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TREES WOWOR v. MOHAMMED ESMAILI

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


November 30, 2010

TREES WOWOR, PLAINTIFF AND RESPONDENT,
v.
MOHAMMED ESMAILI, DEFENDANT AND RESPONDENT; JOHN NEEDHAM ET AL.,
DEFENDANTS,
CROSS-DEFENDANTS AND RESPONDENTS; MARK SEIDENBERG, AS EXECUTOR, ETC., DEFENDANT, CROSS-COMPLAINANT AND APPELLANT; FIRST AMERICAN TITLE COMPANY ET AL., CROSS-DEFENDANTS AND RESPONDENTS.

Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Appeal dismissed. (Super. Ct. No.07CC05712)

The opinion of the court was delivered by: Ikola, J.

Wowor v. Esmaili 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

A flute with no holes is not a flute. Likewise, an appeal by an individual not aggrieved by a judgment is not a cognizable appeal. (Code Civ. Proc., § 902 ["Any party aggrieved may appeal in the cases prescribed in this title"]; Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1026 ["Only a party aggrieved by a judgment or order has standing to appeal the judgment or order"].) Because we conclude defendant, cross-complainant, and appellant Mark Seidenberg (acting as executor of the estate of Sophie H. Seidenberg) is not an aggrieved party, we dismiss his attempt to appeal.*fn1

On December 19, 2008, Seidenberg filed a notice of appeal, which indicated he appealed from a "Judgment after an order granting a summary judgment motion."

The November 18, 2008 judgment which Seidenberg purportedly appeals from states as follows: "PLEASE TAKE NOTICE that the Motion for Summary Judgment or, in the alternative, Summary Adjudication ('the Motion') of Plaintiff's First Cause of Action to Quiet Title by Defendants MOHAMMED ESMAILI; JOHN NEEDHAM; and TUSTIN AVE. TRUST #500-110 UDT 5/8/03, NEEDHAM FAMILY INVESTMENTS, INC. (fka DIRKSEN'S APPLIANCES, INC.) AS TRUSTEE (collectively the 'Defendants') came for hearing before the Court on August 12, 2008. At the conclusion of oral arguments for and against said Motion, the Court took the matter under submission. On August 28, 2008, the Court issued its tentative ruling on the Motion granting same. On September 8, 2008, Plaintiff TREES WOWOR ('Plaintiff') appeared ex parte and requested leave to submit further briefing on the Motion. The Court granted that request, further briefs were submitted and oral argument was resumed on September 30, 2008. After having considered all briefs filed in support of the Motion and in opposition thereto, and after having considered all arguments of counsel, the Court granted the Motion and directed summary judgment in favor of Defendants. [¶] Based on the foregoing, JUDGMENT IS HEREBY ENTERED in favor of Defendants and against Plaintiff."

Seidenberg's name appears nowhere in the judgment. Seidenberg was not the moving party or the responding party to the motion for summary judgment. Seidenberg was not a plaintiff in the underlying action (although he was a defendant as explained below).

The operative complaint in the action was filed on November 20, 2007, by a single plaintiff, Trees Wowor, against the defendants listed in the judgment (who are some of the respondents to this appeal), Seidenberg, and Theodorus Winter (Wower's ex-husband). The complaint alleged two causes of action: (1) quiet title to real property and (2) cancellation of written instrument. The lawsuit concerned a unit of real property in Anaheim, California.

On March 21, 2008, Wowor amended the operative complaint by substituting U. Hori and Hideyasu Hori for two Doe defendants.

On May 20, 2008, the defendants listed in the judgment (including some of the respondents to this appeal) filed a motion for summary judgment or, in the alternative, summary adjudication with regard to plaintiff Wowor's operative complaint.

On August 22, 2008, Seidenberg filed a cross-complaint against the following cross-defendants: Hideyasu Hori, Utako Hori, John Needham, Needham Family Investments, Inc., First American Title Company, California Financial Group, Inc., and Mortgage Electronic Registration Services, Inc. Seidenberg pleaded two causes of action: (1) slander of title; and (2) cancellation of cloud on title. The cross-complaint related to the same Anaheim property that was the subject of Wowor's operative complaint.

On August 28, 2008, the court issued its ruling on the motion for summary judgment. The court explained there were three reasons for granting summary judgment: (1) Wowor was required to bring her claims as a compulsory cross-complaint in prior litigation initiated by Seidenberg involving the property (in fact, Wowor did raise some of the same issues raised in this case but voluntarily dismissed her cross-complaint in that action after the court in that case entered judgment against Seidenberg); (2) the statute of limitations for Wowor's claims expired; and (3) "[s]ubstantively, many of the claimed defects in the [foreclosure] sale simply could not be prejudicial to Wowor and therefore are not proper attacks on the sale." The court concluded its order by stating: "Since the consequence of the court's ruling makes the claim against Hori (the recent purchaser of the property) moot, the court dismisses the pending action against him. The dismissal is without prejudice, as the existing cases on appeal may require his presence to quiet title completely. Since the court's ruling also resolves Wowor's claims against Seidenberg and Winter, those claims are dismissed as well. This matter is, then, completely dismissed."

The court repeated and expanded this analysis in an October 20, 2008 amended ruling, which was provided at the request of Wowor (not Seidenberg), who argued the court had not given her the opportunity to be heard on the compulsory cross-complaint ground for granting the motion for summary judgment.

Meanwhile, several answers were filed by parties named as cross-defendants in Seidenberg's cross-complaint. On October 15, 2008, John Needham, Tustin Avenue Trust #500-110 UDT 5/8/03, and Needham Family Investments, Inc. (fka Dirksen's Appliances, Inc.) filed an answer to Seidenberg's cross-complaint. On October 22, 2008, California Financial Group, Inc. filed an answer to Seidenberg's cross-complaint. And on October 29, 2008, Hideyasu Hori and Utako Hori filed an answer to Seidenberg's cross-complaint.

After a thorough examination of the record, it is clear the court did not enter an appealable judgment of dismissal with regard to Seidenberg's cross-complaint. The court's ruling expressing its reasons for ruling in favor of the motion for summary judgment does not mention Seidenberg's cross-complaint. The cross-complaint was not before the court when it ruled in August 2008; indeed, the cross-defendants had not even answered the cross-complaint. And the judgment appealed from does not include a judgment of dismissal of the cross-complaint.

DISPOSITION

The appeal is dismissed. John Needham, Tustin Ave. Trust #500-110 UDT 5/8/03, Needham Family Investments, Inc., as Trustee, Hideyasu Hori, Utako Hori, First American Title Company, California Financial Group, Inc., and Mortgage Electronic Registration Services, Inc., shall recover their costs on appeal.

WE CONCUR: O'LEARY, ACTING P. J. MOORE, J.


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