Opinion
A127653
08-18-2011
IDA FOSTER, Plaintiff and Appellant, v. NOVASTAR MORTGAGE, INC. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCS031790)
Appellant Ida Foster appeals the judgment in favor of respondents on their motion for judgment in a court trial pursuant to Code of Civil Procedure section 631.8. In her lawsuit against respondents in connection with a loan, appellant asserted claims for rescission; specific performance; promissory fraud; concealment and misrepresentation; breach of fiduciary duty; negligence; injunctive relief; wrongful foreclosure; violation of the Truth and Lending Act and Predatory Lending Act; and to set aside a trustee's sale. Appellant insists for the first time on appeal that the trial court violated her due process right to appear by counsel in that the court denied her the opportunity to obtain counsel, and failed to advise her of the right to retain counsel. There was no due process violation and accordingly we affirm the judgment.
Respondents are Novastar Mortgage, Inc., Saxon Mortgage Services, Inc., and First Priority Financial, Inc.
I. FACTS
Appellant filed this civil action on July 21, 2008. On January 7, 2009, the trial court designated the matter for trial to commence November 3, 2009. Appellant was represented by David Sternberg from the inception of the case until September 29, 2009, at which time she executed and filed a substitution of attorney substituting herself as her new legal representative. The substitution form contained the following notice:
"NOTICE TO PARTIES WITHOUT ATTORNEYS
"A party representing himself or herself may wish to seek legal assistance. Failure to take timely and appropriate action in this case may result in serious legal consequences."
On October 2, 2009, appellant filed her settlement conference statement and on the 13th of that month, the mandatory settlement conference was "heard." Thereafter she filed a trial management conference report; filed an amendment to the complaint naming Saxon Mortgage Services, Inc. as a "DOE" defendant; and on October 28, issued five subpoenas. Finally, on November 3, 2009, appellant filed her trial brief.
Respondents and others moved to quash the subpoenas. At the commencement of trial, the court granted the motions as to respondents because they were not timely served, and ruled it lacked jurisdiction to enforce the other subpoenas. Responding to the bad news, appellant said it was "not fair to me. I don't feel like I am getting a fair trial if these people can't come." The trial court pointed out that appellant was represented by counsel for over 13 months; the trial date was set 10 months ago; that she was not represented by counsel was not the fault of the court or the other attorneys; and appellant failed to comply with the law regarding the five subpoenas. Reinforcing that she would not get the subpoenas and the failure to file them correctly was "no one's fault but your own," the court queried: "[A]re you prepared to proceed at this time? Yes or no?" Appellant replied, "Well, yes, I guess."
Appellant presented her case through her own direct testimony, much of which was argumentative. Opposing counsel objected frequently; the court sustained the objections. The court explained that counsel was making dozens of objections, which were upheld, and cautioned that she needed to "present clear, proper, admissible evidence."
Apparently there was a loan offer of $5,000. Appellant told the broker she could not afford it. The broker knew that she had a reputation for cancelling loans. Appellant testified that the broker came back with a plan to "get the cash out to pay off the credit cards. He needed a higher score. He said he would do that and I wouldn't need to make no payments and he would just go ahead and get the cash out to raise my credit score and he would refinance it to a lower rate." She signed the papers, including the form informing her of the right to cancel the loan. She was handed the loan documents one at a time, and she signed each page. When they came to the loan cancellation form, the broker shouted, "Don't cancel" and kept the form. Appellant complained that "[t]hey kept the paperwork." She "didn't have the information to . . . cancel with. I didn't have no information, no knowledge of who everybody was." Appellant admitted that she made a mistake in signing "something I don't even—hadn't read the paperwork completely."
At the close of appellant's testimony respondents moved successfully for judgment under Code of Civil Procedure section 631.8. This appeal followed.
II. DISCUSSION
The due process clauses of our federal and state Constitutions guarantee the right of a party in a civil proceeding to appear by counsel retained at his or her own expense. (In re Kathy P. (1979) 25 Cal.3d 91, 102; Mendoza v. Small Claims Court (1958) 49 Cal.2d 668, 673; Kim v. Orellana (1983) 145 Cal.App.3d 1024, 1027.) Appellant urges that this right includes a reasonable opportunity to obtain counsel, because without the opportunity, a party would be unable to exercise the right to be heard by counsel. She contrasts her situation with that of the defendant in County of Los Angeles v. Estes (1979) 96 Cal.App.3d 513, 516 (Estes), who argued on appeal that the trial court's failure to advise him of the right to obtain a continuance to obtain counsel amounted to a denial of due process. The reviewing court disagreed, noting that by his own statements the defendant demonstrated an independent determination not to have counsel and to proceed in pro per status, and further pointing out that the defendant had adequate notice before trial and sufficient time to obtain an attorney if he so wanted.
Here, unlike the Estes defendant, appellant had the benefit of retained counsel for over 13 months. More than a month before trial appellant substituted herself as legal representative. At trial she said her attorney "just stopped in the middle of everything." Appellant proceeded in pro per for 35 days before trial, the trial date having been set 265 days earlier. She had ample notice of the pending trial and, having made the decision to terminate her attorney, she had ample notice—35 days—to retain a new attorney and/or ask for a continuance to do so. She did neither. Nor, at trial, did she ask for a continuance. Rather, she indicated she would proceed. Moreover, between the time of terminating counsel and appearing for trial, appellant actively prosecuted her case, giving the trial court grounds to conclude she was prepared to proceed. Finally, the substitution form which appellant signed and filed contained an alert, specifically for parties without attorneys, that such a party "may wish to seek legal assistance. Failure to take timely and appropriate action in this case may result in serious legal consequences." For all these reasons, we conclude that the absence of an advisement by the trial court that she could seek a continuance did not violate appellant's due process rights.
Appellant suggests that her statement that she was not going to get a fair trial should have triggered the trial court's offer of a continuance to obtain counsel. Appellant's statement related to the fact that her subpoenas had been quashed and she had no witnesses other than herself. The subpoenas were not timely served and that was the end of the matter. New counsel would not solve that problem.
Appellant also asserts that the subpoenas were untimely served by her former attorney. This is not the case. The subpoenas were served on October 28, 2009, a month after appellant assumed her own representation duties. A litigant appearing in pro per " 'is entitled to the same, but no greater, consideration than other litigants and attorneys . . . . Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.' " (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)
On a related theme, appellant calls our attention to the Supreme Court's pronouncement in In re Kathy P., supra, 25 Cal.3d at page 103 that "due process does not require advice of the right to appear by retained counsel when there are no special circumstances making omission of the advice unreasonable." (Italics added.) From this appellant argues the existence of special circumstances in that her attorney abandoned her, and she "lacked the mental ability to represent herself at trial because she has less than a high school education." In the context of an adult or juvenile infraction proceeding, such special circumstances would, for instance, embrace " 'the imposition of multiple maximum penalties . . . or proof of gross physical, linguistic or mental inability of the defendant to represent himself or to understand that he has the right and the means to employ counsel.' " (Id. p. 103, fn. 13.) First, this is neither a criminal or juvenile case, nor a case involving penalties. Second, the record does not reveal appellant's education level or economic status and, while she was not the most coherent witness, she made her point and demonstrated some understanding of the complexity of loan transactions. Indeed, she had canceled a loan in the past. Further, she actively prosecuted the case on her own for over a month, filing numerous pleadings, issuing subpoenas and attending a settlement conference. Most significantly, she knew she could retain counsel because she retained counsel at the outset of this case. Again, there was no due process violation here.
III. DISPOSITION
The judgment is affirmed.
Reardon, Acting P.J. We concur: Sepulveda, J. Rivera, J.