Shafiq v. Tong
Filed 5/16/06 Shafiq v. Tong CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
KHALIL RAHAMAN SHAFIQ et al., Plaintiffs, Cross-defendants, and Respondents, v. SHONG-CHING TONG, Defendant, Cross-complainant, and Appellant. | E037511 (Super.Ct.No. RCV42529) OPINION |
DONALD BROWNELL et al., Plaintiffs, Cross-defendants, and Respondents, v. SHONG-CHING TONG, Defendant, Cross-complainant, and Appellant. | (Super.Ct.No. RCV048258) |
APPEAL from the Superior Court of San Bernardino County. Walter Blackwell, Ben T. Kayashima,[1] Jeffrey King, Peter H. Norell, and Shahla Sabet, Judges.[2] Affirmed.
Law Offices of Dixon Wong & Associates, Dixon Wong and Ricky W. Poon for Defendant, Cross-Complainant, and Appellant.
Law Offices of Marc E. Grossman, Marc E. Grossman and Jameka Monea for Plaintiffs, Cross-Defendants, and Respondents.
This appeal arises out of two consolidated actions against Shong-Ching Tong. While the case was pending, some of the plaintiffs tried to conduct a judgment debtor's examination of Tong, in the hope of collecting $675 in discovery sanctions they had been awarded against him. Tong refused to answer questions. When the trial court threatened to hold him in contempt, he stopped coming to court (claiming illness). Thus, when a jury trial was held, Tong was not present and did not participate. Nevertheless, the jury found against plaintiffs and in favor of Tong. Tong's cross-complaints had already been dismissed.
Tong appeals. The claims he raises are exclusively procedural. They are that:
1. The trial court erred by denying Tong's motions to compel discovery and by awarding discovery sanctions against him. (See part II, post.)
2. The order for Tong to appear at his judgment debtor's examination, and the bench warrant issued when he failed to appear, were invalid. (See part III, post.)
3. The trial court erred by vacating the default of some of the cross-defendants. (See part IV, post.)
4. The trial court erred by dismissing one of Tong's cross-complaints because it had not yet ruled on the demurrer to the cross-complaint. (See part V, post.)
5. The trial court erred by dismissing both of Tong's cross-complaints because they had already been dismissed. (See part V, post.)
6. The judge who presided over the judgment debtor's examination and the trial was biased and prejudiced against Tong. (See part VI, post.)
We find no error. Indeed, several of Tong's contentions are frivolous; for example, his claim that the trial court erroneously denied his motion to compel is based, in part, on a statutory provision that has not been in effect since 1999. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
The procedural history of this case is complex, and made no less so by the fact that Tong has provided us with a fragmentary and selective record. Rather than lay out that entire history at this point (and expect the reader to remember it later), we will simply sketch the broad outlines of the parties and the key pleadings. Thereafter, before discussing each issue, we will discuss the particular facts pertaining to it.
A. Varela v. Tong, Case No. RCV42529.
On September 1, 1999, Pablo and Dawn Varela (collectively the Varelas[3]) filed Case No. RCV42529 against Tong.[4] They were represented by attorney Marc Grossman.
On October 1, 1999, Tong filed an answer to the complaint, along with a cross-complaint against the Varelas and against Marc Grossman.
On February 7, 2000, Tong filed a first amended cross-complaint. The Varelas and Marc Grossman failed to file a timely answer. Accordingly, on May 12, 2000, at Tong's request, the trial court entered a default against the Varelas and Marc Grossman.
On February 5 and 7, 2001, respectively, the Varelas and Marc Grossman filed motions for relief from default. On January 29, 2002, the trial court granted the motions.
On April 29, 2002, Tong filed a second amended cross-complaint against the Varelas and Marc Grossman, and also against David Grossman.
On July 24 and 26, 2002, the Varelas, Marc Grossman, and David Grossman filed demurrers to the second amended cross-complaint.[5] On August 26, 2002, the trial court sustained both demurrers. On April 17, 2003, it dismissed the second amended cross-complaint, but only as against David Grossman.
B. Brownell v. Tong, Case No. RCV048258.
On June 19, 2000, Donald, Darlinda, Daniel and Loreen Brownell and Nadine Jurado[6] filed Case No. RCV048258 against Tong and his wife, Yei-Hwei Tong.[7] These plaintiffs, too, were represented by Marc Grossman.
Mrs. Tong failed to file a timely answer to the complaint, and her default was entered.
On April 11, 2001, Tong filed an answer to the complaint, along with a cross-complaint against David and Darlinda Brownell (collectively the Brownells) and also against Marc Grossman and David Grossman. On May 7, 2001, David Grossman filed a demurrer to the cross-complaint. On June 12, 2001, the trial court sustained David Grossman's demurrer, without leave to amend.
On August 2, 2001, the Brownells and Marc Grossman filed a demurrer to the cross-complaint. On September 13, 2001, however, the trial court ordered the demurrer off calendar, supposedly because Tong had filed a disqualification motion under Code of Civil Procedure section 170.1. It ordered: â€
