Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. TED003292. Becky Dugan, Judge.
Law Office of Robert D. Barth, Robert D. Barth; Linehan & Associates and Andrew F. Linehan for Appellant.
Law Office of Jim Husen and Jim Husen for Respondent.
OPINION
Gaut, J.
This appeal arises out of nine years of highly contentious litigation, primarily over child custody, support and visitation of David Stagner and Mary Lou Stagner’s two children. David Stagner (father) has persistently sought to regain contact, visitation and custody of his children following dissolution of his marriage with Mary Lou Stagner (mother).
Father appeals two postjudgment orders entered on May 31, 2007. In the first order, the trial court denied father’s motion under Code of Civil Procedure section 473 to set aside numerous court orders entered in 1999 and 2000. In the second order the court granted mother’s motion to reinstate a previous vexatious litigant order against father.
Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
Father contends as to his section 473 motion that the trial court should have set aside various orders and a judgment because they were void and thus could be set aside at any time. With regard to the vexatious litigant order, father argues the trial court erred in declaring him a vexatious litigant because he filed his motions in good faith and there was the possibility of prevailing on them.
We conclude the trial court did not abuse its discretion in denying father’s section 473 motion since the orders and judgment were not void and it was too late to set them aside. In addition, the vexatious litigant order is sufficiently supported by the record. Mother’s request for sanctions is denied on procedural grounds, as well as on the ground the appeal is not sufficiently frivolous to warrant this court to award sanctions on its own motion. The judgment is affirmed.
1. Factual and Procedural Background
Mother and father married in 1983. They have two children who are 15 and 18 years old. Mother and father separated in March 1999, and mother petitioned for dissolution of marriage on March 29, 1999. Mother and the children remained in the family home.
Along with mother’s marital dissolution petition, mother filed a notice of an order to show cause (OSC) hearing for determination of child custody, visitation, support, injunctive relief, and attorneys fees. The OSC hearing was continued numerous times and ultimately heard on October 19, 1999.
During a hearing on November 16, 1999, the parties’ counsel filed a stipulation for judgment, signed by both parties and their attorneys. Both mother and father were present at the hearing. The trial court granted the dissolution petition and judgment on the petition. On February 25, 2000, the judgment for dissolution was filed and entered as a default judgment due to father refusing to sign the stipulated judgment.
Over a span of eight years, father filed numerous motions, including OSC requests to modify court ordered child custody, visitation, and support. Most of the motions were filed by father in propria persona and most were denied by the trial court.
This appeal concerns one of father’s motions, a section 473 motion filed on March 20, 2007, and denied by the court on May 31, 2007. Father requested the court in his section 473 motion to set aside six court orders and a judgment, entered in 1999 and 2000. Father also challenges in this appeal the trial court’s ruling on May 31, 2007, granting mother’s motion to set aside a court order vacating a ruling declaring father a vexatious litigant. These motions and their procedural background will be described in greater detail below.
2. Motion to Set Aside Various Orders, Rulings and Judgments
In father’s section 473 motion, father requested the court to set aside court orders and judgment entered on (1) July 30, 1999, (2) August 3 or 23, 1999, (3) August 24, 1999, (4) November 16, 1999, (5) February 25, 2000, (6) April 14, 2000, and (7) July 10, 2000. Father argued the orders and judgment were entered in violation of his state and federal constitutional due process rights and by means of extrinsic fraud by mother, mother’s attorney, and father’s previous attorney.
Father does not state in his notice of motion that he is seeking to set aside an order dated August 3, 1999. However, such relief is requested in his section 473 moving papers and his appellant’s opening brief.
Father acknowledges he erroneously stated in his section 473 motion that he was moving to set aside an order dated April 10, 2000, whereas the order is dated April 14, 2000.
As the trial court aptly put it during the hearing on the motion, father requested the trial court (and in turn requests this court) to “review basically every order since 1999 whether we like it or not and set most of them aside.” On May 31, 2007, the trial court denied father’s motion on the ground it was too late to set aside the 1999 and 2000 orders and judgment.
