Woo-Ming v. Cheng



















Filed 3/8/13 Woo-Ming v. Cheng CA3











NOT TO BE PUBLISHED





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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

----






>

GEOFFREY E. WOO-MING, Plaintiff and Appellant, v. GRACE CHENG et al., Defendants and Respondents.

C069339 (Super. Ct. No. 34200900063786CUFRGDS)

The
demurrer of defendants Grace Cheng and the Progressive Tax Group to the second
amended complaint for fraud filed by
plaintiff Geoffrey E. Woo-Ming was sustained without leave to amend. Plaintiff then moved to set aside the
judgment of dismissal (Code Civ. Proc., § 473),href="#_ftn1" name="_ftnref1" title="">[1]
claiming he made a mistake of law in relying on a single cause of action for
fraud, when he should have alleged causes of action for breach of oral
contract, common counts, and constructive
fraud.

The trial
court denied his motion to set aside the judgment, and plaintiff appeals. We conclude the trial court did not abuse its
discretion, and affirm the judgment.

BACKGROUND

>The
Complaints and Demurrers

Plaintiff
hired defendants to assist him in filing delinquent income tax returns and to
represent him and his wife in proceedings before the Internal Revenue Service
and the California Franchise Tax Board.

A few
months later, plaintiff terminated defendants’ services and demanded a
refund. When the parties failed to reach
an agreement on the amount of the refund, plaintiff initiated this action pro
se by filing a form complaint stating a single cause of action for fraud based
upon intentional or negligent
misrepresentation. The factual
allegations of plaintiff’s complaint include that his credit card was billed
without his permission; he was charged for services rendered after he
terminated defendants’ services; he was referred by defendants to Jennifer
Shapiro, whom he assumed was an attorney and he was billed for her time at the
“lawyer’s rate”; he subsequently learned Shapiro is not an attorney and,
consequently, “practically all of the PTG [Progressive Tax Group] invoice is
fraudulent.”

Defendants
demurred to the original complaint on the ground (among others), that the
complaint failed to allege all of the elements of a fraud cause of action. Plaintiff responded by filing his first
amended complaint, which stated a single cause of action for fraud based on
theories of intentional or negligent misrepresentation and concealment.

Defendants
demurred to the first amended complaint on the ground it failed to allege all
of the elements of a fraud cause of action.
The trial court sustained the demurrer with leave to amend. Plaintiff filed a second amended complaint,
which stated a single cause of action for fraud based on theories of href="http://www.mcmillanlaw.com/">intentional or negligent misrepresentation
and concealment. Soon thereafter,
plaintiff filed a motion for summary judgment; the motion was ultimately
dropped.

Defendants
demurred to the second amended complaint on the ground it failed to allege all
of the elements of a fraud cause of action.
The trial court sustained the demurrer without leave to amend. It reasoned:
“Plaintiff alleges a single cause of action, fraud, based on three
alternative theories: intentional
misrepresentation, negligent misrepresentation, and concealment. The crux of plaintiff’s complaint is that he
was billed at $350/hour for certain services, in particular those performed by
one Jennifer Shapiro, who ‘was not an attorney, and therefore not entitled to
bill at the rate of $350 an hour.’
[Second Amended Complaint, page 4.]
Plaintiff, however, fails to allege defendants’ representation or active
concealment (or a duty to disclose) regarding either Shapiro or her hourly
rate, as well as his detrimental reliance, two essential elements of this cause
of action. The fact that plaintiff was
ultimately charged what he believes is an excessive hourly rate is not
sufficient to state a cause of action for fraud. Plaintiff having failed to state a cause of
action after three opportunities to do so, the court declines to grant further
leave to amend.”

Thereafter,
the court entered judgment dismissing plaintiff’s action with prejudice.

>Plaintiff’s
Motion to Set Aside the Judgment

Plaintiff
moved to set aside the judgment pursuant to section 473, on the grounds that
he, “a non-lawyer, mistakenly maintained his only Cause of Action as Fraud in
his Second Amended Complaint. . . . Instead, plaintiff should have changed his
First Cause of Action to Breach of Contract, his Second Cause of Action to
Common Counts, his Third Cause of Action to Constructive Fraud, and to seek
Treble Damages” for defendants’ alleged violation of Civil Code section
3345. He sought permission to file a
third amended complaint alleging these three new causes of action.

