SUPREME COURT CASE NO.:
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
________________________________________________
TEENA COLEBROOK,
Petitioner,
vs.
CIT BANK, N.A.,
Respondent.
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PETITION FOR REVIEW
_________________________________________________
BRIEF OF APPELLANT
After a Decision by the Court of Appeal,
Second Appellate District, Division Six (No. B305844)
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TABLE OF CONTENTS
TABLE OF AUTHORITIES
Cases
Agarwal v. Johnson, 603 P.2d 58, 72 (Cal. 1979) 12
Babb v. Superior Court, 3 Cal.3d 841, 92 Cal.Rptr. 179, 479 P.2d 379, 383 (1971) 8
DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824. 11
Edward B. Marks M. Corp. v. Charles K. Harris M.P. Co. (2d Cir. 1958) 255 F.2d 518, 522 9
Huber v. Shedoudy (1919) 180 Cal. 311, 316-317 [ 181 P. 63]. 17
In re Di Carlo 3 Cal.2d 225, 235, 44 P.2d 562 (1935) 11
In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649 [183 Cal.Rptr. 508, 646 P.2d 179]. 15
Jameson v. Desta (2018) 5 Cal.5th 594 18, 19
Johnson v. Fourth Court of Appeals, 700 S.W.2d at 917 13
Jolley v. Chase Home Fin., LLC, 213 Cal. App. 4th 872, 909 (2013) 10
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) 16
Lucido v. Superior Court, 795 P.2d 1223, 1225 n.3 (Cal. 1990) 10
Maguire v. Hibernia Savings & Loan, 23 Cal. 2d 719, 729 (1944) 9
Meyer v. Sprint Spectrum L.P., 45 Cal. 4th 634, 647 (2009) 9
Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 898 8
Neitze v. Williams, 490 U.S. 319, 325 (1989). 16
People v. Sims, 651 P.2d 321, 331 (Cal. 1982). 10
Schifando v. City of LA (2003) 31 Cal. 4th 1074, 1081. 13
Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) 16
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) 13
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992). 14
Wilson & Wilson v. City Council of Redwood City, 191 Cal. App. 4th 1559, 1582 (2011) 10
Statutes
Bus. & Prof. Code, §§ 8030.1-8030.9. 18
California Civil Code Section 2941(a) and (b)(1). 7
California’s Government Code Section 68086(b) 18
Section 68631 18
Other Authorities
The Restatement (Second) of Judgments, Section 17 12
Rules
California Rules of Court 8.204 and 8.504(d) 15
Constitutional Provisions
Cal. Const., art. VI, § 13. 20
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ISSUES FOR REVIEW
The Appeal Judges made grave errors with this case and there is need for reversal of the decision.
- Is a request for Declaratory Judgment a claim that is precluded under res judicata?
- Did the Appeal Court Judges abuse the Court’s Discretion when they misapplied the res judicata doctrine, and failed to apply the law to all the facts in the case?
- Did the Appeal Court Judges err when they held that Petitioner’s case is frivolous?
- Did the Appeal Court err when it ruled against Petitioner without a written transcript of the Trial Court’s hearings?
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NECESSITY FOR REVIEW
Petitioner asks this Court to review the Appellate Court’s decision dismissing Petitioner’s action with prejudice. The Petitioner appealed a decision by the Superior Court that sustained Respondent’s demurrer on the grounds of, inter alia¸ the doctrine of res judicata. Consequently, the Appeal Court upheld the Superior Court’s decision and held that “The instant action involves the same injury – [Petitioner’s] loss of her interest in the property– as her prior lawsuits. That injury arises out of the same loan and involves the same property and the same parties.” See page 7 of the Court of Appeal’s Judgment.
This Court should grant review for three reasons, which raise pertinent questions as to Petitioner’s substantive and procedural rights under the law.
First, this case presents an important question of law. Most notably, this case seeks to answer whether a request for a Declaratory Judgment amounts to a claim. Petitioner contends that if a request for Declaratory Judgment is considered a claim, many innocent litigants will be barred from accessing justice and getting redress for violations of their rights.
The fact that the Court of Appeal equates a request for Declaratory Judgment to a Claim should not be allowed to stand. This Court should grant review and reverse the Appeal Court’s decision thus protecting Petitioner’s rights.
