Filed 3/8/13 Woo-Ming v. Cheng CA3
                                                 NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for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
                                           THIRD APPELLATE DISTRICT
                                                            (Sacramento)
                                                                    ----



GEOFFREY E. WOO-MING,

                     Plaintiff and Appellant,                                                             C069339

          v.                                                                                    (Super. Ct. No.
                                                                                          34200900063786CUFRGDS)
GRACE CHENG et al.,

                     Defendants and Respondents.


          The demurrer of defendants Grace Cheng and the Progressive Tax Group to the
second amended complaint for fraud filed by plaintiff Geoffrey E. Woo-Ming was
sustained without leave to amend. Plaintiff then moved to set aside the judgment of
dismissal (Code Civ. Proc., § 473),1 claiming he made a mistake of law in relying on a
single cause of action for fraud, when he should have alleged causes of action for breach
of oral contract, common counts, and constructive fraud.
          The trial court denied his motion to set aside the judgment, and plaintiff appeals.
We conclude the trial court did not abuse its discretion, and affirm the judgment.



1   Undesignated statutory references are to the Code of Civil Procedure.

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                                      BACKGROUND
                              The Complaints and Demurrers
       Plaintiff hired defendants to assist him in filing delinquent income tax returns and
to represent him and his wife in proceedings before the Internal Revenue Service and the
California Franchise Tax Board.
       A few months later, plaintiff terminated defendants‟ services and demanded a
refund. When the parties failed to reach an agreement on the amount of the refund,
plaintiff initiated this action pro se by filing a form complaint stating a single cause of
action for fraud based upon intentional or negligent misrepresentation. The factual
allegations of plaintiff‟s complaint include that his credit card was billed without his
permission; he was charged for services rendered after he terminated defendants‟
services; he was referred by defendants to Jennifer Shapiro, whom he assumed was an
attorney and he was billed for her time at the “lawyer‟s rate”; he subsequently learned
Shapiro is not an attorney and, consequently, “practically all of the PTG [Progressive Tax
Group] invoice is fraudulent.”
       Defendants demurred to the original complaint on the ground (among others), that
the complaint failed to allege all of the elements of a fraud cause of action. Plaintiff
responded by filing his first amended complaint, which stated a single cause of action for
fraud based on theories of intentional or negligent misrepresentation and concealment.
       Defendants demurred to the first amended complaint on the ground it failed to
allege all of the elements of a fraud cause of action. The trial court sustained the
demurrer with leave to amend. Plaintiff filed a second amended complaint, which stated
a single cause of action for fraud based on theories of intentional or negligent
misrepresentation and concealment. Soon thereafter, plaintiff filed a motion for summary
judgment; the motion was ultimately dropped.
       Defendants demurred to the second amended complaint on the ground it failed to
allege all of the elements of a fraud cause of action. The trial court sustained the


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demurrer without leave to amend. It reasoned: “Plaintiff alleges a single cause of action,
fraud, based on three alternative theories: intentional misrepresentation, negligent
misrepresentation, and concealment. The crux of plaintiff‟s complaint is that he was
billed at $350/hour for certain services, in particular those performed by one Jennifer
Shapiro, who „was not an attorney, and therefore not entitled to bill at the rate of $350 an
hour.‟ [Second Amended Complaint, page 4.] Plaintiff, however, fails to allege
defendants‟ representation or active concealment (or a duty to disclose) regarding either
Shapiro or her hourly rate, as well as his detrimental reliance, two essential elements of
this cause of action. The fact that plaintiff was ultimately charged what he believes is an
excessive hourly rate is not sufficient to state a cause of action for fraud. Plaintiff having
failed to state a cause of action after three opportunities to do so, the court declines to
grant further leave to amend.”
       Thereafter, the court entered judgment dismissing plaintiff‟s action with prejudice.
                       Plaintiff’s Motion to Set Aside the Judgment
       Plaintiff moved to set aside the judgment pursuant to section 473, on the grounds
that he, “a non-lawyer, mistakenly maintained his only Cause of Action as Fraud in his
Second Amended Complaint. . . . Instead, plaintiff should have changed his First Cause
of Action to Breach of Contract, his Second Cause of Action to Common Counts, his
Third Cause of Action to Constructive Fraud, and to seek Treble Damages” for
defendants‟ alleged violation of Civil Code section 3345. He sought permission to file a
third amended complaint alleging these three new causes of action.
       In support of his motion, plaintiff submitted the following declaration: “The
purpose of this declaration is to explain to the court the circumstances whereby I, the
Plaintiff In Pro Per in this case, made the following mistakes of law: [¶] (a) Since I
believed that I did not need any further discovery in order to demonstrate how the
defendants tried to defraud me, I believed a Summary Judgment was all I needed to win
my case. [¶] (b) As a result, I did not look closely at my single cause of action of [sic]


