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Filed 5 2 11 Ree v Hahn CA2 8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court rule 8 1115 a prohibits courts and parties from citing or relying on opinion

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Filed 5 2 11 Ree v Hahn CA2 8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court rule 8 1115 a prohibits courts and parties from citing or relying on opinion Powered By Docstoc
					Filed 5/2/11 Ree v. Hahn CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT


JIN REE,                                                             B222282

                   Plaintiff and Appellant,                          (Los Angeles County
                                                                      Super. Ct. No. BC400910)
                   v.

JENNIFER HAHN et al.,

                   Defendants and Respondents.




         APPEAL from an order of the Superior Court of Los Angeles County.
Holly E. Kendig, Judge. Dismissed.

         Jin Ree, in pro per, Plaintiff and Appellant; Law Offices of Do & Do and Hieu D.
Do, for Plaintiff and Appellant.

         Nelson Griffin, Thomas J. Griffin and Raymond J. Muro, for Defendants and
Respondents.


                                       __________________________
       Jin Ree appeals from the order dismissing a real estate fraud and breach of
contract action brought by Woo Kyung Sung because Sung failed to file a third amended
complaint after demurrers to his second amended complaint were sustained. Although
Ree purports to be the assignee of Sung’s causes of action, we dismiss the appeal because
Ree never became a party to the action and therefore lacks standing to pursue this appeal.

                       FACTS AND PROCEDURAL HISTORY

       Woo Kyung Sung bought an internet café business from Jung Min Kim in 2006.
Kim was represented during the transaction by real estate agent Jennifer Hahn, who
worked for Joy Investment & Realty, Inc. (Joy). In 2008, Sung sued Kim, Hahn, and Joy,
alleging that they misled Sung to believe that the business had a five-year lease option
from its landlord. When Sung learned that no option existed, he claimed he was forced to
lease the premises at an inflated rate. His original complaint alleged causes of action for
breach of contract, fraud, and a common count.1
       Hahn and Joy demurred to the original complaint. No ruling on that demurrer
appears in the record, but Sung filed a first amended complaint in March 2009 that
alleged the three original causes of action, along with new claims for “intentional
concealment” and conspiracy. Hahn and Joy demurred to the first amended complaint on
two primary grounds: (1) the buyer of the internet café was the corporation owned by
Sung, not Sung himself, meaning he lacked standing to bring the action; and (2) Sung
failed to adequately plead various elements of his causes of action. The demurrers were
sustained with leave to amend.2

1      Kim’s default was entered in July 2009. He is not a party to this appeal.

2       The record does not include Hahn and Joy’s initial points and authorities in
support of their demurrers, or the trial court’s ruling on the motion. Instead, it includes
only Sung’s opposition points and authorities, Hahn and Joy’s reply brief, and a notice of
ruling on the demurrers. Although the reply points and authorities describe the grounds
raised in support of the demurrers, the notice of ruling does not describe the grounds for
the trial court’s ruling. No reporter’s transcript of that hearing (or any others) was
designated as part of the record on appeal.
                                             2
       In August 2009 Sung filed a second amended complaint that alleged four causes of
action: breach of contract; fraud; breach of fiduciary duty; and conspiracy. Hahn and
Joy demurred again, contending that exhibits attached to the complaint as proof that a
contract breach occurred were either ambiguous or did not reflect a contract to which
Sung was a party. They also contended that Sung once more failed to adequately plead
the elements of his causes of action. However, this demurrer was aimed at only the
causes of action for breach of contract, fraud, and conspiracy, and did not address the
breach of fiduciary duty claim.
       Our run of the mill procedural recap now takes a turn toward the unusual. Sung
claimed to be representing himself throughout these proceedings. However, because he
was a Korean national with limited English language skills, he employed appellant Jin
Ree to act as his interpreter. Before Hahn and Joy filed their demurrer to the second
amended complaint, they became concerned that Ree was not just interpreting for Sung,
but was providing legal advice as well. In September 2009, Ree wrote to Raymond J.
Muro, who was counsel for Hahn and Joy, stating that in February 2009, Sung had
assigned his causes of action to him, and had also given Ree power of attorney to act as
his attorney-in-fact in regard to handling the case.
       A copy of the assignment and power of attorney document was attached to Ree’s
letter. It was typed in Korean, with an English language translation after each paragraph.
Distilled, it said that Sung had assigned all his interests in the action to Ree, including the
“rights for lawsuit, title, interest, negotiation, settlement, legal process, money collection,
etc. . . .” Although the action would continue to be brought in Sung’s name, Ree would
be Sung’s attorney-in-fact and “shall act as plaintiff in pro per at the court appearance for
hearings and the deposition and the trial, etc. . . .” In exchange, Sung would pay Ree 45
percent of any judgment or settlement.
       In addition to their demurrer to the second amended complaint, Hahn and Joy filed
companion discovery motions, as well as a motion to disqualify Ree from acting as
Sung’s interpreter, or from otherwise taking part in the action. The motion to disqualify
Ree argued that Ree’s agreement with Sung called into play California Rules of Court,

