Mahjobi v. Hang

Filed 5/14/07 Mahjobi v. Hang CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Alice E. Altoon, Judge. Affirmed.

Jamie Mahjobi, in pro. per., for Plaintiff and Appellant.

Ford, Walker, Haggerty & Behar and Maxine J. Lebowitz for William M. Hang, Deborah Hang, Ford, Walker, Haggerty & Behar and Thomas L. Gourde, Defendants and Respondents.

__________________________

In Sedaghat v. Gourde (Dec. 15, 2003, B161734) (nonpub. opn.) this court affirmed the trial courts order granting a special motion to strike filed by Thomas L. Gourde and Gourdes law firm, Ford, Walker, Haggerty & Behar, pursuant to Code of Civil Procedure section 425.16, and dismissing various tort claims asserted by Allen Sedaghat and Jamie Mahjobi against Gourde and the law firm in connection with their representation of Dr. William Hang in a dental malpractice action. We remanded the matter to the trial court to determine the amount of attorney fees and costs on appeal to be awarded to Gourde and the firm.

On remand the trial court granted Gourde and the law firms motion for attorney fees, and awarded $6,972.50 in fees and costs. Sedaghat and Mahjobi again appealed, and we affirmed the trial courts order. (Sedaghat v. Hang (May 9, 2005, B174510) [nonpub. opn.].)

After the California Supreme Court denied Sedaghat and Mahjobis petition for review, Mahjobi filed a motion to set aside and vacate judgment in the trial court on the ground the court lacked subject matter jurisdiction because the action had been brought by a conservator (Mahjobi) on behalf of the conservatee (her son, Sedaghat) without counsel. Mahjobi also argued the attorney fees and costs awarded Gourde and the law firm pursuant to Code of Civil procedure section 425.16, subdivision (c), were based on perjured testimony and violated due process. Mahjobi now appeals from the trial courts denial of her motion to vacate judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Sedaghat and Mahjobi sued Dr. Hang and his wife following Dr. Hangs dental treatment of Sedaghat. The original complaint was signed by Mahjobi on her own behalf as a plaintiff in pro. per. and on behalf of Sedaghat as his conservator. In a first amended complaint Sedaghat and Mahjobi also named Gourde, the attorney retained to represent the Hangs, and his law firm alleging causes of action for fraud and deceit, intentional infliction of emotional distress, misuse of confidential relationship, conspiracy to interfere with civil rights and conspiracy to obstruct justice. According to Sedaghat and Mahjobis allegations, they contracted with the Hangs for orthodontic services to correct a condition that had worsened through Sedaghats treatment by another dentist, Dr. Sid Molayem. Dr. Hangs treatment caused Sedaghats condition to deteriorate even further. Gourde and the law firm undertook the representation of the Hangs in this lawsuit while contemporaneously representing Dr. Molayem in a separate malpractice action brought by Sedaghat. Sedaghat and Mahjobi contended Gourde and the law firm obtained false information from the Hangs to defend Dr. Molayem and conspired with the Hangs so that Dr. Hang would perform excessive and wasteful procedures on Sedaghat to conceal Dr. Molayems malpractice.

In a demurrer to the first amended complaint counsel for the Hangs, Gourde and the law firm argued, among other points, Mahjobi lacked standing to sue in her own right because she was not the recipient of any of the dental services at issue in the action and had not personally sustained any damages. In addition, the defendants argued, because Mahjobi was not an attorney, in attempting to represent her son Sedaghat as his legal conservator,[1]Mahjobi was practicing law without a license. The trial court overruled this portion of the demurrer, concluding there is no authority to support [defendants] position that a conservator of the estate of a person has no authority to prosecute a lawsuit on the conservatees behalf.

Together with their demurrer, Gourde and the law firm (but not the Hangs) also filed a special motion to strike the first amended complaint under Code of Civil Procedure section 425.16, contending the allegations against them in the first amended complaint related solely to their defense of the two dentists in lawsuits involving Sedaghats treatment and, therefore, arose from the exercise of their rights to petition and free speech. They also argued Sedaghat and Mahjobi could not demonstrate a probability of prevailing because the litigation privilege of Civil Code section 47, subdivision (b), barred their claims. The trial court granted the motion and ordered Sedaghat and Mahjobi to pay $713 in attorney fees and costs. We affirmed, held Gourde and the law firm were entitled to their attorney fees and costs on appeal and remanded the matter for the trial court to determine the additional amount in fees and costs to be awarded. (Sedaghat v. Gourde (Dec. 15, 2003, B161734) [nonpub. opn.].)

