Cnty. of Sonoma v. Gustely, No. A153423 (D1d2 Jun. 24, 2019)
County agency assessed penalties against a Landowner for violations of land use ordinances. Landowner didn’t appeal or seek a writ of administrative mandamus. County brought a collection procedure to enforce the judgment. Landowner defaulted. On a motion for default judgment, the trial court reduced the penalty from $45 to $20 per day. That was error. By declining to appeal the enforcement case, Landowner forfeited the right to challenge the judgment. The trial court should not have engaged in what was essentially a collateral attack on it in a default proceeding.
Judgment modified.
Showing posts with label collateral attack. Show all posts
Showing posts with label collateral attack. Show all posts
Friday, July 26, 2019
Wednesday, June 28, 2017
Sketchy Default; Sketchy Vacation ...
Grapo v. McMills, No. A147522 (May 23, 2017)
So this case involves a crazy default judgment scenario where an individual was served with a pro se complaint with his name in the caption, but he wasn’t mentioned in the counts. He didn’t respond. His default was taken, but before the default judgment was entered, he died. Plaintiff tried to get a $10 million judgment, which was rejected. Then he amended the complaint and sought $12 million, but the complaint also mentioned $60k in lost property. The trial court ultimately signed off on a $60k judgment.
So this case involves a crazy default judgment scenario where an individual was served with a pro se complaint with his name in the caption, but he wasn’t mentioned in the counts. He didn’t respond. His default was taken, but before the default judgment was entered, he died. Plaintiff tried to get a $10 million judgment, which was rejected. Then he amended the complaint and sought $12 million, but the complaint also mentioned $60k in lost property. The trial court ultimately signed off on a $60k judgment.
Monday, April 6, 2015
Vexatious Dad Can't Collaterally Attack Pre-Filing Order
In re Marriage of Rifkin and Carty, No. A139484 (d1d4 Mar. 6, 2015)
The father in a contentious child custody dispute got himself declared a vexatious litigant and hit with a pre-filing order. Father (pro se, of course) filed but abandoned an appeal of that order. He later moved to vacate it under § 391.8(a) of the Code of Civil Procedure, which was denied. He appealed again, which is where things currently stand.
First things first, Dad can’t directly challenge the propriety of the underlying order in this appeal. Appellate courts can’t review a decision from which a previous appeal could have been (or here, was) taken as a matter of right. Moreover, he didn’t argue that the order appealed in this case—the order denying his motion vacate—under the relevant standard, which requires him to show that there had been a “material change of facts” to get him off the naughty list.
But even if it were to reach the merits of the underlying order, the court would affirm. Father clearly did a bunch of stuff in the custody dispute that meets the standard for being a vexatious litigant: i.e., a person “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.” The fact that they were family court proceedings didn’t take him out of the definition.
Finally, although Father tried to address in this appeal the trial court’s attorney fee award based on his vex, that award was separately appealable and he didn’t file a notice. So no dice.
Affirmed, even though Mother never filed a respondent’s brief.
The father in a contentious child custody dispute got himself declared a vexatious litigant and hit with a pre-filing order. Father (pro se, of course) filed but abandoned an appeal of that order. He later moved to vacate it under § 391.8(a) of the Code of Civil Procedure, which was denied. He appealed again, which is where things currently stand.
First things first, Dad can’t directly challenge the propriety of the underlying order in this appeal. Appellate courts can’t review a decision from which a previous appeal could have been (or here, was) taken as a matter of right. Moreover, he didn’t argue that the order appealed in this case—the order denying his motion vacate—under the relevant standard, which requires him to show that there had been a “material change of facts” to get him off the naughty list.
But even if it were to reach the merits of the underlying order, the court would affirm. Father clearly did a bunch of stuff in the custody dispute that meets the standard for being a vexatious litigant: i.e., a person “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.” The fact that they were family court proceedings didn’t take him out of the definition.
Finally, although Father tried to address in this appeal the trial court’s attorney fee award based on his vex, that award was separately appealable and he didn’t file a notice. So no dice.
Affirmed, even though Mother never filed a respondent’s brief.
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