Opinion
B326148
04-23-2024
ARTHUR TSATRYAN, Plaintiff and Appellant, v. STEVEN FERNANDEZ et al., Defendants and Respondents.
Arthur Tsatryan, in pro. per., for Plaintiff and Appellant. Linda T. Barney for Defendant and Respondent Steven Fernandez. Monitz &Walker, Ronald M. Monitz and Jeffrey C. Walker for Defendant and Respondent Maya Shulman. S. David Kozich, in pro. per., for Defendant and Respondent S. David Kozich.
NOT TO BE PUBLISHED
Order Filed 4/30/24
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. 22STCV18171 John J. Kralik, Judge. Affirmed.
Arthur Tsatryan, in pro. per., for Plaintiff and Appellant.
Linda T. Barney for Defendant and Respondent Steven Fernandez.
Monitz &Walker, Ronald M. Monitz and Jeffrey C. Walker for Defendant and Respondent Maya Shulman.
S. David Kozich, in pro. per., for Defendant and Respondent S. David Kozich.
ORDER MODIFYING OPINION
[CHANGE IN JUDGMENT]
THE COURT:*
It is ordered that the opinion filed herein on April 23, 2024, be modified as follows:
On page 14, in the Disposition, the following sentence is deleted in its entirety: "All pending appeals filed by him in this court are stayed, and he shall have 15 days from the filing date of this opinion to request an order from the Administrative Presiding Justice allowing the continuation of any pending appeals."
Therefore, there is a change in the judgment.
ZUKIN, J.
INTRODUCTION
Plaintiff Arthur Tsatryan was married to Polina Tsatryan. In May 2015, the family court entered a judgment of dissolution. Arthur, in pro. per., filed multiple appeals challenging the judgment and postjudgment orders in that action, which our colleagues in Division Seven adjudicated. Arthur, again in pro. per., filed the current lawsuit against three attorneys who represented Polina in the dissolution proceedings: Steven Fernandez, Maya Shulman, and David Kozich (collectively, defendants).
We refer to Arthur and Polina Tsatryan by their first names to avoid confusion. We mean no disrespect.
Arthur appeals from the trial court's order granting each defendant's special motion to strike all causes of action in his complaint under Code of Civil Procedure section 425.16 (anti-SLAPP statute). Arthur contends the court abused its discretion in denying his request for oral testimony at the hearing and erred in granting the anti-SLAPP motions. We conclude the court did not abuse its discretion in denying Arthur's request for oral testimony. We further conclude Arthur has not carried his burden on appeal of demonstrating the court erred in granting the anti-SLAPP motions. Therefore, we affirm the order.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
During the pendency of the appeal, Fernandez filed a motion to declare Arthur a vexatious litigant and for imposition of a prefiling order. After considering the evidence and argument presented by the parties, we grant the motion. We declare Arthur a vexatious litigant, subject to the requirement of prefiling approval for any new litigation. (§§ 391, subd. (b)(1)(i), 391.7, subd. (a).)
Arthur's requests for judicial notice filed on November 21, 2023 and February 26, 2024 are denied as irrelevant to the issues on appeal. Arthur's motion to hold Fernandez in contempt of court filed on February 5, 2024 is denied. All of the alleged acts of contempt occurred in the trial court, either in the martial dissolution proceedings or in this current lawsuit. Therefore, this court is not the proper forum to address it.
FACTUAL AND PROCEDURAL BACKGROUND
The allegations and facts in this appeal are taken from the operative complaint, the evidence submitted in connection with the anti-SLAPP motions, and matters of which we may take judicial notice, including the unpublished opinions in the martial dissolution appeals.
Arthur and Polina were married on August 5, 1987. Arthur filed a petition for dissolution of marriage on September 23, 2009. In March 2015, Polina retained Fernandez as her attorney.
After a five-day trial, on May 21, 2015, the family law court entered a judgment of dissolution and found, in relevant part, that the former marital residence in Santa Clarita (Santa Clarita property) was community property. However, the court subsequently issued an order awarding Polina 100 percent of the Santa Clarita property after finding Arthur breached his fiduciary duties to Polina by executing seven deeds of trust conveying security interests in the property to friends and relatives.
