Opinion
D080857
09-18-2023
DIANE MARIE BOSIO et al., Plaintiffs and Respondents, v. RICHARD G. LEMKE, Defendant and Appellant.
Richard G. Lemke, in pro. per., for Defendant and Appellant. Hughes &Pizzuto and Laurie E. Barber for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 37-2017-00000227-PR-TR-CTL Jeffrey S. Bostwick, Judge. Affirmed.
Richard G. Lemke, in pro. per., for Defendant and Appellant.
Hughes &Pizzuto and Laurie E. Barber for Plaintiffs and Respondents.
McCONNELL, P. J.
Following over five years of ongoing litigation regarding a family trust, the probate court granted a petition for a prefiling order under Code of Civil Procedure section 391.7 prohibiting Richard G. Lemke, as a vexatious litigant, from filing new litigation in propria persona without permission from a presiding judge. Lemke appeals this order, arguing he is not a vexatious litigant. As we shall explain, we disagree and affirm the court's order.
Subsequent undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Because the case has a lengthy procedural history that led to the vexatious litigant prefiling order, this section gives a summary overview of the case. This court's prior opinions, Del Pozo v. Lemke (Nov. 20, 2019, D074120) [nonpub. opn.], Del Pozo v. Lemke (Jul. 19, 2022, D078673) [nonpub. opn.], and Del Pozo v. Lemke (June 29, 2023, D080312) [nonpub. opn.] provide further factual background, and additional facts are set forth in the discussion section of this opinion.
Diane Bosio and Chas Rundberg initiated the underlying probate case in January 2017 by petitioning to remove Lemke as trustee of the Moore Family Trust. The probate court suspended Lemke as trustee in February 2017, and appointed a private professional fiduciary, Elizabeth Del Pozo, as temporary, interim trustee in March 2017. In the years since Del Pozo's appointment, Lemke, as a self-represented litigant, has repeatedly sought to remove her as interim trustee and continually challenged her administration of the trust. He has also pursued an Elder Abuse Restraining Order against Del Pozo, which the court denied due to insufficient evidence of abuse.
Both parties filed requests for judicial notice that were deferred to this panel for consideration with the appeal. Bosio and Rundberg requested judicial notice of the pleadings and records from prior appeals in this court and complaints and orders from the federal cases. The request for judicial notice of these documents is granted. Lemke filed two separate requests, seeking judicial notice of an ex parte application, a probate court minute order, and a letter from Bosio and Rundberg's counsel. These documents all post-date the order on appeal, making them inappropriate for judicial notice. Lemke's requests for judicial notice are denied. In addition, Lemke filed a motion to augment the record to include probate notes dated October 25, 2017. The motion is denied.
In August 2020, the court granted Bosio and Rundberg's motion for summary judgment, concluding they are beneficiaries of a portion of the trust. Since then, Lemke has repeatedly contested this finding, arguing he is the sole beneficiary of the trust and Bosio and Rundberg are "disinherited beneficiaries" who lack standing in the probate case. Lemke has also repeatedly argued the probate court lacks jurisdiction over the probate case, including the jurisdiction to determine whether Bosio and Rundberg are trust beneficiaries.
In addition, Lemke has unsuccessfully filed numerous writs and appealed adverse rulings from the probate court. Following many of these cases, Lemke has unsuccessfully petitioned our court for rehearing or reconsideration. He has also unsuccessfully petitioned the California Supreme Court for review several times.
In addition to repeatedly litigating in probate court, this court, and the Supreme Court, Lemke has attempted litigation in federal court several times. He removed the probate case to federal court in March 2017, but the case was remanded to state court. In early 2020, he filed separate complaints against Del Pozo, her counsel, and Bosio and Rundberg's counsel in federal court. In all three of these complaints, Lemke repeated his argument that the probate court lacked jurisdiction in the underlying probate case. The district court dismissed the complaints for lack of subject matter jurisdiction. Lemke appealed the dismissal of his complaint against Del Pozo's counsel, and the appeal was dismissed by the Ninth Circuit Court of Appeal for lack of subject matter jurisdiction.
