Filed 2/16/18 Roman Catholic Bishop of Orange v. Nichols 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


ROMAN CATHOLIC BISHOP OF ORANGE,

Plaintiff and Respondent,

v.

PATRICIA JEAN NICHOLS,

Defendant and Appellant.


G054149

(Super. Ct. No. 30-2014-00712885)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Michael McCartin, Judge. Affirmed.
Patricia Jean Nichols, in pro. per., for Defendant and Appellant.
Callahan, Thompson, Sherman & Caudill, Lee A. Sherman and Michael J. Berry for Plaintiff and Respondent.
* * *

Patricia Jean Nichols, aka Heaven J. Nichols, appeals from an order declaring her a vexatious litigant pursuant to Code of Civil Procedure sections 391, et seq. The order came after Nichols waged a two and a half year campaign of repeated challenges to the validity of a restraining order obtained against her by the Roman Catholic Bishop of Orange (RCBO). Her arguments on appeal are largely a continuation of that effort.
However, the restraining order is not before us and consequently we cannot review either its validity or its propriety. Thus, we must disregard Nichols’ contention that the restraining order was improperly granted because the chief witness against her, Father Augustine Puchner, was her fiduciary, as well as her contention that in issuing the restraining order, the trial court failed to “apply the laws regarding sexual harassment and conspiracy.”
Moreover, our review of the order declaring Nichols to be a vexatious litigant is limited to errors of law. We are bound by the factual findings of the trial court, both express and implied, as long as there is evidence to support them. Thus, we must disregard Nichols’ assertion that the court committed errors “in weighing the credibility of . . . declarations in opposition to the motion to remove [the] restraining order.” Because there is evidence in the record which supports the court’s conclusions – no matter how strongly Nichols disagrees with those conclusions – we are bound by them.
The only legal error Nichols asserts in connection with the vexatious litigant order is her contention that the trial court erred by declaring her a vexatious litigant even though she “only initiated three court hearings in this case.” However, we find that contention unpersuasive. Not only did Nichols initiate more than three court hearings, she offers no authority suggesting that a person’s initiation of three court hearings would be an insufficient basis for declaring that person a vexatious litigant.
We consequently affirm the order.
I
FACTS
In March 2014, RCBO filed a petition for a workplace violence restraining order against Nichols. The trial court granted the petition and in May 2014, issued the requested restraining order, effective for a period of three years. Our record contains neither the petition, nor any opposition Nichols may have filed.
Less than a month after the restraining order was issued, Nichols filed a motion to terminate or modify the order. Representing herself in propria persona, Nichols submitted a declaration in which she accused others associated with RCBO of committing misconduct against her. Among her claims were various accusations against Christina Ford, as well as an accusation that Father Puchner had “touched [her] on the breasts without [her] permission” – an assault she later “forgot about” because “he stopped doing it.”
Between June 18, 2014 and September 9, 2014, when her motion to terminate or modify the restraining order was scheduled to be heard, Nichols filed 13 additional declarations, plus supporting documents – a total of over 300 pages – arguing at length about various aspects of the evidence submitted in support of the restraining order, and making further claims of misconduct against others.
On September 9, 2014, the trial court refused to terminate the restraining order, but did issue an amended order and continued the hearing on Nichols’ motion to modify or terminate the order for further review in March 2015.
The amended restraining order identifies the people protected as Father Puchner, Christina Ford, and Father Godfrey Bushmaker. The order requires Nichols to refrain from harassing or committing acts of violence against any of the protected people, and prohibits her from contacting them, directly or indirectly, or entering their workplace. The order also obligates her to stay 100 yards away from the protected persons, and from various locations, including specifically the Diocese of Orange Pastoral Center in Garden Grove. The order does allow Nichols to pass within 100 yards of the Diocesan property for the purpose of taking public transportation to or from her residence.
In January 2015, despite the continued pendency of her first motion to modify or terminate the restraining order, Nichols filed a second motion to modify or terminate the order. She explained she was seeking to terminate the order because “[t]hey are using the restraining order to harass me and stalk me they know my address and they call the police and tell them lies about me.” At the request of RCBO, Nichols’ second motion to terminate or modify the restraining order was consolidated with the first one, to be heard together on the further review hearing date in March.
In her declaration supporting the second motion to terminate or modify the restraining order, Nichols related various incidents in which she had violated the restraining order, including an incident where she had allegedly “confronted” Father Puchner about what she claimed were lies he had been telling about her. Nichols also repeated her assertion that Father Puchner was making sexual advances toward her, and claimed “he drinks alcohol in front of children at school functions.”
Nichols also stated in her declaration that she was seeking a restraining order against Father Puchner, as well as a restraining order against a person she identified as “Fr Claude Williams.”
Nichols also issued a subpoena duces tecum directed to an RCBO employee named Julie Benscotter, forcing RCBO to seek an order quashing it in March 2015.
Nichols then filed two additional declarations in connection with the March 2015 hearing on her motions to modify or terminate the restraining order. At the hearing, the trial court declined to either modify or terminate the order, and again continued the matter for an additional five months, to August 2015.
