment of
contempt that is made final and conclusive by Section 1222”].)
“[A] judgment is final, and therefore appealable, ‘ “ ‘when it
terminates the litigation between the parties on the merits of the
case and leaves nothing to be done but to enforce by execution
what has been determined.’ ” ’ [Citation.]” (Dhillon v. John Muir
Health (2017) 2 Cal.5th 1109, 1115.) The existence of an
appealable order or judgment is a jurisdictional requirement.
(Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696;
see Farwell v. Sunset Mesa Property Owners Assn., Inc. (2008)
163 Cal.App.4th 1545, 1550 [noting that the “question whether
an order is appealable goes to the jurisdiction of an appellate
court, which is not a matter of shades of grey but rather of black
or white”].)1
The “partial judgment” from which Cal Burton appeals is a
nonappealable interlocutory judgment. Specifically, and as is
evident from the extended excerpt of the “partial judgment”
provided ante, the “partial judgment” does not effectively dispose
of the case such that no issue is left to be determined, as is
required. (See California Assn. of Psychology Providers v. Rank
(1990) 51 Cal.3d 1, 9.)
First, a plaintiff can obtain summary adjudication of a
cause of action only by proving “each element of the cause of
action entitling the party to judgment on that cause of action.”
(Code Civ. Proc., § 437c, subd. (p)(1).) “As damages are an
1We requested and received supplemental briefs from the parties on
this issue pursuant to Government Code section 68081.
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element of a breach of contract cause of action (Rutherford
Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 229),
a plaintiff cannot obtain judgment on a breach of contract cause
of action in an amount of damages to be determined later.”
(Paramount Petroleum Corp. v. Superior Court (2014) 227
Cal.App.4th 226, 241.) Here, the “partial judgment” does not
resolve the issue of monetary damages on either plaintiff’s
contract claim or his claim for breach of the implied covenant of
good faith and fair dealing and, moreover, expressly contemplates
further proceedings as well as a further judgment on that issue.2
Second, the “partial judgment” as to specific performance of
the 2013 sales agreement contains many contingencies and
expressly contemplates further proceedings to consider whether
Cal Burton has adequately complied with those contingencies,
i.e., a status conference approximately 60 days after entry of the
“partial judgment.” The “partial judgment” also contemplates
further proceedings to adjudicate occupancy rights.
In response to our request for briefing on the appealability
of the “partial judgment,” both parties have urged this court to
treat their improper appeal as an original proceeding. We decline
their invitation. “Under the one final judgment rule, ‘ “an appeal
may be taken only from the final judgment in an entire action.” ’
[Citation.] ‘ “The theory [behind the rule] is that piecemeal
disposition and multiple appeals in a single action would be
2 It was error for the court to state that it was summarily adjudicating
those claims in plaintiff’s favor without resolving the issue of monetary
damages. (See, e.g., CDF Firefighters v. Maldonado (2008) 158
Cal.App.4th 1226, 1239 [noting that for purposes of summary
judgment (as at trial), a plaintiff must “ ‘show[] both the fact and the
amount of damages’ ”].)
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oppressive and costly, and that a review of intermediate rulings
should await the final disposition of the case.” ’ [Citations.]” (In re
Baycol Cases I & II (2011) 51 Cal.4th 751, 756.)
DISPOSITION
The appeal is dismissed. No costs are awarded. The parties’
requests for judicial notice are denied as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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