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Fraud, in that although PRG [sic] tried to defraud me, they were never actually
successful, since I refused to accept their fraudulent refund accounting. [¶] (c) Since
Cheng and PRG [sic] took $20,000+ via credit card before they started work, this was
actually Breach of Oral Contract, with failure to return a refund after non-performance.”
       The trial court denied plaintiff‟s motion for relief from the dismissal of the action,
ruling: “[P]laintiff has failed to demonstrate a mistake of law sufficient to obtain relief
pursuant to . . . § 473(b). Mere ignorance of the law or negligence in conducting legal
research is not excusable neglect. [Citation.] . . . Plaintiff fails to explain what exactly
his mistake of law was, or how it was excusable. Plaintiff does not declare that he
misunderstood any law related to any cause of action in his prior complaints or explain
why he could not have determined that he should have pled causes of action for breach of
contract, common counts, and constructive fraud at an earlier date. Instead, he simply
declares that he mistakenly relied upon a single cause of action in bringing his complaint
and now seeks to file a third amended complaint „using the same set of facts‟ to allege
additional causes of action. Plaintiff essentially seeks another bite at the apple to attempt
to state a viable cause of action, based on the same facts as his previous complaints, after
having had numerous opportunities to do so. The Court finds that plaintiff has failed to
demonstrate a mistake of law, much less an excusable one, sufficient to entitle him to
relief pursuant to . . . § 473(b).)”
                                       DISCUSSION
       Plaintiff asserts on appeal the trial court abused its discretion in denying his
motion to set aside the judgment because a “[m]istake of law by a layman is excusable”
and in holding him “to a higher standard” than defendants‟ attorney, who also made
mistakes in the litigation of this matter. For the following reasons, we disagree.
       Section 473, subdivision (b), provides: “The court may, upon any terms as may be
just, relieve a party or his or her legal representative from a judgment, dismissal, order, or




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other proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect.”
       An application for relief under section 473 is addressed to the sound discretion of
the trial judge. However, that discretion, “„“is not a capricious or arbitrary discretion, but
an impartial discretion, guided and controlled in its exercise by fixed legal principles. It
is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner to subserve and not to impede or
defeat the ends of substantial justice.” [Citations.]‟ [Citations.]” (Kendall v. Barker
(1988) 197 Cal.App.3d 619, 623.)
       While section 473 authorizes a court to relieve a party from default suffered
through inadvertence, surprise, excusable neglect or mistake, “„these words are not
meaningless, and the party requesting such relief must affirmatively show that the
situation is one which clearly falls within such category.‟ [Citation.] „[A] party who
seeks relief under [section 473] must make a showing that due to some mistake, either of
fact or of law, of himself [or herself] or of his [or her] counsel, or through some
inadvertence, surprise or neglect which may properly be considered excusable, the
judgment or order from which he [or she] seeks relief should be reversed. In other words,
a burden is imposed upon the party seeking relief to show why he [or she] is entitled to it,
and the assumption of this burden necessarily requires the production of evidence.
[Citations.]‟” (Kendall v. Barker, supra, 197 Cal.App.3d at pp. 623-624, and cases cited
therein.) In a motion under section 473, the initial burden is on the moving party to prove
excusable neglect by a “preponderance of the evidence.” (Id. at p. 624.)
       While a mistake in law is a ground for relief under section 473, the “„issue of
which mistake in law constitutes excusable neglect presents a question of fact. The
determining factors are the reasonableness of the misconception and the justifiability of
lack of determination of the correct law. [Citation.]‟ [Citation.] „[I]gnorance of the law
coupled with negligence in ascertaining it will certainly sustain a finding denying relief.


