Filed 8/24/18 Marriage of Flagg & Flagg-Bonnett CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
| In re the Marriage of DAVID K. FLAGG and DIANA FLAGG-BONNETT. |
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| DAVID K. FLAGG, Appellant, v. DIANA FLAGG-BONNETT, Respondent. |
A152497
(Contra Costa County Super. Ct. No. MSD 11-04154)
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Appellant David K. Flagg purports to appeal from the order declaring him to be a vexatious litigant. That order is not directly appealable, but as an interlocutory order may be reviewed if a timely appeal is taken from a subsequent order or judgment of dismissal. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635.) “No judgment or order of dismissal was entered in the instant case. However, in the interest of justice and to prevent unnecessary delay, a reviewing court may deem the order appealed from as incorporating a judgment of dismissal and treat the notice as applying to that dismissal.” (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 988, fn. 2.) Given that both parties treat the appeal as properly before us, we will modify the order to make it an appealable order of dismissal.
Section 391 of the Code of Civil Procedure has various definitions of what constitutes a vexatious litigant. The definition in subdivision (b)(1) appears to be the one at issue here: “ ‘Vexatious litigant’ means a person who does any of the following: [¶] . . . In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations which are 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.”
“ ‘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 . . . .’ ” (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 407.)
“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ’ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ [Citation.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)
We said it “appears” that subdivision (b)(1) was the basis for appellant being declared a vexatious litigant because, in his brief, he seems to argue that the trial court miscounted the number of litigations attributable to him, and thus the order lacks the support of substantial evidence. However, he has not provided a record from which a substantial evidence determination can be made. The clerk’s transcript he provided does not include the moving papers requesting that he be declared a vexatious litigant. In point of fact, the transcript is completely one-sided in that it includes nothing filed by respondent. There is no reporter’s transcript. In these circumstances, appellant cannot overcome the presumptions in favor of the order he attacks.
The “Prefiling Order—Vexatious Litigant” filed August 14, 2017, is amended by adding a paragraph dismissing the complaint. As so modified, the order is affirmed. Respondent shall recover her costs on appeal.
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Kline, P.J.
We concur:
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Richman, J.
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Stewart, J.
