Filed 2/14/22 C.T. v. K.W. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This is the latest appeal in a contentious domestic violence and custody proceeding involving parents C.T. (father) and K.W. (mother). Mother contends the trial court erred in declaring her a vexatious litigant and entering a prefiling order. We find no error and affirm the order.

Background

In February 2019, father filed the underlying action seeking a restraining order against mother and custody of their child. In September 2020, father filed a motion to have mother declared a vexatious litigant under Code of Civil Procedure[1] section 391, subdivision (b)(1) and for issuance of a prefiling order under section 391.7.

Following hearings on October 22, 2020 and January 5, 2021, the trial court found mother to be a vexatious litigant under section 391, subdivision (b)(1) and issued a prefiling order under section 391.7, subdivision (a). Mother timely filed a notice of appeal.

Discussion

Section 391, subdivision (b)(1) defines a vexatious litigant as a person who “In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.” The term “litigation” as used in section 391, subdivision (b)(1) is broadly defined “as meaning ‘any civil action or proceeding, commenced, maintained or pending in any state or federal court.’ ” (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1170, quoting § 391, subd. (a).) Section 391.7, subdivision (a) authorizes the court to “enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.” For purposes of the prefiling order “ ‘litigation’ includes any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order.” (§ 391.7, subd. (d).)

“A court exercises its discretion in determining whether a person is a vexatious litigant.” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) “An abuse of discretion occurs ‘where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances.’ ” (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) On appeal, “[w]e uphold the court’s ruling if it is supported by substantial evidence. [Citations.] . . . [W]e presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment.” (Bravo v. Ismaj, supra, at p. 219.)

In support of his request, father identified the following six actions that had been commenced by mother, in propria persona, against father in the preceding year and which have been finally determined adversely to mother:

“i.) [K.W. v. C.T.], Family Court of the State of New York, County of New York, Case No. 0-02057-19, Family Offense Petition filed February 19, 2019. Case dismissed on March 26, 2019.

“ii.) [K.W. v. C.T.], Family Court of the State of New York, County of New York, Case No. 0-02784-19, Family Offense Petition filed March 5, 2019. Case dismissed on March 26, 2019.

“iii.) [K.W. v. C.T.], Family Court of the State of New York, County of New York, Case No. 0-02959-19, Family Offense Petition filed March 8, 2019. Case dismissed on March 26, 2019.

“iv.) [K.W. v. C.T.], Family Court of the State of New York, County of New York, Case No. P-02059-19, Paternity Petition filed February 19, 2019. Case dismissed on March 26, 2019.

“v.) [K.W. v. C.T.], Fourth District State of Utah, Utah County, Case No. 194400734, Request for Protective Order filed March 18, 2019. Request denied on July 11, 2019.

“vi.) [K.W. v. C.T.], Fourth District State of Utah, Utah County, Case No. 200400828, Request for Civil Stalking Injunction filed June 15, 2020. Petition denied on June 24, 2020.”

Father also alerted the court that shortly after he filed his request, Mother received an unsuccessful determination in a seventh action, K.W. v. C.T., Utah Court of Appeals, appellate case No. 20200538-CA, when the Utah Court of Appeals denied mother’s interlocutory appeal on October 1, 2020.

On appeal, mother’s opening brief fails to address section 391, subdivision (b)(1). Instead, she argues that the trial court designated her “as a vexatious litigant under some new theory or strategy” by combining the requirements of section 391, subdivisions (b)(2),(3) and (4). In her reply brief, mother reasserts her position that the trial court did not rely on section 391, subdivision (b)(1) and argues that subdivision (b)(1) is not applicable in any event.

The record is abundantly clear that the trial court found mother a vexatious litigant under section 391, subdivision (b)(1). Father’s motion expressly requests a declaration that mother “is a vexatious litigant as defined by Code of Civil Procedure section 391, subdivision (b)(1)” and addressed only the requirements of section 391, subdivision (b)(1). The minutes from the first hearing on the motion reads, “Matter is on calendar for Petitioner’s Request For Order Re: Finding Under CCP 391(B)(1) That Respondent Is A Vexatious Litigant & For Prefiling Order.” The court’s tentative ruling before the January 5 hearings reads, “In the Court’s prior tentative ruling for hearing on October 22, 2020, the Court expressed a reluctance to find Respondent to be a vexatious litigant where ‘all adversely determined lawsuits have occurred outside of the State of California.’ However, in reviewing CCP 391(b)(1) more closely, it is evident that the legislature considered this issue and in a 1990 amendment to that section, specifically expanded the definition of ‘litigation’ to include actions in any state or federal court (superseding prior precedent limiting consideration to in-state litigation).” Mother’s supplemental opposition filed in the trial court before the second hearing expressly challenged father’s “re-stated reliance on CCP 391(b)(1), which concerns only my New York and Utah filings.” By failing to address section 391, subdivision (b)(1) in her opening brief, mother has forfeited her arguments that the statutory provision is not applicable or that its requirements are not met.

