GEORGE v. INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF CALIFORNIA

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Court of Appeal, Fourth District, Division 1, California.

Robin GEORGE, et al., Plaintiffs and Respondents, v. INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF CALIFORNIA, et al., Defendants and Appellants.

No. D007154.

Decided: August 30, 1989

Alan G. Martin, Kent L. Richland, Feris M. Greenberger, Greines, Martin, Stein & Richland, Beverly Hills, W. Marshall Morgan, Walter M. Yoka, Morgan, Wenzel & McNicholas, Irvine, and William Stocker, Santa Monica, for defendants and appellants. Edward McGlynn Gaffney, Jr. and Morton B. Jackson, Los Angeles, as amici curiae for defendants and appellants. Louis E. Goebel, Cheryl Shensa, Goebel, Shensa & Beale, David A. Niddrie and Procopio, Cory, Hargreaves and Savitch, San Diego, for plaintiffs and respondents.

The International Society for Krishna Consciousness (ISKCON) of California, ISKCON of New Talavan, and five other ISKCON-related entities and individuals appeal from an order amending a judgment to name additional ISKCON entities as judgment debtors.   We conclude that ISKCON of California and the other five ISKCON entities and individuals—the original defendants in the action—do not have standing to appeal;  ISKCON of New Talavan, one of the defendants added by the amended judgment, filed an untimely appeal.   Accordingly, we dismiss their appeals.

PROCEDURAL BACKGROUND

On June 20, 1983, a jury awarded general and punitive damages in excess of $32 million to plaintiffs Robin and Marcia George and against six ISKCON defendants (ISKCON of California, et al.).   The trial court later reduced the damage award to about $10 million.   Judgment was entered and an appeal filed.1  Claiming they were unable to comply with bonding requirements to stay execution on their assets pending appeal, the six defendants sought extraordinary appellate relief and asked for a writ of supersedeas.   As a condition of granting the writ, the appellate court created a receivership in the trial court to safeguard the ISKCON assets for the benefit of the Georges.

Later, the Georges moved to amend the judgment to include eight additional ISKCON corporations on the theory they were alter egos of the original ISKCON defendants.   The Georges alleged that instead of putting assets into the receivership, the original six defendants were secreting assets by transferring them to various other ISKCON entities including the eight named in the motion to amend the judgment.

On April 27, 1984, the trial court granted the Georges' motion.   On August 16, 1984, an “Order Correcting Judgment to Add Alter Ego Corporations As Judgment Debtors and Amending Judgment Nunc Pro Tunc” was filed.

Of the eight ISKCON entities added by the amended judgment, only New Talavan purports to appeal from the order.   The original six ISKCON defendants filed timely notices of appeal.

DISCUSSION

A.

Did New Talavan file a timely notice of appeal? 2

 California Rules of Court, rule 2(a) requires:

“Except as otherwise provided by Code of Civil Procedure section 870 or other statute, a notice of appeal shall be filed within 60 days after the date of mailing notice of entry of judgment by the clerk of the court ․ or within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal ․ whichever is earliest, ․”

When notice of appeal is not filed within the required period the appellate court does not have jurisdiction to hear the appeal and the appeal must be dismissed.  (Hollister Convalescent Hosp. Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349;  County of Los Angeles v. Jamison (1961) 189 Cal.App.2d 267, 269, 11 Cal.Rptr. 309.)   Since New Talavan's appeal was filed on the sixty-first day after the date of service of the notice of entry of judgment, we must dismiss the appeal.

B.

Do the original six ISKCON defendants have standing to appeal the trial court's order adding eight alter ego ISKCON corporations as judgment debtors?

 This question must be answered in the context of Code of Civil Procedure section 902 which limits a right to appeal to aggrieved parties.   A party is aggrieved only when its rights or interests have been injuriously affected by an order or judgment.  (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737, 97 Cal.Rptr. 385, 488 P.2d 953.)

 Our initial, almost intuitive response to the question whether the six ISKCON defendants were aggrieved here was a resounding “No.”   It appeared to us that an amended judgment which spread the amount of the judgment over additional debtors benefitted rather than injured the original debtors.   The effect of spreading the debt would be to reduce the amount the original six would have to pay.   We thought that in these circumstances a reduced slice of the pie would be easier to swallow.

Anticipating our response, the original six defendants insist they are aggrieved because the alter ego finding may have collateral estoppel effect, exposing them to potential responsibility for debts the eight additional defendants may incur.   Although we are impressed with the creativity of this argument, we are unpersuaded.

While generally a party is collaterally estopped from raising an issue that has already been litigated and determined, Restatement of Judgments, section 28, subdivision (1) prohibits the application of collateral estoppel if the party against whom it is asserted was precluded, as a matter of law, from obtaining review of the judgment.   As Professor Scott explains, “A judgment rendered by the trial court may not be conclusive by way of collateral estoppel because the unsuccessful party cannot obtain the decision of the appellate court upon the matter decided adversely to him.   The fact that a party who might have appealed fails to do so is immaterial;  but the fact that he is unable to appeal is of importance.”  (Scott, Collateral Estoppel by Judgment (1942) 56 Harv.L.Rev. 1, 15–16.)

Here, our conclusion that the original six defendants are not aggrieved parties has the effect of prohibiting them from obtaining appellate review of the alter ego determination.   Thus, these defendants cannot be collaterally estopped from raising the issue in a later suit.  (See Anderson–Cottonwood Disposal Service v. Workers' Comp. Appeals Bd. (1982) 135 Cal.App.3d 326, 332–333, 185 Cal.Rptr. 336.)   In other words, collateral estoppel does not determine a party's standing to appeal;  rather, standing to appeal—and hence the availability of appellate review—determines whether collateral estoppel may later be properly applied.

Accordingly, the appeals are dismissed.

FOOTNOTES

1.   That appeal (D007153) is the subject of separate proceedings in this court.

2.   After reviewing the record we conclude New Talavan received adequate notice of the amended judgment.

WIENER, Associate Justice.

KREMER, P.J., and WORK, J., concur.

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