Song Pae v. Recontrust Company, N.A. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SONG PAE; SANG OK PAE, a man and No. 22-55373
wife; MEESON PAE YANG, an individual; 22-55375
SAMUEL S. LEE, an individual, 22-55407
Plaintiffs-Appellants, D.C. No.
2:21-cv-08898-MCS-JEM
v.
RECONTRUST COMPANY, N.A., a U.S. MEMORANDUM*
corporation and wholly-owned subsidiary of
Bank of America Corporation; BANK OF
NEW YORK MELLON CORP., commonly
known as BNY Mellon, an American
worldwide banking and financial service
holding company; SAFEGUARD
PROPERTIES MANAGEMENT, LLC, FKA
Safeguard Properties, LLC, a Delaware
limited liability company; STONECREST
ACQUISITIONS, LLC, a California limited
liability company; JOHN HOCHHAUSLER,
an individual attorney; CORI B. JONES, an
individual attorney; DOES, 1 through 250,
inclusive; JON O. FREEMAN,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted July 19, 2023**
Pasadena, California
Before: NGUYEN and FORREST, Circuit Judges, and R. BENNETT,*** District
Judge.
Plaintiffs Song Won, Sang Ok Pae, Meeson Pae Yang, and Samuel S. Lee
appeal from the district court’s order denying their motions for default judgment
against Defendants Bank of New York Mellon Corporation (BNYM) and
ReconTrust Company, N.A., dismissing their complaint with prejudice and without
leave to amend, and granting Defendants Safeguard Properties Management, LLC,
Stonecrest Acquisitions, LLC, and John M. Hochhausler’s motions for sanctions.
We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court and
caution Plaintiffs against wasting this court’s and the parties’ resources on such
frivolous appeals. See Fed. R. App. P. 38; see also In re Westwood Plaza N., 889
F.3d 975, 977 (9th Cir. 2018).
1. Due process. Plaintiffs were afforded due process where the district
court held a hearing on the motions to dismiss and Safeguard’s motion for sanctions
and notified the Parties that it would decide the remaining motions without further
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
2
argument. The district court also considered Plaintiffs’ untimely opposition briefs,
and Plaintiffs declined to confer regarding Stonecrest and Hochhausler’s motion for
sanctions. In short, Plaintiffs’ due process argument is belied by the record and
clearly meritless. See, e.g., Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1387
(9th Cir. 1988) (rejecting due process argument that was “clearly contradicted by the
record”); Morrow v. Topping, 437 F.2d 1155, 1156–57 (9th Cir. 1971) (per curiam)
(holding that deciding motion without argument was not a denial of due process).
2. Dismissal and denial of default judgment. The district court did not
err in dismissing Plaintiffs’ complaint and denying their motions for default
judgment where Plaintiffs’ own caselaw is clearly contrary to their assertion that
their RICO claim did not accrue until they discovered the alleged RICO pattern. See
Grimmett v. Brown, 75 F.3d 506, 510–12 (9th Cir. 1996); see also Pincay v.
Andrews, 238 F.3d 1106, 1109 n.3. (9th Cir. 2001). Plaintiffs’ equitable tolling
argument also fails where they point to no specific misconduct by Defendants
justifying Plaintiffs’ failure to timely bring their claims despite pursuing
substantially similar claims in other actions over the past decade. See Huynh v. Chase
Manhattan Bank, 465 F.3d 992, 1003–05 (9th Cir. 2006) (affirming dismissal of
time-barred claims and rejecting equitable tolling argument). And Plaintiffs do not
otherwise present a specific argument that their claims—which, other than their
RICO claim, they have already filed in their five previous lawsuits—are timely. See
3
United States ex rel. Kelly v. Serco, Inc., 846 F.3d 325, 335 (9th Cir. 2017)
(explaining that we will not consider arguments not raised specifically and distinctly
on appeal). The district court acted within its authority in sua sponte dismissing
Plaintiffs’ complaint and denying the requested default judgment. See Abagninin v.
AMVAC Chem. Corp., 545 F.3d 733, 742–43 (9th Cir. 2008) (holding that a court
may dismiss a complaint against non-appearing defendants based on facts presented
by other defendants); see also Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir.
1986) (explaining district court may consider the sufficiency of the complaint in
ruling on motion for default judgment).
3. Sanctions. Plaintiffs’ arguments regarding sanctions are largely
redundant of their arguments claiming the district court denied them due process and
erred in dismissing their complaint, and we reject them for the reasons already
discussed. See Toth, 862 F.2d at 1387. The district court’s conclusions regarding the
frivolousness of Plaintiffs’ arguments and their litigation conduct are supported by
the record and were proper considerations for imposing sanctions under Rule 11. See
Fed. R. Civ. P. 11; see also Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d
1092, 1102 (9th Cir. 2016) (“District courts can use Rule 11 to impose sanctions on
any party that files a [pleading, motion, or other paper] for an ‘improper purpose’ or
4
who does so without a legal or factual basis.”). Further, Plaintiffs do not
dispute the reasonableness of the fees.
AFFIRMED.
5