Opinion
F056618
2-17-2009
In re Finding of ESTEBAN MARTINEZ as a Vexatious Litigant.
Esteban Martinez, in pro per.
Not to be Published in Official Reports
OPINION
THE COURT
Over the last seven years, Esteban Martinez has filed a number of appeals in this court. Most are substantially illegible and incomprehensible. All, but one, have been determined adversely to him. The numerous hours this court has expended in response to Mr. Martinezs meritless appeals and writs, not to mention the hours the court clerks have expended responding to his numerous queries, have led this court to conclude that Mr. Martinez is a vexatious litigant within the meaning of Code of Civil Procedure, section 391, subdivision (b)(1)1 and should be subject to a prefiling order. (§ 391.7.)
PROCEDURAL HISTORY
On December 10, 2008, this court issued a written order and notice to Mr. Martinez that he appeared to be a vexatious litigant as defined by section 391, subdivision (b)(1). The order listed the appeals filed in this court that qualified Mr. Martinez for vexatious litigant treatment. The order further notified Mr. Martinez that the court was considering declaring him a vexatious litigant and prohibiting him 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.) The order invited Mr. Martinez to file evidence and argument on or before January 12, 2009, on the question of whether this court should declare him a vexatious litigant subject to a prefiling order. The order stated the matter was set for oral argument on February 6, 2009, at 2:00 p.m., the same date and time at which argument was set in another pending Martinez appeal, Martinez v. Fresno Police Department, case No. F054005. The notification provided, "If you fail to file evidence and/or argument or if you fail to appear for oral argument, the court will determine the matter based on its own records as set forth above."
Mr. Martinez did not file anything in response to the notice. He appeared on February 6, 2009, and argued the Martinez v. Fresno Police Department appeal. When the court called the vexatious litigant matter, Mr. Martinez stated that he was appearing in the Martinez v. Fresno Police Department appeal and was not appearing in any other case. He did not say that he had not received the notice and setting of oral argument served on him by mail on December 10, 2008. He acknowledged the address to which the vexatious litigant notice and setting of oral argument was mailed was his mailing address. In response to the courts statement that this was Mr. Martinezs opportunity to address whether the court should declare him a vexatious litigant subject to a prefiling order, Mr. Martinez stated that he had documents that showed a trial judge, the arresting officer, and many involved in his prior litigations were in privity with a home mortgage company and corporation and he did not know the significance of that information. He requested permission to file supplemental briefing to attempt to answer those questions. The request was denied. Mr. Martinez was asked if he had anything else to add in relation to the vexatious litigant matter and he replied, "I have nothing more." The matter was then submitted.
DISCUSSION
Vexatious Litigant Law
The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file frivolous lawsuits or attempt to relitigate issues previously determined against them. (§§ 391-391.7; Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 222-223; for an overview of the vexatious litigant statutory scheme see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group) ¶ 1:914 et seq. or 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 365 et seq., p. 470.)
Section 391.7, subdivision (a), the prefiling order provision, curbs misuse by prohibiting 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. (Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 59-60—rejecting constitutional challenges.) "Litigation" for purposes of vexatious litigant requirements includes proceedings initiated in the appellate court by notice of appeal or by writ petitions other than habeas corpus or criminal matters. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1219.)
The statutory definition of "vexatious litigant" includes a litigant who:
"(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person ...." (§ 391, subd. (b)(1).)
There need not be pending litigation for a court to move to declare an individual a vexatious litigant and subject him to a prefiling order. The prefiling order is directed at precluding the initiation of a meritless lawsuit and the costs associated with defending such litigation. Thus, section 391.7 affords protection to defendants named in pleadings not yet filed with the court. If individuals named as defendants in these lawsuits were required to wait until the action was pending, the prefiling order provided for in section 391.7 would be illusory. (Bravo v. Ismaj, supra, 99 Cal.App.4th 211, 222-223.)
A court on its own motion may declare a party a vexatious litigant and enter a prefiling order. (§ 391.7.) For example, in In re Luckett (1991) 232 Cal.App.3d 107, the Court of Appeal issued a written order notifying Luckett that it appeared he was a vexatious litigant based on his having filed 43 different appeals and writs as well as unmeritorious motions, pleadings, and other papers. The order notified Luckett the court was considering entering a prefiling order declaring him a vexatious litigant and prohibiting him from filing any new litigation without first obtaining leave of the presiding judge. (Id. at p. 108.) The order directed the clerk to set the matter for hearing on a given date, advised Luckett of his right to appear before the court at that time and present argument and evidence on whether he was a vexatious litigant and whether the court should enter the proposed prefiling order. (Ibid.) Luckett submitted written materials disputing whether he met the criteria to be declared a vexatious litigant but did not appear at the scheduled hearing. (Id. at p. 109.) The court considered Lucketts written arguments, found him to be a vexatious litigant within the meaning of the statute, and entered a prefiling order barring him from filing new litigation without the permission of the presiding justice. (Id. at p. 110.)
In In re Whitaker (1992) 6 Cal.App.4th 54, 57, the Court of Appeal declared Whitaker a vexatious litigant after ordering him to show cause why a prefiling order should not be granted. The matter was set for hearing, Whitaker appeared and presented arguments, and the court issued a written opinion declaring him a vexatious litigant subject to a prefiling order.
In Andrisani v. Hoodack (1992) 9 Cal.App.4th 279, 281, Andrisani had been found to be a vexatious litigant on two occasions in published Court of Appeal decisions. When Andrisani filed an application for a waiver of court fees and costs in anticipation of filing a new appeal, the court issued an order requesting the parties to file memoranda addressing whether the court should issue a prefiling order that would prohibit him from filing new litigation. (Id. at pp. 280-281.) Based on those responses, the court found no sound reason to preclude it from issuing a prefiling order and did so. (Id. at p. 281.)
