People ex rel. Lockyer v. Brar

• Decision Date: 30 November 2005
• Docket Number: No. G034755.,G034755.
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE ex rel. LOCKYER as Attorney General of the State of California, Plaintiff and Respondent, v. Harpreet BRAR, Defendant and Appellant.

36 Cal.Rptr.3d 272

134 Cal.App.4th 659

PEOPLE ex rel. LOCKYER as Attorney General of the State of California, Plaintiff and Respondent, v. Harpreet BRAR, Defendant and Appellant.

No. G034755.

Court of Appeal, Fourth District, Division Three.

November 30, 2005.

Harpreet Brar, in pro. per., for Defendant and Appellant.

Bill Lockyer, Attorney General, Albert Norman Shelden, Senior Assistant Attorney General, and Howard Wayne, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

SILLS, P.J.

I. Background

On July 8, 2003, in the wake of the Trevor Law Group scandal, California's Attorney General sued attorney Harpreet Brar to make him stop filing similar shakedown lawsuits against small businesses under the unfair competition law (Bus. & Prof.Code, § 17200 et seq.).

Brar certainly knew of the litigation brought against him by the Attorney General. He demurred to the complaint, the demurrer was overruled, and Brar was given 15 days in which to answer. But instead of answering, Brar filed a motion to strike under the anti-SLAPP statute.

The motion to strike was denied, but it bought time. It enabled Brar to delay trial court proceedings by appealing from the denial order. As we explained in a published opinion arising out of the case (People ex rel Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 9 Cal.Rptr.3d 844), parties do indeed have the right to appeal from orders denying anti-SLAPP motions; and, as we concluded in Brar (and as was later definitively held by our Supreme Court in Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 25 Cal.Rptr.3d 298, 106 P.3d 958), any appeal from the denial of an anti-SLAPP motion automatically stays further trial court proceedings on the causes of action affected by the motion. In effect, an anti-SLAPP motion is a means of unilaterally imposing at least some delay on proceedings.

But if the right to an automatic stay is abused by appeals frivolous on their face, matters on appeal can be speeded up by summary dismissal. Since Brar's appeal fit that category, this court summarily dismissed his appeal as frivolous at a "glance." As we put it in the opinion, dismissal was necessary to prevent "abuse of the anti-SLAPP statute to buy time from the day of reckoning in the trial court." (People ex rel. Lockyer v. Brar, supra, 115 Cal.App.4th at p. 1319, 9 Cal.Rptr.3d 844.)

II. The Default

With the summary dismissal of the appeal in late February, and with his initial demurrer having already been overruled, Brar was faced with the task of actually answering the complaint. No answer, however, ever made it into the trial court file, and so, on May 27, 2004, the Attorney General filed a request for entry of default.

Brar knew of the default no later than September 6, 2004, since he has admitted actually receiving a memorandum for setting the hearing to prove up the default on that date. But Brar waited more than three weeks (until September 30), to even go to the superior court and confirm that no answer had been filed, and waited another month after that (until October 26), to bring a motion to set aside the default under Code of Civil Procedure section 473, subdivision (b).¹ In the meantime, on October 13, 2004, the court entered a final judgment of default, including a permanent injunction against Brar bringing unfair competition law and false advertising law suits. The judgment included $1,787,500 in civil penalties and about $10,000 in restitution to specified nail salon owners.

III. The Set Aside Motion

What was Brar's excuse? Brar's motion to set aside rested on the assertion that he attempted to file an answer, which he left in his home mailbox on March 13, 2004, but the answer was (apparently) stolen. This claim is largely repeated in the appeal we now consider.

The standard of review for Brar's set aside motion is abuse of discretion. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598, 153 Cal.Rptr. 423, 591 P.2d 911; Hu v. Fang (2002) 104 Cal.App.4th 61, 64, 127 Cal.Rptr.2d 756.) Moreover, all presumptions will be made in favor of the correctness of the order, and the burden of showing abuse is on the appellant. (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921, 242 P.2d 22.) This case does not implicate any of the mandatory provisions of section 473, subdivision (b) concerning an attorney's affidavit of fault.

We affirm the denial order because the trial court was well within its discretion to conclude that Brar had not shown any excusable neglect or genuine surprise, mistake or inadvertence.

