Taxe v. Fernandez CA2/2 ( 2016 )

Filed 8/31/16 Taxe v. Fernandez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RONALD TAXE, No. B262519
Plaintiff and Appellant, (Los Angeles County
Super. Ct. BC546743)
v.
RALPH FERNANDEZ,
Defendant;
CAROLYN A. DYE, as Trustee in
Bankruptcy,
Intervener and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County. Michael P.
Linfield, Judge. Affirmed.
Ronald Taxe, in pro. per., for Plaintiff and Appellant.
Dumas & Kim, James A. Dumas and Bryan G. Tyson for Intervener and
Respondent.
Ronald Taxe (appellant) appeals from an order imposing $25,000 in sanctions
upon him and his attorney, jointly and severally. The trial court granted the motion for
sanctions, filed by intervener Carolyn A. Dye (Dye), Chapter 7 trustee for the bankruptcy
estate of Kathleen Kellogg-Taxe, at the same time as it granted Dye’s motion for
judgment on the pleadings on the ground that appellant’s complaint was barred by the
statute of limitations, res judicata and/or collateral estoppel. Appellant does not appeal
the order granting judgment on the pleadings, nor does he address the merits of the
sanctions order.
We affirm the order.
BACKGROUND
The complaint
On May 27, 2014, appellant, his wife Nadina Taxe, and Kellspin, Inc., a Nevada
corporation, filed this action against Ralph Fernandez (Fernandez). The complaint was
captioned “Complaint for Cancellation of Void Judgment”
The judgment which appellant sought to avoid through this action is a quiet title
judgment entered on May 5, 1994, in favor of Fernandez. Fernandez had initiated the
quiet title action on January 2, 1992, after obtaining title to property located on Rochester
Street, Los Angeles, California following an execution sale. The Rochester property had
been owned by David Taxe and Rose Taxe, appellant’s parents. The 1994 judgment
specifically found that various liens the Taxes or their entities claimed against the
property were fraudulent. The fraudulent liens were extinguished and expunged from the
record. Among the liens extinguished was a judgment lien that had been issued in 1984
(the Omni Group lien) which attached to the Rochester property and all of David and
Rose Taxe’s property in Los Angeles, including a second property located on Vestone
Way. The 1994 judgment was affirmed on appeal, and the fraudulent nature of the
encumbrances was specifically addressed and confirmed.
Although the 1994 judgment extinguished the Omni Group lien, an assignment of
the lien from the Omni Group to appellant and his wife was executed shortly after the
trial in the 1994 matter. Appellant and his wife later purported to assign the Omni Group
2
lien to a corporation, Kellspin, Inc., which they claimed to own. Kellspin, Inc. was a
named plaintiff in the present case.1
Appellant’s previous attempts to overturn the 1994 judgment
Appellant’s current complaint is the latest of several unsuccessful attempts to have
the 1994 judgment overturned. First, various members of the Taxe family purportedly
entered into a settlement agreement with Fernandez in 1996, the terms of which provided
that the parties would take action to have the 1994 judgment declared a nullity.
Fernandez’s attorney filed a motion four years later, on May 15, 2000, to have the 1994
judgment set aside. The motion was supported by a declaration from appellant and was
joined by appellant’s parents. The motion was denied.
In 2013, appellant’s sister-in-law, Kathleen Kellogg-Taxe, declared bankruptcy.
Dye, the Chapter 7 trustee, wished to sell the debtor’s residence, located on Vestone Way
in Los Angeles.2 Appellant stepped forward, claiming that he held one of the
encumbrances that was extinguished in 1994 (the Omni Group lien), that it was still good,
and that it constituted a judgment lien against the debtor’s property. The trustee
challenged that claim in bankruptcy court and the bankruptcy court ultimately authorized
the sale of the Vestone Way property free of the alleged lien.
Appellant also approached the trial court for an order vacating the 1994 judgment.
He did so on a ex parte basis, and did not notify Dye of the ex parte application.
Appellant characterized the motion in 2000 as a stipulation by all parties to vacate the
1994 judgment, which had never been ruled upon. Appellant affirmatively represented
that no third parties would be affected by the judgment. The trial court granted
appellant’s ex parte application and dismissed the action with prejudice.
Appellant took the order to the bankruptcy court and tried to get a ruling that the
encumbrance was resurrected. Dye successfully opposed that motion. Dye also
1 Kellspin, Inc. is not a party to this appeal.
2 The Vestone Way property which had previously been owned by appellant’s
parents, David and Rose Taxe, was later transferred to Kathleen Kellogg-Taxe.
3
approached the trial court for a new order setting aside the order granting appellant’s
ex parte motion on the grounds that she had not been given notice. Dye was granted
ex parte relief on April 3, 2014.
On April 14, 2014, a noticed motion seeking to vacate the 1994 judgment was
filed. On May 8, 2014, the motion was denied after full briefing and argument. The trial
court noted, “The court finds this motion to be close to frivolous, and questions whether
[appellant’s] counsel has intentionally misled the court in this motion and his previous
motion to vacate.” The court also noted that appellant appeared to make
misrepresentations about the procedural history of the action: “On May 15, 2000,
[appellant] filed an almost identical motion to the one before the court today
. . . [appellant] strongly implies that [the 2000 motion] was never ruled on and therefore
is still pending.” The court later stated, “the critical fact is that [the trial court] DID rule
on the motion,” which was a clear denial. Appellant did not appeal from the May 8, 2014
order. However, on May 27, 2014, appellant filed this action.
