1

Filed 1/20/15 Hyon v. Shopoff CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JUNHO HYON,

Plaintiff and Appellant,

v.

JEFFREY W. SHOPOFF et al.,

Defendants and Respondents.

[And seven other cases.*]

 A138623

 (Solano County 

 Super. Ct. No. FCS039786)

These eight consolidated appeals have their origin in a dispute that began in the 

early 1990’s concerning a sand-mining operation on an island in the Sacramento River.1 

The appellant in these appeals, Junho Hyon, ultimately secured a multi-million dollar 

verdict and agreed to a global settlement of the original dispute, but the division of the 

settlement proceeds led to further, extensive litigation that had a conclusion 

unsatisfactory to Hyon. Years after the dispute concluded, Hyon, acting in propria 

persona (pro. per.), filed the action giving rise to these appeals against many of the parties 

 

*

Junho Hyon v. Hinshaw & Culbertson LLP et al. (No. A138832); Junho Hyon v. 

Tom A. Nunziato (No. A138833); Junho Hyon v. Donald G. Savage (No. A138834); 

Junho Hyon v. Philip C. Putnam (No. A139565); Junho Hyon v. Stein & Lubin et al. (No. 

A140342); Junho Hyon v. Shopoff Group et al. (No. A142124); Junho Hyon v. Eric 

Selten (No. A142199).

1We previously consolidated six of the appeals filed by Hyon. On the court’s own 

motion, we now consolidate for purposes of decision the two remaining appeals filed by 

Hyon that arise out of the same trial court action (Nos. A142124 and A142199). 
2

and attorneys involved in the prior litigation. He claimed he had discovered fraudulent 

conduct that justified revisiting issues decided in prior litigation. These appeals are from 

judgments of dismissal premised largely on grounds that Hyon’s claims are time barred 

and are precluded as a result of the application of res judicata principles. Because Hyon 

has offered no cognizable legal argument that would justify reversing the challenged trial 

court orders, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

When we review an order sustaining a demurrer, we ordinarily take the factual 

background from the properly pleaded material allegations of the operative complaint. 

(Estate of Dito (2011) 198 Cal.App.4th 791, 795.) However, when one of the grounds for 

the demurrer is the res judicata effect of prior litigation between the parties, as in this 

case, we must necessarily consider the actions that are claimed to have preclusive effect. 

(Ibid.) Therefore, we begin by summarizing the prior litigation between the parties.2

Decker Island Litigation

Decker Island is located in the Sacramento River in Solano County. In the early 

1990’s, Hyon and a business partner, Laurence Colangelo, agreed to find individuals 

interested in investing in a sand-mining operation on Decker Island. Under the 

agreement with the owner of Decker Island, Hyon and Colangelo were to receive a 

finder’s fee for locating investors. Hyon sought to find investors in Japan. Although the 

pair found willing investors, the owner of Decker Island failed to pay the finder’s fee and 

began dealing directly with investors located by Hyon and Colangelo. 

Hyon and Colangelo commenced what we refer to as the “Decker Island 

litigation” in 1993 by filing suit in Solano County against the owner of Decker Island. 

Their case was dismissed at the demurrer stage although they were successful on appeal 

 

2Our summary is intended simply to give a general overview of the prior litigation. 

For example, while we refer to various actions and cross-actions, we do not detail all the 

complaints that were filed or the numerous iterations of those pleadings. A more 

complete recitation of the lengthy history of this matter can be found in Hyon v. Selten 

(2007) 152 Cal.App.4th 463 (Selten) and Shopoff & Cavallo LLP v. Hyon (2008) 

167 Cal.App.4th 1489 (Shopoff & Cavallo).
3

in overturning the trial court’s judgment. Dissatisfied with their legal representation, 

Hyon and Colangelo engaged the National Legal Network to serve as a litigation 

consultant and provide various services, including locating and managing legal counsel. 

The president of National Legal Network, Eric Selten, was not an attorney. (See 

generally Hyon v. Selten, supra, 152 Cal.App.4th at p. 465.)

Selten’s company was successful in retaining counsel to represent Hyon and 

Colangelo in the Decker Island litigation. (Selten, supra, 152 Cal.App.4th at p. 466.) 

Following a trial, a jury returned a $42 million verdict in favor of Hyon and Colangelo, 

but the trial court entered a judgment notwithstanding the verdict. Hyon and Colangelo 

again prevailed on appeal and a new trial was ordered. (Ibid.)

