Lin v. Flakes CA6

Filed 1/3/23 Lin v. Flakes CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
WALLACE LIN, H048413
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 18CV332977)
v.
SOOHYUNG FLAKES, et al.,
Defendants and Respondents.
The trial court granted a motion to transfer venue in this case from Santa Clara
County Superior Court to San Francisco County Superior Court. When appellant
Wallace Lin failed to timely pay transfer fees, as required by Code of Civil Procedure
section 399, subdivision (a),1 the trial court granted a motion to dismiss the action and
entered judgment accordingly. On appeal, Lin contends the trial court erred in doing so.
We will affirm the judgment.2
1
Undesignated statutory references are to the Code of Civil Procedure.
2
Lin represents himself in this appeal, as he did at the trial court. Because of
certain deficiencies in his briefing, we note that as a self-represented appellant, Lin “ ‘is
entitled to the same, but no greater, consideration than other litigants and attorneys.’
[Citation.] Accordingly, we may disregard factual contentions that are not supported by
citations to the record [citation] or are based on information that is outside the record
[citation]. [Fn. omitted.] We may disregard legal arguments that are not supported by
citations to legal authority [citation] or are conclusory.” (Tanguilig v. Valdez (2019) 36
Cal.App.5th 514, 520 (Tanguilig).) We did not use the hyperlinks provided in the brief to
view documents, as it was clear from a review of the clerk’s transcript and the discussion
provided by Lin in his brief that not all of the documents were included in the clerk’s
I. FACTUAL AND PROCEDURAL BACKGROUND
Lin filed a complaint in Santa Clara County Superior Court against respondents
SooHyung Flakes, Michael Sabeti, Caren Pierorzio, Fran Vinculado, Wilson Hsin, and
the Regents of the University of California (collectively UCSF) and Carestream Health
Inc. (Carestream), setting forth causes of action stemming from “X-ray overdose and
radiation sickness” Lin alleges he sustained while receiving dental treatment at the
University of California San Francisco Dental Center. 3 After Lin filed an amended
complaint, UCSF moved to transfer venue to San Francisco County Superior Court
pursuant to section 397, subdivision (a), which authorizes the court to “change the place
of trial . . . [¶] . . .[w]hen the court designated in the complaint is not the proper court.”
UCSF argued Santa Clara County was not the proper venue under section 395,
subdivision (a),4 as the alleged injuries occurred in San Francisco County, and none of
the defendants resided or worked in Santa Clara County. They identified San Francisco
County as the proper venue because that is where the alleged injury took place, and
where Lin entered into the contract for services with UCSF.
transcript. We considered only those documents included in the clerk’s transcript.
Understanding the difficulties encountered by self-represented appellants, we exercised
our discretion to liberally construe appellant’s pleadings. However, as discussed below,
where the referenced materials could not be located in the record on appeal, we
proceeded as if there was no citation to the record.
3 Lin named UCSF School of Dentistry and Eastman Kodak Company as
defendants. Later pleadings revealed that the Regents of the University of California and
Carestream were the properly named parties. Where appropriate, we refer to UCSF and
Carestream collectively as respondents.
4 In a personal injury action, the proper venue is the county where the injury
occurred, or the county where at least one defendant resides. (§ 395, subd. (a).) Except
as set forth in section 395, subdivision (b), where the action arises out of a contract to
perform an obligation, the proper venue is “the county where the obligation is to be
performed, where the contract in fact was entered into, or where the defendant or any
defendant resides at the commencement of the action. . . .” (Ibid.)
2
The trial court granted the motion to transfer venue in an order issued in
September 2019, finding that the case in essence alleged malpractice, such that section
395, subdivision (a) applied, rather than 395, subdivision (b).5
Lin filed a motion for reconsideration of the order changing venue. He asked the
trial court to “fully reconsider and specifically address and resolve” 22 “issues,” in
addition to the “issues and arguments” he raised in his opposition to the motion to
transfer venue. UCSF opposed the motion, contending that it was untimely, and that Lin
failed to identify “ ‘new or different facts, circumstances, or law’ justifying
reconsideration of the Venue Order as required by [section 1008, subdivision (a)].”