We briefly note, however, that mother’s arguments asserted for the first time in her reply brief are without merit. Mother argues that the four New York actions were consolidated and voluntarily dismissed so that they do not meet the requirements of section 391, subdivision (b)(1). A voluntary dismissal, however, is prima facie evidence that the litigation was “determined adversely” to the plaintiff. (See Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 778, 781 [plaintiff met the definition of a vexatious litigant under section 391(b)(1) where two of the five actions that he prosecuted in propria persona within the previous seven years were voluntarily dismissed].) As explained in Tokerud, “An action which is ultimately dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system, albeit less of a burden than if the matter had proceeded to trial. A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion. The difference is one of degree, not kind.” (Id. at p. 779.) Mother’s argument that the dismissal of the New York actions did not reflect father’s innocence, but rather the difficulties she faced prosecuting an action in New York is not persuasive. Section 391, subdivision (b)(1) does not, as mother suggests, require a determination that the actions were frivolous – only that the actions were “determined adversely” to her. (Compare § 391, subd. (b)(1) with subd. (b)(3) [defining a vexatious litigant as a person who “n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay”].)

Mother argues that “[i]t is important for the courts to uphold a survivor’s right to make a good-faith report to the police, and to apply for an order of protection without fear of retaliation.” It is well-established, however, that the “prefiling requirement ‘does not deny the vexatious litigant access to the courts, but operates solely to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs.’ ” ([i]In re Marriage of Deal (2020) 45 Cal.App.5th 613, 618, quoting Bravo v. Ismaj, supra, 99 Cal.App.4th 211, 221–222.)

Mother’s limited representation by appointed counsel in the New York proceedings does not absolve her from having commenced the actions in propria persona.

With respect to the two Utah proceedings, mother acknowledges that both were filed in propria persona and that both were dismissed. The record establishes that Utah case No. 194400734 was dismissed because of mother’s failure to inform the court of all pending related cases and based on the additional finding that mother was not “sufficiently credible to meet her burden of proof.” The petition filed in Utah case No. 200400828 was summarily denied after the court found that her petition qualified “as another unmeritorious pleading with redundant, immaterial, impertinent or scandalous papers” and that “[t]he events described in the petition fail[ed] to provide the court with evidence of a course of conduct of stalking by [father].” Nonetheless, mother argues that these proceedings do not come within the scope of section 391, subdivision (b)(1) because father also filed actions in Utah and agreed to the dismissal of one of the listed actions. Neither argument has merit.

Contrary to mother’s argument, she was not improperly denied an evidentiary hearing in the trial court. (See § 391.2 [“At the hearing upon the motion the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion.”].) In the trial court, mother argued, “First, in order for this court to determine whether any pleading I filed was filed ‘totally and completely without merit’ it must examine each pleading. Second, in order for this court to determine if each pleading was filed ‘for the sole purpose of harassing a party’ it must hold an evidentiary hearing where I have the right to testify and court can judge my credibility; Third, in order for this Court to determine whether any specific pleading I filed was ‘solely intended to cause unnecessary delay’ this Court must hold an evidentiary hearing where I have the opportunity to testify and to make a judgment about my credibility; Fourth, in order for this court to determine if any of my motions filed in the California case were ‘re-litigation’ of issues already decided and whether such motions were filed ‘repetitively’ it must hold an evidentiary hearing.” (Boldface omitted.) The trial court correctly recognized, however, that these requirements are not applicable to the court’s ruling under section 391, subdivision (b)(1). As the court explained, “I don’t think this court has to make a determination as to the substance of the other cases. What I’m really looking at the actions [is] how they were decided.” In any event, mother submitted volumes of evidence in support of her opposition which was considered by the court. Testimony as to mother’s intentions, however, would not affect the operative facts upon which the petition was based and would not have altered the outcome of the hearing. (Bravo v. Ismaj, supra, 99 Cal.App.4th at p. 227 [“We are not required to remand this matter for an . . . an evidentiary hearing where there is no purpose shown for doing so.”].)

Finally, the court did not abuse its discretion in entering the prefiling order under section 371.7 by failing to “make substantive findings of frivolousness or harassment; and . . . tailor the order narrowly so as ‘to closely fit the specific vice encountered.’ ” Mother’s reliance on federal authority discussing the requirements for issuance of a prefiling order under unrelated federal statutes is misplaced. (See Ringgold-Lockhart v. County of Los Angeles (2014) 761 F.3d 1057, 1062 [applying the All Writs Act]; Molski v. Evergreen Dynasty Corp. (2007) 500 F.3d 1047, 1147–1148 [applying the Americans with Disabilities Act].) Federal courts recognize that the California vexatious litigant statute (§ 391 et seq.) provides an alternative basis for declaring a party appearing in propria person a vexatious litigant and imposing a prefiling order. (See e.g. Evans v. Tippie (In re C & M Russell, LLC) (Bankr. C.D.Cal. Jan. 21, 2020, No. 2:11-bk-53845-RK) 2020 Bankr. U.S. Dist. Lexis 172, pp. *9–*10 [“Imposing a prefiling restriction against Plaintiff by enjoining her from bringing any further litigation against Defendants . . . is proper either under the All Writs Act [citation] or California Code of Civil Procedure § 391.7.”].)

In conclusion, the trial court did not err in finding that mother is a vexatious litigant and imposing a prefiling order.[2]

Disposition

The order is affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.

[1] All statutory references are to the Code of Civil Procedure unless otherwise noted.

[2] Mother’s arguments regarding the underlying custody proceedings are beyond the scope of the present appeal and will not be considered. Nor will the court consider matters occurring after entry of the order at issue in the present appeal. Mother’s requests for judicial notice filed May 27, 2021, July 21, 2021, December 7, 2021, December 20, 2021, December 23, 2021, and December 30, 2021 are denied on the ground of relevancy.