Hyon and Colangelo retained Jeffrey Shopoff to retry the case. (Selten, supra, 

152 Cal.App.4th at p. 466.) On retrial, Shopoff succeeded in securing a $7.6 million 

verdict for Hyon and Colangelo in the Decker Island litigation. (Shopoff & Cavallo, 

supra, 167 Cal.App.4th at p. 1498.)

Faced with obstacles to enforcing the $7.6 million judgment, Shopoff negotiated a 

global settlement agreement that finally resolved the Decker Island litigation. (Shopoff & 

Cavallo, supra, 167 Cal.App.4th at p. 1499.) Under the global settlement agreement, 

Hyon and Colangelo received assets that included ownership of Decker Island 

(encumbered by a $2.6 million deed of trust), the common stock of two sand mining 

companies, mining equipment, and other personal and real property as well as cash (the 

“settlement proceeds”). (Ibid.) Shopoff acted as trustee over the settlement proceeds 

pursuant to an agreement between Hyon and Colangelo. (Shopoff & Cavallo, supra, 

167 Cal.App.4th at pp. 1499–1500.)

The Interpleader Litigation

Because the settlement proceeds from the Decker Island litigation consisted 

primarily of assets other than cash, the proper allocation of the settlement proceeds 

proved problematic. Selten and various attorneys asserted contingent fee interests in the 

settlement proceeds from the Decker Island litigation. (Shopoff & Cavallo, supra, 
4

167 Cal.App.4th at p. 1499.) In addition, Hyon, Colangelo, and Selten disputed their 

relative ownership interests in the settlement proceeds. (Id. at pp. 1500–1501.)

In September 2004, Shopoff, in his capacity of trustee of the settlement proceeds, 

filed a complaint in interpleader in the Superior Court for the City and County of San 

Francisco (the “interpleader litigation”). (Shopoff & Cavallo, supra, 167 Cal.App.4th at 

p. 1501.) Shopoff alleged there was an impasse among the claimants to the settlement 

proceeds. The complaint sought a determination of the shares of the settlement proceeds 

to which each claimant was entitled, the appointment of a receiver over the settlement 

proceeds, and an order discharging the receiver from all liability to the claimants. (Id. at 

p. 1501.) Hyon filed a cross-complaint against Shopoff for legal malpractice, conversion, 

breach of fiduciary duties, misappropriation of assets, and constructive fraud. (Id. at 

p. 1502.)

The trial court appointed a receiver with full powers to manage the settlement 

proceeds and maximize their value. (Shopoff & Cavallo, supra, 167 Cal.App.4th at 

p. 1504.) Hyon appealed the court’s order. In an unpublished opinion, Division One of 

this court affirmed the order appointing a receiver. (Shopoff v. Cavallo LLP v. Hyon 

(June 15, 2006, A111396) [nonpub. opn.].)3

The trial court issued a statement of decision in May 2006 resolving the various 

claims to the settlement proceeds. (Shopoff & Cavallo, supra, 167 Cal.App.4th at 

p. 1504.) The court subsequently approved the receiver’s final report, terminated the 

receivership, discharged the receiver, distributed the settlement proceeds, and ordered 

Hyon to pay attorney fees and costs. (Id. at pp. 1504–1505.) Hyon appealed. In Shopoff 

& Cavallo, supra, 167 Cal.App.4th 1489, Division One of this court largely affirmed the 

trial court’s orders in the interpleader litigation but reversed and remanded with respect to 

the amount of compensation owing to Selten. (Id. at p. 1526.) Among other things, the 

appellate court affirmed orders sustaining demurrers to Hyon’s cross-complaint. (Id. at 

pp. 1506–1512.)

 

3An unpublished opinion may be cited or relied upon if it is relevant under the 

doctrine of res judicata. (See Cal. Rules of Court, rule 8.1115(b)(1).)
5

The L.A. Litigation

Roughly one week after Shopoff filed the interpleader action in San Francisco, 

Hyon filed his own lawsuit in Los Angeles County against Selten, Colangelo, and others 

for fraud and breach of fiduciary duty, among other causes of action (the “L.A.

litigation”). (See Shopoff & Cavallo, supra, 167 Cal.App.4th at p. 1501.) In the L.A.

litigation, Hyon sought to enforce a 2004 agreement with Colangelo, obtain a judicial 

determination that a three-way agreement with Colangelo and Selten was invalid, and 

distribute the settlement proceeds from the Decker Island litigation. (Ibid.) The L.A. 

litigation proceeded on a parallel and sometimes overlapping track with the interpleader 

litigation in San Francisco. (See Shopoff & Cavallo, supra, 167 Cal.App.4th at pp. 1501–

1505.)

