F iled 2/22/16 Sui v. Pierce CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

YAN SUI,

Plaintiff and Appellant,

v.

STEPHEN D. PRICE et al.,

Defendants and Respondents. G0 51510

(Super. Ct. No. 30

- 201 1

- 00 528906 )

O P I N I O N

Appeal from a post

judgment order of the Superior Court of Orange County,
Craig L. Griffin, Judge . A ppeal dismissed

.

Yan Sui, in pro. per., for Plaintiff and Appellan t.
Bonne, Bridges, Mueller, O ’ Keefe & Nichols, Margaret M. Holm, Robert
A. Zermeno, Jr., and Allyson S. Ascher for Defendants and Respondents.

* * *2 Yan Sui appeals from the court ’ s order denying his motion for attorney fees
in his action against d e fe nd a nts Stephen D. Price, Michelle J. Matteau , and 2176 Pacific

Homeowners Association

. Because the court’s order is nonappealable, w e d i s m iss Sui’s
appeal

.

FACTS 1

In July 2011, Sui filed a petition for bankruptcy relief in the bankruptcy

court.

I n December 201 1

, Sui and Pei

- Y u Yang filed this action against

defendant s.

I n May 2012, defendants and Sui ’ s bankruptcy trustee entered into a
settlement agreement

, whereby defendants would pay $5,000 and release Sui ’ s bankrupt cy estate from any malicious prosecution claim s against Sui

, in exchange for the
dismissal with prejudice of Sui ’ s four pending lawsuits against them

, including the

instant action

. The settlement agreement also stated the parties would bear their own
attorney fees.

1 We grant defendants ’ request for judicial notice under Evidence Code sections 452, 453, and 459 as to the following exhibits to the request: Exhibit B (Yan Sui’s pe tition for bankruptcy relief), e xhibit E

- A (order of bankruptcy court approv ing the settlement agreement), exhib it E

- B (memorandum of Ninth Circuit Court of Appeal affirming the order of the Bankruptcy Appellate Panel dismissing as moot Yan Sui’s appeal from the or der approving the settlement), e xhibit J (notice o f ruling on attorney fees motion ), e xhibit K ( Sui v. 2176 Pacific Homeowners Assoc

. (Feb. 24, 2015, G049822) [ nonpub. opn.] ). The request for judicial notice as to the remaining exhibits is denied as not relevant to the reason for our dismissal of the appeal

.

We deny consideration of Sui’s “submission of supplemental facts in support of the argument in appeal” and the request for judicial notice in support thereof as not relevant to the reason for our dismissal of the appeal.3 In August 2012, the bankruptcy court approved the settlement agreement
and authorized the trustee to carry out the terms of the compromise.

In July 2013, the court stayed the action pending the outcome of Sui ’ s bankruptcy appeal

.

On De cember 1 7 , 201 4

, Sui filed a mo tion for at torney fees, alleging he
was the prevailing party in the action “ [b]ecause of the settlement between ” h is
bankruptcy trustee and defendants , and his purported recovery of $1,250 from

defendants.

T he court denied S ui ’ s motion for attorney fees for five independent
reasons: (1) the “ motion cannot be heard because it constitutes a core proceeding
[within] the exclusive jurisdiction of the bankruptcy court, ” (2) “ this action [is] still
pending in the literal sense

— there has been no final determination as to who the
prevailing party might be, ” (3) “ to the extent plaintiffs seek fees as the prevailing party
on a writing (the CC&Rs), Civil Code [section] 1717 prohibits any such award when the
action was resolved by way of settlement

— which occurred by virtue of the settlement
agreement reached between defendants and the Chapter 7 trustee

. . . . That agreement
also specifies that the parties will bear their own fees and costs

, ” (4) “ plaintiffs are self

represented and have provided no evidence of any attorney fees actually incurred, ” and

(5) “ since this litigation is part of plaintiff ’ s Chapter 7 bankruptcy, the asset (this case and
any motion associated therewith) belongs exclusively to the trustee. ”4 DISCUSSION

Because the instant action is still pending, the court ’ s denial of Sui ’ s attorney fees motion is not appealable . We therefore lack jurisdiction and must dismiss
the appeal. ( Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [“The existence of an
appealable judgment is a jurisdictional prerequisite to an appeal”].) There has been no
final judgment in this case ; thus, t he order in question is not a postjudgment order. (See

Code Civ. Proc., § 904.1, subds. (a)(1) & (2).) Because we lack jurisdiction, we do not
address other arguments.

Sui argues his appeal is not premature, rely ing o n Code of Civil Procedure

section 1294 2 and De La Cuesta v. Benham (2011) 193 Cal.App.4th 1287 . Code of Civil

Procedure section 1294

, relat ing to appealable orders in arbitration proceedings

, is
inapplicable here. De La Cuesta was an appeal from a postjudgment order concerning a
party’s motion for attorney fees under Civil Code section 1717 . ( De La Cuesta

, at

p p. 1290

- 1291 .) In no way does De La Cuesta support Sui’s contention his appeal is
warranted “before the case comes to a final judgment” and that his “mo tion is
interlocutory in nature

. . . . ”

Sui ’ s motion in the trial court was frivolous. His appeal is equally

frivolous. “ California courts have the inherent power to di smiss frivolous appeals. ” ( In
re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516.) We could have well

exercise d that inherent power and dismiss ed Sui ’ s appeal on that basis as well

.

2 His actual cite is to Code of Civil Procedure section “ 1294.20.” Code of Civil Procedure section 1294.20 does not exist.5 DISPOSITION

The appeal is dismiss ed. Defendants shall recover their costs incurred on
appeal.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.