Toups v. Chen CA1/3

Filed 2/29/16 Toups v. Chen CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

JILL TOUPS, Plaintiff and Appellant, A143309 v. HONG BING CHEN et al., (City & County of San Francisco Super. Ct. No. CGC-10-498490) Defendants and Respondents.

This is the second appeal involving Jill Toups’s (Toups) action against Hong Bing Chen, Yao Li, and Afresh Enterprises, Inc. (collectively, defendants). In the prior appeal, we reversed the trial court’s order awarding summary judgment and/or summary adjudication in favor of Toups. Thereafter, the trial court entered judgment in favor of defendants, and Toups now appeals from that judgment. She does not challenge the trial court’s rulings in any way but contends the judgment must be reversed because this court lacked jurisdiction to decide the prior appeal. For the reasons set forth below, we shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND1 Toups filed an action against defendants on April 9, 2010, alleging that a third party engaged in fraudulent acts that resulted in damages to her and unjust enrichment to

1 Detailed factual and procedural background summaries are included in our prior opinion in Toups v. Chen et al. (September 28, 2012, A133657) [nonpub. opn.]. To obtain context, maintain consistency and economize judicial resources, we hereby take judicial notice of our prior opinion. (Evid. Code, § 451, subd. (a).)

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defendants. The operative complaint alleged six causes of action: (1) unjust enrichment; (2) involuntary trust; (3) conversion; (4) intentional infliction of emotional distress; (5) negligence; and (6) violation of Penal Code, section 496, subdivision (c), receipt of stolen property. Toups filed a “Motion for Summary Judgment and/or Summary Adjudication of the Plaintiff’s First and Second Causes of Action,” raising arguments only as to her first and second causes of action. The trial court granted the motion and entered “Judgment” in favor of Toups, also making no mention of the third to sixth causes of action. Toups filed a motion for attorney fees and costs, which the trial court denied. Both parties appealed. On appeal, we first questioned whether we had jurisdiction if the third to sixth causes of action remained, for an appeal cannot be taken from a judgment that fails to completely dispose of all causes of action between the parties. The parties requested that we proceed with deciding the merits of the appeal, and stipulated to dismiss the third to sixth causes of action without prejudice and to toll the statute of limitations as to those causes of action. Based on settled law, including Don Jose’s Restaurant Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115 (Don Jose’s), that the parties’ stipulation to dismiss remaining causes without prejudice and to toll the statute of limitations does not render a “Judgment” from which they appeal final and appealable, we declined to take jurisdiction based on the parties’ stipulation. Nevertheless, we exercised our discretion to address the merits of the appeal and cross-appeal on equitable principles, noting that “an appellate court has the power to ‘ “ ‘preserve [an] appeal by amending the judgment to reflect the manifest intent of the trial court’ ” ’ when ‘ “ ‘the trial court’s failure to dispose of all causes of action results from inadvertence or mistake rather than an intention to retain the remaining causes of action for trial.” ’ (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 308; see also Prichard v. Liberty Mut. Ins. Co. (2000) 84 Cal.App.4th 890, 901.)” We concluded that the fact that Toups moved for “Summary Judgment and/or Summary Adjudication (emphasis added)” and obtained a “Judgment” under which she was awarded the entire disputed amount aside from attorney fees and costs, and the fact that she raised