Opinion
A130714
12-28-2011
MARTIN ENG, Plaintiff and Appellant, v. GREGORY YOCH et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. CGC-10-496656)
Plaintiff Martin Eng filed the instant lawsuit against defendants Gregory Yoch, James DeVincenti, and Marcus & Millichap following an unsuccessful real estate transaction. Defendants successfully moved to have plaintiff declared a vexatious litigant. The trial court then granted their motion to dismiss with prejudice after plaintiff failed to post a $100,000 bond. We affirm.
BACKGROUND
On February 4, 2010, plaintiff filed a complaint against defendants. The complaint contains causes of action for fraud, professional negligence, and conspiracy. The complaint alleges plaintiff owned certain real property in San Francisco that went into foreclosure and was the subject of a "trustee sale" in late 2008. Prior to the sale, defendants "represented a buyer who proposed a purchase for the property which would have saved the property from foreclosure and would have allowed plaintiff to recover all or most of his equity in the transaction." Instead, the trustee sale occurred "without the plaintiff having been sufficiently warned to seek other options to save the property by
On September 10, 2010, defendants filed their answer to the complaint. They also moved to have plaintiff declared a vexatious litigant pursuant to Code of Civil Procedure section 391 et seq., on the ground that at least five cases plaintiff had filed in propria persona in the past seven years had been adversely determined against him. (Code Civ. Proc., § 391, subd. (b)(1).) Pursuant to section 391.1, defendants concurrently moved for a determination that there was no reasonable probability plaintiff would prevail in the litigation, and that he should therefore be ordered to post a bond sufficient to cover their attorney fees.
All subsequent statutory references are to the Code of Civil Procedure except as otherwise indicated.
On November 8, 2010, the trial court posted its tentative ruling granting the motion to have plaintiff declared a vexatious litigant and specifically requiring him to post a $100,000 bond as a requirement to proceed with the case.
On November 9, 2010, plaintiff filed a request for a dismissal without prejudice. Later that same day, the trial court held a hearing in which it adopted its tentative ruling finding plaintiff to be a vexatious litigant. The court also found that the instant case lacks merit, and ordered plaintiff to post the $100,000 bond within 15 days of notice of the order. The court further ordered: "If the bond is not timely posted, Defendants may seek dismissal on the ex parte calendar." The court denied plaintiff's motion for an order to dismiss the case without prejudice. At that point, plaintiff showed the judge his motion for a preemptory challenge under section 170.6, which he had not filed. The motion for the preemptory challenge was denied as being untimely. The bond ordered by the court was never paid.
On December 20, 2010, plaintiff filed a notice of appeal from the order entered on November 9, 2010.
On February 2, 2011, the court filed its vexatious litigant prefiling order, prohibiting plaintiff from filing any new litigation in propria persona without court approval.
On February 17, 2011, defendants filed an ex parte application for dismissal with prejudice pursuant to the November 9, 2010 order. The trial court found plaintiff failed to timely post the required $100,000 bond, and granted the order dismissing the case with prejudice.
On February 28, 2011, plaintiff filed a motion for reconsideration of the order dismissing the action.
On April 4, 2011, the trial court denied the motion for reconsideration.
DISCUSSION
I. Vexatious Litigant Orders are Nonappealable Interlocutory Orders
"An order requiring a plaintiff to furnish security as a vexatious litigant is not appealable." (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 985, fn. 1 (Childs).) "[O]rders granting the motions to require plaintiffs to furnish security as vexatious litigants are nonappealable interlocutory orders." (Roston v. Edwards (1982) 127 Cal.App.3d 842, 846.) "If plaintiff fails to furnish the security as ordered, the action will be dismissed [citation] and the appeal will lie from the judgment or order of dismissal." (Childs, supra, at p. 985, fn. 1.)
Contrary to plaintiff's assertion on appeal, his purported appeal did not stay the action. Although section 916 states that a perfected appeal stays the trial court proceedings embraced within the order or judgment appealed from, no stay arises where the appeal is from a nonappealable order such as the vexatious litigant order here. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 663.) Where an appeal has been taken from a nonappealable interlocutory order, "filing a notice of appeal from such an order does not divest the trial court of jurisdiction over the issue." (Ibid.)
We may only review on direct appeal "(1) an appealable order or (2) an appealable judgment." (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) The issue of appealability cannot be waived: even if no party has raised it, this court must decide whether it has jurisdiction. (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689.) We exercise our discretion to construe plaintiff's appeal as being taken from the order dismissing the action with prejudice.