A week after the March 2015 hearing, Nichols filed an application for a restraining order against Ford, who was one of the persons identified as protected by the restraining order issued against Nichols. The trial court held a hearing on the application in April 2015, and denied it. In doing so, the court noted that Nichols’ supporting declaration was “almost entirely speculative” and contained very little evidence of things she had actually witnessed. Nichols explained to the court that her goal in seeking the restraining order was to prevent Ford from calling the police every time she believed Nichols was violating the restraining order already issued against her. The court responded, “I’m not issuing a restraining order for that.”
Over the course of the next several months, Nichols filed four more declarations, accompanied by additional supporting documents, totaling over 200 pages. Moreover, prior to the continued hearing set for August 2015, Nichols served five additional subpoenas, again forcing RCBO to file motions to quash them.
At the August 2015 hearing, the trial court granted RCBO’s motions to quash the subpoenas. The court also ruled that there would be no modification of the restraining order, and attempted to explain to Nichols why her repeated efforts to challenge the order were doomed to fail. Specifically, the court informed Nichols that a modification of the restraining order could only be obtained based on a showing that either the facts or the law had changed since the order was issued, and Nichols was making no such claim. When Nichols insisted that “[i]f I prove that their declarations are based on lies, that is a change of fact,” the court told her “[y]ou can’t go back and relitigate that.”
Nichols also argued that the fiduciary relationship existing between RCBO and her meant the evidence they submitted in support of the restraining order should have been stricken. The trial court responded to that point by telling Nichols that if she had wanted to challenge the admissibility of the evidence used to support the initial restraining order, she was required to appear at the hearing and assert that challenge. But the court noted Nichols had declined to attend that hearing, claiming later in a declaration that she “‘didn’t want to be there, and . . . didn’t think it was necessary to contest the order because [she] didn’t care about it.’”
The trial court also informed Nichols that it expected her to cease her efforts to obtain an order modifying or terminating the restraining order, and then suggested the restraining order should “just expire of natural causes.”
In connection with that same hearing, RCBO asked the trial court to declare Nichols a vexatious litigant, and while the court declined to do that, it explicitly warned Nichols that she was “real close to the vexatious litigant [status] that [RCBO] want[s],” and advised her not to initiate further court proceedings.
However, despite the trial court’s warning, Nichols initiated a small claims action against Ford, one of the RCBO employees protected by the restraining order, less than two weeks later. Nichols stated the basis of her claim was that Ford “said lies and gossip about me under penalty of perjury that caused a restraining order against me and made phoney [sic] calls to police.” In November 2015, judgment was entered against Nichols on a small claims action.
On April 18, 2016, Nichols filed yet another motion to modify or terminate the restraining order against her. The trial court denied that motion in May 2016.
Approximately two weeks after that latest motion was denied, Nichols filed a small claims action against Father Puchner. Shortly after that filing, Nichols contacted RCBO’s counsel and informed him that she planned to initiate that already-filed small claims action against Father Puchner unless RCBO agreed to terminate the restraining order against her.
In July 2016, Nichols again issued multiple subpoenas directed to RCBO personnel in connection with her small claims action, all of which mirrored the subpoenas previously quashed by the trial court. Again, the RCBO filed motions to quash the subpoenas.
Finally, in August 2016, RCBO filed its motion for an order declaring Nichols be deemed a vexatious litigant. Although Nichols vigorously opposed the order – an effort that included a motion to strike all the evidence submitted by Father Puchner – the trial court granted the motion.
II
DISCUSSION
1. Standard of Review
“A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court’s ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment.” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) Reversal of a vexatious litigant order is appropriate “only where there is no substantial evidence to imply findings in support of the vexatious litigant designation.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1266.)
On appeal, we cannot reassess the credibility or persuasive effect of evidence offered in the trial court. (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 156 [“In her brief, appellant essentially reargues the evidence. Although there was conflicting evidence presented at trial, we are bound by the trial court’s interpretation of the facts”].)
To the contrary, we must assume the truth of whatever evidence supported the trial court’s decision. “In reviewing the evidence adduced at trial, our perspective must favor the judgment. [Citations.] ‘This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact . . . .’” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372.)
Thus, we must disregard Nichols’ assertion that RCBO’s witnesses were “lying on declarations under penalty of perjury” or were engaged in an effort to “mislead the trial court.” Likewise, we cannot attach any credibility to assertions such as that “[Father] Puchner, who holds himself out to the community as a celebate priest, was actually entrapping [Nichols] into a retaliatory trap to get even for denying [his] sexual advances.” Although we acknowledge these are Nichol’s assertions, we cannot accord them any significance on appeal.

