Wang v. Stimmel, Stimmel & Smith

Filed 5/5/10 Wang v. Stimmel, Stimmel & Smith CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Julie Wang appeals several orders in several consolidated actions, two of which she brought against the law firm of Stimmel, Stimmel & Smith, and two individually named firm members (SS&S) and former firm member Joanne Reming. She challenges an order declaring her a vexatious litigant, an order granting summary judgment in favor of SS&S in the third case included in the consolidated proceedingan interpleader suit naming Wang and SS&S as defendants. Wang also challenges an order denying her ex parte application for leave to submit opposition to the summary judgment motion made by SS&S. As discussed below, we conclude there was no prejudicial error on the part of the trial court, no abuse of discretion, and affirm the challenged order.

Background

In September 2001, Wang initiated a civil action against Jeffrey P. Ma, Kwan Shou Wong Ma and Wah Ma (Ma). In November 2002, Wang signed an attorney-client fee contract with SS&S, hiring the firm to provide services in connection with this action, which the fee agreement described as one for wrongful eviction/breach. Joanne Reming signed the fee agreement on behalf of SS&S, and on April 9, 2003, Reming substituted as Wangs attorney of record in the action against Ma. Previously, Wang had appeared in propria persona(pro per).

On April 16, 2003, Wang and Ma signed a settlement agreement, which among other things called for Ma to pay Wang $32,500 within three weeks, for Wang to dismiss her action with prejudice within five days thereafter, and to execute a stipulated judgment in an earlier unlawful detainer proceeding initiated by Ma. The trial court approved the settlement after Wang and Ma each affirmed they understood the settlement, agreed to its terms, and had freely entered into it. The court commended counsel for both parties, but especially Reming, for their efforts to reach a settlement.

Less than two weeks later, on April 28, 2003, Wang filed a notice of substitution, in which she resumed her status as a pro per plaintiff. In an invoice dated two days later, SS&S billed Wang for fees and costs totaling $32,278.56 Some two months later, SS&S served Wang, Ma, and Mas counsel with a notice of lien for attorney services rendered to Wang, attaching in the amount of $34,379.25 to any settlement proceeds to be paid by Ma to Wang.

On September 3, 2003, the trial court entered an order granting a motion by Ma to enforce the settlement agreement and denying a motion by Wang to set the agreement aside. The court ordered that Ma deliver a settlement check for $32,500 made out to Wang and [SS&S]. It appears this order became final following a dismissal on March 2, 2004 of Wangs appeal from the order.

On June 11, 2004, SS&S served Wang with a demand for arbitration with the American Arbitration Association (AAA), pursuant to a clause in its fee agreement with Wang, that required AAA arbitration of any dispute. In its demand, SS&S claimed that Wang now owed SS&S a total of $41,758.17, that SS&S held a lien over settlement funds owed to Wang by Ma, that, following the order granting Mas motion to enforce the settlement, Ma had attempted to deliver to Wang a check for $32,500 as required, and that Wang had refused to accept the check and sign it over to SS&S.

About one year after service of the demand for AAA arbitration, in June 2005, Wang herself requested mandatory fee arbitration (MFA) with the Bar Association of San Francisco (BASF). (See Bus. & Prof. Code,  6201.) In an order issued in August, some two months later, BASF denied the request, determining that Wang had waived her right to MFA because she had not objected toand had been participating actively inthe AAA arbitration that SS&S had initiated.

On October 11, 2005, the arbitrator in the pending AAA arbitration set an arbitration hearing date of November 15. Nevertheless Wang, later that month, filed two pro per petitions in the trial courtone against Reming and the other against SS&S. Each petition sought an order compelling MFA.

On November 2, 2005, the AAA arbitrator vacated the arbitration hearing set for November 15 and terminated the proceeding after concluding that the clause in the fee agreementon which the arbitration proceeding had been basedwas not enforceable. On November 9, Wang dismissed without prejudice her two petitions to compel MFA.

Subsequently, Wang requested MFA with the State Bar, naming only Reming as the attorney whose fees were in dispute. Remings employment by SS&S had ended in June 2003, and SS&S now claims it never received notice of the State Bar arbitration conducted pursuant to this request. A State Bar panel of three arbitrators issued its finding and award in May 2006. The panel found that Reming had provided services with a value in excess of $25,000, but that fees were limited to $25,000 based on a fee cap agreement executed by Reming and Wang at the time of the settlement agreement between Wang and Ma. Accordingly, the panel awarded Reming fees and costs totaling $25,200 less deductions totaling $1,145 in Wangs favor.