In support
of his motion, plaintiff submitted the following declaration: “The purpose of this declaration is to
explain to the court the circumstances whereby I, the Plaintiff In Pro Per in
this case, made the following mistakes of law:
[¶] (a) Since I believed
that I did not need any further discovery in order to demonstrate how the
defendants tried to defraud me, I believed a Summary Judgment was all I needed
to win my case. [¶] (b) As a result, I did not look closely
at my single cause of action of [sic]
Fraud, in that although PRG [sic]
tried to defraud me, they were never actually successful, since I refused to
accept their fraudulent refund accounting.
[¶] (c) Since Cheng and PRG
[sic] took $20,000+ via credit card
before they started work, this was actually Breach of Oral Contract, with
failure to return a refund after non-performance.”

The trial
court denied plaintiff’s motion for relief from the dismissal of the action,
ruling: “[P]laintiff has failed to
demonstrate a mistake of law sufficient to obtain relief pursuant to
. . . § 473(b). Mere
ignorance of the law or negligence in conducting legal research is not
excusable neglect. [Citation.] . . . Plaintiff fails to explain what exactly his
mistake of law was, or how it was excusable.
Plaintiff does not declare that he misunderstood any law related to any
cause of action in his prior complaints or explain why he could not have
determined that he should have pled causes of action for breach of contract,
common counts, and constructive fraud at an earlier date. Instead, he simply declares that he
mistakenly relied upon a single cause of action in bringing his complaint and
now seeks to file a third amended complaint ‘using the same set of facts’ to
allege additional causes of action.
Plaintiff essentially seeks another bite at the apple to attempt to
state a viable cause of action, based on the same facts as his previous
complaints, after having had numerous opportunities to do so. The Court finds that plaintiff has failed to
demonstrate a mistake of law, much less an excusable one, sufficient to entitle
him to relief pursuant to . . . § 473(b).)”

DISCUSSION

Plaintiff
asserts on appeal the trial court abused its discretion in denying his motion
to set aside the judgment because a “[m]istake of law by a layman is excusable”
and in holding him “to a higher standard” than defendants’ attorney, who also
made mistakes in the litigation of this matter.
For the following reasons, we disagree.

Section
473, subdivision (b), provides: “The
court may, upon any terms as may be just, relieve a party or his or her legal
representative from a judgment, dismissal, order, or other proceeding taken
against him or her through his or her mistake, inadvertence, surprise, or
excusable neglect.”

An
application for relief under section 473 is addressed to the sound discretion
of the trial judge. However, that
discretion, “‘“is not a capricious or arbitrary discretion, but an impartial
discretion, guided and controlled in its exercise by fixed legal
principles. It is not a mental
discretion, to be exercised ex gratia,
but a legal discretion, to be exercised in conformity with the spirit of the
law and in a manner to subserve and not to impede or defeat the ends of
substantial justice.” [Citations.]’ [Citations.]”
(Kendall v. Barker (1988)
197 Cal.App.3d 619, 623.)

While
section 473 authorizes a court to relieve a party from default suffered through
inadvertence, surprise, excusable neglect or mistake, “‘these words are not
meaningless, and the party requesting such relief must affirmatively show that the situation is one which clearly falls
within such category.’ [Citation.] ‘[A] party who seeks relief under [section
473] must make a showing that due to some mistake, either of fact or of law, of
himself [or herself] or of his [or her] counsel, or through some inadvertence,
surprise or neglect which may properly be considered excusable, the judgment or
order from which he [or she] seeks relief should be reversed. In other words, a burden is imposed upon the
party seeking relief to show why he [or she] is entitled to it, and the assumption
of this burden necessarily requires the production of evidence. [Citations.]’” (Kendall
v. Barker, supra,
197 Cal.App.3d at pp. 623-624, and cases cited therein.) In a motion under section 473, the initial
burden is on the moving party to prove excusable neglect by a “preponderance of
the evidence.” (Id. at p. 624.)

While a
mistake in law is a ground for relief under section 473, the “‘issue of which
mistake in law constitutes excusable neglect presents a question of fact. The determining factors are the
reasonableness of the misconception and the justifiability of lack of
determination of the correct law.
[Citation.]’ [Citation.] ‘[I]gnorance of the law coupled with
negligence in ascertaining it will certainly sustain a finding denying
relief. [Citations.]’ [Citation.]”
(Robbins v. Los Angeles Unified
School Dist. (1992) 3 Cal.App.4th 313, 319.)