Of course, trial pleadings can indeed be lost in the mail. (See Hallett v. Slaughter (1943) 22 Cal.2d 552, 140 P.2d 3). Then again, a claim of lost mail is not grounds for automatic relief from a default judgment. (See Lint v. Chisholm (1981) 121 Cal.App.3d 615, 620, 177 Cal.Rptr. 314 [lost mail due to attorney's "overwhelming domestic problems" is not surprise or excusable neglect under section 473].)

Here, in his supporting declaration, Brar provided the trial court with a series of anecdotes suggesting mail theft from his home mailbox and from other mailboxes in his neighborhood, but — and this is important — without specifying any dates other than vaguely around the summer of 2004. (Here are the most substantive statements from his declaration: "A check made payable to `Parenting' (Magazine) for 15 dollars was removed from the mailbox and forged with a new name and amount of `615.00' and cashed. . . . [¶] Defendant is aware that other members in his community have had their mail stolen on numerous occasions. [¶] One resident has even seen a strange car approach the mailboxes across the street from his house at 2:00 a.m. and remove mail. . . . [¶] Over the summer months the mail theft rapidly increased. [¶] Defendant had his electricity disconnected on one occasion, his telephone disconnected on one occasion, and his satellite television disconnected on two occasions because he did not receive any bills or notices from the utility providers. Defendant believes the bills and or notices must have been stolen from his mailbox.")

Given Brar's refusal to pin himself down on a time frame for the mailbox thefts, the trial court was thus justified in concluding, at the very least, that Brar knew of the risks of putting mail out for collection in his neighborhood prior to putting his answer in what was a remarkably theft-prone mailbox, and thus proceeded without due regard for a known risk. If Brar had really been diligent about his answer given the supposed likelihood of mail theft in his neighborhood, he could have driven to a local post office and put the envelope inside a mailbox himself.

Alternatively, as the Attorney General suggests, given the vagueness of this declaration, the trial court could reasonably conclude that Brar was simply being untruthful in asserting a story that could not be disproved. In that regard, we note that in his opening brief Brar states, "At no time until after the Appellant learned of the default did he have reason to believe that his mail was being stolen." (Appellant's opening brief at p. 12.) And yet Brar's own declaration in support of his motion states that, "Over the summer months the mail theft rapidly increased," while also saying that Brar received a notice related to the default on September 6. That is, the chronology doesn't make sense. The trial judge was asked to believe that mail theft was increasing over the summer months, but Brar supposedly had no reason to believe that his mail was being stolen prior to September 6 (almost the end of summer). The trial court would have been justified in not crediting the mail theft story at face value.

Finally, even assuming that Brar were telling the truth in his declaration, if Brar were convinced he had a meritorious defense to the Attorney General's suit, he surely would have checked up on whether his answer had been filed when, after a few weeks, no conformed copy of his answer had been returned by the court clerk. The absence of such a conformed copy should have put Brar on notice that something was wrong and needed correction. (See Tammen v. County of San Diego (1967) 66 Cal.2d 468, 478, 58 Cal.Rptr. 249, 426 P.2d 753 ["The `surprise' contemplated by section 473 . . . is some condition or situation in which a party is unexpectedly placed to his injury, without any fault of his own, under circumstances which he was not reasonably called upon to anticipate and which ordinary foresight could not have guarded against."].) Brar's indifference to the absence of a conformed copy is grounds for a reasonable inference that Brar never put an answer in his mailbox in the first place. The Attorney General's litigation went directly to the way Brar was alleged to earn his living; it wasn't some overdue electric bill. If he ever had incentive to make sure that an answer got filed in any case he worked on, it was certainly this case.

IV. Other Matters

A. Outstanding Motions

For convenience sake, we grant all outstanding motions for judicial notice and motions to augment the record.

For his part, Brar wants us to recognize that the Attorney General has filed recent litigation concerning lead jewelry, canned tuna fish which may contain mercury, and french fries and other foods cooked in hot oil which may contain a substance which may be carcinogenic. While we take judicial notice of this litigation, so what? The point of the request is merely to make a rhetorical point giving a patina of respectability to the lawsuits that Brar himself has filed. (As his reply brief says, "The Appellant has mimicked the actions of the Respondent. . . . A mere glance at the complaints that both parties have requested this Court to take judicial notice of show that both the Respondent and the Appellant engage in the same conduct.") At the most, the Attorney General's recent litigation offers Brar a platform for a two-wrongs-make-a-right argument. But such an argument only goes to the m...