Singh v. Lipworth CA3 , 174 Cal. Rptr. 3d 131 ( 2014 )

Filed 6/18/14 Singh v. Lipworth CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
RAJ SINGH et al.,
Plaintiffs and Appellants, C073177
v. (Super. Ct. No.
34200900066746CUFRGDS)
STEPHEN LIPWORTH,
Defendant and Respondent.
A judgment entered against Raj Singh in a prior action (Super. Ct. Sacramento
County, 2006, No. 00AS00602) was assigned to Stephen Lipworth, who moved
successfully to amend the judgment to add certain aliases of Singh, namely Kaus Singh
and Archana Singh. (Singh v. Lipworth (June 18, 2008, C053762) [nonpub. opn.].)1
Thereafter, the trial court granted Lipworth’s application for sale of certain property,
which Singh had transferred to his wife, Karen Singh, who in turn transferred the
1 Lipworth requests that we take judicial notice of this unpublished opinion and a
printout from the California Courts Website listing the various appeals Singh has filed
with this court over the years. We do so. (Evid. Code, § 452, subd. (d)(1).) We take
many of the facts of the prior lawsuit from that unpublished decision.
1
property to Suman Mehta. The trial court concluded, “Mehta is yet another alias adopted
by [Singh] in his ‘identity shell game,’ ” set aside the fraudulent transfers, and ordered
the property sold to enforce the judgment. The order granting Lipworth’s application for
sale (sale order) became final after various appeals therefrom were dismissed.
In the present case, Singh, along with his wife Karen and alias Mehta, sued
Lipworth alleging he used “fraudulent representations” to persuade the trial court in the
prior case that Singh was “hiding some properties from his creditors using different
names such as Archana Singh and Suman Mehta.” After several frivolous motions were
decided against Singh, the trial court invited Lipworth to file a motion to require Singh to
furnish security or have the case dismissed pursuant to the vexatious litigant statutes.
(Code Civ. Proc., § 391 et seq.)2 Lipworth did so. The same day, Lipworth filed both a
demurrer and a special motion to strike pursuant to the anti-SLAPP statute.3 (§ 425.16.)
The trial court found Singh to be a vexatious litigant with no reasonable probability of
prevailing in the litigation because the lawsuit amounted to an impermissible collateral
attack on a prior final judgment and post-judgment orders. The trial court ordered “Raj
Singh aka Suman Mehta” to furnish security in the amount of $15,000 and dismissed the
lawsuit as to these plaintiffs when no such security was furnished. The trial court then
granted the anti-SLAPP motion as to the remaining plaintiff, Karen Singh, and awarded
$1,165 in attorney fees and costs.
Plaintiffs appeal. Their opening brief, filed by attorney Keith R. Oliver, is a
rambling and disjointed series of accusations, much of which was lifted word for word
from pleadings filed by Singh in the trial court, and none of which can be considered
“meaningful legal analysis supported by citations to authority and citations to facts in the
2 Undesignated statutory references are to the Code of Civil Procedure.
3 SLAPP is an acronym for “strategic lawsuit against public participation.”
2
record that support the claim of error.” (In re S.C. (2006) 138 Cal. App. 4th 396, 408.)
Indeed, the argument section of the brief contains no citations to the record at all. And
the section purporting to provide “a summary of the significant facts” (Cal. Rules of
Court, rule 8.204(a)(2)(C)), instead contains a paragraph of accusations without citation
to the record followed by three small paragraphs setting forth the procedural history in
minimalist fashion.4 We consider all points asserted in this appeal to be forfeited as
unsupported by “adequate factual or legal analysis.” (Placer County Local Agency
Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135
Cal. App. 4th 793, 814; Multani v. Witkin & Neal (2013) 215 Cal. App. 4th 1428, 1457-
1458; Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals
Bd. (2002) 100 Cal. App. 4th 1066, 1078 [“suggestions of error without supporting
argument or authority other than general abstract principles do not properly present
grounds for appellate review”].)
This would be the end of the matter, except Lipworth has filed a motion for
sanctions against plaintiffs and attorney Oliver pursuant to section 907 and rule 8.276 for
bringing a frivolous appeal. As we explain, this appeal “indisputably has no merit” and
“any reasonable attorney would agree that the appeal is totally and completely without
merit.” (In re Marriage of Flaherty (1982) 31 Cal. 3d 637, 650 (Flaherty).) While
“sanctions should be used sparingly to deter only the most egregious conduct” (Kleveland
v. Siegel & Wolensky, LLP (2013) 215 Cal. App. 4th 534, 557 (Kleveland)), we conclude
they are warranted in this case. We therefore affirm the judgment and impose sanctions
against plaintiffs and attorney Oliver in the amount of $7,478.75 payable to Lipworth, as
well as $7,500 payable to the clerk of this court.
