Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV147737
Premo, J.
Appellant Roda Hiramanek appeals from an order declaring her to be a vexatious litigant. (Code Civ. Proc., § 391, subd. (b)(3).) We conclude that the evidence is insufficient to support the order.
Further unspecified section references are to the Code of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
All of the litigation upon which the trial court based its order relates in some way to the dissolution of the marriage of Roda’s son and daughter-in-law, Adil and Kamal Hiramanek, and to the court-ordered sale of the family home on Sapa Court in San Jose where Roda also lives. The gist of the motion to declare Roda a vexatious litigant is that Adil has been using her to augment his war of litigation against Kamal. The record reveals the following:
Because three of the litigants involved are named Hiramanek, we shall refer to all the parties by their given names.
April 2007--Kamal petitioned for dissolution of marriage. Kamal and Adil separated. Kamal remained in the Sapa Court home along with the couple’s three sons and their grandmother, Roda.
June 2007--Roda, represented by counsel from “Senior Adults Legal Assistance, ” filed a request for temporary restraining order (TRO) against Kamal’s mother, Perviz Kapadia, who was visiting from India. Roda alleged that Perviz “yells at me and harasses me and my family” and that Perviz choked her and threatened her with a knife. Roda was 77 years old at the time; Perviz was 72. The trial court issued the TRO.
December 11, 2007--Adil sued Kamal and Perviz for defamation.
July 2008--Kamal and Adil reconciled. In a stipulation and order filed in the family court matter (the 2008 agreement) Adil, Kamal, Perviz, and Roda (as a claimant to the Sapa Court property) released all claims they had against each other and all litigation among them was dismissed. The Sapa Court property was to be titled in the names of Kamal and Adil. Roda waived any rights in the property and agreed to have her name removed from title, tax, insurance, and utility records. The 2008 agreement specified, “[Kamal’s] parents and [Adil’s] parent can visit and reside at [Kamal’s/Adil’s] family home as long as [Kamal/Adil] respectively desires for their own parent(s).”
March 5, 2009--Kamal filed a second dissolution petition.
April 21, 2009--Roda, in propria persona, filed a request for TRO against Kamal, alleging that, in a struggle over the mail, Kamal pushed her, causing her to fall and injure the bones around her eye. The court issued the TRO. The court later vacated that order.
May 8, 2009--Adil filed a motion in the family court seeking to have the 2008 agreement set aside.
May 11, 2009--Kamal filed an unlawful detainer action to evict Roda from the Sapa Court home.
May 13, 2009--Roda, in propria persona, filed a second request for TRO against Perviz. Attorney Thomas M. Bloom’s name appears on the papers as making a “special” appearance on Roda’s behalf. The trial court denied this request pending a hearing.
May 15, 2009--Kamal filed a motion in the family court to exclude Roda from the Sapa Court home. Kamal described the conflicts resulting from the joint living situation and submitted the reports of a private investigator who had interviewed the children and the neighbors. The family court denied the motion for lack of jurisdiction over Roda.
May 26, 2009--Adil sued Kamal and Perviz, alleging they had breached the 2008 agreement by trying to evict Roda from Sapa Court.
July 20, 2009--Roda, in propria persona, filed the instant civil case against Kamal and Perviz, seeking to set aside the 2008 agreement and enforce a promissory note.
July 21, 2009--Roda prevailed in Kamal’s unlawful detainer case.
August 20, 2009--Roda filed an amended complaint in the instant case. The first 10 causes of action sought to vacate the 2008 agreement. Roda alleged that she had paid for the Sapa Court house with her own money and was duped into signing the 2008 agreement. Causes of action 11 through 15 were for violation of the uniform fraudulent transfer act (Civ. Code, § 3439 (UFTA)), enforcement of the note, invasion of privacy, defamation, and damages arising from the unlawful detainer action, respectively. The note to which the amended complaint referred is a promissory note in favor of Roda signed by Adil and Kamal in 1999 in the amount of $446,683.91. Roda alleged that she has not received any payments on the note and that Kamal is jointly and severally liable for the full amount of the principal plus interest.
August 25, 2009--The family court ordered Adil to sign a listing agreement to put the Sapa Court property on the market.
August 25, 2009--Roda filed a “notice of pending action” referring to this case and her claim to the Sapa Court property. Attorney Thomas Bloom is designated as appearing under a “limited scope appearance” agreement.
