Filed 2/18/15; part. pub. order 3/16/15 (see end of opn.); reposted to correct pub. description 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

KEN R. BAKER, 

Plaintiff and Respondent, 

 v. 

ALFONSE CASTALDI et al., 

Defendants and Appellants. 

F067687 

(Mariposa Super. Ct. No. 10161) 

OPINION

 APPEAL from a judgment of the Superior Court of Mariposa County. F. Dana 

Walton, Judge. 

 Cyril L. Lawrence for Defendants and Appellants. 

 Silveira, Mattos & Lewis and Weldon J. Mattos, Jr., for Plaintiff and Respondent. 

-ooOooINTRODUCTION 

 Respondent and plaintiff Ken R. Baker sued Theresa Castaldi1 and appellant 

Alfonse Castaldi for allegedly stealing antiques he owned. Plaintiff 2 sought punitive 

 1 Theresa Castaldi was a defendant in the trial court proceedings, but is not an 

appellant in this appeal. 

2 We refer to Ken R. Baker as “plaintiff” to distinguish him from appellant 

Annette Baker, trustee of the Ann Jay Trust. 
2. 

damages. Trial proceeded to a first phase3 on March 25, 2013 and a punitive damages 

calculation phase on August 6, 2013. The first phase dealt with liability, compensatory 

damages and whether plaintiff was entitled to punitive damages. The second phase dealt 

with the calculation of the punitive damages. 

After the first phase completed, the court found both Theresa and Alfonse jointly 

and severally liable for conversion. On May 20, 2013, months before the punitive 

damages phase began, a document entitled “judgment” was filed. The “judgment” 

indicated that judgment was against both defendants, jointly and severally, and set forth 

$610,500 in compensatory damages plus interest and costs. The “judgment” went on to 

state that the court “finds by a preponderance of the evidence[4]

 that both defendants 

Alfonse Castaldi and Theresa Castaldi have acted with malice and with oppression 

toward plaintiff Ken Baker warranting an award of punitive damages to be assessed at a 

separate trial....” 

 Several notices of appeal were filed in superior court, each identifying only the 

May 20, 2013, “judgment” as the subject of the appeal. 

 We conclude that the May 20, 2013, “judgment” was not a final, appealable 

judgment. Since “[i]t is the duty of an Appellate Court on its own motion to dismiss an 

 3 The trial court’s purported judgment issued on May 20, 2013 refers to the 

punitive damages phase as a “separate trial.” The common nomenclature is to refer to the 

punitive damages proceedings as the second “phase” of the trial, rather than an entirely 

separate trial. (E.g., Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 

907, 913; Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 919; Amoco 

Chemical Co. v. Certain Underwriters at Lloyd’s of London (1995) 34 Cal.App.4th 554, 

558; Rivera v. Sassoon (1995) 39 Cal.App.4th 1045, 1047; Herrick v. Quality Hotels, 

Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1615–1616.) We will follow this 

practice. 

4 To obtain punitive damages, a plaintiff must prove oppression, fraud or malice 

by “clear and convincing evidence,” not a mere preponderance of the evidence. (Civ. 

Code, § 3294, subd. (a); Westrec Marina Management, Inc. v. Jardine Ins. Brokers 

Orange County, Inc. (2000) 85 Cal.App.4th 1042, 1050.) 
3. 

appeal from an order which is not appealable,” (Chapman v. Tarentola (1960) 187 

Cal.App.2d 22, 25), we dismiss the appeal. 

PRETRIAL PROCEEDINGS 

Complaint and Temporary Restraining Order 

 On May 16, 2012, plaintiff filed a complaint against Theresa and Alfonse, alleging 

they converted antiques owned by plaintiff. The complaint sought punitive damages. 

On the same day the complaint was filed, plaintiff filed an ex parte application for 

a temporary restraining order (1) preventing defendants from “selling, concealing, 

encumbering, hypothecating, damaging or destroying” the antiques; (2) granting 

immediate access to all buildings at 2100 Old Highway in Catheys Valley, California, in 

order to “view, inspect, inventory, and photograph or videotape all antiques and 

collectibles that are presently at the property”; and (3) prohibiting defendants from 

spending or disbursing any funds derived from the sale of the antiques. The application 

was made without notice to defendants. (See Cal. Rules of Court, rule 3.1204(b)(3).) 

