Mack v. All Counties Tr. Servs., Inc.

237 Cal. Rptr. 3d 568, 26 Cal. App. 5th 935
CourtCalifornia Court of Appeal, 5th District
DecidedAugust 30, 2018
DocketB280650
StatusPublished
Cited by16 cases

This text of 237 Cal. Rptr. 3d 568 (Mack v. All Counties Tr. Servs., Inc.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mack v. All Counties Tr. Servs., Inc., 237 Cal. Rptr. 3d 568, 26 Cal. App. 5th 935 (Cal. Ct. App. 2018).

Opinion

CHANEY, J.

Novelette Mack acquired property located at 4601 West Slauson Avenue in 2004. Through a series of transactions that Mack contends were fraudulent and a series of lawsuits Mack contends resulted in void judgments, the title to the property no longer rests with Mack.

This appeal is from a December 22, 2016 order denying a motion to vacate an earlier judgment under Code of Civil Procedure section 473, subdivision (d). That earlier judgment is a June 22, 2016 judgment after demurrers to Mack's first amended complaint against Melvin Hoffman, Wayne Abb, and two companies that Hoffman allegedly owned, Creative Investment, Inc., and All Counties Trustee Services, Inc.-all of whom Mack contends were involved in the fraudulent transactions and helped secure allegedly void judgments-and a motion to strike a second amended complaint against the same parties.1

*569As we explain, the record before us discloses no basis upon which we could review the validity of either of the judgments Mack contends is void. We therefore affirm the trial court's December 22, 2016 order denying Mack's motion to vacate the June 22, 2016 judgment.

BACKGROUND

The record in this case is incomplete, at best. Although the judgment Mack asks us to declare void was after a demurrer to Mack's first amended complaint, the record lacks a copy of the first amended complaint. Mack asks us to make decisions related to a decade of litigation and at least three superior court cases. But to do so, she asks us to rely on only the documents attached to her second amended complaint (neither operative nor filed with permission) without reference to any foundational documents that would help us understand the procedural or factual contexts in which those decisions were made. There were no requests for judicial notice under Evidence Code section 452 of pleadings or orders from the prior lawsuits. Additionally, we received no brief from respondents that would help us contextualize the few details we can collect from the record. What we were able to glean, we gathered largely from Mack's second amended complaint and the trial court docket.

A. Factual Background

In August 2002, Traci Green, the owner of companies called Ma'Mees and VII Series, Inc., acquired property located at 4601 West Slauson Avenue by quitclaim deed. On November 25, 2004, Ma'Mees transferred title of the property to Mack, also by quitclaim. Mack recorded her quitclaim deed on April 22, 2005, the same day VII Series obtained a loan and secured it with a deed of trust on the Slauson property in favor of Melvin Hoffman's company, Creative Investment.

In June 2005, Mack filed suit against Creative Investment, Green, Ma'Mees, and Series VII to quiet title in the Slauson property and for fraud. On March 30, 2007, the trial court entered judgment for Mack against Green, Ma'Mees, and Series VII for $190,429 on her fraud action and quieted title in Mack subject to two encumbrances.

The judgment was either modified or set aside and reentered in November 2007 to reflect an $82,914 judgment on Mack's fraud action against Green, Ma'Mees, and Series VII.2

*570While that litigation was pending, Melvin Hoffman allegedly initiated a "fraudulent foreclosure ... on behalf of Creative Investment through ... All Counties Trustee Services" (All Counties) based on the April 22, 2005 VII Series loan and sold the property in a trustee's sale. In March 2012, the trial court awarded a quiet title judgment to third parties that acquired the property in that trustee's sale. The record is silent about whether Mack appealed the judgment in that quiet title action. As a result, Mack no longer holds title to the property.

B. Procedural Background

Mack initiated this action in November 2014. The trial court docket indicates that the court sustained demurrers and granted motions to strike the original complaint. In July 2015, Mack filed a first amended complaint, alleging causes of action for promissory estoppel, wrongful foreclosure, conversion, breach of contract, fraud, and unfair business practices. All Counties, Creative Investment, Hoffman, and Abb demurred to the first amended complaint.

Before the pending demurrers could be heard, and without leave of court, Mack filed a second amended complaint on December 7, 2015. On April 1, 2016, the same defendants moved to strike the second amended complaint on the ground that it was filed without leave of court.

The trial court heard the defendants' demurrers to the first amended complaint and motion to strike the second amended complaint on June 2, 2016. The trial court sustained the demurrers to the first amended complaint without leave to amend and granted the motion to strike the second amended complaint.

On June 14, 2016, Mack filed a "motion for reconsideration, or in the alternative, motion to set aside judgment" based on the June 2, 2016 order. On June 22, 2016, the trial court entered a judgment of dismissal based on its June 2 order. The trial court denied the motion for reconsideration on December 22, 2016.

DISCUSSION

A. Vexatious Litigant Issues

Mack filed her notice of appeal in propria persona. Because Mack has been found to be a vexatious litigant within the meaning of Code of Civil Procedure section 391.7, subdivision (a), we stayed the appeal and ordered Mack to show "that the litigation has merit and has not been taken for purposes of harassment or delay." ( Code Civ. Proc., § 391.7, subd. (b).) Instead, Mack retained counsel and substituted retained counsel for herself on March 2, 2017. On June 20, 2017, we discharged the order to show cause "[i]n light of retention of counsel" and reset the briefing schedule.

On September 8, 2017-more than a month before the record on appeal was filed-Mack's retained counsel filed a motion to withdraw, which we denied. In our order, we pointed out that "[c]ounsel appeared in this matter while an order to show cause was pending in light of [Mack's] status as a vexatious litigant; the order to show cause was discharged because [Mack] had retained counsel." We also stated that we would "allow counsel to withdraw if new counsel agrees to take over the representation."

On June 29, 2018, we notified the parties that the case was set for argument on July 24, 2018, and inviting a request for or waiver of oral argument. On July 9, 2018, we received a notice that Mack was substituting herself back into the litigation in propria persona, and, "based on [the] substitution of attorney filed concurrently herewith," that she would be appearing in propria persona to argue her appeal in *571spite of her status as a vexatious litigant and our previous orders.

Based on Mack's in propria persona substitution, we removed the case from the argument calendar. On July 30, 2018, we issued an order to show cause why the case should not be dismissed pursuant to Code of Civil Procedure section 391.3, subdivision (b) and the court's inherent power to control its proceedings in the interest of the prompt, fair, and orderly administration of justice. (See Cal. Const., art. VI, § 1 ; Code Civ. Proc., § 128, subd. (a) ; Kinney v.

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Cite This Page — Counsel Stack

Bluebook (online)
237 Cal. Rptr. 3d 568, 26 Cal. App. 5th 935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-all-counties-tr-servs-inc-calctapp5d-2018.