(a) Notice and Hearing Requirements
Although the statute is silent on the subject, an individual may not be declared a vexatious litigant without a noticed motion and hearing which includes the right to oral argument and presentation of evidence. (Bravo v. Ismaj, supra, 99 Cal. App. 4th at p. 225.) However, failure to hold oral argument or a hearing does not necessarily constitute prejudicial error. If the litigant is afforded a full and fair opportunity to litigate the issues in the documents he or she files, the error may be harmless. (Id. at pp. 225-227.)
Application to Mr. Martinez
Mr. Martinez meets the definition of a vexatious litigant provided in section 391, subdivision (b)(1) in that in the immediately preceding seven-year period he has commenced, prosecuted, or maintained in propria persona at least five litigations that have been finally determined adversely to him:
1. In F038917, Mayer v. Martinez, filed September 17, 2001, Mr. Martinez appealed a temporary restraining order. The appeal was dismissed on March 5, 2002, after Martinez failed to file an opening brief. While this action was commenced outside the seven year period, it was prosecuted or maintained within that period.
2. In F046197, Martinez v. The People, filed August 27, 2004, Martinez filed a petition for writ of mandate challenging an order of the traffic court. The petition was denied based on an inadequate showing to warrant relief.
3. In F049057, Martinez v. Public Defenders Office, filed October 20, 2005, Martinez appealed an order dismissing his action. The opinion dismissing the appeal stated that appellants challenges to the judgment were "ambiguous, confus[ing] and fail[ed] to articulate any meritorious argument," and he was appealing a nonappealable order.
4. In F052494, Martinez v. Becker, filed March 23, 2007, Martinez challenged the trial courts grant of a motion to quash service. Martinez attempted to serve Becker by serving an attorney who had represented Becker in the past but was no longer his attorney. The appellate court found Martinez had not met his burden of demonstrating the trial court erred when it quashed service of summons.
5. In F053469, Martinez v. John Barker & Associates, filed August 8, 2007, appealed the order dismissing his complaint for legal malpractice and other wrongs after the court sustained defendants demurrer without leave to amend. The appellate court affirmed the judgment finding that Martinez failed to state facts sufficient to state a cause of action under any of the 15 legal theories asserted.
6. In F054084, Martinez v. Superior Court, filed November 6, 2007, Martinez sought a writ of prohibition staying a hearing scheduled for the next day. The petition was denied based on an inadequate record and failure to exhaust grounds.
Mr. Martinez has prosecuted additional appeals and writs, which are not yet final within the meaning of the vexatious litigant statutes, but demonstrate that he continues to subject his opponents and this court to groundless claims. In F054005, Martinez v. Fresno Police Department, filed October 24, 2007, Mr. Martinez appealed an order of August 7, 2007, granting the Fresno Police Department sanctions for Martinezs failure to appear at a noticed deposition. However, Martinez neither set forth argument nor cited authority regarding the sanction award but instead asked the court to affirm an order of February 15, 2007, that was not appealed.
In F056577, Martinez v. John A. Barker & Associates, filed December 8, 2008, Martinez attempted to relitigate the final judgment dismissing his action in appeal No. F053469 by moving for a writ of attachment and issuing subpoenas to the trial judge, Barker & Associates, and Barkers legal counsel. The trial court denied his motion and quashed the subpoenas. He attempted to appeal; Barkers counsel filed a motion to dismiss and this court dismissed the appeal as taken from a non-appealable order on January 8, 2009. On February 6, 2009, Mr. Martinez filed a petition for writ of mandate in that case which, once again, attempts to reargue the merits of the underlying case.
Conclusions
Esteban Martinez has repeatedly misused the courts of this state. His misuse has impacted other litigants and this court. "`Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this courts attention. In the same vein, the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this courts time and resources." (In re Whitaker, supra, 6 Cal.App.4th at p. 57.)
DISPOSITION
In light of his history of meritless filings, this court finds that Esteban Martinez is a vexatious litigant within the meaning of section 391. Henceforth, pursuant to section 391.7, Esteban Martinez may not file "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).) Disobedience of this order may be punished as a contempt of court. (Ibid.) "The presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3." (§ 391.7, subd. (b).)
The clerk of this court is directed to provide a copy of this opinion and order to the Judicial Council. (§ 391.7, subd. (e).) Copies shall also be mailed to the presiding judge and clerks of the Fresno County Superior Court. --------------- Notes: Before Levy, Acting P.J., Gomes, J., and Kane, J. 1. Further statutory references are to the Code of Civil Procedure. 2. The Court served Mr. Martinez by mail at his address of record, 3813 E. Clinton Ave., Fresno, California 93706. Mr. Martinez has used that address in the last 12 matters he has prosecuted in this court. Mr. Martinez used the Clinton address in appeal No. F054005 and appeared for oral argument in that case on February 6, 2009, at 2:00 p.m. in response to an argument notice sent to the Clinton Avenue address on December 2, 2008. Moreover, on February 6, 2009, shortly before oral argument, Mr. Martinez filed a petition for writ of mandate in another matter. The proof of service declared "my residential address is 3813 E. Clinton Ave. Fresno California 93706." 3. In Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32 the court held that the requirement to seek leave to file an appeal does not apply to a defendant who has been declared a vexatious litigant in unrelated litigation. The court reasoned that an appealing defendant is not filing "new" litigation but rather attempting to "undo" the results of litigation that had been instituted against him. (Id. at pp. 39-40.)