In August 2016, Polina filed a complaint in joinder in the underlying marital dissolution proceedings for fraudulent transfer and declaratory relief against Arthur and the transferees. Fernandez withdrew as Polina's attorney in November 2016 while this litigation was still pending. In June 2017, Shulman was substituted in the action as Polina's attorney. However, Shulman's representation was brief, lasting only until November 2017.Kozich then represented Polina in a limited scope capacity in November and December of 2017. The complaint in joinder is currently pending.
Shulman filed a motion to be relieved as counsel for Polina in September 2017, but the trial court did not grant the motion until November.
On June 3, 2022, Arthur, in pro. per., filed the instant complaint against defendants for fraud, defamation, malicious prosecution, conspiracy, intentional infliction of emotional distress, and punitive damages. The crux of the complaint appears to be that Polina, in concert with defendants, litigated a procedurally improper complaint against Arthur in the underlying marital dissolution action.
In March 2018, Arthur, in pro. per., filed a lawsuit against Fernandez and Kozich for fraud, libel per se, defamation, conspiracy, wrongful eviction, and intentional infliction of emotional distress. (Tsatryan v. Tsatryan, L.A. Super. Ct. No. BC680322.) The allegations were also based on their representation of Polina during the marital dissolution action. The trial court granted Ferandez's anti-SLAPP motion in June 2018, and all claims against him were dismissed with prejudice. The court granted Kozich's demurrer to the operative complaint with leave to amend.
On November 4, 2022, the trial court issued an order granting defendants' separately filed anti-SLAPP motions. The court found all of Arthur's causes of action arose out of protected activity (i.e., defendants' statements or conduct were in anticipation of or in connection with a judicial proceeding) and that Arthur could not demonstrate a probability of prevailing on the merits on any claim. As to Kozich, the court only addressed the malicious prosecution cause of action because that cause of action was the only one argued in Arthur's opposition. As to Fernandez, the court stated that the fraud cause of action was not alleged against him and therefore did not address it in its ruling. The court also noted that conspiracy and punitive damages are alleged as causes of action in the complaint. However, it found that neither conspiracy nor punitive damages were valid causes of action. In its ruling, the court denied Arthur's request for oral testimony of himself, defendants, and two non-party individuals. A notice of ruling was served on all parties on December 8, 2022. Arthur timely appealed from the order.
DISCUSSION
1. Denial of Request for Oral Testimony
Arthur contends the court abused its discretion when it denied his request for oral testimony at the hearing on the anti-SLAPP motions.
In his opening brief, Arthur notes the trial court denied his ex parte application for limited discovery. However, Arthur fails to put forth any argument, conclusory or otherwise, that the court abused its discretion in denying the request. Therefore, we decline to address it. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684.)
"Motions ordinarily are heard on affidavits, alone. [Citations.] While a court has the discretion to receive oral testimony, it may refuse to do so and may properly rule solely on the basis of affidavits. [Citations.]" (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 359; Eddy v. Temkin (1985) 167 Cal.App.3d 1115, 1121 [although trial court has "discretion to accept oral testimony," it properly "exercised that discretion in favor of deciding the matter upon the declarations, which incorporated the depositions and documentary evidence"].) As noted by our Supreme Court, "[t]here is simply no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without hearing live testimony." (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 414.)
We reject Arthur's argument that credibility determinations require oral testimony. For purposes of the anti-SLAPP statute, the trial court "'does not weigh the credibility or comparative probative strength of competing evidence.'" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) Rather, the court "'should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.'" (Ibid.) Therefore, a credibility determination is irrelevant to the resolution of any disputed fact for purposes of an anti-SLAPP motion. We conclude the court acted within its discretion in denying Arthur's request for oral testimony.
2. Order Granting the Anti-SLAPP Motions
Arthur challenges the trial court's order granting the anti-SLAPP motions. We conclude he has not carried his burden of demonstrating reversible error.
Section 425.16 provides in relevant part: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) "[I]n applying the statute a court generally is required to engage in a two-step process: 'First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.'" (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
We review the trial court's ruling de novo, meaning we engage in the same two-step process as the trial court. (Mendoza v. ADP Screening &Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1651-1652.) However, in doing so, we must also keep in mind "'[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).)