UCSF further argued that the appropriate mechanism by which Lin could obtain relief
was a petition for writ of mandate pursuant to section 400, not a motion for
reconsideration under section 1008, subdivision (a).
The trial court denied the motion for reconsideration, after issuing a tentative
ruling that none of the parties contested. Assuming without deciding that it had
jurisdiction to rule on the motion, and that the motion was timely, the court found that
Lin did not raise any “new issues of fact or law that would justify reconsideration of the
Court’s order transferring venue to San Francisco County.”
UCSF, joined by Carestream, thereafter filed a motion to dismiss the action
pursuant to section 399, subdivision (a), on the ground Lin failed to pay the statutorily
mandated venue transfer fees.6 In the motion to dismiss, UCSF argued that section 399,
5 “[I]n an action arising from an offer or provision of goods, services, loans or
extensions of credit intended primarily for personal, family or household use, . . . the
superior court in the county where the buyer or lessee in fact signed the contract, where
the buyer or lessee resided at the time the contract was entered into, or where the buyer or
lessee resides at the commencement of the action is the proper court for the trial of the
action.” (§ 395, subd. (b).)
6 When the trial court grants a motion to transfer venue because the action was
commenced in an improper court, the plaintiff is required to pay the costs and fees of the
transfer to the new venue before the transfer is made. (§ 399, subd. (a).) “The cause of
action shall not be further prosecuted in any court until those costs and fees are paid. If
3
subdivision (a) made Lin responsible for paying the fees, and required the court to
dismiss the action without prejudice.
Lin initially opposed the motion on the grounds that the timing of the motion was
improper due to court closures related to the Covid-19 pandemic, and because his time to
seek review of the orders granting the change of venue and denying the motion for
reconsideration had not yet elapsed.7 Lin then contended he should have had the
opportunity to amend his complaint as needed. In context, it appears that Lin reiterated
the arguments he made in opposition to the motion to transfer venue. Lin also alleged
that he had good cause for not paying the transfer fees, given that he appealed from the
order granting the change of venue, and given that both he and UCSF had fee waivers.
After hearing oral argument, the court issued a written order granting UCSF’s
motion to dismiss based on Lin’s failure to pay the transfer fees within 30 days after
service of the court’s order changing venue.8 The court rejected Lin’s contention that he
did not know such fees were due because the court clerk did not notify him of such. The
court also rejected Lin’s claim that his preexisting fee waiver excused him from paying
those costs and fees are not paid within 30 days after service of notice of the transfer
order, if a copy of a petition for writ of mandate pursuant to Section 400 is filed in the
trial court, or if an appeal is taken pursuant to Section 904.2, then, within 30 days after
notice of finality of the order of transfer, the court on a duly noticed motion by any party
may dismiss the action without prejudice to the cause on the condition that no other
action on the cause may be commenced in another court before satisfaction of the court’s
order for costs and fees.” (§ 399, sub. (a).)
7 In April 2020, Lin filed a notice of appeal from these orders, in appeal number
H048210. This court granted UCSF’s motion to dismiss that appeal on the grounds it
was not an appealable order pursuant to section 400, which provides, in relevant part,
“the party aggrieved by the order [changing venue] may, within 20 days after service of a
written notice of the order, petition the court of appeal for the district in which the court
granting or denying the motion is situated for a writ of mandate requiring trial of the case
in the proper court.” At the time Lin filed the appeal in H048210, the order was
reviewable not by appeal, but by writ petition. On its own motion, this court takes
judicial notice of the docket in appeal number H048210.
8 Lin did not designate a reporter’s transcript or settled statement from the hearing
as part of the record on appeal.
4
the transfer fees. The court entered a judgment of dismissal, after which Lin timely filed
a notice of appeal.
II. DISCUSSION
A. The Appeal is not Subject to Dismissal
We first address respondents’ contention that the judgment of dismissal is not
appealable, as a dismissal ordered pursuant to section 399, subdivision (a), is “without
prejudice.”9 They ask this court to dismiss the appeal as taken from a nonappealable
order.