4 Undesignated rule references are to the California Rules of Court.
3
BACKGROUND
The Prior Lawsuit
U-Save Auto Rental of America, Inc. (U-Save) won an arbitration award against
Singh. U-Save filed a petition in the trial court to confirm the award; Singh sued to set it
aside, but failed. In February 2005, the trial court awarded U-Save a judgment of
$127,690.25 plus interest. (Singh v. Lipworth, supra, C053762.)
The judgment was assigned to Lipworth. The assignment listed Singh’s last
known address as: “1625 28th Street, Sacramento, California, 95816.” (Singh v.
Lipworth, supra, C053762.) Lipworth moved to amend the judgment to add certain
aliases of Singh, namely Kaus Singh and Archana Singh. In support of the motion,
Lipworth submitted evidence establishing Singh had used these names in a previous
lawsuit. Among other documents, Lipworth submitted a response to a request for
admissions in which Singh admitted “[t]he individual using the name Raj Singh is the
same person as the individual using the name Kaus Singh,” as well as a minute order in
that previous lawsuit that stated: “Raj Singh has filed a document in which he has
conceded that he is Archana Singh, and that he has used the name Archana Singh in this
litigation.”5 Lipworth also obtained a temporary protective order restraining Singh and
his alias Kaus Singh from conveying, transferring, or encumbering the real property
located at 1625 28th Street, Sacramento, (the subject property) until the motion to amend
the judgment could be heard. In opposition to the motion to amend, Singh claimed: “Raj
Singh is not Kaus Singh who is the owner of 1625 28th Street, Sacramento.” Despite a
continuance to give Singh the opportunity to produce evidence Kaus Singh was a
5 Singh was subsequently jailed for contempt of court because, among other things,
he continued to misrepresent himself as Archana Singh after conceding this was simply
his alias, and then claimed Archana Singh was a separate person, but failed to offer any
evidence to prove it.
4
separate person, Singh failed to produce any such evidence. (Singh v. Lipworth, supra,
C053762.)
The trial court granted the motion to amend the judgment to add Singh’s aliases.
Thereafter, Lipworth filed an application for sale of the subject property. (Singh v.
Lipworth, supra, C053762.) Ultimately, the trial court denied the application based on a
“Stipulation for a Property” entered into in family court proceedings between Singh
(using the name “Rag Singh”) and his wife Karen (Super. Ct. Sacramento County (2006)
No. 03FL00651) and signed, “[s]o ordered” by the family court judge. The stipulation
stated the subject property “shall be Karen’s sole separate and personal property” and
further stated: “The parties also stipulate that Karen will transfer the above stated
property to Kaus Singh if Kaus Singh, who lives outside California and who is not Raj
Singh or Rag Singh, claims his interest in the above stated property.” (Singh v. Lipworth,
supra, C053762, italics omitted.) In denying the application, the trial court rejected
Lipworth’s argument that “since [Singh] had consistently denied owning the property, he
was judicially estopped to claim that he owned it under the name Rag Singh and could
lawfully transfer it to a third person.” (Singh v. Lipworth, supra, C053762.)
In Singh v. Lipworth, supra, C053762, we held “the trial court erred by refusing to
apply judicial estoppel” and explained: “[Singh] ‘has made an egregious attempt to
manipulate the legal system . . . “as egregious as it gets.” ’ [Citation.] [Singh] has played
an endless game of ‘Now you see it -- now you don’t’ with the courts. He has filed
pleadings and made appearances in various actions under multiple names, to the point of
being jailed for contempt of court. He has manufactured false or deceptive documents
aside from the family court stipulation and order at issue here . . . . And the stipulation
itself was a gross fraud on the family court. [¶] First, it did not reveal how ‘Rag Singh’
could properly claim title or transfer title to another. Second, it declared that ‘Kaus
Singh’ had an unspecified interest in the property which would entitle him to claim it at
any time from Karen Singh, yet did not explain how ‘Rag Singh’ could pass title without
5
regard to that interest. Third, it declared that ‘Kaus Singh’ was not Raj Singh, though
[Singh] knew that other courts had already found the two were one, and he had admitted
the same under penalty of perjury in another action. Fourth, the record before us suggests
that . . . when [Singh] originally submitted the stipulation to the family court, a
restraining order in this action . . . barred [Singh] from conveying or transferring the
subject property, but the stipulation failed to disclose that fact. Finally, in light of the
above, the stipulation bore all the earmarks of a sham designed to ‘transfer’ the property
(using Karen Singh as a conduit) from [Singh] as ‘Rag Singh’ to himself as ‘Kaus Singh,’
while concealing from the family court that his interest in the property was subject to an
outstanding judgment. [¶] Being well aware of [Singh]’s attempts to trifle with the
judicial system, the trial court could and should have used its equitable power to
vindicate the system’s integrity by applying judicial estoppel.” (Singh v. Lipworth,
supra, C053762.) We reversed and remanded the matter to the trial court with directions
that Karen be joined as a party, if possible, to protect whatever interest in the property she
may have. (Singh v. Lipworth, supra, C053762.)
