Wells Fargo Bank v. Bennett CA3

Filed 1/28/15 Wells Fargo Bank v. Bennett CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Lassen) ----

WELLS FARGO BANK N.A., as Trustee, etc., et al.,

Cross-complainants and Respondents, C072171

v. (Super. Ct. Nos. 45679, 50324) DWIGHT A. BENNETT,

Cross-defendant and Appellant.

Appellant Dwight A. Bennett appeals from a judgment in which the trial court granted respondent Wells Fargo Bank, N.A. (Wells Fargo) an equitable lien and an equitable mortgage on a 40-acre parcel of land in Susanville, California. The judgment being appealed also reformed the deed of trust to the property to award a first priority security interest in favor of Wells Fargo. Bennett contends the judgment must be reversed because (1) triable issues of fact precluded summary adjudication in favor of Wells Fargo, (2) Wells Fargo should not have been granted the equitable relief because it did not properly amend its cross- complaint, (3) insufficient evidence supports the judgment in favor of Wells Fargo, (4) no

1

receiver should have been appointed for the real property, and (5) a contempt order was erroneously imposed on him. Wells Fargo counters that the appeal must be dismissed. To this end, Wells Fargo argues (1) the judgment is interlocutory in nature and cannot be appealed under the one final judgment rule, (2) the purported appeal from orders of receivership are untimely because the appeal was filed more than 180 days after entry of the challenged orders, and (3) review of a contempt order is only by writ, not direct appeal. We agree we lack jurisdiction and dismiss the appeal. BACKGROUND The Litigation In 2010, Norman W. Allen sued numerous defendants including Bennett, Wells Fargo, and Judith A. St. John.1 Allen sought tort damages, reformation of contract, and imposition of an equitable trust after he entered into an agreement with Bennett and St. John to partition a 54-acre property in Susanville, California. The partition mistakenly omitted certain improvements from Allen’s 14-acre portion, which jeopardized a mortgage obtained by Allen from Option One Capital Mortgage Corporation. All of Allen’s causes of action related to the partition and the parties’ resulting property rights. St. John filed a cross-complaint seeking, among other things, declaratory relief and indemnity from Bennett. Wells Fargo also filed a cross-complaint for eight causes of action as successor trustee and beneficiary of a deed of trust to the partitioned property. Wells Fargo alleged the error in partitioning the property left Allen to pay for improvements Bennett and St. John ended up owning. Based on the erroneous partitioning, Wells Fargo sought declaratory relief, reformation of the deed of trust, imposition of an equitable lien, and