 On May 17, 2012, the court granted the temporary restraining order. The next 

day, the court ordered that the Mariposa County Sheriff’s Department was “authorized to 

cut locks, chains or otherwise force entry to the real property and all buildings at 2100 

Old Highway, Catheys Valley, CA, for which Defendants do not, immediately, allow 

entry.”5

Preliminary Injunction 

 On June 15, 2012, the court issued a preliminary injunction prohibiting all parties 

from selling, encumbering or hypothecating any of the antiques. The court also ordered 

 5 The latter order was signed by Judge Wayne R. Parrish. Shortly thereafter, 

defendants filed a peremptory challenge to Judge Parrish pursuant to Code of Civil 

Procedure section 170.6. 
4. 

all antiques “be placed in storage” at a specified location “with no access to be allowed to 

the storage unit without written Court order upon noticed motion.” 

Defense Motion for Access to Antiques to Perform Expert Appraisal 

On September 25, 2012, defendants moved for access to the antiques to perform 

an expert appraisal. The court denied the motion without prejudice as “premature.” At 

the hearing, the court indicated that it “would likely reconsider the motion” once all 

parties have been deposed. 

Plaintiff’s Ex Parte Application to Access Antiques to Inspect for Water 

Damage 

On February 5, 2013, plaintiff filed an ex parte request for access to the antiques 

to inspect for water damage. The application indicated that it was made “without notice 

to the other side as the Castaldis currently represent themselves in pro per and time is of 

the essence to the protect the antiques.” The court granted the request and authorized 

plaintiff to open the storage unit “only in the presence of an independent person from” 

the storage facility. 

Motion in Limine to Exclude Testimony of Theresa Castaldi 

 On March 25, 2013, the first day of trial, plaintiff moved to exclude “any trial 

testimony of Theresa Castaldi” on the basis that her deposition had not been concluded. 

Defense counsel responded that he had received the motion “30 seconds ago.” Defense 

counsel went on to say: “I don’t care what the Court decides, but I haven’t even decided 

whether I was going to call her anyway.” 

The court noted that it had indicated at a previous hearing that if Theresa failed to 

complete a deposition “the Court would consider not allowing her to testify.” The court 

ultimately decided to “reserve” its decision on the issue, but did indicate that it was 

“leaning towards granting the motion.” 

 Theresa was not called as a witness at trial. 
5. 

FIRST PHASE TRIAL EVIDENCE 

 The first phase of trial, regarding the issues of liability, compensatory damages, 

and entitlement to punitive damages, began on March 25, 2013. 

Plaintiff’s Testimony 

 Plaintiff testified that he and Theresa Castaldi lived together at 2412 Old Highway 

in Catheys Valley, California, for over a decade. Plaintiff stored antiques in a 

temperature controlled room inside a barn on the property. By the time of trial, it was 

undisputed that Alfonse6 had no ownership interest in these antiques. 

 In April 2012, after his relationship with Theresa ended, plaintiff discovered that 

all of the items he had stored in the room had been stolen. 

Recorded Telephone Conversation between Alfonse and a District Attorney 

Investigator 

On May 18, 2012, Alfonse called an investigator with the Mariposa County 

District Attorney’s Office named Michael Akers. Akers recorded the conversation.7

On the call, Alfonse said: 

“He[8]

took all the cattle stuff that we couldn’t move that was on the property. And 

we said ok fine, we had no place for it, we had not use for it anyway, but we want 

the stuff that’s in the barn. He said well if you want it you better come and get it 

before – I don’t know what the date was, but we had like 3 days to go get it. So 

 6 We refer to Alfonse and Theresa Castaldi by their first names to distinguish them 

from one another. No disrespect is intended. 

7 Akers testified that he did not know what Alfonse was going to say when he 

called and that “the recording started immediately when [he] picked up the phone.” 

Akers testified the recording was made as part of an investigation of potential theft of 

personal property, but that he was not investigating the theft of Ken’s antiques. 

Apparently, Akers was investigating a separate incident of potential theft of personal 

property. Alfonse testified that, at the time of the phone conversation, Akers was 

“helping” him “work with the law enforcement of Mariposa County on some other stuff.” 

8 “He” presumably refers to plaintiff. 
6. 

we hired, hired one of our Mexican workers and we took the truck and we loaded 

that stuff out of there, everything that was of value as much as we could get within 

that timeframe. He said we could do it.” 

Alfonse’s Testimony 

Alfonse testified at trial, though the trial court ultimately found “the testimony ... 

presented by Alfonse Castaldi to not be credible and in many respects untruthful.” 

Alfonse testified that Theresa wanted the items in the barn “removed.” Alfonse 

suggested someone she could hire to “help her out.” An unidentified “Mexican 

worker[]”9 did ultimately help Theresa. Alfonse accompanied the person to 2412 Old 

Highway, but did not pay him. Alfonse also testified that he did not “physically load[]” 

the items. He testified that he was preparing for back surgery and “was not lifting 

anything” at the time. 

