Complaint Review: Paul Merritt Christiansen
Paul Merritt Christiansen Paul Merritt this appeal and filings below look very much like the harassing efforts of a vexatious litigant Laguna Beach, CA Nationwide
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He is the HOA pres of Palm Springs Villa 1. Apparently he sued his former HOA for an assessment that all the home owners received. How embarrassing. What a joke!,, Read for yourself.
Original: http://caselaw.findlaw.com/ca-court-of-appeal/1064544.html http://www.leagle.com/decision/In%20CACO%2020100716036/BREWER%20v.%20CHRISTIANSEN# OPINION O'LEARY, J. This is the sixth appeal filed in a dispute that began over a mere $1,300 nearly 15 years ago. In the first appeal, we affirmed the trial court's summary judgment entered in favor of Foothills Townhomes Association (Foothills) in its action to collect a $1,300 assessment against a homeowner, Paul M. Christiansen, and his personal trust, P.M.C. Trust Estate (collectively Christiansen unless otherwise indicated). (Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688.) After the decision became final, the trial court entered an amended judgment reflecting $15,377.35 for attorney fees and costs. Within a year, Foothills filed an appeal after the trial court denied its request for an additional $4,000 in attorney fees and costs expended to collect the judgment. The trial court ruled the money could not be recovered because the judgment had already been satisfied. We reversed. (Foothills Townhomes Assn. v. P.M.C. Trust Estate (Feb. 16, 1999, G023286) [nonpub. opn.].) Soon thereafter, Foothills filed another appeal challenging the trial court's denial of its motion for attorney fees incurred in the prior appeal (G023286). Again we reversed, and specified that Foothills was entitled to recover reasonable attorney fees and costs incurred in both the prior and current appeal. (Foothills Townhomes Assn. v. Christiansen (Oct. 3, 2001, G024447) [nonpub. opn.].) The next appeal was filed by Christiansen and his attorney Merritt McKeon. They lost their lawsuit against Foothills' legal counsel for various causes of action arising out of the Foothills' lawyers' attempts to collect on the judgment.
After Foothills' legal counsel obtained a summary judgment, they sued Christiansen and McKeon for malicious prosecution and won $28,160 in damages. We rejected Christiansen's and McKeon's contention on appeal that there was insufficient evidence to support the judgment. (Brewer v. Christiansen (Sept. 30, 2002, G028840) [nonpub. opn.].) The next lawsuit arose from Christiansen's attempts to avoid paying the money he owed Foothills. Christiansen transferred his home to another trust, PMC Charitable Trust II (hereafter Trust II). The trial court determined the transfer was fraudulent and Trust II was Christiansen's alter ego. Christiansen appealed this ruling, focusing only on the alter ego ruling. We determined that even if he was correct on that issue, he was not prejudiced because Foothills was still entitled to money from the property's sale because it was fraudulently transferred (Civ. Code, § 3439.07 [remedies include execution of judgment on the asset transferred or its proceeds].) We affirmed the judgment. (Foothills Townhomes Assn. v. Christiansen (June 20, 2003, G030384) [nonpub. opn.].) The latest appeal, filed by Christiansen, follows the trial court's denial of his motion to vacate the 2001 judgment entered in favor of Foothills' legal counsel (Lance A. Brewer, Leslie Brewer, and Templeton Briggs, collectively and in the singular will be referred to hereafter as Brewer) in the malicious prosecution action. Christiansen asserts the nine-year-old judgment is void because at a pre-trial hearing on his motion to quash services of process, his due process rights were violated when his counsel failed to appear. The appeal is meritless. We caution Christiansen that he must proceed carefully as this appeal and filings below look very much like the harassing efforts of a vexatious litigant. We affirm the court's order. I Brewer filed the malicious prosecution action in January 2000. Within three months McKeon filed a demurrer, which was overruled. Contrary to Brewer's assertion on appeal, McKeon did not file the demurrer on Christiansen's behalf. Christiansen did not submit to personal jurisdiction via the demurrer.1 In July 2000, Brewer filed an application stating he could not locate Christiansen to complete service of process and he requested an order directing publication of the summons. The application was granted. McKeon filed her answer to the complaint on August 17, 2002.
One week later, Christiansen represented by Nick O'Malley filed a motion to quash service of the summons by publication. He argued the order permitting publication was based on an illegal and false declaration. Brewer filed an opposition and requested an order shortening time to file a Code of Civil Procedure section 128.7 sanctions motion. Brewer argued the motion lacked merit and also informed the court Christiansen had recently been personally served by his counsel, Briggs, in the corridor of the courthouse when Christiansen made an appearance in a different case. Briggs submitted his declaration stating he spoke with O'Malley about the motion being frivolous and requested it be taken off calendar or he would prepare a motion for sanctions. O'Malley verbally represented he was considering taking the motion off calendar. On September 14, 2000, O'Malley's paralegal faxed a letter stating the motion would be taken off calendar and an answer would be filed the next week. However, the next day Briggs received a letter from Mark Hamilton, under O'Malley's office letterhead, stating "I am taking over matters for . . . O'Malley while he is on a thirty (30) day leave of absence at [the] behest of the State California Bar." Hamilton stated the paralegal's letter should be disregarded because "O'Malley had misunderstood directions from his client." Hamilton stated the motion would be continued to allow Briggs time to file an opposition. In his declaration, Briggs stated he learned O'Malley had been suspended from the State Bar for 30 days and Briggs contacted Hamilton to ask that he reconsider going forward with the motion. Briggs maintained the motion was frivolous and he planned to file a motion for sanctions against Hamilton personally if the motion was not taken off calendar. Hamilton replied by letter, stating his client would not give him the authority to take the motion off calendar. Hamilton prepared and filed a notice of continuance, again using O'Malley's letterhead. O'Malley's 30-day suspension from the practice of law began on September 14, 2000. The court considered and denied the motion to quash on October 10, within the period of suspension. Neither O'Malley nor Hamilton appeared on Christiansen's behalf at the hearing.