As she had in the trial court, in the initial appeal in this matter Mahjobi appeared in propria persona for herself individually and as conservator for Sedaghat. Following our remand for further determination of the attorney fees and costs to which Gourde and the law firm were entitled, Mahjobi continued to appear on her own behalf and as conservator for Sedaghat without legal counsel.

The second notice of appeal in this matter, following the trial courts award of additional attorney fees and costs to Gourde and the law firm, was filed by Mahjobi in her dual capacities on April 14, 2004. By that time Division Four of this court, in an order entered in the appeal by Sedaghat from an adverse ruling in his separate lawsuit against Dr. Molayem, had held, [A] conservator who is not licensed to practice law cannot appear in propria persona on behalf of the conservatee. [Citations.] (Sedaghat v. Molayem (Feb. 11, 2004, B162185) [nonpub. order].) Accordingly, Division Four ordered the briefs filed by Mahjobi as conservator for Sedaghat stricken and directed dismissal of the appeal within 30 days unless a licensed attorney formally substitutes in as counsel of record for appellant and represents he or she will file an opening brief within 30 days. (Ibid.)[2] Neither Mahjobi nor counsel for Gourde and the law firm, who also represented Dr. Molayem in the appeal pending in Division Four, advised this court of Division Fours order; and Gourde and the law firm did not move to strike Mahjobis briefs or otherwise object to Mahjobi continuing to appear for both herself and her son as his conservator without legal counsel.

After we had affirmed the trial courts order on remand awarding attorney fees and costs for the initial appeal to Gourde and the law firm (Sedaghat v. Hang (May 9, 2005, B174510) [nonpub. opn.]) and the California Supreme Court had denied a petition for review, Mahjobi moved in the trial court to set aside and vacate the judgment, as well as all prior orders in the case, on the ground the court lacked subject matter jurisdiction because the action had been improperly brought by her as a conservator on behalf of her conservatee Sedaghat without counsel. Mahjobi also argued the fees and costs awarded Gourde and the law firm pursuant to the directions in our original decision were based on perjured testimony and violated due process. The motion was filed by Mahjobi on her own behalf in propria persona and not in her capacity as conservator or otherwise on behalf of Sedaghat.

The trial court denied the motion on December 2, 2005 after receiving written opposition and hearing oral argument: First, it appears that a Judgment has been entered in this case from which an appeal was taken, depriving the Court of jurisdiction to act. Second, even if no appeal from the Judgment had been taken, the Motion is denied on the merits because no cause for vacating the Judgment has been demonstrated by Moving Party. Mahjobi filed a timely notice of appeal, which refers in the singular to Plaintiff and to plaintiffs motion to vacate judgment and all other orders as null & void, but is signed by her as Jamie Mahjobi/Conservator for Allen Sedaghat.

DISCUSSION

1. A Conservator Who Is Unlicensed To Practice Law Cannot Appear In Propria Persona on Behalf of the Conservatee

Mahjobi correctly asserts the general principle of law prohibiting non-lawyers from appearing in court in a representative capacity on behalf of other individuals: [P]ersons may represent their own interests in legal proceedings but may not practice law [for another] in this State unless [they are] active member[s] of the state bar. [Citations.] . . . In line with that prohibition, courts have held, among other examples, that a non-attorney mother cannot represent her minor son in propria persona in a paternity action [citation], a juvenile cannot have his nonlawyer father assist in his defense or represent him [citation], and a nonlawyer representing his mothers estate as conservator and executor cannot appear in propria persona on behalf of the estate. [Citation.] (Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830-1831; accord, City of Downey v. Johnson (1968) 263 Cal.App.2d 775, 780 [We hold that Willie Johnson neither qua conservator nor qua executor was entitled to appear in propria persona and conduct the trial proceedings below or to prosecute the appeal before this court. . . . [] . . . [] Willie Johnson as a non-lawyer appearing in his representative capacity in propria persona did not have the right to appear and defend this action. (Fn. omitted.)].)