After we issued our decision, Karen transferred the property to “Suman Mehta,
Trustee of the RadhaKrishna Living Trust.” Lipworth filed another application for sale
of the subject property. The trial court issued an order to show cause, set a hearing date,
and joined Karen and Mehta as indispensible parties. Claims of exemption were filed by
Singh and Karen and a third party claim was purportedly filed by Mehta. Mehta was
ordered to appear with valid identification and a written exemplar of his signature. Not
surprisingly, he did not appear. Following the hearing, the trial court concluded, “Mehta
is yet another alias adopted by [Singh] in his ‘identity shell game,’ ” granted the
application for sale, denied the claims of exemption and third party claim, and set aside
the transfers of the subject property from Singh to Karen, and from Karen to Mehta,
finding them to constitute “a fraud on the court.” The sale order became final after
various appeals therefrom were dismissed. The subject property was sold to Lipworth.
6
The Current Lawsuit
In December 2009, Singh, his alias Mehta, and his wife Karen sued Lipworth
alleging he used “fraudulent representations” to persuade the trial court in the prior
lawsuit that Singh was “hiding some properties from his creditors using different names
such as Archana Singh and Suman Mehta.” The complaint, filed by attorney Nathaniel
Potratz, was not served on Lipworth. Plaintiffs filed a notice of pendency of action (lis
pendens) with respect to the subject property in April 2010. The lis pendens, which also
was not served on Lipworth, was recorded the following month; a proof of service was
not recorded.
In October 2010, Lipworth tried to sell the property and obtained a preliminary
title report from Placer Title Company that revealed the recorded lis pendens. The
following month, Lipworth filed a motion to expunge the lis pendens arguing it was
“void and invalid” for lack of service and because proof of service was not “recorded
with the notice of pendency of action.” (§ 405.23.) Lipworth also argued the complaint
did not state a “real property claim.” (§§ 405.1, 405.4.)
Plaintiffs, represented by the same attorney, but who apparently changed his name
to Nathaniel Sterling in the meantime, argued in opposition: “This case was originated
when plaintiffs were unable to prove that Raj Singh is neither Suman Mehta nor Kaus
Singh for a long time. All the defects stated in this motion are curable. Each case
should be decided on merits. Lipworth should never be allowed to sell the house owned
by Kaus Singh and Suman Mehta. Raj Singh is neither Kaus Singh nor Suman Mehta.
This court should not help Lipworth to sell the property of Kaus Singh and Suman Mehta
to satisfy judgment against Raj Singh. Plaintiffs offered many times to [Lipworth’s
attorney, Stephen C. Finley] to resolve this case outside the court. If attorney Finley
listened to their requests, there was no need for any motion in this action. Accordingly,
no relief should be provided until this issue is resolved, otherwise it shall result in
7
other lawsuits. Plaintiffs will take care of all the defects.”6 The same day the
opposition was filed, plaintiffs filed a first amended complaint and another lis pendens.
The amended complaint was not served on Lipworth.
In a supplemental memorandum in support of the motion to expunge, Lipworth
argued: “Apart from the fact that this new [lis pendens] has not been served in the
manner required by [section] 405.22 (by registered or certified mail, return receipt
requested upon the owner of record), . . . plaintiffs have not, and may not, assert any ‘real
property claim’ to the property which the [lis pendens] seeks to affect. [¶] Raj Singh has
expressly disclaimed any ownership interest in the property, and is judicially estopped
from asserting any interest in the property by Court of Appeal decision in Sacramento
Superior Court Action No. 00AS00602 (C053762). The claims of all plaintiffs to the
property have been previously adjudicated by the court in its [sale order]. All appeals
from that Order have been stricken or denied.”
The trial court granted the motion to expunge the lis pendens and enjoined
plaintiffs from recording any further lis pendens against the property. Plaintiffs filed a
motion for rehearing, which was appropriately denied.
In December 2010, plaintiffs filed a second amended complaint without leave of
court. The pleading was stamped “ON DEMAND” and “FILED/ENDORSED” with the
date. Plaintiffs’ attorney, Sterling, was suspended from the practice of law in February
2011.
In June 2011, Lipworth’s attorney, Finley, received in the mail the original
summons in the case, dated December 17, 2009, and a copy of the second amended
complaint, with no proof of service attached. Two days later, Finley sent plaintiffs a
letter stating: “Please find enclosed a copy of ‘Notice to Filing Party’ in this case, a copy
6 Throughout this opinion, all quotations from plaintiffs’ pleadings use the original
emphasis.
