What Do You Expect from a Guy Who Sues Little League?

Hanna v. Little League Baseball, Inc., No. E070995 (D5 Aug. 18, 2020)

The Court of Appeal holds that the trial court did not err in declaring Plaintiff—a baseball coach in a beef with the national little league association—to be a vexatious litigant under Code of Civil Procedure § 391. The record reflected that as a pro se litigant, plaintiff had commenced, prosecuted, or maintained at least five civil actions in the preceding seven years that had been finally determined adversely to him. Thus, the trial court correctly stayed the case until Plaintiff posted a cost bond and dismissed it when he failed to do so.

The trial court should not, however, have ruled on the Defendant’s discovery motions after it filed its vexatious litigant motion. Section 391.6 specific provides that any litigation is stayed until ten days after the motion is denied or, if granted, ten days after the litigant posts a bond. It was thus an abuse of discretion for the trial court to rule on the discovery motion and issue $1,200 in sanctions against Plaintiff. 

Reversed in part.

"This Vexatious Litigant Refuses to Stop Biting."

Colombo v. Kinkle, Rodiger & Spriggs, No. G055823 (D4d3 May 16, 2019)

Plaintiff here is a pro se that lost a case a long time ago and has been suing his attorneys over and over again since then. Four years ago, he got tagged with a pre-filing order under Code of Civil Procedure § 391.7. So he needs to get the presiding judge to sign off before he files any more cases pro se. He tried to sue the attorneys again. But the PJ said no, his claims were time-barred. He sought reconsideration, filed an appeal (which was deemed a writ) and came up zero on everything.

Meanwhile, he filed another lawsuit against the same lawyers. The PJ had turned over in the interim and current PJ (no doubt unawares of the last case) let him proceed. Defendant moved for judgment on the pleadings based on res judicata. The trial court granted the motion, but on the ground the case was time-barred. The Court of Appeal affirms, but on res judiciata grounds. The first prefiling denial was a final decision on the merits, so it operates as a bar.

Affirmed.

A Flawed Simulacarum of a Real Estate Case

Mack v. All Cntys. Trustee Serv., Inc., No. B280650 (D2d1 Aug. 30, 2018). 

This is one of litigations that starts with a real estate dispute, and then metastasizes into a seemingly endless series of suits about the dispute, and then suits about the suits about the dispute, and so on. At some point, Plaintiff was declared vexatious litigant. 

This current iteration appears to be Plaintiff’s effort to vacate judgments in earlier cases that resulted in her loss of title to the property. Plaintiff lost that in the trial court. On appeal, after vacillating several times between being represented (which avoids a vexatious litigant dismissal) and being pro per, Plaintiff finally manages to hang on to an attorney long enough to get to the merits. Or kind of. Because, represented or not, the record Plaintiff submitted on appeal is so deficient that the court can barely follow what’s going on, much less find a basis to hold that the earlier judgment was void. 

Affirmed.

Vexer Can't Get Out of Vex Decl. by Using Classic Vex Move

Pittman v. Beck Park Apts. Ltd., No. B266654 (D2d7 Feb. 27, 2018)

Plaintiff was declared a vexatious litigant back in 2010. He’s been trying to get out from under that order ever since. His main argument seems to be that the court that declared him to be vexatious didn’t have jurisdiction to do so, because he voluntarily dismissed the case where the vexatious litigant motion was pending before that decision on the motion. I.e, he tried to avoid being declared a vexatious litigant by using a classic move out of the vexatious litigant textbook. 

He’s been raising this argument up and down the courts for the better part of a decade, mostly being stymied by rulings on procedural grounds. So the Court here decides that enough is enough and reaches the merits of his beef. The vacation motion was brought under Code of Civil Procedure § 473(d), which permits a court to vacate a void judgment. A § 473(d) motion doesn’t have a time limit, so long as the voidness can be ascertained from the face of the record, which is the case with Plaintiff’s jurisdiction argument. So the Court of Appeal decides to reach the merits of the argument.

But it’s just another chance for Plaintiff to lose. It is true that a voluntary dismissal generally deprives a court of jurisdiction to enter further orders. There are, however, a bunch of exceptions to this rule, most of which exist to vindicate dismissed parties’ statutory rights on collateral issues that don’t go to the merits. Like when a plaintiff tries to avoid an award of attorneys’ fees or sanctions by dismissing the case. The Court here finds that the same rationales merit retaining jurisdiction to decide a pending motion to have someone declared a vexatious litigant when the litigant tries to weasel out of the finding by dismissing the case.

Plaintiff also raises some other challenges, but the Court finds that they are procedurally barred, for various reasons.

Affirmed.

Justice Can Be a Slog.

