Parisi v. Lotchk
Filed 1/10/13
Parisi v. Lotchk CA1/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION FOUR
WILLIAM PARISI,
Plaintiff and
Respondent,
v.
LOTCHK CORPORATION et al.,
Defendants and
Appellants.
A135121
(San Francisco City & County
Super. Ct. No. PTR-05-286962)
Appellants Lotchk Corporation
(Lotchk) and Great Sunset Ventures, Inc. (GSV) attempt to appeal from an
interlocutory probate order denying their motion
to dismiss the petition brought by respondent William Parisi on behalf of
conservatee Lucia Fiorani. Because the
order is not appealable and there are no unusual circumstances present that
would spur us to treat the appeal as a writ of mandate, we dismiss the intended
appeal. As well, we grant Parisi’s
motion to impose sanctions on appeal.
Parisi is the conservator for Lucia
Fiorani, the sole beneficiary of the Fiorani Living Trust. Fiorani is a disabled single woman who was 65
years old at the time the petition was filed.
The trust assets include a two-unit building on Filbert Street in San
Francisco, as well as bank and investment accounts.
On February 1, 2005, Fiorani
petitioned the probate court to compel Ronald Mazzaferro, the trustee at the
time, to account. The court ordered him
to file an accounting. Counsel attempted
to serve Mazzaferro, and ultimately in 2006 an order for warrant of attachment
for contempt was issued against him.
Thereafter Fiorani petitioned to remove Mazzaferro as trustee and
appoint a successor trustee; relief was granted in December 2009.
Edith Mazzaferri, as successor
trustee, filed a civil complaint
against Mazzaferro, appellant corporations and others in June 2010. Among numerous causes of action she alleged
duty; intentional and negligent misrepresentation; conversion; unjust
enrichment/restitution; quiet title, and conveyance of property to trust
under Probate Code section 850; and imposition of constructive trust.
In January 2012, Parisi lodged a
petition in probate court on behalf of conservatee and trust beneficiary
Fiorani. Therein Parisi accused
appellants, Mazzaferro and five other individuals of financial abuse of a
dependent adult; fraud, and constructive fraud; sought return of property under
Probate Code section 850; and asked for a judicial determination of fiduciary
abuse under Probate Code section 259.
The petition alleged that former trustee Mazzaferro and his associates,
instead of using the trust assets to care for the beneficiary, appropriated
trust property for their own benefit and concealed the identity and location of
the assets from Fiorani. As to
appellants, the petition alleged that Lotchk, a Nevada corporation, was dissolved
in April 2010, and GSV, a Wyoming corporation, was administratively dissolved
in December 2011. Parisi asserted that
the corporate entities were shell corporations formed by Mazzaferro to
facilitate transfer of the real property out of the trust.
Mazzaferri’s civil action and
Parisi’s probate petition are based on the same facts.
Appellants moved to dismiss the
probate petition on three grounds: (1) failure to timely obtain and serve
summons within three years (Code Civ. Proc., §§ 583.210, 583.250); (2)
failure to bring action to trial within five years (id., §§ 583.310, 583.360); and (3) necessity of abating the
petition brought under Probate Code section 850 during the pendency of a prior
civil action involving the same subject matter.
Parisi opposed the motion on grounds
it was frivolous and prosecuted solely to delay and harass. As well, Parisi apprised the court that five
of the six individual noncorporate respondents in the probate action had been
declared vexatious litigants by Division Five of this court in an appeal
related to the trustee civil action, and
as such were prohibited from filing any motion without court approval. As to the sixth noncorporate respondent–one
Stuart Bailey–Parisi alleged that he might be an alias for Mazzaferro.
The probate court denied the motion
to dismiss, ruling that the appropriate measuring date under the pertinent
provisions of the Code of Civil Procedure was the date the pending petition was
filed, not the date when “the original 2005 petition†to compel an accounting
was filed. Further, the court expected
that the probate petition would be consolidated with the pending civil case or
subject to a stay pending resolution of the latter case. However, it was not subject to dismissal or
abatement because the trustee’s case was prosecuted by a different plaintiff.
Appellants duly noticed their
purported appeal, and thereafter filed an amended notice of appeal.
Under California’s one final
judgment rule, a party may only take an appeal from the final judgment in an
entire action. (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756.) This rule is premised on the theory that
multiple appeals and piecemeal disposition in a single action would be costly
and oppressive; thus review of intermediate rulings should await final
disposition of the case. This common law
rule, regarded as a bedrock principle of appellate practice, is codified in
Code of Civil Procedure section 904.1.