On February 2, 2022, Bosio and Rundberg petitioned for a prefiling order under section 391.7 to prohibit Lemke, as a vexatious litigant, from filing new litigation in propria persona without the presiding judge's permission. Bosio and Rundberg argued Lemke is a vexatious litigant under section 391, subdivision (b)(1)-(3).
Lemke opposed the motion and also submitted a supplemental opposition brief, both of which were untimely. Lemke argued he should not be deemed vexatious because many of the cases that Bosio and Rundberg pointed to in their motion were not finally determined against him, but instead dismissed without prejudice.
Lemke also requested that the trial court stay the case based on two appeals he filed that were then pending in this court. The probate court found the appeals unrelated to Lemke's vexatious litigant status and denied the request.
At the initial hearing on the motion, the probate court allowed Lemke's untimely opposition and supplement, and continued the hearing to allow Bosio and Rundberg to file a reply. The court also ruled no additional filings from any party would be considered.
Thereafter, Bosio and Rundberg submitted a reply, and despite the probate court's order forbidding further filings, Lemke filed an additional supplemental brief. At the subsequent hearing on the motion, the court rejected Lemke's supplemental brief and granted the prefiling order. The court found Lemke's litigation and conduct in the ongoing probate case met the criteria of a vexatious litigant under section 391, subdivision (b)(1)-(3). Lemke timely appealed from the order.
DISCUSSION
I
"The vexatious litigant statutes (§§ 391-391.7) are designed to curb misuse of the court system by those persistent and obsessive litigants who ... waste the time and resources of the court system and other litigants" by "repeatedly litigating the same issues [in] groundless actions." (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169 (Shalant).) Section 391, subdivision (b), defines five categories of vexatious litigants, three of which are pertinent here. The first category deems a litigant vexatious if the person has filed, while self-represented, at least five litigations within the past seven years that were adversely decided against him. (§ 391, subd. (b)(1).) The second category considers a person vexatious if, following an adverse final determination of a litigation, the person repeatedly relitigated or attempted to relitigate, in propria persona, either (i) the validity of a determination against the same defendant or (ii) the cause of action, claim, controversy, or any of the issues of fact or law that had already been determined against the defendant. (Id., subd. (b)(2).) Under the third category, the person must have repeatedly filed, in propria persona, "unmeritorious motions, pleadings, or other papers ... or engage[d] in other tactics that are frivolous or solely intended to cause unnecessary delay." (Id., subd. (b)(3).)
Under section 391, "litigation" is defined broadly as "any civil action or proceeding commenced, maintained, or pending in any state or federal court." (§ 391, subd. (a).) "[T]he term 'proceeding' can, in some contexts, refer 'not only to a complete remedy ... but also to a mere procedural step that is part of a larger action or special proceeding.'" (Shalant, supra, 51 Cal.4th at p. 1173.) This means a "litigation" can include an appeal or civil writ proceeding filed in an appellate court or any petition, application, or motion, other than a discovery motion, in a probate court proceeding. (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406; § 391.7, subd. (d).) Additionally, for the purposes of the vexatious litigant statutes, a litigation is finally determined adversely to a party if the party does not win the action or proceeding that the party began, including cases that he or she voluntarily dismissed. (Garcia, at p. 407.)
If a self-represented litigant qualifies as vexatious under any of the five defined categories contained in section 391, subdivision (b), the trial court may impose one of two remedies to address problems caused by the litigant. (Shalant, supra, 51 Cal.4th at p. 1171.) First, in pending litigation where the plaintiff has been declared a vexatious litigant with no reasonable probability of prevailing, the court can order the litigant to provide security before continuing with the litigation. (§ 391.1.) The plaintiff's failure to furnish the security will result in dismissal of the case. (§ 391.4.) Section 391 defines "security" as "an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant." (§ 391, subd. (c).)
