Babb v. Thompson

Filed 5/9/07 Babb v. Thompson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan S. Rosenfield, Judge. Affirmed.

Mac Babb, in pro. per., for Plaintiff and Appellant.

Snow Law Corp. and Stephen L. Snow for Defendant and Respondent.

INTRODUCTION

Plaintiff Mac Babb appeals from a judgment entered after the grant of summary judgment in favor of defendant Nina Lee Thompson on his complaint filed after Thompson rejected Babbs creditors claim against Thompsons deceased mothers estate. Babb was a judgment creditor to a South Carolina judgment against Thompsons mother, and sought to enforce that judgment against Thompsons deceased mothers estate. By assigning the judgment to Brenda R. Babb, however, Babb assigned all his interest in that judgment, including legal title. He therefore had no interest in the judgment, and because he was not a real party in interest, lacked standing to bring this action. Babb claimed to represent Brenda R. Babbs interest in enforcing the judgment, but because Babb is not licensed as an attorney in the State of California, he could not represent her. Finally, although defendant Thompson filed an untimely answer to Babbs complaint, her answer was filed with the court when Babb applied for entry of a default against Thompson. The Clerk is not authorized to enter a default where a defendants answer is on file, and the filing of a late answer did not preclude the grant of summary judgment in favor of Thompson. We affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff Mac Babb is a resident of the State of South Carolina. On January 6, 1998, Babb obtained a default judgment as to Helen W. Thompson and Charles G. Wiriden, Jr. in two consolidated actions in the Court of Common Pleas, Fifteenth Judicial District, County of Horry, South Carolina. The judgment awarded Babb $35,000, pre-judgment interest, and $7,500 attorney fees and costs against Helen W. Thompson in Civil Action No. 91-CP-26-3687A. The judgment awarded Babb $28,000, pre-judgment interest and $5,350 attorney fees and costs against Helen W. Thompson and Charles G. Wiriden, Jr., jointly and severally, in Civil Action No. 91-CP-26-4619A.

An August 17, 1999, assignment filed in the consolidated actions stated that Babb, for $200,000 consideration of indebtedness to Brenda R. Babb, assigned to her any and all interest in the judgment(s) awarded January 6, 1998 to Mac Babb, in the consolidated Civil Actions 91-CP-26-3687A and 91-CP-26-4619A[.]

On April 22, 2001, judgment debtor Helen Lavon Womac Thompson died in Los Angeles County, California. On September 7, 2001, a probate estate for decedent Helen L. Thompson was opened in the Probate Division of Los Angeles County Superior Court, with letters issued appointing daughter Nina Lee Thompson personal representative of her mothers estate.

On October 26, 2001, Babb filed a creditors claim for his unsatisfied judgment in the amount of $211,000. The creditors claim identified Mac Babb as an individual creditor acting on his own behalf.

On July 19, 2002, Nina Lee Thompson filed and served a personal representatives rejection of Mac Babbs $211,000 claim.

On September 30, 2002, Mac Babb filed a complaint for Allowance of Rejected Probate Creditors Claim. It alleged that Babb held a bona fide final judgment entered against judgment debtor Helen Lavon Womac Thompson in Horry County, South Carolina on January 6, 1998, that post-judgment accrued at 14 percent annual interest, and that as of September 25, 2002, a judgment of $253,834.43 remained unsatisfied. The complaint named defendant Nina Lee Thompson individually and as personal representative of the Estate of Helen L. Thompson. The complaint alleged that Nina Lee Thompson had inappropriately used her position as personal representative of the Estate of Helen L. Thompson to obstruct Babbs efforts to collect his judgment, abused the court system for her personal gain as primary beneficiary of decedents estate, and absent the allowance of Babbs claim Nina Lee Thompson stood to inherit the bulk of decedents personal property. The complaint sought a court order allowing Babbs $253,834.43 judgment, an order requiring Nina Lee Thompson to withdraw her rejection and to file an allowance of Babbs creditors claim in that amount, and an order sanctioning Thompson individually and as personal representative for rejecting Babbs creditors claim and for her handling of assets in the estate.