The following month, on June 23, 2006, Wang filed a notice rejecting the State Bars nonbinding arbitration award. At that time, she also filed a pro per complaint for damages for negligence, breach of fiduciary duty, infliction of emotional distress, constructive fraud, and other causes of action. (Case No. CPF-06-506453 (Case 506543).) Reming was the only named defendant. Some five months later, in November 2006, Wang filed two more pro per complaints, again naming Reming as the only named defendantCase No. CGC-06-457890 (Case 457890) and Case No. CGC-06-457893 (Case 457893). The causes of action set out in Cases 457890 and 457893 were based on the same factual allegations as those set out in Case 506543. On February 7, 2007, Wang filed amended complaints in Cases 457890 and 457893, adding SS&S as a named defendant, as well as two members of the firm, Lee D. Stimmel and Andrine K. Smith. At this time, Wang initiated another pro per civil actionCase No. CGC-07-460297 (Case 460297). The defendants named in this new complaint were Stimmel, Smith, SS&S, and Reming. The complaint also named Michael Tcheng, P. Richard Colombatto, and their law firm Colombatto Klimenko. Tcheng had represented Ma in the wrongful eviction action Wang had initiated. Again, the facts portrayed were much the same as the nexus of facts presented in Wangs other complaints.

In March 2007, SS&S filed demurrers to the complaints in Cases 457890 and 457893.[1] The following month, Wang filed a notice of automatic stay in Case 457893, pending another request for MFA with the State Bar. (See Bus. & Prof. Code,  6201, subd. (c).) Then she filed an ex parte application in that same case, claiming that action had been stayed and that the court should correct its improper ruling, in which it sustained the SS&S demurrer with leave to amend.[2]

In an ex parte application filed in Case 457890, also filed in April 2007, Wang sought to continue the hearing on the SS&S demurrer in that case, so that she could obtain competent and adequate legal representation without prejudice. Wang got her continuance. A final hearing was delayed and the trail court did not issue its ruling until March 27, 2008, a little over one year after the demurrer was filed. In its ruling, the court sustained the demurrer, but granted Wang leave to amend five of her causes of action. Wang nevertheless sought reconsideration of the motion, complaining that SS&S had maliciously delayed rescheduling an amended demurrer hearing, and did so during a period of unavailability.[3] The court denied this motion on June 13, 2008.

Meanwhile, in May 2007, the Fire Insurance Exchange (FIE) filed a complaint in interpleader, Case No. CGC-07-463231 (Case 463231). FIE, Mas property insurer, named Wang and SS&S as defendants in the suit. FIE identified itself as the sole source of the sum$32,500to which Wang and Ma had agreed to settle their dispute in April 2003. It alleged Ma had tried to comply with the order of September 3, 2003, directing enforcement of the settlement agreement, but Wang had refused the check. Wang had insisted that FIE make out the settlement check to her alone, but FIE had refused, both because of SS&Ss notice of lien and the trial courts order that Ma make out the check to both Wang and SS&S. Wang continued to demand that the check issue to her alone. SS&S for its part continued to assert its lien on the settlement proceeds and had refused to permit its issuance to Wang alone. Accordingly, FIE had deposited the settlement funds with the court, and requested that it order Wang and SS&S to interplead and litigate the respective rights to the sum.

Around this time Wang sought to consolidate three cases: (1) Case 506453, which Wang filed pro per in June 2006, against Reming alone, after rejecting the State Bar arbitration award in Remings favor; (2) Case 457890, which Wang brought pro per against Reming in November 2006, but amended in February 2007 to add SS&S, Stimmel and Smith as defendants; and (3) Case 463231, the interpleader suit initiated by FIE in May 2007 that named Wang and SS&S as defendants. On May 13, 2008, some two months after the trial court sustained the demurrer in Case 457890, the court granted the motion for consolidation, and designated Case 457890 as the lead case. The following month, Wang filed a supplemental [consolidated] complaint in which she restated, and greatly elaborated upon,[4] the factual allegations of the two pro per complaints that were included in the consolidated proceedingCases 457890 and 506453.[5]

In late July 2008, SS&S filed a motion seeking an order requiring Wang to furnish security in the action, on the ground that she was a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b),[6] and there was not a reasonable probability that she would prevail in the litigation against the moving defendant. ( 391.1.) SS&S also sought an order requiring Wang, as a vexatious litigant, to obtain permissionbefore filing any new litigation as a pro per in a state courtfrom the presiding judge of that court. ( 391.7, subd. (a).)

