Date: 09-03-2018

Case Style: Novelette Mack v. All Counties Trustee Services, Inc.

Case Number: B280650

Judge: Chaney

Court: California Court of Appeals Second Appellate District Division One on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Jeffrey Allen Lewiston and Cliff Dean Schneider

Defendant's Attorney: No appearance for Defendants and Respondents

Description: Novelette Mack acquired property located at 4601 West
Slauson Avenue in 2004. Through a series of transactions that
Mack contends were fraudulent and a series of lawsuits Mack
contends resulted in void judgments, the title to the property no
longer rests with Mack.
This appeal is from a December 22, 2016 order denying a
motion to vacate an earlier judgment under Code of Civil
Procedure section 473, subdivision (d). That earlier judgment is a
June 22, 2016 judgment after demurrers to Mack’s first amended
complaint against Melvin Hoffman, Wayne Abb, and two
companies that Hoffman allegedly owned, Creative Investment,
Inc., and All Counties Trustee Services, Inc.—all of whom Mack
contends were involved in the fraudulent transactions and helped
secure allegedly void judgments—and a motion to strike a second
amended complaint against the same parties.1

1 The January 20, 2017 notice of appeal was nominally filed
from the June 2, 2016 order sustaining the demurrers to the first
amended complaint and motion to strike the second amended
complaint. That notice of appeal would have been untimely.
(Cal. Rules of Court, rules 8.104(a), 8.106(c), (e); ECC Const., Inc.
v. Oak Park Calabasas Homeowners Ass’n (2004) 122 Cal.App.4th
994, 998.) Counsel retained after we issued an order to show
cause regarding Mack’s vexatious litigant status argued that we
should deem the appeal to be from a December 22, 2016 order
denying a motion for reconsideration of the demurrers and
motion to strike or, in the alternative, a motion to vacate the
resulting June 22, 2016 judgment. An order denying a motion for
reconsideration is not independently appealable. (Association for
Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166
Cal.App.4th 1625, 1633; Branner v. Regents of University of
California (2009) 175 Cal.App.4th 1043, 1050.) We therefore lack
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As we explain, the record before us discloses no basis upon
which we could review the validity of either of the judgments
Mack contends is void. We therefore affirm the trial court’s
December 22, 2016 order denying Mack’s motion to vacate the
June 22, 2016 judgment.
BACKGROUND
The record in this case is incomplete, at best. Although the
judgment Mack asks us to declare void was after a demurrer to
Mack’s first amended complaint, the record lacks a copy of the
first amended complaint. Mack asks us to make decisions related
to a decade of litigation and at least three superior court cases.
But to do so, she asks us to rely on only the documents attached
to her second amended complaint (neither operative nor filed
with permission) without reference to any foundational
documents that would help us understand the procedural or
factual contexts in which those decisions were made. There were
no requests for judicial notice under Evidence Code section 452 of
pleadings or orders from the prior lawsuits. Additionally, we
received no brief from respondents that would help us
contextualize the few details we can collect from the record.
What we were able to glean, we gathered largely from Mack’s
second amended complaint and the trial court docket.
A. Factual Background
In August 2002, Traci Green, the owner of companies called
Ma’mees and VII Series, Inc., acquired property located at 4601
West Slauson Avenue by quitclaim deed. On November 25, 2004,
Ma’mee’s transferred title of the property to Mack, also by
quitclaim. Mack recorded her quitclaim deed on April 22, 2005,

jurisdiction to review the trial court’s December 22, 2016 order to
the extent it is an order denying a motion for reconsideration.
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the same day VII Series obtained a loan and secured it with a
deed of trust on the Slauson property in favor of Melvin
Hoffman’s company, Creative Investment.
In June 2005, Mack filed suit against Creative Investment,
Green, Ma’Mees, and Series VII to quiet title in the Slauson
property and for fraud. On March 30, 2007, the trial court
entered judgment for Mack against Green, Ma’Mees, and Series
VII for $190,429 on her fraud action and quieted title in Mack
subject to two encumbrances.
The judgment was either modified or set aside and
reentered in November 2007 to reflect an $82,914 judgment on
Mack’s fraud action against Green, Ma’Mees, and Series VII.2
While that litigation was pending, Melvin Hoffman
allegedly initiated a “fraudulent foreclosure . . . on behalf of
Creative Investment through . . . All Counties Trustee Services”
(All Counties) based on the April 22, 2005 VII Series loan and
sold the property in a trustee’s sale. In March 2012, the trial
court awarded a quiet title judgment to third parties that
acquired the property in that trustee’s sale. The record is silent
about whether Mack appealed the judgment in that quiet title
action. As a result, Mack no longer holds title to the property.
B. Procedural Background
Mack initiated this action in November 2014. The trial
court docket indicates that the court sustained demurrers and

