FINN v. DRAG (1982)

M. E. Finn (Finn), in propria persona, appeals from two orders ¹ denying her motion to vacate a prior order dismissing and striking her complaint for damages and injunctive relief against T. F. Drag (Drag), her former employer.   Her contentions on appeal are that:  1) she was deprived of procedural due process;  2) the trial court erred in denying her motion to vacate a void order;  and 3) the trial court abused its discretion by requiring her to furnish security as a vexatious litigant.   For the reasons set forth below, we have concluded that the portion of the March 3 order denying her motion to vacate must be affirmed, the portion of that order requiring her to post security, reversed, and the purported appeal from the order of October 28, 1977, dismissed.

The record reveals the following pertinent chronology:

On July 6, 1977, Finn filed the instant complaint seeking damages and injunctive relief against Drag, doing business as Redwood Realty Co.   She alleged that she was entitled to recover about $1,100 in commissions from the sale of real estate.   One of the transactions, Grace Street, failed to close after a dispute arose between the buyer and seller about payment for repairs.   Finn represented the buyer (Bowler) and accused Drag of making material misrepresentations to Bowler.   The complaint sought recovery of the $731.25 commission allegedly due on the Grace Street transaction.

As to the second transaction, Nunes Avenue, the complaint alleged that it had closed and Drag received the commission check on April 8, 1977, but refused to forward her portion.   After Finn took the matter to the Labor Commissioner in May 1977, Drag sent a check for $992.12 instead of the full amount due.   Finn alleged that Drag owed her $1,363.88 on this transaction but unlawfully deducted $371.76 for attorney fees he had incurred in connection with the Grace Street transaction.   Finn's complaint also challenged the amount of office fees and expenses that were charged to her by Drag under the terms of their broker-salesperson independent contractor agreement.

On August 9, 1977, Drag filed a demurrer on grounds of another action pending, failure to state a cause of action, and that the complaint was uncertain (Code Civ.Proc., § 430.10, subds. (c)(e)(f)).   The demurrer was scheduled for and heard on August 23, 1977.   Finn received notice and on August 19 sought and received an extension of time to August 23 to file her objections.   Her objections were filed on that date.   She was not present at the hearing ² when the demurrer was sustained;  she was given 30 days to amend her complaint.   Notice of the order was filed and served on her on August 25, 1977.

 On August 18, 1977, she filed a motion pursuant to Code of Civil Procedure section 170.6 to disqualify Judge Sparrow, who was scheduled to hear the demurrer.   Her motion alleged that Judge Sparrow was prejudiced against her and her interests.

Finn did not attempt to amend her complaint, but on August 30, 1977, filed a motion to vacate the August 23 order sustaining the demurrer with leave to amend.   The grounds for her motion to vacate were:  1) as Judge Sparrow had been disqualified, the order was void;  2) she had been deprived of due process of law as she was not present at the hearing on August 23;  and 3) the order was based on fraud.   Drag's opposition to her motion indicated that she had not served him with copies of her documents in her attempt to disqualify Judge Sparrow and also did not serve copies of her objections to the demurrer.   Finn's motion to vacate was denied on September 12, 1977.

On October 14, 1977, Drag filed his motion to strike Finn's complaint and dismiss the action on grounds of her failure to amend the complaint within 30 days of August 25, 1977 (the date of filing and service of the notice of the August 23 order).   The motion to strike was set to be heard at 2 p. m. on October 28, 1977.   The proof of service by mail indicated that a copy of the motion and supporting documents, including the hearing date, had been mailed to Finn on October 12.   Finn was not present at the hearing when the motion was granted by Judge Sparrow.   The same date, the clerk sent a notice of the ruling to both parties.   A copy was also served on Finn by mail.

On November 12, 1977, Finn filed her petition for a writ of prohibition and mandate in this court (Div. Four;  1 Civil No. 42708).   The grounds of relief alleged were substantially identical to those raised by her motion to vacate, i.e., the order of August 23 was void as Judge Sparrow was disqualified and she did not have an opportunity to be heard.   This court denied Finn's petition on December 2, 1977, without opinion.

On December 9, 1977, Finn moved to set aside the judgment of dismissal on grounds of extrinsic fraud pursuant to Code of Civil Procedure section 473, and set a hearing for December 23, 1977.   Finn's declaration in support of her motion argued that by extrinsic fraud, she was not notified that Judge Sparrow would rule on the demurrer after he had been disqualified.

