Filed 12/11/17 Kinney v. Three Arch Community Services Dist. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


CHARLES KINNEY,

Plaintiff and Appellant,

v.

THREE ARCH BAY COMMUNITY SERVICES DISTRICT et al.,

Defendants and Respondents.


G053727

(Super. Ct. No. 30-2010-00409507)

O P I N I O N
Appeal from an order of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed.
William M. Rubendall; Cornman & Swartz and Charles A. Swartz for Plaintiff and Appellant.
Daley & Heft, Lee H. Roistacher, Richard J. Schneider and Matthew T. Racine for Defendant and Respondent, Three Arch Bay Community Services District.
The Beggs Law Firm and Robert M. Beggs for Defendants and Respondents, John Chaldu, Lynn Chaldu and The Trust of John Chaldu.
* * *
This is either the ninth or tenth appeal (we have long lost count) arising out of a “knock-down, drag-out saga engulfing what must surely be a residential area bereft of neighborly pleasantries.” (Keegan v. Three Arch Bay Community Services District et al. (June 11, 2015, G048609) [nonpub. opn.] (Keegan).) At some far earlier point, this case arose out of problems relating to drainage and parking. At this point, it has degenerated into what can reasonably be characterized as an attempt by plaintiff Charles Kinney, a now disbarred attorney who lives in the community, to inflict as much pain and expense on his neighbors as he possibly can.
We affirmed the trial court’s decision to grant summary judgment in Keegan in favor of defendants, Three Arch Bay Community Services District (TAB), the homeowner’s association, and Kinney’s neighbors Charles Viviani and John and Lynn Chaldu (and their trust) (collectively defendants), and ordered Kinney to pay the Chaldus and TAB their costs on appeal. The trial court ultimately awarded TAB $1,443.97 in costs as to the prior appeal. Kinney, unable to let matters lie, has now appealed that order.
Kinney is designated as a vexatious litigant and subject to a prefiling order for any cases and appeals on his own behalf. At some point since 2015, he has been disbarred.
Kinney’s sole argument on appeal is that the trial court lacked jurisdiction to enter the costs award because no remittitur had been issued in a previous appeal. We find Kinney’s argument to lack even the vaguest hint of possible merit and we therefore affirm. We also grant TAB’s motion to expand the scope of the vexatious litigant prefiling order to include appeals filed on Kinney’s behalf by an attorney.
I
FACTS
We need not delve into the underlying facts of the homeowner’s association dispute. As relevant to this appeal, on February 17, 2012, Kinney filed a notice of appeal in a different matter, Three Arch Bay v. City of Laguna Beach, et al. (Super.Ct. No. 01CC15035) (Laguna Beach). As we noted in Keegan, where Kinney made the same argument he offers here, “Keegan and Kinney have not provided a case number with respect to any February 17, 2012 appeal and we find none in our system.” (Keegan, supra, G048609.) The record in this appeal, however, shows that on May 22, 2012, Kinney’s request for a prefiling order was rejected. Apparently, therefore, the appeal was never assigned a number or deemed filed by this court.
As we noted above, after we affirmed Keegan, the trial court entered a costs award of $1,443.97 in favor of TAB. It is from that order that Kinney now appeals.
II
DISCUSSION
Requests for Judicial Notice
Kinney filed three requests for judicial notice; TAB filed one. “Judicial notice” is the court’s recognition of the existence of a matter of law or fact without the necessity of formal proof. (Evid. Code, § 450 et seq.) Only relevant evidence is subject to judicial notice. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) We do not take judicial notice of the facts therein. (Ibid.)
With these principles in mind, we rule as follows. Kinney’s first request, regarding two complaints he filed in federal court, is denied as irrelevant. Kinney’s second request, which is a letter from the San Diego Regional Water Quality Control Board, is also denied as irrelevant. Kinney’s third request, relating to a notice of related case filed in the trial court is granted, but only as to the existence of the document and not any facts stated therein. TAB’s request as to our 2015 opinion in Keegan, supra, G048609, is granted. (Evid. Code, §§ 452, 459.)

Motion to Strike
TAB moved to strike Kinney’s portions of Kinney’s opening brief and appendix because he sought to incorporate the records in Keegan and another related appeal. He failed to follow the procedural appropriate steps to incorporate the appendix, and the briefs he attempts to incorporate are not part of the same or a related appeal. (Cal. Rules of Court, rules 8.200(a)(5), 8.124(b)(2).) The motion to strike is granted to the extent of any incorporation by reference.
TAB also moved to strike Kinney’s reply brief as untimely and as lacking record references in many instances. The timeliness is arguable; the point about lacking proper record references is not. Any “facts” Kinney purports to cite without a proper record reference are deemed stricken and will be disregarded.






