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Galdjie v. Moses

California Court of Appeals, Second District, Second Division
Mar 13, 2008
No. B196844 (Cal. Ct. App. Mar. 13, 2008)

Opinion


PARVIZ GALDJIE, Plaintiff and Appellant, v. GARRY MOSES, Defendant and Respondent. B196844 California Court of Appeal, Second District, Second Division March 13, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. LC071796 Richard B. Wolfe, Judge.

Law Offices of Barry S. Zelner and Barry S. Zelner for Plaintiff and Appellant.

Nemecek & Cole, Jonathan B. Cole, Claudia Stone, and Mark Schaeffer for Defendant and Respondent.

CHAVEZ, J.

This appeal follows a final judgment granting a special motion to strike pursuant to Code of Civil Procedure section 425.16 (section 425.16) in favor of Garry Moses (respondent), dismissing appellant Parviz Galdjie, M.D.’s (appellant) complaint with prejudice, and finding respondent entitled to attorney fees and costs. Following the entry of judgment, appellant filed a motion to vacate the judgment, which the trial court denied. Appellant appeals from the trial court’s order denying his motion to vacate the judgment, bringing this case before us for a third time.

Appellant’s notice of appeal also indicates that appellant intended to appeal the trial court’s order granting respondent attorney fees and costs. However, appellant has not addressed the attorney fee and cost award in his briefs to this court, therefore we shall not address it.

Appellant’s sole contention on appeal is that the trial court erred in denying his motion to vacate the judgment because the judgment was obtained through extrinsic fraud. The extrinsic fraud, appellant contends, was “perjury” committed by respondent in his declaration in support of the special motion to strike.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The initial complaint in this action was filed by appellant on June 20, 2005, alleging that on September 21, 2001, respondent maliciously and without probable cause filed a complaint for medical malpractice against appellant and Rodrigo Sanchez, D.C., on behalf of Jeanne and Johanna Sampson (the underlying action).

1. The Underlying Action

Johanna Sampson was involved in a rollover car accident. Appellant examined her and cleared her for chiropractic treatment. The extent of appellant’s examination of Johanna was unclear, but the records indicated that Johanna was not x-rayed before she was treated by the chiropractor, Dr. Sanchez. After she received the chiropractic treatment, Johanna had to undergo spinal surgery. Respondent was advised by an independent chiropractor that it was below the standard of care to perform chiropractic adjustment on the lower back of a patient involved in a rollover car accident without first obtaining x-rays.

In a declaration signed under penalty of perjury, respondent described the events which subsequently occurred in the litigation. He stated that, after appellant’s deposition was taken on January 17, 2003, appellant’s attorney Jaime Skebba requested a voluntary dismissal of appellant in the underlying action in exchange for a waiver of costs and a waiver of a malicious prosecution claim. Respondent informed Skebba that he needed to take the deposition of codefendant Sanchez and obtain an expert’s review before considering dismissal. Following Dr. Sanchez’s deposition on March 18, 2003, Skebba again requested appellant’s dismissal. Respondent mailed appellant’s deposition transcript to an orthopedist on April 29, 2003. When he did not receive an opinion within a reasonable time, respondent sought an opinion from another orthopedist, who opined that appellant’s care and treatment were within the standard of practice. Once he received that opinion, he obtained his clients’ authority to dismiss appellant.

Skebba declared that on May 9, 2003, he filed a motion for summary judgment in the underlying action on behalf of appellant. He stated that on June 20, 2003, respondent agreed to a voluntary dismissal of appellant. Skebba declared that appellant refused to waive the malicious prosecution action because his increased insurance rates were already locked in; thus, a dismissal at that point would not matter. However, appellant stated he would consider a waiver if respondent sent him a letter indicating the underlying action was based on incorrect information. On July 14, 2003, respondent provided the requested letter, which appellant found to be inadequate. Appellant refused to waive his claim for malicious prosecution. On July 31, 2003, the trial court granted appellant’s unopposed motion for summary judgment in the underlying action.

Appellant filed a complaint against respondent for malicious prosecution and abuse of process.

2. The Malicious Prosecution Action and Appeal

Respondent filed a special motion to strike appellant’s malicious prosecution and abuse of process causes of action against him under section 425.16. His declaration in support of the motion stated that he filed the underlying action against appellant to protect his clients’ rights; he believed the action was meritorious; and he did not file the complaint out of malice. The trial court denied the motion. Respondent appealed, and this court reversed the trial court’s decision. We held that appellant failed to show the required elements of (1) lack of probable cause, and (2) malice, therefore appellant could not make out a claim for malicious prosecution. We further found that appellant failed to show a probability of prevailing on his cause of action for abuse of process. We directed the trial court to enter a new order granting the motion to strike and to consider and rule upon respondent’s attorney fee request pursuant to section 425.16, subdivision (c).

