The REMM Group v. Dawood CA4/3

Filed 9/30/15 The REMM Group v. Dawood CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE REMM GROUP,
Plaintiff and Appellant, G050000
v. (Super. Ct. No. 30-2010-00405591)
AMIR DAWOOD et al., OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Gregory
H. Lewis, Judge. Appeal dismissed.
Law Offices of Stephen W. Johnson and Stephen W. Johnson for Plaintiff
and Appellant The REMM Group.
Mundell, Odlum & Haws, LLP and Karl N. Haws and Jim C. Moore for
Defendants and Respondents Cameron Johnson, Vance Johnson, Joana Johnson, Jesse
Johnson, Wynema Johnson, and Sana Johnson.
In this appeal, a discharged receiver, The REMM Group (REMM),
appealed from a judgment after the successor receiver, Beeline Realty, Inc., entered into a
settlement with respondents Amir Dawood et al. After REMM filed an opening brief in
which it disputed the validity of three 2011 orders sustaining demurrers, Respondents
Cameron Johnson, Vance Johnson, Joana Johnson, Jesse Johnson, Wynema Johnson, and
Sana Johnson filed their brief and a motion to dismiss the appeal, arguing REMM does
not have standing to appeal. We agree and dismiss the appeal.
FACTS
In 1996, the D. Robert Johnson Family Projects partnership (FPP) was
formed as a California Limited Partnership by D. Robert Johnson and his wife,
Odette Semaan Johnson (referred to collectively as the Johnsons). After forming FPP,
the Johnsons transferred their assets into the partnership and subsequently transferred
limited ownership of FPP to their children and their children’s spouses,
Cameron Johnson, Vance Johnson, Joana Johnson, Jesse Johnson, Wynema Johnson, and
Sana Johnson (referred to collectively as the Limited Partners). Section 10.5 of the
partnership agreement included a deficit restoration obligation (DRO).
The Johnsons later realized they would not be successful in avoiding
creditors by transferring assets to their children and their children’s spouses through FPP.
The Johnsons entered negotiations with Amir Dawood (Amir), Jamal Dawood, and
Younan Dawood (collectively referred to as the Dawoods), who claimed they could assist
FPP and its partners in defrauding creditors. The Johnsons and the Dawoods devised a
plan to transfer assets to the Dawoods through the fabrication of debt instruments and
agreements. The Dawoods and the Johnsons planned to split the funds upon completion
of the plan. The Limited Partners allegedly agreed to contribute to the effort to defraud
the creditors of FPP.
2
In 2001, the REMM Group (REMM) was appointed receiver for FPP
because it became insolvent. In July 2010, REMM was reappointed as receiver for FPP
and was given the authority to bring actions on behalf of FPP.
In September 2010, REMM filed a complaint against the Dawoods,
D. Robert Johnson, the Limited Partners, and others (referred to collectively as the
Respondents) alleging two causes of action, breach of fiduciary duty and breach of
contract. The Limited Partners answered and later filed a motion for judgment on the
pleadings. The trial court granted the Limited Partners’ motion for judgment on the
pleadings granting REMM 20 days to amend its complaint.
In March 2011, REMM, represented by new counsel, filed its first amended
complaint (FAC) against the Respondents alleging causes of action for breach of
fiduciary duty, embezzlement, breach of contract, and declaratory relief. The Limited
Partners filed a demurrer, REMM opposed the demurrer, and the Limited Partners
replied. In June 2011, the trial court sustained the demurrer without leave to amend the
breach of fiduciary duty and embezzlement causes of action. The court sustained with
leave to amend the breach of contract and declaratory relief causes of action, causes of
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action based on the DRO, within 45 days.
In July 2011, REMM filed a second amended complaint against the
Respondents again alleging causes of action for breach of fiduciary duty, embezzlement,
breach of contract, declaratory relief, and dissolution of partnership. The Limited
Partners filed a demurrer, and Younan Dawood and Amir filed their own demurrer.