A week later, Christiansen answered the complaint. The trial was held in December. Christiansen formally associated Hamilton as co-counsel that same month. Brewer prevailed at the trial and prevailed in Christiansen's appeal from the judgment. In this appeal, Brewer claims he received full satisfaction of the judgment in May 2002. This claim is not supported by any evidence in our record, but Christiansen does not dispute it. Nine years after the judgment, on March 30, 2009, Christiansen filed a motion to set aside the ruling permitting service by publication and to void the judgment issued in 2001. He argued the order and judgment were void due to fraud. Specifically, he asserted his counsel, O'Malley and Hamilton, failed to appear at the hearing on his motion to quash and opposing counsel knew about it. Christiansen did not know O'Malley was suspended from the practice of law at the time and was engaging in the unauthorized practice of law. Christiansen claimed Hamilton did not have consent to appear at the motion to quash hearing and failed to tell him about the "motion to quash misadventure." He attested he learned of the "no appearance" in 2009. He asserted, "The failure to speak when there is a duty to do so constitutes fraud." He concludes his due process rights were violated when he was denied the effective assistance of any counsel. Brewer filed an opposition stating (1) the motion was time-barred, (2) Christiansen knew about the "no appearance" in 2000, and (3) the possible attorney malpractice was irrelevant to the status of the judgment creditors. He requested sanctions for the filing of a frivolous and unfounded motion. Christiansen filed a response. The court denied Christiansen's motion. It ruled personal jurisdiction was not a concern because Christiansen was there for the trial and was aware of the outcome.
As for the nonappearance at the pre-trial motion, the court decided that "mishap" was a matter between O'Malley, Christiansen and the State Bar. It refused to invalidate the judgment. II On appeal, Christiansen asserts the court denied his motion based on a finding too much time had elapsed. He argues there is no time limit to set aide a void judgment. We have reviewed the court's ruling and find Christiansen has misconstrued the record. As with his prior appeal, Christiansen focuses only on one portion of the ruling. In addition to commenting the motion should have been brought sooner, the court reached the merits of the motion, concluding it had personal jurisdiction over Christiansen when it entered the 2001 judgment and there was no other valid legal ground to set aside the judgment. The court specifically determined O'Malley's failure to appear at the motion to quash hearing, and any issue relating to him practicing law with a suspended license, were not grounds to set aside the judgment. The record shows the court did not simply deny the motion as untimely. We need not address the timeliness issue because, like the trial court, we find no due process violation and no reason to disturb the valid judgment. Indeed, based on the record before us, there is no reason to disturb the 2001 judgment. O'Malley was not suspended when he filed the motion to quash. That he did not appear to give oral argument was not a due process violation. First, the statute concerning motions to quash, Code of Civil Procedure section 418.10, does not use the term "hearing" or "heard." There is no statutory requirement oral argument be "heard" and whether to permit argument lay within the trial court's discretion. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1248; Sweat v. Hollister (1995) 37 Cal.App.4th 603, 613-614, disapproved on another ground in Santisas v. Goodin (1998) 17 Cal.4th 599, 609, fn. 5.) In this case, the court gave the parties the opportunity to present oral argument, but none was had due to counsel's failure to appear. Consequently, the court considered the motion based on the paperwork submitted and it ruled on the merits. There is no suggestion the motion was denied for a technicality.
Christiansen does not indicate what could have been said to change the outcome of the hearing. He offers no legal analysis explaining why having O'Malley or Hamilton physically present at a hearing to argue an already briefed motion would have made a difference. Indeed, Christiansen's briefing fails to supply any reasoned analysis to support the premise of his argument, i.e., the motion should have been granted. We conclude that because Christiansen's motion was read and considered by the trial court, he was given a meaningful opportunity to be heard on the issue of personal jurisdiction, and there was no due process violation in his case. "The Fourteenth Amendment to the United States Constitution and article I, section 7, subdivision (a) of the California Constitution ensure that an individual may not be deprived of life, liberty or property without due process of law. Central to this constitutional right is the guarantee that `absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.' [Citations.]" (Salas v. Cortez (1979) 24 Cal.3d 22, 26-27.) This has been held to include the right of a defendant to appointed counsel in civil actions, but only in restricted circumstances. (Ibid.) Generally, "the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation. [Citations.]" (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116.) Christiansen's physical liberty was never in jeopardy, thus to the extent he is suggesting the court should have appointed counsel before considering the motion to quash, he is wrong. We conclude the written motion, filed while his retained counsel was still in good standing with the State Bar, gave Christiansen a meaningful opportunity to be heard. Absent a due process violation, there is no reason to hold the judgment entered after a full blown trial attended by Christiansen was invalid. The trial court correctly denied his motion to vacate the judgment. III We affirm the order. Because Respondents' brief contains irrelevant arguments based entirely on an incorrect statement of the facts, we find that in the interests of justice each party shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278 (a)(5).) WE CONCUR: SILLS, P. J. RYLAARSDAM, J. FootNotes
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