Alfonse did observe a “truckload”10 of items being removed from the storage 

room, including chairs. Someone later told Alfonse that more than one “truckload” was 

ultimately removed from 2412 Old Highway. 

Alfonse allowed Theresa to store the antiques at another property. 

Trial Court’s Oral Announcement of Decision 

On March 27, 2013, the court verbally announced that it found in favor of plaintiff 

and would be awarding six figures in damages.11

 9 This is the phrase used by Alfonse during his testimony. It is quoted here 

because it is the same phrase Alfonse used in the recorded call with Akers. 

10 Counsel asked Alfonse how may “truckloads” he saw removed from 2412 Old 

Highway and Alfonse responded, “One.” 

11 The court permitted Ken to testify as an expert on the value of some of the 

antiques. The court largely credited Ken’s testimony. 
7. 

PROCEEDINGS AFTER THE FIRST PHASE OF TRIAL 

April 16, 2013, Ex Parte Application and Orders Thereon 

On April 16, 2013, plaintiff filed an ex parte application for a temporary 

restraining order and “preliminary” injunction preventing Theresa and Alfonse from 

transferring any assets without a court order. The ex parte application requested that the 

temporary restraining order “apply to any interest held in any capacity by Alfonse E. 

Castaldi in any aircraft, including, but not limited to, Piper Seneca, PA-34-200T, N 

number 2924C, Serial Number 34-7970379.” The ex parte application also sought an 

order voiding all transfers of property to Alfonse Castaldi as trustee of the Ann Jay 

Revocable Trust. 

In a supporting declaration, Ken’s counsel indicated that on February 14, 2013, 

Alfonse had transferred title to two pieces of real property he had held in his individual 

capacity to himself as trustee of the Ann Jay Revocable Trust. 

Alfonse opposed the ex parte application and argued that Ken was required to post 

an undertaking on the granting of an injunction. (Code Civ. Proc., § 529.) 

On April 17, 2013, the court issued several orders. 

First, it issued a temporary restraining order enjoining Theresa and Alfonse from 

transferring any asset before a preliminary injunction hearing set for May 13, 2013. 

Second, the court ordered that any membership interest of Alfonse or Theresa in 

any limited liability company is “hereby charged and may be used to partially satisfy ... 

any judgment by Plaintiff against Alfonse E. Castaldi ... and/or Theresa Castaldi.” The 

charging order claimed that it “constitutes a lien on the assignable membership 

interest(s)” of Alfonse and Theresa. 

Third, the court issued an order “pursuant to Probate Code § 17000 et seq.” 

voiding any transfer of property from Alfonse to himself as trustee of any trust since May 
8. 

16, 2012. The order also provided that Alfonse’s interest in “any such Trust can be 

levied/executed on to satisfy the judgment in favor of plaintiff in this case.”12

Fourth, the court ordered Theresa and Alfonse to show cause at a preliminary 

injunction hearing as to why they should not be restrained and enjoined from transferring 

assets without a court order. 

“Preliminary” Injunction 

On May 14, 2013, the court granted Ken a preliminary injunction against Alfonse 

and Theresa. The injunction prohibited Alfonse and Theresa from transferring assets and 

specifically mentioned the Piper Seneca aircraft. 

May 20, 2013, Judgment and Notices of Appeal Therefrom 

A document captioned “Judgment” was filed on May 20, 2013. The judgment set 

forth $610,500 in compensatory damages plus interest and costs against Alfonse and 

Theresa, jointly and severally. The judgment also indicated that the court “finds by a 

preponderance of the evidence that both defendants Alfonse Castaldi and Theresa 

Castaldi have acted with malice and with oppression toward plaintiff Ken Baker 

warranting an award of punitive damages to be assessed at a separate trial and set forth in 

an Amended Judgment.” 

On July 2, 2013 and August 23, 2013, Alfonse filed notices of appeal from the 

May 20, 2013, judgment in superior court. Another notice of appeal, filed September 13, 

2013, indicated that Executive Air Charter, LLC and Annette Baker, trustee of the Ann 

Jay Trust also appealed from the May 20, 2013 judgment. Neither notice of appeal 

identified any judgment or order other than the May 20, 2013, judgment. 

A final notice of appeal, which also identified orders entered on July 25, 2013 and 

August 13, 2013, was rejected for filing in superior court. This notice of appeal was dated 

 12 Some of the appellants challenged this order by writ petition to this court. 

(Case No. F067165.) We denied the petition on May 9, 2013. 
9. 

January 14, 2014, more than 150 days after the date of the latest order identified therein 

(i.e., August 13, 2013). 

