CARROLL v. ALSOP (1983)

Harry P. Carroll appeals from the denial of his petition for a writ of error coram nobis.   This appeal marks the sixth occasion in which he has sought appellate review in litigation in which two lawsuits have been filed.   Both lawsuits and each of the appeals and petitions for writs focus on the same issue:  the propriety of a summary judgment rendered in favor of respondent, Douglas W. Alsop, in the initial action on January 3, 1978.

THE BACKGROUND

Appellant, acting in propria persona, in all of the proceedings germane to this appeal, filed his first complaint, entitled Harry P. Carroll v. Douglas W. Alsop, Minnie B. Sloan and Isaac H. Carroll, Jr., in Superior Court action No. 210789, in San Mateo County.

Minnie B. Sloan and Isaac H. Carroll, Jr. are, respectively, a sister and brother of appellant.   Alsop is an attorney who was engaged by the sister and brother to assist their elderly father in the transfer of his bank accounts in Texas banks to enable the father to open a new account in a Wells-Fargo Bank branch in Redwood City in April 1976.

Appellant alleged that this transfer of funds was unknown to him until after his father had died in October 1976.   He further alleged that this action was taken by his siblings to prevent him from obtaining his rightful share of his father's bank balances.   He alleged “oppression, fraud and malice” by Alsop in his rendering of the professional services incident to his transfer.   No factual specification of these charges nor identification or computation of damages allegedly sustained was set forth by appellant in his complaint.

Alsop moved for summary judgment, contending that there was no triable issue of fact and that the action had no merit.   In support of this motion, Alsop filed his own declaration, under oath, describing the circumstances of his professional employment by Isaac Carroll, Sr., and Minnie Sloan to arrange for the transfer of funds from the Texas banks;  that four separate checks, totaling $7,324.58, were made payable to Isaac Carroll, Sr. and delivered to him;  and that he (Alsop) was paid the sum of $125 for his professional services and was in no way involved with the disbursements of these funds, nor with estate proceedings after Mr. Carroll Sr.'s death.   The declaration of Minnie Sloan, under oath, attested to the same circumstances.

A copy of the deposition of appellant was also filed in support of this motion.   Attached to the memorandum of points and authorities are documents and photostats of cancelled checks evidencing the expenditures of Minnie Sloan on behalf of her father from the Wells-Fargo joint account with her father after these transfers.

Appellant's response to this motion consists of a document entitled “Reply to Defendant's Motion for Summary Judgment and Points and Authorities Thereof.”   This document consists of the recitation of a few legal principles of general nature.   Also filed was a collection of documents, identified by appellant on the title page as “List of Evidence,” upon which he stated that he relied “to prove my case.”

Only the first attached document, entitled “Memorandum of Events Preceding the Death of My Father, Isaac Henry Carroll,” is attested by appellant under penalty of perjury.   In this document appellant states that, “I am firmly and completely convinced that a fraud was perpetrated against my father,” but he fails to recite facts upon which such a claim might be established or how he was personally damaged thereby.   All other documents submitted in this collection consist of copies of letters written by other persons, not under oath, and a miscellany of other photostatic material, the probative value of which is not established by authentication nor by reference.   The purported relevance of these documents to issues raised in the complaint is not identified by appellant.

The motion for summary judgment was granted, after hearing, on December 9, 1977.   Thereafter, appellant filed his notice of motion to set aside this order and in support thereof filed a declaration of purported facts under penalty of perjury.   Again, appellant failed to set forth the existence of evidence tending to establish any liability on the part of respondent or any consequent damage to appellant.   Opposition to this motion was filed by respondent and judgment of dismissal as to respondent, Douglas W. Alsop was ordered on January 3, 1978.

Appellant filed a notice of appeal from this judgment on January 24, 1978, and on March 14, 1978, he filed a notice of “voluntary abandonment” of this appeal.¹

CONTENTIONS OF THE PARTIES

The narrow issue before us is whether the writ of error coram nobis was properly denied by the trial court.   A somewhat broader issue involves the question of appellant's standing before that court to seek the relief which he sought by the petition for coram nobis.

Disregarding all subsequent efforts on appellant's part to wring from our judicial system a result to his liking, and viewing this appeal as involving only the initial summary judgment and the subsequent petition, we can more readily isolate the dominant and controlling issues to be decided.

Appellant contends that this petition should have been granted because, he asserts, the trial court committed error in granting the first summary judgment.

Respondent contends that the statutory requirements for summary judgment in his favor (Code Civ.Proc., § 437c) were fully met in the documents submitted on his behalf and that appellant failed to submit admissible evidentiary documentation to counter the declarations filed in support of his motion for summary judgment.   Respondent further contends that appellant has not made a legally sufficient showing to invoke the relief from the judgment which he is here seeking.

Respondent also asserts that appellant, in voluntarily abandoning his appeal from the judgment in issue, is now precluded by the doctrine of res judicata, that since the remedy of appellate review was available to correct any errors, appellant cannot further litigate the issues made conclusive by the original judgment.