On appeal, father argues, as he did in the trial court, that the rulings were void and therefore he could request the court to set them aside at any time under section 473.
A. Applicable Law
Under Family Code section 2121, subdivision (a), “In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter.”
Subdivision (b) of Family Code section 2121 further requires that, “before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.”
Family Code section 2122 provides that the grounds for a motion to set aside a judgment, or any part or parts thereof, shall be one of the following: (1) actual fraud; (2) perjury; (3) duress; and (4) mental incapacity. (Fam. Code, § 2122, subds. (a)–(d).) The grounds and time limits for a motion to set aside a judgment governed by Family Code section 2122 also include, as to stipulated or uncontested judgments, “mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.” (Fam. Code, § 2122, subd. (e).)
In addition, section 473 permits the trial court to “relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” (§ 473, subd. (b).) To support such a claim, “the moving party must show good cause for that relief by proving the existence of ‘a satisfactory excuse for the occurrence of that mistake.’ [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1440.)
The lower court’s order setting aside a judgment or order “‘is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.’ [Citation.]” (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) “The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error. [Citation.]” (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) We will not disturb the trial court’s factual findings if they are supported by substantial evidence. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828.)
Father attempts to circumvent the limitation period from bringing a motion to set aside an order or judgment by arguing the order or judgment is void and thus can be set aside at any time.
B. July 30, 1999 Stipulation
In father’s section 473 motion, he requested the court to set aside a stipulated domestic violence restraining order against father, entered on July 30, 1999. On July 29, 1999, mother and father’s attorneys executed a stipulation agreeing to the following terms of the order: (1) Mother shall have exclusive use of the family residence and father will not enter the home, (2) father shall be restrained and stay at least 100 yards away from mother, the family home, mother’s place of work, mother’s vehicle, and the children’s school and child care; and (3) the restraining order shall remain in full force and effect, with the exception of peaceful contacts related to court ordered visitation of the children.
Father complains the July 30, 1999, stipulation was signed by his and mother’s attorneys without father’s knowledge or consent. Father claims he told his attorney by letter dated July 28, 1999, not to execute any stipulation. Father argues that due to his lack of consent to the stipulation, his attorney did not have authority to execute the stipulation. Father also complains that Commissioner Bishop ordered the stipulation entered as an order of the court on July 30, 1999, without a hearing and without providing notice to father. Therefore, father asserts, the court entered the stipulated order in the absence of personal jurisdiction over father and the order is void.
Father relies on In re Marriage of Kreiss (1990) 224 Cal.App.3d 1033 (Kreiss), for the proposition that the lack of a hearing and notice rendered the stipulated order void and subject to collateral attack at any time. Under former Civil Code section 4809 (now Fam. Code, § 215), service of notice of a post-dissolution motion to modify support or child custody must be upon the party, and not only upon the attorney of record.
Kreiss is inapposite. In Kreiss, a marital dissolution case, the former wife, appellant, was not served with notice of a motion to terminate her spousal support. The motion hearing was continued, with notice sent to appellant’s attorney but not to appellant. Due to appellant and her attorney’s failure to appear at the hearing, the court granted the motion and ordered spousal support terminated. The court in Kreiss reversed, explaining: “Respondent’s failure to serve appellant with notice of the motion is the equivalent of failure to serve summons and complaint, which renders a judgment void on its face and subject to collateral attack at any time. [Citation.]” (Kreiss, supra, 224 Cal.App.3d at pp. 1039-1040.)
Here, the failure to provide a party with proper notice of a post-dissolution court proceeding is not at issue since there was no hearing or post-dissolution proceeding. There was no need for a hearing or notice since the parties were submitting a request for a stipulated order, which the court entered as requested.