 On December 21, 1977, Drag filed a motion pursuant to Code of Civil Procedure section 391 to require Finn to post security as a vexatious litigant, on the basis of the proceedings described above.   Drag's motion was set for a hearing on January 3, 1978.

Apparently, no formal hearings were held on December 23, 1977, or January 3, 1978, and both matters were continued, as Finn tried to obtain counsel.   On January 27, 1978, she had just obtained new counsel and both matters were continued to February 17, 1978, by Judge Lindsay.

On February 17, 1978, Judge Lindsay heard Finn's motion to vacate and Drag's motion for security as a vexatious litigant.   Finn was present and represented herself.   She had an opportunity to describe the assorted proceedings and the errors she believed had been committed.   The record discloses that Judge Lindsay carefully read and considered the entire file.   At the conclusion of the hearing, he denied Finn's motion to vacate and granted Drag's motion for security pursuant to Code of Civil Procedure section 391.   The court's order was entered on March 3, 1978, and this timely appeal ensued.

Preliminarily, we dispose of Finn's appeal from the order of October 28, 1977.   As indicated above, at footnote 1, the notice of appeal indicates that it was taken from that order of dismissal and the March 3, 1978, order denying Finn's motion to vacate the order of October 28, 1977, and granting Drag's motion for security pursuant to Code of Civil Procedure section 391.   Finn's notice of appeal was filed on April 12, 1978.   California Rules of Court, rule 2(a) provides, so far as pertinent:  “notice of appeal shall be filed within 60 days after the date of mailing notice of entry of judgment by the clerk of the court pursuant to section 664.5 of the Code of Civil Procedure, or within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, or within 180 days after the date of entry of the judgment, whichever is earliest ․”  (Emphasis added.)

 Here, since written notice of entry of the order of October 28, 1977, was served on Finn on that date, the 60-day period expired on December 27, 1977.   Compliance with the time for filing the notice of appeal is mandatory and jurisdictional (Vibert v. Berger, 64 Cal.2d 65, 67, 48 Cal.Rptr. 886, 410 P.2d 390).   Accordingly, Finn's purported appeal from the order of October 28, 1977, must be dismissed.

  When a litigant appears in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys (Taylor v. Bell, 21 Cal.App.3d 1002, 1009, 98 Cal.Rptr. 855;  Monastero v. Los Angeles Transit Co., 131 Cal.App.2d 156, 160, 280 P.2d 187).   Thus, we discuss only those matters raised by Finn that are properly set forth and argued (Cal.Rules of Court, rule 15;  Mattson v. County of Contra Costa, 258 Cal.App.2d 205, 212, 65 Cal.Rptr. 646).

 We turn to Finn's first contention on appeal.   She asserts that she was deprived of procedural due process because she was not present at the hearings on August 23, 1977, and October 28, 1977.   The elements of procedural due process are notice and an opportunity to be heard (Kash Enterprises, Inc. v. City of Los Angeles, 19 Cal.3d 294, 307–308, 138 Cal.Rptr. 53, 562 P.2d 1302).   We do not deem it necessary to discuss the rulings made in Finn's absence on the above dates, as the record reveals that she was present at the hearing on February 17, 1978.   She also had ample notice and opportunity to prepare for the hearing.

The record indicates that the court again had reviewed ³ all of the proceedings.   Finn stated that she did not need to repeat her position because the court “knew what's in the file.”   The court carefully asked her whether there was anything else she wanted to call to his attention.   She replied by reiterating that she was entitled to her day in court on the dismissal and to disqualify Judge Sparrow.   The court reviewed the authorities on her motion pursuant to Code of Civil Procedure section 473, and had also listened to over an hour and a half of tape.   The court based its rulings on the record and the oral arguments made at that time.⁴  As the trial court noted, Finn had not filed an amended complaint and adduced no facts that threw any light as to how she could have amended her complaint to state a cause of action;  nor had she met her burden of establishing by a preponderance of the evidence (Luz v. Lope, 55 Cal.2d 54, 10 Cal.Rptr. 161, 358 P.2d 289) facts that constituted either intrinsic or extrinsic fraud as to the prior proceedings (cf. Beresh v. Sovereign Life Ins. Co., 92 Cal.App.3d 547, 552, 155 Cal.Rptr. 74).

