Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC853856, Richard E. L. Strauss, Judge. Affirmed.
BENKE, J.
In this medical malpractice case, plaintiff represented himself. Among other difficulties he faced at trial was his failure to retain an expert who could support his contention defendant, a urologist, acted outside the standard of care in performing a prostate procedure. After a jury was seated and after defendant's counsel had completed his cross-examination of plaintiff, defendant offered to waive his costs and his claims for malicious prosecution and abuse of process in exchange for a voluntary dismissal. Plaintiff accepted defendant's offer and voluntarily dismissed his complaint with prejudice. Shortly after dismissing the complaint, plaintiff moved for a mistrial. The trial court treated the motion as a motion to vacate and denied it. Plaintiff then made a motion to reconsider, which the court also denied. We affirm.
In both his initial motion and his motion to reconsider, plaintiff argued that evidence defendant presented at trial was false and that presentation of the false evidence caused him to dismiss his complaint. As defendant points out, such allegations of intrinsic fraud will not support relief from a judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2004 plaintiff and appellant Ed Finkelstein was treated by defendant and respondent Martin Bastuba, a board-certified urologist, for benign prostatic hyperplasia (BPH). Although Bastuba recommended a procedure known as transurethral resection of the prostate (TURP), Finkelstein requested, and Bastuba agreed to perform, a less invasive transurethral microwave thermotherapy (TUMT). Following the procedure, Finkelstein continued to experience urine retention and suffered a urinary tract infection. At a follow-up visit, Bastuba advised Finkelstein to catheterize himself four times a day and to return in six weeks. Bastuba never saw Finkelstein again.
In September 2005 Finkelstein, acting in propria persona, filed a malpractice action against Bastuba. During the course of pretrial litigation, Finkelstein moved for summary judgment on the grounds Bastuba's discovery responses showed a medical device salesman actually performed the TUMT on Finkelstein. Bastuba disputed Finkelstein's contention and the trial court denied the motion.
Trial commenced on July 27, 2007. At the time of trial, Finkelstein's complaint alleged claims for professional negligence, breach of contract, fraud, product liability, elder abuse, assault and battery, and practice of medicine by a non-physician. However, at the time of trial Finkelstein had not retained or designated any experts who would testify on his behalf, and the trial court indicated it would not permit him to offer any expert testimony.
After a jury was seated, Finkelstein testified on his own behalf and was cross-examined by defense counsel. During the course of the cross-examination, defense counsel confronted Finkelstein with a number of prior inconsistent statements. At the lunch break, defense counsel renewed a previous offer to waive costs and potential malicious prosecution and abuse of process claims in exchange for a voluntary dismissal with prejudice. Finkelstein asked to think about the offer over the lunch hour and shortly before the trial resumed he accepted the offer. The court put the parties' agreement on the record after Finkelstein assured the court he understood the dismissal would end his claims. Finkelstein stated: "Yes. I understand. I just don't feel qualified." "I don't feel I'm qualified to pursue it further." "I just don't want to pursue it anymore." The court then dismissed the action with prejudice and discharged the jury.
On August 1, 2007, the day after his case was dismissed, Finkelstein had a change of heart and filed a declaration entitled "Plaintiff In Pro Per Ed Finkelstein's Declaration of Coercion Used to Waive His Right To Continue Trial" and a second document entitled "Revocation of Resolution of Lawsuit By Plaintiff In Pro Per Ed Finkelstein On Basis of Mistrial." Finkelstein followed up on these documents on August 16, 2007, with a motion for mistrial.
In his motion Finkelstein argued his dismissal had been coerced by what he believed was false evidence presented by Bastuba's counsel during his cross-examination and by the trial court's evidentiary rulings. The trial court treated the motion for mistrial as a motion to vacate and denied it. In rejecting Finkelstein's contention that the dismissal had been coerced and that he was in a state of anxiety when he agreed to the dismissal, the trial court stated: "There wasn't any hesitation about your decision. You had decided that you wanted to dismiss the case." "You said nothing about being coerced. I didn't see anything that made it look like you were coerced."
Shortly after his motion for mistrial was denied, Finkelstein filed a motion to reconsider. However, after Bastuba filed an opposition to the motion, Finkelstein filed a notice of withdrawal of the motion to reconsider.
On February 8, 2008, Finkelstein filed a second motion to reconsider. In addition to renewing his claims the dismissal was coerced by fraudulent evidence, Finkelstein argued new evidence as to the efficacy of the antibiotic Bastuba used to treat Finkelstein's postoperative infection supported an order setting aside the dismissal. The trial court denied the motion to reconsider.
On April 24, 2008, Finkelstein filed a notice of appeal from the minute order dismissing his complaint. After we noted the minute order was not appealable, on June 26, 2008, the trial court entered a written dismissal as required by Code of Civil Procedure section 581d. Thus we treat Finkelstein's appeal as an appeal from the written order. (Rule 8.751(c), California Rules of Court.)
