Littlejohn v. Grundy

Filed 8/23/07 Littlejohn v. Grundy CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Charles P. Littlejohn appeals an order declaring him to be a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(3).^[1] Because Littlejohn was represented by counsel, we must reverse.

FACTS

Littlejohn lived in Lompoc. The neighboring property is owned by Elizabeth Gustavson and Keith, John and Joan Grundy (collectively "the Grundys"). John and Joan Grundy reside there.

In September of 2003, Littlejohn filed in propria persona a complaint against the Grundys. The complaint alleges that the roots of trees growing on the Grundys' property were invading Littlejohn's property causing extensive damage; that the branches of the trees protrude onto Littlejohn's property, blocking sunlight and placing Littlejohn in fear of being injured by falling branches; that leaves from the trees fall onto Littlejohn's property, blocking drains; and that "burgeoning populations" of the Grundys' snails cross the property line and damage Littlejohn's plants.

In August of 2004, attorney Gary Dunlap began representing Littlejohn in the lawsuit. The matter eventually was tried to a jury, which found in favor of the Grundys.

After trial the court, sua sponte, issued an order to show cause why Littlejohn should not be declared a vexatious litigant. The court determined Littlejohn to be a vexatious litigant based on the following:

Even before Littlejohn filed the complaint he bullied his neighbors, assuring them that no one could resist him in court.

The complaint contains irrelevant material in an attempt by Littlejohn to ingratiate himself with the court, and to intimidate the Grundys. The complaint alleges that Littlejohn's wife is a Native American and chief financial officer of a committee that presides over the Chumash Casino; that she approves $2 million in grants to worthy organizations; that Littlejohn himself dedicates much of his time to assisting numerous charitable organizations, including the sheriff's council; that Littlejohn's home is the finest in the neighborhood; that the Grundys' home is "absolutely hideous"; that the Grundys are "inexorable, bent, demented, incorrigible, disrespectful and most impossible"; and that the Grundys contribute nothing to the local community.

The trial court found that even after counsel began representing Littlejohn, Littlejohn continued to draft the papers that were submitted to the court. The court further found that throughout the litigation a number of questionable tactical choices were made; including: obtaining an order deeming irrelevant matters admitted; reliance on the irrelevant admissions in support of a motion for summary judgment; filing a premature and inappropriate motion for terminating sanctions instead of a motion to compel; failure to comply with the rules of court in formatting a separate statement of undisputed facts in support of a motion for summary judgment; making an unsupported claim for damages in support of the motion for summary judgment; pursuing causes of action that were ultimately dismissed by counsel on the day of trial; claiming until the day of trial that the case was an unlimited civil case; maintaining a claim for punitive damages without evidence to support it; filing uncognizable motions for mistrial after the verdict; and objecting to entry of judgment when no judgment had yet been proffered.

The court pointed out that Littlejohn had been declared a vexatious litigant in a previous case. We reversed that order on the ground that the trial court had no jurisdiction to make the order while an appeal of the judgment was pending. (Littlejohn v. Bank of America(Nov. 22, 1994, B072171 [nonpub.opn.].) This, of course, was not a ruling on the merits.

Finally, the trial court stated Littlejohn's response to the order to show cause shows that he is not the least contrite. He stated that people are dying in Africa because the litigation has taken so much of his income he can no longer contribute to African charities. Littlejohn also threatened more litigation if the trees he finds offensive are not removed.

DISCUSSION

Section 391, subdivision (b)(3), defines a vexatious litigant as a person who "[i]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."

Littlejohn points out that he was represented by counsel at the time the procedures the trial court deemed objectionable took place. Recognizing that the statute requires the litigant to be in propria persona, the trial court found that Littlejohn, and not his counsel, drafted the offending documents. The trial court relied on In re Shieh (1993) 17 Cal.App.4th 1154 (Shieh), for the conclusion that a person can be declared a vexatious litigant under section 391, subdivision (b)(3), if his attorney acts as a mere puppet for the litigant.

In Shieh, the trial court found plaintiff to be a vexatious litigant under section 391, subdivision (b)(4), not (b)(3). Subdivision (b)(4) of section 391, defines a vexatious litigant as a person who "[h]as previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction or occurrence." Under subdivision (b)(4), it is immaterial that the plaintiff is represented by counsel. (Shieh, supra, 17 Cal.App.4th at p. 1166.) In Shieh, the court's discussion of attorneys acting as Shieh's puppets arose only in relation to fashioning an appropriate prefiling order. The court concluded the prefiling order should include cases filed by attorneys on behalf of Shieh, as well as those filed by Shieh in propria persona. (Id. at pp. 1167-1168.)

Shieh does not stand for the proposition that a person can qualify as a vexatious litigant under section 391, subdivision (b)(3), even if he is represented by counsel. Shieh does not even discuss subdivision (b)(3). Subdivision (b)(3) is by its terms limited to persons "acting in propria persona." The trial court considered matters filed while Littlejohn was represented by counsel.

Littlejohn was not represented by counsel when he bullied the Grundys prior to filing the complaint or when he filed the complaint containing offensive and irrelevant material. Nevertheless, those matters alone are not enough to support declaring Littlejohn a vexatious litigant. Littlejohn was represented by counsel during all essential phases of the litigation after he filed the complaint.

The reversal in this case should not be taken as a vindication of Littlejohn's actions. The trial court was correct in finding that Littlejohn acted inappropriately. There are other ways to skin a cat. The trial court's only error was in its choice of sanctions.

The order is reversed. Appellant is to bear his own costs.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Zel Canter, Judge

Superior Court County of Santa Barbara

______________________________

Charles P. Littlejohn, in pro. per., for Plaintiff and Appellant.

McCarthy & Kroes and Patrick McCarthy for Defendants Keith Grundy and Elizabeth Gustavson.

John C. Lauritsen for Defendants John Grundy and Joan Grundy.

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^[1]All statutory references are to the Code of Civil Procedure.