Selten filed a cross-complaint against Hyon and others in the L.A. litigation. 

(Selten, supra, 152 Cal.App.4th at p. 466.) Hyon moved for summary judgment on 

Selten’s cross-complaint on the ground the 1997 contract with Selten’s company, 

National Legal Network, was illegal and unenforceable because the contract called for 

Selten, who was not an attorney, to engage in the unauthorized practice of law and to 

provide unlawful attorney referral services. (Ibid.) The trial court granted Hyon’s 

summary judgment motion on the ground the contract with Selten called for unlawful 

attorney referral services. (Id. at p. 467.) Hyon’s legal claims were tried before a jury, 

while the remaining equitable claims were submitted to the court. Hyon recovered 

nothing in a judgment entered in November 2005. Following entry of the judgment, 

Selten appealed the order granting Hyon’s summary judgment motion. (Ibid.)

In Selten, supra, 152 Cal.App.4th 463, Division One of the Second District Court 

of Appeal reversed in part the trial court’s summary judgment ruling in favor of Hyon. 

(Id. at p. 474.) The appellate court agreed with the trial court that the 1997 contract 

between Hyon, Colangelo, and National Legal Network was illegal and unenforceable 

because it constituted an unlawful attorney referral in violation of Business and 

Professions Code section 6155. (Selten, supra, at pp. 468–471.) Nevertheless, the 

appellate court concluded that Selten should have been permitted to pursue in quantum 
6

meruit the reasonable value of any lawful services provided to Hyon. (Id. at pp. 471–

472.)

On remand, the trial court conducted a bench trial on Selten’s quantum meruit 

claim and entered judgment in favor of Selten for $736,809.13. Hyon appealed in pro. 

per. In an unpublished opinion filed in April 2011, Division One of the Second District 

Court of Appeal affirmed the trial court’s order. (Hyon v. Selten (April 29, 2011, 

B218942) [nonpub. opn.].) 

The Original Complaint

On May 7, 2012, Hyon, acting in pro. per, filed the complaint at issue in this 

appeal in the Solano County Superior Court. The 60-page complaint names over 50 

defendants, including Shopoff, Selten, Colangelo, and virtually everyone else who came 

into contact with Hyon during the course of the interpleader litigation and the L.A. 

litigation. The complaint includes causes of action for breach of fiduciary duty, breach of 

contract, constructive fraud, fraud, conspiracy, negligence, and breach of the covenant of 

good faith and fair dealing. 

The rambling allegations of the complaint revolve around Hyon’s dissatisfaction 

with the outcome of the Decker Island litigation and the lawsuits that followed it. He 

claims his “life was destroyed” and that he has been left practically penniless. He alleges 

that Decker Island was sold for $6.6 million in 2007 and that most of the sale proceeds

were distributed fraudulently and illegally to various individuals and firms that had an 

interest in the settlement proceeds from the global settlement. Among other things, Hyon 

alleges the following—that he was misled into agreeing to the global settlement of the 

Decker Island litigation, that various parties fabricated allegations in pleadings filed in 

previous actions, that Shopoff filed a fraudulent notice of a trustee’s sale under the 

supervision of the trial court judge in the interpleader litigation, that the trial court judge 

in the interpleader action appointed a receiver knowing that the allegations supporting the 

appointment were false, that Selten’s quantum meruit claim in the L.A. litigation was 

“bogus,” and that he “believes” Shopoff embezzled proceeds from the sale of Decker 

Island. One of the themes underlying the complaint is Hyon’s belief that Decker Island 
7

was purchased by affiliates of Shopoff and that the mining operation is now being run by 

“front men” for Shopoff. 

The explanation for Hyon’s filing of the complaint long after the conclusion of the 

interpleader litigation rests in his allegation that, in July 2010, he discovered “17 sets of 

fraudulent documents” filed and recorded in Solano County under the supervision of the 

trial judge in the interpleader action. Although he does not explain why the 17 sets of 

documents are fraudulent, Hyon alleges that 7 of the 17 sets of documents “contain bogus 

notarizations” by the United States Consulate General in Japan.4 He further alleges he 

was advised by “2 different lawyers” to sue the defendants named in the complaint within 

two years of his discovery of the purported fraud. 