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[Citations.]‟ [Citation.]” (Robbins v. Los Angeles Unified School Dist. (1992)
3 Cal.App.4th 313, 319.)
       Here, the trial court did not credit plaintiff‟s bald assertion he was mistaken about
the law. It found plaintiff did not “declare that he misunderstood any law related to any
cause of action in his prior complaints,” and we agree with that finding. (E.g. In re
Marriage of Nurie (2009) 176 Cal.App.4th 478, 492.) Indeed, plaintiff only asserts he
mistakenly believed “a Summary Judgment was all I needed to win my case” and he “did
not look closely at my single cause of action of [sic] Fraud” and should have pled
different causes of action. These statements are more descriptive of a mistaken litigation
strategy than a mistake of law. The trial court did not abuse its discretion in denying
plaintiff‟s motion because he failed to show he made a mistake of law.
       Nor did the trial court abuse its discretion in concluding plaintiff‟s claimed
mistakes were not excusable. “An „honest mistake of law‟ can provide „a valid ground
for relief,‟ at least „where a problem is complex and debatable,‟ but relief may be
properly denied where the record shows only „ignorance of the law coupled with
negligence in ascertaining it.‟” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401,
1412-1413.) We agree with the trial court‟s assessment that plaintiff failed to explain
why he could not have determined earlier that he should have pled causes of action for
breach of contract, common counts, and constructive fraud, particularly as each of
defendants‟ demurrers demonstrated the deficiencies of plaintiff‟s attempts to allege a
cause of action for fraud. There was no abuse of discretion in the trial court‟s denial of
plaintiff‟s section 473 motion. (See Robbins v. Los Angeles Unified School Dist., supra,
3 Cal.App.4th at p. 319 [trial court did not abuse its discretion by denying pro se
plaintiffs‟ section 473 motion based on a mistake in law because plaintiffs made no effort
to ascertain the validity of their erroneous belief the motion to dismiss was moot].)
       We recognize that plaintiff appeared without legal counsel, and brought his section
473 motion in propria persona. But “„we are unable to ignore rules of procedure just


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because we are aware of that fact. “When a litigant is appearing in propria persona, he is
entitled to the same, but no greater, consideration than other litigants and attorneys
[citations]. Further, the in propria persona litigant is held to the same restrictive rules of
procedure as an attorney [citation].” [Citations.]‟ (County of Orange v. Smith (2005)
132 Cal.App.4th 1434, 1444.) In other words, when a litigant accepts the risks of
proceeding without counsel, he or she is stuck with the outcome, and has no greater
opportunity to cast off an unfavorable judgment than he or she would if represented by
counsel.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267; see
also Hopkins & Carley v. Gens, supra, 200 Cal.App.4th at pp. 1413-1414 [“[o]ne who
voluntarily represents himself [or herself] „is not, for that reason, entitled to any more (or
less) consideration than a lawyer‟”].)
       We are unpersuaded by plaintiff‟s reliance on Tammen v. County of San Diego
(1967) 66 Cal.2d 468, at page 479 for his contrary argument that “„a mistake of law may
be excusable when made by a layman, but not when made by an attorney.‟” That
statement from Tammen is dictum, as the appellant in that case was represented by
counsel (id. at p. 479 [“Tammen was represented by counsel . . . and in determining
whether a person is entitled to relief the controlling factor is the reasonableness of the
misconception of the law under the circumstances of each particular case”]; People v.
Foster (1993) 14 Cal.App.4th 939, 956 [a court‟s comment on an uncontested issue is
dictum].) Moreover, as we note above, the trial court did not abuse its discretion in
concluding plaintiff failed to bear his burden of showing either that he was mistaken
about the law or that he could not have discovered his mistake (if any) at an earlier stage
of the proceedings.
       Finally, plaintiff has not shown the trial court was “[b]ias[ed] against a pro se
Plaintiff” because defense counsel “has made numerous mistakes of law and procedure
for which he has only received admonishments from the trial court.” We have reviewed
the record and find nothing to support such a claim. For his part, plaintiff offers no


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cogent analysis, supported by citations to the record and authority, of how the court was
biased against him. Accordingly, we deem his claim of bias forfeited. (Cal. Rules of
Court, rule 8.204(a)(1)(C); Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; City of
Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240.)
                                      DISPOSITION
       The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2).)



                                                     HOCH             , J.



We concur:



       BLEASE               , Acting P. J.



        MAURO               , J.




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