Father also argues, citing Levy v. Superior Court (1995) 10 Cal.4th 578, that the court lacked authority and acted in excess of its jurisdiction by entering the stipulated order when father had not yet paid “any first paper fees.” Levy does not concern the effect of nonpayment of court fees. The issue in Levy was “whether the written stipulation must be signed personally by the litigant, or whether the signature of the litigant’s attorney is sufficient to create a settlement enforceable under section 664.6.” (Levy v. Superior Court, supra, at p. 580.) In Levy, the court held that a settlement was not enforceable under section 664.6 because the parties did not sign the settlement agreement. Only their attorneys signed the agreement and therefore it was not binding.
The instant case does not involve enforcement of a settlement agreement under section 664.6. It concerns a stipulation entered as a court order. There was no motion to set aside the stipulation under section 664.6.
We recognize the July 30, 1999, stipulation was not signed by the parties and father had previously indicated in a letter to his attorney dated July 28, 1999, that he objected to some of the terms agreed to in the stipulation. However, the July 30 stipulated restraining order was incorporated into a subsequent stipulation dated August 23, 1999, entered as a stipulated order by the court on August 24, 1999. The parties both personally signed the August 23 stipulation and thus agreed in the stipulation that the existing restraining orders, which included the July 30 stipulated restraining order, would remain in full force and effect.
While father complains he did not have notice of the July 30 stipulated order, the record shows that he was aware of the terms of the order and agreed to incorporate the terms in subsequent orders. The trial court thus did not abuse its discretion in denying father’s motion to set aside the July 30 order, particularly since it had been eight years since entry of the order.
C. August 3, 23, and 24, 1999 Stipulations and Orders
In father’s section 473 motion notice, father states that he is challenging an August 23, 1999 ruling, as well as the August 24, 1999 ruling. However, in his motion points and authorities and in his appellate brief, father states he is challenging the August 3 and 24, 1999 orders. His section 473 motion challenges to these three rulings are without merit since they were proper and father has failed to provide any evidence the July 30, August 3, August 23, or August 24 stipulations and rulings were a product of extrinsic fraud committed by mother, mother’s attorney, or father’s previous attorney.
After entry of the July 30 restraining order, on August 3, 1999, father and mother, and their attorneys, signed a stipulation agreeing to, among other things, terms regarding child custody, child support, and spousal support.
On August 3, 1999, the trial court conducted a brief OSC hearing and entered a wage and earnings assignment order for child and spousal support. The OSC hearing apparently was continued because not all of the issues raised in the OSC were decided. The court also entered the August 3 stipulation as an order of the court.
Father points out that there was no mention at the August 3 hearing or in the August 3 stipulation that existing restraining orders, such as the July 30 restraining order, remained in full force and effect. We deem this fact insignificant and irrelevant since the August 3 stipulation and hearing pertained to support, custody and visitation. The court had already recently addressed the need for a restraining order by entering the July 30 restraining order.
On August 23, 1999, mother filed an OSC for modification of child custody, visitation, and attorney’s fees. Mother also requested that the July 30 restraining order remain in full force and effect. That same day, mother and father and their attorneys signed another stipulation in which they agreed that father would no longer have visitation; he was not to call mother or the children; the existing restraining orders were to remain in effect; the children were to attend counseling; the children’s therapist was to determine whether the parents were to participate in counseling with the children and when father could resume visitation and telephone contact with the children; and mother was to follow the therapist’s directions.
After the parties executed the stipulation, during a hearing on August 24, 1999, the court entered a temporary order that father was not to have any visitation and that the current restraining orders, which included the July 30 restraining order, would remain in full force and effect. The court incorporated in the order the August 23 stipulation. The parties and their attorneys were present at the hearing.
Father has failed to establish the August 3, 23, and 24, 1999, stipulations and orders were entered due to fraud and are void. Furthermore, since the August 1999 orders are not void, father’s motion, which was filed in 2007, almost eight years after entry of the orders, was untimely. Accordingly, the trial court did not abuse its discretion in denying father’s motion to set aside the orders.
