Dynalectric v. Super. Ct. CA4/1 ( 2014 )


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  • Filed 9/18/14 Dynalectric v. Super. Ct. CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL - FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    DYNALECTRIC CO.,                                                 D066452
    Petitioner,                                             (Super. Ct. No. 37-2007-00074230-CU-
    BC-CTL)
    v.
    THE SUPERIOR COURT OF SAN
    DIEGO COUNTY,
    Respondent;
    POINT CENTER FINANCIAL, INC.,
    Real Party in Interest.
    ORIGINAL PROCEEDINGS in mandate. William R. Nevitt, Jr., Judge. Petition
    granted.
    Niddrie, Fish & Addams, LLP, David A. Niddrie; Law Offices of Murray M.
    Helm, Jr., and Murray M. Helm, Jr., for Petitioner.
    No appearance for Respondent.
    Landau Gottfried & Berger LLP and Robert G. Wilson for Real party in interest.
    Petitioner Dynalectric Company (Dynalectric) seeks a writ of mandate directing
    the trial court to enter a judgment in its favor against real party in interest Point Center
    Financial, Inc. (Point Center) and to award costs incurred on appeal, in conformity with
    the disposition contained in our opinion in Brewer Corp. v. Point Center Financial, Inc.
    (2014) 
    223 Cal.App.4th 831
    , 848 (Brewer Corp.). We grant the petition.
    BACKGROUND
    Dynalectric was a respondent and Point Center was the appellant in Brewer Corp.,
    supra, 
    223 Cal.App.4th 831
    , which concerned the liability of Point Center (the
    construction lender) to Dynalectric (a construction contractor) on a bonded stop notice.
    In Brewer Corp., Point Center contended the trial court erroneously ruled that as a matter
    of law Dynalectric did not have to serve Point Center with a preliminary notice in order
    to maintain a stop notice claim. (Id. at p. 848.) We concluded this legal ruling was error,
    but also concluded the parties had not had a full and fair opportunity to litigate a
    potentially dispositive factual issue of excuse for not serving a preliminary notice.
    (Id at pp. 851, 853.) We therefore provisionally reversed the judgment in favor of
    Dynalectric and remanded the matter for further proceedings on the excuse issue.
    (Id. at p. 856.) The disposition portion of the opinion further stated: "If the trial court
    finds in favor of Dynalectric on the existence of a factual excuse for not serving a
    preliminary notice on [Point Center], the judgment in favor of Dynalectric is affirmed and
    Dynalectric is to recover its costs on appeal. Alternatively, if the trial court finds against
    Dynalectric on the existence of a factual excuse, the judgment in favor of Dynalectric is
    reversed and [Point Center] is to recover its costs on appeal." (Id. at pp. 856-857.)
    On remand, the parties stipulated to the facts necessary to determine the excuse
    issue and then presented the stipulation and a proposed order to respondent. The
    2
    proposed order included, among other terms, the following: "3. Dynalectric has a valid
    and enforceable bonded lender stop notice against Point Center. [¶] 4. Based on that
    factual finding, the Court of Appeal's opinion deems the Judgment is affirmed and
    Dynalectric is entitled to recover its costs on appeal." The trial court stated it did not
    believe it could affirm its own judgment, modified the proposed order by striking out
    paragraph 4, and signed and filed the proposed order as modified.
    Dynalectric petitioned us for a writ of mandate directing the trial court to affirm
    the prior judgment it had obtained against Point Center and to award costs incurred in the
    prior appeal. We solicited an informal response from Point Center and notified the
    parties we were considering issuing a peremptory writ of mandate in the first instance.
    (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 
    36 Cal.3d 171
    , 178-180.) In a letter
    response, Point Center stated it stipulated to the facts underlying the excuse issue and did
    not oppose issuance of a peremptory writ in the first instance.
    DISCUSSION
    We conclude Dynalectric is entitled to writ relief. When by a decision on appeal
    the reviewing court directs the entry of a specific judgment, the trial court must enter the
    judgment directed, and the proper remedy for its failure to do so is a writ of mandate.
    (Hampton v. Superior Court (1952) 
    38 Cal.2d 652
    , 655-656; Butler v. Superior Court
    (2002) 
    104 Cal.App.4th 979
    , 982 (Butler); Bakkebo v. Municipal Court (1981)
    
    124 Cal.App.3d 229
    , 234.) Our disposition of the appeal directed that Dynalectric's
    judgment against Point Center be affirmed and Dynalectric be awarded costs on appeal if,
    as happened on remand, the factual issue of excuse was resolved in favor of Dynalectric.
    3
    (Brewer Corp., supra, 223 Cal.App.4th at pp. 856-857.) The trial court failed to carry out
    these directives, however, when it struck paragraph 4 from the parties' proposed order. A
    writ of mandate therefore lies to correct this error.
    We further conclude issuance of a peremptory writ in the first instance is
    appropriate because the facts are not in dispute, the legally correct result is clear, Point
    Center concedes the propriety of writ relief, and the matter should be expedited.
    (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 
    19 Cal.4th 1232
    , 1240-1241;
    Butler, supra, 104 Cal.App.4th at p. 983.)
    DISPOSITION
    Let a writ of mandate issue directing respondent to enter judgment in favor of
    Dynalectric and against Point Center, nunc pro tunc to February 15, 2012, on the same
    terms as the judgment of that date that was the subject of the appeal in Brewer Corp.,
    supra, 
    223 Cal.App.4th 831
    , and to conduct further proceedings as necessary to award
    Dynalectric the costs it incurred in that appeal. The parties shall bear their own costs of
    these writ proceedings. (Cal. Rules of Court, rule 8.493(a)(1)(B).)
    McINTYRE, J.
    WE CONCUR:
    BENKE, Acting P. J.
    IRION, J.
    4
    

Document Info

Docket Number: D066452

Filed Date: 9/18/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014