August 27, 2009--Roda, in propria persona, filed a request for preliminary injunction seeking to stay the sale of the Sapa Court property. The request was denied.
September 10, 2009--The family court denied Adil’s motion to set aside the 2008 agreement. The court noted that the 2008 agreement had been executed by Adil and Kamal and their mothers. The court also noted that Adil’s motion had attempted to advance Roda’s claims. Since neither mother was joined in the proceedings, the court did not consider any claims they might have had. As to Adil’s dispute with Kamal, the court found Kamal’s testimony to be credible and Adil’s was “patently unbelievable.” The court denied the motion and sanctioned Adil $9,900.
October 25, 2009--Kamal and Perviz had filed a demurrer in this case. Roda filed a motion for sanctions under former section 128.6 and section 128.7, arguing that the demurrer was frivolous. After Kamal and Perviz filed opposition to the motion, Roda withdrew it.
December 14, 2009--The trial court issued a tentative ruling sustaining the demurrer without leave to amend as to the first 10 causes of action to set aside the 2008 agreement, overruling the demurrer as to the 11th, 12th, and 13th, causes of action (UFTA, collection of note, invasion of privacy), and sustaining the demurrer with leave to amend as to the 14th and 15th causes of action (defamation and damages for unlawful detainer).
December 15, 2009--On the date set for the hearing on the demurrer, attorney Thomas Bloom, making a “limited scope appearance” on behalf of Roda, filed a reply but neither he nor Roda appeared at the hearing. Roda then filed an ex parte motion to allow her oral argument. The court granted the motion and continued the hearing to January 7, 2010.
January 7, 2010--Attorney Bloom appeared “specially” on behalf of plaintiff to contest the tentative ruling. On the same day, Roda, in propria persona, submitted an ex parte application to stay the sale of the Sapa Court property.
January 11, 2010--The trial court filed its order, adopting its tentative ruling on the demurrer. The court also denied Roda’s request to stay the sale of Sapa Court.
January 12, 2010--Adil filed a request for preliminary injunction in the family law matter to stay the court’s order to sell the Sapa Court property. The court denied the request pending a hearing.
February 4, 2010--Roda, in propria persona, filed an ex parte application seeking the court’s permission to record a lis pendens against the Sapa Court property. The trial court denied the request, noting, “as far back as 2008 [Roda] waived ‘any and all future claims she may have in... the property.’... In addition, [Roda’s] son Adil Hiramanek, party to [the family law proceedings], sought a restraining order from the Court’s Family Law Division in August, 2009 to block the sale of the property, that request was denied. A fair reading of the pleadings presented is that [Roda] or [Adil], unhappy with the rulings in family court are attempting an end run to obtain a decision here that will plunge the property into an uncertain state. Furthermore, [Roda] was warned by defense counsel that Defendant would seek monetary sanctions if [Roda] proceeded with the instant ex parte application.” Accordingly, the court sanctioned Roda $500 pursuant to sections 405.38 and 128.7.
February 8, 2010--Roda, represented by attorney Milford Reynolds, filed a complaint for elder abuse (Welf. & Inst. Code, §§ 15657-15657.7) and malicious prosecution against Kamal. The elder abuse claim alleged the same incident alleged in Roda’s 2009 request for TRO against Kamal. The malicious prosecution cause of action related to Kamal’s unlawful detainer action. A first amended complaint added a cause of action for negligence. The case has been consolidated with the instant suit.
February 19, 2010--Adil sued the real estate broker who listed the Sapa Court property.
March 2, 2010--Adil sued Kamal and Perviz for domestic violence, assault and battery, defamation, invasion of privacy, and malicious prosecution.
March 18, 2010--Roda filed a second amended complaint in this case and Kamal and Perviz again demurred to some but not all causes of action. Roda requested entry of default on the causes of action to which Kamal and Perviz had not demurred. The court did not enter the default since the hearing on the demurrer was pending.
March 22, 2010--The family law judge issued an order to show cause why Adil should not be subject to a prefiling order as a vexatious litigant under section 391.7. One week later Kamal and Perviz filed a motion in this case, which they described as a complement to the family court’s order to show cause, asking the trial court to impose a similar prefiling order on Roda and declare her to be a vexatious litigant as defined by section 391, subdivision (b)(3).
