Wells Properties v. Popkin

California Court of Appeal

Wells Properties v. Popkin

9 Cal. App. 4th 1053, 11 Cal. Rptr. 2d 845, 92 Daily Journal DAR 12821, 92 Cal. Daily Op. Serv. 7998, 1992 Cal. App. LEXIS 1124

CourtCalifornia Court of Appeal

DecidedSeptember 16, 1992

DocketG011664

StatusPublished

Cited by25 cases

This text of 9 Cal. App. 4th 1053 (Wells Properties v. Popkin) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wells Properties v. Popkin, 9 Cal. App. 4th 1053, 11 Cal. Rptr. 2d 845, 92 Daily Journal DAR 12821, 92 Cal. Daily Op. Serv. 7998, 1992 Cal. App. LEXIS 1124 (Cal. Ct. App. 1992).

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OPINION

Richard Popkin, Ruth Shamir and Jack Golan (Popkin) appeal from an order denying their motion to impose sanctions as prescribed by Code of Civil Procedure section 128.5¹ against Wells Properties and its attorneys, Schmiesing Blied (Wells).

FACTS Popkin and Wells settled an action seeking an unpaid real estate commission. Under the terms of the agreement, Popkin would pay Wells $25,000 at a rate of $5,000 per month. Popkin also signed a stipulation for entry of judgment for $55,000. If any payment was late, Wells, at their sole discretion, had the right to declare a default and enter the judgment upon ex parte application without further notice.² Payments were to be wire-transferred to Wells's account on or before the 20th of each month.

Popkin made timely payments in November, December, and January. Popkin's secretary, Annette Ochoa, delivered the February payment to Popkin's bank on the 20th, but the bank's wire service had closed for the day. Consequently, Wells's account was not credited until the next morning.

February 21 was a day of frantic phone calls. Wells informed Popkin's attorney that because the payment had not been timely received, they were searching for the original stipulation for entry of judgment. Ochoa then called Wells's office several times. Tanya Needham, project manager for *Page 1055 Wells, spoke with her. Needham's declaration succinctly describes the desperation Ochoa was experiencing as a result of her late arrival at the bank the day before: "[Ochoa] said she wanted to beg [Wells] to let her make payments out of her own pocket until the total was paid, and that she was so sorry. She repeatedly accepted the blame for forgetting to get the money into the bank on time. . . . [¶] The conversation ended with [Ochoa] asking me, again, to beg [Wells] not to file the papers, that it was her fault and she really needed to talk to him." Wells failed to return Ochoa's call.

There was no communication between the parties until Mitchel Ezer, Popkin's attorney, wrote Wells on March 6, asking him to confirm the receipt of the February payment. There was no response. On March 12, Wells accepted Popkin's last $5,000 payment. On March 18, Ezer wrote again, asking if Wells had received both the February and March payments. Wells failed to respond, but that same day filed for and was granted a $40,000 judgment.

On April 26, Popkin's motion to vacate the judgment was granted. Undaunted, Wells sent Popkin a $937.75 bill for attorney fees and costs they had incurred in obtaining the invalidated judgment. Popkin's response was to file the underlying sanctions motion against Wells and their attorneys for $5,707.25 in fees and costs incurred in setting aside the judgment. The court's denial of that motion is the subject of this appeal.

DISCUSSION (1) Section 904.1, subdivision (k) permits a party to appeal a judgment or an order directing it to pay monetary sanctions in excess of $750. (See generally Greene v. Amante (1992)3 Cal.App.4th 684 [4 Cal.Rptr.2d 571].) However, denial of a motion for sanctions is not a judgment and is therefore not appealable. We recognize that we have the discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate, but "we should not exercise that power except in unusual circumstances." (Olson v. Cory (1983) 35 Cal.3d 390, 401 [197 Cal.Rptr. 843, 673 P.2d 720].) Although we agree with many of the sentiments expressed in the dissenting opinion,³ the circumstances are not sufficiently unusual to justify a departure from the one judgment rule. As this court has held, "A petition to treat a nonappealable order as a writ should only be granted under [the most] extraordinary circumstances, `"compelling enough to indicate the propriety of a petition for writ . . . in the first instance. . . ." [Citation.]'" (Estateof Weber (1991) 229 Cal.App.3d 22, 25 [280 Cal.Rptr. 22], quoting DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 437 [160 Cal.Rptr. 899].) *Page 1056 A denial of a motion for sanctions simply does not present unusual and compelling circumstances.

DISPOSITION The appeal is dismissed.

Sills, P.J., concurred.

¹ All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

² Richard Wells stated in his declaration he specifically negotiated for no grace period in order to ensure Popkin would make timely payments.

Paragraph 5 of the stipulation for entry of judgment reads in pertinent part: "In the event of default . . . the entire unpaid balance, plus any additional attorney's fees incurred in obtaining and entering said Judgment, shall immediately become due and payable, and Judgment may be entered forthwith by Plaintiff and/or Plaintiff's attorney without further notice to Defendants and Writ of Execution shall be issued forthwith. Defendants waive their rights to a hearing upon the Entry of Judgment and Notice of Application for Entry of Judgment."

