Parisi
v.
Lotchk Corp.

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOURJan 10, 2013
A135121 (Cal. Ct. App. Jan. 10, 2013)

A135121

01-10-2013

WILLIAM PARISI, Plaintiff and Respondent, v. LOTCHK CORPORATION et al., Defendants and Appellants.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco City & County Super. Ct. No. PTR-05-286962)

Appellants Lotchk Corporation (Lotchk) and Great Sunset Ventures, Inc. (GSV) attempt to appeal from an interlocutory probate order denying their motion to dismiss the petition brought by respondent William Parisi on behalf of conservatee Lucia Fiorani. Because the order is not appealable and there are no unusual circumstances present that would spur us to treat the appeal as a writ of mandate, we dismiss the intended appeal. As well, we grant Parisi's motion to impose sanctions on appeal.

I. FACTUAL BACKGROUND

Parisi is the conservator for Lucia Fiorani, the sole beneficiary of the Fiorani Living Trust. Fiorani is a disabled single woman who was 65 years old at the time the petition was filed. The trust assets include a two-unit building on Filbert Street in San Francisco, as well as bank and investment accounts.

On February 1, 2005, Fiorani petitioned the probate court to compel Ronald Mazzaferro, the trustee at the time, to account. The court ordered him to file an accounting. Counsel attempted to serve Mazzaferro, and ultimately in 2006 an order for warrant of attachment for contempt was issued against him. Thereafter Fiorani petitioned to remove Mazzaferro as trustee and appoint a successor trustee; relief was granted in December 2009.

Edith Mazzaferri, as successor trustee, filed a civil complaint against Mazzaferro, appellant corporations and others in June 2010. Among numerous causes of action she alleged breaches of trust, contract, and fiduciary duty; intentional and negligent misrepresentation; conversion; unjust enrichment/restitution; quiet title, and conveyance of property to trust under Probate Code section 850; and imposition of constructive trust.

In January 2012, Parisi lodged a petition in probate court on behalf of conservatee and trust beneficiary Fiorani. Therein Parisi accused appellants, Mazzaferro and five other individuals of financial abuse of a dependent adult; fraud, and constructive fraud; sought return of property under Probate Code section 850; and asked for a judicial determination of fiduciary abuse under Probate Code section 259. The petition alleged that former trustee Mazzaferro and his associates, instead of using the trust assets to care for the beneficiary, appropriated trust property for their own benefit and concealed the identity and location of the assets from Fiorani. As to appellants, the petition alleged that Lotchk, a Nevada corporation, was dissolved in April 2010, and GSV, a Wyoming corporation, was administratively dissolved in December 2011. Parisi asserted that the corporate entities were shell corporations formed by Mazzaferro to facilitate transfer of the real property out of the trust.

Mazzaferri's civil action and Parisi's probate petition are based on the same facts.

Appellants moved to dismiss the probate petition on three grounds: (1) failure to timely obtain and serve summons within three years (Code Civ. Proc., §§ 583.210, 583.250); (2) failure to bring action to trial within five years(id., §§ 583.310, 583.360); and (3) necessity of abating the petition brought under Probate Code section 850 during the pendency of a prior civil action involving the same subject matter. Mazzaferro joined the motion.

Appellants tied their first two procedural arguments to the filing date of February 1, 2005, the date the original motion to compel Mazzaferro to account was filed.

Parisi opposed the motion on grounds it was frivolous and prosecuted solely to delay and harass. As well, Parisi apprised the court that five of the six individual noncorporate respondents in the probate action had been declared vexatious litigants by Division Five of this court in an appeal related to the trustee civil action, and as such were prohibited from filing any motion without court approval. As to the sixth noncorporate respondent-one Stuart Bailey-Parisi alleged that he might be an alias for Mazzaferro.

The probate court denied the motion to dismiss, ruling that the appropriate measuring date under the pertinent provisions of the Code of Civil Procedure was the date the pending petition was filed, not the date when "the original 2005 petition" to compel an accounting was filed. Further, the court expected that the probate petition would be consolidated with the pending civil case or subject to a stay pending resolution of the latter case. However, it was not subject to dismissal or abatement because the trustee's case was prosecuted by a different plaintiff.

