Opinion
A164973
08-22-2023
JENNY LIN, Respondent, v. CHRISTOPHER ALVA, Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. D0704899)
Miller, J.
This appeal arises from proceedings that the family court described in 2013 as "an emotionally bruising, protracted struggle over child custody issues," and in which appellant Christopher Alva has been declared a vexatious litigant pursuant to Code of Civil Procedure section 391, subdivision (b)(3).
Further undesignated statutory references are to the Code of Civil Procedure.
Alva submitted two requests to file new litigation in the family court proceedings as a vexatious litigant. The first was an order to show cause and affidavit for contempt asserting respondent Jenny Lin had violated the 2011 judgment by refusing to turn over a certain financial account, and had violated the 2017 interim custody and visitation orders by allowing negative comments about Alva to be made to their child (Minor). The second was a request for order that included legal and physical custody of Minor to Alva, phone calls and extended visitation between Alva and Minor, and the transfer of that certain financial account to Alva. Both requests were denied.
Alva now appeals the orders denying his pre-filing requests. Our disposition will be twofold. To the extent the orders denied Alva's requests to litigate purported violations of interim orders, we will dismiss the appeal of those orders because they are non-appealable. To the extent the orders denied Alva's requests as a vexatious litigant to litigate a purported violation of the 2011 judgment, we will reach the merits and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This action was initiated in 2007 by a petition for legal separation filed by Lin. According to Alva, it was converted into a marital dissolution proceeding by the filing of his response in 2008.
A. Alva as Vexatious Litigant
In 2010, the family court declared Alva to be a vexatious litigant under section 391, subdivision (b)(3). It found Alva had filed multiple, unmeritorious statements of disqualification against the judge and "engaged in other tactics solely intended to cause unnecessary delay in this proceeding." It also entered a prefiling order, pursuant to section 391.7, prohibiting Alva as a vexatious litigant from filing any new litigation in propria persona without approval of the presiding judge. The family court subsequently modified its prefiling order to encompass not only the filing of new litigation in propria persona, but also through counsel.
B. Dissolution Judgment
A status-only judgment of dissolution was entered in 2010. A judgment on reserved issues was entered in 2011. Neither judgment is included in the record on appeal.
C. Interim Custody and Visitation Orders
In 2017, the family court entered interim modified orders regarding custody and visitation. Among other things, it provided that Lin "continue to have sole legal and physical custody of the child" and Alva have supervised visits two days each month. It stated that Alva "may continue to have phone calls" with Minor on two days each week. It also ordered: "Neither parent shall discuss or permit others to discuss in the child's presence or hearing any court cases or parental disputes (except appropriately in the context of counseling with the counselor's guidance and approval)."
D. Alva's Request to File OSC on Contempt
Alva submitted two requests to file new litigation as a vexatious litigant in February 2022. On February 7, Alva sought to file a request for order to show cause (OSC) and affidavit for contempt.
Using Judicial Council form VL-110, Alva alleged that Lin had violated the 2011 decision assigning Alva a $6,345.37 Scott Trade account. Alva attached an e-mail chain with Lin's counsel from November 2016. Alva wrote: "After innumerous [sic] requests and now almost 7 years later, I would like to have the Scott Trade Account turned over to me as per the court order." Lin's counsel responded: "I have reviewed the terms of your Judgment re the division of the Scott Trade account ending in #7735, which asset was assigned to you at the value of $6,345.37. I also note that this account was designated as a college fund for [Minor]." Lin's counsel represented that, pursuant to the terms of the judgment, Alva still owed Lin $7,315.27 plus interest, but that Lin would waive this amount if the Scott Trade account funds were put into a 529 college savings plan for Minor. Alva rejected that proposal.
Alva also declared that Lin had violated the 2017 interim custody and visitation orders because Lin and another adult had made negative comments about Alva to Minor.
The presiding judge denied Alva's request by a Judicial Council VL-115 form order. The form order did not require any written statement of reasons, and the judge did not provide one.
