Opinion
G035955
5-29-2007
DOMENIC FEDERICO et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE et al., Defendants and Respondents.
Domenic Federico, in pro. per., Regina Federico, in pro. per., and Anthony Federico, in pro. per., for Plaintiffs and Appellants. Woodruff, Spradlin & Smart, Daniel K. Spradlin and Roberta A. Kraus for Defendants and Respondents.
NOT TO BE PUBLISHED
In 1993, Doris Federico ("Doris") was declared a vexatious litigant after filing a series of meritless lawsuits. Doris was precluded from filing any further litigation as a plaintiff, in propria persona, unless she obtained leave from the presiding judge where the litigation would be filed. (Code Civ. Proc., § 391.7.) In this appeal, Doris, and her family members (Domenic, Regina, and Anthony), appeal from the trial courts denial of Doriss request for a prefiling order, dismissal of the case, and refusal to grant motions for reconsideration of the above rulings. We dismissed Doriss appeal, and because the briefs fail to contain any reasoned argument or citation to relevant authority concerning Domenic, Regina, and Anthony, we affirm the judgment in its entirety.
I
Background Facts
On August 12, 2004, Doris, Domenic, Regina, and Anthony, acting in propria persona, filed a complaint in Orange County Superior Court against a plethora of Orange County public officials and agencies, including the Orange County District Attorney, the Orange County Sheriff, various employees at the Orange County District Attorneys office, the Orange County Sheriffs office, the Orange County Social Services Agency, and several Orange County Superior Court judges (collectively referred to as the Orange County Agencies).
The Federicos case sought to address several incidents that took place after Doris became the conservator for an 81-year-old blind man in poor health, Michael Kunec. He moved in with Doris and her husband, Domenic. Within a few months, Kunec transferred all his money and property to them. After Kunec died, a trial court ordered the money and property returned to his estate and Doris to pay $10,000 for conversion.
A short time later, Doris was arrested for elder abuse, theft, and false imprisonment of Kunec. Her grandson, Anthony, son of her daughter Regina, was taken into protective custody and removed from the family home. After the criminal complaint against Doris was dismissed, Anthony was allowed to return home, as long as Doris complied with orders to move out.
The Federicos complaint against the Orange County Agencies has causes of action for stealing, false imprisonment, false arrest, malicious prosecution, and kidnapping. It is alleged Doriss search, arrest, charges, and imprisonment were illegal. Doris claims she suffered damages from being arrested in front of her grandson and subsequently ordered to move out of her home. Doris believes she is the target of a conspiracy between the Orange County Agencies and its employees who wish to retaliate against her. The complaint fails to allege any separate or distinct claims relating to Domenic, Regina, or Anthony.
Shortly after the complaint was filed, the Orange County Superior Court recused itself and the case was reassigned to Judge Daniel S. Pratt in the Southeast (Norwalk) District of the Los Angeles Superior Court. Several status conferences and hearings followed, where Doris appeared without counsel, and often without Domenic, Regina, and Anthony.
On May 10, 2005, attorneys for the Orange County Agencies filed a "notice of plaintiff Doris Federico as vexatious litigant subject to [a] prefiling order." Citing Code of Civil Procedure section 391.7, subdivision (c), the notice stated the litigation would be dismissed within 10 days (May 20) unless Doris obtained a prefiling order. The next day, Judge Pratt set a hearing for May 25, 2005, regarding Doriss vexatious litigant status.
On May 24, 2005, Doris filed an ex-parte application in the Los Angeles Superior Court, seeking a prefiling order, or alternatively, an extension of time. Domenic, Regina, and Anthony were listed on the signature page, but did not sign the application. The application was considered by Judge Peter P. Espinoza, who denied Doriss request for a prefiling order, stating it was "not timely." The court also denied her request for an extension of time because there was "no cited authority to authorize [it] to extend time."
In Norwalk the following day, on May 25, 2005, Doris submitted a motion requesting: (1) a 90-day extension of time to obtain a prefiling order, find an attorney, and remove her name from the vexatious litigant list; and (2) the lawsuit not be dismissed. Once again, Domenic, Regina, and Anthony were listed as bringing the motion, but it was only signed by Doris. It solely addressed the issue of Doriss vexatious litigant status.
Later that day, Judge Pratt held a hearing. Doris appeared with an attorney, Jon Hultman, who stated he was making a general appearance for "the plaintiffs." However, the courts minute order states Hultman made a general appearance for Doris only.