Statement of Decision 

The court’s statement of decision (§ 632) was also filed May 20, 2013. The 

statement of decision reflected that the court had found that Alfonse “personally assisted 

in the removal and conversion of some of Mr. Baker’s items from the locked room at 

2412 Old Highway.” The court also found “the testimony and evidence presented by 

Alfonse Castaldi to not be credible and in many respects untruthful.” The court further 

found that Alfonse’s testimony contradicted his statements in the tape-recorded 

conversation with Akers.13

Plaintiff’s Uniform Fraudulent Transfer Act Lawsuit 

On May 22, 2013, plaintiff filed a separate lawsuit against Alfonse, individually 

and in his alleged capacity as trustee of the Ann Jay Revocable Trust UAD February 14, 

2013 (the “Trust”); the Trust itself; Executive Air Charter, LLC; and Edward J. Castaldi. 

The suit alleged that Alfonse transferred assets to the Trust and to his son, Edward J. 

Castaldi, in violation of the Uniform Fraudulent Transfer Act (UFTA). (See Civ. Code, 

§§ 3439 et seq.) 

Plaintiff’s Ex Parte Application to Add Judgment Debtors 

On July 1, 2013, plaintiff filed an ex parte application seeking to add Executive 

Air Charter, LLC (“Executive Air”) and Alfonse Castaldi as trustee of the Ann Jay 

 13 The statement of decision also details events after the complaint was filed, 

including Alfonse and Theresa’s conduct in response to plaintiff’s counsel’s attempts to 

enforce a temporary restraining order issued shortly after the complaint was filed. It does 

not seem these events were properly at issue in this case. “Matters which occur after the 

date of the complaint ... must be brought into the pending action, if at all, by means of a 

supplemental complaint. [Citation.]” (Earp v. Nobmann (1981) 122 Cal.App.3d 270, 

286–287 disapproved on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, 

219.) 
10. 

Revocable Trust UAD February 14, 2013, as judgment debtors. The application and 

supportive filings were served on attorney Sean McLeod.14

On July 22, 2013, Executive Air, Edward Jay Castaldi and Annette Baker, trustees 

of the Ann Jay Trust filed an opposition to plaintiff’s ex parte application.15 In the 

opposition, the parties asserted that plaintiff failed to properly notice the ex parte hearing 

and that there was no adequate showing to support their addition as judgment debtors. 

All three parties were represented by attorney Cyril L. Lawrence. 

After a hearing on July 25, 2013, the court granted plaintiff’s request and ordered 

Executive Air; and Edward J. Castaldi and Annette Baker, as trustees “of The Ann Jay 

Revocable (or Irrevocable) Trust” added as defendants and judgment debtors, pursuant to 

Code of Civil Procedure section 187, nunc pro tunc to the date of judgment. The order 

was filed August 5, 2013.16

Plaintiff’s July 22, 2013, Ex Parte Application 

On July 22, 2013, plaintiff filed an ex parte request for orders regarding his 

attempts to execute on the Piper Aircraft. The court granted the requests, in part, on July 

23, 2013. 

Punitive Damages Phase 

The punitive damages phase began on August 6, 2013. The reporter’s transcript of 

the punitive damages phase is not part of the appellate record. 

 14 There is no indication in the record that Mr. McLeod had appeared as counsel of 

record for Executive Air prior to Baker’s July 1, 2013, filings. Indeed, there is no 

indication that either Executive Air or Alfonse in his capacity as a trustee had appeared in 

the case at all. 

15 The opposition was titled “Special Appearances by Executive Air Charter, LLC 

and Edward J. Castaldi and Annette Baker Co-Trustees of the Ann Jay Trust Opposition 

to Inclusion as Third Party Debtors [CCP § 187].” 

16 Some of the appellants challenged this order by writ petition to this court. 

(Case No. F067731.) We summarily denied the petition on August 15, 2013. 
11. 

In an “Amended Judgment” dated August 13, 2013, the court awarded punitive 

damages against Alfonse in the amount of $600,000. Alfonse filed a motion for new trial 

on the issue of punitive damages.17

Plaintiff’s Ex Parte Application filed November 13, 2013 

On November 13, 2013, plaintiff filed an ex parte application requesting that the 

court order Alfonse; Annette Baker, Trustee of the Ann Jay Trust; and Edward J. Castaldi 

as trustee of the Ann Jay Trust to deposit funds with the court. The application was 

purportedly made “without notice to opposing counsel or their clients” because 

“defendants have evidenced, and continue to evidence, that they will violate the Orders of 

this Court and will attempt to conceal assets.” 

The court granted the application and ordered the following parties to deposit the 

following amounts with the court clerk: Alfonse was to deposit $166,660.65; Edward J. 