To carry this burden of demonstrating reversible error, an appellant must provide an adequate record for us to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) In addition to an adequate record, an appellant's briefing must state each point under a separate heading or subheading summarizing the point and support each point with argument and, if possible, with citation of authority. (Cal. Rules of Court, rule 8.204(a)(1)(B).) "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeited]." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078 ["mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review"].) Although Arthur is representing himself on appeal, he is nevertheless held to the "same 'restrictive procedural rules as an attorney.'" (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
As a preliminary matter, we note that Arthur spends a good portion of his opening brief relitigating the trial court's postjudgment order awarding Polina 100 percent of the Santa Clarita property and the appellate court's subsequent opinion affirming the order (Tsatryan v. Tsatryan (Jan. 14, 2019, B270784/B276299) [nonpub. opn.]). This challenge is not properly before this court and therefore we do not entertain it.
While Arthur appeals from the court's order granting defendants' anti-SLAPP motions, his appellate briefing does not provide any cogent argument regarding the trial court's ruling on the motions. He does not argue the trial court erred in concluding his malicious prosecution, defamation, fraud, and intentional infliction of emotional distress causes of action arose from protected activity. To the extent Arthur argues this first prong, it was done in a conclusory manner and without citation to authority. Furthermore, he does not challenge the court's finding that conspiracy and punitive damages are not valid causes of action. In addition, Arthur fails to articulate how the trial court erred in determining he did not demonstrate a probability of prevailing on any (cognizable) claim. In his opening brief, Arthur does not identify the elements of each cause of action and develop a reasoned argument explaining how he established a probability of prevailing on the merits of any of the claims. Rather, he devotes a section to each defendant listing their alleged wrongdoing during the marital dissolution proceedings, specifically the prosecution of the complaint in joinder. Arthur's version of the events is not material in analyzing whether the court properly granted the anti-SLAPP motions.
Because a trial court's order is presumed correct on appeal, error must be affirmatively shown by an appellant. (Denham, supra, 2 Cal.3d at p. 564.) Therefore, we conclude Arthur has forfeited these arguments by failing to adequately develop them in his opening brief. (See Limon v. Circle K Stores Inc. (2022) 84 Cal.App.5th 671, 687; Trinkle v. California State Lottery (2003) 105 Cal.App.4th 1401, 1413; see also Bunzl Distribution USA, Inc. v. Franchise Tax Bd. (2018) 27 Cal.App.5th 986, 998 [issue insufficiently raised in opening brief deemed forfeited, although it appeared in "slightly more developed form" in reply brief].)
In his opening brief, Arthur appears to challenge the trial court's December 9, 2022 denial of his motion for reconsideration (§ 1008, subd. (a)). Arthur had sought reconsideration of the court's October 7, 2022 order denying his oral request to dismiss Kozich's anti-SLAPP motion. Arthur fails to identify this ruling in his notice of appeal. (Cal. Rules of Court, rule 8.100(a)(2) [the notice of appeal must "identif[y] the particular judgment or order being appealed"].) Rather, he solely appealed from the December 8, 2022 notice of ruling on the anti-SLAPP motions. Thus, we lack jurisdiction to review his claim. We also note that a motion for reconsideration is a nonappealable order. (§ 1008, subd. (g); Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 363-364; Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 871 ["denial of [a] motion for reconsideration [is] not appealable but [is] reviewable on [a] timely appeal of the underlying order"]; Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1576 ["The majority of courts addressing the issue have concluded an order denying a motion for reconsideration is not appealable, even when based on new facts or law"].)
3. Attorney Fees and Costs
Shulman argues she should recover attorney fees and costs as the prevailing party on appeal. We agree. (§ 425.16, subd. (c); GeneThera, Inc. v. Troy &Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910; Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 [defendant entitled to attorney fees and costs incurred in plaintiff's appeal as a prevailing defendant on anti-SLAPP motion].) Arthur does not challenge Shulman's request on appeal.
