Greenlake Capital v. Bingo Investments CA2/7 ( 2013 )

Filed 7/22/13 Greenlake Capital v. Bingo Investments CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GREENLAKE CAPITAL, LLC, B243360
Plaintiff, Cross-defendant and (Los Angeles County
Appellant, Super. Ct. No. BC375204)
v.
BINGO INVESTMENTS, LCC,
Defendant, Cross-complainant and
Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Amy D.
Hogue. Dismissed.
Law Offices of John Belcher, John A. Belcher and Nicholas W. Song, for Plaintiff,
Cross-defendant and Appellant.
Johnston Lawyers, Bruce Johnston, Emanuel F. Jacobowitz; Law Offices of
Max J. Sprecher and Max J. Sprecher, for Defendant, Cross-complainant and
Respondent.
______________________
Following a three-day bench trial the court entered judgment in favor of Bingo
Investments, LLC on GreenLake Capital, LLC‟s complaint for breach of contract and
unjust enrichment and in favor of GreenLake on Bingo‟s cross-complaint for breach of
fiduciary duty and fraud. Although GreenLake formally appeals from the June 18, 2012
judgment, its briefs on appeal challenge only the trial court‟s order of November 1, 2011
vacating an earlier $3,866,625 judgment in favor of GreenLake entered after a trial at
which Bingo failed to appear. Because the November 1, 2011 order is not reviewable in
this appeal and GreenLake has raised no other issues, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACGROUND
As discussed in more detail in our prior opinion in this case, GreenLake Capital,
LLC v. Bingo Investments, LLC (2010) 185 Cal.App.4th 731, in November 2006 Bingo
retained GreenLake to assist in raising financing to support its business activities. In
mid-2007 GreenLake claimed it was entitled under the parties‟ letter agreement to a
$3 million fee for identifying and procuring a $150 million credit facility in favor of
Bingo, secured at least in part by Bingo‟s liens on real property. Bingo made partial
payments totaling $300,000 but insisted no further fees were due until an affiliated entity
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began to draw down on the credit facility. GreenLake filed this lawsuit.
Bingo and codefendant Centurion Financial Group, LLC successfully moved for
summary judgment, arguing GreenLake had forfeited its right to recover the agreed-upon
$3 million fee because the financing negotiated by GreenLake was secured directly or
collaterally by interests in real property and GreenLake did not hold a California real
estate broker‟s license. (See Bus. & Prof. Code, § 10131.) We reversed, holding a
disputed issue of fact existed as to whether any of the services provided by GreenLake
fell within the scope of the Business and Professions Code provisions concerning
unlicensed brokerage activities and, if so, whether the letter agreement should be
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GreenLake also sued Centurion Financial Group, LLC, Bingo‟s business manager,
which had acted as Bingo‟s originating agent and serviced its loans.
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enforced to the extent it was not barred by those provisions. (GreenLake Capital, LLC v.
Bingo Investments, LLC, supra, 185 Cal.App.4th at p. 740.)
Shortly after the case returned to the trial court, Bingo‟s attorneys moved to
withdraw. (Counsel also moved to withdraw from their representation of codefendant
Centurion Financial.) The moving papers identified a registered agent for service on
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Bingo, a Washington State limited liability company, in Seattle, Washington. The
motion was granted on October 7, 2010. At the same time the court scheduled a status
and trial setting conference for November 12, 2010. Former counsel for Bingo sent a
copy of the signed order granting the motion to be relieved as counsel and notice of the
November 2010 conference to the registered agent in Seattle.
Bingo did not appear at the November 12, 2010 conference, and no new counsel
was identified. The court continued the hearing to January 26, 2011 and set an order to
show cause re imposition of sanctions for failure to appear. Bingo again made no
appearance at the continued hearing on January 26, 2011. The court imposed $1,000 in
sanctions, set a trial date of March 21, 2011 and noted “defendants appear to have
abandoned defense.” GreenLake gave notice of the trial date to Bingo at the address
provided by Bingo‟s former lawyers.
A bench trial was held on March 21, 2011. Bingo did not appear. GreenLake
presented testimony and documentary evidence. A judgment was entered on April 19,
2011 against Bingo and Centurion Financial for $3,866,625.
On April 30, 2011 Bingo changed its official registered agent for service of
process in the Washington Secretary of State‟s office. GreenLake registered its judgment
in the State of Washington in early May 2011 and gave notice of this entry of foreign
judgment to both the agent whose address it had been using since the withdrawal of
Bingo‟s litigation counsel and Bingo‟s newly named agent for service of process at
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Bingo subsequently explained in its motion to vacate the April 2011 judgment
that, at the time, Bingo‟s registered agent in Washington was Centurion Financial‟s
business lawyer and Centurion Financial had been responsible for retaining the lawyers in
California to defend both it and Bingo and for managing the litigation.
