Osijo v. Sevigny, F049063 (Cal. App. 12/12/2006)

Page 1

ADEBOWALE O. OSIJO, Plaintiff and Appellant, v. ROGER A. SEVIGNY, as Insurance Commissioner etc., et al., Defendants and Respondents.

F049063

Court of Appeal of California, Fifth Appellate District

December 12, 2006

Appeal from a judgment of the Superior Court of Fresno County, No. 04-CECG-02628, Donald S. Black, Judge.

Adebowale O. Osijo, in pro. per., for Plaintiff and Appellant.

Greenan, Peffer, Sallander & Lally, James S. Greenan and Enoch Wang for Defendant and Respondent Roger A. Sevigny.

Burnham Brown, Robert M. Bodzin and Jennifer R. Thomas for Defendant and Respondent Burnham Brown.

Georgia Ann Michell-Langsam, for Defendants and Respondents Michell-Langsam and Georgia Ann Michell-Langsam.

OPINION

WISEMAN, J.

This is the latest in a series of lawsuits brought by plaintiff Adebowale O. Osijo in connection with a personal injury claim settled in 1991. Plaintiff became dissatisfied with the settlement agreement the day after it was executed and has sought its invalidation ever since. In this case, he sued Georgia Ann Michell-Langsam (Michell-Langsam), the attorney who represented him in the settlement, Burnham Brown, the law firm that represented the insurer funding the settlement, and the Insurance Commissioner of the State of New Hampshire (currently Roger A. Sevigny), who is the liquidator of that now-insolvent insurer. The trial court dismissed Burnham Brown on res judicata grounds; plaintiff had sued the firm unsuccessfully in previous actions. The court also dismissed the Insurance Commissioner. It relied on the doctrine of comity and took account of the liquidation proceedings in New Hampshire, in which an order abating other litigation had issued. Finally, as to Michell-Langsam, the court quashed service of summons and vacated a default entered against her, ruling that she had never been properly served. We perceive no error and affirm these dispositions.

FACTUAL AND PROCEDURAL HISTORIES

A longer account of the underlying facts may be found in our unpublished opinion affirming the judgment in one of plaintiff's previous cases, Osijo v. Home Insurance Company (Sept. 7, 2004, F042329, F043325), and the First District Court of Appeal's unpublished opinions in Osijo v. Housing Resources Management, Inc. (Jul. 16, 1992, A055045) and Osijo v. Ganong and Michell (Apr. 12, 1996, A068661). A shorter version will suffice for purposes of this appeal.

In 1988, plaintiff was working as a security guard at an apartment complex in Oakland. While on duty, he was shot multiple times by an assailant or assailants with semi-automatic rifles. Plaintiff sued the owners of the apartment complex and his employer, a security guard company. Among other things, his complaint alleged that the assailants had a confrontation with other security guards at the complex earlier in the day and that no one had warned plaintiff about them. The company was insolvent and uninsured, but the apartment complex owners, though also insolvent, had insurance. After a mediation held under the auspices of the Judicial Arbitration and Mediation Service (JAMS), the parties executed a settlement agreement on July 25, 1991, under which plaintiff and his counsel received $ 250,000. In these proceedings, plaintiff was represented by Michell-Langsam. The insurer, Home Insurance of America (Home), was represented by a law firm called Larson and Burnham, now known as Burnham Brown.

On July 26, 1991, the day after he signed the settlement agreement, plaintiff became dissatisfied and informed Michell-Langsam that he wanted to withdraw from it. The owners of the apartment complex filed a motion to enforce the agreement. The superior court heard plaintiff's objections and granted the motion to enforce in spite of them. The Court of Appeal affirmed, rejecting plaintiff's principal claim that the agreement was unenforceable because the JAMS mediator was not a current member of the State Bar.