8
of which we received from the court and which is dated December 10, 2010 stating that
the Second Amended Complaint was being rejected pursuant to [section] 472 since leave
of court must be obtained before the Second Amended Complaint can be filed. [¶] In
light of this notice, we would question the ‘filed/endorsed’ stamp on the Second Amended
Complaint which you have forwarded. [¶] From the court’s docket, it would appear that
the only validly filed Complaint at this time, is the First Amended Complaint which bears
a ‘Filed/Endorsed’ stamp dated November 22, 2010. Should you be seeking to effect
valid service on my client, defendant Stephen Lipworth, you will need to have a
Summons issued on the First Amended Complaint, and serve that Summons together
with the First Amended Complaint on this office.”
In July 2011, Lipworth filed a motion to strike the second amended complaint.
Plaintiffs, now in propria persona, filed a fraudulent proof of service stating Lipworth
was personally served with the summons and complaint at Finley’s office by a person
named Danny Simon who lived at 1725 28th Street in Sacramento, which is the address
of Sacramento County Human Assistance Department. Based on this proof of service,
plaintiffs obtained a default judgment against Lipworth. Plaintiffs then filed an
opposition to Lipworth’s motion to strike the second amended complaint, arguing: “The
first amended complaint is also a pleading. Thus, the first amended complaint can also
be amended without the permission of the court. All the alleged and valid errors can be
cured. Lipworth defaulted and thus, should not be heard.” Plaintiffs also argued the sale
order entered in the prior case is “ROBBERY AND TERRORISM” because “NO ONE
SHOULD BE ALLOWED TO TAKE ANY PROPERTY WITHOUT ANY
NOTICE TO THE PROPERTY OWNERS,” i.e., Singh’s aliases. Plaintiffs continued:
“Using his position as an officer of the Court, Steven C. Finley proved ‘untrue’ as
‘true’ in the courts FOR YEARS. Steven C. Finley proved that Raj Singh is Kaus
Singh, Archana Singh and Suman Mehta. All this resulted in terrorism, an
encouragement to terrorism, multiple lawsuits and the loss of public confidence.”
9
The trial court granted the motion to strike, explaining: “Counsel’s improper
filing of the second amended complaint ‘on demand’ merits reporting to the State Bar, in
particular as the court clerk had previously rejected the pleading for filing.” The trial
court also set aside the default judgment on its own motion.
Between September 2011 and April 2012, Singh filed a series of frivolous
motions. The first two were titled: “Motion to Allow Second Amended Complaint;
Motion to Reinstate the Default; and Request to Ask the State Bar to Investigate the
Frauds.” The trial court construed the first as a motion for reconsideration and denied it
as untimely and for not including an affidavit in compliance with section 1008. The
second motion stated: “This motion is not a motion for reconsideration.” This motion
was also denied on procedural grounds. The third motion was similarly titled: “Motion
to Allow Second Amended Complaint; Motion to Set Aside Ruling for the Hearing on
August 9, 2011; Motion to Re-Instate or to Re-Enter the Default; Request to Issue an
OSC; and Request to Ask the State Bar to Investigate the Frauds.” It too was denied.
And based on declarations filed by Finley stating these motions were not being properly
served, the trial court also ordered plaintiffs to use a registered process server. Each
motion attempted to relitigate the sale order entered in the prior case, again calling the
order “ROBBERY AND TERRORISM.”
The fourth motion was titled: “Motion to Leave to Amend First Amended
Complaint; and Motion for Reconsideration for a Fair and Unb[ia]sed Ruling.” This
motion was also denied on procedural grounds. The fifth motion was titled: “Motion to
Leave to Amend First Amended Complaint; and Motion to Relieve Service
Requirement.” Denying the motion to amend, the trial court explained that “the proposed
second amended complaint is ‘a collateral attack on a prior final judgment and post[-
]judgment orders of this court’ ” and “is legally untenable.” The trial court notified
plaintiffs that, “given that [they] previously have filed numerous motions to amend, the
court will not consider another motion to amend based on the allegations in the proposed
10
second amended complaint.” Declining to relieve plaintiffs of the order to use a
registered process server, the trial court explained: “The court found credible the
representations of defendant’s counsel that he had not been served with many of
plaintiffs’ filings. If the court’s order is a financial burden to plaintiffs, they have no one
but themselves to blame.” Undeterred, Singh filed a sixth motion, titled, “Motion for
Reconsideration; Motion to Set Aside Rulings; and Motion for Sanction.” The trial court
denied the motion, noted Singh had been declared a vexatious litigant in prior cases, and
invited Lipworth to file a motion to require Singh to furnish security or have the case
dismissed pursuant to the vexatious litigant statutes. (§ 391 et seq.)