Castaldi as trustee of The Ann Jay Trust was to deposit $48,500; and Annette Baker, 

trustee of The Ann Jay Trust was to deposit $30,000. The court ordered defendants to 

appear in court on December 4, 2013, to show cause why they should not be adjudged in 

contempt of court for disobeying the May 2013 preliminary injunction. The court’s order 

directed that “Plaintiff shall make reasonable effort to serve this Order and all supporting 

documentation on each of the defendants.” The order further provided that if “a process 

server is unable to make personal service on any of these defendants, the posting at the 

above locations of all required documents, with this Order clearly visible, at least five 

calendar days before the hearing, shall be sufficient notice.” 

Without citation to the record, appellants’ brief claims: “At a subsequent hearing 

on contempt, both Castaldi and the trustee were found guilty of direct and indirect 

 17 Alfonse’s brief indicates, without citation to the record, that the motion was 

denied. 
12. 

contempt, and are now in custody without ever receiving personal service of the order to 

show cause.” 

DISCUSSION 

I. The Appeal Must be Dismissed 

a. The Appealability of a Judgment is Jurisdictional 

As a preliminary matter we must determine whether the May 20, 2013, 

“judgment” is indeed a final, appealable judgment. Neither party raised this issue in their 

initial briefs. However, “[t]he appealability of the judgment or order is jurisdictional and 

an attempt to appeal from a nonappealable judgment or order will ordinarily be 

dismissed. [Citations.]” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 

297.) “It is the duty of an Appellate Court on its own motion to dismiss an appeal from 

an order which is not appealable. [Citation.]” (Chapman v. Tarentola, supra, 187 

Cal.App.2d at p. 25.) We afforded the parties the opportunity to file supplemental briefs 

regarding the appealability of the May 20, 2013, “judgment.”18

“ ‘In civil matters, our appellate jurisdiction is limited to the judgments and orders 

described in Code of Civil Procedure section 904.1. Only final judgments are appealable 

under that statute ....’[Citations.]” (Papadakis v. Zelis (1992) 8 Cal.App.4th 1146, 1149, 

italics in original.) 

b. The May 20, 2013, “Judgment” was Interlocutory and Not Appealable 

A judgment “is the final determination of the rights of the parties in an action or 

proceeding.” (Code Civ. Proc., § 577.) Generally, a judgment is final “ ‘where no issue 

is left for future consideration except the fact of compliance or noncompliance with’ ” the 

order. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698 (Griset).) 

“ ‘[B]ut where anything further in the nature of judicial action on the part of the court is 

 18 In his supplemental brief, plaintiff now contends the May 20, 2013, “judgment” 

was interlocutory and not appealable. 
13. 

essential to a final determination of the rights of the parties, the decree is interlocutory.’ 

[Citations.]” (Id. at pp. 698–699.) 

The present appeal is from a single purported “judgment”: The May 20, 2013, 

“judgment.” That document states that judgment is made against defendants, jointly and 

severally, and sets forth $610,500 in compensatory damages plus interest and costs. 

However, the document also states that the court finds plaintiff is entitled to punitive 

damages in an amount “to be assessed at a separate trial.” 

Under the general test in Griset, it seems quite clear that the May 20, 2013, 

“judgment” was interlocutory. While a final judgment leaves no issue left for future 

consideration except compliance (Griset, supra, 25 Cal.4th at p. 698), the May 20, 2013, 

“judgment” did leave open an issue for future consideration: The amount of punitive 

damages. Determining the amount of punitive damages at a court trial seems quite 

clearly to be a type of “ ‘judicial action on the part of the court’ ” that is “ ‘essential to a 

final determination of the rights of the parties ....’ ” (Ibid.) As a result, the May 20, 

2013, “judgment” was interlocutory.19

c. Appellants’ Contentions are Unavailing 

Appellants argue that if the May 20, 2013, “judgment” was not final, “then 

respondent should not have been able to enforce that judgment until a final order issued.” 

That may well be. But even if we accept appellants’ contention that the subsequent 

enforcement orders were erroneous, that would not confer appealability on the May 20, 

 19 The fact that appellants attempted to file a third notice of appeal identifying the 

August 2013 “Amended Judgment” suggests they may have been aware of the 

deficiencies in the two prior notices of appeal. 
14. 

2013, “judgment.” The merits of an appeal cannot confer jurisdiction where it is 

lacking.20 (In re Frederick E.H. (1985) 169 Cal.App.3d 344, 348.) 

 20 We do note that we are troubled by the order setting aside all transfers of 

property from Alfonse to “any Trust” after May 16, 2012, and the order adding judgment 

debtors. 