³ It does appear that the attorneys for Wells violated the most famous of the Marquis of Queensberry rules.

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OPINION

Richard Popkin, Ruth Shamir and Jack Golan (Popkin) appeal from an order denying their motion to impose sanctions as prescribed by Code of Civil Procedure section 128.5¹ against Wells Properties and its attorneys, Schmiesing Blied (Wells).

FACTS Popkin and Wells settled an action seeking an unpaid real estate commission. Under the terms of the agreement, Popkin would pay Wells $25,000 at a rate of $5,000 per month. Popkin also signed a stipulation for entry of judgment for $55,000. If any payment was late, Wells, at their sole discretion, had the right to declare a default and enter the judgment upon ex parte application without further notice.² Payments were to be wire-transferred to Wells's account on or before the 20th of each month.

Popkin made timely payments in November, December, and January. Popkin's secretary, Annette Ochoa, delivered the February payment to Popkin's bank on the 20th, but the bank's wire service had closed for the day. Consequently, Wells's account was not credited until the next morning.

February 21 was a day of frantic phone calls. Wells informed Popkin's attorney that because the payment had not been timely received, they were searching for the original stipulation for entry of judgment. Ochoa then called Wells's office several times. Tanya Needham, project manager for *Page 1055 Wells, spoke with her. Needham's declaration succinctly describes the desperation Ochoa was experiencing as a result of her late arrival at the bank the day before: "[Ochoa] said she wanted to beg [Wells] to let her make payments out of her own pocket until the total was paid, and that she was so sorry. She repeatedly accepted the blame for forgetting to get the money into the bank on time. . . . [¶] The conversation ended with [Ochoa] asking me, again, to beg [Wells] not to file the papers, that it was her fault and she really needed to talk to him." Wells failed to return Ochoa's call.

There was no communication between the parties until Mitchel Ezer, Popkin's attorney, wrote Wells on March 6, asking him to confirm the receipt of the February payment. There was no response. On March 12, Wells accepted Popkin's last $5,000 payment. On March 18, Ezer wrote again, asking if Wells had received both the February and March payments. Wells failed to respond, but that same day filed for and was granted a $40,000 judgment.

On April 26, Popkin's motion to vacate the judgment was granted. Undaunted, Wells sent Popkin a $937.75 bill for attorney fees and costs they had incurred in obtaining the invalidated judgment. Popkin's response was to file the underlying sanctions motion against Wells and their attorneys for $5,707.25 in fees and costs incurred in setting aside the judgment. The court's denial of that motion is the subject of this appeal.

DISCUSSION (1) Section 904.1, subdivision (k) permits a party to appeal a judgment or an order directing it to pay monetary sanctions in excess of $750. (See generally Greene v. Amante (1992)3 Cal.App.4th 684 [4 Cal.Rptr.2d 571].) However, denial of a motion for sanctions is not a judgment and is therefore not appealable. We recognize that we have the discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate, but "we should not exercise that power except in unusual circumstances." (Olson v. Cory (1983) 35 Cal.3d 390, 401 [197 Cal.Rptr. 843, 673 P.2d 720].) Although we agree with many of the sentiments expressed in the dissenting opinion,³ the circumstances are not sufficiently unusual to justify a departure from the one judgment rule. As this court has held, "A petition to treat a nonappealable order as a writ should only be granted under [the most] extraordinary circumstances, `"compelling enough to indicate the propriety of a petition for writ . . . in the first instance. . . ." [Citation.]'" (Estateof Weber (1991) 229 Cal.App.3d 22, 25 [280 Cal.Rptr. 22], quoting DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 437 [160 Cal.Rptr. 899].) *Page 1056 A denial of a motion for sanctions simply does not present unusual and compelling circumstances.

DISPOSITION The appeal is dismissed.

Sills, P.J., concurred.

¹ All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

² Richard Wells stated in his declaration he specifically negotiated for no grace period in order to ensure Popkin would make timely payments.

Paragraph 5 of the stipulation for entry of judgment reads in pertinent part: "In the event of default . . . the entire unpaid balance, plus any additional attorney's fees incurred in obtaining and entering said Judgment, shall immediately become due and payable, and Judgment may be entered forthwith by Plaintiff and/or Plaintiff's attorney without further notice to Defendants and Writ of Execution shall be issued forthwith. Defendants waive their rights to a hearing upon the Entry of Judgment and Notice of Application for Entry of Judgment."

³ It does appear that the attorneys for Wells violated the most famous of the Marquis of Queensberry rules.

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9 Cal. App. 4th 1053, 11 Cal. Rptr. 2d 845, 92 Daily Journal DAR 12821, 92 Cal. Daily Op. Serv. 7998, 1992 Cal. App. LEXIS 1124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-properties-v-popkin-calctapp-1992.

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