In May 2012, Lipworth filed the invited motion. Based on the fact Singh
“repeatedly filed unmeritorious, frivolous motions in this action,” the trial court found
him to be a vexatious litigant. (See § 391, subd. (b)(4).) The trial court also concluded
Singh had no reasonable probability of prevailing in the litigation because the lawsuit
amounted to an impermissible collateral attack on a prior final judgment and post-
judgment orders. The trial court ordered “Raj Singh aka Suman Mehta” to furnish
security in the amount of $15,000 and dismissed the lawsuit as to these plaintiffs when no
such security was furnished.
The same day the motion to require Singh to furnish security was filed, Lipworth
also filed a demurrer and a special motion to strike pursuant to the anti-SLAPP statute.
(§ 425.16.) The trial court granted the anti-SLAPP motion as to the remaining plaintiff,
Karen, and awarded attorney fees and costs. The trial court’s ruling on the anti-SLAPP
motion will be set forth in greater detail in the discussion portion of this opinion.
The Current Appeal
Plaintiffs appeal “from the dismissal and all other intermediate orders.” The
opening and reply briefs, as well as other documents filed by plaintiffs in this appeal, do
not appear to have been written by an attorney, but instead appear to have been written by
Singh himself. In Lipworth’s motion for sanctions, he argues: “Knowing that Singh was
11
a vexatious litigant and that pre-filing permission would be necessary for the taking of an
appeal, [plaintiffs] engaged counsel, Keith R. Oliver, thereby compounding the abuse
suffered by [Lipworth] by having to defend an appeal with absolutely no merit
whatsoever. By lending his name to this appeal, [Oliver] has apparently agreed to act as
[plaintiffs’] ‘puppet’, granting to Singh the briefing and service (or rather non-service) of
the brief. By allowing himself to be used in this manner, [Oliver] made himself a party to
[plaintiffs’] abuse of the judicial system, and the financial abuse which [Lipworth] has
suffered at their hands, and violated his professional responsibility as an attorney.”
Similar allegations were made in two unrelated appeals, County of Sacramento et
al. v. Rawat et al., C075383 and C075384 (both subsequently dismissed), in which Oliver
was also purportedly representing Singh. In response to these allegations, this court sent
a letter to the State Bar referring the matter for investigation.
Oliver responded with a declaration setting forth his conduct in the three appeals.
With respect to this appeal, Oliver stated: “I did agree to represent [Singh] in the
Lipworth appeal. I found the appeal to be meritorious. I believed there were issues that
were appealable, [germane], and that could be won on appeal.” He also stated: “Now it
has come to my attention through the Court’s letter regarding [Singh]’s unauthorized
practice of law and my facilitation of this, that documents in the Lipworth appeal may
have been filed by [Singh], but indicating they were from me. [¶] . . . [I]n the Lipworth
appeal, C073177, other than the notice of appeal and the opening brief, I have had
absolutely no involvement in filings, communications with [Singh] regarding filings,
absolutely no knowledge of such filings, and I do not and did not agree to have filed or
support or acquiesce to any filings, and I have not signed documents, or seen or heard of
any documents being filed on behalf of [plaintiffs]. [¶] . . . If I had such knowledge, I
would not have agreed to have such documents filed unless they were of complete
12
propriety as I do not believe there is any need for aggressive motion filing in the appellate
courts. It is my belief that an appeal brief can speak for itself.”7 (Italics added.)
We issued written notice that the court was considering the imposition of
monetary sanctions. Oliver did not file an opposition. Singh did. Argument on the
matter took place at the same time as oral argument on the merits of the appeal. Oliver
began by stating he would “not be making any arguments” and would “defer to Mr.
Singh.” Reminded he was there on a sanctions motion for filing a frivolous appeal,
Oliver stated: “When the appeal was filed, I believed the arguments were meritorious. I
filed it in good faith. A lot of time has passed since then, a lot of issues have taken place,
and that’s about all I can say on it, but it was filed in good faith. I thought the arguments
being made on appeal were meritorious and it was a legitimate appeal.” Asked to explain
which arguments he believed to be meritorious, Oliver answered: “Um, I haven’t looked
at any of the arguments in such a long time, I can’t say.” Asked whether or not he filed
the opening brief, Oliver said he did, but maintained he could “not recall the arguments”
because he had not looked at the brief since it was filed. When told that this explanation
was “astounding” and shown a copy of the opening brief, Oliver responded: “I did not
7 Other than the notice of appeal and the opening brief, plaintiffs have filed a reply
brief, an opposition to Lipworth’s request for judicial notice and sanctions motion, a
“Request to Consider New Facts for Attorney Fees and Other Relief,” and two documents
titled, “MORE NEW FACTS FOR APPELLANTS’ REQUEST FOR ATTORNEY’S
FEES AND OTHER RELIEF” and “SOME MORE NEW FACTS FOR APPELLANTS’
REQUEST FOR ATTORNEY’S FEES AND OTHER RELIEF.” We need not determine
whether Oliver or Singh filed these documents, or whether or not Oliver was aware these
documents were being filed under his name. The State Bar is far better equipped to make
such determinations. We also deny plaintiffs’ request for attorney fees. Plaintiffs
provide us with no reasoned argument supporting such an award and, aside from citing
the private attorney general statute (§ 1021.5), cite no relevant authority. Among the
many reasons the request must be denied, plaintiffs’ appeal is not “successful” and has
not “resulted in the enforcement of an important right affecting the public interest.”