THE SUMMARY JUDGMENT

 The purpose of the summary judgment procedure is to discover through the media of affidavits and counter-affidavits whether the parties have evidence available for presentation to the court which demands the analysis of trial.  (Kramer v. Barnes (1963) 212 Cal.App.2d 440, 445, 27 Cal.Rptr. 895.)   The object of the proceeding is to discover proof.   The motion for summary judgment must be supported by affidavit of any person or persons having knowledge of the facts.²  The adverse party must file an affidavit or affidavits showing sufficient facts to substantiate his allegations.

 The record before us conclusively establishes that appellant failed to present sufficient facts in a proper form to establish proof for his allegations or to rebut the affidavits filed by and on behalf of respondent.   He thus failed to demonstrate to the trial court that a triable issue of fact existed in the case.

 Appellant's showing in response to the motion for summary judgment was contained in a document entitled “Reply To Defendant's Motion For Summary Judgment And Points And Authorities Thereof.”   This made reference to certain letters and papers attached as exhibits and certain legal conclusions with the citations of cases.³  None of these documents was supported by affidavit of anyone competent to attest to the truth of its contents, as required by statute, and they were thus clearly not entitled to be received in evidence or considered by the judge as proof of any issue.

THE PETITION

Appellant has likewise failed to comply with the requirements for the issuance of a writ of error coram nobis.

 A proceeding in coram nobis has been traditionally classed as civil in nature.   However, it has been used in California almost exclusively in criminal cases.   The reported decisions specifying the three requirements which must be met by a petitioner are thus noted most frequently in criminal case appeals.   These requirements are:

1. Petitioner must show that some fact existed which, without any fault or negligence on his part was not presented to the trial court and which, if presented would have prevented the rendition of the judgment.

2. Petitioner must also show that any claimed newly discovered evidence does not go to the merits of the issues tried, because the issues of fact, even if erroneously adjudicated, cannot be reopened except on a motion for a new hearing.

3. Petitioner must demonstrate that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him any time substantially earlier than the time of his petitions for the writ.  (People v. Shipman (1965) 62 Cal.2d 226, 230, 42 Cal.Rptr. 1, 397 P.2d 993;  Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 8, 156 Cal.Rptr. 805.)

As Chief Justice Traynor stated in Shipman, at page 230, “In view of these strict requirements, it will often be readily apparent from the petition and the court's own records that a petition for coram nobis is without merit and should therefore be summarily denied.”

 This guiding principle clearly describes the position of the trial judge at the time of his denial of coram nobis.   In view of our conclusions relating to the propriety of the summary judgment, based on our examination of the records of the trial court, we, perforce, conclude that denial of coram nobis by the trial judge was likewise mandated by the facts, and that we, likewise, must affirm.

SANCTIONS

 The transcript of proceedings of December 6, 1977, in action No. 210789, at the time set for the hearing on respondent's motion for summary judgment contains the following exchange between the court and appellant:

“THE COURT:  Mr. Carroll, you didn't submit any declarations.

“MR. CARROLL:  No, I didn't sir.

“THE COURT:  Well, that is what summary judgment is all about, is to submit it on declarations under penalty of perjury.   You understand?

“I would suggest, Mr. Carroll, very seriously, that you get yourself a lawyer, because you're in deep water here without one․  [¶] This is an area of law that you know nothing about.   But since you haven't submitted any declarations here the matter is deemed submitted on the basis of what is submitted.

“MR. CARROLL:  I submitted a reply to the motion, sir.   Points and authorities.

“THE COURT:  You didn't submit any declaration.   You submitted a bunch of papers—a big batch of papers.

“MR. CARROLL:  I am who I am.   I'm Harry P. Carroll.

“THE COURT:  I know that, sir.

“MR. CARROLL:  —Swear who I am and—

“THE COURT:  That doesn't mean anything, sir.   Got anything further to submit on this matter?  ․  [¶] You're alleging that this attorney here acted, conspired against you, and you've given us nothing by which to come to that conclusion.   You have no declarations here at all.”

After this admonition from the court, appellant continued to insist that the papers which he filed with his answer, all of which were unsupported by affidavit or declaration of any kind, should nevertheless be deemed by the court as adequate proof that he had a triable issue.

This litigation which has continued to this day in various forms, as noted in part, has involved substantial court time and the time and expense of respondent and his counsel.

In his brief, respondent seeks a determination that this appeal be deemed frivolous and that appellant be ordered to pay a penalty in the sum of $5,000 in addition to costs and attorney's fees incurred in this appeal.

This case had its origin on April 8, 1977, when the original complaint was filed.   Since that time appellant has produced no competent evidence that his case against respondent was supported by any evidence.   He chose to ignore the warning of the trial court at the first hearing on the motion for summary judgment and has continued to act without legal counsel as he filed petitions and appeals in three courts.

Appellant appears to enjoy his status as a vexatious litigant.   This title was awarded to him on December 20, 1979, by the superior court in his second action No. 220440, and he was required to post bond in the sum of $7,500 as security to respondent.   On June 24, 1980, the court made an award to respondent of $6,555.25 out of this security to cover fees and costs.   On September 11, 1980, the court ordered that appellant increase the security by $3,500.   He complied with that order on the same day.   He has thus now committed $11,000 to the cause of maintaining his status as a vexatious litigant.