Appellants duly noticed their purported appeal, and thereafter filed an amended notice of appeal.

II. DISCUSSION

Under California's one final judgment rule, a party may only take an appeal from the final judgment in an entire action. (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756.) This rule is premised on the theory that multiple appeals and piecemeal disposition in a single action would be costly and oppressive; thus review of intermediate rulings should await final disposition of the case. This common law rule, regarded as a bedrock principle of appellate practice, is codified in Code of Civil Procedure section 904.1. (In re Baycol Cases I & II, supra, 51 Cal.4th at p. 756.) The test for whether a judgment or order is final and appealable is this: " '[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything future in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.' " (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698.)

Section 904.1 directs that an appeal may be taken "[f]rom a judgment, except (A) an interlocutory judgment, other than as provided in [specified subsections]" and goes on to list specific additional appealable orders that stand as exceptions to the general rule.

Appellants attempt to appeal from an order denying their motion to dismiss the petition, an interlocutory order entered prior to any determination on the merits of the petition. They claim the appeal is authorized under Code of Civil Procedure section 904.1, subdivision (a)(10) which permits appeal from an order "made appealable by the provisions of the Probate Code or the Family Code." However, appellants have not identified any statute in either code authorizing an appeal from the denial of a motion to dismiss a petition where, as here, there has been no decision on the merits.

In their original and amended notices of appeal, appellants state that Parisi's petition sought relief under Probate Code section 17200 et seq. concerning the internal affairs of a trust, referring to Gridley v. Gridley (2008) 166 Cal.App.4th 1562 for the proposition that an order under these provisions can be directly appealed. This statement is false for two reasons. First, Parisi's petition was not brought under Probate Code section 17200. Second, Gridley holds that Probate Code section 1304, subdivision (a) authorizes an appeal from a final order under Probate Code section 17200 (subject to exceptions not relevant here). (Gridley v. Gridley, supra, 166 Cal.App.4th at p. 1586.) Appellant's order is not a final order, and is not appealable under Probate Code section 1304, subdivision (a) or Gridley.

Appellants propose that if we determine the order is not final for purposes of appeal, then we should treat the purported appeal as a writ of mandate, citing Esslinger v. Cummins (2006) 144 Cal.App.4th 517. This we will not do.

After deciding that the probate order in question was appealable, the Esslinger court commented that if such order had not been appealable, it nevertheless would have exercised its discretion to treat the appeal as a petition for writ of mandate. (Esslinger v. Cummins, supra, 144 Cal.App.4th at p. 523.) Our Supreme Court has cautioned that although a reviewing court has the power to treat a supposed appeal as a writ of mandate, we should only exercise that power under unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 401.) There, all issues in the litigation had been resolved except the one presented to the court. To leave that matter unresolved might lead to pointless trial court proceedings, and dismissing the appeal rather than reaching the merits through a mandate proceeding would, under the circumstances, be unnecessarily circuitous and dilatory. (Ibid.)

We decline to exercise our discretion to treat the purported appeal as a mandate proceeding. Nothing has been resolved below, and it is anticipated that the probate proceeding will be consolidated with the civil action. Appellants have an adequate legal remedy, namely to appeal from a final judgment that resolves the numerous, significant legal issues raised in the petition.

III. MOTION FOR SANCTIONS

Parisi requests that we impose sanctions upon appellants for filing a frivolous appeal and pursuing it solely for delay. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276 ( rule 8.276).) He asks for $28,755 in attorney and paralegal fees plus an additional $12,000 to compensate him and conservatee/beneficiary Fiorani, and to punish appellants for their past conduct and to deter like conduct in the future. An award of attorney fees on appeal serves the underlying purpose of the sanctions process-to compensate the respondent for the expense of defending against a frivolous appeal. (See Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 17.) Relevant factors in determining the amount of sanctions include the amount of respondent's attorney fees on appeal, the degree of objective frivolousness and delay, and the need to discourage like conduct in the future. (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 519.)

Our Supreme Court has instructed that "an appeal should be held to be frivolous only when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when 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; In re Marriage of Gong & Kwong, supra, 163 Cal.App.4th at p. 516.) While the two standards provide independent authority for an award of sanctions, they often are used together, with one supplying evidence of the other such that the a total lack of merit of an appeal is evidence that an appellant must have pursued it only for delay. (In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 649-650.)