A number of defendants demurred or filed other dispositive motions in response to 

the complaint and secured judgments of dismissal. We describe the individual judgments 

associated with each appeal below. 

The First Amended Complaint

After the trial court sustained various defendants’ demurrers to the complaint 

without leave to amend, Hyon filed a first amended complaint on April 22, 2013, alleging 

causes of action for fraud and conspiracy. Hyon named 17 defendants, including some of 

the same defendants who had succeeded in obtaining orders sustaining demurrers to the 

original complaint without leave to amend. The first amended complaint is considerably 

shorter than the original complaint and omits most of the lengthy history of the dispute. 

In an apparent acknowledgment that res judicata principles precluded his attempt to 

relitigate issues decided in the interpleader litigation, Hyon purports to base his first 

amended complaint solely on his discovery in June 2010 of allegedly wrongful conduct 

by defendants in recording 17 sets of documents. He alleges he would have prevailed in 

the interpleader litigation if the trial court had been aware of the purported wrongful 

 

4

It appears from the record that some of the property interests transferred as a 

result of the global settlement or during the course of the interpleader litigation were 

owned by Japanese companies or persons residing in Japan. Hence, the notarizations 

attached to the legal documents transferring ownership bore the seal of the United States 

Consulate General in Japan. 
8

conduct. Notably, like the original complaint, the first amended complaint contains little 

or no explanation as to why the 17 sets of documents are fraudulent, other than to 

mention that some of them contained “bogus notarizations” by the Consulate General of 

the United States in Japan. Hyon also added an allegation that he had never seen a deed 

of trust that was recorded in 2005, and he claimed his signature and the notarization on 

the deed were forged. 

Various defendants secured judgments of dismissal following the filing of the first 

amended complaint. We briefly describe the relevant facts associated with each appeal 

below.

A138623—Hyon v. Shopoff

In appeal number A138623, the respondents are defendants Shopoff and the law 

firm with which he is associated, Shopoff & Cavallo LLP. As explained above, Shopoff 

represented Hyon in a retrial of the Decker Island litigation, and he pursued the 

interpleader litigation that resulted in a division of the settlement proceeds from the 

Decker Island litigation. Although the allegations of the complaint are far from clear, 

Hyon seems to believe that Shopoff engineered a fraudulent sale of Decker Island at a 

discounted price to “front men” working for Shopoff, despite the fact the sale was 

overseen by a court-appointed receiver, whose actions were upheld in the trial court and 

on appeal.

In an order dated March 27, 2013, the trial court sustained without leave to amend 

a demurrer filed by Shopoff and Shopoff & Cavallo LLP. The court reasoned that all of 

Hyon’s claims are barred by res judicata. The court stated: “Any claims [Hyon] had, to 

prevent the court’s issuance of a directive to sell [Decker Island], to challenge the manner 

of sale, to investigate the proposed buyer, or to achieve a higher recovery of proceeds 

from that sale, could and should have been adjudicated in that interpleader action, the 

later appeal affirming that court’s actions, and the still-later petition for review filed by 

[Hyon] with the California Supreme Court.” The court also reasoned that Hyon’s action 

was barred by applicable statutes of limitation, because the property sale occurred in 

2007 and the complaint was not filed until May 2012, without any valid basis offered for 
9

tolling the statutes of limitations or for the delayed discovery of the purported fraud, 

which was not pleaded with specificity in any event. 

Hyon filed a notice of appeal from the court’s order. A judgment was

subsequently entered and served on Hyon. Although the appeal is technically premature 

and taken from a nonappealable order sustaining a demurrer without leave to amend (see 

Estate of Dito, supra, 198 Cal.App.4th at p. 799), we will treat the appeal as having been 

taken from the subsequently entered judgment.5 (Cal. Rules of Court, rule 8.104(d).) 

A138832—Hyon v. Hinshaw & Culbertson LLP

The defendants and respondents in appeal number A138832 are the law firm of 

Hinshaw & Culbertson LLP and one of the attorneys at that firm, Ronald E. Mallen 

(collectively, Hinshaw). Hinshaw represented Shopoff in the interpleader litigation. (See 

Shopoff & Cavallo, supra, 167 Cal.App.4th at p. 1496.)