E. Alva's Request to File RFO
The next day, February 8, 2022, Alva sought approval to file a request for order (RFO). Alva declared that Lin had violated the 2017 interim custody and visitation orders by allowing negative comments to be made about Alva to Minor, and that Lin had "unilaterally ended all of the court ordered phone calls" between Alva and Minor.
The RFO included a request that Alva be granted legal and physical custody of Minor, visitation orders to "[r]establish regular phone calls" between Alva and Minor, and "extended visitation" between Alva and Minor. It also requested that Lin "give [Alva] the Scott Trade account ending in #7735 as she was originally ordered to do" in 2011.
The presiding judge again denied this request on a Judicial Council form order, but this time added a handwritten statement that Alva's request was "duplicative of earlier requests - which were denied. Denied on same grounds."
F. Appeal
Alva filed a notice of appeal from both the February 7 and 8, 2022 orders. On June 9, 2022, Lin filed a "notice" asking that the appeal be dismissed because Alva was declared a vexatious litigant by the family court and he had not sought leave to file this appeal. On June 17, 2022, Alva filed an application for an order from the presiding justice of this court granting him leave to proceed with the appeal pursuant to section 391.7, subdivision (c). On June 20, 2022, the administrative presiding justice issued an order citing John v. Superior Court (2016) 63 Cal.4th 91 and stating that the vexatious litigant rules do not apply because Alva was not a plaintiff in the court below. The order concluded: "The appeal can proceed as normal." Lin filed a "motion for reconsideration" of that order. The administrative presiding justice construed the motion as a petition for rehearing and denied the petition.
Section 391.7, subdivision (c) provides, in relevant part, that if litigation presented by a vexatious litigant subject to a prefiling order is filed without that order, any party may file "a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order" and the litigation "shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation as set forth in subdivision (b)."
On June 28, 2022, we asked the parties for letter briefs on a different appealability question: whether the recently published decision In re Marriage of Deal (2022) 80 Cal.App.5th 71 (Deal), addressing appealability of orders denying a vexatious litigant's request to file new litigation, had any applicability to the present appeal. Lin filed a letter brief arguing that "[t]he facts in Deal are very similar to the facts in this case" and, under Deal, "there is no statutory authorization for an appeal of the orders Christopher has attempted to appeal." Alva argued to the contrary. After considering the letter briefs, we concluded that "the court is not persuaded that the appeal should be dismissed."
DISCUSSION
A. Appealability
Before reaching the merits of the appeal, Lin renews her two arguments regarding appealability. We address each in turn.
1. Prefiling Requirement
Lin asks us to reconsider the administrative presiding justice's order that the appeal could proceed, arguing that Alva was a vexatious litigant subject to the requirement that he first obtain leave before filing his appeal but did not do so. Lin, however, presents no authority for the proposition that we may reconsider a determination that is committed solely to the presiding justice under the express language of section 391.7, subdivision (b). We decline to do so here, particularly given that it would not alter the ultimate disposition of this appeal.
Lin asks us to take judicial notice of the dockets in nine prior appeals to show Alva's "activities as a vexatious litigant." Alva does not dispute that he was declared a vexatious litigant by the family court. We deny the request as unnecessary to our resolution of this appeal. (See, e.g., TransparentGov Novato v. City of Novato (2019) 34 Cal.App.5th 140, 146, fn. 3.)
2. Appealability of the Orders
Lin also asks us to revisit the appealability of the February 7 and 8 orders. She contends that Deal "concludes categorically that 'a trial court order denying a vexatious litigant's request to file new litigation under . . . section 391.7 is not appealable.'" While we disagree with this characterization of Deal, as well as Lin's prior attempt to compare its facts as "very similar" to those in this case, Deal articulates a framework for appealability that is instructive here.
The vexatious litigant in Deal had made seven requests to file new litigation. (Deal, supra, 80 Cal.App.5th at p. 75.) The trial court denied the requests, observing that they "sought to overturn 'prior rulings' and to have the dissolution judgments 'declared void.'" (Id. at p. 76.) An appeal followed. (Id. at p. 77.) Deal first noted that an order denying a vexatious litigant's request to file new litigation is not among the appealable orders listed in section 904.1. (Deal, at p. 78.) The vexatious litigant, however, argued that such an order was appealable as an order made after a final, appealable judgment under section 904.1, subdivision (a)(2). (Deal, at p. 78.)