In Hansen v. Hansen (2003) 114 Cal.App.4th 618, 621, Justice Fybel, writing for Division Three of the Fourth District Court of Appeal, recently confirmed this principle, holding [a] person who is unlicensed to practice law and who represents a decedents estate cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings. In that case Patricia Hansen, claiming to be the personal representative of the estate of her mother, Betty J. Hansen, filed a complaint against her sister Christine Hansen alleging breach of contract and various tort causes of action. Patricia appeared on behalf of the estate in propria persona. The trial court sustained a demurrer to the second amended complaint without leave to amend, apparently on the ground the complaint failed to state a claim and the various causes of action alleged were time-barred. (Id. at p. 620.) Unlike the present case, counsel was retained to represent Bettys estate in its appeal from the judgment. (Ibid.) Finding that the trial court should have stricken the complaint filed in propria persona by Patricia in her representative capacity, Justice Fybel concluded, the proper disposition is to reverse [the judgment] and remand with directions to strike the Complaint without prejudice. (Id. at p. 622.)

2. Mahjobi Is Not Entitled To Set Aside the Judgment Entered Against Sedaghat

Relying on Hansen v. Hansen, supra, 114 Cal.App.4th at page 621, Mahjobi argues the judgment and all other orders made by the trial court in this case are void because she has appeared throughout the proceedings on behalf of her son as his conservator in propria persona. Had this argument been properly raised in 2003 during the first appeal (B161734) or in 2004-2005 during the second appeal (B174510) (that is, asserted on behalf of Mahjobi as conservator for Sedaghat by an active member of the State Bar appearing as her appellate counsel),[3]we might well have agreed and reversed the judgment or fee order and remanded the case with directions to strike Mahjobis complaint on behalf of her son. However, for several independent reasons Mahjobi, appearing individually on her own behalf in the appeal now before us, is not entitled to the relief she requests.

First, a motion for relief from judgment usually must be filed within six months from entry of judgment. (Code Civ. Proc., 473, subd. (b).) The original order dismissing the complaint as to Gourde and the law firm was entered in July 2002, and the order awarding attorney fees and costs following the initial appeal in March 2004. Both orders had been affirmed on appeal and were final well before the motion to set aside was filed in November 2005. Nonetheless, a void order can be collaterally attacked at any time by a motion under Code of Civil Procedure section 473, subdivision (d). The question remains, however, whether an order dismissing on the merits an action brought by a representative plaintiff improperly proceeding in propria persona is, in fact, void.

The Court of Appeal in City of Downey v. Johnson, supra, 263 Cal.App.2d at pages 782 to 783 held the judgment entered in that case was in excess of jurisdiction and, therefore, invalid, not that the judgment was void. Similarly, in Hansen v. Hansen, supra, 114 Cal.App.4th at page 622, the court held the judgment should be reversed because it is invalid. This distinction between an act by the court in excess of jurisdiction, such as occurred in permitting Mahjobi to appear in propria persona notwithstanding her representative capacity, and an order in an action the court has no actual power to decide, is well-established: If the trial court has subject matter jurisdiction to hear or determine a case and personal jurisdiction over the parties, an order or judgment rendered in excess of the courts jurisdiction, such as by its failure to follow fundamental procedures prescribed by statute, is not void on its face (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164; In re Andres G. (1998) 64 Cal.App.4th 476, 482-483) and may not be collaterally attacked absent unusual circumstances or compelling policy considerations. (In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 988; see Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196 [in the absence of subject matter jurisdiction, a trial court has no power to hear or determine [the] case. [Citation.] And any judgment or order rendered by a court lacking subject matter jurisdiction is void on its face . . . . [Citation.]].) Here, notwithstanding Mahjobis improper appearance, the trial court had subject matter jurisdiction over the dental malpractice action as both originally filed and subsequently amended to assert tort claims against the dentists lawyers and personal jurisdiction over Mahjobi, who filed the lawsuit not only on behalf of Sedaghat but on her own behalf as well. (See City of Downey, at p. 782 [holding trial court had acquired personal jurisdiction over conservatee/decedent and the subject matter of the proceedings against her].) Accordingly, Mahjobis request to set aside the judgment was untimely.