The authorities cited by respondents are inapposite. Those appellate cases stand
for the proposition that a voluntary dismissal without prejudice is not an appealable, final
judgment on the merits.10 (Syufy Enterprises v. City of Oakland (2002) 104 Cal.App.4th
869, 879; Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33
Cal.App.3d 116, 121.) But here the trial court entered an involuntary dismissal over
Lin’s objection.
Respondents further rely on authorities holding that a stipulation to dismiss certain
causes of action without prejudice can render a dismissal order nonappealable, suggesting
Lin’s failure to pay the required fees is akin to such a stipulation. (See Abatti v. Imperial
Irrigation Dist. (2012) 205 Cal.App.4th 650, 666-667 (Abatti); Hill v. City of Clovis
(1998) 63 Cal.App.4th 434, 442-443 (Hill).) The California Supreme Court has held,
“When . . . the trial court has resolved some causes of action and the others are
voluntarily dismissed, but the parties have agreed to preserve the voluntarily dismissed
9Neither the order granting the motion to dismiss the action, nor the subsequent
judgment, specify that the action is dismissed without prejudice. Respondents moved to
dismiss the matter pursuant to section 399, subdivision (a), and implicitly recognized that
the dismissal would be without prejudice, as they requested an order precluding Lin from
refiling any other lawsuit based on the same causes of action until the fees were paid.
10 Carestream joined in UCSF’s “response brief on appeal.” Carestream also
indicated it was joining UCSF’s “Respondent’s Appendix.” UCSF did not file an
appendix in this appeal.
5
counts for potential litigation upon conclusion of the appeal from the judgment rendered,
the judgment is one that ‘fails to complete the disposition of all the causes of action
between the parties’ [citation] and is therefore not appealable.” (Kurwa v. Kislinger
(2013) 57 Cal.4th 1097, 1105 (Kurwa), italics added.) But although Lin voluntarily
declined to pay the required fees under section 399, subdivision (a), he did so believing
that the trial court erred in granting the motion to change venue in the first instance. We
distinguish his election from the voluntary agreement between parties to preserve claims
for future litigation described in Abatti and Hill.
Further, even if we deemed the court’s dismissal of the action voluntary because
Lin failed to pay the venue transfer fees, the California Supreme Court has held that a
voluntary dismissal, “unaccompanied by any agreement for future litigation, does create
sufficient finality as to that cause of action so as to allow appeal from a judgment
disposing of the other counts. [Citation.] That is because ‘a party’s voluntary dismissal
without prejudice does not come equipped by law with an automatic tolling or waiver of
all relevant limitations periods; instead, such a dismissal includes the very real risk that
an applicable statute of limitations will run before the party is in a position to renew the
dismissed cause of action.’ [Citation.]” (Kurwa, supra, 57 Cal.4th at pp. 1105-1106.) It
is when the parties agree to toll or waive the statute of limitations on a dismissed cause of
action that the judgment disposing of the other causes of action is not yet final and
appealable. (Ibid.) We observe that the statutes of limitations generally applicable to the
causes of action raised by Lin likely would preclude any opportunity to pay the required
fees and file a new complaint in the proper venue. (See § 335 et seq.)
We recognize that allowing Lin to appeal from the trial court’s dismissal based on
his failure to pay transfer fees could appear to allow him to circumvent the requirements
of section 399, subdivision (a). Yet, there is ample precedent for appellate courts treating
dismissals entered without prejudice under other provisions of the Code of Civil
Procedure as final for purposes of appealability. Notably, orders dismissing an action for
6
delay in prosecution under section 583.110 et seq., which are entered without prejudice
(§ 581, subd. (g)), are appealable. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 588
[dismissal for failure to prosecute within five years appealable]; Sylvestre v. King Mfg.
Co. (1967) 256 Cal.App.2d 236, 238 [dismissal for failure to timely serve summons
appealable].) Much like a dismissal without prejudice based on failure to pay venue
transfer fees, a party whose case is dismissed without prejudice for delay in prosecution
or failure to appear at trial runs the risk that claims raised in a new case will be barred by
the statute of limitations.
Further, finding the dismissal order appealable is not at odds with the intent of the
Legislature embodied in the legislative history of section 399, subdivision (a), which was
added to the Code of Civil Procedure by Assembly Bill No. 3439 (1973-1974 Reg. Sess.).
