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.