Jurisdiction to Award Costs
Kinney’s sole argument is that the trial court had no jurisdiction to enter the $1,443.97 costs award in the instant case because “no remittitur” had issued for the Laguna Beach appeal. He cites Code of Civil Procedure section 916.
Section 916, subdivision (a), states: “[T]he perfecting of an appeal stays
proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or
order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” Thus, Kinney argues, because Keegan had “the same issues, parties and law” as the case from which he purported to appeal in the Laguna Beach matter, proceedings in this case were subject to an automatic stay.
This is not a complex issue. First, we have already considered and rejected this point. In Keegan, we observed that Kinney’s argument was “nonsensical,” as he was unable to provide an appellate case number. (Keegan, supra, G048609.) This has not changed, and Kinney provides no sound reason (or a legal basis) as to why we should revisit that part of our decision.
Second, while Kinney complains “[t]his Court has not yet explained how this occurred, or why it has not proceeded with the 2012 appeal . . . .” He is plainly incorrect, as demonstrated by the record he filed. This court’s May 22, 2012, order denied Kinney’s request for a prefiling order. This order, contrary to Kinney’s contention at oral argument, was authorized by the presiding justice of this court, and not a “clerk” as counsel claimed. If Kinney believed the presiding justice’s order was issued in error, the proper time to address it was promptly after the order was issued. He does not argue that he did. Given that the request for a prefiling order was denied, his appeal in the Laguna Beach matter was never “perfected” and there was no automatic stay under section 916.
Third, we reject Kinney’s contention that “the issues, parties and law” in the prior case are “the same issues, parties and law” as in the instant case. Kinney’s claim includes no references to the record that would support this argument or any analysis of the two cases that would support such a bold statement. Further, the purpose of section 916 “is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.” (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.) The appeal in this case was decided by our 2015 opinion. Whatever happens in the Laguna Beach matter will not change that. Therefore, staying the trial court from deciding the costs on appeal in this case would not have been necessary in any event.
Accordingly, Kinney’s argument that the trial court lacked jurisdiction to decide what amount of costs from the prior appeal TAB was entitled to is completely without merit and frivolous.

Extension of Prefiling Order
Finally, TAB filed a motion requesting this court expand the current vexatious litigant order against Kinney to appeals filed through an attorney on his behalf. (See In re Kinney (2011) 201 Cal.App.4th 951.) TAB argues that Kinney’s lead attorney, William M. Rubendall, is a mere puppet for Kinney’s abusive litigation tactics. Accordingly, we are directing a copy of this opinion be sent to the State Bar of California to review Rubendall’s conduct and involvement with Kinney.
As the Second District described in another case involving Kinney, we have the inherent power to take this step. “We recognize that the prefiling order contemplated by section 391.7 applies to litigation filed by self-represented litigants. But this statutory limitation does not prevent us from expanding the prefiling order under the circumstances of this case, for two reasons. First, case law holds that it is appropriate to extend a prefiling order issued under section 391.7 to new litigation filed by a vexatious litigant through counsel where the vexatious litigant retains attorneys who ‘serve as mere puppets’ instead of ‘neutral assessors of his claims, bound by ethical considerations not to pursue unmeritorious or frivolous matters.’ [Citation.] Second, irrespective of section 391.7, the court has inherent powers to control judicial proceedings to ensure the administration of justice and prevent abuse of the judicial process.” (Kinney v. Clark (2017) 12 Cal.App.5th 724, 738.)
The fact that an attorney represented Kinney in the instant appeal did not prevent it from lacking all merit. As noted below, we award TAB its costs on appeal. Without a prefiling order, we expect yet another appeal from Kinney arguing all proceedings in this matter should have been stayed due to his unperfected appeal in 2012 – a contention we have now rejected twice.
Given Kinney’s long history of abuse of the judicial system which led to his vexatious litigant status, his disbarment, this appeal’s utter lack of merit, and Kinney’s continuing shamelessness in the face of irrefutable facts, we find this step appropriate. Kinney’s arguments as to why this order should not be entered are, accordingly, rejected, as either irrelevant or simply wrong.
II
DISPOSITION
The vexatious litigant prefiling order is hereby extended to include all appeals filed by Kinney in this court, regardless of whether he files through an attorney or on his own behalf.
Because respondents’ counsel have argued that attorney William M. Rubendall acted as a mere puppet for appellant in filing this frivolous appeal, we direct the clerk of the court to forward a copy of this opinion to the State Bar of California for the purposes of investigating Rubendall’s conduct and involvement with appellant. We acknowledge we have no duty to do this under the Code of Judicial Ethics or the Business and Professions Code, but given the frivolousness of the appeal and the condition of the record on appeal, we believe this is a prudent course for this court to take.
The court’s order awarding costs of $1,443.97 on the prior appeal is affirmed. Defendants are also entitled to their costs on this appeal.



MOORE, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.