The court began the hearing by stating, "I dont think theres any choice that the court has but to dismiss this matter. I will dismiss it without prejudice and you can go to Orange County and get permission to file it. But it appears to be jurisdictional. I dont think there is any discretion." The court asked Hultman if he wanted to be heard, and he replied he had not had a chance to review the motion. Doris interjected and stated she filed the motion, and Hultman did not know anything about it. Hultman advised the court he would review the motion and "see if it needs to be renewed, if we need to appeal it so to see what our options are." The court stated the case was dismissed without prejudice, and asked opposing counsel to give notice. (Italics added.)
The next day, the Orange County Agencies prepared a notice of ruling stating, "The court dismissed . . . Doris . . . from this action." (Italics added.) It also filed a demurrer, attacking the remaining plaintiffs and their causes of action. One week later, on June 2, 2005, the court issued a minute order stating, "The court, finding that this case was dismissed on [April 25, 2005], orders . . . [the] motion for demurrer . . . advanced to this date and vacated." Soon thereafter, the Orange County Agencies filed an amended notice of ruling stating, "The court dismissed the case without prejudice."
On our own motion, we took judicial notice of several documents contained in the superior court file, which are discussed in the above paragraph, but were not part of the record on appeal.
On June 3, 2005, Judge Espinoza received Doriss letter seeking reconsideration of his May 24th ruling. The letter was signed by Doris, not by or on behalf of Domenic, Regina, or Anthony. A few days later, on June 6, Judge Pratt also received a similar letter from Doris, requesting reconsideration of his May 25th ruling.
On June 8, 2005, Judge Espinoza denied Doriss letter request for reconsideration. On June 9, Judge Pratt denied the letter request for reconsideration he had received. Doris, Domenic, Regina, and Anthony appealed.
II
Proceedings on Appeal
Soon after the appeal was filed, the Orange County Agencies filed a notice in this court stating Doris was a vexatious litigant. Doris applied for an order permitting her to file an appeal with this court. On September 7, 2005, we denied her application under Code of Civil Procedure section 391.7, subdivision (c). In our order, we stated the application "fail[ed] to show the appeal has merit and has not been filed for purposes of harassment or delay . . . ." We invited the parties to address the question of whether the remaining appellants had standing to continue with the appeal.
In November 2005, we issued an order that dismissed the appeal as to Doris, but permitted Domenic, Regina, and Anthony to continue with their appeal and file an opening brief. Doriss petition for review of her dismissal to the California Supreme Court was denied, and a remittitur was issued by this court in March 2006.
We then received a flurry of motions, requests, and applications. In July 2006, we received, but did not file, documents attached to a letter from Doris (who was no longer an appellant). The same day we received a reply brief filed by Domenic, Regina, and Anthony. Attached to the reply brief were five exhibits consisting of the same extra-record evidence Doris attempted to file with her letter. The documents allegedly show Doris has been removed from the statewide vexatious litigant list. The Orange County Agencies promptly filed objections to the extra-record evidence. On August 7, 2006, we ordered the objections would be decided in conjunction with the appeal.
The following month, Domenic, Regina, and Anthony filed a motion to augment the record with the same five documents that had been attached to their reply brief. The Orange County Agencies filed an opposition. On September 7, 2006, we ordered the motion to augment would be decided in conjunction with the appeal.
In October 2006, Doris filed a "petition/request to recall the remittitue [sic] and request to reinstate plaintiff Doris . . . back into this appeal." The Orange County Agencies filed an opposition. This court denied Doriss petition/request.
Domenic, Regina, and Anthony filed an "application for permission to file" a reply to the objections to the extra-record evidence attached to the reply and motion to augment. We ordered the application would be decided in conjunction with the appeal.
Finally, both parties submitted letters and motions to augment the record in response to this courts order, inviting the parties to submit letter briefs addressing whether the appeal should be dismissed for lack of a written and signed final judgment of dismissal. (Code Civ. Proc., § 581d.) We ordered that these motions to augment would be decided in conjunction with the appeal.