Section 391.7 provides the second remedy, at issue here, authorizing "a court[, on its own motion or the motion of any party,] to enter a 'prefiling order' that prohibits a vexatious litigant from filing any new litigation in propria persona without first obtaining permission from the presiding judge." (Shalant, supra, 51 Cal.4th at p. 1170.) A prefiling order does not completely block access to the courts, but rather serves as a "powerful ... tool designed 'to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs.'" (Ibid., quoting Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221-222 (Bravo).) "The presiding justice or presiding judge [may] permit the filing of ... litigation [from a vexatious litigant] only if it appears ... the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding judge may [also] condition the filing ... upon the furnishing of security for the benefit of the defendants ...." (§ 391.7, subd. (b).) If a vexatious litigant disobeys the prefiling order, he can be punished as a contempt of court. (Id., subd. (a).)
"A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court's ruling if it is supported by substantial evidence. [Citation.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment." (Bravo, supra, 99 Cal.App.4th at p. 219.)
II
Lemke's briefing is difficult to discern. He appears to argue he is not a vexatious litigant because Bosio and Rundberg, as "disinherited beneficiaries," lacked legal standing to petition the court for the prefiling order. Lemke also asserts the probate court lacked jurisdiction, and accuses Bosio, Rundberg, and their counsel of forgery, fraud, and elder abuse. As in prior appeals, Lemke repeats arguments he has used throughout the last five years of litigation without a reasoned basis to support his claims.
Lemke, as the appellant, has the burden to show the appellate record lacks substantial evidence to support the probate court's finding that he is a vexatious litigant. (SFPP v. Burlington Northern &Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 476; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) For any appellant, including those who are selfrepresented,"' "[a]ppellate briefs must provide argument and legal authority for the positions taken. '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 waived.'"' [Citation.]' "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." '" (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 383 (Orange County Water Dist.).)
Because Lemke does not provide a discernible basis on which we could reverse the finding that he is a vexatious litigant, rejecting his appeal on the ground that he has forfeited any appellate challenge would be appropriate. (Orange County Water Dist., supra, 14 Cal.App.5th at p. 383.) However, even if Lemke had provided a better reasoned challenge, we would conclude that substantial evidence supports the probate court's finding that he is a vexatious litigant. Though Lemke only needs to meet one category of vexatiousness set forth in section 391, subdivision (b), the record discloses ample support for the probate court's determination that he satisfied the criteria contained in section 391, subdivision (b)(1)-(3).
First, Lemke, who has been self-represented throughout the probate proceedings, has filed at least five litigations within the past seven years that were adversely decided against him. (§ 391, subd. (b)(1).) Although the record discloses additional qualifying actions, five appellate proceedings in this court alone bring Lemke within the definition of vexatious as set forth in this provision: (1) In January 2018, Lemke appealed two probate court orders, and both appeals were dismissed (Lemke's subsequent motion for reconsideration of the dismissals was also denied) (Del Pozo v. Lemke (case No. D073383)); (2) in May 2018, Lemke appealed a probate court order, and the appeal was dismissed as moot (Lemke's ensuing petition for rehearing of the dismissal was also denied) (Del Pozo, supra, D074120); (3) in December 2019, Lemke appealed a probate court order, which was dismissed following Lemke's request for dismissal (Del Pozo v. Lemke (case No. D076951)); (4) in March 2021, Lemke unsuccessfully appealed several minute orders of the probate court (Del Pozo, supra, D078673); and (5) in March 2023, Lemke appealed a probate court minute order, which we affirmed (Del Pozo, supra, D080312). These appeals, all resolved adversely to Lemke, provide sufficient evidence to support the probate court's finding that Lemke is a vexatious litigant under section 391, subdivision (b)(1). (See Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1163 [sufficient evidence supported a vexatious litigant finding under section 391, subdivision (b)(1) because appellant suffered an adverse final determination in at least five separate litigations that he commenced in propria persona in the last seven years.])
Second, as exemplified by his appellate briefing in this appeal, Lemke has repeatedly attempted to relitigate settled matters, rendering him vexatious under section 391, subdivision (b)(2). For instance, he has repeatedly challenged Bosio and Rundberg's status as beneficiaries of the trust, the probate court's jurisdiction over the probate case, and Del Pozo's appointment as interim trustee. (§ 391, subd. (b)(2).)