Second, as discussed, the lawsuit in this action was filed by Mahjobi in her individual capacity, alleging she personally had been damaged, as well as in her capacity as legal conservator for her son, Sedaghat, who had been Dr. Hangs patient. The judgment and orders at issue in the motion to vacate and set aside are directed against Mahjobi both individually and in her capacity as conservator. Yet, that motion was filed, as is this appeal, only by Mahjobi on her own behalf. Indeed, since she is still not represented by counsel, Mahjobi concedes she is not entitled to assert any claim regarding the invalidity of the judgment as conservator on behalf of Sedaghat. However, whatever procedural defects may have resulted from Mahjobis unlawful in propria persona appearance as conservator, she was entitled to appear and represent her own interests without benefit of counsel. (Drake v. Superior Court, supra, 21 Cal.App.4th at p. 1830.) The judgment and orders Mahjobi challenges are valid as to her, and she has no standing as an individual (as opposed to as conservator) to assert any violation of Sedaghats rights. (See, e.g., Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, 877 [general rule is that litigants seeking relief must assert their own legal rights rather than rely on the rights or interests of third parties]; Independent Roofing Contractors v. California Apprenticeship Council (2003) 114 Cal.App.4th 1330, 1341 [[A] plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties].)

Finally, Mahjobis challenge to the judgment and orders entered in this action was properly rejected under principles of judicial estoppel. (See, e.g., Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183 [judicial estoppel should apply when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake].) Unlike the situation in Hansen v. Hansen, supra, 114 Cal.App.4th 618, in which Christine Hansen did not object to her sister Patricias representation of their mothers estate in propria persona (id. at p. 622), here defendants demurrered to Mahjobis complaint arguing, in part, she could not properly pursue tort claims as legal conservator for Sedaghat without counsel. Having persuaded the trial court to overrule that portion of the demurrer and to permit her to continue in propria persona on behalf of Sedaghat, it would countenance an unacceptable trifling with the courts to permit Mahjobi to challenge the courts subsequent orders on the ground the court should not have allowed her to do so. (See In re Griffin (1967) 67 Cal.2d 343, 347 [When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the courts power as defined by statute or decisional rule may be estopped to complain of the ensuing action [as being] in excess of jurisdiction]; Gee v. American Realty & Construction Inc. (2002) 99 Cal.App.4th 1412, 1414; see generally In re Marriage of Jackson, supra, 136 Cal.App.4th at pp. 994-996.)

3. Mahjobi Fails To Present Any Other Ground for Vacating the Judgment

Mahjobis remaining arguments concerning the purported invalidity of the judgment and orders in this case, although phrased in terms of violations of her right to due process, are simply an attempt to relitigate the propriety of the trial courts award of attorney fees and costs to Gourde and the law firm.[4]We affirmed that order in Sedaghat v. Hang (May 9, 2005, B174510) (nonpub. opn.), and Mahjobi presents no proper basis for us to reconsider that decision at this late date.

DISPOSITION

The order denying the motion to vacate judgment is affirmed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

WOODS, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

[1] The demurrer attached as an exhibit a November 16, 2001 order from the Los Angeles Superior Court (case No. BP068877) appointing Mahjobi conservator of the estate of Allen Sedaghat.

[2] New counsel did substitute in for Sedaghat, and Division Four ultimately affirmed the trial courts dismissal of Sedaghats action against Dr. Molayem with prejudice based on Sedaghats abandonment of the case during trial. According to Division Fours opinion, during cross-examination of Sedaghat as part of his case-in-chief, Sedaghat said he was ill and requested an adjournment for the day. Thereafter, Sedaghat did not return for the next three days of trial and failed to offer a valid explanation for his absences. (Sedaghat v. Molayem (Sept. 30, 2004, B162185) [nonpub. opn.].)

[3] Mahjobi first asserted it was error for the trial court to hear this case because she had impermissibly appeared as conservator for Sedaghat in propria persona in June 2005 in her petition for rehearing (filed individually, and not on behalf of Sedaghat) following our May 9, 2005 decision in Sedaghat v. Hang (B174510) (nonpub. opn.).

[4] Mahjobis request for judicial notice of material related to this argument is denied.