In October 2012, Hinshaw filed a motion to strike Hyon’s complaint as a strategic 

lawsuit against public participation (SLAPP) pursuant to Code of Civil Procedure 

section 425.16—commonly referred to as the anti-SLAPP statute. The trial court granted 

the anti-SLAPP motion in an order filed in March 2013. The court concluded the 

challenged acts arose from protected petitioning activity and that Hyon had failed to 

establish that his complaint was supported by a prima facie showing of facts to support 

the relief requested. In concluding that Hyon had failed to meet his burden, the court 

listed the following reasons: Hinshaw’s actions in the prior action were protected by the 

litigation privilege; Hyon failed to comply with Civil Code section 1714.10, 

subdivision (a) in securing a prefiling order before pursuing a conspiracy claim against 

attorneys who had represented an adversary in prior litigation; all the claims are barred by 

res judicata; and all the claims are barred by applicable statutes of limitation. 

Hyon appealed from the order granting the anti-SLAPP motion. The court 

subsequently entered a judgment dismissing the complaint and awarding Hinshaw 

 

5

The same issue of a technically premature appeal arises in a number of these 

consolidated appeals. We shall treat the appeals as having been taken from the 

subsequently entered judgments in each of the affected appeals.
10

attorney fees and costs in an amount to be determined by a separate motion seeking fees 

and costs. 

A138833—Hyon v. Nunziato

Tom A. Nunziato is the defendant and respondent in appeal number A138833. 

Nunziato is an attorney who represented Selten, Colangelo, and others in the interpleader 

litigation and the L.A. litigation. (See Shopoff & Cavallo, supra, 167 Cal.App.4th at 

p. 1496; Selten, supra, 152 Cal.App.4th at p. 464.) Nunziato never represented Hyon. 

Nunziato demurred to the complaint in October 2012. The court sustained the 

demurrer without leave to amend in March 2013. In its order sustaining the demurrer, the 

court reasoned that Hyon’s claims against Nunziato were barred by the litigation 

privilege, that Hyon had failed to comply with the prefiling requirement of Civil Code 

section 1714.10, subdivision (a), and that his claims were barred under principles of res 

judicata.

Hyon appealed from the order sustaining the demurrer without leave to amend. It 

does not appear from the record before this court that a judgment of dismissal was ever 

entered. Where, as here, it is apparent “the court intended to entirely dispose of the 

action, we are empowered to amend the order to make it an appealable judgment of 

dismissal.” (Estate of Dito, supra, 198 Cal.App.4th at pp. 799–800.) Accordingly, we 

deem the challenged order to be an appealable judgment (Id. at p. 800.)

A138834—Hyon v. Savage

Donald G. Savage, the defendant and respondent in appeal number A138834, was 

court-appointed receiver in the interpleader litigation who oversaw the disposition of the 

settlement proceeds from the Decker Island litigation. 

Savage demurred to the complaint in January 2013. In support of his demurrer, 

Savage argued that Hyon’s claims are barred by res judicata, that Hyon failed to obtain 

leave of court pursuant to Code of Civil Procedure section 568 before suing a courtappointed receiver, that Hyon cannot pursue claims individually against the receiver, and 

that all of Hyon’s claims are time barred. 
11

After the court sustained the demurrer without leave to amend and entered a 

judgment of dismissal in favor of Savage, Hyon filed a timely appeal. 

A139565—Hyon v. Putnam

In appeal number A139565, the defendants and respondents are Philip C. Putnam, 

the law firm of Monteleone & McRory LLP (Monteleone), and Elizabeth HagianakesHill. Putnam is an attorney and partner at Monteleone, which provided legal services to 

Hyon beginning in 2003. Hagianakes-Hill was Putnam’s secretary and appears to have 

notarized at least one of the documents Hyon claims are fraudulent. Hyon sued 

Monteleone and Putnam in the L.A. litigation for fraud and legal malpractice, among 

other causes of action. Putnam and Monteleone settled the lawsuit with Hyon in 2005. 

Monteleone, Putnam, and Hagianakes-Hill each filed demurrers to the first 

amended complaint in May 2013. In an order filed in August 2013, the trial court 

sustained the demurrers without leave to amend. The court cited the fact that Hyon had 

released his claims against Putnam and Monteleone in connection with a settlement in the 

L.A. Litigation. The court also noted that all the claims are barred by applicable statutes 

of limitation as well as principles of res judicata. With regard to the fraud claim, the 

court concluded the three-year statute of limitations had run and that Hyon had not 

explained why he was unable to discover the purported fraud earlier than 2010 given that 

the allegedly fraudulent documents were an integral part of the record in the interpleader 

litigation. 

Hyon filed a timely appeal on the same date a judgment of dismissal was entered. 