4. Vexatious Litigant
During the pendency of the appeal, Fernandez moved the court for an order declaring Arthur to be a vexatious litigant. He asserts that over the last seven years, Arthur, in pro. per., has filed, prosecuted, or maintained at least five civil actions or appeals that have been finally determined against him. (§ 391, subd. (b)(1).) Arthur opposed the motion. We issued an order to show cause why the court should not declare Arthur a vexatious litigant.
Fernandez filed a request for judicial notice of state court records in support of his motion to declare Arthur a vexatious litigant. Because Fernandez's attorney omitted her signature on her declaration, we cannot grant the motion. However, we take judicial notice of these records on our own motion. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
Fernandez alternatively argues Arthur is a vexatious litigant under section 391, subdivision (b)(2). Because we conclude Arthur is a vexatious litigant under subdivision (b)(1), there is no need to address this ground.
"We begin by summarizing the relevant aspects of the statutory scheme. The vexatious litigant statutes-sections 391 to 391.8-are 'designed . . . to protect opposing parties harassed by meritless lawsuits, [and] to conserve court time and resources and protect the interests of other litigants who are waiting for their legal cases to be processed through the courts.' ([In re] Marriage of Falcone &Fyke [(2012)] 203 Cal.App.4th [964,] 1005.) 'California's vexatious litigant statutes are constitutional.' (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 541.)
"Section 391, subdivision (b) defines several categories of vexatious litigants. Under the first category, a litigant is vexatious if they have filed, while self-represented, at least five qualifying litigations within the past seven years that were 'finally decided adversely' to them. (§ 391, subd. (b)(1)(i) [excluding actions in small claims court].) Litigation is defined as any 'civil action or proceeding, commenced, maintained or pending in any state or federal court' (id., subd. (a)), including 'an appeal.' (Garcia [v. Lacey (2014)] 231 Cal.App.4th [402,] 406 [(Garcia)].) An action is 'within the "'immediately preceding seven-year period'" so long as it was filed or maintained during that period.' (Id., at p. 406, fn. 4.) The seven-year period is measured from the date the motion or OSC is filed. (Ibid.; Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 224-225.) An action is 'finally determined adversely' to the litigant under section 391 if [the litigant] do[es] not win the action or proceeding they began-including appeals they have voluntarily dismissed and those involuntarily dismissed for procedural defects-and the 'avenues for direct review (appeal) have been exhausted or the time for appeal has expired.' (Garcia, [supra, ] at pp. 406-407 &fn. 5; Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173-1174 [appeal dismissed as untimely]; [In re] Marriage of Falcone &Fyke, supra, 203 Cal.App.4th at p. 1006 [appeal dismissed for failure to file opening brief].)
"If a self-represented litigant qualifies as vexatious under section 391, subdivision (b), a court may impose one of two remedies. (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1170-1171.) As relevant here, a court may enter a prefiling order preventing the self-represented vexatious litigant from filing new litigation without first obtaining permission from the presiding judge or justice where the litigation is to be filed. (§ 391.7, subd. (a); In re Marriage of Deal (2022) 80 Cal.App.5th 71, 77 [(Deal)].) Permission to file will be granted 'only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay.' (§ 391.7, subd. (b).) 'The "prefiling requirement 'does not deny the vexatious litigant access to the courts, but operates solely to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs.'" (Deal, [supra, ] at p. 77.)" (Karnazes v. The Lauriedale Homeowners Assn. (2023) 96 Cal.App.5th 275, 280-281.)
Arthur meets the definition of a vexatious litigant provided in section 391, subdivision (b)(1), in that, in this court alone, in the immediately preceding seven-year period he has commenced, prosecuted, or maintained in pro. per. at least five litigations that have been finally determined adversely to him as follows:
(1) In re Marriage of Tsatryan (Feb. 13, 2018, B265467) [nonpub. opn.], appeal from a judgment of dissolution, affirmed.
(2) In re Marriage of Tsatryan (Jan. 14, 2019, B270784) [nonpub. opn.], appeal from the order awarding the Santa Clarita property to Polina and ordering Arthur to pay attorney fees, affirmed.
(3) In re Marriage of Tsatryan (Jan. 14, 2019, B276299) [nonpub. opn.], appeal from an order denying Arthur's request to quash a writ of possession, affirmed.