Second, this case involves the issue of administration of justice. Petitioner avers that the facts in her instant action arose after the Petitioner’s previous cases. Accordingly, the said facts and legal issues canvassed in Petitioner’s instant action are entirely different from Petitioner’s previous lawsuits, albeit they involve the same parties. On the other hand, the Appeal Court erroneously applied the primary right doctrine, which does not apply in Petitioner’s case because of the said differences.
Petitioner contends that a strict application of the primary right doctrine would lock out legitimate attempts by litigants to seek redress for wrongs done against them. Notably, the Appeal Court erred in identifying the denial of Petitioner’s ownership rights as the primary right at issue herein. Instead, Petitioner avers that the primary right at this point is the breach of promise by Respondent’s attorney(s) who represented and promised to give Petitioner the Original Note and allonges.
The fact that the Court failed to consider all the factors outlined in Petitioner’s case amounts to a denial of Petitioner’s right to access justice. Accordingly, this Court should grant review and reverse the Appeal Court’s decision thus protecting Petitioner’s rights.
Third, this case involves the violation of Petitioner’s Constitutional and Common Law Rights to a free court reporter and a free counsel, considering Petitioner’s in forma pauperis status. Petitioner contends that the Trial Court should have accorded her a free court reporter to record a transcript of the hearing. It follows, since there was not transcript of the Trial Court’s hearing, the Appeal Court erroneously determined her case without the said transcript, which is a violation of Petitioner’s rights.
Petitioner further argues that the Supreme Court’s consideration of this matter would develop this Honorable Court’s jurisprudence on the right of indigent litigants to free court reporters and free counsel.
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STATEMENT OF THE CASE
Petitioner Teena Colebrook was the mortgagor who made payments on the note regarding the property 4217 W. 142nd Street, Hawthorne, CA 90250 (the “property”). The Mortgage on said property was fully satisfied on or about April 16th, 2015 by respondents’ own admission and was fully satisfied by plaintiffs hard earned equity in the property and tender of full amount due as evidenced by the Publicly Recorded Notice of Trustee sale dated 11-18-2013; said full and valid offer of tender delivered to One West Bank HQ in Pasadena CA on 12-17-2013 and unjustly refused.
Based upon information, belief and Respondent’s own admission, Respondents have always in possession of the Original Note and allonges and relevant hereto purport to have been the mortgagee or the assignee of the mortgagee of the property.
Petitioner was undeniably the mortgagor and beneficiary under the Note and Deed of Trust. On or about November 12th, 2018, Petitioner sent a written request to the CEO of CIT Bank Ellen Alamaney requesting the original note and allonges pursuant to California Civil Code Section 2941(a) and (b)(1).
Respondent and its CEO Ellen Alamaney failed to send the original note to Petitioner as required under the law, therefore an actual controversy exists regarding the statute.
Accordingly, the Petitioner filed a Petition for Declaratory Relief to which the Respondent Demurred.
After a hearing on the matter, the Superior Court and the Appeal Court erroneously held, that Petitioner was barred from filing the action under the doctrine of res judicata.
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ARGUMENTS
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A DECLARATORY JUDGMENT SUIT IS A SPECIAL ACTION THAT IS DIFFERENT FROM OTHER CLAIMS AND/OR CAUSES OF ACTION
“[A] declaratory judgment action may be brought to establish rights once a conflict has arisen, or a party may request declaratory relief as a prophylactic measure before a breach occurs.” Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 898 (emphasis added). Further, “[u]nlike coercive relief (such as damages, specific performance, or an injunction) in which a party is ordered by the court to do or to refrain from doing something, a declaratory judgment merely declares the legal relationship between the parties. Id. (emphasis added).
“[A] declaratory judgment action ‘serves to set controversies at rest before they lead to repudiation of obligations.’” quoting Babb v. Superior Court, 3 Cal.3d 841, 92 Cal.Rptr. 179, 479 P.2d 379, 383 (1971) (emphasis in original). It has also been held in the same regard that, “[t]he purpose of a declaratory judgment … is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation.” Meyer v. Sprint Spectrum L.P., 45 Cal. 4th 634, 647 (2009) (quoting Maguire v. Hibernia Savings & Loan, 23 Cal. 2d 719, 729 (1944)).
“Like the doctrine of res judicata, declaratory relief promotes judicial economy. A declaratory judgment action provides parties with an efficient means of adjudicating a disputed issue… [¶] While declaratory judgments are issue preclusive, they are not necessarily claim preclusive. The [declaratory judgment] Act provides an exemption from the bar of res judicata for [purely] declaratory judgments, stating: `The remedies provided by this chapter are cumulative, and shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of any party to such action, and no judgment under this chapter shall preclude any party from obtaining additional relief based upon the same facts.‘” Mycogen, supra, 28 Cal.4th at p. 898. (emphasis added).