(Stats. 1974, ch. 1369, § 3, pp. 2965-2966.) The Legislature amended the change of
venue provisions of the Code of Civil Procedure at that time to discourage plaintiffs from
filing their cases in improper venues, and to ensure consequences when someone did file
in the improper court. (See Assem. Com. on Judiciary, Bill Digest of Assem. Bill No.
3439 (1973-1974 Reg. Sess.) Apr. 30, 1974, pp. 1-2; Assem. Com. on Judiciary, Bill
Digest of Assem. Bill No. 3439 (1973-1974 Reg. Sess.) May 21, 1974, pp. 1-2; Assem.
Com. on Judiciary, Bill Digest of Assem. Bill No. 3439 (1973-1974 Reg. Sess.) June 10,
1974, pp. 1-2.) These added consequences include allowing a defendant to recover
reasonable attorney fees and costs incurred in making a motion to change venue when the
case is not filed in the proper court, and requiring a plaintiff to pay any order for fees and
costs before filing a new case in the proper court after the dismissal without prejudice.
(Ibid.)
Allowing a plaintiff to appeal the dismissal without prejudice does not negate any
of these legislative protections included in section 399, subdivision (a). Whether or not
we dismiss the appeal, because we affirm the judgment, Lin must still pay the fees to file
a new case in San Francisco County, assuming that the statutes of limitations on his
7
claims have not yet expired. Under these circumstances, we are satisfied that the
dismissal represents a “final judicial determination” of Lin’s rights against the
respondents in this action “and therefore is appealable in accordance with the general
rule.” (Topa Ins. Co. v. Fireman’s Fund Ins. Companies (1995) 39 Cal.App.4th 1331,
1336.)
B. Lin Has Not Demonstrated Error in the Orders Granting the Transfer of Venue
and Denying the Motion for Reconsideration
Although Lin’s notice of appeal purports to seek review of the order granting
respondents’ motion to dismiss and the judgment of dismissal, Lin contends in that notice
that these orders “compound[ed] earlier erroneous orders granting venue transfer and
denyi[ng] reconsideration[.]” In his appellant’s opening brief, Lin argues that the trial
court’s ruling on the motion to transfer venue, in particular the determination that the
action was a malpractice action, rendered the order, “and all subsequent decisions, orders
and actions that follow and emanate from it, erroneous.” He asks this court to reverse
and vacate the order granting the motion to transfer venue.
Respondents argue that the order granting the transfer of venue is not appealable,
as section 400 allows an aggrieved party to petition the appellate court for a writ of
mandate within 20 days after service of the written notice of the order. That statute says
a party “may” file such a petition. It does not mandate the petition, or otherwise indicate
that a failure to file an immediate writ petition deprives the party of appellate review
upon entry of a judgment. Notably, in Calhoun v. Vallejo City Unified School Dist.
(1993) 20 Cal.App.4th 39, a case respondents rely on to support their contention that the
order to transfer venue is not appealable, the appellate court clearly indicated that the
order was appealable after entry of judgment. (Id. at p. 42 [“Appellant has shown no
exigent reasons why review of the venue ruling should not, as is usual, await the
rendition of a final judgment, so as to avoid multiple piecemeal appellate dispositions[,]”
disapproved on other grounds by K.J. v. Los Angeles Unified School Dist. (2020) 8
8
Cal.5th 875.) While Lin could have challenged the order transferring venue by writ
petition prior to the entry of judgment, he was not required to do so, and can now seek
review in this appeal from the judgment of dismissal. (See § 906.)
Because we presume the order of the lower court to be correct, Lin bears the
burden of affirmatively demonstrating that the trial court erred in granting the motion to
transfer venue. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) “ ‘ “[I]f
the record is inadequate for meaningful review, the appellant defaults and the decision of
the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the
burden of providing an adequate record. [Citation.] Failure to provide an adequate
record on an issue requires that the issue be resolved against [the appellant].’ [Citation.]”
(Id. at p. 609.)
Lin’s opposition to the motion to transfer venue is not part of the record on appeal.
