Fink v. Shemtov
| Decision Date | 03 January 2013 |
| Docket Number | No. G045856.,G045856. |
| Citation | 148 Cal.Rptr.3d 570,210 Cal.App.4th 599 |
| Parties | David FINK, Plaintiff and Appellant, v. Moses SHEMTOV et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
See 1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 399.
David Fink, in pro. per, for Plaintiff and Appellant.
Krane & Smith and Marc Smith, Encino, for Defendants and Respondents.
Plaintiff David Fink appeals after judgment was entered in favor of, inter alia, defendant S & E Stone, Inc. (S & E). Acting in propria persona, Fink filed a complaint against S & E and others, as the assignee of Stone Center Corporation's (Stone Center) claims against them and litigated those claims through a bench trial. In a thorough statement of decision issued after the trial court granted S & E's motion for judgment under Code of Civil Procedure section 631.8, the court found Stone Center and Fink's assignment agreement to be void against public policy. The court explained the agreement did not constitute a valid assignment of claims, but a joint venture whereby Stone Center provided the causes of action and Fink provided legal representation of their venture. The trial court found the assignment agreement violated Business and Professions Code section 6125, which prohibits the unauthorized practice of law.
Applying California assignment law, we disagree with the trial court's analysis of the legal effect of the assignment agreement and reverse the judgment as to S & E only. Stone Center absolutely and completely transferred all of its rights to its claims against S & E, and thus legal title to them, to Fink. Fink's agreement to split with Stone Center any recovery he obtained in prosecuting those claims did not undermine the validity of the assignment of legal title to those claims. Such arrangements are legal in collection cases and do not create an attorney-client relationship between the assignor and the assignee. (See National R. Co. v. Metropolitan T. Co. (1941) 17 Cal.2d 827, 831, 112 P.2d 598( National );Macri v. Carson Tahoe Hospital, Inc. (1966) 247 Cal.App.2d 63, 65–66, 55 Cal.Rptr. 276( Macri ).) In addition, Civil Code section 1788.2, subdivisions (c) and (g) define the term “debt collector” as including a natural person, and Business and Professions Code section 6125 allows individuals to represent themselves in court. There was no evidence Stone Center controlled the litigation or had any right to control the litigation, and no evidence Fink represented Stone Center in court or otherwise engaged in the unauthorized practice of law. Accordingly, substantial evidence did not support the trial court's finding the assignment contract was void. Finally, we affirm the judgment in favor of defendants Moses Shemtov, Mary Shemtov, and Amota Properties, LLC.
In February 2007, Fink filed a complaint containing claims for breach of contract and fraud against S & E, Moses Shemtov, his wife, Mary Shemtov, and Amota Properties, LLC. The complaint alleged that in 2005, Stone Center extended to Moses Shemtov instant credit to purchase merchandise, in exchange for Shemtov's agreement to complete and return Stone Center's credit contract. The complaint further alleged Moses Shemtov neither returned the completed credit contract nor paid for the merchandise. The complaint alleged Stone Center assigned its claim to Fink. Fink filed the complaint, in propria persona, and, with the exception of one period of a few weeks in the fall of 2010, Fink has represented himself throughout the four-year duration of this litigation.
Fink failed to timely post jury fees and the case was set for a bench trial. During a pretrial hearing, the parties stipulated that their dispute was based on whether S & E paid Stone Center $81,236.70 for merchandise it purchased from Stone Center. Defendants' counsel stated that although the complaint alleged the existence of a written assignment of Stone Center's claims to Fink, Fink failed to produce any evidence supporting such an assignment. The trial court stated,
The court told Fink he needed to produce evidence showing that Fink had standing in the case. The trial court explained: Fink stated he would bring the assignment agreement to court.
At trial, Fink produced two documents to prove he had standing. First, he produced a document entitled “Assignment Contract” (the assignment contract) which stated it was executed on February 16, 2007, by Allan Lan, on behalf of Stone Center, and by Fink. The assignment contract stated:
Lan testified at trial that the assignment contract was prepared in 2007 and that Stone Center's assignment of claims as to the debt was “complete.” Lan also testified that in exchange for the assignment of claims, Fink agreed to pay Stone Center $5,000 outright plus 50 percent of any recovery he obtained in pursuing the assigned claims. Lan stated that Fink paid Stone Center $4,000 and “[p]robably [$]5,000 already” in cash.
Fink also produced a document entitled “Acknowledgment of Assignment of Debt” (the acknowledgment of assignment) which was signed by William Gaynor, as a corporate officer of Stone Center. The acknowledgment of assignment, executed on February 23, 2007, stated in part: The acknowledgment of assignment listed the dates of five invoices, the invoice numbers, and the amount due for each invoice. It stated the debtors owed Stone Center a total of $81,236.70. The acknowledgment of assignment further stated: “I hereby transfer and assign all rights to these debts, including all interest rights, to David Fink.” 1
At trial, the court observed that the substance of the assignment contract and the acknowledgment of assignment is “typically ... done in one single document.” The court stated, Defendants' counsel responded, “I don't either, Your Honor.”
The trial court stated that Fink had made a prima facie showing of a valid assignment and trial continued on the merits of the claims.
After the parties finished putting on their evidence, the trial court granted defendants' motion for nonsuit as to Mary Shemtov, Moses Shemtov, and Amota Properties. S & E moved for judgment under Code of Civil Procedure section 631.8 and argued Fink did not have standing in the case because the assignment of claims was invalid.
As to the motion for judgment, the trial court stated that subject to further briefing on the issue of the validity of the assignment, The court set a briefing schedule and a hearing on the issue of the validity of the assignment. Our record shows the trial court received some briefing on the assignment issue.
At the scheduled hearing on the assignment issue, the trial court stated that whether Stone Center and Fink's arrangement constituted a valid assignment was a “very difficult issue” and that the arrangement might constitute a...
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