Judgment for declaratory and injunctive relief does not preclude further relief in a separate action. Edward B. Marks M. Corp. v. Charles K. Harris M.P. Co. (2d Cir. 1958) 255 F.2d 518, 522
“To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party’s] rights or obligations.'” Jolley v. Chase Home Fin., LLC, 213 Cal. App. 4th 872, 909 (2013) (quoting Wilson & Wilson v. City Council of Redwood City, 191 Cal. App. 4th 1559, 1582 (2011)).
Issue preclusion does not bar entire causes of action but prevents re-litigation of previously decided issues. Accordingly, a second suit between the same parties on a different cause of action is not precluded by a prior judgment. See Lucido v. Superior Court, 795 P.2d 1223, 1225 n.3 (Cal. 1990), cert. denied, 500 U.S. 920 (1991); People v. Sims, 651 P.2d 321, 331 (Cal. 1982).
In the instant case, the Appeal Court contended that Petitioner’s case at the appeal is based on the same injury as in Petitioner’s previously decided actions– the loss of appellant’s interest in the Hawthorne property. However, Petitioner avers that her declaratory judgment action is imperative to the identification and/or declaration of her rights pertaining the dispute between her and the Respondent.
Petitioner also maintains that her declaratory judgment action is excepted from res judicata because the relief sought (declaratory judgment) is cumulative and has never been raised in the other Petitioner’s lawsuits. Accordingly, as much as they may arise from similar facts, the instant action is not precluded in that regard.
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THE APPEAL COURT JUDGES ABUSED THE COURT’S DISCRETION WHEN THEY MISAPPLIED THE RES JUDICATA DOCTRINE, AND FAILED TO APPLY THE LAW TO ALL THE FACTS IN THE CASE
“… res judicata is not to be applied so rigidly as to defeat the ends of justice; there are exceptions to it, based upon important reasons of policy.” In re Di Carlo 3 Cal.2d 225, 235, 44 P.2d 562 (1935).
“Claim preclusion [res judicata] ‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’ [Citation.] Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.” [Citations.]; Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897. Issue preclusion “prevents relitigation of previously decided issues.” (DKN, supra, 61 Cal.4th at p. 824.). Accordingly, issue preclusion “does not bar entire causes of action[;] . . . it prevents relitigation of previously decided issues.” DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.
The California doctrine prohibiting claim-splitting is similar to the doctrine set forth in the Restatement (Second) of Judgments. Under both doctrines, a valid and final judgment operates as a bar to the maintenance of a second suit between the same parties or their privies on the “same cause of action. The Restatement (Second) of Judgments, Section 17, explains the effects of a former adjudication as follows:
A valid and final personal judgment is conclusive between the parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, the claim is extinguished and merged in the judgment and a new claim may arise on the judgment
(see § 18);
(2) If the judgment is in favor of the defendant, the claim is extinguished, and the judgment bars a subsequent action on that claim (see § 19);
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in a subsequent action between them on the same or a different claim, with respect to any issue actually litigated and determined if its determination was essential to that judgment (see § 27).
RESTATEMENT, § 17 (1982) [hereinafter Restatement].
If the cause of action asserted in the prior litigation is not the same as that in the second proceeding, the judgment in the prior litigation does not constitute a bar to the subsequent proceeding. This was canvassed in Agarwal v. Johnson, 603 P.2d 58, 72 (Cal. 1979), where the court observed that “[u]nless the requisite identity of causes of action is established, however, the first judgment will not operate as a bar.”
The Code of Judicial Conduct provides in Canon 3B(6) that a judge “shall require” patient, dignified and courteous conduct by “lawyers, and of staff, court officials and others subject to the judge’s direction and control,” which obliges a judge “to exercise reasonable direction and control over the conduct of those persons subject to the judge’s direction and control.” That provision places an affirmative obligation on a judge both to set an example of courtesy toward self-represented litigants for others to follow and to ensure that court staff receive the training and supervision necessary to help them in the often-difficult task of providing patient service to self-represented litigants. In addition, the provision requires judges to exercise their authority in the courtroom to prevent attorneys from bullying or misleading conduct meant to take advantage of a self-represented litigant.
