Filed 9/20/13 Tai v. Von Till CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


CHI TAI etc.,
         Plaintiff and Respondent,
                                                                     A136881
v.
STEPHEN F. VON TILL,                                                 (Alameda County
                                                                     Super. Ct. No. RG12625924)
         Defendant and Appellant.


         In this appeal, attorney Stephen F. Von Till (appellant), appeals from the
overruling of his demurrer and the denial of his two related motions to strike the
complaint of respondent Chi Tai, doing business as Peralta Auto Center, alleging
appellant’s participation in a fraudulent transfer of real property and in a civil conspiracy
(Fraudulent Transfer Action).
         The Fraudulent Transfer Action alleged that appellant had earlier filed a civil
action in the Alameda County Superior Court on behalf of Alex Novak (Case No.
HG07344892) against respondent in 2007, to recover damages for personal injuries
Mr. Novak received as a result of an automobile accident that occurred in September
2005 (Personal Injury Action). Prior to trial of the Personal Injury Action, respondent
served an offer to compromise under Code of Civil Procedure section 998 in the amount
of $18,000.00, which Novak rejected.
         Thereafter, the Personal Injury Action proceeded to a jury trial and resulted in a
defense verdict in favor of respondent. Judgment was entered in respondent’s favor on
June 14, 2011, which included an award of costs. Ultimately, on December 14, 2011, an


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amended judgment was entered awarding respondent a total of $101,107.32 in costs,
including expert witness fees.
       The Fraudulent Transfer Action complaint further alleged that, while the cost
motion was pending, and before the amended judgment was entered, Mr. Novak, with the
assistance of appellant, transferred his Fremont residence to his daughter, defendant
Paula Novak. Soon after this transfer in September 2011, Mr. Novak died. On
information and belief the complaint alleges that after Mr. Novak’s death, Paula Novak
listed the residence for sale at a price of $384,000.00.
       After answering the Fraudulent Transfer Action complaint , on June 8, 2012,
appellant filed a demurrer and motion to strike contending that the trial court erred in
failing to dismiss the conspiracy claims because respondent failed to comply with Code
of Civil Procedure section 1714.10, and because the actions alleged against appellant
were subject to the litigation privilege (Civ. Code, § 47, subd. (b)). Defendant Paula
Novak joined in the demurrer and motion to strike. The following month, appellant filed
a separate motion to strike the Fraudulent Transfer Action against him under Code of
Civil Procedure section 425.16, the anti-SLAPP statute.1
       Both motions to strike, as well as appellant’s demurrer, were heard by the trial
court on August 17, 2012, and denied and overruled, respectively. On October 16, 2012,
appellant filed a notice of appeal from the denial of both motions to strike and the
overruling of his demurrer.
       While the appeal in the Fraudulent Transfer Action was pending, Paula Novak
filed an appeal from the adverse judgment entered against her in the Personal Injury
Action. That appeal was assigned to Division Three of this district. Division Three filed
its opinion in the Personal Injury Action appeal on May 24, 2013, reversing the judgment
against Paula Novak, and remanding the case back to the trial court “for further
proceedings consistent with this opinion.” Paula Novak was also awarded her costs


       1
      Apparently, defendant Paula Novak’s pleading seeking to join in the anti-
SLAPP motion to strike was rejected for failing to pay a filing fee.


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incurred on appeal. (Novak v. Continental Tire North America, Inc. (May 24, 2013,
A133073 [nonpub. opn.].) Respondents in that case, Continental Tire North America,
Inc. and Chi Tai, doing business as Peralta Auto Center, then filed a petition for rehearing
with Division Three, which was denied on June 12, 2013, and the remittitur issued on
July 25, 2013.
       In light of these subsequent events in the Personal Injury Action, this court issued
an order requesting supplemental briefing on the following issues:
       “1. What effect, if any, does the reversal in appeal A133073, and the anticipated
vacation of the cost award in respondent’s favor, have on the civil conspiracy claim made
by respondent against appellant in appeal A136881, and on the appeal from the trial
court’s overruling of appellant’s demurrer and denying of the motion to strike for non-
compliance with Code of Civil Procedure section 1714.10? In addressing this issue, the
parties are asked, inter alia, to address whether the reversal in A133073 renders this
appeal moot or premature.
       “2. If the reversal in appeal A133073 has no effect on the pendency of appeal
A136881, then should this court stay appeal A136881, pending resolution of case
A133073?”
       The parties’ supplemental briefs now have been submitted.
       In Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559
(Wilson & Wilson), a land use lawsuit resulted from Redwood City’s approval of a
combined retail-cinema office and parking project. The plaintiff’s legal challenge to the
city’s resolutions and contracts allowing the project to go forward was not completed in
the trial court before the project was substantially completed. Our colleagues in Division
Five reversed the trial court’s judgment entered in favor of the plaintiff despite the
already completed status of the project. (Id. at p. 1563.) In the course of its analysis, the
court discussed the doctrine of mootness, and its applicability to that case:
       “A case is considered moot when ‘the question addressed was at one time a live
issue in the case,’ but has been deprived of life ‘because of events occurring after the
judicial process was initiated.’ (Younger v. Superior Court (1978) 21 Cal.3d 102,