The order pertaining to trust transfers was purportedly made “pursuant to Probate 

Code § 17000 et seq.” Yet, respondent identifies no specific authorizing language within 

the broad swath of statutory law that is “Probate Code § 17000 et seq.” Even assuming 

the Probate Code’s provisions relating to “proceedings concerning trusts” (Div. 9, Part 5, 

Ch.3 of the Probate Code) did provide otherwise relevant statutory authority, that 

authority would presumably only exist in a proceeding commenced by the filing a 

probate petition. (Prob. Code, § 17201.) 

Respondent contends that the probate order was appropriate “because there was no 

consideration paid for the transfer of Mr. Castaldi’s 50% interest in the San Bernardino 

County property to his son J.E. Castaldi, which was done after the court announced its 

compensatory damages decision.” (Some capitalization removed.) Respondent 

concludes the transfer was “patently fraudulent and subject to being set aside.” These 

contentions miss the point. Respondent may be entirely correct that Alfonse’s transfer of 

real property was voidable as a fraudulent transfer. (See Civ. Code, § 3439.04, subd. (a).) 

And, if he can prove as much at a trial, the UFTA provides for several remedies including 

avoidance of the transfer. (See Civ. Code, § 3439.07, subd. (a)(1).) But that remedy is 

statutorily authorized “[i]n an action for relief against a transfer or obligation under” the 

UFTA. (Civ. Code, § 3439.07, subd. (a), italics added.) A claim under the UFTA is a 

“cause of action” (Civ. Code, § 3439.09) not a law and motion matter that can be 

appended to a preexisting action on a different cause of action that has already been tried. 

(Cf. Killian v. Millard (1991) 228 Cal.App.3d 1601, 1606–1607 [court may not issue law 

and motion order voiding contract between a party and a stranger to the action on public 

policy grounds, as such an issue must go to trial]; Donald J. v. Evna M. (1978) 81 

Cal.App.3d 929, 933–934 [“A motion is distinguishable from the more formal application 

for relief by petition or complaint.... It is not consonant with regular procedure to raise 

in a motion wholly distinct and independent matters which generally should be the 

subject of a formal petition or complaint”].) Presumably that is why respondent filed a 

separate UFTA lawsuit against Alfonse shortly after the court’s May 20, 2013, 

“judgment.” Neither the UFTA nor the Probate Code authorized respondent to forego the 

inconvenience of a trial on his UFTA complaint by simply filing a posttrial motion in the 

conversion action. 

The order adding some of the appellants as judgment debtors is likewise troubling. 

“The alter ego doctrine traditionally is applied to pierce the corporate veil so that a 
15. 

Appellants argue the May 20, 2013, “judgment” “implicitly” refers to itself as the 

final judgment. But “[a] paper filed in an action does not become a judgment merely 

because it is so entitled; it is a judgment only if it satisfies the criteria of a judgment....” 

(City of Shasta Lake v. County of Shasta (1999) 75 Cal.App.4th 1, 10; cf. Kurwa v. 

Kislinger (2013) 57 Cal.4th 1097, 1107 [“allowing the parties and trial court to designate 

a substantively interlocutory judgment as final and appealable – would be inconsistent 

with the one final judgment rule”].) 21

 

shareholder may be held liable for the debts or conduct of the corporation.” (Postal 

Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1518.) In this case, the 

trial court did something different: It pierced the “corporate veil” in reverse to hold 

Executive Air Charter, LLC, liable for the debts or conduct of its member, Alfonse. This 

is called “ ‘third party’ reverse piercing” (id. at p. 1518) and has been rejected in 

California. (See generally id. at p. 1510.) 

“[T]he issue addressed by outside reverse piercing is the shareholder’s transfer of 

personal assets to the corporation to shield the assets from collection by a creditor of the 

shareholder. In other words, outside reverse piercing seeks to protect the judgment 

creditor from the shareholder’s fraudulent transfer of assets to the corporation. But ... 

conversion and fraudulent conveyance already afford judgment creditors protection in 

that situation. Outside reverse piercing, accomplished by the expedient means of a 

postjudgment motion, is an unacceptable shortcut to pursue those remedies.” (Postal 

Instant Press, Inc. v. Kaswa Corp., supra, 162 Cal. App.4th at p. 1523.) 

21 “[I]t is the substance and effect of an adjudication that is determinative, not the 

form of the decree. [Citation.]” (Otay River Constructors v. San Diego Expressway

(2008) 158 Cal.App.4th 796, 801.) Even if it were determined that appellants were 

reasonably lured into thinking the May 20, 2013, “judgment” was appealable due to an 

error on the part of the trial court, it would not alter our conclusion. The “appealability of 

the judgment or order is jurisdictional” (Marsh v. Mountain Zephyr, Inc., supra, 43 

Cal.App.4th at p. 297), and jurisdictional defects in the notice of appeal cannot be 

excused on equitable grounds. (See In re Marriage of Eben-King & King (2000) 80 

Cal.App.4th 92, 116.) 