                                               3
rule 2.890(c), which precludes the use of interpreters whose impartiality may be called
into question due to a conflict of interest, such as an interest in the outcome of a case.
        The motion to disqualify was also based on the contention that Ree, who was not a
lawyer, was providing legal advice to, and otherwise practicing law on behalf of, Sung.
This contention was based in part on the terms of the assignment agreement between Ree
and Sung, which appeared to require Ree to appear in court on Sung’s behalf, and also
provided a contingency fee payment to Ree. It was also based on the following conduct:
Ree had noticed depositions; prepared and signed documents filed with the court; insisted
that all settlement negotiations be conducted with him; prepared a legal analysis
concerning his purported right to act in this manner on Sung’s behalf, and conveyed that
analysis to Muro by way of a letter; and Ree’s business address was now listed as the
source destination of all correspondence and communications concerning the case.
        An opposition brief to the disqualification motion was prepared and signed by
Ree. In it, Ree contended he had the power to act as he had by virtue of the assignment
and power of attorney signed by Sung. Ree filed a declaration to support the opposition,
describing himself as Sung’s “document preparer.” In connection with Sung’s opposition
to one of the companion discovery motions, Ree submitted a declaration where he stated
he had already prepared written oppositions to a total of four motions in the action, and
was “preparing the last opposition now for Sung . . . .” (Italics added.)3
        On November 20, 2009, the trial court sustained with 20-days leave to amend
Hahn and Joy’s demurrer to the fraud cause of action. Their demurrers to the breach of
contract and conspiracy causes of action were sustained without leave to amend. The
trial court also granted their motion to disqualify Ree from acting as Sung’s interpreter or
from participating in the case in any capacity, whether as attorney or attorney-in-fact for
Sung.
        Twenty days later, on December 10, 2009, a third amended complaint was filed in
the action, listing Ree as the plaintiff in pro. per, along with “associated counsel”

3     In response to form interrogatories, Sung identified Ree as the person who helped
him prepare his response.
                                              4
identified as lawyer Hieu D. Do. The third amended complaint included the breach of
fiduciary duty claim that had not been the subject of the demurrer to the third amended
complaint. Although leave to amend the fraud cause of action had been granted, it was
not pled. Even though the demurrer to the breach of contract cause of action had been
sustained without leave to amend, that claim was pleaded again.
       Filed along with Ree’s third amended complaint was a document captioned as
“NOTICE OF ASSIGNMENT/TRANSFER OF THE CASE,” which attached a copy of a
new assignment agreement stating that Sung had assigned the claims to Ree, who would
bring the action in his name from then on. However, no motion to substitute Ree as the
plaintiff was ever filed.
       On January 7, 2010, Hahn and Joy brought an ex parte application to dismiss the
action with prejudice because Sung did not file an amended complaint within the time
allowed after the order sustaining the demurrers to the second amended complaint. (Code
Civ. Proc., § 581, subd. (f)(2); Cal. Rules of Court, rule 3.1320(h).) The application for
the dismissal order included a copy of the third amended complaint filed by Ree as the
plaintiff, but argued that Ree had never substituted in as a party to the action, and
therefore lacked standing to file the complaint. The trial court granted the application,
dismissed the action pursuant to Code of Civil Procedure section 581, subdivision (f)(2),
and entered judgment in favor of Hahn and Joy. Ree, purporting to act as the plaintiff in
pro. per, filed a notice of appeal.

                                       DISCUSSION

       Hahn and Joy contend we should dismiss the appeal because Ree is not a party to
the action and therefore lacks standing to appeal. We agree. Standing to appeal is
conferred upon parties of record who are aggrieved by a judgment. (Code Civ. Proc.,
§ 902; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342.) A non-party
who is legally aggrieved by a judgment can become a party of record with standing to
appeal by moving to vacate the judgment pursuant to Code of Civil Procedure section
663. (Shaw, at p. 1342.) Ree did not bring such a motion.

                                              5
         Neither did he avail himself of the other vehicle by which he could have become a
party of record – substituting into the action as the named plaintiff pursuant to his rights
as Sung’s assignee. (Code Civ. Proc., § 368.5.) However, that provision states that the
court “may allow” the substitution, meaning that whether to grant such a motion is
discretionary. (Ruby v. Superior Court (1951) 104 Cal.App.2d 175, 176.) Because
permission to substitute in is not automatic, the document Ree filed with the court to give
notice that he would thereafter act as the plaintiff was therefore insufficient. (In re
Silvia R. (2008) 159 Cal.App.4th 337, 345, fn. 3 [a party of record is someone who takes
the appropriate steps to become a party of record, and that status is not conferred simply
because his name and interest in the proceedings appears in documents filed with the
court].)4

                                          DISPOSITION

         The appeal is dismissed. Respondents Hahn and Joy shall recover their appellate
costs.




                                                          RUBIN, J.
         WE CONCUR:



                      BIGELOW, P. J.                                    FLIER, J.




4       Rather than discussing the standing argument with citations to appropriate
authority, Ree instead refers us to cases concerning personal privacy (e.g. Griswold v.
Connecticut (1965) 381 U.S. 479 and Roe v Wade (1973) 410 U.S. 113), and trial court
matters in which he has also appeared, purportedly as assignee. As to the latter, other
then giving us pause about the breadth of the practice, those trial court cases are not
binding on us or otherwise helpful. The right of privacy cases are also legally irrelevant
to the issue before us.
                                              6

				
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Description: Response to Demurrer for Complaint for Breach of Contract document sample