Fernandes v. Singh, No. C080264 (D3 Nov. 2, 2017)

Litigations involving vexatious litigants are exhausting, to both the opposing party and the court. One particularly frustrating aspect is that it often takes a very long time for the hammer to drop on someone who engages in vexatious tactics, and the process to get there usually passes through many additional rounds of vex. That’s the story of this case. Plaintiff in this case—a fraudulently evicted night-shift diner waitress—went through quite an ordeal, but eventually the system worked. At least until she tries to collect…

There’s a whole lot of procedural slog in this opinion, but most of it comes to naught. There is, however, one point of note. The main defendant is the vexatious litigant, who is apparently some kind of slumlord. But his wife and their real estate trust are also parties. At a point when all three were represented by counsel, an answer was filed for all of them. Counsel—who was basically the slumlord’s pleading-signing puppet—then withdrew, leaving all of the defendants pro se. After the court issued a substantial award ($96k in compensatory and $350k in punitive damages) Wife and the Trust moved to vacate, claiming they were never served. Wife put in a declaration to that effect. But the court, finding that they had appeared, didn’t credit it.

It was entitled to do so. Code of Civil Procedure § 647 creates a presumption affecting the burden of production that the facts stated in a process server’s declaration are true. Wife’s conflicting declaration was sufficient evidence to rebut the presumption, which renders it null. See generally Evidence Code § 603. But removing the presumption doesn’t take away the trial court’s ability as trier to fact to weigh the evidence and find that, all things considered, Wife and Trust had in fact been served or waived service by appearing.

Affirmed.

Vex Ain't a Family Affair

Hupp v. Solera Oak Valley Greens Assoc., No. E065766 (Jun. 23, 2017) 

Son has been previously declared a vexatious litigant. But the operative complaint in this case—about a completely stupid anti-pit bull HOA covenant—isn’t brought by Son. It was filed by Mother, although she’s also pro se. Defendants nonetheless filed an ex parte application seeking dismissal under Code of Civil Procedure § 391.7(c), on the grounds that pre-filing permission was not obtained. The trial court granted the application and dismissed the case.

Generally, being a vexatious litigant is a personal disability that applies only to the litigant’s bringing his own claims as a pro se. That gets extended a little—like in the recent Kinney v. Clark case—where the vexatious litigant is using an attorney as a sockpuppet to litigate on his own behalf. It could also apply if the plaintiff were some kind of alter ego of the vexatious litigant. But none of these apply, as least as to Mother’s claims brought to enforce her own rights. (Although the “puppet” doctrine did apply to a few claims that Mother was bringing to enforce Son’s rights.) So the trial court erred by striking Mother’s claims under § 391.7.

Reversed.

No Writs for the Vexatious

Ogunsalu v. Superior Court, No. D071323 (D4d1 Jun. 7, 2017)
 
A school teacher who has also been previously declared to be a vexatious litigant is a party to an ALJ case over a credentialing suspension. When the ALJ denied a continuance, Teacher petitioned for a writ of mandate from the superior court. The trial court imposed the prefiling requirements for vexatious litigants and refused to permit Teacher to file his writ. Teacher took his writ to the Court of Appeal, which also denied based on a lack of merit to get through pre-filing review. Teacher then sought review of that, and the Supreme Court granted and transferred the case back for reconsideration in light of its recent decision in the John case, which held that the pre-filing review requirements d
don’t apply to appeals were a vexatious pro per was appealing as a losing defendant.

The court notes the case is generally moot, because the ALJ proceeding is already over. But it reaches the merits anyway. The court finds John to be distinguishable. Although Teacher is a defendant in the ALJ proceeding, he is essentially a plaintiff in the writ case he filed in superior court. According to the Court, a writ like Teacher’s isn’t an “appeal” akin to John because an administrative ALJ hearing is not “litigation” as defined under Code of Civil Procedure § 391. Which means the writ petition is not an appeal but a new litigation initiated by Teacher, which makes Teacher effectively a plaintiff to whom the vexatious litigant pre-filing rules apply.

Affirmed.

You're the Puppet!!!

Kinney v. Clark, No. B265267 (D2d1, as modified Jun. 14, 2017)

This appeal is just the latest in a lengthy saga where a Disbarred Lawyer has been trying to duck a ten-year old order that he pay an adversary’s attorneys’ fees. He’s also been declared a vexatious litigant pretty much everywhere in Southern California and has pre-filing orders against him. This case is no different and the court dismisses the appeal as frivolous because the arguments D.L. raises have already been raised and lost in many other cases over and over again.

As a sanction, the court enters an expanded pre-filing order against D.L. that applies even to cases where he is represented by counsel! Code of Civil Procedure § 391.7 facially authorizes pre-filing orders only against pro se filings, on the theory that the ethical obligations of lawyers should be enough to prevent truly vexatious filings. But prior cases permit expanded orders when a vexatious litigant recruits attorneys to act as “puppets” in the filing of new frivolous litigation.

