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Kevorkian v. Hastings

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 23, 2020
B298624 (Cal. Ct. App. Jan. 23, 2020)

Opinion

B298624

01-23-2020

ANTRANIK KEVORKIAN, Plaintiff and Appellant, v. LISA ANN HASTINGS, Defendant and Respondent.

Antranik Kevorkian, in pro. per., for Plaintiff and Appellant. The Jamison Law Firm and Guy E. Jamison for Defendant and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC626405) APPEAL from an order of the Superior Court of Los Angeles County, John Kralik, Judge. Affirmed. Antranik Kevorkian, in pro. per., for Plaintiff and Appellant. The Jamison Law Firm and Guy E. Jamison for Defendant and Respondent.

____________________

Plaintiff and appellant Antranik Kevorkian (Kevorkian), in propria persona, appeals an order denying his motion under Code of Civil Procedure section 473, subdivision (d), to set aside an earlier order declaring him a vexatious litigant.

All further statutory references are to the Code of Civil Procedure, unless otherwise specified.

Although Kevorkian contends the order declaring him a vexatious litigant is erroneous, he failed to demonstrate the order declaring him a vexatious litigant is void, which was his burden in seeking relief under section 473, subdivision (d). Therefore, the order denying the motion to vacate is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In this action, Kevorkian alleges that while he was trying to serve defendant and respondent Lisa Ann Hastings (Hastings) with court papers, she ran from her driveway and charged in Kevorkian's direction angrily, yelling and with pepper spray in hand. The operative first amended complaint, filed September 28, 2016, asserted causes of action for assault, battery, intentional infliction of emotional distress, and "extreme and outrageous conduct."

On August 3, 2017, after Kevorkian and Hastings entered into a settlement agreement and mutual release, Kevorkian dismissed his lawsuit against Hastings with prejudice.

On September 25, 2017, Kevorkian filed a motion under section 473, subdivision (b), seeking to set aside his voluntary dismissal, claiming that he dismissed his action due to mistake and surprise. On November 3, 2017, the trial court denied Kevorkian's motion for relief under section 473. Kevorkian appealed, and this court affirmed that order in a nonpublished opinion. (Kevorkian v. Hastings (Apr. 30, 2019, No. B286203) [nonpub. opn.] (Kevorkian I).)

1. The February 11, 2019 order declaring Kevorkian a vexatious litigant.

On December 11, 2018, during the pendency of the appeal in Kevorkian I, Hastings filed a motion for an order declaring Kevorkian a vexatious litigant, placing him on the Judicial Council's vexatious litigant list, imposing a prefiling order to prohibit him from filing any new litigation in propria persona without leave of the presiding judge of the court where the litigation is proposed to be filed, and requiring him to furnish security for Hastings's benefit. Hastings contended that in the preceding seven-year period, Kevorkian had commenced, prosecuted, or maintained 11 matters in propria persona that had been determined adversely to him, qualifying him as a vexatious litigant within the meaning of the statute. (§ 391, subd. (b)(1).) Hastings also argued that Kevorkian qualified as a vexatious litigant because after matters were determined adversely to him, he repeatedly attempted to relitigate those matters in propria persona (§ 391, subd. (b)(2)), and because, while acting in propria persona, he repeatedly filed unmeritorious motions, pleadings, or other papers, conducted unnecessary discovery, and engaged in other tactics that were frivolous (§ 391, subd. (b)(3)). The motion was supported by a voluminous request for judicial notice of various court records.

In opposition, Kevorkian asserted that fewer than five actions had been finally determined adversely to him in the preceding seven years. (§ 391, subd. (b)(1).) Kevorkian argued, inter alia, that any case that was still pending on appeal was not a case that had been finally determined adversely to him, and that an appeal is not considered a separate litigation within the meaning of the vexatious litigant statute. Kevorkian also contended the evidence was insufficient to declare him a vexatious litigant under subdivisions (b)(2) or (b)(3) of section 391.

On February 11, 2019, after taking the matter under submission, the trial court found Hastings had shown there had been at least five litigations that had been adversely determined to Kevorkian within the statutory period. The trial court declared Kevorkian a vexatious litigant and granted Hastings's motion to the extent it sought a prefiling order barring Kevorkian from filing any new litigation in propria persona without leave of the presiding judge of the court where the litigation is proposed to be filed.

Because Kevorkian had voluntarily dismissed his action, the trial court denied Hastings's motion to the extent it sought an order requiring Kevorkian to post security. The trial court also noted that it had jurisdiction to rule on the vexatious litigation motion, notwithstanding Kevorkian's voluntary dismissal of the action. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 222-223 (Bravo); Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1024-1025 (Pittman).)

2. The March 22, 2019 order denying reconsideration.

On February 20, 2019, Kevorkian filed a motion for reconsideration. (§ 1008.) On March 22, 2019, the trial court denied the motion, finding that Kevorkian had not presented the court with any new or different facts, circumstances or law.

3. The April 8, 2019 order denying Kevorkian's motion to vacate the prefiling order and to remove his name from the vexatious litigant list.

On March 26, 2019, Kevorkian filed an application under section 391.8 for an order vacating the prefiling order and removing his name from the Judicial Council vexatious litigant list. On April 8, 2019, the trial court denied that motion.

4. The June 14, 2019 order denying the motion to vacate under section 473 , subdivision (d).

On May 17, 2019, Kevorkian filed a motion under section 473, subdivision (d), seeking to set aside the prior orders. Kevorkian asserted that the February 11, 2019 order declaring him a vexatious litigant "erroneously and unconstitutionally" applied the vexatious litigant statute (§ 391.7), and that order, as well as the April 8, 2019 order, were "arbitrary and capricious and facially void because [of the] absence of evidence to establish that [he] met the unconstitutional vexatious litigant status under CCP § 391.7(a) which violates his due process rights to be decided by the jury."