On January 24, 2007, the trial court entered an order granting respondent’s special motion to strike and declaring that respondent would be entitled to attorney fees and costs. On February 6, 2007, the trial court awarded respondent attorney fees and costs in the sum of $26,838.33.

3. Appellant’s Post judgment Motions

Following the decision of this court reversing the trial court’s order, appellant filed a motion to recall the remittitur and “motion in equity to set aside decision procured by extrinsic fraud” in this court. In the motion, appellant argued that the decision of this court was a result of “blatant perjury” committed by respondent. In sum, appellant argued that respondent committed perjury by stating in his declaration that the first expert to whom he submitted appellant’s deposition for an opinion did not act within a reasonable time, thus causing respondent to have to seek the opinion of a different expert. In support of his motion, appellant attached the declaration of the first expert, who stated that the time lapse was respondent’s fault because the expert had requested medical records which respondent never provided. On February 20, 2007, we denied appellant’s motions because appellant failed to set forth grounds for relief. In addition, we granted respondent’s motion for sanctions. In an order and opinion imposing sanctions dated March 19, 2007, we discussed appellant’s accusations of perjury against respondent. We concluded that appellant’s attempt to characterize his claim as extrinsic fraud failed, thus appellant’s motion in equity was not based on proper grounds. We concluded that the motion was frivolous and granted respondent’s request for attorney fees in the amount of $2,700.

Appellant also filed a petition for review with the Supreme Court, which was denied.

The motion to recall the remittitur incorporated the motion in equity. We will refer to both as the “motion” or the “motion in equity.”

Appellant filed an identical motion in the superior court, captioned “motion in equity to vacate judgment of the Court of Appeal which reversed the judgment of the trial court and ordered the granting of defendant’s motion under Code of Civil Procedure section 425.16.” Respondent opposed the motion on the grounds that this court’s opinion was res judicata and binding on the trial court, which was required to follow this court’s decision.

The trial court denied appellant’s motion, stating that “This Court cannot reconsider the finding of the Court of Appeal, including the reconsideration of ‘new’ evidence (in this case, that [respondent] committed perjury).” Appellant appeals from this order.

DISCUSSION

I. Standard of Review

Appellant cited no statutory authority for his motion to vacate the judgment. Instead, he asserted that the motion was made “upon the equitable grounds that the judgment of the Court of Appeal was procured through . . . extrinsic fraud.” Appellant has failed to discuss the appropriate standard of review in his brief to this court.

Respondent directs us to authority indicating that similar post judgment motions are reviewed for abuse of discretion. (See, e.g., Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-258 [motion to vacate judgment]; Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027 [motion for reconsideration].) We review the trial court’s decision for abuse of discretion.

II. The Trial Court Properly Denied Appellant’s Motion

The trial court did not err in denying appellant’s motion to vacate the judgment. In its tentative decision, the trial court cited ample authority for its conclusion that it could not reconsider the decision of the Court of Appeal. (See, e.g., Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1508 [“‘“An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department”’”].)

In addition, as discussed in this court’s order and opinion imposing sanctions dated March 19, 2007, the trial court properly concluded that it could not consider appellant’s “new” evidence regarding respondent’s alleged perjury. As he previously acknowledged in his motion in equity, appellant notes that a judgment may only be challenged on the grounds of extrinsic, rather than intrinsic, fraud. And, as he previously argued to this court in the same motion, appellant argues that while perjury is generally considered to be intrinsic fraud, “justice requires that this court view the fraudulent perjured testimony as extrinsic rather than intrinsic.”

In this appeal, appellant cites no new case law that was not previously cited in the motion in equity.

As set forth in our opinion of March 19, 2007, intrinsic fraud is fraud internal to the adversary proceedings, such as perjury committed during trial; extrinsic fraud is fraud outside the proceedings which prevents the defrauded party from getting into court at all. (Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 7.) The alleged perjury at issue is intrinsic fraud. Because appellant’s motion to vacate the judgment centered on allegations of intrinsic fraud, the trial court properly declined to grant it.

