Dynalectric v. Super. Ct. CA4/1
- Proceeding
- writ
- Trial judge
- William R. Nevitt, Jr.
- Outcome
- writ granted — Petition granted.
- Area
- civil
- Panel
- McINTYRE (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court refused to affirm its prior judgment in favor of Dynalectric as directed by the appellate court's remand order, instead striking the relevant paragraph from the parties' proposed order. The Court of Appeal granted a writ of mandate directing the trial court to enter the judgment in favor of Dynalectric and award costs.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's refusal to affirm the prior judgment and award costs as directed by the appellate court's remand order.“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.” | unclear | error | agree with court The appellate court correctly applied the principle that a trial court must enter the specific judgment directed by a reviewing court on appeal. The trial court's action of striking the paragraph that affirmed the judgment and awarded costs was a clear failure to comply with the appellate directive, making a writ of mandate the appropriate remedy. |
Authorities
- relied: Brewer Corp. v. Point Center Financial, Inc. (2014) 223 Cal.App.4th 831 — The prior appellate decision that directed the specific outcome on remand based on the resolution of the factual excuse issue.
- relied: Hampton v. Superior Court (1952) 38 Cal.2d 652 — When a reviewing court directs the entry of a specific judgment, the trial court must enter it, and failure to do so is correctable by writ of mandate.
- relied: Butler v. Superior Court (2002) 104 Cal.App.4th 979 — Supports the use of writ of mandate to correct a trial court's failure to enter a directed judgment and the appropriateness of a peremptory writ in the first instance.
- relied: Bakkebo v. Municipal Court (1981) 124 Cal.App.3d 229 — Supports the use of writ of mandate to correct a trial court's failure to enter a directed judgment.
- relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Supports the procedure of soliciting an informal response and considering issuing a peremptory writ in the first instance.
- relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — Supports the issuance of a peremptory writ in the first instance when facts are undisputed and the legally correct result is clear.
The appellate opinion: sound — The opinion is sound because it correctly identifies the trial court's failure to comply with the specific directives of the prior appellate decision as a ministerial error correctable by writ of mandate. It appropriately cites established California authority for the proposition that a trial court must enter the judgment directed by the reviewing court.
How this analysis was made · dispute it
unusual dispositionOn remand after Brewer Corp. v. Point Center Financial, Inc. (2014) 223 Cal.App.4th 831, the trial court found in Dynalectric's favor on the excuse issue but struck from the stipulated order the paragraph deeming the prior judgment affirmed and awarding appellate costs, stating it could not affirm its own judgment. The Court of Appeal issued a peremptory writ of mandate in the first instance directing the trial court to enter judgment for Dynalectric nunc pro tunc and to award Dynalectric its costs from the prior appeal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's striking of paragraph 4 of the stipulated proposed order, declining to enter judgment for Dynalectric and award appellate costs as directed by the Brewer Corp. disposition“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.” | de novo | error (law misapplied) | agree with court A trial court must enter the judgment directed by an appellate disposition, and mandate is the established remedy for failure to do so (Hampton v. Superior Court; Butler v. Superior Court). The Brewer Corp. disposition was conditional and self-executing once the excuse issue was resolved for Dynalectric, which the parties stipulated it was; the trial court's concern that it could not 'affirm its own judgment' misread the directive, which simply required it to give effect to the affirmed judgment and award costs. Point Center conceded the point. |
Appropriateness of issuing a peremptory writ in the first instance“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.” | de novo | correct | agree with court Under Palma and Lewis v. Superior Court, a peremptory writ in the first instance is proper where the parties have been notified, the facts are undisputed, the law is clear, and the real party does not oppose relief. All of those conditions were met here, including Palma notice and Point Center's non-opposition. |
Authorities
- relied: Brewer Corp. v. Point Center Financial, Inc. (2014) 223 Cal.App.4th 831 — Prior appellate opinion whose conditional disposition directed affirmance of Dynalectric's judgment and an award of appellate costs if the trial court found a factual excuse for not serving a preliminary notice.
- relied: Hampton v. Superior Court (1952) 38 Cal.2d 652 — When an appellate decision directs entry of a specific judgment, the trial court must enter it, and mandate lies to compel compliance.
- relied: Butler v. Superior Court (2002) 104 Cal.App.4th 979 — Trial court must follow appellate directions on remand; writ of mandate is the remedy for failure to do so, and a peremptory writ in the first instance may issue where the result is clear.
- relied: Bakkebo v. Municipal Court (1981) 124 Cal.App.3d 229 — A lower court's failure to enter the judgment directed by a reviewing court is correctable by writ of mandate.
- relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Procedure and notice requirements for issuing a peremptory writ of mandate in the first instance.
- relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — A peremptory writ in the first instance is appropriate where the facts are undisputed, the law is clear, and the matter warrants expedited resolution.
The appellate opinion: sound — The opinion correctly applies the settled rule that a trial court must enter the judgment directed by an appellate disposition, and it properly invokes Palma/Lewis to issue a peremptory writ in the first instance on undisputed facts with the real party's concession. It is brief and does not elaborate on why the trial court's concern about 'affirming its own judgment' was mistaken, but the result follows directly from the Brewer Corp. disposition and the cited authorities.
Opinion
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.
Cites, in this corpus
- Brewer Corp. v. Point Center Financial, Inc. D061665 · 2014-01-31
- Butler v. Superior Court B163270 · 2002-12-23
- Lewis v. Superior Court S061240 · 1999-02-08
- Palma v. U.S. Industrial Fasteners, Inc. L.A. No. 31725 · 1984-06-07
- Bakkebo v. Municipal Court Civ. 62039 · 1981-10-05
- Hampton v. Superior Court L. A. 22086 · 1952-03-25