(4) In re Marriage of Tsatryan (Jan. 14, 2019, B281633) [nonpub. opn.], appeal from a postjudgment order denying Arthur's request for modification of custody, affirmed.
(5) In re Marriage of Tsatryan (Feb. 11, 2019, B269812) [nonpub. opn.], appeal from two orders denying Arthur's requests to vacate the judgment of dissolution, affirmed.
(6) Tsatryan v. Tsatryan (Aug. 26, 2019, B294676), appeal from an order granting an anti-SLAPP motion, dismissed for failure to file an opening brief.
(7) Tsatryan v. Tsatryan (Oct. 30, 2019, B295938), appeal from an order granting an anti-SLAPP motion and two orders sustaining demurrers without leave to amend, dismissed for failure to file an opening brief.
(8) In re Marriage of Tsatryan (Aug. 24, 2020, B293433) [nonpub. opn.], appeal from a postjudgment order denying a motion to modify child support, affirmed.
(9) In re Marriage of Tsatryan (Jan. 6, 2021, B304113) [nonpub. opn.], appeal from a nonappealable order, dismissed.
(10) In re Marriage of Tsatryan (June 7, 2021, B304972) [nonpub. opn.], appeal from a motion for reconsideration, dismissed as a nonappealable order.
(11) Tsatryan v. Tsatryan (Apr. 12, 2022, B318024), appeal from an order striking a motion for disqualification and order dismissing Arthur's cross-complaint, dismissed as nonappealable orders.
(12) In re Marriage of Tsatryan (Apr. 18, 2022, B305927) [nonpub. opn.], appeal from a judgment, dismissed for lack of standing.
(13) In re Marriage of Tsatryan (Sept. 22, 2022, B311072) [nonpub. opn.], appeal from an order denying a request for an order vacating default judgment and declaring Polina a vexatious litigant, dismissed as to Arthur for lack of standing.
In opposition to Fernandez's motion, Arthur contends an appellate court cannot declare him a vexatious litigant. Not so. Appellate courts have the power to declare litigants vexatious and to impose prefiling orders-and they have done so on numerous occasions. (See, e.g., In re Marriage of Falcone &Fyke, supra, 203 Cal.App.4th at pp. 1005-1006; In re R.H. (2009) 170 Cal.App.4th 678, 683, disapproved on another point as stated in John v. Superior Court (2016) 63 Cal.4th 91, 99, fn. 2 (John); In re Whitaker (1992) 6 Cal.App.4th 54, 55; In re Luckett (1991) 232 Cal.App.3d 107, 110.) Indeed, our Supreme Court has held an appellate court may declare a litigant vexatious "in the first instance." (John, supra, at p. 99.) Arthur fails to challenge the merits of the motion.
Therefore, Arthur is a vexatious litigant under section 391, subdivision (b)(1). It is appropriate to enter a prefiling order prohibiting him from filing any new litigation in the courts of this state without first obtaining leave of the presiding justice. (§ 391.7, subd. (a).)
DISPOSITION
The order granting the anti-SLAPP motions is affirmed. Fernandez and Kozich are awarded their costs on appeal. Shulman is awarded costs and attorney fees on appeal, in an amount to be determined by the trial court.
Arthur is declared a vexatious litigant and may not file any new litigation in the courts of this state without first obtaining leave of the presiding judge of the court in which he proposes to file the litigation. (§ 391.7, subds. (a)-(b).) Before filing any appeals or writ petitions in the Court of Appeal, Arthur must seek leave from the Administrative Presiding Justice. All pending appeals filed by him in this court are stayed, and he shall have 15 days from the filing date of this opinion to request an order from the Administrative Presiding Justice allowing the continuation of any pending appeals. Disobedience of this order may be punished as a contempt of court. (§ 391.7, subd. (a).)
The clerk of this court is directed to provide a copy of this opinion to the Judicial Council. (§ 391.7, subd. (f).) A copy shall also be provided to the Presiding Judge of the Los Angeles County Superior Court.
WE CONCUR: COLLINS, Acting P. J. MORI, J.