Baycol Cases I & II, supra, 51 Cal.4th at p. 756.) The test for whether a judgment or order is
final and appealable is this:
“ ‘[W]here no issue is left for future consideration except the
fact of compliance or noncompliance with the terms of the first decree, that decree
is final, but where anything future in the nature of judicial action on the
part of the court is essential to a final determination of the rights of the
parties, the decree is interlocutory.’ â€
(Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 698.)
Appellants attempt to appeal from an
order denying their motion to dismiss the petition, an interlocutory order
entered prior to any determination on the merits of the petition. They claim the appeal is authorized under
Code of Civil Procedure section 904.1, subdivision (a)(10) which permits appeal
from an order “made appealable by the provisions of the Probate Code or the
Family Code.†However, appellants have
not identified any statute in either code authorizing an appeal from the denial
of a motion to dismiss a petition where, as here, there has been no decision on
the merits.
In their original and amended
Parisi’s petition sought relief under Probate Code section 17200 et seq.
concerning the internal affairs of a trust, referring to Gridley v. Gridley (2008) 166 Cal.App.4th 1562 for the proposition
that an order under these provisions can be directly appealed. This statement is false for two reasons. First, Parisi’s petition was not brought under
Probate Code section 17200. Second,
1304, subdivision (a) authorizes an appeal from a final order under Probate Code section 17200 (subject to exceptions
not relevant here). (
at p. 1586.) Appellant’s order is not a
final order, and is not appealable under Probate Code section 1304, subdivision
(a) or Gridley.
Appellants propose that if we
determine the order is not final for purposes of appeal, then we should treat
the purported appeal as a writ of mandate, citing Esslinger v. Cummins
(2006) 144 Cal.App.4th 517. This we will
not do.
After deciding that the probate
order in question was appealable, the Esslinger
court commented that if such order had not been appealable, it nevertheless
would have exercised its discretion to treat the appeal as a petition for writ
of mandate. (Esslinger v. Cummins, supra,
144 Cal.App.4th at p. 523.) Our Supreme
Court has cautioned that although a reviewing court has the power to treat a
supposed appeal as a writ of mandate, we should only exercise that power under
unusual circumstances. (
401.) There, all issues in the
litigation had been resolved except the one presented to the court. To leave that matter unresolved might lead to
pointless trial court proceedings, and dismissing the appeal rather than
reaching the merits through a mandate proceeding would, under the
circumstances, be unnecessarily circuitous and dilatory. (Ibid.)
We decline to exercise our
discretion to treat the purported appeal as a mandate proceeding. Nothing has been resolved below, and it is
anticipated that the probate proceeding will be consolidated with the civil
action. Appellants have an adequate
legal remedy, namely to appeal from a final judgment that resolves the
numerous, significant legal issues raised in the petition.
Parisi requests that we impose
sanctions upon appellants for filing a frivolous appeal and pursuing it solely
for delay. (Code Civ. Proc., § 907;
Cal. Rules of Court, rule 8.276 ( rule 8.276).)
He asks for $28,755 in attorney and paralegal fees plus an additional
$12,000 to compensate him and conservatee/beneficiary Fiorani, and to punish
appellants for their past conduct and to deter like conduct in the future. An award of attorney fees on appeal serves
the underlying purpose of the sanctions process–to compensate the respondent
for the expense of defending against a frivolous appeal. (See Finnie
v. Town of Tiburon (1988) 199 Cal.App.3d 1, 17.) Relevant factors in determining the amount of
sanctions include the amount of respondent’s attorney fees on appeal, the
degree of objective frivolousness and delay, and the need to discourage like
conduct in the future. (
(2008) 163 Cal.App.4th 510, 519.)
Our Supreme Court has instructed
that “an appeal should be held to be frivolous only when it is prosecuted for
an improper motive–to harass the respondent or delay the effect of an adverse
judgment–or when it indisputably has no merit–when any reasonable attorney
would agree that the appeal is totally and completely without merit.†(In re
Marriage of Flaherty (1982) 31 Cal.3d 637, 650; In re Marriage of Gong & Kwong, supra, 163 Cal.App.4th at p. 516.)
While the two standards provide independent authority for an award of
sanctions, they often are used together, with one supplying evidence of the
other such that the a total lack of merit of an appeal is evidence that an
appellant must have pursued it only for delay.
(In re Marriage of Flaherty, supra,
31 Cal.3d at pp. 649-650.)
Monetary sanctions are warranted in
this case.