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120 . . . .) Because ‘ “the duty of . . . every . . . judicial tribunal . . . is to decide actual
controversies by a judgment which can be carried into effect, and not to give opinions
upon moot questions or . . . to declare principles or rules of law which cannot affect the
matter in issue in the case before it[,] [i]t necessarily follows that when . . . an event
occurs which renders it impossible for [the] court, if it should decide the case in favor of
plaintiff, to grant him any effectual relief whatever, the court will not proceed to formal
judgment . . . .” [Citations.]’ (Consol. etc. Corp. v. United A. etc. Workers (1946) 27
Cal.2d 859, 863 . . . .) The pivotal question in determining if a case is moot is therefore
whether the court can grant the plaintiff any effectual relief. (Giles v. Horn (2002) 100
Cal.App.4th 206, 227 . . . ; see also Daily Journal Corp. v. County of Los Angeles (2009)
172 Cal.App.4th 1550, 1557 . . . [case moot where contract with county had expired and
court could not award it to disappointed bidder].) If events have made such relief
impracticable, the controversy has become ‘overripe’ and is therefore moot. [Citations.]
         “Thus, ‘ “[m]ootness has been described as ‘ “the doctrine of standing set in a time
frame: The requisite personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence (mootness).” ’ [Citations.]” ’
[Citation.] When events render a case moot, the court, whether trial or appellate, should
generally dismiss it. (See Lillbask ex rel. Mauclaire v. Connecticut Dept. of Education
(2d Cir. 2005) 397 F.3d 77, 84; see also Consumer Cause, Inc. v. Johnson & Johnson
[(2005)] 132 Cal.App.4th [1175,] 1183 [trial court should have refused to decide case
upon plaintiff’s discovery that allegations of complaint were wrong and defendant was
not violating statute at issue].)” (Wilson & Wilson, supra, 191 Cal.App.4th at p. 1574,
italics added; see also Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th
1538.)
         Consistent with the doctrine of mootness, as elucidated in Wilson & Wilson,
respondent concedes in his supplemental brief that it applies to this case:
         “Here, the reversal of the judgments in Case No. A133073 preclude [sic] the
granting of any effectual relief in this action . . . . The award of expert witness fees under
Code of Civil Procedure [section] 998 was based on the discretion of the trial judge based


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upon the conduct of the trial. The reversal of the judgment, the substitution of the
personal representative, the unavailability of non-economic damages in the new trial, the
difference in scope of expert witness testimony are all issues the trial court will have to
analyze at the conclusion of the new trial. Until the trial concludes, a victor is determined
and the court performs the analysis of these factors, there is no cost award under Code of
Civil Procedure [section] 998 to enforce. Hence, the controversy here has become
‘overripe’ and moot.”
       We agree that the appeal in Fraudulent Transfer Action has been mooted by the
reversal in the Personal Injury Action. Because of the reversal, the amended judgment,
including the cost award, has been vacated. The now-vacated amended judgment formed
the basis for the claim of fraudulent transfer, and without that foundation, the Fraudulent
Transfer Action cannot go forward.
       The principle case relied on by appellant in his supplemental brief, Oiye v. Fox
(2012) 211 Cal.App.4th 1036 (Oiye), does not compel a different conclusion here, and in
fact supports our analysis. In Oiye, a victim of sexual molestation brought a civil suit
against the molester after he had pled no contest to criminal charges brought stemming
from the acts. The issue on appeal in that case material to appellant’s contention here
was whether the trial court abused its discretion in issuing a preliminary injunction in
favor of a victim against the potential transfer of assets by the molester while the civil
action was still pending. (Id. at pp. 1044-1045.) The appellate court affirmed the
injunction,2 finding no abuse of discretion, particularly in light of the defendant’s
admission to the criminal charge of molestation which the court concluded was “highly
corroborative” of the victim’s claims, albeit not conclusive on the merits. (Id. at p. 1052.)
       Importantly, the court took note of the simple proposition that a tort plaintiff
becomes a “creditor” for purposes of the Uniform Fraudulent Transfer Act (Civ. Code,
§ 3439 et seq.), entitling the plaintiff to set aside any transfers that occur from the time


       2
         No such injunction against appellant was ever obtained by respondent here in
the Fraudulent Transfer Action.


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the complaint is filed, but only when and if a judgment is ultimately obtained against the
“debtor”:
       “ ‘Certainly, for purposes of the Uniform Fraudulent Conveyance Act, a tort
claimant before judgment is rendered is a “creditor” within the meaning of Civil Code
section 3439.01.’ (Estate of Blanco (1978) 86 Cal.App.3d 826, 832 . . . .) ‘It is well
settled in this state that the relationship of debtor and creditor arises in tort cases the
moment the cause of action accrues.’ (Hansen v. Cramer (1952) 39 Cal.2d 321, 323
. . . .) ‘ “[O]ne having a claim for a tort is a creditor before the commencement of an
action thereon, as well as after, and, as such creditor, is, upon recovering judgment,
entitled to avoid a fraudulent transfer antedating the commencement of his action.” ’
(Chalmers v. Sheehy (1901) 132 Cal. 459, 465 . . . .)” (Oiye, supra, 211 Cal.App.4th at
pp. 1057-1058, italics added.)
       There is nothing in Oiye that would support the conclusion that the Fraudulent
Transfer Action is not moot and subject to dismissal given the reversal of the Personal
Injury Action. Only if respondents in the Personal Injury Action obtain a defense verdict
after retrial, and only if costs, including expert witness fees, are once again awarded
under the Code of Civil Procedure section 998 offer to compromise, will there be any
possible basis for a renewed suit for alleged fraudulent transfer against appellant and
Paula Novak.3 For these reasons we dismiss the appeal as being moot.
                                       DISPOSITION
       The appeal is dismissed. The matter is remanded to the trial court for further
proceeding not inconsistent with this opinion.




       3
         We do not intend to imply any conclusions as to whether the previous section
998 offer will remain effective in light of either the reversal of the Personal Injury
Action, or the change in status of the plaintiff in that case from Alex Novak, individually,
to Paul Novak as special administrator of his estate.


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                                _________________________
                                RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.




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A136881, Tai v. Von Till




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