D. The July 10, 2000, CLETS Order
Father complains that on August 3, 1999, the July 30, 1999, domestic violence restraining order (DVRO) was improperly submitted to CLETS. He also complains that the July 10, 2000, CLETS restraining order should have been set aside under section 473 because it was void and based on fraud.
CLETS refers to the Department of Justice’s computer system, known as the California Law Enforcement Telecommunications System. It contains reported criminal history information. “[T]he Department’s entry into CLETS of criminal information it receives . . . simply involves a transfer of information from one form of storage — the disposition reports — to another — the CLETS database.” (Bhatt v. Department of Health Services for State (2005) 133 Cal.App.4th 923, 930-931.)
The document in the appellant’s appendix which father cites to as the CLETS restraining order print-out is partially illegible. The printout refers to a temporary restraining order containing the same language stated in the July 30 DVRO but the date of the CLETS order and expiration date are not discernable. Father requests this court to order the CLETS restraining order entry set aside.
The record shows the CLETS entry arose from a criminal conviction against father for committing domestic violence against mother on August 20, 1999, in violation of the July 30 DVRO.
Father states that a CLETS restraining order was entered a second time into the CLETS system but does not say when and refers to the partially illegible printout in the appellant’s appendix. Thus this court is unable to determine the date of entry or date of expiration of the CLETS order. It is unclear as to whether this reflects the first CLETS restraining order entry or a renewal of the order.
It appears the CLETS entry may have been initially filed or renewed on July 10, 2000, when mother’s attorney filed a form (form DV-130) entitled, “Restraining Order After Hearing (CLETS), (Domestic Violence Prevention).” On July 10, 2000, the trial court entered the proposed CLETS restraining order as the order of the court. The court ordered father to stay 100 yards away from mother, the children, and various locations. The order also required supervised visitation pursuant to a April 14, 2000 order. The stated expiration date of the July 10, 2000, restraining order was July 30, 2002.
Father argues the CLETS entries were improper and should have been set aside because the underlying July 30 DVRO was void. He further complains that as a consequence of the July 30 DVRO, he was arrested on August 20, 1999, for violating the protective order and, in turn, the violation was posted on CLETS. This, however, does not provide a valid basis for reversing the trial court’s ruling denying father’s section 473 motion to set aside the July 10, 2000, CLETS order, especially since the July 10 order was entered almost eight years ago and the underlying Penal Code section 273.6 criminal conviction has not been set aside. Furthermore, this court has no authority to set aside father’s criminal conviction for violating the July 30, 1999 DVRO, from which the CLETS entry arose.
Father complains there was no “protective order” at the time he allegedly committed the August 20, 1999, Penal Code section 273.6 offense. This is untrue. There was the July 30 DVRO.
Father further argues that he was unaware of any restraining orders until October 2000, when he was again arrested for violating a restraining order. But on August 23, 1999, he personally signed a stipulation incorporating and agreeing to the July 30 DVRO. Also, a reasonable inference can be made that father’s attorney advised him of the July 30 DVRO prior to father committing the August 20, 1999, and October 2000 offenses, especially since father pled guilty to the August 20, 1999, offense.
There is no valid basis or authority for setting aside the CLETS order dated July 10, 2000, or any other CLETS order. We note that the July 10, 2000, CLETS restraining order expired on July 30, 2002, and therefore father’s contention is moot. As to any other CLETS order, we are unable to discern if and when such order was entered or the expiration date, and thus presume any such order has expired as well.
Father has failed to establish the CLETS entries and underlying orders are void based on due process violations or fraud. Father’s section 473 motion therefore was untimely under section 473 and Family Code sections 2121 and 2122.