Deal then explained: "It is well settled that 'not every postjudgment order that follows a final appealable judgment is appealable.'" (Deal, supra, 80 Cal.App.5th at p. 78.) It must also "satisfy two additional requirements" as set forth in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin). (Deal, at p. 78.) The first requirement" 'is that the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment.'" (Ibid.) The second is" 'that "the order must either affect the judgment or relate to it by enforcing it or staying its execution." '" (Ibid.)
Deal concluded that the order did not satisfy either requirement. (Deal, supra, 80 Cal.App.5th at p. 78.) The issues raised on appeal were not different from those that could have been raised in appeals from the dissolution judgments, as the vexatious litigant was "using this appeal to litigate the validity of the dissolution judgments." (Ibid.) Nor did the order affect the judgment, as "every issue relating to the dissolution has 'already been decided' and there is 'nothing further for the Court to decide.'" (Ibid.) In short, Deal did not deem every order denying a vexatious litigant's request to file new litigation to be categorically unappealable. Instead, to be considered an appealable order made after a final appealable judgment under section 904.1, subdivision (a)(2), it must satisfy the requirements in Lakin.
Applying this framework from Deal, we begin by clarifying the final appealable judgment here. The 2017 interim custody and visitation orders cannot constitute the final appealable judgment because those orders are not appealable. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 456 [explaining "interim custody orders are nonappealable"].) The 2011 judgment on reserved issues, however, appears to be a final appealable judgment. (§ 904.1, subd. (a)(1).) Lin does not dispute this.
The question then is whether the February 7 and 8 orders satisfy the two requirements in Lakin. To the extent they denied Alva's requests to litigate purported violations of the 2017 interim custody and visitation orders (negative comments and ending of phone calls), we conclude they do not. Importantly, the 2011 judgment on reserved issues is not in the appellate record. Providing an adequate record on appeal "is a procedural and substantive requirement on the part of any party prosecuting an appeal or asserting a position on appeal." (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.) Alva has not done that here, and thus we cannot determine whether the two Lakin requirements have been met. Even if he had, Alva's request to enforce interim custody and visitation orders cannot satisfy the second requirement from Lakin. A post-judgment order "affects" the judgment or "relates to its enforcement" when "it determines the rights and liabilities of the parties arising from the judgment, is not preliminary to later proceedings, and will not become subject to appeal after some future judgment." (Lakin, supra, 6 Cal.4th at pp. 653, 656.) The interim custody and visitation orders are, by their very nature, preliminary to final custody and visitation orders, and related issues will be subject to appeal after those final orders are entered.
To the extent that the orders denied Alva's requests to litigate Lin's purported failure to turn over the Scott Trade account, however, there is an adequate record to conclude that these orders are appealable. Unlike the custody and visitation orders, Alva specifically asserts that the assignment of the Scott Trade account is part of the 2011 judgment on reserved issues. Lin does not dispute this assertion, and it is supported by the record in the November 2016 e-mails between Alva and Lin's counsel: Alva requested the transfer "per the court order" and Lin's counsel responded that she had "reviewed the terms of your Judgment," in which the Scott Trade account was "assigned" to Alva. We are also persuaded that the two Lakin requirements are met as to this portion of the orders, because litigating a contempt claim (1) is different from issues that could have been raised in an appeal from the 2011 judgment, and (2) relates to the enforcement of the 2011 judgment. (Lakin, supra, 6 Cal.4th at pp. 651-652.)
In sum, we conclude that the February 7 and 8, 2022 orders denying Alva's requests are non-appealable to the extent they denied his requests to litigate purported violations of the 2017 interim orders. But to the extent they denied Alva's requests to litigate a purported violation of the 2011 judgment on reserved issues, we conclude the orders are appealable. We thus turn to the merits only as to this appealable portion of the orders.