A140342—Hyon v. Stein & Lubin LLP

The defendants and respondents in appeal number A140342 are the law firm of 

Stein & Lubin LLP and two attorneys employed by that firm, Theodore Griffinger and 

Michael Donner (collectively, Stein & Lubin). Stein & Lubin represented the courtappointed receiver, Donald Savage, in the interpleader litigation. 

Stein & Lubin filed a demurrer to the first amended complaint in August 2013, 

arguing that Hyon’s claims are time barred and are barred by res judicata. Stein & Lubin 

also contended the claims are barred by the litigation privilege, that Hyon failed to obtain 
12

leave of court to sue the receiver’s counsel pursuant to Code of Civil Procedure 

section 568, and that Hyon failed to obtain leave of court to sue Stein & Lubin under 

Civil Code section 1714.10. 

The trial court sustained the demurrer without leave to amend in November 2013. 

Hyon appealed from the order sustaining the demurrer, and a judgment of dismissal was 

entered shortly thereafter. 

A142124—Hyon v. Shopoff Group

In appeal number A142124, the defendants and respondents are the Shopoff 

Group, Laurence Colangelo, Alfred Stedman, and Ronald Johnson. As discussed above, 

Colangelo was Hyon’s original business partner in the business venture that led to the 

Decker Island litigation. Stedman and Johnson are lawyers who represented parties in the 

prior litigation. Shopoff Group is a real estate investment firm in which Shopoff had 

served as a director. Hyon expressed the belief that Shopoff Group was somehow behind 

the operation of the sand-mining operation on Decker Island after it was sold by the 

receiver in the interpleader litigation. 

At Hyon’s request, the trial court clerk entered defaults in April 2013 against 

Shopoff Group, Colangelo, Stedman, and Johnson on the original complaint. At the time, 

Hyon did not seek default judgments and did not give notice of the amount of any 

damages sought. At around the same time Hyon sought entry of the defaults, he filed his

first amended complaint in April 2013, reducing the number of defendants to 17 from 

over 50 in the original complaint. Among the defendants named in the original complaint 

who were omitted from the first amended complaint were Shopoff Group, Colangelo, 

Stedman, and Johnson. 

Nearly a year after filing his first amended complaint, Hyon sought to obtain 

default judgments against Shopoff Group, Colangelo, Stedman, and Johnson in a proveup hearing. Following a hearing, the court ruled against Hyon in an order filed May 20, 

2014. The court first noted it had no jurisdiction over the defaulted defendants because 

the filing of a first amended complaint that failed to name any of the defaulted defendants 

amounted to a dismissal without prejudice of those defendants. The court also stated that, 
13

even if it could consider the allegations in the original complaint, Hyon had failed to 

assert any viable claim and did not serve any documents on any of the defaulted 

defendants identifying the amounts of damages he was seeking. The court ordered the 

action dismissed without prejudice as to Shopoff Group, Colangelo, Stedman, and 

Johnson. Hyon appealed from the dismissal order. 

A142199—Hyon v. Selten

In appeal number A142199, the defendant and respondent is Eric Selten. As 

explained above, Selten provided litigation support services to Hyon in the Decker Island 

litigation and was a party to the interpleader litigation and the L.A. litigation. In an order 

dated June 2, 2014, the trial court granted Selten’s demurrer without leave to the first 

amended complaint. The trial court reasoned that Hyon’s claims are barred by res 

judicata and applicable statutes of limitation. The court also concluded that Hyon failed 

to allege facts sufficient to show why the purported fraud could not have been discovered 

earlier with reasonably diligent efforts. Following entry of a judgment of dismissal in 

favor of Selten, Hyon timely appealed. 

DISCUSSION

At the outset, we observe that Hyon’s status as a pro. per. litigant does not exempt 

him from the rules of appellate procedure or relieve his burden on appeal. (Nwosu v. Uba 

(2004) 122 Cal.App.4th 1229, 1247.) We treat pro. per. litigants like any other party, 

affording them “ ‘the same, but no greater consideration than other litigants and 

attorneys.’ ” (Ibid.) The judgment is presumed correct on appeal and it is the burden of 

the party attacking it, whether represented by counsel or proceeding in pro. per., to 

“affirmatively demonstrate prejudicial error.” (People v. Garza (2005) 35 Cal.4th 866, 

881.) As an appellate court, we are not required to consider alleged error when the 

appellant merely complains of error without offering pertinent or intelligible argument to 

support the appellant’s position. (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 