2. Merits of the Order
“Vexatious litigant statutes were created ‘to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues.’ [Citation.] . . . ‘Their abuse of the system not only wastes court time and resources, but also prejudices other parties waiting their turn before the courts.’” (Bravo v. Ismaj, supra, 99 Cal.App.4th at pp. 220-221.)
“The Legislature first enacted sections 391.1 through 391.6 in 1963, as a means of moderating a vexatious litigant’s tendency to engage in meritless litigation. [Citations.] Under these sections, a defendant may stay pending litigation by moving to require a vexatious litigant to furnish security if the court determines ‘there is not a reasonable probability’ the plaintiff will prevail. Failure to produce the ordered security results in dismissal of the litigation in favor of the defendant. (§§ 391.1, 391.4.) [¶] In 1990, the Legislature enacted section 391.7 to provide the courts with an additional means to counter misuse of the system by vexatious litigants. Section 391.7 ‘operates beyond the pending case’ and authorizes a court to enter a ‘prefiling order’ that prohibits a vexatious litigant from filing any new litigation in propria persona without first obtaining permission from the presiding judge.” (Bravo v. Ismaj, supra, 99 Cal.App.4th at p. 221.)
Section 391, subdivision (b)(2), defines a vexatious litigant in various ways, and includes a litigant who “[a]fter a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.” The definition also includes a litigant who “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.” (§ 391, subd. (b)(3).)
Nichols easily meets both of those descriptions. She was at all times acting in propria persona, and she repeatedly filed motions challenging the validity of the restraining order filed against her. When those repeated motions to terminate the restraining order finally exhausted the patience of the trial court, Nichols turned to filing small claims actions as a means of continuing to relitigate the validity of the restraining order.
Additionally, Nichols also served subpoenas in support of her motions and small claims actions, and pursued her own restraining order against one of the persons protected by the restraining order issued against her. All of these efforts were undertaken as part of Nichols’ campaign to undermine the evidence relied upon to support the restraining order.
With the exception of Nichols’ first motion to modify the restraining order – which had limited success in convincing the trial court to create an exception allowing her to travel near the Diocese while enroute to and from public transportation – her efforts were uniformly rejected.
Moreover, even after the trial court attempted to explain to Nichols, in August 2015, why her continued efforts to challenge the restraining order by attacking the validity of evidence submitted in support of it could not succeed, she continued her efforts to seek relief on that basis.
Unfortunately, Nichols has also continued that effort on appeal. Her opening brief is almost entirely devoted to arguing the trial court erred when it initially issued the restraining order against her, both because the evidence supporting it was not credible, and because the RCBO employees – especially Father Puchner – were her fiduciaries and thus should not have been allowed to offer evidence against her. Neither of those arguments can be addressed in this appeal. As the trial court explained to Nichols in August 2015, any objections she had to the evidence submitted by RCBO in support of the restraining order were required to be raised at or before the hearing at which that restraining order was issued. Her failure to do that operated as a waiver of those objections. (See Wagner v. Osborn (1964) 225 Cal.App.2d 36, 43 [“To raise on appeal the point of erroneously admitted evidence there must be a showing that a timely objection had been made at the trial directing the attention of the court to the particular evidence sought to be excluded. To fail to make such objection, or to make it defectively by specifying the wrong ground, constitutes a waiver”].)