May 5, 2010--The trial court issued a tentative ruling granting the motion to declare Roda a vexatious litigant and imposing a prefiling order pursuant to section 391.7. In the tentative ruling the court noted that Adil had been declared a vexatious litigant. During the hearing the parties clarified that the vexatious litigant question was still pending in the family court. Accordingly, the trial court corrected its tentative ruling on that point but adhered to its original decision on the motion. The court also noted, “[T]he point is that the litigation--there are multiple claims against the same parties... it’s all against the same person.” The court concluded that the number of papers filed against the same person were excessive. The court’s written order states that Roda “has repeatedly engaged in the filing of unmeritorious pleadings and papers while acting in propria persona and has engaged in tactics which are frivolous and intended to cause unnecessary delay. Further, these acts have been in most instances in concert with her son, Adil Hiramanek who is the subject of a separate vexatious litigant motion currently pending in the family law division of this Court. In addition the Court notes that these actions have revolved around the marital dissolution of Adil and Kamal Hiramanek.”
June 15, 2010--The trial court overruled the second demurrer in this case, leaving the last five causes of action from the first civil suit plus the elder abuse, malicious prosecution, and negligence claims to be tried. The court warned Kamal and Perviz not to file repeated demurrers that have already been overruled.
II. APPEALABILITY
Roda appeals from the order declaring her to be a vexatious litigant under section 391, subdivision (b)(3) and imposing a prefiling order under section 391.7. Roda is represented by counsel on appeal. She argues that there is insufficient evidence to support the trial court’s findings and that the court’s ruling is inconsistent with the Legislature’s intent in passing the vexatious litigant law. Before proceeding to the merits we must decide whether the order is appealable.
“There are three categories of appealable judgments or orders: (1) final judgments as determined by case law, (2) orders and interlocutory judgments made expressly appealable by statute, and (3) certain judgments and orders that, although they do not dispose of all issues in the case are considered ‘final’ for appeal purposes and are exceptions to the one-final-judgment rule.” (Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235.) There is no final judgment in this case; the underlying lawsuit within which the order was made is still pending. And an order designating a person to be a vexatious litigant under section 391.7 is not expressly made appealable by any statute.
Roda states in her opening brief that the order is appealable as an appeal from an order granting an injunction. Indeed, Luckett v. Panos (2008) 161 Cal.App.4th 77, concluded that a section 391.7 prefiling order is an injunction. Since section 904.1, subdivision (a)(6) makes appealable “an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction, ” the order at issue in Luckett, by which the lower court had refused to lift the vexatious litigant designation, was appealable as an order refusing to dissolve an injunction. By parity of reasoning we could construe the instant order as an order granting an injunction, in which case it too would be appealable under section 904.1, subdivision (a)(6).
In our view, the more appropriate analysis in this case is to consider the order within the context of the pending action. Where, as here, the order is made in the course of an underlying action but is collateral to the subject of that action, it is appealable pursuant to the collateral order doctrine. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 561.) Under the majority rule, “an interim order is appealable if: [¶] 1. The order is collateral to the subject matter of the litigation, [¶] 2. The order is final as to the collateral matter, and [¶] 3. The order directs the payment of money by the appellant or the performance of an act by or against appellant.” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-298, citing Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.) The section 391.7, subdivision (a) order in this case is wholly collateral to the subject of the underlying lawsuit. Indeed, it has no effect upon the instant action. It affects only litigation Roda might want to file in the future. The trial court’s granting of the motion is a final decision on that issue. And the order directs Roda to perform an act, namely to obtain an order from the presiding judge before filing any future litigation. Thus, the order is appealable as a final decision on a collateral matter. Accordingly, we turn to the merits.
III. DISCUSSION
The vexatious litigant statutes provide two remedies against vexatious litigants. The first is an order to furnish security, as described in section 391.3, in order to continue with the pending matter. The second, which is the only one with which we are concerned here, is the prefiling order authorized by section 391.7. That section authorizes the court to “enter a prefiling order which prohibits a vexatious litigant from filing any 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).) The presiding judge may allow the filing of the new action “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.” (Id. subd. (b).) Both remedies depend upon a finding that the litigant is vexatious, as defined by section 391.
Section 391 sets forth four separate definitions of vexatious litigant. Here the trial court found that Roda met the definition set forth in section 391, subdivision (b)(3), which defines a vexatious litigant as one who “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.”