REMM opposed the demurrers, and the Limited Partners replied. In October 2011, the
trial court sustained the Limited Partners’ demurrer without leave to amend on all but the
1
This order was the subject of our opinion in Dawood v. Yellow Canary
Enterprises, Inc. (May 3, 2012, G045428) [nonpub. opn.]. This case spawned yet another
appellate opinion this time from the Fourth District, Division Two in Hasso v. Johnson
(June 28, 2013, E053666) [nonpub. opn.].
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cause of action for dissolution of the partnership. The following month, November 2011,
the trial court sustained the Dawoods’ demurrer without leave to amend as to the
remaining causes of action.
On November 7, 2011, the trial court discharged REMM as receiver of FPP
and appointed Beeline Realty & Property Management, Inc. (Beeline) as receiver of FPP.
Pursuant to Beeline’s June 2012 opposition motion, the matter continued with REMM as
the plaintiff pursuant to Code of Civil Procedure section 368.5.
In February 2014, Beeline, represented by David K. Palmer, and the
Limited Partners entered into a stipulation for entry of judgment to dissolve FPP, which
released the Limited Partners from debts and liabilities against FPP. On February 24,
2014, a judgment was entered in favor of the Limited Partners and the partnership was
dissolved. The judgment states the following: “This [j]udgment pertains to [the Limited
Partners] and Plaintiff . . . REMM . . . as prior Receiver and Beeline . . . as successor
Receiver ([j]ointly, ‘Receiver’ or ‘Plaintiff’) for [FPP] . . . .”
2
On April 15, 2014, attorney Stephen W. Johnson on behalf of REMM filed
a notice of appeal from the February 24, 2014, judgment.
On November 5, 2014, Johnson filed an appellant’s opening brief and
appellant’s appendix on behalf of REMM. In his certificate of interested entities or
persons, Johnson did not mention Beeline. Johnson listed himself as “Attorney for
Plaintiff/Appellant, . . . REMM . . . .” And Johnson listed “David K. Palmer” as “Trial
Court Counsel for Plaintiff/Appellant, . . . REMM . . . .” Nowhere in REMM’s
appellant’s opening brief does Johnson mention Beeline.
2
The record does not reveal whether attorney Stephen W. Johnson is related
to the Johnsons or Respondents.
4
On December 9, the Limited Partners’ counsel Jim C. Moore left a
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telephone message for Beeline’s trial counsel Palmer to discuss this appeal. Two days
later, Palmer sent an e-mail to Moore’s staff stating the following: “Sophia: please pass
to [Moore’s partner] that I do not represent a litigant in this appeal. The appellant[’s]
attorney [Johnson] listed me as an ‘interested party’ on the appellate cover sheet (for
some unknown reason). I do not want to make an appearance but if I can be of assistance
otherwise, I will. [T]hanks.” Later that day, Moore spoke with Palmer, who told Moore
the following: “(1) he believed [REMM] ‘wanted nothing to do with this appeal, and had
no part in it,’ (2) that he did not currently represent Beeline, (3) [he] did not know why
Beeline was listed as ‘[r]espondent,’ and (4) that, to the best of his knowledge, [Johnson]
had never substituted in as counsel for Beeline, or otherwise represented Beeline.”
That same day, this court issued notice to Beeline to file its respondent’s
brief within 15 days pursuant to California Rules of Court, rule 8.220(a)(2). That time
passed and Beeline did not file a respondent’s brief.
On January 15, 2015, the Limited Partners filed a motion to dismiss the
appeal, and the following day filed an amended motion to dismiss the appeal. A few days
later, the Limited Partners filed their respondents’ brief and respondents’ appendix.
A couple weeks later, Johnson filed a notice of errata regarding the
appellant’s opening brief. In the notice of errata, Johnson states REMM is appearing
through its successor and asks that the brief’s cover and signature block be corrected.
Johnson also requested the introductory lines of the brief be revised to state the
following: “‘Appellant and Plaintiff, . . . REMM . . . , appearing through the successor
receiver Beeline . . . for [FPP] respectfully submits its opening brief. Plaintiff and
appellant will hereinafter be referred to as ‘Receiver.’” In his certificate of interested
entities or persons, Johnson listed himself as “Attorney for Plaintiff/Appellant, . . .
3
As we explain below, Respondents filed a motion to dismiss the appeal and
these facts are from counsel’s declaration.