In opposition, Hastings argued that Kevorkian's claims that the trial court abused its discretion, used the wrong legal standard, misapplied case law, and reached the wrong decision, "do not form any basis for a determination that an order is void under CCP § 473(d)."

On June 14, 2019, after hearing the matter, the trial court entered an order denying Kevorkian's motion. The court rejected Kevorkian's theory that the February 11, 2019 order declaring him a vexatious litigant, and the April 8, 2019 order denying his application to vacate the prefiling order, "must be reversed because they are void." The court found that the current motion was "essentially another attempt to oppose the motion to declare him a vexatious litigant, as well as another attempt to move for reconsideration."

5. The appeal.

On June 18, 2019, Kevorkian filed a timely notice of appeal from the June 14, 2019 order.

An appeal lies from the denial of a statutory motion to vacate an appealable judgment or order. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 200, p. 276.) The February 11, 2019 order declaring Kevorkian a vexatious litigant was appealable as an order granting an injunction. (§ 904.1, subd. (a)(6); In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1347.) Therefore, the June 14, 2019 order, refusing to vacate the February 11, 2019 order, is appealable as an order denying a statutory motion to vacate an appealable order.

In addition to the June 14, 2019 order, the notice of appeal specified three other orders—the orders that were entered on February 11, 2019 (the prefiling order), March 22, 2019 (the order denying reconsideration), and April 8, 2019 (the order denying the motion to vacate under section 391.8). However, in response to a clerk's letter that directed Kevorkian to demonstrate why his appeal should not be dismissed as untimely, Kevorkian advised this court that he "is only appealing from the last motion that . . . was heard and argued on 6/14/2019[.]" Therefore, our review is confined to the June 14, 2019 order denying Kevorkian's motion to vacate under section 473, subdivision (d).

CONTENTIONS

Kevorkian contends in substance that the trial court erred in declaring him a vexatious litigant and in refusing thereafter to vacate that order. However, as noted in footnote 4, ante, our review is confined to the June 14, 2019 order denying Kevorkian's motion to vacate under section 473, subdivision (d).

DISCUSSION

1. Trial court properly denied Kevorkian's motion to vacate under section 473 , subdivision (d).

a. General principles.

Section 473 states in relevant part at subdivision (d): "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order." (Italics added.)

As the trial court noted in its ruling denying Kevorkian's motion under section 473, subdivision (d), Kevorkian's moving papers did not assert that the February 11, 2019 prefiling order was the product of a clerical error. --------

A judgment is void if the court "lack[s] fundamental authority over the subject matter, question presented, or party[.]" (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.) A trial court " 'has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void.' [Citation.]" (Lee v. Ann (2008) 168 Cal.App.4th 558, 563.)

b. Kevorkian's motion was properly denied because the prefiling order is not void.

Here, the February 11, 2019 prefiling order could not be set aside as void because the trial court had fundamental jurisdiction over the subject matter as well as over the parties. (In re Marriage of Goddard, supra, 33 Cal.4th at p. 56.)

Specifically, notwithstanding Kevorkian's voluntary dismissal of his lawsuit against Hastings, the trial court retained jurisdiction to rule on Hastings's motion under section 391.7 for a prefiling order. It is established that a court retains jurisdiction to rule on a motion under section 391.7 for a prefiling order even when litigation is no longer pending. (Bravo, supra, 99 Cal.App.4th at pp. 222-223.) Like a motion for attorney fees or sanctions, "a motion to declare a self-represented plaintiff a vexatious litigant deals with an ancillary issue and has no bearing on the finality of the judgment or dismissal. Retaining jurisdiction to decide a vexatious litigant motion is consistent with the purpose of the statutes, which are 'designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants.' (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.)" (Pittman, supra, 20 Cal.App.5th at p. 1024.) Thus, Kevorkian's voluntary dismissal of his action did not deprive the trial court of jurisdiction to rule on Hastings's motion for a prefiling order.

In addition to having jurisdiction over the subject matter of the motion for a prefiling order, the trial court had personal jurisdiction over the parties, and specifically over Kevorkian, who was the plaintiff herein. We also note that Kevorkian filed written opposition to Hastings's motion for a prefiling order, and that he personally appeared at the hearing on the motion.

Because the trial court had subject matter jurisdiction over Hastings's motion for a prefiling order as well as personal jurisdiction over the parties, there is no merit to Kevorkian's contention that the prefiling order entered on February 11, 2019 is void.

Because a trial court " 'has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void' " (Lee v. Ann, supra, 168 Cal.App.4th at p. 563), it is unnecessary to address any other issues raised by Kevorkian. Even assuming the trial court erred in declaring Kevorkian a vexatious litigant—a conclusion we do not reach—any such error would not render the prefiling order void. Therefore, the trial court properly denied Kevorkian's motion to set aside the prefiling order pursuant to section 473, subdivision (d).

DISPOSITION

The June 14, 2019 order denying Kevorkian's motion under section 473, subdivision (d), is affirmed. Hastings shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J. We concur:

EGERTON, J.

DHANIDINA, J.


Summaries of

Kevorkian v. Hastings

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 23, 2020
B298624 (Cal. Ct. App. Jan. 23, 2020)
Case details for

Kevorkian v. Hastings

Case Details

Full title:ANTRANIK KEVORKIAN, Plaintiff and Appellant, v. LISA ANN HASTINGS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 23, 2020

Citations

B298624 (Cal. Ct. App. Jan. 23, 2020)