On March 25, 2003, Brenda R. Babb wrote to Susan J. Cooke, Vice President of Coastal Federal Bank in Myrtle Beach, South Carolina. Referencing Civil Action No. 91-CP-26-3687A/4619A, the letter stated: [O]n August 17, 1999, Mac Babb, Plaintiff, assigned to Brenda R. Babb any and all interest in the judgment(s) he was awarded on January 6, 1998 in the above referenced civil action. The $72,045.05 award granted by Judge Baxley is the result of the collection action on that judgment. As assignee of the judgment, I hereby demand that the sum of $72,045.05 be immediately transferred to the account of Brenda R. Babb[.] Mac Babb signed the letter, stating I certify the above.

Nina Lee Thompson first presented the August 17, 1999, assignment and the March 25, 2003, letter to the trial court in supplemental points and authorities filed on April 6, 2005. Babb admitted he had assigned his interest in the South Carolina judgment to Brenda Babb on August 17, 1999. Babb also stated that he filed the creditors claim and this action on behalf of Brenda R. Babb impliedly and acknowledged the authenticity of the March 25, 2003, letter to Susan J. Cooke.

In his response to Thompsons motion to amend the answer filed June 28, 2005, Babb again admitted under penalty of perjury that he assigned his interest in the January 6, 1998, South Carolina judgment to Brenda Babb.

Before Thompsons discovery of the August 17, 1999, assignment, Babb never disclosed in this action that he had assigned his rights under the January 6, 1998, judgment and never indicated that he acted on behalf of another person in this action. Before Thompsons discovery of the August 17, 1999 assignment, in his pleadings, discovery responses, and motions Babb always represented that he was the current holder of all rights under the January 6, 1998, judgment.

Babb represented himself Pro Se in this action. Babb is not an attorney.

Thompson alleged that when he filed his creditors claim and complaint, Babb no longer owned any interest in the January 6, 1998, judgment. Babb disputed this claim, stating in his declaration that he believed that he remained the creditor in this litigation, that the January 6, 1998, judgment remained in his name in the Court of Common Pleas in Horry County, South Carolina, and that he assigned his interest in the judgment to Brenda R. Babb, not the judgment itself. Babb also cited Brenda R. Babbs August 17, 1999, affidavit, filed contemporaneously with the assignment, conveying to Babb the right to continue the collection of $200,000 toward the satisfaction of the judgment.

Babb also disputed Thompsons allegation that on March 29, 2005, Thompsons attorney discovered the August 17, 1999, assignment and the March 25, 2003, letter to Susan J. Cooke. Babbs declaration stated that the private, confidential letter from Mac Babb and Brenda R. Babb to Susan J. Cooke came into defendants possession illegally and in violation of South Carolina banking privacy laws, and that Babb did not provide the letter in response to discovery or by subpoena to Coastal Federal Bank. Babbs declaration stated that he was informed and believed that Coastal Federal Bank considered his assignment and Brenda R. Babbs affidavit, and found that because the judgment remained in Babbs name, Coastal Federal Bank paid $72,045.05, the amount ordered disbursed by the South Carolina Circuit Court, to Babb. Babbs declaration further stated that during the six years that the August 17, 1999, assignment and affidavit of Brenda R. Babb had been part of the record in the South Carolina court, no party had objected regarding Babbs ability to enforce the judgment against the deceased. Babb believed that the South Carolina court recognized that he remained the judgment holder of record, despite his assignment and Brenda R. Babbs affidavit.

Babbs opposition to the summary judgment motion also alleged undisputed material facts. Babb alleged that counsel for defendant Nina Lee Thompson accepted service of Babbs summons and complaint on October 22, 2002, and made an appearance by filing an answer on Thompsons behalf. Babb alleged that defendants counsel was in default for not answering the complaint until 83 days after accepting Babbs summons and complaint. Babb alleged that Thompson lacked standing to bring a motion for summary judgment.

Defendant Thompsons attorneys declaration stated that no default against defendant Thompson had been entered.