In the face of this record,⁴ the conclusion is inescapable that appellant is motivated by some incentive other than the recovery of the amounts involved in his father's bank accounts which purportedly gave rise to his first complaint.

From our review of this record before us, we have been unable to find any merit in appellant's posture before this court.   He has failed throughout the years to demonstrate any misconduct on the part of respondent or any damage to himself as the result of his father's bank accounts having been transferred from Texas to Redwood City, where the father was then residing.

Close examination of the proceedings and documents filed in the case to which this appeal relates (action No. 210789) discloses no error on the part of the trial court in granting respondent's motion for summary judgment against the appellant.   It therefore follows that the petition for a writ of coram nobis was properly denied and that no new issues were submitted to this court which had not been previously addressed to it.   Our conclusion is therefore that this is a frivolous appeal.   At most it was an attempt to reargue the unsupported contentions previously determined by this court.

We have considered the due process requirements established in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d 179, pertaining to the determination of frivolous appeals.   We note that the Supreme Court cautions that in such matters there should be notice to the alleged offender, an opportunity to respond, and a hearing.  “The appellate courts should exercise their statutory power to impose sanctions only after scrupulously observing the due process mandates set forth herein.”  (Ibid. at p. 654, 183 Cal.Rptr. 508, 646 P.2d 179.)

In the case before us appellant was furnished with a lengthy recital of his prior record in this litigation in respondent's reply brief.   Appellant filed a subsequent brief in which he made no reference to respondent's representations and made no request for a hearing.   As the court noted in Flaherty at page 654, 183 Cal.Rptr. 508, 646 P.2d 179:  “Due process is a flexible concept, and must be tailored to the requirements of each particular situation.”

In Carazo v. Lopez (1980) 112 Cal.App.3d 319, 169 Cal.Rptr. 182, a finding of frivolity in the appeal was made on facts less fraught with abuse of the right to appeal than those apparent in this case.   In view of the record of appellant as a vexatious litigant, and his failure to conform to prior admonition, we conclude that respondent should be awarded additional damages of $5,000 as costs on appeal.

The judgment is affirmed.   Costs on appeal shall include, in addition to normal costs, the sum of $5,000 as penalty.

FOOTNOTES

FOOTNOTE.  

1.   The following day appellant filed his complaint, action No. 220440.   In essence the same allegations are repeated against the same defendants by appellant, who is designated as administrator of the estate of Isaac H. Carroll, Sr., and again appears in propria persona.There followed a series of motions, orders, and appeals in this second action, noted as follows:(a) July 28, 1978.   Alsop's demurrer on grounds of res judicata and collateral estoppel was sustained without leave to amend and the action was dismissed.(b) August 2, 1978.   Appellant appealed from this judgment of dismissal (1 Civ. No. 45464).(c) April 23, 1979.   This court affirmed the judgment of dismissal and the superior court's finding that appellant was a vexatious litigant.  (Pet. for Hg. in S.Ct. den.)(d) July 27, 1979.   The same issues were raised by a writ of error coram nobis submitted to the Supreme Court, which refused to accept it.(e) July 31, 1979.   The same issues were presented to this court in a similar petition and denied on August 3, 1979.(f) August 6, 1979.   A petition for a similar writ filed with San Mateo Superior Court.   There followed several similar petitions addressed to trial and appellate courts and motions and orders relating to the determination of appellant as a vexatious litigant and requiring the posting of security on his part in substantial amounts.On June 27, 1980, appellant filed his petition in the superior court for a writ of error coram nobis, relating to the judgment of dismissal of his first action, the appeal from which he had abandoned.   Following its denial on July 8, 1980, this appeal was taken.

2.   Code of Civil Procedure section 437c, subdivision (d) provides:  “Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

3.   Appellant's reply to the motion is set out in full as follows:“Please take notice that; “I“Reference Exhibit No. 1–B, 1–E, 2 and 3–C, 4–F, 5–B, 6–B in evidence.“Every person who, in another State or County, steals or embezzles the property of another, or receives such property knowing it to have been stolen or embezzled, and bring same into this State, may be convicted and punished in the same manner as if such larceny, or embezzlement, or receiving, had been committed in this State.  Penal Code Section 497. “II“The evidence shows that there is a real issue of fact HATCH V. BUSH (1963) 30 Cal.Rptr. 397, 215 C.A.2d 692, 13 A.L.R.3d 503. “III“A cause of action contains the two essential elements:“(1) The wrongful invasion of a legal right;  and (2) the privilege or power which law or equity gives to the injured person to seek and obtain redress.  McKEE V. DODD 152 C. 637, 93 P. 854;  HURT V. HEARING 190 C. 198, 211 P. 228;  SMITH V. MINNESOTA MUT. LIFE INS. 86 C.A.2d 581, 195 P.2d 457.”

4.   The original order of December 20, 1979 is noted in Clerk's Transcript at page 9.   The record of the second order and the amounts paid pursuant to both orders were contained in respondent's brief and are not contested in appellant's reply brief.

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

RATTIGAN, Acting P.J., and POCHE, J., concur.