As indicated above, Finn was entitled to the same but no greater consideration than other litigants and attorneys.   California Rules of Court, rule 202(c), expressly permits a court to rule on a demurrer in the absence of one or both parties.  Code of Civil Procedure section 473, so far as pertinent, provides that an application for relief “must be accompanied” by a copy of the pleading, “otherwise the application shall not be granted.”  (Emphasis added.)   Thus, her failure to file an amended complaint alone provided grounds for the trial court's action.   We conclude that she was not deprived of procedural due process.

Finn next contends that the court erred by denying her motion to vacate the allegedly void orders entered by Judge Sparrow on August 23, 1977, and October 28, 1977.   Her argument is predicated on the assumption that her August 18 filing, pursuant to Code of Civil Procedure section 170.6,⁵ automatically disqualified Judge Sparrow.   As this court (Div. Three) explained, in rejecting a substantially identical contention in Mezzetti v. Superior Court, 94 Cal.App.3d 987, 990, 156 Cal.Rptr. 802:  “A challenge for prejudice under section 170 may be contested by the judge challenged.   If the challenge is sustained, or if there is no contest to the challenge, the judge may not sit in the underlying action at all.   A challenge for prejudice under section 170.6 is peremptory in nature;  it cannot be contested, but the disqualified judge is enjoined only from trying the case or hearing any matter involving a disputed issue of law or fact.”  (Emphasis added.)

Justice Feinberg then held at page 991, that the term “hear” was used in the statute in its legal sense and meant “a hearing wherein the court is called upon to rule upon some disputed issue of law or fact based upon legal argument or evidence or both before the court.”  (Emphasis in original.)

 Thus, the question is whether in ruling on a demurrer, does a judge “hear any matter ․ which involves a contested issue of law or fact”?   The answer is clearly no.   For example, the 1965 amendment to Code of Civil Procedure section 170.6 ⁶ specifically preserved the right of a party to disqualify a judge under Code of Civil Procedure section 170.6, notwithstanding the fact that he had heard an earlier demurrer (cf. In re Jose S., 78 Cal.App.3d 619, 626, 144 Cal.Rptr. 309).   A demurrer tests the pleading alone and nothing outside of the pleading can be considered (Garton v. Title Ins. & Trust Co., 106 Cal.App.3d 365, 375, 165 Cal.Rptr. 449).

 It follows that Finn's motion to disqualify Judge Sparrow did not apply to his rulings on the demurrer.   Accordingly, his rulings on August 23, 1977, and October 28, 1977, were not void.   We conclude that the trial court properly denied Finn's motion to vacate a void order.

 As to Finn's appeal from the portion of the order of March 3, 1978, granting Drag's motion for security by a vexatious litigant pursuant to Code of Civil Procedure section 391, Drag argues that it is not appealable.   Ordinarily, an order to post security as a vexatious litigant is a nonappealable interlocutory order (Horton v. City of Beverly Hills, 261 Cal.App.2d 306, 307, 67 Cal.Rptr. 759) which is reviewed on appeal from the dismissal of the action that usually follows a refusal to post security (Code Civ.Proc., § 391.4;  Muller v. Tanner, 2 Cal.App.3d 445, 82 Cal.Rptr. 738).   Her action had already been dismissed and no second dismissal was entered.⁷  Notices of appeal should be liberally construed and doubtful cases resolved in favor of the right to appeal (Cal.Rules of Court, rule 1(a);  Knodel v. Knodel, 14 Cal.3d 752, 762, 122 Cal.Rptr. 521, 537 P.2d 353).   Here no one was misled or prejudiced.   Accordingly, we treat Finn's notice of appeal from the vexatious litigant portion of the March 3 order as proper, but premature (cf. Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 920–921, 167 Cal.Rptr. 831, 616 P.2d 813;  Roston v. Edwards, 127 Cal.App.3d 842, 846, 179 Cal.Rptr. 830).

Finn argues that the evidence was insufficient to show that she was a vexatious litigant.  Code of Civil Procedure section 391, subdivision (b), defines a vexatious litigant as any person:  “(1) Who, in 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 him; ․ or [¶] (2) Who, after a litigation has been finally determined against him, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of such determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by such final determination against the same defendant or defendants as to whom the litigation was finally determined.”  (Emphasis added.)