E. The November 16, 1999 Stipulation and February 25, 2000 Judgment
Father contends the November 16, 1999, stipulation for judgment and the February 25, 2000, judgment are void because they give effect to the void orders entered in July and August 1999. Since, as discussed above, the August 1999 order incorporates the July 30 DVRO and is not void, we reject father’s contention that the November 16 stipulation and February 25 judgment are void. Furthermore, father, as well as his attorney, signed the November 16 stipulation for judgment.
In the November 16 stipulation, the parties agreed to enter a judgment whereby all child custody orders would remain in effect. The parties also stipulated to specified amounts of family support, health care coverage, distribution of property, and assignment of debts. The parties further stated that they waived the right to appeal the order. On November 16, 1999, the trial court entered the stipulation for judgment as an order of the court.
Father complains that the statement regarding custody in the November stipulation, that “all existing orders remain in full force and effect,” is vague and ambiguous because the stipulation does not specify what orders were actually in effect. Therefore he did not knowingly sign the stipulation. Father also complains there was no intent that the stipulation be a final judgment (although the stipulation states in large bold caps, “STIPULATION FOR JUDGMENT”), and he would not have agreed to any stipulation that did not include meaningful visits with his children. Father thus concludes the stipulation was based on extrinsic and actual fraud committed by mother and her attorney. He also claims as to the November stipulation that the children’s therapist, Dr. Lavorgna, misled him regarding his visitation rights. Father’s objections are difficult to follow and lack merit. The stipulation terms are sufficiently clear and there is no evidence of any fraud.
Father further claims the February 25, 2000, stipulated judgment was fraudulent because his attorney showed him the proposed stipulated judgment and father refused to sign it. He claims he would not sign it because it was based on the void July 30 and August 3, 1999, stipulations. The record indicates, however, that due to father refusing to sign the stipulated judgment in February, the court entered the February 25, 2000, judgment as a default judgment based on father and mother’s execution of the November 16, 1999, stipulation for judgment. There is no evidence of fraud.
Father argues the February stipulated judgment is suspect because it states that visitation rights awarded to father “are as currently ordered per the stipulation filed on August 23, 1999.” Father notes that it is troubling that the date of August 23 was originally stated in the stipulation as August 3, 1999, but the 3 is crossed out and replaced with “23.” We do not find this materially significant.
Since father waived the right to appeal the stipulated-for-judgment order, he also waived any objection to its terms. As to his contention the stipulations were a product of fraud, father has failed to meet his burden of establishing this.
Father further complains that the stipulations and judgment led to his arrest and conviction for DVRO violations. He claims his arrests and convictions should never have occurred because the underlying restraining orders were illegal, unnoticed, fraudulent and void. Father has failed to establish the trial court abused its discretion in rejecting father’s factual claims of fraud and deception. There is no evidence that mother, her attorney, or father’s attorney committed fraud or deception which led to the stipulations, court orders, and judgments in this case.
Because father has not met his burden, we must affirm the trial court’s order denying father’s section 473 motion to set aside the various orders and judgment in this case.
3. Vexatious Litigant Order
Father contends the trial court abused its discretion on May 31, 2007, by declaring father a vexatious litigant. Father argues an attorney was representing him during some of the proceedings and thus he did not qualify as a vexatious litigant. He also claims his motions were filed in good faith and there was the possibility of prevailing on them.
Mother argues this court cannot decide this issue because father failed to include in the appellant’s appendix a copy of her declaration supporting her section 473 motion to reinstate the vexatious litigant order. While this omission is significant, we will nevertheless decide the matter on the merits.
A. Background Facts
On July 8, 2004, Commissioner Moyer declared father a vexatious litigant due to father filing numerous OSC’s and other motions in the instant case, primarily relating to child custody, visitation, and support. At the time, father was appearing in propria persona on an OSC he had filed for modification of child custody, visitation, and support. After father testified at the OSC hearing, the court explained that the same matter had previously been heard and decided on many occasions over the past several years. The court noted that it was improper for father to continue filing the same motions over and over again, and that if he was unhappy with a ruling, the appropriate procedure was to appeal the ruling, not repeatedly to refile essentially the same motion.
