Thursday, November 20, 2008
Court of Appeal Upholds Default Judgment Against Sham Attorney
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday declined to void a default judgment against a woman who allegedly conducted a law practice without a license using the name and logo of Mid-Wilshire attorney Thomas Min Lee’s firm.
Distinguishing between void and voidable judgments, the court explained that the judgment against Ji Hae An was voidable because An had not received notice the trial court would consider imposing terminating sanctions against her for her failure to appear at a case management conference, but not void because An’s motion to set the judgment aside was untimely.
Lee told the MetNews that shortly after he set up his practice, he was looking through a local Korean newspaper in which he was considering placing an advertisement and discovered an advertisement using his name, firm name and logo, but a different address.
He said he learned that An and her husband, neither of whom were licensed to practice law, were operating an illegal law practice out of a building down the street from him, and misleading clients into believing they were retaining his office.
After Lee sued, he said both defendants answered using false addresses. An’s husband subsequently declared bankruptcy and was dismissed from the action, and Lee claimed that An moved several times without notifying him or the court of her new address.
Meanwhile, the trial court sent Lee a “Notice of Case Management Conference,” warning that failure to file appear at the conference could result in the imposition of sanctions, including dismissal of the case, striking of the answer, or the payment of money.
The notice ordered Lee “to serve this notice of hearing” on all parties and attorneys of record, and Lee sent notice of the conference to An, but it was not a copy of the court’s form notice and lacked the form’s detailed warnings.
When An failed to appear at the conference, Los Angeles Superior Court Judge Michael L. Stern struck her answer and entered a default judgment for $198,976.85.
More than three years later, An moved to set aside the default and judgment under Code of Civil Procedure Sec. 473. She contended that the default was invalid and the resultant judgment void because she did not receive adequate notice.
During oral argument before Presiding Justice Norman L. Epstein and Justices Nora M. Manella and Steven C. Suzukawa, Lee’s attorney, Barry G. Florence of Ablon, Lewis Bass & Gale, said that Manella had asked An’s lawyer if his argument was that a party “can wait until hell freezes over to challenge a void judgment,” to which An’s counsel, Devin A. Weisberg of the Sempre Law Firm, had responded yes.
Weisberg could not be reached for comment.
Writing for the appellate court, Epstein noted that Sec. 473 does not set forth a specific time limit, but reasoned it was inapplicable because it only applies to void orders.
When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, Epstein explained, but when a statute authorizes a prescribed procedure and the court acts contrary to the authority conferred, the court exceeds its jurisdiction and the resultant order is merely voidable.
“In this case, the court had fundamental jurisdiction over the parties and the subject matter, but acted in excess of its jurisdiction by imposing terminating sanctions without adequate prior notice,” Epstein wrote, concluding that the judgment was voidable, not void, and that statutory relief was not available to An.
Because voidable judgments are not subject to collateral attack once the judgment is final and An did not move to vacate the voidable judgment in a timely manner, Epstein also concluded that An was not entitled to equitable relief as well.
Lee said that the court’s decision was not surprising to him because the decision simply prevented An from benefiting from a situation she had deliberately created by fleeing the state.
But his attorney, Barry G. Florence of Ablon, Lewis Bass & Gale, expressed some surprise and concern with the decision, opining that the court was suggesting that An would have won if she had timely attacked the judgment.
“So many attorneys when they send out the notice…they send out their own notice, not the court’s notice with the language regarding sanctions, so I think attorneys are going to change their manner of sending out notices to make sure that language is included in there,” Florence said, adding that he has never seen a notice with that language.
“These people knew what was going on,” Florence opined. “They were acting as lawyers, so they should be held to a little higher standard of care than just a normal citizen.”
Lee said that sham law firms are “pretty prevalent in any ethnic community in L.A.,” and that he thinks An and her husband had “picked on several other lawyers before me.”
A big part of the problem, he said, was that State Bar numbers are easily accessible, and that a State Bar number is all that is required for immigration papers to be filed. “There’s no way to know if an application is really from an attorney or not,” he opined, and “there’s nothing the State Bar can do to protect attorneys.”
But State Bar Deputy Executive Director Robert Hawley said that the State Bar issues numbers in order to protect attorneys. He analogized the State Bar number to a license place or a police officer’s badge number, as a means to create a precise paper trail to follow and establish accountability.
Unlike a Social Security number or credit card number, Hawley said, the State Bar number has no purpose other than to identify someone as a licensed attorney, adding “there’s no real reason to steal a State Bar number unless you’re going to use it illegally.”
Hawley said that the State Bar provides information to the public so that they can cross-check information about attorneys and that the protection offered by having a identifying number for each licensed attorney outweighed the potential harm of a third-party misappropriating that information.
The case is Lee v. An, 08 S.O.S. 6234.
Copyright 2008, Metropolitan News Company