Mendoza v. Lane

Filed 9/28/06 Mendoza v. Lane CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Affirmed.

This is the third time Joe Mendoza has brought an appeal arising from his malpractice claims against his former physicians. As with his first two appeals, Mendoza's third appeal is without merit.

The litigation underlying these appeals began six years ago when Mendoza sued Dr. John Lane and Dr. Russell Dunnum (defendants), alleging medical malpractice and other claims. Defendants successfully moved for summary judgment, and this court affirmed the judgment in an unpublished opinion. (Mendoza v. Lane (Apr. 7, 2003, D039129) (Mendoza I).) Mendoza then moved to vacate the judgment, claiming the trial court exceeded its jurisdiction because it did not comply with the summary judgment statute and there was extrinsic fraud. The trial court denied the motion, and we affirmed this order in a second unpublished opinion. (Mendoza v. Lane (Nov. 17, 2004, D043373) (Mendoza II).)

Mendoza then brought a second motion to vacate the judgment, again claiming the trial court exceeded its jurisdiction because it did not comply with the summary judgment statute (although on a different ground) and there was extrinsic fraud. The trial court denied this motion. Mendoza now appeals from this denial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2000, Mendoza filed a medical malpractice action against defendants. In February 2001, each defendant moved for summary judgment on the first amended complaint based on their arguments that Mendoza had not designated a medical expert and expert testimony was required to substantiate Mendoza's malpractice claim.

Shortly thereafter, Mendoza filed a second amended complaint adding several causes of action. In light of the amended pleading, the superior court denied defendants' summary judgment motions without prejudice and without reaching the merits of the motions.

In June 2001, each defendant filed a second summary judgment motion to the second amended complaint.^[1] In support, defendants submitted medical expert declarations supporting that they met the standard of care in treating Mendoza and that neither doctor breached duties owed to Mendoza. Defendants argued that since Mendoza had still not designated a medical expert, there was no evidentiary support for his claims as a matter of law. In opposing the motion, Mendoza reserved the right to offer expert medical testimony at trial, but argued that expert medical testimony was unnecessary because his negligence and informed consent causes of action were based on matters of common knowledge.

The trial court granted each defendant's summary judgment motion. In August 2001, the court entered judgments in defendants' favor. Mendoza appealed from the judgments, and in April 2003, this court affirmed the judgments in an unpublished opinion. (Mendoza I, supra.) We denied Mendoza's petition for rehearing and the California Supreme Court denied Mendoza's petition for review.

Mendoza then filed a new motion in the superior court, seeking to vacate the August 2001 judgments as facially void. Mendoza claimed the order granting defendants' second round of summary judgment motions violated Code of Civil Procedure section 437c, subdivision (f)(2), which prohibits a party from bringing repeated summary judgment motions on the same grounds.^[2] Mendoza also argued the judgments resulted from extrinsic fraud. The superior court denied the motion.

Mendoza appealed, and we affirmed the order in an unpublished opinion. (Mendoza II, supra.) We held the trial court did not violate Code of Civil Procedure section 437c, subdivision (f)(2) in granting the second set of summary judgment motions because it never ruled on the first motions. (Mendoza II, supra.) We also rejected Mendoza's extrinsic fraud claim, concluding that Mendoza had the full opportunity to litigate his claims and raise all of his arguments in the summary judgment proceeding. (Ibid.) We additionally rejected Mendoza's argument that the summary judgment violated his rights to a jury trial and a fair hearing. (Ibid.) The California Supreme Court denied Mendoza's petition for review, and the United States Supreme Court denied Mendoza's petition for certiorari and his subsequent petition for rehearing.

Shortly after the United States Supreme Court denied Mendoza's final petition, Mendoza filed a second motion to vacate the August 2001 summary judgments in the superior court. This is the motion at issue in this appeal. His primary argument was that the trial court erred in granting the summary judgments because defendants had moved for summary judgment on his first amended complaint after he had filed a second amended complaint. Mendoza argued this error required the court to vacate each August 2001 judgment as void on its face and that the errors showed "extrinsic fraud." The court denied the motion.

Mendoza appeals from that ruling.

DISCUSSION

Mendoza's second motion to vacate, filed on October 4, 2005, constitutes a collateral attack on the judgments because the time period for a direct attack on the 2001 judgments has long since passed. (Code Civ. Proc., § 663a.) An untimely or collateral attack on a judgment is barred unless the party establishes: (1) the judgment is void on its face; or (2) the judgment resulted from extrinsic fraud. (See Aerojet-General Corp. v. American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 398, fn. 3; Estate of Buck (1994) 29 Cal.App.4th 1846, 1854; 8 Witkin Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, §§ 222-223, pp. 726-728.) As explained below, Mendoza did not meet his burden to establish either circumstance.^[3]

I. The Judgments Are Not Void

Mendoza contends the August 2001 judgments are void because they were granted on his superseded (first amended) complaint. However, there is nothing on the face of the judgments supporting this argument. As made clear in Mendoza I and Mendoza II, the parties moved for summary judgment on the second amended complaint, and the court granted summary judgment on the second amended complaint.