III
Appellate Jurisdiction
The record does not contain a written and signed final judgment of dismissal as required by Code of Civil Procedure section 581d. We invited the parties to file letter briefs addressing this issue. In response, both parties filed applications to augment the record with the courts May 25, 2005, minute order and a June 6, 2005, amended notice of ruling, which both reflect the court dismissed the case without prejudice. Technically, an appeal cannot be taken from either of these documents. (Code Civ. Proc., § 581d.) However, in the interests of justice and to avoid delay, we construe the courts preliminary minute order dismissing the case without prejudice to include an appealable judgment, and we will deem the notice of appeal as being taken from the judgment. (See Coast Plaza Doctors Hospital v. UHP Healthcare (2002) 105 Cal.App.4th 693, 699.) We have taken judicial notice of the May 25, 2005, minute order.
IV
The Status of Doris Federico
This court dismissed Doriss appeal on November 28, 2005, and the decision became final 30 days thereafter. (Cal. Rules of Court, rule 8.264(b)(1).) When that time passed, this court lost jurisdiction over Doriss appeal, as well as our authority to modify the decision. (Cal. Rules of Court, rule 8.264(c)(1).) Because Doris sought Supreme Court review, the remittitur was not issued until March 2006. Issuance of the remittitur, terminated all appellate jurisdiction over the case and revested jurisdiction in the trial court. (See Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc. (1988) 202 Cal.App.3d 330, 336.) Accordingly, the judgment as to Doris is considered final and not reviewable. We lack jurisdiction to address arguments raised in the appeal solely concerning Doris. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 8:189, p. 8-122.) Our review will be limited to the portion of the judgment affecting the remaining appealing parties.
The appeal raises several issues solely concerning Doris, such as (1) her dismissal from the case for failing to timely submit a prefiling order, (2) the courts denial of her late prefiling order, and (3) her request for an extension of time. Because these arguments are not so inextricably interwoven with the issues concerning Domenic, Regina and Anthony, we need not address them. For this same reason, we deny all the requests and applications concerning Doriss vexatious litigant status.
V
DISMISSAL WITHOUT PREJUDICE
As noted above, this appeal now concerns only Doriss family members, Domenic, Regina, and Anthony. The sole issue to be resolved is whether it was reversible error for Judge Pratt to dismiss their complaint without prejudice when Doris was the only person subject to the vexatious litigant prefiling order requirement. (Code Civ. Proc., § 391.7.)
The Orange County Agencies argue Domenic, Regina, and Anthony failed to raise any objection at the trial court level, and therefore, they have waived their ability to do so on appeal. True, "Appellate courts will not reverse for procedural defects or erroneous rulings that could have been, but were not, challenged below. [Citations.]" (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 8:265, p. 8-146.) The record shows Domenic, Regina, and Anthony failed to raise any objection at the hearing when the court indicated it was going to dismiss the action. The attorney hired to specially appear at the hearing offered no comment on whether Domenic, Regina, and Anthony wanted to pursue the lawsuit without Doris.
However, the purpose of the hearing was to focus on issues surrounding Doriss prefiling obligation and whether her case should be dismissed. The motion to dismiss did not concern the other plaintiffs. Moreover, the record shows initially there was some confusion regarding the scope of the dismissal. The Orange County Agencies first prepared a notice of ruling stating only Doriss case was dismissed, and a week later filed their amended notice of ruling indicating the entire action had been dismissed. Under these circumstances, we cannot find Domenic, Regina, and Anthony waived their ability to raise any issues of error on appeal.
Unfortunately, the briefs on appeal do not assist Domenic, Regina, or Anthony in this regard. The briefs, obviously prepared by Doris, boldly state the entire lawsuit should not have been dismissed, but pinpoint issues relating only to Doris and her vexatious litigant status. Indeed, noticeably missing from the briefs are citations to any evidence or legal authority that would support a reversal as to Domenic, Regina, or Anthony. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court not required to search the record on its own seeking error and may deem the issue waived].) We found the complaint and the briefs gave no indication what causes of action supposedly related to them, as opposed to Doris. Whatever issues were preserved for appeal, have not been adequately briefed for us to review. "Appellants must affirmatively show error by an adequate record; error is never presumed. [Citation.] . . . Moreover, parties are required to include argument and citation to [relevant] authority in their briefs, and the absence of these necessary elements allows this court to treat . . . ." Domenic, Regina, and Anthonys unspecific challenge to the dismissal as waived. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
VI
Disposition
The judgment is affirmed. The parties request for judicial notice of the courts May 25, 2005, minute order is granted. All other motions, requests to augment the record, and requests for judicial notice are denied. Respondents shall recover their costs on appeal.
We concur:
BEDSWORTH, Acting P. J.
IKOLA, J.