“Litigation” is defined as “any civil action or proceeding, commenced, maintained or pending in any court of this State.”  (Code Civ.Proc., § 391, subd. (a).)  “Finally determined,” as used in subdivision (b)(1) and (2), however, is not defined and has not previously been construed in a reported decision.   Applying the broad definition of litigation to each of Finn's motions and filings, the trial court could have concluded that she came under subdivision (1).   We note that at the hearing, the court was informed that there had been seven hearings on the matter.   Applying an equally broad definition to “finally determined,” the trial court could have concluded that the instant litigation was final as to Finn on September 24, 1977, the expiration of the 30-day period for the amendment of her complaint, so that the requirements of subdivision (2) also arguably were met.

 We think, however, that the history and purpose of the statute (see Comment, the Vexatious Litigant, 54 Cal.L.Rev. 1769–1804, particularly fn. 4 at p. 1769, and fn. 32 at p. 1775) require a narrow definition of “finally determined.”   A judgment is final only when it determines all of the rights of the parties and requires no further judicial action to give effect to its provisions (Lyon v. Goss, 19 Cal.2d 659, 670, 123 P.2d 11).   While recognizing the different state and federal rules of finality (Agarwal v. Johnson, 25 Cal.3d 932, fn. 11 at p. 954, 160 Cal.Rptr. 141, 603 P.2d 58),⁸ our Supreme Court has intimated that the test of finality is the same, i.e., when all avenues for direct review have been exhausted or the time to initiate direct review or a petition for certiorari in the United States Supreme Court has expired (In re Spencer, 63 Cal.2d 400, 405, 46 Cal.Rptr. 753, 406 P.2d 33).   Applying this test, Finn's instant action had not been “finally determined.”   We conclude, therefore, that the evidence was insufficient to show that Finn was a vexatious litigant (cf. Roston v. Edwards, supra, 127 Cal.App.3d 842, 848, 179 Cal.Rptr. 830) and that portion of the order of March 3, 1978, must be reversed.

The appeal from the order of October 28, 1977, is dismissed.   The portion of the March 3 order denying Finn's motion to vacate is affirmed, and the portion thereof requiring her to furnish security as a vexatious litigant is reversed.   Drag is to have his costs on appeal.

FOOTNOTES

FOOTNOTE.  

1.   The notice of appeal, filed in propria persona, on April 12, 1978, indicates that it is taken from:  1) the March 3, 1978, order denying Finn's motion to vacate a prior order dismissing and striking her complaint and ordering her to post a $1,000 bond as a vexatious litigant;  2) the October 28, 1977, order dismissing and striking her complaint.

2.   Finn's explanation was that she had been told the matter had been transferred to a different department.   By the time she found out it had not been transferred, the court had already ruled.

3.   The record indicates that the court had reviewed the record and was ready to proceed on January 27, 1978, but continued the matter so Finn's then newly retained counsel could familiarize himself with the matter.

4.   Finn complains of inaccurate references to this court's denial of the writ as a denial of her appeal on the issue in the motion to vacate.   Although the word “appeal” was used, it is clear that the court understood that the reference was to the writ.   In any event, the court's ruling was not based on any of the prior rulings.

5.   “(1) No judge, court commissioner, or referee of any superior, municipal or justice court of the State of California shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein which involves a contested issue of law or fact when it shall be established as hereinafter provided that such judge or court commissioner is prejudiced against any party or attorney or the interest of any party or attorney appearing in such action or proceeding.”

6.   The amendment (Stats.1965, ch. 1442, § 1) added the last sentence of subdivision (2) which, so far as pertinent, provides:  “The fact that a judge has ․ aided in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion ․.”

7.   The record does not indicate whether Ms. Finn, in fact, posted the security.   By a strange quirk, the statute provides no avenue for appeal.

8.   “In part, the motion takes advantage of the federal rule under which a judgment once rendered is final for purposes of res judicata until reversed on appeal, modified or set aside in the court of rendition.   [Calhoun v. Franchise Tax Bd. (1978) 20 Cal.3d 881, 887 (143 Cal.Rptr. 692, 574 P.2d 763).]   Under the California rule, the instant judgment, although entered before the federal one, is not final for purposes of res judicata during the pendency of and until the resolution of the appeal.   (Wood v. Herson, 39 Cal.App.3d 737, 747 [114 Cal.Rptr. 365];  Code Civ.Proc., § 1049.)”  (Emphasis added.)

 LEVINS,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

ROUSE, Acting P. J., and SMITH, J., concur.