II. Vexatious Litigants
Section 391.1 permits a defendant to move to have a plaintiff declared a vexatious litigant and to require the plaintiff to furnish security. The term "vexatious litigant," as used in section 391.1, encompasses any person who "[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing." (§ 391, subd. (b)(1).)
Section 391.1 provides: "In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security. The motion must be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant."
" ' "A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court's ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and [infer] findings necessary to support the judgment." [Citation.] Questions of statutory interpretation, however, we review de novo.' [Citation.]" (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1169.) "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.)
III. Plaintiff is a Vexatious Litigant
The trial court found plaintiff had commenced, prosecuted, or maintained in propria persona at least five litigations that have been finally determined adversely to him, within the past seven years. (§ 391, subd. (b)(1).) A "final" determination against a litigant is one in which "all avenues for direct review have been exhausted." (Childs, supra, 29 Cal.App.4th 982, 993.) Even a voluntary dismissal by a plaintiff counts as a final adverse determination against the plaintiff. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779.) The court found seven litigations in the past seven years had been determined against plaintiff. Those case were:
The vexatious litigation statutes have been upheld as constitutional on several occasions. (See, e.g., Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786; Wolfe v. George (9th Cir. 2007) 486 F.3d 1120, 1125.)
Eng v. Wong (San Francisco County Superior Court Case No. CGC-07-459517, filed Jan. 11, 2007). This action alleging false representations in connection with a real estate sale was determined adversely to plaintiff when the trial court granted summary judgment against him on the complaint and awarded the defendant $70,342.36 on his cross-complaint.
Eng v. World Savings (U.S. District Court, Northern District California, Case No. C-07-0223-WHA, filed Jan. 11, 2007). Action was voluntarily dismissed by plaintiff after the defendant warned him that it would pursue Federal Rules Civil Procedure, rule 11 sanctions if the case were not dismissed. No consideration was paid to plaintiff for that dismissal.
Eng v. United Commercial Bank (San Francisco County Superior Court Case No. CGC-08-479286, filed Aug. 29, 2008). Plaintiff's first of two cases against this defendant (the two were later consolidated and removed to federal court), claimed that plaintiff was misled as to the terms of a loan. The matter was finally determined against plaintiff after the defendant's receiver filed a successful motion for summary judgment. Plaintiff's appeal was dismissed on October 5, 2010.
Plaintiff claims an appeal in this matter is still pending, however, the appeal was dismissed by the Ninth Circuit Court of Appeals on October 5, 2010. At the trial court, plaintiff claimed he was represented by counsel. Defendants showed this claim to be false.
Eng v. United Commercial Bank (San Francisco County Superior Court Case No. CGC-08-482357, filed Dec. 1, 2008). This second action filed against this defendant disputed a foreclosure sale of plaintiff's real property. The matter was determined against plaintiff following the defendant's successful motion for summary judgment. The appeal from this ruling has also been dismissed.
Eng v. Ng (San Francisco County Superior Court Case No. CCH-08-567525, filed Mar. 10, 2008). The first of three actions filed against this defendant was a petition for injunction prohibiting harassment. It was denied by the trial court without prejudice on April 2, 2008.
Eng v. Ng (San Francisco County Superior Court Case No. CGC-08-475137, filed May 8, 2008). This was the second action filed against this defendant, and included several named codefendants. The matter was dismissed without prejudice 11 days after it was filed. Defendants offered evidence that plaintiff paid this defendant $1,500 to resolve the lawsuits between them.
Eng v. Ng (San Francisco County Superior Court Case No. CGC-08-482358, filed Dec. 1, 2008). This third action was dismissed with prejudice, though the defendant never paid plaintiff any money or any other consideration in exchange for the dismissal.
Defendants ask that we take judicial notice of six other cases that were determined adversely to plaintiff. As the vexatious litigation statute requires only five cases to have been filed and determined adversely against the litigant, we deem it unnecessary to consider the additional cases at this time.
We have reviewed the record on appeal and conclude it contains substantial evidence to support the trial court's conclusion that all seven cases were filed by plaintiff in propria persona and that all had been determined adversely to him. While plaintiff now contests some of the trial court's evidentiary conclusions, as a court of review it is not our function to reweigh the evidence. We conclude the trial court properly found plaintiff to be a vexatious litigant.