By analogy, consider the deadlines for filing a notice of appeal. (Cal Rules of 

Court, rules 8.104, 8.108(b).) Those deadlines are jurisdictional and will bar an appeal 

even where the trial court has arguably led a litigant astray. 

“Weznoski v. Central Banking System, Inc. (1987) 43 Cal.3d 539 [] ... 

demonstrates the rule’s rigidity. There the trial court allowed a second motion for new 
16. 

Appellants also cite the “death knell” doctrine but fail to explain why it would 

apply here. “The death knell doctrine permits the appellate court to review an order 

denying a motion to certify a class when it is unlikely the case will proceed as an 

individual action. [Citation.]” (Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 

1098.) The doctrine is “ ‘a tightly defined and narrow concept’ ” (In re Baycol Cases I 

and II (2011) 51 Cal.4th 751, 760), and we strongly doubt it has any application outside 

the class action context. Regardless, it is undisputed that the doctrine does not apply 

unless there is an order that “amounts to a de facto final judgment for absent 

plaintiffs ....” (Id. at p. 759.) The May 20, 2013, “judgment” is not such an order. 

Finally, appellants ask that we find any objections to the appealability of the May 

20, 2013, “judgment” were “waived.” Jurisdiction cannot be conferred upon an appellate 

court by waiver. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1216.) 

d. Liberal Construction of Appellants’ Notices of Appeal does not Save the 

Invalid Appeal 

In arguing that we may review the judgment debtor and probate orders, appellants 

cite the rule that a “notice of appeal shall be liberally construed in favor of its sufficiency 

[citation] ....” (Vibert v. Berger (1966) 64 Cal.2d 65, 67.) 

Appellants argue the rule of liberal construction applies in this case, because their 

notices of appeal were, at worst, “premature.” They submit any flaw in the notices of 

appeal may be disregarded under Groves v. Peterson (2002) 100 Cal.App.4th 659, 666, 

fn. 2 (Groves) and Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1263, 

 

trial after denying the first. The Supreme Court held the trial court lost jurisdiction to do 

anything in the case after ruling on the first motion, making proceedings on the second a 

nullity. The time for appeal ran from the denial of the first motion, and the appellant was 

not entitled to relief from a tardy filing even if the trial court erroneously led the parties 

to believe it could rule on the second motion. [Citation.]” (Freiberg v. City of Mission 

Viejo (1995) 33 Cal.App.4th 1484, 1489.) 
17. 

fn. 3 (Bardin). In Groves and Bardin, the appellants were attempting to challenge the 

trial court’s sustaining of a demurrer. However, the notices of appeal incorrectly 

identified the order sustaining demurrer rather than correctly identifying the judgment 

dismissing the complaint pursuant to the sustained demurrer. In each case, the Court of 

Appeal excused the flaw. (Bardin, supra, 136 Cal.App.4th at p. 1263, fn. 3; Groves, 

supra, 100 Cal.App.4th at p. 666, fn 2.)

We need not decide whether we agree with Bardin and Groves, because they are 

distinguishable. The notice[s] filed in the present case do not present “ ‘a mere 

misdescription’ of the judgment” (Glassco v. El Sereno Country Club, Inc. (1932) 217 

Cal. 90, 92), but instead clearly and correctly identify a single order or judgment: The 

May 20, 2013, “judgment.” Appellants would have us construe the notices of appeal, 

which identify one order, as a premature appeal from an entirely different order entered 

months later, which awarded $600,000 in punitive damages for the first time. But it is 

well “beyond liberal construction” to view an appeal from one order as an appeal from a 

“further and different order.” (Russell v. Foglio (2008) 160 Cal.App.4th 653, 661.) 

“Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal 

will not be considered adequate if it completely omits any reference to the judgment 

being appealed.” (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 

1045.) “The rule favoring appealability in cases of ambiguity cannot apply where there is 

a clear intention to appeal from only ... one of two separate appealable judgments or 

orders. [Citation.]” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 

220 Cal.App.3d 35, 47.) 

e. Our Conclusion is Consistent with Analogous Precedent 

Our conclusion that the May 20, 2013, “judgment’ is not appealable is consistent 

with our decision in Plaza Tulare v. Tradewell Stores, Inc. (1989) 207 Cal.App.3d 522 

(Plaza Tulare). That case involved a dispute over the interpretation of a written lease. 