DISCUSSION
As Bastuba points out, although not models of clarity, Finkelstein's briefs essentially argue that his willingness to dismiss his lawsuit was the product of fraudulent evidence defense counsel used to cross-examine him and the trial court's unwillingness to let him present expert testimony, to appoint experts on his behalf or rely on the doctrine of res ipsa loquitor. As Bastuba also points out, these allegations of intrinsic fraud will not support relief from the dismissal.
"Under certain circumstances a court, sitting in equity, can set aside or modify a valid final judgment. [Citations.] This power, however, can only be exercised when the circumstances of the case are sufficient to overcome the strong policy favoring the finality of judgments. 'A basic requirement of an action which can lead to a valid judgment is that a procedure should be adopted which in the normal case will give to the parties an opportunity for a fair trial which is reasonable in view of the requirements of public policy in the particular type of case. If this requirement is met, a judgment awarded in an action is not void merely because the particular individual against whom it was rendered did not in fact have an opportunity to present his claim or defense before an impartial tribunal.... [P]ublic policy requires that only in exceptional circumstances should the consequences of res judicata be denied to a valid judgment.' [Citation.][¶]... [¶]
" 'Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side,—these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.' [Citation.]
"The right to relief has also been extended to cases involving extrinsic mistake. [Citation.] 'In some cases... the ground of relief is not so much the fraud or other misconduct of the defendant as it is the excusable neglect of the plaintiff to appear and present his claim or defense. If such neglect results in an unjust judgment, without a fair adversary hearing, the basis for equitable relief is present, and is often called "extrinsic mistake." ' [Citation.]
"Extrinsic mistake is found when a party becomes incompetent but no guardian ad litem is appointed [citations]; when one party relies on another to defend; when there is reliance on an attorney who becomes incapacitated to act [citations]; when a mistake led a court to do what it never intended [citations]; when a mistaken belief of one party prevented proper notice of the action [citations]; or when the complaining party was disabled at the time the judgment was entered [citations]. Relief has also been extended to cases involving negligence of a party's attorney in not properly filing an answer [citations]; and mistaken belief as to immunity from suit [citations.]
"Relief is denied, however, if a party has been given notice of an action and has not been prevented from participating therein. He has had an opportunity to present his case to the court and to protect himself from mistake or from any fraud attempted by his adversary. [Citations.] Moreover, a mutual mistake that might be sufficient to set aside a contract is not sufficient to set aside a final judgment. The principles of res judicata demand that the parties present their entire case in one proceeding. 'Public policy requires that pressure be brought upon litigants to use great care in preparing cases for trial and in ascertaining all the facts. A rule which would permit the re-opening of cases previously decided because of error or ignorance during the progress of the trial would in a large measure vitiate the effects of the rules of res judicata.' [Citation.] Courts deny relief, therefore, when the fraud or mistake is 'intrinsic'; that is, when it 'goes to the merits of the prior proceedings, which should have been guarded against by the plaintiff at that time.' [Citations.]
"Relief is also denied when the complaining party has contributed to the fraud or mistake giving rise to the judgment thus obtained. [Citations.] 'If the complainant was guilty of negligence in permitting the fraud to be practiced or the mistake to occur equity will deny relief.' [Citation.]
"Whether the case involves intrinsic or extrinsic fraud or mistake is not determined abstractly. 'It is necessary to examine the facts in the light of the policy that a party who failed to assemble all his evidence at the trial should not be privileged to relitigate a case, as well as the policy permitting a party to seek relief from a judgment entered in a proceeding in which he was deprived of a fair opportunity fully to present his case.' " (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 470-473, fn. omitted; see also In re Margarita D. (1999) 72 Cal.App.4th 1288, 1295; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 633.)
In short, as the court in In re Margarita D. stated: "It follows that 'in demonstrating extrinsic fraud, it is insufficient for a party to come into court and simply assert that the judgment was premised upon false facts. The party must show that such facts could not reasonably have discovered prior to the entry of judgment.' " (In Margarita D., supra, 72 Cal.App.4th at p. 1295.)
Here, Finkelstein has not and cannot assert that he was in any manner prevented from presenting his case. He in fact vigorously litigated his claims and went to trial before deciding to dismiss his lawsuit. His contention that he was the victim of either false evidence or erroneous rulings by the trial court will not support any relief from the dismissal.
We also reject Finkelstein's contention that by pursuing sanctions against him following the dismissal, Bastuba withdrew the consideration he had provided for the dismissal. Prior to trial the trial court imposed $700 in discovery sanctions on Finkelstein for filing frivolous discovery motions. The trial court then stayed its order imposing the sanctions, pending Finkelstein's good behavior. After the case was dismissed, Finkelstein served an unauthorized subpoena duces tecum on Bastuba, which required Bastuba to file a motion to quash. In granting the motion to quash, the trial court imposed an additional $420 in sanctions under section 1987.2, subdivision (a), and lifted its stay of its prior sanctions order. In offering a waiver of costs at the time of trial, Bastuba did not agree to waive any future costs or sanctions Finkelstein's future conduct might thereafter engender. Plainly, the sanctions were based on Finkelstein's post-dismissal conduct and hence were not part of the parties' bargain.
Judgment affirmed. Bastuba to recover costs on appeal.
WE CONCUR: McCONNELL, P. J., NARES, J.