(§ 1021.5.)
13
file that brief.” Oliver then denied his signature appeared on the brief, but again admitted
he filed the notice of appeal. Finally, Oliver conceded the amount of sanctions requested
in Lipworth’s sanctions motion, i.e., $7,478.75, was a “reasonable number for defending
an appeal.”8
DISCUSSION
By written motion, Lipworth requests that we impose monetary sanctions on
plaintiffs and their attorney, Oliver, for bringing a frivolous appeal. We accept Oliver’s
admission that he filed the notice of appeal and initial admission that he filed the opening
brief, agree with his suggestion the opening brief “can speak for itself,” and conclude the
appeal is frivolous.
Section 907 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.” Rule 8.276(a) provides: “On motion of a party or its own motion, a Court
of Appeal may impose sanctions . . . on a party or an attorney for: [¶] (1) Taking a
frivolous appeal or appealing solely to cause delay . . . .”
“[A]n appeal may be found frivolous and sanctions imposed when (1) the appeal
was prosecuted for an improper motive―to harass the respondent or delay the effect of
an adverse judgment; or (2) the appeal indisputably has no merit, i.e., when any
reasonable attorney would agree that the appeal is totally and completely without merit.”
(Bach v. County of Butte (1989) 215 Cal. App. 3d 294, 310, citing Flaherty, supra, 31
Cal.3d at p. 650.) “In determining whether an appeal indisputably has no merit,
8 Singh was also asked to address the court at the sanctions hearing. He also denied
writing the briefs, but acknowledged portions were “borrowed” from the motions he filed
in the trial court. He denied forging Oliver’s signature and claimed not to know who
wrote the briefs. Singh then argued the appeal was not frivolous because he was not
Suman Mehta, Archana Singh, nor Kaus Singh. He was then sworn and testified under
penalty of perjury that he was not Suman Mehta, Archana Singh, nor Kaus Singh.
14
California cases have applied both subjective and objective standards. The subjective
standard looks to the motives of the appealing party and his or her attorney, while the
objective standard looks at the merits of the appeal from a reasonable person’s
perspective. [Citation.] Whether the party or attorney acted in an honest belief there
were grounds for appeal makes no difference if any reasonable person would agree the
grounds for appeal were totally and completely devoid of merit. [Citation.]” (Kleveland,
supra, 215 Cal.App.4th at pp. 556-557.)
“The objective and subjective standards ‘are often used together, with one
providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as
evidence that appellant must have intended it only for delay.’ [Citation.] An
unsuccessful appeal, however, ‘ “should not be penalized as frivolous if it presents a
unique issue which is not indisputably without merit, or involves facts which are not
amenable to easy analysis in terms of existing law, or makes a reasoned argument for the
extension, modification, or reversal of existing law.” ’ [Citation.]” (Kleveland, supra,
215 Cal.App.4th at p. 557.)
We begin by noting the issue of whether “Mehta is yet another alias adopted by
[Singh]” was finally decided against Singh in the prior lawsuit. Singh may not relitigate
this issue. Nor may Singh relitigate the final determination that he used the alias Archana
Singh. (See Lucido v. Superior Court (1990) 51 Cal. 3d 335, 341 [doctrine of collateral
estoppel “precludes relitigation of issues argued and decided in prior proceedings”].)
And yet, this is precisely what the operative first amended complaint sought to do.
Therein, Singh/Mehta and Karen allege: “Lipworth became assignee to collect a
judgment from Raj Singh. Relying on [Lipworth’s] fraudulent representations, [the trial]
court ruled that Raj Singh is hiding some properties from his creditors using different
names such as Archana Singh and Suman Mehta. . . . The fact[s] are the following: first,
Raj Singh is neither Archana Singh nor Suman Mehta; second, Raj Singh did not own
any property using such different names . . . .”