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REMM . . . through Successor Receiver, Beeline . . . .” And Johnson listed “David K.
Palmer” as “Trial Court Counsel for . . . REMM . . . , Plaintiff/Appellant.” Johnson on
behalf of REMM opposed the amended motion to dismiss the appeal and subsequently
filed an appellant’s reply brief.
DISCUSSION
The Limited Partners argue REMM has no standing to bring this appeal.
We agree.
“As a general proposition a receiver has no official duties and is not a
proper party to any action after being discharged by the court. [Citation.] The discharge
order operates as res judicata as to any claims of liability against the receiver in [its]
official capacity. [Citation.]” (Vitug v. Griffin (1989) 214 Cal. App. 3d 488, 494;
Jun v. Myers (2001) 88 Cal. App. 4th 117, 124.)
“‘A receiver who has been discharged is relieved from all [its] official
duties as such, and he is neither a necessary nor a proper party to an action on any such
liability. Clearly, after his discharge, a receiver is not a proper party to an action on a
contract made by him in his official capacity. Indeed, an action cannot be maintained
against a receiver, even for the purpose of establishing the validity of a claim, after he has
been discharged and has ceased to hold any relation to the fund out of which alone
payment can be secured.’” (Brockway etc. Co. v. County of Placer (1954) 124
Cal. App. 2d 371, 375.)
Here, REMM was discharged as receiver in November 2011, and Beeline
was appointed as receiver. Once REMM was discharged it was not a proper party to the
action. Thus, REMM could not properly appeal from the February 24, 2014, judgment
entered between Beeline and the Limited Partners.
In opposition the amended motion to dismiss, REMM raises a number of
contentions. First, REMM argues Code of Civil Procedure section 368.5 “permits a
successor in interest to continue litigation under the name of the original plaintiff.”
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(Capitalization and bold omitted.) We are unsure how this helps REMM. REMM’s
notice of appeal lists REMM as the appellant; REMM was not the successor in interest.
Beeline, the successor in interest, has not appeared in this appeal having failed to respond
to our notice pursuant to California Rules of Court, rule 8.220(a)(2). When we issued
that order, a copy of which was served on Johnson, Johnson did not notify this court he
represented Beeline. It was not until the Limited Partners filed their motion to dismiss
that he asserted he represented Beeline. Contrary to REMM’s claim otherwise Code of
Civil Procedure section 368.5 “does not confer standing on a party who has no right to
assert the claim.” (Bostanian v. Liberty Savings Bank (1997) 52 Cal. App. 4th 1075,
1083.) As we explain above, REMM was discharged as receiver and was not a proper
party to the action. The fact REMM was mentioned in the judgment does not alter our
conclusion as Code of Civil Procedure section 368.5 allows “[t]he action or proceeding
[to] be continued in the name of the original party.”
Second, REMM contends “any deficiency in form or nomenclature is
excusable.” (Capitalization and bold omitted.) This is not simply an error in form or
nomenclature. Again, REMM was discharged as receiver and it was not a proper party.
Beeline was appointed as receiver and entered into settlement with the Limited Partners
in February 2014. When given the opportunity, Beeline did not appear in this matter on
appeal, and Johnson did not assert he represented Beeline until after the Limited Partners
filed their motion to dismiss the appeal. Although Johnson could not become attorney of
record in the trial court once the notice of appeal was filed, a procedural bar he could
have overcome as he was the one who filed the notice of appeal, he did not assert he
represented Beeline until he learned REMM may not have standing.
Finally, REMM’s claims the notice of errata and an amended appellant’s
opening brief remedy any error are meritless. Neither confer standing on REMM.
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DISPOSITION
The appeal is dismissed. Respondents the Limited Partners are awarded
their costs on appeal.
Pursuant to Business and Professions Code section 6086.7,
subdivision (a)(2), the clerk of this court is ordered to forward a copy of this opinion to
the State Bar upon return of the remittitur. At the same time, also pursuant to Business
and Professions Code section 6086.7, subdivision (b), the clerk of this court shall notify
Stephen W. Johnson the matter has been referred to the State Bar.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
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