Dicta in the Supreme Court’s recent decision in John v. Superior Court, 63 Cal. 4th 91 (2016), doesn’t bode otherwise. There, the court held that a pre-filing order doesn’t apply to an appeal in a case where the vexatious litigant appeals a judgment in a case where he is a defendant. In passing, the Court referenced that “the “vexatious litigant statutory scheme [citation] applies exclusively to self-represented litigants.” But that statement alone doesn’t mean that the scheme can’t apply when attorneys act a mere puppets to vexatious litigants without exercising any independent professional judgment.

In any event, the court here finds that the puppet standard is met because the attorneys representing D.L. are just regurgitating old arguments that D.L. has made and lost on in a bunch of old resolved cases. Moreover, since prior orders have been ineffective, the court further notes that it can impose the limits under its inherent powers, as a means necessary to protect from abuse of the judicial process. But the expanded order applies only to additional filings in connection with the long-dead dispute that underlies this case.

In addition, the court issues $10,000 in monetary sanctions against the disbarred lawyer and orders the opinion sent to the state bar, lest he seek reinstatement at some point in the future.

Appeal dismissed and sanctions awarded.

Vexatious Litigants Don't Need Pre-Filing Leave When They Get Sued

John v. Superior Court, No. S222726 (May 5, 2016).

Code of Civil Procedure § 391.7 permits a court to enter an order requiring a pro se litigant deemed to be vexatious to get pre-filing permission before “filing any new litigation in the courts of this state.” “New litigation” has been read to include appeals from trail court cases where the vexatious plaintiff lost. The cases, however, have generally focused on pro se plaintiffs. (It is plaintiffs, after all, who generally “file new litigation.”) But if “new litigation” includes appeals, what happens when a vexatious litigant gets sued, loses, and tries, pro se, to appeal? Does she still need pre-filing permission to appeal? The authority on this issue is apparently unclear, so the Supreme Court granted review to settle it.

In a unanimous decision by Justice Chin, the Court notes that the statutory scheme generally reflects a Legislative understanding that a vexatious litigant is a pro se plaintiff. In particular, the statutes repeatedly refer to a “defendant” as the vexee, not the vexor. While repeated amendments made clear that the rule applied to opening new appeals, they nonetheless appear consistently premised on the idea that the vexatious appellant is a plaintiff too. So the answer to the question is no. No permission is required.

Affirmed.

Three Generations of Vex Is Enough

Goodrich v. Sierra Vista Regional Med. Ctr., No. B259726 (D2d6 Apr. 27, 2016)

Plaintiff, pro per, keeps trying to re-litigate the denial of a writ of administrative mandamus in which she unsuccessfully sought to challenge a hospital’s termination of her staff privileges. (Notably, she never appealed the initial denial.) On her second go at it, the trial court warned her that any more meritless filings could result in her being declared a vexatious litigant. She nonetheless did it again. So the curt made good on its word. It found that Plaintiff was a vexatious litigatant, under Code of Civil Procedure § 391(b)(2) and (3), and required her to post a $25k bond and obtain pre-filing leave before filing any more motions or actions.

The Court of Appeal affirms over a substantial evidence challenge. Under § 391(b)(2), one way to be a vexatious litigant is to repeatedly attempt to relitigate an issue or claim that has been finally determined against the person. Plaintiff contents that “repeatedly” requires more than three. But the court—relying on dicta in Morton v. Wagner, 156 Cal. App. 4th 963 (2007)—holds that three can be enough. So long as the record supports that “repeatedly relitigating issues previously decided in [a prior] judgment unreasonably burdened both [the opposing party] and the court, which had to expend time and other resources addressing the motions and appearing at unnecessary hearings.” Which was the case here.

For belt and suspenders, the court also affirms the finding under § 391(b)(3), which alternatively defines a vexatious litigant as one who “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.” Filing repeated and fruitless motions to collaterally attack a final judgment meets that standard. Particularly when Plaintiff continued to do so even after being admonished by the trial court.

Affirmed.

Jerk Plaintiffs Make Bad SLAPP Law

Finton Constr., Inc. v. Bidna & Keys, APLC, No. G050093 (Jun. 29, 2015)

This case is an offshoot of a very ugly-looking partnership litigation pending in LA Superior Court.  The gist of this matter is that a departing partner allegedly copied a bunch of files onto a hard drive, which he later turned over to his lawyers. The lawyers disclosed this fact to their opponents and the court in the LA case. Discovery issues regarding the handling and production of the files on the hard drive are being actively litigated in the LA case. The trial court appears to be making rulings to the effect that the drives don’t need to be unilaterally returned, and that that the documents on it are relevant and discoverable in the litigation. It has entered some orders attempting to work out a protocol to preserve and produce the documents, while ensuring that they aren’t misused. Seems reasonable.

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.