Given this conclusion, we need not address the parties' additional arguments on these requests, including any applicability of claim or issue preclusion based on Alva's civil action for slander per se and intentional infliction of emotional distress from the alleged negative comments made to Minor about him. We deny Lin's request for judicial notice of five filings from Alva's civil action, as well as the docket in that action, for the same reasons.
B. Merits
Section 391.7, subdivision (b) provides that, once a court has entered a prefiling order for a vexatious litigant, the presiding judge "shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay."
The parties dispute the applicable standard for this underlying determination, as well as the applicable standard of appellate review. Alva contends that the presiding judge must take the facts alleged by the vexatious litigant "at face value" and "assume the truth" of those alleged facts. Accordingly, Alva concludes that appellate review is de novo. Lin, on the other hand, argues that the presiding judge may receive and weigh evidence, and that the judge's determination is reviewed for substantial evidence. It is clear that Lin has the better argument.
As Alva acknowledges, the Judicial Council VL-110 form requires the vexatious litigant to declare under penalty of perjury that the new filing has merit and is not being filed to harass or cause delay. The form also permits the inclusion of documents related to the request. The form thus explicitly allows for the presentation of evidence for consideration by the presiding judge. Indeed, Alva himself submitted VL-110 forms for both of his requests signed under penalty of perjury, an affidavit of facts constituting contempt declared under penalty of perjury, facts to support the RFO declared under penalty of perjury, and evidence (including the November 2016 e-mails).
We are not persuaded by Alva's contrary argument that the language of section 391.7 does not expressly detail the process for presenting evidence. That does not mean the presiding judge should be forced to ignore evidence and blindly accept the truth of a vexatious litigant's assertions. Such an interpretation would directly contradict the purpose of the statute "to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs." (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221-222.) Moreover, courts have rejected Alva's position in the application of other vexatious litigant statutes. To order a plaintiff to furnish security under section 391.1, the court must decide whether the plaintiff is vexatious and whether it is reasonably probable that the plaintiff will prevail in the litigation. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635.) In making the reasonable probability determination, the court "does not assume the truth of a litigant's factual allegations and it may receive and weigh evidence." (Ibid.) The ruling is then upheld on appeal "if it is supported by substantial evidence." (Id. at p. 636.) We see no basis to force a contrary approach under section 391.7.
With these standards in mind, we turn to the appealable portions of the February 7 and 8 orders. While Alva complains that the orders lack detailed reasoning, he correctly acknowledges that they are "presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of [their] correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Lin argues that we can draw a reasonable inference that Alva's requests to litigate the purported failure to turn over the Scott Trade account were denied as lacking merit because they were barred by the statute of limitations. We agree.
Section 1218.5, subdivision (b) provides, in relevant part: "If the action before the court is enforcement of another order [other than a support order] under the Family Code, the period of limitations for commencing a contempt action is two years from the time that the alleged contempt occurred." When Alva filed his February 7 request, he submitted e-mails showing that Lin's purported contempt of the judgment on reserved issues occurred after it was entered in 2011, and that Alva had known about it since at least November 2016.
Alva does not dispute the applicability of the two-year statute of limitations, or the November 2016 e-mail evidence he submitted, but instead contends that the statute of limitations has not expired yet because Lin's refusal to turn over the Scott Trade account was a "continuing" violation of the 2011 judgment. "The continuing violation doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them." (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192.) This doctrine has no applicability here. Lin's purported refusal to turn over the Scott Trade account constitutes a singular wrong; it is not transformed into multiple wrongs just because Alva sent multiple communications about that wrong.
In sum, we conclude there was substantial evidence presented by Alva that the statute of limitations has passed and accordingly that his requests to litigate Lin's purported failure to turn over the Scott Trade account lacked merit.
DISPOSITION
The appeal is dismissed as to the family court's February 7 and 8, 2022 orders denying Alva's requests related to the 2017 interim custody orders. The February 7 and 8, 2022 orders denying Alva's requests related to the 2011 judgment are affirmed. Lin is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
WE CONCUR: Richman, Acting P.J. Markman, J. [*]
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.