15
The allegations of the first amended complaint are a transparent attempt to
relitigate the final judgment and post-judgment orders entered in the prior case based on
intrinsic, rather than extrinsic fraud. Witkin explains: “The most common ground for
equitable relief [from a final judgment] is extrinsic fraud, a broad concept that covers a
number of situations. Its essential characteristic is that it has the effect of preventing a
fair adversary hearing, the aggrieved party being deliberately kept in ignorance of the
action or proceeding, or in some other way fraudulently prevented from presenting that
party’s claim or defense.” (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment
in Trial Court, § 225, p. 832.) However, where “the aggrieved party had a reasonable
opportunity to appear and litigate that party’s claim or defense, fraud occurring in the
course of the proceeding is not a ground for equitable relief. The theory is that these
matters will ordinarily be exposed during the trial by diligence of the party and his or her
counsel, and that the occasional unfortunate results of undiscovered perjury or other
intrinsic fraud must be endured in the interest of stability of final judgments.” (Id., § 241,
p. 857.) And while the first amended complaint vaguely asserts that “Suman Mehta and
Archana Singh lost their properties without any opportunity to defend,” where a party
seeks “equitable relief based upon extrinsic fraud in obtaining a judgment, the facts
constituting the fraud must be pleaded with particularity and specificity.” (Kuehn v.
Kuehn (2000) 85 Cal. App. 4th 824, 831.)
Turning to the dismissal entered against Singh/Mehta, the lawsuit was dismissed
pursuant to the vexatious litigant statutes. As mentioned, Singh was found to be a
vexatious litigant under section 391, subdivision (b)(3), because, “while acting in propria
persona, [he] repeatedly file[d] unmeritorious motions” that were “frivolous or solely
intended to cause unnecessary delay.” Section 391.1 provides: “In any litigation pending
in any court of this state, at any time until final judgment is entered, a defendant may
move the court, upon notice and hearing, for an order requiring the plaintiff to furnish
security or for an order dismissing the litigation pursuant to subdivision (b) of Section
16
391.3. The motion for an order requiring the plaintiff to furnish security shall be based
upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and
that there is not a reasonable probability that he or she will prevail in the litigation against
the moving defendant.”
“The trial court exercises its discretion in determining whether a person is a
vexatious litigant. Review of the order is accordingly limited and the Court of Appeal
will uphold the ruling if it is supported by substantial evidence.” (Golin v. Allenby
(2010) 190 Cal. App. 4th 616, 636.) “Likewise, a court’s decision that a vexatious litigant
does not have a reasonable chance of success in the action is based on an evaluative
judgment in which the court weighs the evidence. If there is any substantial evidence to
support the court’s determination, it will be upheld. [Citation.]” (Ibid.)
There is no question Singh was acting in propria persona between September 2011
and April 2012 when he filed six motions seeking to file the second amended complaint
his former attorney previously filed without the trial court’s permission. Three of the
motions also sought to reinstate a fraudulently obtained default judgment. Substantial
evidence supports the trial court’s conclusion these motions were “repeatedly file[d],”
“unmeritorious,” and “frivolous.” (§ 391, subd. (b)(3).) Each motion was procedurally
deficient for the reasons explained by the trial court. Moreover, leave to amend may be
denied where permitting an amendment would be futile (Long v. Century Indemnity Co.
(2008) 163 Cal. App. 4th 1460, 1468), e.g., where the amendment does not state a cause of
action. (See Foxborough v. Van Atta (1994) 26 Cal. App. 4th 217, 230; Heckendorn v.
City of San Marino (1986) 42 Cal. 3d 481, 489 [leave to amend should be denied where
no liability exists under substantive law].) The second amended complaint, like its
predecessor, sought to relitigate the final judgment and post-judgment orders entered in
the prior case based on intrinsic, rather than extrinsic fraud, and was therefore legally
untenable. Nor was there any legal basis to have the fraudulently obtained default
judgment reinstated. Substantial evidence also supports the trial court’s determination
17
Singh possessed no reasonable probability he would prevail in the litigation.
Accordingly, the trial court did not abuse its discretion when it ordered Singh/Mehta to
furnish security and dismissed the lawsuit as to these plaintiffs upon the failure to furnish
such security. (§§ 391.3, subd. (a), 391.4.) We conclude any reasonable attorney would
agree the appeal of this order is “totally and completely without merit.” (Bach v. County
of Butte, supra, 215 Cal.App.3d at p. 310.)
We now turn to the dismissal entered against Karen after the trial court granted
Lipworth’s anti-SLAPP motion. Section 425.16 provides in relevant part: “A cause of
action against a person arising from any act of that person in furtherance of the person’s
right of petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) “[I]n
applying the statute a court generally is required to engage in a two-step process: ‘First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. . . . If the court finds
such a showing has been made, it then determines whether the plaintiff has demonstrated
a probability of prevailing on the claim.’ ” (Taus v. Loftus (2007) 40 Cal. 4th 683, 712,
quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67.) We
review the trial court’s ruling de novo. (Mendoza v. Wichmann (2011) 194 Cal. App. 4th
1430, 1447.)