1119–1120; Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [court disregards 

argument for which no authority is furnished].)
14

The problem with all eight of Hyon’s appeals is that he presents no cognizable 

legal argument why we should reverse the challenged trial court orders. In the 

consolidated opening brief filed by Hyon in six of the appeals, his “argument” consists of 

(1) a complaint that it is “extremely deplorable” the trial court judge is “free from any 

prosecution” and (2) a statement that governmental agencies, such as the district attorney 

and the State Bar, have done nothing to protect him. He urges this court to “save” him 

from this situation. In the argument section of one of his briefs in appeal number 

A142124—which arises from Hyon’s attempt to have default judgments entered against 

various parties—Hyon simply asserts his belief that Shopoff Group was involved in 

purchasing Decker Island and that $7.6 million in damages is just. He makes similarly 

vacuous claims against the other defendants who had defaults entered against them. In 

appeal number A142199 involving respondent Selten, Hyon’s sole argument is that the 

court reporter erred in transcribing certain words he spoke at the hearing on Selten’s 

demurrer. He does not explain how he was prejudiced by the purported error in 

transcription.

6

Taken together, Hyon’s arguments offer no basis for this court to disturb the trial 

court’s rulings. Among other things, Hyon has not explained how he can avoid the res 

judicata effect of prior litigation involving many of the very same issues he seeks to raise 

in this action. Res judicata “prevents relitigation of the same cause of action in a second 

suit between the same parties or parties in privity with them.” (Mycogen Corp. v. 

Monsanto Co. (2002) 28 Cal.4th 888, 896.) Under the doctrine of res judicata, “all 

claims based on the same cause of action must be decided in a single suit; if not brought 

 

6Hyon attached documents to all of his briefs and purported to request judicial 

notice of the documents. We disregard the attached documents and deny the requests for 

judicial notice. Although a party may attach copies of material in the appellate record to 

a brief (Cal. Rules of Court, rule 8.204(d)), it is not clear whether the documents attached 

to Hyon’s briefs are part of the appellate record. Further, to the extent Hyon seeks to 

present factual material to this court that was not before the trial court, the requests are 

improper. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, 

fn. 3.)
15

initially, they may not be raised at a later date.” (Ibid.) Here, Hyon effectively seeks to 

relitigate the same issues decided in prior litigation. 

Further, Hyon cannot get around the preclusive effect of prior litigation by making 

vague and unsupported allegations that the parties to the earlier litigation somehow 

defrauded him as well as the court. Giving Hyon’s various complaints a generous 

reading, his claim seems to be that Shopoff engineered a fraudulent transaction in which 

the receiver in the interpleader litigation recommended a sale of Decker Island at a 

bargain price to “front men” for Shopoff who could then exploit the resources of Decker 

Island. In addition to the fact that these fraud allegations are not pleaded with specificity, 

Hyon has failed to plead facts sufficient to demonstrate that he was unable to make the 

discovery of the alleged fraud earlier despite reasonable diligence. (See Fox v. Ethicon 

Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) As a consequence, Hyon’s fraud claims 

(like all of the other claims in the original complaint) are untimely. (See Code Civ. Proc., 

§ 338, subd. (d) [three-year statute of limitations for fraud].) In light of the fact that

Hyon has not demonstrated how he could cure the defects by amendment, the trial court 

did not abuse its discretion in sustaining the demurrers without leave to amend. (See City 

of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) Because these grounds are 

sufficient to confirm that Hyon’s complaint and first amended complaint fail to state a 

cause of action as a matter of law, it is unnecessary to consider any of the other 

arguments supporting the various demurrers and the order granting the anti-SLAPP 

motion.

We simply add that, in connection with appeal number A142124, the trial court 

correctly ruled that Hyon’s filing of a first amended complaint omitting Shopoff Group, 

Colangelo, Stedman, and Johnson amounted to a dismissal without prejudice as to those 

defaulted defendants. (See Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 

114 Cal.App.4th 1135, 1142.) Consequently, the court did not err in denying Hyon’s 

request to enter judgment against those defendants or in dismissing them from the action

without prejudice.
16

The respondents in appeal number A138623, Shopoff and Shopoff & Cavallo 

LLP, urge that we impose sanctions against Hyon for pursuing a frivolous appeal. (Code 

Civ. Proc., § 907; Cal. Rules of Court, rule 8.276.) We are not persuaded that it would be 

appropriate to impose sanctions under the circumstances presented here. As the parties 

moving for sanctions admitted in an earlier pleading, “[s]anctions are not an answer, 

because Mr. Hyon has limited resources.” As a result of the disposition of this appeal, 