Proceedings below
The current complaint asserts one new ground for cancelling the judgment, citing
Civil Code section 3412, which provides for cancellation of a “written instrument” if
certain conditions are met. The trial court held that appellant made no showing that the
1994 judgment constitutes an “instrument” under the statute, and that even if it applied,
Civil Code section 3412 is subject to a four-year statute of limitations, rendering it
useless to overturn a 20-year-old judgment. Apart from mention of Civil Code section
3412, the current complaint repeats the same arguments made in 2000 and 2014. The
trial court found: “The issue[s] sought to be litigated in the instant action . . . were
previously raised . . . in Fernandez and [appellant’s] motion to set aside the judgment.
. . . . Fourteen years later, these arguments were again raised by [appellant] in his 4/14/14
motion to set aside the judgment. . . . The Court denied this motion on 5/8/14.”
Because the claims in the complaint had previously been raised and rejected, the
trial court found that they were barred by res judicata or collateral estoppel.
4
In addition to filing this latest attempt to undo the 1994 judgment, appellant
attempted to ensure that Dye remained unaware of the complaint. He did not name Dye
as a party nor did he notify her of the new lawsuit. When she discovered the lawsuit, Dye
sought to intervene in the action and have the case related back to the 2014 action. As an
attachment to her notice of related case, Dye wrote:
“On May 8, 2014, the Honorable Michael P. Linfield issued a ruling
in Case No. BC045545 denying the motion brought by defendant Ronald
Taxe to vacate a long-standing judgment in that case. The related case,
Ronald and Nadina Taxe and Kellspin, Inc. v. Ralph Fernandez, Case No.
BC546743, was brought on May 27, 2014, less than three weeks after the
May 8 ruling. The related case involves the same parties and seeks to
relitigate issues that have already been decided in Case No. BC045545,
which had been before Judge Linfield for several months. The failure to
designate the new case as related is a fraud on the Court.”
Appellant then filed a peremptory challenge pursuant to Code of Civil Procedure
section 170.6 seeking to have Judge Linfield disqualified from hearing this case. Dye
moved to strike the peremptory challenge, and on July 31, 2014, her motion was granted
and appellant’s affidavit of prejudice against Judge Linfield was stricken.
Appellant then filed four additional notices of related case, attempting to relate the
case to other proceedings, some of which were 20 years old. These further attempts to
remove the matter from Judge Linfield’s court were all rejected.
Dye was granted leave to file her complaint-in-intervention, which she filed on
August 28, 2014. On October 8, 2014, she filed a motion for judgment on the pleadings
and motion for sanctions against appellant and his attorney pursuant to Code of Civil
Procedure section 128.7. The motions were heard on November 4, 2014. On December
16, 2014, the trial court issued orders granting both motions.
On March 9, 2015, appellant filed a notice of appeal, noting that the appeal was
from an order granting sanctions of $25,000.3
3 While the notice of appeal designated as appellants both appellant and his
attorney, Gregory Grantham, Mr. Grantham has not made an appearance in this appeal
nor has he filed an opening brief. Appellant appears in pro. per.
5
DISCUSSION
I. Applicable law and standard of review
Code of Civil Procedure section 128.7 requires that all pleadings filed with the
court be signed by an attorney of a represented party, or, if the party is not represented by
counsel, by the party. (§ 128.7, subd. (a).) The signing of a filed pleading constitutes a
certification by the person signing it that after a reasonable inquiry, the pleading (1) is not
being presented for an improper purpose; (2) contains positions that are not frivolous; (3)
alleges factual matter having evidentiary support; and (4) contains denials of factual
allegations having evidentiary support. (§ 128.7, subd. (b).) The court, after proper
statutory notice, may impose sanctions upon the attorneys, law firms, or parties who have
improperly certified a pleading in violation of this statute. (§ 128.7, subd. (c).)
A ruling on a motion for sanctions brought under Code of Civil Procedure section
128.7 is reviewed under a deferential abuse of discretion standard. (Guillemin v. Stein
(2002) 104 Cal.App.4th 156, 167.) Under this standard, a trial court’s order will be
overturned only if, considering all the evidence viewed most favorably in support of its
order, no judge could reasonably make the order. (In re Marriage of Feldman (2007) 153
Cal.App.4th 1470, 1478.)
II. No abuse of discretion occurred
It is appellant’s burden to show that the trial court abused its discretion in making
the sanctions order. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1227.)
Appellant has not met this burden. He does not discuss Code of Civil Procedure section
128.7 nor the rationale behind the trial court’s order imposing the sanction. He makes no
relevant argument that the trial court abused its discretion in imposing sanctions.
Instead, appellant proposes the following issues on appeal: (1) whether the trial
court abused its discretion by not considering evidence that one of the encumbrances
declared fraudulent in 1994 was not part of a scheme to defraud Fernandez and the
trustee; and (2) why the trustee expended funds attempting to quash that encumbrance
when the only asset the debtor owned was the debtor’s home which had been sold free
and clear of that lien. The premise of appellant’s argument is that if he can prove that the
6
lien was legally obtained, all of the arguments that have been put forth by the trustee will
be meaningless and sanctions would not be warranted.
Appellant fails to address the reasons for the court’s sanctions order. Appellant
has, on several different occasions over the 20 years since the entry of the 1994
judgment, attempted to get the judgment overturned. His arguments have repeatedly
been rejected.4 At this point, appellant’s arguments are frivolous. Thus, the complaint
was filed in violation of Code of Civil Procedure section 128.7. In addition, appellant
failed to notify interested parties of this lawsuit and failed to inform the court of related
cases in violation of California Rules of Court, rule 3.300. Under the circumstances, the
trial court did not abuse its discretion in granting Dye’s motion for sanctions in the
amount of $25,000.
DISPOSITION
The order is affirmed. Respondent is awarded costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
4 Appellant has not appealed the trial court’s decision to grant judgment for Dye on
the pleadings on the grounds that appellant’s claims are barred by the statute of
limitations, collateral estoppel and/or res judicata.
7