Moreover, even if Nichols had not already waived those assertions at the trial court level, she waived her right to challenge the validity of the restraining order on appeal by failing to appeal from it directly. The only issue before us is the validity of the vexatious litigant order. And for purposes of this appeal, we must presume the validity of the restraining order issued against Nichols.
For essentially the same reasons, we reject Nichols contention that the trial court erred by failing to apply the laws regarding sexual harassment and conspiracy. Nichols’ contention is nothing more than an excuse to reiterate her contentions that Father Puchner told lies about her, sexually harassed her, and then “trick[ed] the trial court into issuing a restraining order against [her].” None of those assertions is cognizable in this appeal.
The only factual argument Nichols makes that warrants any consideration is her assertion the trial court misled her into believing it wanted her to continue offering evidence to challenge the restraining order. Specifically, Nichols contends that by repeatedly continuing the hearings on her motions to modify or terminate the restraining order, the court caused her to believe it “wanted further review” of the order. The assertion is unpersuasive for several reasons. Most significantly, Nichols does not point to any evidence that the court actually asked her to file additional evidence in support of any pending motion to modify or terminate the restraining order, let alone that it encouraged her to file repetitive motions. To the contrary, the record reveals that when the court denied her second motion to modify or terminate, it advised her in clear terms not to pursue further challenges to the restraining order. She ignored that advice.
Additionally, Nichols fails to explain how the trial court’s limited willingness to entertain her motions to modify or terminate the restraining order would have misled her to seek her own restraining order against one of the persons protected by the restraining order issued against her, and to then file small claims actions against two of the protected persons. We cannot see how it would have. To the contrary, when Nichols asked the court about filing a claim in small claims court, the court explicitly dissuaded her: “I would think you have better things to do than sue them. And if you just leave them alone, they’ll leave you alone, hopefully. That’s the idea. That’s my grand plan.” Our own review of the record suggests the court was polite and patient with Nichols, nothing more.
Finally, the only legal argument Nichols asserts as a challenge to the vexatious litigant order is her claim that the trial court abused its discretion in making the order because she “only initiated three court hearings in the case.” Nichols’ claim is unpersuasive, however, because it is unsupported by any authority demonstrating that the initiation of three court hearings would be an insufficient basis for declaring a litigant vexatious. To the contrary, as RCBO points out, in Goodrich v. Sierra Vista Regional Medical Center, supra, 246 Cal.App.4th at page 1266, the appellate court expressly rejected the assertion that three filings would be an insufficient basis for deeming a litigant vexatious: “as few as three motions might form the basis for a vexatious litigant designation where they all seek the exact same relief, which has already been denied or all relate to the same judgment.”
And in any event, our record demonstrates Nichols sought more than three court hearings. She not only filed three separate motions to modify or terminate the restraining order issued against her, she also filed a separate application for a restraining order against one of the persons protected by that restraining order, as well as two small claims actions against protected persons, all arguing that the restraining order was defective, that it was based on perjured testimony, and it should never have been issued. Based upon that extensive record, we find no abuse of discretion in the trial court’s issuance of this vexatious litigant order.





III
DISPOSITION
The order is affirmed. The parties are to bear their own costs on appeal.



MOORE, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.