In response, father indicated he intended to continue refilling his OSC motions until he got what he wanted. The court responded: “The same paperwork has been filed virtually on a monthly basis for the last two years. There has been no material change in circumstances that the Court can assert from the motion that was handled by Commissioner Elsworth quite some time ago. [¶] . . . [¶] [I]t’s the exact same paperwork over and over, no changes at all. . . . [¶] At this point in time, I have no other option but to designate you a vexatious litigant pursuant to 391 because it appears this paperwork is only being filed for the purposes of harassment.” The court ordered that as a vexatious litigant, father was barred from filing OSC’s unless he received approval by the supervising judge.
On May 22, 2006, father filed in propria persona a motion to set aside the July 8, 2004, vexatious litigant order. Father argued the order was void. On September 15, 2006, Judge Leonard granted father’s motion and set aside the vexatious litigant order. Mother, who did not have an attorney, was not present at the hearing. The court set aside the vexatious litigant order on the ground father did not have sufficient notice of the court’s intent to declare him a vexatious litigant and thus was not afforded a full and fair opportunity to respond.
Two months later, after the July 8, 2004, vexatious litigant order was set aside, father filed another OSC for modification of child custody, support, and visitation, and for a CLETS restraining order against mother. The court denied the CLETS restraining order against mother and ordered an Evidence Code section 730 evaluation of the parties and their children, including psychological testing.
On December 18, 2006, father notified the court of his withdrawal of his OSC request for modification. Father indicated he did not want to participate in an Evidence Code section 730 evaluation because it could negatively impact other pending legal matters he was involved in. He claimed his attorney told him to avoid the examination.
On March 14, 2007, mother filed a motion to set aside the order of September 15, 2006, and reinstate father as a vexatious litigant on the ground she had not received proper notice of the September 15 hearing date since the notice was confusing as to the actual hearing date. The September 15 hearing was originally set on June 23, 2006, but a July 6, 2006, minute order stated father’s motion would be heard on September 15, 2006. However, the minute order also stated supplemental opposition was to be filed by September 29, and the hearing would be on October 13, 2006.
Mother’s motion was heard and granted on May 31, 2007, right after the court denied father’s section 473 motion to set aside various orders and judgments. When denying father’s section 473 motion, the court told father’s attorney, Robert Barth, that he should have known better than to file such a section 473 motion, adding: “This is the exact example of why Commissioner Moyer declared him, and I agree that she did the wrong procedure, a vexatious litigant. We talked to everybody last time. I thought he appropriately took his [OSC] motion off calendar. I was glad to see that he did it. I made the rulings in accordance with that. [¶] And then, bing, the minute he’s undone as a vexatious litigant I get what is essentially the worst case of vexatious litigation that could be filed almost immediately on the Court finding that the procedure wasn’t filed correctly. It’s almost like he wanted to prove that he was a vexatious litigant.”
The court then heard and granted mother’s section 473 motion seeking to reinstate the court’s previous vexatious litigant order under section 391, subdivision (b)(3).
B. Applicable Law
Father argues there was insufficient evidence that he was a vexatious litigant. A vexatious litigant is defined under section 391, subdivision (b)(3) as a person who, among other things, “[i]n any litigation 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.” (§ 391, subd. (b)(3).)
Under section 391.7, subdivision (a) “[T]he court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.” (§ 391.7, subd. (a).)
Our review of the trial court’s order determining father to be a vexatious litigant is under the substantial evidence standard of review. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) We view the evidence in the light most favorable to the order, we presume that order is correct and we may imply such findings as are necessary to support it. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 780; Roston v. Edwards (1982) 127 Cal.App.3d 842, 847.)
The trial court’s findings amply support the vexatious-litigant determination.