The underlying record supports this conclusion. In his memorandum supporting his summary judgment motion, Dr. Dunnum specifically referred to Mendoza's "second amended complaint" as the operative pleading. Although Dr. Lane made a single reference to the first amended complaint in his supporting memorandum, he attached a copy of Mendoza's second amended complaint to his motion. A review of the record establishes the parties and court fully understood the summary judgment motions were directed to the second amended complaint. In his appellate brief, Mendoza relies on the trial court's reference to the first amended complaint when it ruled on the first motion to vacate. This reference (which appears to have been inadvertent) is irrelevant for purposes of showing the court in the original action entered judgment on the wrong complaint.

In any event, the fact that the parties' moving papers referred to a superseded complaint would not render the judgment void in the sense that the court did not have jurisdiction to rule on the matter. (See People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661; Estate of Buck, supra, 29 Cal.App.4th at pp. 1854-1858.) The summary judgments were granted on the second amended complaint. The summary judgment statute permits a court to grant summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) The contention that the papers arguably did not show there was no triable issue of fact on the operative complaint is an argument reflecting legal error, rather than the court's fundamental jurisdiction to rule on the motion.

Mendoza's reliance on Perry v. Atkinson (1987) 195 Cal.App.3d 14 is misplaced. In Perry, the defendant moved for summary adjudication/judgment on a first amended complaint after a second amended complaint was filed. (Id. at p. 17.) In opposing the motion, the plaintiff asserted that the summary adjudication was improper because the first amended complaint had been superseded by the second amended complaint. (Ibid.) The trial court rejected the argument and granted summary adjudication on claims asserted in the first amended complaint. On appeal, we held the court improperly granted summary adjudication because the second amended complaint superseded the plaintiff's first amended complaint. (Id. at p. 18.)

Perry is unhelpful to Mendoza's position. First, in Perry, unlike here, the record supported that the trial court issued the summary adjudication ruling on the superseded pleading. (Perry v. Atkinson, supra, 195 Cal.App.3d at pp. 17-18.) Additionally, the Perry court addressed the alleged error in the context of a direct appeal, and thus did not consider the issue whether the court's ruling deprived the court of fundamental jurisdiction. (See People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 [cases are not authority for propositions not considered therein].) Although we used the word "void" to characterize the summary adjudication order (Perry, supra, at p. 18), this word was used in the broader sense to refer to an improper ruling, and was not necessarily intended to signify the trial court's lack of fundamental jurisdiction to issue the order. As in Perry, Mendoza could have raised his argument on direct appeal. After failing to do so, Mendoza is not entitled to prevail on a claim that the judgment must be vacated because there was an isolated reference to a superseded complaint in defendants' moving papers.

II. The Judgments Did Not Result from Extrinsic Fraud

We additionally reject Mendoza's argument that his current attack on the prior judgments has merit based on extrinsic fraud. As we stated in Mendoza II, "'[f]raud . . . is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court . . . . A party who has been given proper notice of an action, however, and who has not been prevented from full participation therein, has had an opportunity to present his case to the court and to protect himself from any fraud attempted by his adversary. . . . Fraud perpetrated under such circumstances is intrinsic, even [if] the unsuccessful party does not avail himself of his opportunity to appear before the court. . . .' (Westphal v. Westphal (1942) 20 Cal.2d 393, 397)." (Mendoza II, supra.)

In support of his extrinsic fraud claim, Mendoza asserts he was "deprived . . . of a fair trial and an opportunity to present his claim in a fair Court of law . . . ." Mendoza does not cite any evidence supporting this assertion, and the record shows Mendoza had the opportunity to fully litigate his claims. Mendoza had notice of the motions and the hearing. He filed a written opposition to the second set of summary judgment motions, and had the opportunity to raise all factual and legal issues in opposition to the motions. As we held in Mendoza II, there was no extrinsic fraud.

We likewise reject Mendoza's argument the superior court violated his rights to a jury trial when it granted the summary judgments. Mendoza had full opportunity to raise this challenge in his appeal from the judgments. Further, there is nothing in the record supporting this argument. We similarly reject Mendoza's reliance on liability rules governing partnerships among physicians. Mendoza's discussion of these rules does not show the trial court erred in denying his motion to vacate. Mendoza has unsuccessfully brought three appeals, all arising from the same summary judgments entered five years ago. Having found no merit on any of these appeals, we caution Mendoza that before filing another claim or appeal, he should carefully consider whether there is any objective merit to his claims. Sanctions may be awarded for the filing of a frivolous appeal. (Code Civ. Proc., § 907, see also Cal. Rules of Court, rule 27(e)(1)(A); In re Marriage of Flaherty (1982) 31 Cal.3d 637.) The fact that Mendoza appears in propria persona is no excuse for bringing a frivolous action or appeal. "When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. [Citations.]" (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.)

DISPOSITION

The order is affirmed. Mendoza is ordered to pay defendants' costs on appeal.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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^[1] Dr. Dunnum expressly stated that the summary judgment motion was to plaintiff's second amended complaint; Dr. Lane attached a copy of Mendoza's second amended complaint to his motion.

^[2] This code section reads in relevant part: "[A] party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." (Code Civ. Proc., § 437c, subd. (f)(2).)

^[3] Based on this conclusion, we do not reach the trial court's conclusion that the motion was additionally barred under the collateral estoppel doctrine. Because the relevant facts are undisputed, we decide the issue as a matter of law.