(Id. at p. 523.) The trial was bifurcated (Code Civ. Proc., § 598) with the issue of lease 
18. 

interpretation to be tried separately from damages. (Plaza Tulare, supra, at p. 523.) 

Respondents prevailed at the first trial regarding lease interpretation. (Ibid.) Appellants 

purported to appeal from the order adjudicating the issues presented at the first trial. 

(Ibid.) 

We noted that “[a] positive verdict of liability in [a bifurcated] trial merely has the 

same status as a partial verdict or finding. [Citation.]” (Plaza Tulare, supra, 207 

Cal.App.3d at p. 524.) Consequently, we held that the adjudication of the issues in the 

first trial was an “interlocutory judgment” and could not be appealed. (Ibid.) As a result, 

we dismissed the appeal. (Id. at p. 525.)22

 Appellants seek to distinguish Plaza Tulare, arguing that the present case did not 

involve a “stipulated bifurcation.” We see no legal significance to this distinction. 

Appealability of an adjudication turns on its “substance and effect.” (Otay River 

Constructors v. San Diego Expressway, supra, 158 Cal.App.4th at p. 801.) The 

procedural history leading up to the adjudication is relevant insofar as it informs this 

inquiry. But whether the “bifurcation” in this case was stipulated or not is irrelevant 

because it does not change the fact that the May 20, 2013, judgment left unresolved an 

issue essential to the final determination of the rights of the parties. 

The appeal must be dismissed. (Cf. Plaza Tulare, supra, 207 Cal.App.3d at 

pp. 524–525.) 

 22 In this case, liability, compensatory damages, and entitlement to punitive 

damages were tried in the first phase of trial and the amount of punitive damages was 

tried in the second phase, whereas in Plaza Tulare, liability was tried first and all 

damages were scheduled to be tried second. (Plaza Tulare, supra, 207 Cal.App.3d at 

p. 523.) This difference is inconsequential because whether the damages are 

compensatory or punitive, their calculation is an issue essential “the final determination 

of the rights of the parties” (§ 577). Consequently, any order that leaves the completion 

of trial on compensatory or punitive damages for the future is not a final judgment. 
19. 

CONCLUSION 

We understand the result in this case may seem harsh, as appellants are prevented 

from obtaining review of several unusual orders now and possibly ever.23 However, 

“[t]his court is without power to bestow jurisdiction on itself ....” (Mid-Wilshire 

Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1455.) “Appellate jurisdiction is 

solely within the province of our Legislature” (ibid.), and we are not at liberty to modify 

the standards for appealability. (In re Baycol Cases I and II, supra, 51 Cal.4th at p. 759, 

fn. 5; see also Kurwa v. Kislinger, supra, 57 Cal.4th at p. 1107.) 

DISPOSITION 

 Appellants’ request for sanctions under California Rules of Court, rule 

8.882(c)(1)(B) is denied. The appeal is dismissed. The parties shall bear their own costs. 

 _____________________ 

 Poochigian, J. 

WE CONCUR: 

______________________ 

Gomes, Acting P.J. 

______________________ 

Franson, J.

 23 Though we may not review the orders in this appeal, appellants are not 

necessarily without remedy. If appellants are correct that the various orders are void on 

their face, the orders “ ‘may be set aside on motion, at any time ... by the court which ... 

made the order[s].’ [Citations.]” (Plaza Hollister Ltd. Partnership v. County of San 

Benito (1999) 72 Cal.App.4th 1, 19.) And, in some circumstances, a trial court’s order 

denying such a motion is appealable. (See Carlson v. Eassa (1997) 54 Cal.App.4th 684, 

691.) 
Filed 3/16/15 

KEN R. BAKER, 

 Plaintiff and Respondent, 

 v. 

ALFONSE CASTALDI et al., 

 Defendants and Appellants. 

F067687 

(Mariposa Sup. Ct. No. 10161) 

ORDER 

BY THE COURT: 

It appearing that part of the nonpublished opinion filed in the above entitled matter on 

February 18, 2015, meets the standards for publication specified in California Rules of Court, 

rule 8.1105(c), IT IS ORDERED that the opinion be certified for publication in the Official 

Reports with the following exceptions: 

(1) Omit the sections entitled “PRETRIAL PROCEEDINGS,” “FIRST PHASE TRIAL 

EVIDENCE,” and “PROCEEDINGS AFTER THE FIRST PHASE OF TRIAL” and 

all subsections and footnotes contained therein. This omission spans from the third 

line of page three to the second line of page 12 of the nonpublished opinion; and 

(2) Omit footnote 20. 

 ______________________________ 

 POOCHIGIAN, J. 

WE CONCUR: 

____________________________________ 

GOMES, Acting P.J. 

____________________________________ 

FRANSON, J.