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Bingo‟s business address in Bellevue, Washington. Upon receipt of this notice Bingo
moved for a new trial or to vacate the judgment in Washington. That motion was denied
on June 15, 2011 “without prejudice to the parties reapplying should the L.A. County
court amend or vacate the underlying California judgment.”
On September 21, 2011 Bingo moved to vacate the judgment pursuant to Code of
Civil Procedure section 473, subdivision (b), arguing it had relied on its codefendant and
“mendacious former business manager,” Centurion Financial, to manage its defense.
According to Bingo, Centurion Financial had abandoned Bingo after this court reversed
the summary judgment; and the registered agent, Centurion Financial‟s lawyer, failed to
advise Bingo of any of the notices he had received from the court or GreenLake,
including the notice of the March 21, 2011 trial date.
GreenLake opposed the motion, emphasizing there was no contention it had not
sent all the required notices to the address for Bingo‟s registered agent provided by
Bingo‟s former attorneys or that the registered agent had not actually received the
notices: “It is difficult to believe that Foster, an attorney licensed in Washington, failed
to send to Bingo any of the dozen or so notices he received. The absence of a declaration
from Cameron Foster speaks volumes about the credibility of Bingo‟s assertion it
received no notices.” GreenLake argued Bingo had failed to show excusable neglect or
to demonstrate reasonable diligence in seeking relief.
The trial court granted Bingo‟s motion on November 1, 2011 after taking the
matter under submission. The court found Bingo‟s former counsel had erred under
Washington law when he designated the address for Bingo‟s agent for service of process
and Bingo had demonstrated diligence by moving promptly to vacate the judgment in
Washington state court once it had received actual notice. “Although Bingo could have
been more diligent monitoring this action and should have filed this motion to vacate
more promptly, the court finds that under the circumstances of this case, denying the
motion would effect an injustice.” The court vacated the April 19, 2011 judgment as to
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Bingo (not Centurion Financial) and reset the matter for trial on March 19, 2012. Notice
of the court‟s order was served by mail on November 3, 2011.
A three-day bench trial was held March 20-22, 2012 at which the court heard
testimony, including expert testimony, and received several hundred pages of documents
in evidence. The court issued a detailed, 13-page statement of decision and entered its
final judgment on June 18, 2012, finding against GreenLake on its claims for breach of
contract and unjust enrichment and against Bingo on its cross-complaint for breach of
fiduciary duty, fraud and unjust enrichment. GreenLake filed a notice of appeal on
August 15, 2012 from “the [j]udgment entered on June 18, 2012.”
DISCUSSION
The trial court‟s order vacating the April 19, 2011 judgment against Bingo for
$3,866,625 was directly appealable. (Code Civ. Proc., § 904.1, subd. (a)(2) [appeal may
be taken from an order made after an appealable judgment]; see Shapiro v. Clark (2008)
164 Cal.App.4th 1128, 1137 [a postjudgment grant or denial of relief from judgment after
default “is a special order after judgment on a statutory motion to set aside the judgment,
and as such is appealable”]; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th
1192, 1195 [“[t]he posttrial order granting reconsideration and vacating a portion of an
appealable judgment is itself appealable”]; Elsea v. Saberi (1992) 4 Cal.App.4th 625, 628
[“[i]t is well established that a direct appeal may be taken from an order granting a
statutory motion to set aside a default judgment [citation] so long as the underlying
judgment sought to be vacated is an appealable final judgment [citation] and is not
conditioned on a second order unconditionally vacating the judgment”]; see generally
9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 194, p. 271 [“If the court grants a
motion to vacate under either [Code Civ. Proc., §§] 473 or 663 [citation], the prior
judgment is nullified, and the only way to review the vacating order is by a direct appeal
from it. Hence, it is treated as an order after final judgment, and is appealable.”].)
The order vacating the April 19, 2011 judgment was entered on November 1,
2011. Notice of the court‟s order was served by mail on November 3, 2011. The time
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for GreenLake to appeal from that order had long since expired when GreenLake filed its
notice of appeal on August 15, 2012. (Cal. Rules of Court, rule 8.104(a)(2) [limiting time
to appeal after party serves notice of entry of judgment (or appealable order) to 60 days].)
Thus, we have no jurisdiction to consider an appeal from the November 1, 2011 order
vacating the April 19, 2011 judgment. (Van Beurden Ins. Services, Inc. v. Customized
Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [“[t]he time for appealing
a judgment is jurisdictional; once the deadline expires, the appellate court has no power
to entertain the appeal”]; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d
660, 662 [appellate court has no jurisdiction to review untimely appeal]; City of Los
Angeles v. Glair (2007) 153 Cal.App.4th 813, 818-819 [same]; see In re Marriage of
Lloyd (1997) 55 Cal.App.4th 216, 219 [policy of liberal construction of appeal does not
confer power on court to consider untimely appeal].)