The trial heard this motion on September 23, 2008, and on that dated entered an order that found Wang to be a vexatious litigant within the meaning of section 391, subdivision (b)(3),[7] ordered that she deposit security in the amount of $3,000 on or before October 30, and prohibited her from filing new litigation pro per without first obtaining leave of the presiding judge.

Following the lapse of the period given to Wang to post security, on November 6, 2008, SS&S filed a motion for summary judgment to disburse funds and dismiss actions. More specifically, the motion sought summary judgment to obtain the entire sum of $32,500 deposited with the court by FIE in Case 463231, and sought dismissal of all actions filed by [Wang] against [SS&S]that is, Cases 457890 and 506453. The papers supporting the motion argued it was undisputed that SS&S was entitled to the entire deposit, as it was the only party remaining in this action. SS&E also argued that all of the legal actions that Wang initiated against S&S must now be dismissed for failure to furnish security as ordered, citing to section 391.4.

This motion came on for hearing on January 27, 2009. At that time, Wang appeared by telephone. Wang stated she was appearing to request approval to file a response to this motion . . . for summary judgment. The court stated that such a request required some sort of formal motion and it could not grant her request based upon a phone call. It then continued the hearing to February 5.

The next day, January 28, 2009, Wang filed an ex parte application for leave to oppose the motion for summary judgment. The trial court issued a written denial of this application on April 22. On May 11, it denied an ex parte application by Wang seeking leave to file a motion for extraordinary relief from the April 22 order of denial.

At the continued hearing on the SS&S motion for summary judgment and dismissal, on February 5, 2009, Wang did not appear, and the trial court adopted its tentative order to grant the motion. Its order directed the clerk to disburse the deposited sum of $32,500 to SS&S, and dismissed the actions filed by Wang against SS&S and Stimmel. Smith, who had been left out of the SS&S motion for summary judgment and dismissal, filed a separate request to have Wangs actions dismissed as to her, and the court granted this ex parte application on February 9.

Wangs appeal followed. (See  904.1, subd. (a)(1), (2).) Her notices of appeal are taken from the following orders: (1) the September 23, 2008 order, declaring her to be a vexatious litigant, requiring her to post security, and imposing a prefiling order requirement as to any new litigation proposed to be filed pro per; (2) the February 5, 2009 order granting summary judgment to disburse the deposited sum of $32,500 to SS&E, and dismissing Wangs actions against SS&E and Stimmel; (3) the February 9, 2009 order dismissing Wangs actions against Smith; and (4) the courts three orders that essentially denied Wang leave to file opposition to the summary judgment motion, recorded January 27, 2009, and entered respectively on April 22, 2009, and May 11, 2009.[8]

Discussion

I. The Vexatious Litigant Order

Wang contends the order declaring her a vexatious litigant is erroneous. Essentially, she urges that she does not come within any of the statutory definitions of vexatious litigant set out in section 391, subdivision (b).[9]

The trial court found that Wang was a vexatious litigant within the meaning of section 391, subdivision (b)(3).[10] That subparagraph defines a vexatious litigant as a person who [i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. ( 391, subd. (b)(3).)

We review a lower courts ruling declaring a person to be a vexatious litigant for substantial evidence. The trial court is best situated to receive evidence and hold hearings on the question of whether a litigant is vexatious; hence, on appeal we presume the order to be correct and we imply the findings necessary to support that designation, so long as substantial evidence supports the implied findings. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 969 (Morton).)

We have summarized, at some length, the litigation in which Wang acted as a pro per plaintiff over a period of several years. Wang repeatedly filed complaints that, in effect, sought a result more favorable than the State Bars arbitration award of May 2006the result of a nonbinding arbitration conducted at Wangs request. The complaints were duplicative in nature, involved varying portrayals of the same basic facts, and, eventually, the same defendants. In our view, the trial court could reasonably have inferred from Wangs multiple pleadings and other filingsvoluntary dismissals, frequent notices of unavailability,[11] and a request for MFA in order to stay one of her own actionsa pattern of tactics that [were] frivolous or solely intended to cause unnecessary delay. ( 391, subd. (b)(3).)