C. Analysis
First we note Judge Leonard set aside the first vexatious litigant order, not because there was no merit to declaring father a vexatious litigant, but because father did not have sufficient notice of the court’s intent to declare him a vexatious litigant and thus he was not afforded a full and fair opportunity to respond.
Second, there was sufficient grounds to set aside Judge Leonard’s September 15, 2006, ruling setting aside the vexatious litigant order because notice of the September 15 motion hearing was inadequate.
During the May 31 hearing on mother’s motion, the trial court appropriately found that plaintiff was a vexatious litigant because he repeatedly attempted to refile OSC motions which had already been decided. The court also found that there was no reasonable probability that plaintiff would prevail on most of his motions, and father had said he intended to continue to file the same frivolous motions.
Father argues there was no showing he was not likely to prevail on his motions to modify custody, visitation, and support orders. Also, father claims he was not engaging in frivolous tactics intended to cause unnecessary delay and seek meaningless changes. Rather, for over seven years he simply had been trying to obtain custody and visitation of his children. The statute, however, merely requires that the repeatedly filed motions be “unmeritorious.” The fact that the trial court repeatedly denied them would support such a finding.
Furthermore, the record, including the register of actions, shows that during the seven-year period preceding the May 31, 2007, ruling declaring father a vexatious litigant, father, in propria persona, filed at least 14 motions, consisting primarily of OSC requests to modify support and custody, which were denied or taken off calendar. (See appellant’s appendix, including the register of actions in the appellant’s appendix, and mother’s list of 26 motions in her respondent’s brief, pp. 8–13.)
We note it does appear that many of father’s OSC requests were denied as to ex parte relief but were set for a noticed hearing. Thereafter most of the motions were either denied or taken off calendar. The trial court noted during the vexatious litigant hearings on July 8, 2004, and May 31, 2007, that father repeatedly requested the same relief after it had already been denied. The court told father during the May 31 hearing that refiling such OSC requests was inappropriate and that the proper means of challenging an order was by appealing it. Nevertheless, father told the court he intended to continue refiling his OSC motions because he was determined to regain visitation and custody rights to his children and appellate relief was too expensive.
We conclude the record sufficiently establishes that there was no reasonable probability father would have prevailed on most of his motions, particularly since they were denied. Furthermore, father told the court he intended to continue filing similar meritless motions even after being told an appeal was the proper avenue for challenging an order. The trial court did not abuse its discretion in granting mother’s section 473 motion on May 31, 2007, declaring father a vexatious litigant.
4. Sanctions
Mother has requested an award of sanctions against father on the ground his appeal is frivolous. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 646.) This court recognizes and shares mother’s frustration with the amount of litigation that has been engendered by father’s inability to accept and challenge by proper means the court’s rulings and orders in this matter.
Nevertheless, mother’s request for sanctions must be made by motion, not as an afterthought in a respondent’s brief, and this court declines to impose sanctions on its own motion. (Cal. Rules of Court, rule 8.276(b).) California Rules of Court, rule 8.276 provides in relevant part: “(a) Grounds for sanctions [¶] On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay; [¶] . . . [¶] (b) Motions for sanctions [¶] (1) A party’s motion under (a) must include a declaration supporting the amount of any monetary sanction sought and must be served and filed before any order dismissing the appeal but no later than 10 days after the appellant’s reply brief is due.”
After this court served on the parties its tentative decision rejecting mother’s sanctions request on the ground mother had not filed a timely motion requesting sanctions, mother filed a motion for sanctions prior to oral argument on father’s appeal. This court has considered mother’s motion for sanctions and concludes it is untimely. Mother’s request for sanctions is thus denied on procedural grounds and also because this court does not deem father’s appeal so frivolous as to warrant imposing sanctions on this court’s own motion.
5. Disposition
The judgment is affirmed. Sanctions for bringing a frivolous appeal are denied. Mother is awarded her costs on appeal.
We concur: McKinster, Acting P. J., Miller, J.