On March 7, 2006, the trial court granted the motion for summary judgment. The trial court found that defendants evidence had established an affirmative defense that plaintiff lacked standing to prosecute the action. Judgment was entered on March 7, 2006.

Babb filed a timely notice of appeal from the March 7, 2006, order granting defendants summary judgment motion. Liberally construed, the notice of appeal is properly taken from the March 7, 2006, judgment.[1]

ISSUES

Babb claims on appeal that the trial court committed error:

1. by granting the summary judgment motion; and

2. by considering the summary judgment motion when Thompson was in default.

DISCUSSION

1. Mac Babb Lacked Standing to Bring This Action Against Thompson

Babb claims on appeal that although he assigned the South Carolina judgment to Brenda R. Babb, Babb remains the legal owner of the judgment. Babb claims that the assignment and Brenda R. Babbs affidavit memorialized an agreement between those two parties and did not affect the legality of the ownership of the judgment. We disagree.

a. By Assigning the Judgment to Brenda R. Babb, Mac Babb

No Longer Had Any Interest in that Judgment and Lacked Standing to Bring this Action

An assignor may not maintain an action upon a claim after making an absolute assignment of it to another; his right to demand performance is extinguished, the assignee acquiring such right. [Citations.] To assign ordinarily means to transfer title or ownership of property [citation], but an assignment, to be effective, must include manifestation to another person by the owner of his intention to transfer the right, without further action, to such other person or to a third person. [Citation.] It is the substance and not the form of a transaction which determines whether an assignment was intended. [Citations.] If from the entire transaction and the conduct of the parties it clearly appears that the intent of the parties was to pass title to the chose in action, then an assignment will be held to have taken place. [Citations.] (McCown v. Spencer (1970) 8 Cal.App.3d 216, 225.) An assignment carries with it all of the assignors rights (Foreman Roofing Inc. v. United Union of Roofers Etc. Workers (1983) 144 Cal.App.3d 99, 107), including legal title to the judgment (Curtin v. Kowalsky (1904) 145 Cal. 431, 434).

The August 17, 1999, assignment stated that that for $200,000 of indebtedness, I, Mac Babb, . . . hereby assign to Brenda R. Babb any and all interest in the judgment(s) awarded January 6, 1998 to Mac Babb, in the consolidated Civil Actions 91-CP-26-3687A and 91-CP-26-4619A titled MAC BABB vs. HELEN W. THOMPSON, a/k/a/ HELEN LAVON WOMAC THOMPSON, S.S. No. 244-36-5966, and CHARLES G. WIRIDEN, JR., S.S. No. 246-70-7625, in the State of South Carolina, County of Horry. This assignment provided for no remainder or reservation of interest of any kind in the assignor, Mac Babb. Thus the transfer was absolute. (Botsford v. Haskins & Sells (1978) 81 Cal.App.3d 780, 783-784; underlining in original.)

As provided in Code of Civil Procedure section 367, [e]very action must be prosecuted in the name of the real party in interest . . . . It has long been established that an assignee is a real party in interest within the meaning of section 367. (Don Rose Oil Co., Inc. v. Lindsley (1984) 160 Cal.App.3d 752, 759; Builders Control Services of No. Cal., Inc. v. North American Title Guar. Co. (1962) 205 Cal.App.2d 68, 76.) An assignor may not maintain an action upon a claim after making an absolute assignment of it to another; his right to demand performance is extinguished, the assignee acquiring such right. (McGown v. Spencer, supra, 8 Cal.App.3d at p. 225.) Therefore Babb, an assignor who no longer had any interest in the judgment, lacked standing to bring this action to enforce it against defendant Thompson.

b. Babb, Who Is Not an Attorney, Could Not Represent Brenda R. Babb

Babb refers to an affidavit of Brenda R. Babb filed in the County of Horry court in South Carolina. That affidavit stated, in an apparent error, that Mac Babb had assigned any and all interest in the January 6, 1998, judgments to Mac Babb. Brenda R. Babb, not Mac Babb, was the assignee in the August 17, 1999, assignment. Notwithstanding this inaccurate statement, the affidavit went on to say: That I [Brenda R. Babb] hereby convey to Malcolm M. Babb by this affidavit the right to continue the collection process of the judgments in this matter on my behalf[.]