With respect to the first stage of the anti-SLAPP analysis, the trial court found
“the [first amended complaint] arises from [Lipworth’s] litigation conduct, specifically,
‘fraudulent representations’ made to obtain judgments and orders from the Court and thus
falls directly within the scope of [section] 425.16(e)(2) which covers oral and written
statements made in connection with an issue under consideration by a judicial body.”
Moreover, “[a]ll communications made in the judicial proceeding are absolutely
18
privileged pursuant to Civil Code [section] 47(b).” With respect to the second stage of
the analysis, the trial court concluded Karen did not “ ‘demonstrate that the complaint is
both legally sufficient and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment,’ ” explaining: “Karen Singh failed to file any opposition to
the anti-SLAPP motion and thus is unable to meet her burden to demonstrate that the
[first amended complaint] is both legally sufficient and supported by a sufficient showing
of facts. To the extent the opposition filed previously by Plaintiff Raj Singh to the anti-
SLAPP motion directed to him, could be construed as an opposition on behalf of Karen
Singh (and it cannot), it is insufficient. Indeed, the [first amended complaint] essentially
contains allegations that the Court’s previous judgment and orders were based on
incorrect findings made as a result of [Lipworth’s] misrepresentations. In sum, the [first
amended complaint] is nothing more tha[n] an impermissible collateral attack on the
Court’s previous judgment and orders. [Citation.] Nothing contained in Raj Singh’s
opposition dictates any other result as it does nothing more than simply reiterate the
allegations in the [first amended complaint]. As a result, Plaintiff Karen Singh has failed
to meet her burden on this motion and [Lipworth’s] special motion to strike is therefore
granted.”
The trial court’s reasoning is unassailable. As with the dismissal under the
vexatious litigant statutes, we conclude any reasonable attorney would agree the appeal
of the trial court’s anti-SLAPP ruling is “totally and completely without merit.” (Bach v.
County of Butte, supra, 215 Cal.App.3d at p. 310.)
Lipworth’s sanctions motion requests $7,478.75 in attorney fees and costs incurred
in defending this appeal and filing the sanctions motion. This request is supported by a
declaration by counsel and an itemized billing statement showing fees and costs incurred.
We find these sums to be reasonable. Indeed, Oliver conceded at the sanctions hearing
this figure was a “reasonable number for defending an appeal.”
19
Courts, with increasing frequency, have imposed additional sanctions, payable to
the clerk of the court, to compensate the state for the cost to the taxpayers of processing a
frivolous appeal. (See Pierotti v. Torian (2000) 81 Cal. App. 4th 17, 36.) The cost of
processing an appeal that results in an opinion has been estimated to be approximately
$8,500. (See Kleveland, supra, 215 Cal.App.4th at p. 560.) However, where the legal
issues involved in the appeal “are not at all complex,” courts have found $6,000 to be an
appropriate sanction. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal. App. 4th
181, 190; In re Marriage of Gong & Kwong (2008) 163 Cal. App. 4th 510, 520; see also
DeRose v. Heurlin (2002) 100 Cal. App. 4th 158, 182 [$6,000 is “a conservative measure”
of the cost of processing the average civil appeal based on a 1992 cost analysis].) Here
too, the legal issues are not complex. But this only adds to the frivolousness of the
appeal. In determining a sanctions amount, we must also consider “the degree of
objective frivolousness” and “the need for discouragement of like conduct in the future.”
(Pierotti v. Torian, supra, 81 Cal.App.4th at p. 34.) The degree of objective
frivolousness is very high and the need for discouragement of like conduct in the future is
great. For these reasons, we impose the amount of $7,500 in sanctions payable directly to
the clerk of this court.
We also deem it appropriate to hold plaintiffs’ attorney, Keith R. Oliver, jointly
and severally liable for the payment of sanctions. (In re Marriage of Schnabel (1994) 30
Cal. App. 4th 747, 755-756 [“sanctions may be assessed solely against a lawyer who,
because the appeal was so totally lacking in merit, had a professional obligation not to
pursue it”]; Bus. & Prof. Code, § 6068, subd. (c).)
DISPOSITION
The judgment is affirmed. Appellants and their attorney, Keith R. Oliver, are
ordered to pay $7,478.75 to respondent Stephen Lipworth and $7,500 to the clerk of this
court as sanctions for bringing this frivolous appeal. This obligation is joint and several.
All sanctions shall be paid no later than 30 days after the date the remittitur is issued.
20
Stephen Lipworth is also awarded costs on appeal. A copy of this opinion and a copy of
the oral argument transcript shall be forwarded to the State Bar of California upon
issuance of the remittitur.
HOCH , J.
We concur:
BLEASE , Acting P. J.
HULL , J.
21