In the succeeding years, plaintiff filed a series of lawsuits against Michell-Langsam, Burnham Brown, Home, and a variety of other parties. In the first of these, plaintiff recovered $ 12,500 against Michell-Langsam for withholding as fees more of the settlement proceeds than her retainer agreement permitted. There is no indication in the record that plaintiff recovered anything in any of the other cases. In a malicious prosecution action in Fresno County Superior Court (Michell v. Osijo (Super. Ct. Fresno County, 2004, No. 02 CE CG 00003)), Michell-Langsam obtained a judgment against plaintiff of more than $165,000 based on his actions in two previous cases.

Acting in propria persona, plaintiff filed the operative first amended complaint in this case on September 16, 2004. The first cause of action is titled "Void Judgment." It alleges that the order enforcing the settlement agreement is void because of an attorney conflict of interest. Home was both the insurer of the apartment complex and Michell-Langsam's malpractice insurer. Burnham Brown represented Home in plaintiff's original personal injury case and defended Michell-Langsam in plaintiff's malpractice suit against her. Plaintiff claims that Michell-Langsam connived with Burnham Brown to settle the personal injury case, receiving her contingent fee, and in return providing Burnham Brown with confidential information about plaintiff, presumably for use against him in the malpractice case (which, however, was not filed until later). According to the complaint, these allegations show that the superior court lacked jurisdiction to enforce the settlement agreement and that plaintiff was deprived of his due process rights under the Fourteenth Amendment.

The second cause of action is titled "Void Settlement Agreement." It asserts that the settlement agreement is unenforceable because of the conflict of interest alleged in the first cause of action. The third cause of action, "Void Subsequent Judgments," asserts that various judgments and orders of various courts are void because they gave effect to or declined to invalidate the allegedly void settlement agreement and the judgment enforcing it. The fourth cause of action, "Disgorgement of Misappropriated Funds," claims that Michell-Langsam should be compelled to return the contingent fee she collected when the personal injury case settled.

Burnham Brown demurred, arguing that plaintiff's effort to invalidate the settlement was barred by the doctrine of res judicata because it was an attempt to relitigate claims that had been decided against plaintiff in prior actions. The trial court agreed, sustained the demurrer without leave to amend, and entered a judgment of dismissal in favor of Burnham Brown.

The Insurance Commissioner moved to dismiss the action on several grounds, including an argument that, under the doctrine of comity, the court should dismiss plaintiff's claims because proceedings to liquidate the insolvent insurer had been instituted in a New Hampshire state court. These are the same liquidation proceedings we discussed in our opinion in Osijo v. Home Insurance Company, supra, F042329, F043325. The insurer was declared insolvent in an action in New Hampshire Superior Court. That court issued an order of liquidation on June 13, 2003, appointing the Insurance Commissioner as liquidator, abating all other actions and proceedings against the insurer and requiring all claims against it to be processed via the liquidation. (Osijo v. Home Insurance Company, supra, at p. 8.) The trial court granted the motion. It stated that it was relying on grounds of inconvenient forum, but in substance its order dismisses the action for reasons of comity. Subsequently, the court entered a judgment of dismissal in favor of the Insurance Commissioner.

Michell-Langsam moved to quash service of summons and to vacate a default that had been entered by the clerk. The trial court ruled that Michell-Langsam was never properly served and granted the motion.

Plaintiff appeals from these rulings. Additional factual and procedural details will be set forth in our discussion below.

DISCUSSION

I. Burnham Brown and res judicata

Plaintiff contends that the trial court erred in sustaining Burnham Brown's demurrer. We recently restated the pertinent standard of review:

"In an appeal from a judgment dismissing an action after a general demurrer is sustained without leave to amend, our Supreme Court has imposed the following standard of review. `The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]' [Citations.]" (Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603.)

We hold that the trial court was correct in sustaining the demurrer without leave to amend on res judicata grounds.

The doctrine of res judicata is divided into two parts. The first part, called claim preclusion (or res judicata), bars a party to an action in which final judgment has been obtained from bringing a new action against the same opposing party and seeking a recovery based on the same cause of action as that relied on in the first action. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897 (Mycogen).) "Cause of action" in this context does not mean "legal theory." It means "primary right," a concept we discuss further below. (Id....