Even if this affidavit is an effective conveyance of the right to enforce the January 6, 1998, judgment, Mac Babbs October 26, 2001, creditors claim for his unsatisfied judgment identified Mac Babb as an individual creditor acting on his own behalf. Babb did not file his complaint on behalf of Brenda R. Babb. It was undisputed that until Thompson discovered the August 17, 1999, assignment, Babb never disclosed in this action that he had assigned his rights under the January 6, 1998, judgment and never indicated that he acted on behalf of another person. Before Thompsons discovery of the August 17, 1999 assignment, Babbs pleadings, discovery responses, and motions always represented that Babb was the current holder of all rights under the January 6, 1998, judgment. Even if Mac Babb was acting on behalf of Brenda R. Babb, it is undisputed that Mac Babb is not an attorney. A litigant has the right to represent himself in a civil proceeding in California. (Baba v. Board of Supervisors (2004) 124 Cal.App.4th 504, 522.) But a person who is not an active member of the State Bar of California may not practice law on behalf of others. (Bus. & Prof. Code, 6125; Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830-1831.) Thus a husband not licensed to practice law in California may not represent or appear on behalf of his wife. (Abar v. Rogers (1981) 124 Cal.App.3d 862, 865.)

For both reasons Babb lacked standing to bring this action and the trial court therefore properly granted summary judgment.

2. No Default Arose from Thompsons Untimely Filing of an Answer,

and Thus the Untimely Filing of the Answer Did Not Preclude Summary Judgment

Babb claims that the trial court erroneously granted summary judgment even though defendant Thompson was in default for her untimely filing of an answer.

Babb filed his complaint on September 30, 2002. Defendant Thompsons attorney accepted service of Babbs summons and complaint on October 22, 2002. Thompson filed an answer on January 13, 2003.

Babb was entitled to request entry of a default against defendant Thompson 30 days after service of the summons. (Code Civ. Proc., 585, subd. (a), 412.20, subd. (a)(3) and (6).) He did not request default, however, until June 30, 2003, more than five months after defendant Thompson filed her answer. Although that default request is not in the record on appeal, Babb states that the Court Clerk rejected the default application because Thompsons attorney could not be served when that attorney had not made an appearance in the case. Babb claims this was error because the answer by Thompsons attorney constituted an appearance in the case. Thus Babb argues inconsistently that the default was required to be entered because of defendants failure to answer, and that the Clerks refusal to enter default was erroneous because defendants filing of an answer constituted an appearance in the case.

The Clerk is not authorized to enter a default where defendants answer is on file. (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 863.) Where a pleading is filed late but a default has not yet been taken, the plaintiff has granted the defendant additional time to plead. The defendant is not in default, the late pleading is not a nullity, and that late pleading precludes the taking of a default unless plaintiff successfully moves to strike it. (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141; A & B Metal Products v. MacArthur Properties, Inc. (1970) 11 Cal.App.3d 642, 646-647.) Babb has not shown he made such motion to strike or that the trial court granted that motion. He therefore has not shown that the Clerk erroneously refused to enter a default when Thompsons answer was on file or that the untimely filing of an answer precluded summary judgment.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendant Thompson.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] An order which only grants a motion for summary judgment but does not order that judgment be entered or that the matter be dismissed cannot be considered a judgment. (Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 897.) We construe a notice of appeal liberally, however, in favor of its sufficiency. (Cal. Rules of Court, rule 8.100(a); LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 333, fn. 1.) The words order and judgment in a notice of appeal are treated as interchangeable. (Adams v. Talbott (1942) 20 Cal.2d 415, 417.) A notice of appeal purporting to appeal from an order granting summary judgment will be deemed sufficient if a judgment was actually entered before filing of the notice of appeal, there is no doubt as to which ruling the appellant seeks to have reviewed, and the respondent could not have been misled to its prejudice. (See Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780.) Thus Babbs notice of appeal is properly taken from the March 7, 2006, judgment.