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Macaluso v. Superior Court (Lennar Land Partners II, LLC)

California Court of Appeals, Fourth District, First Division

September 18, 2013

TODD MACALUSO, Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent LENNAR LAND PARTNERS II, LLC et al., Real Parties in Interest.

Petition for Writ of Mandate, No. GIC877446 William R. Nevitt, Judge.

Pumilia Patel & Adamec, Jayesh Patel and Paul Rosenberger for Petitioner.

No appearance for Respondent.

O'Melveny & Myers, Daniel M. Petrocelli and Jeffrey A. Barker for Real Parties in Interest.

McDONALD, Acting P. J.

Real party in interest Lennar Homes of California, Inc., (Lennar) is a judgment creditor pursuing collection proceedings against its judgment debtor, Mr. Marsch. Lennar served a subpoena duces tecum on petitioner Todd Macaluso (Macaluso) that required Macaluso to produce documents and testify at a judgment debtor examination in connection with Lennar's judgment collection proceedings. Although Macaluso appeared at the judgment debtor examination, he declined to answer most of the questions, objected to the document production and refused to produce the documents.

Lennar then moved to compel further responses and documents. After the trial court entered an order granting Lennar's motion (the order), Macaluso filed a notice of appeal from the order. However, because the trial court agreed with Lennar that the order was not appealable under Code of Civil Procedure[1] section 904.1, and Macaluso did not comply with the order, the trial court entered an order to show cause re contempt (the OSC). Macaluso's current writ petition contends the trial court was without jurisdiction to issue the OSC because the order was appealable and therefore the Notice of Appeal deprived the court of further jurisdiction to act until Macaluso's appeal from the order is resolved.

We are presented with the narrow issue of whether the order was an appealable order within the meaning of section 904.1, subdivision (a)(2).

I

FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

In early 2011, a lawsuit (the Briarwood litigation) that pitted Marsch and his related entities against Lennar was resolved in favor of Lennar; it obtained a judgment against Marsch individually for more than $50 million. Although Marsch allegedly testified (at a judgment debtor's examination in early 2012) he was insolvent, Lennar has submitted evidence that Marsch was an untruthful person who had been actively engaged in efforts to hide assets Lennar might have levied upon to satisfy its judgment.

Macaluso is an attorney and was a principal in an entity known as American Lawyers Funding (ALF). Macaluso has been involved with Marsch for several years, and in many capacities: ALF loaned money to provide funding to Marsch to pursue the Briarwood litigation; Macaluso's law firm provided substantial loans to pay attorneys representing Marsch in the Briarwood litigation and other lawsuits; Macaluso's law firm gave Marsch ...


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