Here, the
trial court did not credit plaintiff’s bald assertion he was mistaken about the
law. It found plaintiff did not “declare
that he misunderstood any law related to any cause of action in his prior
complaints,” and we agree with that finding.
(E.g. In re Marriage of Nurie
(2009) 176 Cal.App.4th 478, 492.)
Indeed, plaintiff only asserts he mistakenly believed “a Summary
Judgment was all I needed to win my case” and he “did not look closely at my
single cause of action of [sic]
Fraud” and should have pled different causes of action. These statements are more descriptive of a
mistaken litigation strategy than a mistake of law. The trial court did not abuse its discretion
in denying plaintiff’s motion because he failed to show he made a mistake of
law.

Nor did the
trial court abuse its discretion in concluding plaintiff’s claimed mistakes
were not excusable. “An ‘honest mistake
of law’ can provide ‘a valid ground for relief,’ at least ‘where a problem is
complex and debatable,’ but relief may be properly denied where the record
shows only ‘ignorance of the law coupled with negligence in ascertaining
it.’” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401,
1412-1413.) We agree with the trial
court’s assessment that plaintiff failed to explain why he could not have
determined earlier that he should have pled causes of action for breach of
contract, common counts, and constructive fraud, particularly as each of
defendants’ demurrers demonstrated the deficiencies of plaintiff’s attempts to
allege a cause of action for fraud.
There was no abuse of discretion in the trial court’s denial of
plaintiff’s section 473 motion. (See >Robbins v. Los Angeles Unified School Dist.,
supra, 3 Cal.App.4th at
p. 319 [trial court did not abuse its discretion by denying pro se
plaintiffs’ section 473 motion based on a mistake in law because plaintiffs
made no effort to ascertain the validity of their erroneous belief the motion
to dismiss was moot].)

We
recognize that plaintiff appeared without legal counsel, and brought his
section 473 motion in propria persona.
But “‘we are unable to ignore rules of procedure just because we are
aware of that fact. “When a litigant is
appearing in propria persona, he is entitled to the same, but no greater,
consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is
held to the same restrictive rules of procedure as an attorney
[citation].” [Citations.]’ (County
of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.) In other words, when a litigant accepts the
risks of proceeding without counsel, he or she is stuck with the outcome, and
has no greater opportunity to cast off an unfavorable judgment than he or she
would if represented by counsel.” (>Burnete v. La Casa Dana Apartments
(2007) 148 Cal.App.4th 1262, 1267; see also Hopkins & Carley v. Gens, supra, 200 Cal.App.4th at
pp. 1413-1414 [“[o]ne who voluntarily represents himself [or herself] ‘is
not, for that reason, entitled to any more (or less) consideration than a
lawyer’”].)

We are
unpersuaded by plaintiff’s reliance on Tammen
v. County of San Diego (1967) 66 Cal.2d 468, at page 479 for his
contrary argument that “‘a mistake of law may be excusable when made by a
layman, but not when made by an attorney.’”
That statement from Tammen is
dictum, as the appellant in that case was
represented by counsel (id. at
p. 479 [“Tammen was represented by counsel . . . and in
determining whether a person is entitled to relief the controlling factor is
the reasonableness of the misconception of the law under the circumstances of
each particular case”]; People v. Foster
(1993) 14 Cal.App.4th 939, 956 [a court’s comment on an uncontested issue
is dictum].) Moreover, as we note above,
the trial court did not abuse its discretion in concluding plaintiff failed to
bear his burden of showing either that he was mistaken about the law or that he
could not have discovered his mistake (if any) at an earlier stage of the proceedings.

Finally,
plaintiff has not shown the trial court was “[b]ias[ed] against a pro se
Plaintiff” because defense counsel “has made numerous mistakes of law and
procedure for which he has only received admonishments from the trial court.” We have reviewed the record and find nothing
to support such a claim. For his part,
plaintiff offers no cogent analysis, supported by citations to the record and
authority, of how the court was biased against him. Accordingly, we deem his claim of bias
forfeited. (Cal. Rules of Court, rule
8.204(a)(1)(C); Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295-1296; City
of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240.)

DISPOSITION

The
judgment is affirmed. Defendants are
awarded their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2).)







HOCH , J.







We concur:







BLEASE , Acting P. J.







MAURO , J.