Section 391, subdivision (b) states in relevant part: “ ‘Vexatious litigant’ ” means a person who does any of the following:
The determination of that which constitutes “repeatedly” and “unmeritorious” is left to the discretion of the trial court. (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1505-1506.) “Review of the order is accordingly limited and the Court of Appeal will uphold the ruling if it is supported by substantial evidence. Because the trial court is best suited to receive evidence and hold hearings on the question of a party’s vexatiousness, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment” so long as there is evidence to support the findings. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636.)
Of course, “[a]ny determination that a litigant is vexatious must comport with the intent and spirit of the vexatious litigant statute. The purpose of which is to address the problem created by the persistent and obsessive litigant who constantly has pending a number of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts. (Wolfe v. Strankman (9th Cir. 2004) 392 F.3d 358; People v. Harrison (2001) 92 Cal.App.4th 780.) Therefore, to find that a litigant is vexatious, the trial court must conclude that the litigant’s actions are unreasonably impacting the objects of [the litigant’s] actions and the courts as contemplated by the statute.” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 970-971 (Morton).)
Roda takes issue with each of the trial court’s findings, arguing that she has not represented herself in propria persona; she has not repeatedly filed unmeritorious pleadings and papers; her tactics are not frivolous; she has not acted in concert with Adil; and her acts do not revolve around the dissolution action. Kamal and Perviz maintain that Roda has failed to give a complete and fair summary of the facts and ask this court to impose sanctions of $10,000 pursuant to section 901 and California Rules of Court, rule 8.276(a).
Kamal and Perviz are correct that the rule is: “The appellant’s brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and it also must show how the evidence does not sustain the challenged finding. [Citations.] And the appellant must support all of its factual assertions with citations to evidence in the appellate record. [Citations.] If the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is waived.” (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) But while Roda’s brief recites evidence and directs us to where the evidence may be found in the record, the brief filed by Kamal and Perviz does not point to any evidence that differs from that described by Roda. Kamal and Perviz merely argue that Roda has not met her burden on appeal. Having examined the record we find that Roda’s recitation of the facts is substantially accurate and that the evidence is insufficient to support the order she challenges.
Although the trial court found that Roda had “repeatedly” filed unmeritorious pleadings and papers, the court did not cite any particular pleadings or papers it believed were repetitive or unmeritorious. “While there is no bright-line rule as to what constitutes ‘repeatedly, ’ most cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of an action or relating to the same judgment.” (Morton, supra, 156 Cal.App.4th at p. 972.) For example, in Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 225, the litigant filed approximately 20 motions during the same action, many of which were identical to motions previously brought and denied. In In re Whitaker (1992) 6 Cal.App.4th 54, 56, the litigant filed at least 24 actions in the superior court and 35 writ and appeal proceedings, the majority of which were meritless. The appellate court in In re Luckett (1991) 232 Cal.App.3d 107, 109, found the litigant to be vexatious based upon the lack of merit in “43 separate appellate actions.” On the other hand, as this court recognized in Morton, supra, at page 972, as few as three motions might form the basis for a vexatious litigant designation where, for example, they all seek the exact same relief which has already been denied or all relate to the same judgment or order or are filed in close succession.
In addition to being repetitive, the motions or pleadings must be predominately unmeritorious. (§ 391, subd. (b)(3).) That does not mean a litigant must always be successful; mere lack of success does not support a vexatious litigant designation. Rather, the repeated motions must be so devoid of merit and frivolous that they constitute a flagrant abuse of the system designed to harass the adverse party. (Morton, supra, 156 Cal.App.4th at p. 972.)
Roda’s filings do not come close to the vexatiousness described in the published cases. The record contains approximately 12 motions and pleadings initiated by Roda in connection with her claims against Kamal and Perviz. Three of those are requests for a TRO, two of which were granted. Notwithstanding the court’s rulings on the three requests, we cannot tell from the record whether Roda’s claims of abuse were true, false, or exaggerated. Where the court denied or vacated a restraining order, the record does not reveal the basis for the decision. Although Kamal challenged Roda’s allegation of abuse in connection with her motion to have Roda removed from the home, the family court did not make any findings on the point since it concluded that it did not have jurisdiction to decide the motion. The same allegation of abuse remains to be tried in connection with the underlying consolidated case. Since the record is insufficient to assess the merit of the three TRO requests we shall not consider them.