Hyon will bear responsibility for the prevailing parties’ costs, and he will be liable to pay 

attorney fees and costs incurred by parties that prevailed on an anti-SLAPP motion. In 

light of Hyon’s limited financial resources—which no one seems to dispute—adding 

monetary sanctions to the amounts Hyon will already be required to pay would serve 

little purpose. Further, although the appeals are objectively meritless, we cannot say with 

confidence that Hyon pursued the appeals in bad faith or solely for the purpose of 

harassing Shopoff and others. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649 

[discussing objective and subjective standards for assessing whether appeal is frivolous].) 

Based upon the record before this court, Hyon appears to have a fervent but misguided 

belief in the righteousness of his cause.

As an alternative to imposing sanctions, Shopoff and Shopoff & Cavallo LLP 

separately requested that this court declare Hyon to be a vexatious litigant and issue a 

prefiling order requiring him to obtain permission before filing any further litigation in 

pro. per.

7

 (See Code Civ. Proc., § 391.7.) It is tempting to entertain the motion given 

Hyon’s recent history of pursuing meritless actions in pro. per. against numerous parties. 

Although we possess the power in the first instance to declare a party a vexatious litigant 

and issue a prefiling order (see In re R.H. (2009) 170 Cal.App.4th 678, 691–692), we 

decline to do so here for reasons we explain. 

The moving parties sought relief first in the trial court, which denied the vexatious 

litigant motion on the ground it had “no present authority” to act because the moving 

parties had already secured judgments of dismissal that were on appeal. Insofar as the 

 

7We grant the request for judicial notice that accompanied the vexatious litigant 

motion solely for purposes of considering that motion.
17

trial court believed the pendency of an appeal deprived it of power to act on a vexatious 

litigant motion by one of the parties to the appeal, it was mistaken. Although the filing of 

an appeal generally divests the trial court of jurisdiction, an appeal does not prevent the 

trial court from considering ancillary or collateral matters that do not affect the judgment 

on appeal. (See Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 50.) 

Because a vexatious litigant determination is collateral to the judgment, the trial court 

was not precluded from considering the motion. (Cf. Day v. Collingwood (2006) 144

Cal.App.4th 1116, 1123–1126.) 

A review of the vexatious litigant listing maintained by the State of California 

reveals that very few of the determinations were made by Courts of Appeal.8 That should 

not come as a surprise. Because a vexatious litigant determination requires factual 

findings and an exercise of discretion, the issue is typically and most appropriately 

addressed in the trial court. There may be circumstances in which it is appropriate for the 

Court of Appeal to consider the issue in the first instance, such as when the actions 

supporting a vexatious litigant determination take place in the appellate court or when 

considerations of judicial efficiency dictate that no purpose would be served by delaying 

consideration of a meritorious motion. (See In re R.H., supra, 170 Cal.App.4th at 

pp. 691–692; In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1005–

1006.) Here, the vexatious litigant motion was primarily based upon the outcome of past 

litigation and actions taken by Hyon in the trial court. The objectionable conduct largely 

did not take place in this court. Consequently, it is not the case that this court is uniquely 

positioned to consider the conduct supporting the vexatious litigant motion. Further, 

although it would certainly be more expeditious for the appellate court to entertain 

vexatious litigant motions in the first instance, we question whether it is appropriate to do 

 

8

See http://www.courts.ca.gov/documents/vexlit.pdf.
18

so when the trial court has declined to consider the matter. Therefore, we deny the 

vexatious litigant motion without prejudice to the right to pursue relief in the trial court.9

DISPOSITION

The judgments are affirmed. The motion for sanctions in appeal number A138623 

is denied. The motion to declare Hyon a vexatious litigant in appeal number A138623 is 

denied without prejudice to the right to pursue the motion in the trial court. Respondents

shall be entitled to recover their costs on appeal.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Jenkins, J.

 

9We also note that a moving party must establish that the person sought to be 

declared a vexatious litigant under subdivision (b)(1) of section 391 of the Code of Civil 

Procedure must have had at least five litigations “finally determined adversely” to the 

person. The moving party must establish the finality of any adverse determination—i.e., 

that there was no further appeal of the matter. It is not enough simply to rely on an 

adverse but nonappealable order (such as an order sustaining a demurrer without leave to 

amend) without some evidence establishing that the litigation concluded without further 

action or an appeal.