III. Respondent’s Motion for Sanctions and Attorney Fees and Costs

Pursuant to California Rules of Court, rule 8.276(e)(1), and Code of Civil Procedure section 907, respondent has requested sanctions on the grounds that this appeal is frivolous. Rule 8.276(e)(1) states: “On a party’s or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs, on a party or attorney for: [¶] (A) Taking a frivolous appeal or appealing solely to cause delay.” Section 907 similarly provides: “When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.”

The Supreme Court has set forth the necessary due process requirements to be afforded a party prior to the imposition of sanctions. In In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654, the Supreme Court stated:

“The appellate courts should exercise their statutory power to impose sanctions only after scrupulously observing the due process mandates set forth herein. Penalties for prosecuting frivolous appeals should not be imposed without giving fair warning, affording the attorney an opportunity to respond to the charge, and holding a hearing. Further, when imposing sanctions, the court should provide the attorney with a written statement of the reasons for the penalty.”

We have complied with the preliminary due process requirements set forth in Flaherty. Respondent’s motion for sanctions was filed on September 27, 2007. On October 30, 2007, we issued an order informing the parties that respondent’s motion for sanctions would be considered when the matter was placed on calendar. Prior to oral argument, we sent out a letter informing the parties that we would be considering respondent’s motion for sanctions, allowing appellant 10 days to file an opposition, and informing the parties that they should be prepared to discuss respondent’s motion for sanctions at oral argument. Appellant filed an opposition prior to oral argument, and respondent filed a reply thereto. Both parties appeared at oral argument to argue their positions on the issue of sanctions.

Having satisfied the preliminary due process requirements, we must now determine whether this appeal is frivolous. In order to make this determination, we ask “not whether [appellant] acted in the honest belief he had grounds for appeal, but whether any reasonable person would agree that the point is totally and completely devoid of merit, and, therefore, frivolous.” (Estate of Walters (1950) 99 Cal.App.2d 552, 558.)

We conclude that appellant’s appeal is not totally and completely devoid of merit. Though in this appeal appellant has presented many of the same arguments that he presented to this court in connection with his motions to recall the remittitur and motion in equity to set aside decision procured by extrinsic fraud, he does emphasize the unusual facts of this case and the severe hardship he has endured as a result of increased insurance premiums. Though we are not persuaded by it, there is some merit to his argument. Furthermore, there does not appear to be any ulterior motive in bringing the motion. We therefore deny respondent’s motion for sanctions.

We do find however, that respondent is entitled to attorney fees and costs as provided in section 425.16, subdivision (c). That section provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” Attorney fees and costs incurred on appeal are recoverable under this statute, and are properly determined by the trial court. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)

We reject appellant’s attempt to characterize this appeal as the appeal of a new matter in equity, unrelated to the underlying lawsuit. Appellant cites no authority for the proposition that a motion to vacate a judgment of dismissal under section 425.16 initiates a new action not subject to the attorney fee provision set forth in section 425.16. This appeal is directly related to the underlying judgment, therefore the attorney fee provision found in section 425.16, subdivision (c) applies.

Respondent cites Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328 for the proposition that it is appropriate for an appellate court to determine fees where “it would be wasteful to remand and invite a new round of litigation.” (Id. at p. 346.) The Mann case is distinguishable from the matter before us in two significant ways: first, the Court of Appeal was merely modifying an attorney fee award which was improperly calculated by the trial court; and second, the traditional reason for allowing a trial court the discretion to grant the attorney fee award – i.e., the trial court’s familiarity with the work performed by the attorneys – did not apply, because the trial judge who had granted the fee award did not preside over the merits of the underlying appeal. (Ibid.) We find that, under the circumstances before us, it is appropriate to follow the usual procedure of allowing the trial court to exercise its discretion on the question of the proper amount of attorney fees.

DISPOSITION

The order is affirmed. Respondent is entitled to attorney fees and costs, including reasonable fees and costs on appeal. The matter is remanded to the trial court to determine the amount of reasonable attorney fees and costs to be awarded to respondent.

We concur:DOI TODD, Acting P. J.ASHMANN-GERST, J.


Summaries of

Galdjie v. Moses

California Court of Appeals, Second District, Second Division
Mar 13, 2008
No. B196844 (Cal. Ct. App. Mar. 13, 2008)
Case details for

Galdjie v. Moses

Case Details

Full title:PARVIZ GALDJIE, Plaintiff and Appellant, v. GARRY MOSES, Defendant and…

Court:California Court of Appeals, Second District, Second Division

Date published: Mar 13, 2008

Citations

No. B196844 (Cal. Ct. App. Mar. 13, 2008)