Monetary sanctions are warranted in this case.

First it is abundantly clear that the appeal was taken from a nonappealable, interlocutory order. Parisi's counsel even apprised appellants' counsel that the purported appeal was from a nonappealable order, asked him to withdraw the appeal and raised the issue of monetary sanctions.

Second, appellants provided no argument, authority, or discussion explaining why this court should exercise its discretion to treat the improper appeal as a writ petition; why the circumstances are unusual; or why there is no adequate remedy at law.

Third, their brief is deficient and fails to comply with the California Rules of Court. It fails to state that the order appealed from is final, or to explain why it is appealable. (Cal. Rules of Court, rule 8.204(a)(2)(B).) It does not address the substance of the trial court's ruling and generally fails to support any point by reasoned argument. (Id., rule 8.204(a)(1)(B).)

Fourth, the notice of appeal and amended notice contain false statements. They state that the action they moved to dismiss was a probate proceeding filed February 1, 2005, and the original and subsequent petitions filed in that proceeding seek relief concerning the internal affairs of a trust. As is apparent from the face of the pleadings, appellants would know that no petition had been filed against them prior to January 31, 2012. Fiorani's 2005 petition to compel an accounting by former trustee Mazzaferro named, and was only served on, Mazzaferro. Further, the docket establishes that the 2005 petition was taken off calendar in August 2007.

As well, appellants falsely asserted in the notice of appeal and amended notice that the matter pending against them concerned the internal affairs of a trust and thus denial of their motion to dismiss was directly appealable on that basis. Although the 2005 petition to compel an accounting and the 2009 petition to remove Mazzaferro as trustee both concerned the internal affairs of a trust, the 2012 petition against appellants does not. It asserts financial abuse of a dependent adult, fraud, and constructive fraud, return of property, and judicial determination of fiduciary abuse.

Fifth, appellants have engaged in a pattern of conduct to delay resolution of the serious claims raised in the trustee action and the instant petition. The register of actions demonstrates that following the filing of the trustee's complaint in June 2010, defendants, including appellants herein, filed seven identical motions to dismiss, obtaining seven different hearing dates. Two were filed after the trustee moved to consolidate the motions for hearing. The court denied the motions to dismiss.

We have granted Parisi's request for judicial notice of the calendar in the trustee's civil action. On our own motion we take judicial notice of the register of actions in that case, as well as the dockets and related items in various appeals therefrom.
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The next week, each of the noncorporate defendants moved to strike the trustee's complaint under the anti-SLAPP statute and appealed the denial of the motions to dismiss. Denying the motions to strike, the court found each motion frivolous and intended solely for delay, and imposed sanctions. On December 20, 2010, appellants appealed the denial of their motion to dismiss the trustee case. We dismissed that appeal for failure to file an opening brief.

Thereafter the noncorporate defendants filed a separate notice of motion to dismiss the first amended complaint and appealed the denial of their motions to strike.

Division Five of this court adjudged the noncorporate defendants vexatious litigants and issued a vexatious litigant prefiling order against them.

Meanwhile, appellants filed their motion to dismiss in this action, and the same day Mazzaferro, now subject to a vexatious litigant prefiling order, moved to "join" the matter.

This litany of litigation activity supports the inference that the motion to dismiss and instant appeal are part of a consistent effort to thwart the efforts of the successor trustee, the beneficiary, through her conservator, to prosecute their actions to recover the trust assets for the beneficiary's benefit. As well, the evidence supports an inference that appellants colluded with Mazzaferro to evade Division Five's prefiling order.

IV. DISPOSITION

The appeal is dismissed. This appeal exhibits a relatively high degree of frivolousness which goes well beyond asserting an unmeritorious claim. As sanctions for bringing this frivolous appeal, Lotchk Corporation and Great Sunset Ventures, Inc. shall pay $6,000 to compensate Parisi and his client in order to deter future like behavior. As an additional sanction, the appellants shall also pay Parisi's reasonable attorney fees and costs in an amount to be determined by the trial court on remand. The two appellants are to be jointly and severally liable for these sums.

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Reardon, J.
We concur: ________________
Ruvolo, P.J.
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Rivera, J.