The purpose of vexatious litigant law is to address the problem created by the persistent and obsessive litigant who constantly has pending a number of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts. (Morton, supra, 156 Cal.App.4th at pp. 970−971.) Here, there were serious financial results for SS&S. For example, in March 2007, SS&S was compelled to prepare and file three demurrers to three separate but duplicative complaints. Moreover, from an examination of the docket entries relating to Wangs four complaints and two petitions, it is a more than reasonable inference that her duplicative activities placed an unreasonable burden on the trial court.

We conclude there is substantial evidence to support the trial courts determination that Wang was a vexatious litigant within the meaning of section 391, subdivision (b)(3).

There are no additional requirements for purposes of a prefiling order and, hence, we conclude that order was proper. ( 391.7.) For purposes of requiring a vexatious litigant to furnish security in a pending action, the court must also find that there is not a reasonable probability that he [or she] will prevail in the litigation against the moving defendant. ( 391.1.) We find substantial evidence for that implied finding in the State Bars determination, in May 2006, that the value of the services rendered to Wang was in excess of $25,000, and that her objections to this valuation were meritless.

In sum, we conclude the trial court did not err in its order of September 23, 2008, which declared Wang a vexatious litigant, issued a prefiling order on any new pro per litigation, and required her to post security in the amount of $3,000. Consequently, Wangs failure to post the court-ordered security of $3,000 by the required date of October 30, 2008, entitled SS&S, Stimmel, and Smith to obtain a dismissal of Wangs pro per actions as to them. ( 391.4.) Accordingly, we uphold the order of September 23, 2008, the order of dismissal as to SS&S and Stimmel that was included in the order of February 5, 2009, and the order of February 9, 2009, dismissing Wangs actions as to Smith.

II. The Summary Judgment Order

Wang argues the trial court erred in that part of its order of February 5, 2009 that granted the SS&S motion for summary judgment. In her view, there were triable issues of material fact.[12]

The parties involved in this particular summary judgment proceeding were not plaintiff and defendant, but rather two defendants interpleaded to litigate their right to a deposited sum of $32,500, as to which the plaintiff stakeholder, FIE, disclaimed any interest. Nevertheless, the scope of our review is easily paraphrased. If no triable issue as to any material fact exists, the moving party is entitled to a judgment as a matter of law. The trial court must view the evidence in the light most favorable to the opposing party. We review the record and the determination of the trial court de novo. (See Shin v. Ahn (2007) 42 Cal.4th 482, 499.)

The statement of undisputed facts and supporting affidavits submitted by SS&Eeven when construed in favor of Wangare sufficient to establish the following material facts: (1) Wang entered into an attorney-fee contract in November 2002; (2) pursuant to the terms of this contract, any unpaid fees became due and payable upon the conclusion of SS&Ss services, and Wang granted SS&S a lien for any such unpaid sums, which would attach to any award, judgment, or settlement; (3) SS&S represented Wang through a settlement that was approved by the trial court; (4) the fees and costs due to SS&S became due and payable in April 2003, when Wang terminated SS&Ss services; (5) Wang had not paid any fees due and owing after that time; and (6) in June 2003, SS&S filed a notice of lien in the amount of $34,379.25 for unpaid fees and expenses then due and owing.

These facts make a prima facie showing of SS&Ss entitlement to the entire deposited sum of $32,500 and, hence, its entitlement to summary judgment.

Wang claims there were several triable issues, such as the validity of the attorney fee agreement and the reasonableness of the sums billed by SS&S. The problem is, she did not submit any opposing statement and affidavits to establish such issues, within the time required. (See  437c, subd. (b)(2).) When the moving party, as here, has made a prima facie showing of entitlement to summary judgment, and the opposing party submits no opposing affidavits to raise a triable issue, it is proper to grant summary judgment. That is, in the absence of opposing affidavits, the trial court is entitled to accept the moving partys affidavits as true, and to assume the opposing party cannot dispute or controvert them. (Seltzer v. Seltzer (1969) 276 Cal.App.2d 137, 140.) Moreover, the trial court has discretion to grant a summary judgment motion when the opposing party fails to submit an opposing statement of material facts. ( 437c, subd. (b)(3).)