2 There are no documents from that litigation in the record
before us. The two judgments from that action were attached to
Mack’s second amended complaint as exhibits. Language in the
second judgment expressly incorporates a trial court
memorandum and order laying out the case’s procedural
background. That memorandum and order, however, was not
included in the record here.
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granted motions to strike the original complaint. In July 2015,
Mack filed a first amended complaint, alleging causes of action
for promissory estoppel, wrongful foreclosure, conversion, breach
of contract, fraud, and unfair business practices. All Counties,
Creative Investment, Hoffman, and Abb demurred to the first
amended complaint.
Before the pending demurrers could be heard, and without
leave of court, Mack filed a second amended complaint on
December 7, 2015. On April 1, 2016, the same defendants moved
to strike the second amended complaint on the ground that it was
filed without leave of court.
The trial court heard the defendants’ demurrers to the first
amended complaint and motion to strike the second amended
complaint on June 2, 2016. The trial court sustained the
demurrers to the first amended complaint without leave to
amend and granted the motion to strike the second amended
complaint.
On June 14, 2016, Mack filed a “motion for reconsideration,
or in the alternative, motion to set aside judgment” based on the
June 2, 2016 order. On June 22, 2016, the trial court entered a
judgment of dismissal based on its June 2 order. The trial court
denied the motion for reconsideration on December 22, 2016.
DISCUSSION
A. Vexatious Litigant Issues
Mack filed her notice of appeal in propria persona. Because
Mack has been found to be a vexatious litigant within the
meaning of Code of Civil Procedure section 391.7, subdivision (a),
we stayed the appeal and ordered Mack to show “that the
litigation has merit and has not been taken for purposes of
harassment or delay.” (Code Civ. Proc., § 391.7, subd. (b).)
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Instead, Mack retained counsel and substituted retained counsel
for herself on March 2, 2017. On June 20, 2017, we discharged
the order to show cause “[i]n light of retention of counsel” and
reset the briefing schedule.
On September 8, 2017—more than a month before the
record on appeal was filed—Mack’s retained counsel filed a
motion to withdraw, which we denied. In our order, we pointed
out that “[c]ounsel appeared in this matter while an order to
show cause was pending in light of [Mack’s] status as a vexatious
litigant; the order to show cause was discharged because [Mack]
had retained counsel.” We also stated that we would “allow
counsel to withdraw if new counsel agrees to take over the
representation.”
On June 29, 2018, we notified the parties that the case was
set for argument on July 24, 2018, and inviting a request for or
waiver of oral argument. On July 9, 2018, we received a notice
that Mack was substituting herself back into the litigation in
propria persona, and, “based on [the] substitution of attorney
filed concurrently herewith,” that she would be appearing in
propria persona to argue her appeal in spite of her status as a
vexatious litigant and our previous orders.
Based on Mack’s in propria persona substitution, we
removed the case from the argument calendar. On July 30, 2018,
we issued an order to show cause why the case should not be
dismissed pursuant to Code of Civil Procedure section 391.3,
subdivision (b) and the court’s inherent power to control its
proceedings in the interest of the prompt, fair, and orderly
administration of justice. (See Cal. Const., art. VI, § 1; Code Civ.
Proc., § 128, subd. (a); Kinney v. Clark (2017) 12 Cal.App.5th 724,
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740.) We received no responses from any party to the order to
show cause.
On August 10, 2018, after the deadline to respond to our
order to show cause had expired, we received a substitution of
attorney substituting counsel in the place of Mack’s in propria
persona representation.
Because Mack has retained counsel to represent her in the
appeal, the order to show cause is discharged.
B. Mack’s Motion to Vacate the June 22, 2016 Judgment
Mack based her motion to vacate on Code of Civil
Procedure section 473, subdivision (d), which states that the trial
court “may, on motion of either party after notice to the other
party, set aside any void judgment or order.” The trial court here
declined to set aside the June 22, 2016 judgment. Because “the
foundational question” on a motion to vacate under section 473,
subdivision (d) is “whether the dismissals were in some . . .
respect void or voidable,” our review of the trial court’s order is de
novo. (Talley v. Valuation Counselors Group, Inc. (2010) 191
Cal.App.4th 132, 146.)
Mack contends the June 22, 2016 judgment is void because
the March 2012 quiet title judgment (based on the “fraudulent”
trustee’s sale) is void. Mack contends the March 2012 quiet title
judgment is void because she argues it conflicts with the trial
court’s November 2007 judgment. The trial court’s December
2016 order denying Mack’s motion to vacate the June 2016
judgment says that Mack “failed to establish that the judgment is
void or that it should be set aside for any other reason.”
The record contains nothing that would establish that
either the June 22, 2016 judgment or the March 2012 judgment
is void on its face. Other than in very broad terms without any
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context, Mack’s brief does not explain why she believes any
particular judgment is void. Neither the briefing nor the record
establish that any judgment is void.
“ ‘It is the duty of an appellant to provide an adequate
record to the court establishing error. Failure to provide an
adequate record on an issue requires that the issue be resolved
against appellant.’ ” (Hotels Nevada v. L.A. Pacific Center, Inc.
(2012) 203 Cal.App.4th 336, 348.) Because we have no record
upon which we might review the trial court’s December 2016
order denying Mack’s motion to vacate the June 2016 judgment,
we affirm.

Outcome: The trial court’s order denying Mack’s motion to vacate the June 2016 judgment is affirmed. Respondent has made no appearance, and therefore no costs are to be awarded on appeal.

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