We are left to consider approximately nine filings. Portions of the two civil suits consolidated in this case have withstood demurrers and remain pending so that the merit of those is yet to be determined. The “notice of pending action, ” filed shortly after this case was filed, called for no response from Kamal and Perviz, nor is there any indication that the court entered any sort of ruling on it. The motion for oral argument, which Roda filed after missing the hearing on the demurrer, was granted. That leaves five actions initiated by Roda that were either denied or withdrawn: two petitions to stay the sale of the Sapa Court property, one request for default, one motion for sanctions under former section 128.6 and section 128.7, and one request for permission to record a lis pendens.
Two of the foregoing five papers were frivolous. Although never ruled upon, the sanctions motion, which challenged the first demurrer Kamal and Perviz filed, was wholly meritless. There was nothing about the demurrer that could be deemed inappropriate or harassing. Moreover, there is no indication that Roda had complied with the safe-harbor provisions of section 128.7, subdivision (b), which requires that she give the defense notice of the claimed defects before filing the sanctions motion. The request for default was also meritless since Kamal and Perviz had a second demurrer pending at the time Roda attempted to take their default. (Cf. § 585.)
Two other papers were repetitive, although only the second lacked merit. On August 27, 2009, a week after filing the amended complaint and a month after prevailing in Kamal’s unlawful detainer action, Roda filed a request for preliminary injunction to stay the sale of the Sapa Court property. That request was denied. Then, on January 7, 2010, the day upon which the trial court heard oral argument on the first demurrer, Roda filed another petition to stay the sale of the property. The court denied this second petition on January 11, 2010, the same day it sustained the demurrer to the causes of action to vacate the 2008 agreement. Roda’s first petition had arguable merit in that Roda did have an action pending that, if successful, would have voided the agreement by which she gave up her interest in the property. The second petition, however, was effectively the same as the petition the trial court had denied just four months earlier.
The only other paper is the February 4, 2010 request for permission to record a lis pendens against the property. Although she lost that motion, too, Roda did have an arguable basis for continuing to assert a claim against the property in that the trial court’s ruling on the demurrer, rejecting her causes of action to set aside the 2008 agreement and regain title to the property, was still subject to review on appeal from judgment. (§ 472c.)
At Roda’s request we have taken judicial notice of a minute order issued by the family court on January 27, 2011, in which the court denied what appears to have been Kamal’s motion for an order to sell the Sapa Court property. The minute order states: “[Roda’s] pending action for her interest in the home must be resolved prior to the sale of the home. [Roda] may suffer irreparable damages if the sale of the home goes forward be[fore] adjudication of her action.”
In sum, there are five actions initiated by Roda that were either denied or withdrawn, three of which (sanctions motion, request for default, second request to stay sale of property) would be considered meritless. This small handful of different types of motions (whether filed in propria persona or with the aid of counsel) does not support a finding that Roda has “repeatedly” filed “unmeritorious” or “frivolous” pleadings and papers such that she should be required to obtain permission before coming to court any time in the future.
We recognize that the trial court’s order is directed as much to Adil as it is to Roda. Indeed, there is little doubt that Adil has prepared Roda’s legal papers. Roda does not speak English. She is a native speaker of Gujarati and Adil interprets for her. It is quite clear, therefore, that Roda has not personally written any of the papers she has filed. Moreover, a comparison of the grammar and syntax in Roda’s pleadings with that used in Adil’s reveals that it has probably been Adil who has been writing for her. This is also true of several filings purportedly filed by counsel. But whatever role Adil has played, the record does not support a finding that Adil was using Roda as a puppet. (Cf. In re Shieh (1993) 17 Cal.App.4th 1154, 1167 [litigant who used attorney as “puppet” prohibited from filing new litigation in propria persona or through counsel absent a prefiling order].) Even if Adil drafted all the papers, Adil did not have Roda assert claims on his behalf. Her claims were all personal to her. This is in contrast to Adil’s own litigation, which in more than one instance sought to advance claims that belonged to Roda. A prefiling order against Roda would not affect those.
In short, the present record does not reveal Roda to be an obsessive litigant who constantly has pending a number of groundless actions such that she qualifies as vexatious under section 391, subdivision (b)(3).
IV. DISPOSITION
The order of the court declaring appellant Roda Hiramanek to be a vexatious litigant (Code Civ. Proc., § 391, subd. (b)(3)) is reversed. Respondents’ motion for sanctions is denied. The parties shall bear their own costs on appeal.
WE CONCUR: Rushing, P.J., Elia, J.
“(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 or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
“(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
“(3) In 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.
“(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.”