In California, generally, the “abuse of discretion standard” or “substantial evidence standard” is applied to review the Court’s factual determinations and decisions. See Schifando v. City of LA (2003) 31 Cal. 4th 1074, 1081. The Court may first apply either the abuse of discretion standard or the substantial evidence standard of review to any factual determination made by the trial court before reviewing the ultimate legal conclusions de novo. “A trial court clearly abuses its discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Johnson v. Fourth Court of Appeals, 700 S.W.2d at 917. Further, the trial court’s erroneous interpretation of the law constitutes a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833 (Tex. 1992). Accordingly, abuse of discretion occurs when the Trial Court judge makes a ruling that is arbitrary, absurd, and flawed on evidence that stifle one side’s rights.
Petitioner further contends that the Trial Court Judges Misapplied the law to the fact. Notably, they considered issues that were not before the court and allowed a rehash of issues that were already decided and were not before the court. There was only one question before the Trial Court, and Petitioner was not attempting to re litigate prior issues.
The Court abused its discretion by misapplying the res judicata doctrine. Not only should courts avoid misapplying res judicata, but they should also avoid applying it strictly.
It is trite law that res judicata only applies with regard to the same causes of action. Petitioner’s case does not raise the same cause(s) of action as in her previous lawsuits. Therefore, her request for declaratory judgment should not be subjected to res judicata in that regard. Besides, the issue of declaratory judgment (or a declaration of her rights) on the issue of the original note and allonges under CA 2941 was not canvassed in her previous lawsuits. Moreover, Petitioner raises her request for declaratory relief based on facts that arose after the determination of her previous lawsuits. All that shows that the Appeal Court erred in subjecting Petitioner’s case to res judicata.
Petitioner further avers that the abuse of the Court’s discretion extended to the Trial Judge’s failure to set an example of courtesy toward the Petitioner. The Trial Court judges were rude and derisive to Petitioner and constantly interrupted her.
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THE APPEAL COURT JUDGES ERRED WHEN THEY HELD THAT PETITIONER’S CASE IS FRIVOLOUS
According to the Cornell Law School legal definition, a frivolous claim, often called a bad faith claim, refers to a lawsuit, motion or appeal that is intended to harass, delay, or embarrass the opposition.
“The definition of a frivolous appeal is elusive, although the standards “fall into two general categories: subjective and objective. The subjective standard looks to the motives of the appellant and his or her counsel. [¶] The objective standard looks at the merits of the appeal from a reasonable person’s perspective.” In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649 [183 Cal.Rptr. 508, 646 P.2d 179]. Improper appeals are “a time-consuming and disruptive use of the judicial process” yet “[c]ounsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal.” Id. There are two ways that appeals may be considered frivolous. First, appeals may be frivolous as filed. An appeal is frivolous as filed where the ‘judgment by the tribunal below was so plainly correct and the legal authority contrary to appellant’s position so clear that there is really no appealable issue. Or an appeal is frivolous as filed if the proponent can present no rational argument based on the evidence or law or the appeal is prosecuted for the sole purpose of harassment or delay.
“An appeal is frivolous where it lacks an arguable basis in law or fact.” Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995); see also Neitze v. Williams, 490 U.S. 319, 325 (1989). That means, in a frivolous claim, either: “(1) “the ‘factual contentions are clearly baseless,’ such as when allegations are the product of delusion or fantasy;” or (2) “the claim is ‘based on an indisputably meritless legal theory.'” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
“[A]n 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 [ 183 Cal.Rptr. 508, 646 P.2d 179]. (Emphasis added).
Courts are often hesitant to label an appeal frivolous as filed because, in all but the clearest of cases, there is going to be some rational argument in support of an appeal. Plus, lawyers are permitted to argue for good-faith extensions of the law, so the fact that there is no law on point to support a position is not necessarily dispositive. In addition, the doctrine is not there to trap ineffective lawyers or the unwary pro se appellant. Courts do not want to discourage people from pursuing their appeal as of right. Finally, it is often difficult for the appellate court to make the determination that the appeal is frivolous because having an appeal labeled as frivolous comes with severe consequences. See Huber v. Shedoudy (1919) 180 Cal. 311, 316-317 [ 181 P. 63].
Petitioner contends that nothing about her claim lacked an arguable basis in either fact or law. Therefore, the judges had no basis to term Petitioner’s appeal as frivolous. Instead, Petitioner avers that what is frivolous, and distracting is the Respondents bringing up the prior cases and rehashing them when they were not issues before the court. Also, what is frivolous is the judges failing to treat a pro se litigant with dignity and respect and allowing the other side to verbally bring in another case during the oral argument. Accordingly, Petitioner avers that her appeal was not frivolous and that she had a valid right to an appeal.