First it is abundantly clear that
the appeal was taken from a nonappealable, interlocutory order. Parisi’s counsel even apprised appellants’
counsel that the purported appeal was from a nonappealable order, asked him to
withdraw the appeal and raised the issue of monetary sanctions.
Second, appellants provided no
argument, authority, or discussion explaining why this court should exercise
its discretion to treat the improper appeal as a writ petition; why the
circumstances are unusual; or why there is no adequate remedy at law.
Third, their brief is deficient and
fails to comply with the California Rules of Court. It fails to state that the order appealed
from is final, or to explain why it is appealable. (Cal. Rules of Court, rule
8.204(a)(2)(B).) It does not address the
substance of the trial court’s ruling and generally fails to support any point
by reasoned argument. (
Fourth, the notice of appeal and
amended notice contain false statements.
They state that the action they moved to dismiss was a probate
proceeding filed February 1, 2005, and the original and subsequent petitions
filed in that proceeding seek relief concerning the internal affairs of a
trust. As is apparent from the face of
the pleadings, appellants would know that no petition had been filed
2012. Fiorani’s 2005 petition to compel
an accounting by former trustee Mazzaferro named, and was only served on, Mazzaferro.
Further, the docket establishes that the 2005 petition was taken off
calendar in August 2007.
As well, appellants falsely asserted
in the notice of appeal and amended
notice that the matter pending against them concerned the internal affairs of a
trust and thus denial of their motion to dismiss was directly appealable on
that basis. Although the 2005 petition
to compel an accounting and the 2009 petition to remove Mazzaferro as trustee
both concerned the internal affairs of a trust, the 2012 petition against
appellants does not. It asserts
financial abuse of a dependent adult, fraud, and constructive fraud, return of
property, and judicial determination of fiduciary abuse.
Fifth, appellants have engaged in a
pattern of conduct to delay resolution of the serious claims raised in the
trustee action and the instant petition.
The register of actions
name="_ftnref3" title="">[3]
demonstrates that following the filing of the trustee’s complaint in June 2010,
defendants, including appellants herein, filed seven identical motions to
dismiss, obtaining seven different hearing dates. Two were filed after the trustee moved to
consolidate the motions for hearing. The
court denied the motions to dismiss.
The next week, each of the
noncorporate defendants moved to strike the trustee’s complaint under the
anti-SLAPP statute and appealed the denial of the motions to dismiss. Denying the motions to strike, the court found
each motion frivolous and intended solely for delay, and imposed
sanctions. On December 20, 2010,
appellants appealed the denial of their motion to dismiss the trustee
case. We dismissed that appeal for
failure to file an opening brief.
Thereafter the noncorporate
defendants filed a separate notice of motion to dismiss the first amended
complaint and appealed the denial of their motions to strike.
Division Five of this court adjudged
the noncorporate defendants vexatious litigants and issued a vexatious litigant
prefiling order against them.
Meanwhile, appellants filed their
motion to dismiss in this action, and the same day Mazzaferro, now subject to a
vexatious litigant prefiling order, moved to “join†the matter.
This litany of litigation activity supports
the inference that the motion to dismiss and instant appeal are part of a
consistent effort to thwart the efforts of the successor trustee, the
beneficiary, through her conservator, to prosecute their actions to recover the
trust assets for the beneficiary’s benefit.
As well, the evidence supports an inference that appellants colluded
with Mazzaferro to evade Division Five’s prefiling order.
The appeal is dismissed. This appeal
exhibits a relatively high degree of frivolousness which goes well beyond
asserting an unmeritorious claim. As sanctions for bringing this
frivolous appeal, Lotchk Corporation and Great Sunset Ventures, Inc. shall pay
$6,000 to compensate Parisi and his client in order to deter future like
behavior. As an additional sanction, the appellants shall also pay
Parisi’s reasonable attorney fees and costs in an amount to be determined by
the trial court on remand. The two appellants are to be jointly and
severally liable for these sums.
_________________________
Reardon,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Rivera, J.
name="_ftn1" title=""> [1]
Appellants tied their first two procedural arguments to the filing date of
February 1, 2005, the date the original motion to compel Mazzaferro to
account was filed.
name="_ftn2" title=""> [2]
Section 904.1 directs that an appeal may be taken “[f]rom a judgment, except
(A) an interlocutory judgment, other than as provided in [specified
subsections]†and goes on to list specific additional appealable orders that
stand as exceptions to the general rule.