Nor did he designate a reporter’s transcript or other record from the trial court’s hearing
on the motion. From the record on appeal, this court cannot discern the arguments Lin
raised below, or determine whether he made the arguments he raises on appeal to the trial
court in opposing the motion, thus preserving those arguments for appeal. As we do not
have adequate record, we presume the arguments were not raised below and Lin’s claims
with regard to the order granting the motion to transfer venue are therefore forfeited.
(See Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186, fn. 2;
Hepner v. Franchise Tax Board (1997) 52 Cal.App.4th 1475, 1486 (Hepner) [“In civil
cases, constitutional questions not raised in the trial court are considered waived.”].)
To the extent Lin seeks review of the order denying his motion for
reconsideration, he similarly failed to designate an appropriate record to meet his burden
to demonstrate that the trial court erred. The record he provided includes only the
memorandum of points and authorities he filed with the motion, which does not identify
the basis for his reconsideration request. More importantly, given that Lin had to raise a
new issue of law or fact to justify reconsideration of the order transferring venue to San
9
Francisco County, this court would need to know the evidence and argument he presented
to the trial court in the first instance in order to determine whether his reconsideration
motion included “new or different facts, circumstances, or law” as required by section
1008, subdivision (a). Lin’s failure to provide an adequate record requires that the issue
be resolved against him. (Jameson, supra, 5 Cal.5th at p. 609.)
C. Lin Has Not Demonstrated Error in the Order Dismissing the Action
Citing to evidence that is not part of the record on appeal, including “recently”
obtained evidence, Lin contends the trial court judge was “intimately connected” with
UCSF, such that he could not provide Lin a fair hearing. Lin alleges the trial court judge,
prior to the hearing on the motion to transfer venue, disclosed that he had previously been
employed by “the UC Regents,” but failed to fully disclose the nature of his prior
relationship with the University of California. As already discussed, we will not consider
evidence outside of the record. (Meridian Financial Services, Inc. v. Phan (2021) 67
Cal.App.5th 657, 684 (Meridian).) Nor will we consider arguments not raised in the trial
court. (Hepner, supra, 52 Cal.App.4th at p. 1486.) Lin does not cite any evidence in the
record in support of his claims. He did not, as far as the record reveals, raise these claims
to the trial court. Thus, Lin’s contention of alleged unfair treatment is waived on appeal.
Lin further claims that the orders, including the judgment of dismissal, create
“[d]angerous [p]recedential [c]onsequences” and are “[p]recedentially disparate” and
“[h]armful [t]o [p]ublic [p]olicy.” He argues that the respondents are not prejudiced or
inconvenienced if venue remains in Santa Clara County; that statutes and laws need to
“catch up” with technological advances; and that the trial court’s orders go against the
published edicts of the justices of the California Supreme Court. Lin’s concerns
primarily address the effect of the order transferring venue. But as discussed previously,
we do not have an adequate record to address the alleged effects of the transfer of venue,
and have no record of whether Lin raised these issues below. Nor does Lin cite any legal
10
authority in support of these arguments. Thus, we treat them as waived. (Tanguilig,
supra, 36 Cal.App.5th at p. 520.)
Lin argues that the trial court’s orders violated his First, Eighth and Fourteenth
Amendment rights. While Lin cites legal authority in support of his argument under the
Fourteenth Amendment, it is clear that this argument, as well as those under the First and
Eighth Amendments, go to the propriety of the trial court’s order transferring venue to
San Francisco County. We are once again unable to address these contentions as we have
no record of the proceedings from which to judge what took place in the trial court. We
must treat these arguments, which are not developed or supported by adequate citations to
the record or legal authority, as waived. (Meridian, supra, 67 Cal.App.5th at p. 684.)
Lin does not address any factual or legal authority demonstrating that the trial
court erred in granting the motion to dismiss the action without prejudice pursuant to
section 399, subdivision (a), after Lin failed to pay the fees required by that statute. As
such, we must affirm the subsequent judgment of dismissal.
III. DISPOSITION
The August 14, 2020 judgment of dismissal is affirmed.
11
_______________________________
Greenwood, P. J.
I CONCUR:
______________________________________
Grover, J.
I CONCUR IN THE JUDGMENT ONLY:
______________________________________
Lie, J.
Lin v. Flakes et al.
No. H048413