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THE APPEAL COURT ERRED WHEN IT RULED AGAINST PETITIONER WITHOUT A WRITTEN TRANSCRIPT OF THE TRIAL COURT’S HEARING
- Indigent litigants are entitled to free court reporters.
The importance of a court reporter in a case cannot be over emphasized. Notably, the presence of a court reporter is required in order to obtain a verbatim record of trial court proceedings and, ultimately, the preparation of an officially recognized reporter’s transcript for use on appeal. Accordingly, it is with regards to the importance of a court reporter that the waiver of court reporter fees was codified in 2013, in Government Code Section 68086(b). California’s Government Code Section 68086(b) provides in that regard that: “The fee shall be waived for a person who has been granted a fee waiver under Section 68631.” Section 68631 proceeds to identify the applicant’s financial condition as the basis for granting the waiver under the said Section 68086(b). Also, California provides for a transcript reimbursement fund to assist indigent civil litigants in paying for a reporter’s transcript. See Bus. & Prof. Code, §§ 8030.1-8030.9.
Further, the California’s Supreme Court in Jameson v. Desta (2018) 5 Cal.5th 594 observed that because of their financial status, indigent litigants are entitled to free court reporters. In the words of the Court, “an official court reporter, or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to in forma pauperis litigants.” Id.
According to the Court in Jameson, the absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will be fatal to a litigant’s case. Notably, “the notes of a court reporter who had reported the proceedings would be useful and valuable in enabling plaintiff to obtain an adequate settled or agreed statement to be utilized on appeal.” Id.
In the instant action, Petitioner enters appearance as a litigant in forma pauperis. It follows; in view of Petitioner’s entitlement to a fee waiver of official court reporter fees under section 68086(b), the Petitioner was entitled to a free Court reporter.
- Hearing an Appeal without a transcript of the Trial Court’s Hearing is a violation of an indigent Petitioner’s Constitutional rights under Cal. Const., art. VI, § 13.
According to Cal. Const., art. VI, § 13, a judgment can be set aside for error, upon review of the entire record of the case. Cal. Const., art. VI, § 13 states in that regard that,
No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Emphasis added).
It follows; one of the institutional functions of the California Court of Appeal is to opine on whether or not an error at trial has resulted in a miscarriage of justice, solely by considering the record before the Honorable Court.
“It is also a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct, and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” Jameson v. Desta (2018) 5 Cal.5th 594. This means, the appellant has the burden of providing an adequate record. The Supreme Court in Jameson also stated that “[f]ailure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]. Id. Besides, the Appeal Court cannot reach the merits of a Trial Court’s decision without a transcript of the Trial Court’s hearing.
In the instant action, the Appeal Court did not review the transcript of the Trial Court’s hearing of Petitioner’s case. Accordingly, the Petitioner could not fulfill his burden demonstrate to the appellate court that the Trial Court committed an error. The Appeal therefore unjustly issued the judgment against Petitioner, without the said transcript.
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CONCLUSION
In light of the foregoing, the Appeal Court erred in treating Petitioner’s request for declaratory judgment as a claim inseparable from her previous lawsuits. That decision amounts to an erroneous application of res judicata and is indicative of the Court’s abuse of discretion. Also, the Appellate Court erred in hearing Petitioner’s case without a transcript of the Trial Court’s hearing.
For the foregoing reasons, the Appeal Court’s decision should be reversed, and the case remanded to the Trial Court for a Trial at which an official court reporter would be made available to him. Petitioner also prays that a declaratory judgment entered in favor of her. Lastly, the Petitioner prays for any other relief this Court deems just.
Date:
Respectfully submitted,
CERTIFICATE OF WORD COUNT
I certify pursuant to California Rules of Court 8.204 and 8.504(d) that this Petition is proportionally spaced, has a typeface of 13 points or more, contains 3,910 words, excluding the cover, the tables, the signature block, verification, and this certificate, which is less than the total number of words permitted by the Rules of Court. Petitioner relies on the word count of the Microsoft Word word-processing program used to prepare this brief.
I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
CERTIFICATE OF SERVICE
I certify that a copy of this Petition was served on [ENTER DATE] to the Respondent in this action.
DATE:
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