IV. No Reasonable Probability Plaintiff Will Prevail
The trial court also found, as required by section 391.1, there was not a reasonable probability that plaintiff would prevail in the present litigation. The court did not err in making this determination.
"[A] defendant may stay pending litigation by moving to require a vexatious litigant to furnish security if the court determines 'there is not a reasonable probability' the plaintiff will prevail." (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221.) The trial court considers the "evidence, written or oral, by witnesses or affidavit, as may be material to" (§ 391.2) whether it is not reasonably probable that the vexatious litigant will prevail. (§ 391.1.) "When considering a motion to declare a litigant vexatious under section 391.1, the trial court performs an evaluative function. The court must weigh the evidence to decide both whether the party is vexatious based on the statutory criteria and whether he or she has a reasonable probability of prevailing. [Citation.] Accordingly, the court does not assume the truth of a litigant's factual allegations and it may receive and weigh evidence before deciding whether the litigant has a reasonable change of prevailing." (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635.)
Distilled to its essence, plaintiff's complaint is that the loss of his property by foreclosure was the result of defendants' negligence in handling a potential sale. Defendants established through declarations and documents that they were not retained to represent plaintiff, but instead they represented a potential buyer, a party adverse to plaintiff. The complaint itself alleges that defendants represented the potential buyer only. Plaintiff does not provide a citation to a single case in which a prospective buyer's real estate agent has been held to owe a duty of care to a seller in the context of a failed sale. Relevant appellate cases hold that a buyer's agent has a duty to the buyer only, which requires the agent to do everything possible to gain an advantage for the buyer. (Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1115-1116; see also Civ. Code, § 2079.16, under which the buyer's agent is not deemed an agent of the seller, even if by agreement the agent may get compensation for services rendered either in full or in part from the seller.) The trial court did not err in concluding there was not a reasonable probability that plaintiff would prevail.
Plaintiff listed the property himself under his own brokerage firm name.
Apparently, the sale failed because plaintiff's lender would not consent to allowing the prospective buyer to assume the loan.
Plaintiff's assertion that the trial court abused its discretion in refusing to issue a detailed statement of decision is not well taken. A trial court is under no obligation to issue a formal written statement of decision in connection with its rulings on pretrial motions.
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V. Failure To Accept Voluntary Dismissal
Plaintiff claims the trial court abused its discretion in refusing to accept his request for voluntary dismissal. As noted above, he moved for dismissal just before the hearing on the vexatious litigation motion, after the tentative ruling had already been issued.
The right to dismiss is not absolute. Under section 581, subdivision (b)(1), the right to dismiss ends with the "actual commencement of trial," a phrase that includes decisions on potentially dispositive legal questions by the court. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784-788.) This concept has been extended to tentative rulings. (See Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 72-73.) It has been noted that "recent authority suggests parties are not permitted to voluntarily dismiss their actions after the court has made a dispositive ruling or given some indication of the legal merits of the case, or when the procedural posture is such that it is inevitable the plaintiff will lose. After such occurrences, these cases hold that plaintiffs lose their right to voluntarily dismiss their case." (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 877, italics added.)
Here, the trial court had already issued its tentative ruling on what was likely to be, and indeed proved to be, a dispositive motion filed by defendants before plaintiff sought to introduce his motion to dismiss. The court's ruling pertained to the merits of the case, as the court found that plaintiff was unlikely to prevail. We find no abuse of discretion.
VI. Failure to Recuse
Plaintiff faults the trial court for refusing to consider his motion to recuse, which he attempted to introduce well into the hearing. As he acknowledges, section 170.6 requires that the motion be filed five days before the date of a hearing where the identity of the judge is known at least ten days before the hearing. He claims he had "no way to know for certain that Hon. Charlotte Walter Woolard would be hearing the matter." He does not cite to any case for the proposition that the statutory time limits do not apply unless a litigant is guaranteed that the judge assigned to the relevant department will be present at the hearing. Indeed, our Supreme Court definitively stated in People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1183, that "when section 170.6 speaks of a 'known judge,' it does not require that the 'known judge,' with absolute certainty, will ultimately preside over the trial." Plaintiff admits he understood Judge Woolard is usually in the department to which his case was assigned. We find no error.
DISPOSITION
The order dismissing this case with prejudice is affirmed.
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Dondero, J.
We concur:
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Marchiano, P. J.
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Banke, J.