With respect to Lemke's challenges to the validity of Del Pozo's role, the probate court initially appointed Del Pozo as temporary interim trustee in March 2017. The following January, Lemke filed an ex parte application for removal of Del Pozo, which was denied. Lemke then appealed that order and another requiring him to post a bond to stay proceedings, both of which we dismissed as nonappealable. (Del Pozo v. Lemke (case No. D073383).) Lemke filed a motion for reconsideration of the matter, which we also denied. (Ibid.) He then filed a petition for review and a petition for writ of supersedeas in the California Supreme Court in April and May 2018, respectively, which were both denied. (Del Pozo v. Lemke (case Nos. S248408, S248731).) In the spring of 2021, Lemke filed two ex parte applications seeking removal of Del Pozo and asserting the probate court lacked jurisdiction over the case. Lemke also immediately appealed the denials of his removal applications, and this court issued Del Pozo, supra, D078673, which determined the probate court properly denied Lemke's removal applications. Lemke petitioned for reconsideration, which we denied.
These filings, repeatedly attempting to relitigate Del Pozo's appointment and spanning across all levels of our State's courts, constitute sufficient evidence to support the probate court's finding that Lemke is a vexatious litigant under section 391, subdivision (b)(2). (See Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1267 [even "as few as three motions might form the basis [of substantial evidence] for a vexatious litigant designation [under section 391, subd. (b)(2)] where they all seek the exact same relief, which has already been denied or all relate to the same judgment" because "[p]arties are entitled to rely on the finality of a judgment].)
Third, the record supports the probate court's finding that Lemke has "repeatedly file[d] unmeritorious motions, pleadings, or other papers ... or engage[d] in other tactics that are frivolous or solely intended to cause unnecessary delay." (§ 391, subd. (b)(3).) "What constitutes 'repeatedly' and 'unmeritorious' under [section 391] subdivision (b)(3), in any given case, is left to the sound discretion of the trial court." (Morton v. Wagner (2007) 156 Cal.App.4th 963, 971.) This subdivision does not specify "a quantity of actions necessary to fit the bill nor a timeframe within which the actions had to have taken place" for the court to designate a party as vexatious. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 640 (Golin).) The evidence need only show the person "engaged in litigation tactics that can be described as frivolous" or delaying. (Ibid.)
The record shows that Lemke's behavior-challenging the probate court's prior rulings at every stage-has impeded the administration and protection of the trust and the probate case's final determination. For example, in February 2017, the probate court ordered Lemke not to take action with any trust property without court order. The court discovered Lemke had previously transferred the trust's real property to himself, leading to his suspension as trustee, the appointment of the interim trustee, and the appointment of an elisor to transfer the real property back to the trust. Following his removal as trustee, Lemke refused to vacate the trust's real property, and in June 2018, Del Pozo was forced to file an unlawful detainer complaint to remove him from the property. The court also determined Lemke improperly took the trust's liquid assets, which he refused to turn over.
This record shows Lemke's uncooperative conduct and repetitive, unmeritorious motions as listed above, including the ex parte applications seeking the same remedy that had already been denied and the repeated appeals resulting in stays of the trial court proceedings, has delayed a final determination of the probate case. This conduct brings Lemke well within the definition of vexatious litigant pursuant to section 391, subdivision (b)(3), and supports the probate court's finding under this provision. (See Bravo, supra, 99 Cal.App.4th at p. 227 [appellant's continuous, unsuccessful motions and repeated theme of accusing the other parties of fraud and obstruction of justice in every motion, including in his briefing for the appeal of the vexatious litigant designation, provided sufficient evidence to support a finding of vexatiousness under section 391, subdivision (b)(3)]; Golin, supra, 190 Cal.App.4th at p. 639 [substantial evidence supported vexatious litigant designation under section 391, subdivision (b)(3) because the record demonstrated the appellants' "persistent and obsessive use of judicial challenges ..., both peremptory and for cause and without regard to timeliness or validity, [rose] to the level of a frivolous litigation tactic"].)
DISPOSITION
The order is affirmed. Costs are awarded to respondents.
WE CONCUR: IRION, J., DATO, J.