GreenLake‟s appeal from the judgment ultimately entered in the case on June 18,
2012 does not revive its right to appeal from the order vacating the default judgment.
(Code Civ. Proc., § 906 [on appeal from a final judgment, appellate court may review
“any intermediate ruling, proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from or which substantially affects the
rights of a party”; however, “[t]he provisions of this section do not authorize the
reviewing court to review any decision or order from which an appeal might have been
taken”]; see Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1515, fn. 14 [on appeal
from final judgment, court has no jurisdiction to review order denying motion that was
separately appealable]; Vanyek v. Heard (1971) 18 Cal.App.3d 467, 469 [court has no
jurisdiction to review July 25, 1967 order setting aside default and default judgment on
appeal from October 24, 1969 order of dismissal]; see also Ricketts v. McCormack (2009)
177 Cal.App.4th 1324, 1337.)
GreenLake does not dispute these fundamental principles limiting our appellate
jurisdiction, but distorts one of those rules to argue it has not forfeited its right to seek
review of the November 1, 2011 order vacating the April 19, 2011 judgment. First,
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GreenLake correctly observes that orders setting aside or vacating a judgment are
separately and directly appealable only if the underlying judgment or order itself is
appealable. Then, GreenLake posits the time to appeal from the April 19, 2011 judgment
had lapsed several months before Bingo filed its motion to vacate on September 21,
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2011. Accordingly, it contends, the trial court did not set aside an “appealable” order or
judgment; the order vacating the judgment, therefore, was not separately appealable; and
it may now properly challenge the November 1, 2011 order in this appeal from the
June 18, 2012 judgment.
GreenLake‟s argument fundamentally misperceives the required element of
“appealability” in this context. As discussed, an order vacating a judgment is generally
appealable under Code of Civil Procedure section 904.1, subdivision (a)(2), as an order
made after a judgment made appealable by section 904.1, subdivision (a)(1). Code of
Civil Procedure section 904.1, subdivision (a)(1), in turn, provides that an appeal may be
taken from any final judgment—that is, all judgments other than (with certain specified
exceptions) “an interlocutory judgment.” Thus, the question is not whether the
underlying judgment was currently appealable (that is, the time to appeal had not yet
lapsed) when the motion to vacate was filed, but whether the judgment was appealable
under section 904.1, subdivision (a)(1), so that the order vacating or setting it aside falls
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GreenLake‟s factual premise concerning the deadline for Bingo to appeal from the
April 19, 2011 judgment not only leads to an erroneous legal conclusion, as discussed in
the text, but also is itself problematic. To be sure, notice of entry of that judgment was
served on April 25, 2011. However, as the trial court found in granting Bingo‟s motion
to vacate, the address provided to GreenLake and the court for Bingo‟s agent for service
of process—and the address used for service of the notice of entry of judgment—did not
comply with the requirements of Washington State law, which mandates use of a
company‟s registered corporate address. Accordingly, that notice may have been
insufficient to trigger the 60-day period for filing a notice of appeal, in which case Bingo
would have had until October 17, 2011 (that is, 180 days from entry of the judgment) to
file its notice. (See Cal. Rules of Court, rule 8.104(a)(1)(B), (C).) The motion to vacate
judgment was filed well before the expiration of that 180-day period. Contrary to
GreenLake‟s suggestion, Bingo‟s actual notice of the judgment sometime in May 2011
does not reduce the period available for filing a notice of appeal.
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within section 904.1, subdivision (a)(2). (See Solis v. Vallar (1999) 76 Cal.App.4th 710,
713 [case law has developed three requirements for an appealable order after judgment:
“the underlying judgment is appealable under section 904.1, subdivision (a)(1), the order
involves issues different from those addressed in the underlying judgment, and it affects
the judgment or relates to it by enforcing it or staying its execution”]; Neilsen v. Saylors
(1956) 146 Cal.App.2d 139, 140 [no appeal permitted from an order vacating a nonfinal,
nonappealable ruling].) Using the correct definition, there can be no doubt the April 19,
2011 judgment was final and appealable and, as a consequence, the November 1, 2011
order setting it aside was also directly appealable.
Apart from its impermissible attempt to challenge the November 1, 2011 order
setting aside the April 19, 2011 judgment, GreenLake raises no claims of reversible error
or other defect in the June 18, 2012 judgment. Accordingly, we treat the appeal as
abandoned and dismiss it. (See Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544,
fn. 8 [“„[a] “reviewing court has inherent power, on motion or its own motion, to dismiss
an appeal which it cannot or should not hear and determine”‟”]; In re Sade C. (1996)
13 Cal.4th 952, 994.)
DISPOSITION
The appeal is dismissed. Bingo Investments, LLC is to recover its costs on appeal.
PERLUSS, P. J.
We concur:
ZELON, J. SEGAL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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