Wang contends the trial court infringed upon her constitutional due process rights when it denied her an opportunity to respond to the summary judgment motion. We disagree. Wang was properly served with the motion for summary judgment, giving her notice of the time her opposition was dueat least 14 days before the noticed hearing date. ( 437c, subd. (b)(2).) The trial court may, for good cause, order a different time for submitting opposing papers. (Ibid.) We cannot say, under all the circumstances, that the court abused its discretion when it denied Wangs belated request for leave to file opposition.

We conclude the trial court properly granted SS&Ss motion for summary judgment.

III. Other Contentions

We decline to address Wangs remaining contentions. These either raise issues the trial court never had an opportunity to consider, or seek remedies beyond the scope of our review of assigned error in the lower court.

Disposition

The orders of September 23, 2008, February 5, 2009, February 9, 2009, April 22, 2009, and May 11, 2009, are affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Dondero, J.

______________________

Banke, J.

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[1] SS&S also filed a demurrer on this date in Case 460297. Wang dismissed Case 460297 without prejudice as to all defendants, less than one month later.

[2] It appears Wang did not attempt to amend the complaint following the order sustaining the demurrer. She dismissed Case 457893 without prejudice on May 11, 2007.

[3] The record indicates that Wang filed notices of unavailability with some frequency, often stating periods of unavailability lasting several weeks or even months.

[4] The factual allegations of this supplemental complaint were set out over the course of 16 causes of action, as distinguished from the five causes of action Wang had been given leave to amend in Case 457890. New factual allegations included in the complaint related primarily to misconduct and misrepresentations purportedly made by Reming between March and May 2007.

[5] In August 2008, Wang also filed an amended complaint in Case 506543, which added SS&S, Stimmel, and Smith as defendants.

[6] Further statutory references are to the Code of Civil Procedure.

[7] Although the order states section 391.1(b)(3), this is clearly a typographical error. Section 391.1 has no subdivision (b), whereas section 391, subdivision (b), defines in four numbered subparagraphs the types of vexatious litigant.

[8] The vexatious litigant orders of September 23, 2008, are not appealable but may be reviewed on appeal from a subsequent appealable judgment or order. (In re Bittiker (1997) 55 Cal.App.4th 1004, 1008.) The order of February 5, 2009, granting summary judgment in favor of SS&S, is not itself a summary judgment and is therefore not appealable. (Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030 (Saben).) However, absent a formal entry of judgment, an appellate court may amend an order to include a judgment if the order, as here, is a final determination of the rights of the parties. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183.) We do so here in order to expedite appellate review. (Ibid; see also Saben, supra, 134 Cal.App.4th at p. 1030.) The orders of February 5 and February 9, 2009, dismissing Wangs complaints against SS&S, Stimmel, and Smith, pursuant to section 391.4, constitute final judgments in that they operate as a final disposition of the particular actions. (See Daar v. Yellow Cab Co. (1967) 67 Cal.2d695, 699.)

[9] Wang has advanced a number of other arguments in challenging the vexatious litigant order. For example, she appears to suggest that the analysis employed to review a summary judgment should be used to review a vexatious litigant order, and that the trial court erred in failing to give proper consideration to the contributing conduct of SS&S and FIE. We deem it sufficient to say that we have considered Wangs other arguments and conclude they have no merit.

[10] See footnote 6 and accompanying text, ante.

[11] We have previously noted the record evidence of Wangs frequent notices of unavailability. The record does not show whether any were based on a showing of good cause. To the extent that such a practice attempts to put control of a courts calendar in the hands of counsel, or a pro per party, as opposed to the judiciary, it is an impermissible infringement of the courts inherent powers. (Carl v. Superior Court (2007) 157 Cal.App.4th 73, 74−75.)

[12] Wang suggests triable issues existed in all three of the consolidated actions. However, as we have previously noted, Wangs two actions were properly dismissed as to SS&S, Stimmel, and Smith pursuant to section 391.4, and the motion for summary judgment focused exclusively on the respective claimants rights to the sum deposited in FIEs interpleader suit.