Gee v. American Realty & Construction Inc.

Opinion

KAY, P. J. On May 21, 2002, this court filed the following opinion:

“On July 9, 2001, this court affirmed a summary judgment and an order for costs and contractual attorney fees of $99,496.13 awarded to defendants, who were sued for fraud and breach of contract by plaintiffs, the buyers of parcels in a planned subdivision. (Gee v. American Realty & Construction, Inc. (July 9, 2001, A090121) [nonpub. opn.].) During the pendency of that appeal, defendants recorded abstracts of the judgment on plaintiffs’ parcels and noticed a ‘Motion for Order Allowing Judgment Creditor to File Abstract of Judgment with Recorders’ Office.’ The trial court denied the motion and ordered that the abstracts ‘shall be released.’ Defendants filed a timely notice of appeal.

“The judgment and order awarding defendants costs and contractual attorney fees would be automatically stayed on appeal without the necessity of an undertaking. (See Code Civ. Proc., §§ 916, subd. (a), 917.1, subd. (d), 917.9, [1414]subd. (a)(3); Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 800-801 [12 Cal.Rptr.2d 696, 838 P.2d 218].) The major point argued by defendants in their briefs is that Code of Civil Procedure section 674 used to forbid the recording of abstracts of stayed judgments but was amended in 1983 to remove that proscription. Thus, defendants claim they had an absolute right to file the abstract. Whether a 1983 amendment justifies defendants’ position is a matter we do not reach. (See Stats. 1982, ch. 497, § 39, pp. 2157-2158; Stats. 1980, ch. 1281, § 2, pp. 4326-4327; Industrial Indemnity Co. v. Levine (1975) 49 Cal.App.3d 698, 699-700 [122 Cal.Rptr. 712].) We find a more elemental issue to be dispositive.

“The undeniable fact is that defendants asked the trial court to exercise its discretion under Code of Civil Procedure section 917.1 to allow the filing of the abstracts, which defendants had already filed. Defendants are now in the position of arguing that their motion was essentially pointless, in that the trial court had no authority to deny it. Defendants conceded as much at oral argument, stating that going to the Commissioner was probably a mistake. ‘When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action [as being] in excess of jurisdiction.’ (In re Griffin (1967) 67 Cal.2d 343, 347 [62 Cal.Rptr. 1, 431 P.2d 625].) The basis for the estoppel is that ‘ “[t]o hold otherwise would permit the parties to trifle with the courts.” ’ (Id. at p. 348, quoting City of Los Angeles v. Cole (1946) 28 Cal.2d 509, 515 [170 P.2d 928].) This principle is now well established and widely applied. (E.g., Conservatorship of Kevin M. (1996) 49 Cal.App.4th 79, 91-92 [56 Cal.Rptr.2d 765]; Law Offices of Stanley J. Bell v. Shine, Browne & Diamond (1995) 36 Cal.App.4th 1011, 1022-1023 [43 Cal.Rptr.2d 717]; Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1268-1269 [284 Cal.Rptr. 18]; People v. Jones (1989) 210 Cal.App.3d 124, 135-137 [258 Cal.Rptr. 294].) It is appropriately applied here. Defendants are not claiming that the trial court lacked jurisdiction in the most fundamental sense that is ‘an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 [109 P.2d 942, 132 A.L.R. 715].) They are belatedly challenging the result generated by the procedure they initiated with their motion. If we accepted the argument defendants now advance, and reversed the order denying their motion, we would in plain effect be reversing the trial court for a ruling defendants now say it—the trial court—should never have been asked to make. The trial court finds itself in this no-win Catch-22 situation only at defendants’ insistence. It would be hard to imagine a clearer example of trifling with the courts.