Opinion
D040432.
7-21-2003
KAMAL B. MAHDAVI, Plaintiff and Appellant, v. STATE OF CALIFORNIA et al., Defendants and Respondents.
Plaintiff in propria persona Kamal B. Mahdavi filed an expansive and broadly cast complaint against numerous defendants, including various public entities, private companies and individuals. Because Mahdavi named as defendants a judge and a subordinate judicial officer of the Superior Court of San Diego County, the Judicial Council of the State of California (Judicial Council) transferred the matter to the Honorable C. Robert Jameson, Presiding Judge of the Superior Court of Orange County, who then reassigned the matter to the Honorable Kim G. Dunning at that same court.
After the transfer of the case and its reassignment to the court, a number of defendants challenged Mahdavis pleadings by demurrers and motions to strike. Following a hearing at which Mahdavi was present, the court confirmed its tentative ruling sustaining the demurrers, dismissed a number of defendants with prejudice, and granted Mahdavi 30 days leave to amend his complaint as to his claims against the remaining defendants. Mahdavi did not amend his complaint after he was served with notice of the courts ruling, and the court thereafter dismissed the complaint with prejudice and entered judgment in favor of all of the defendants.
Mahdavi challenged the judgment of dismissal by filing a motion to set aside the judgment as void under Code of Civil Procedure section 473 and to appoint a new judge. Mahdavi appeals from the order denying that motion. He has also filed in this court a motion seeking recusal of the justices assigned to this matter.
Mahdavi contends the denial of his motion to vacate the judgment was an abuse of the courts discretion because the judgment was void for the following reasons: (1) Judge Dunning lacked jurisdiction to enter the judgment of dismissal because the Judicial Councils assignment of the case to Presiding Judge Jameson "did not include the power to reassign the case again to another judge," and thus the court had not been lawfully "organized"; and (2) the court violated his due process rights by (a) issuing "contradictory" and "predetermined" demurrer rulings, (b) "impounding" the legal papers he filed in response to the defendants challenges to his complaint "in order not to consider the evidence presented by him"; and (c) failing to notify him of the courts order sustaining the demurrers and granting him 30 days leave to amend his complaint. Mahdavi also claims his complaint was legally sufficient. We find the facts do not require the recusal of the justices assigned to this matter, and we affirm the courts order denying Mahdavis motion to vacate the judgment. Because we need not, and do not, reach the issue of whether the court properly sustained the demurrers to Mahdavis complaint, we affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
A. Mahdavis Complaint
In October 2001, acting in propria persona, Mahdavi filed a 57-page complaint titled, "The Complaint for the Conspiracy to Deprive the Plaintiff of His Constitutional and the Statutory Rights." He named 30 defendants, including various public entities (such as the State of California, the County of San Diego, the Chula Vista Police Department, and the San Diego Police Department), hotels and property management firms, individuals, and retail establishments and service providers.
The caption of the complaint names the following defendants: "The State of California; The County of San Diego, The City of Chula Vista; The San Diego Police Department; The San Diego Housing Commission; The Chula Vista Police Department; Falkenberg, Gilliam, and Associates, Inc.; [Hon.] Rafael A. Arreola; [Hon.] Karen Riley; Sara Frances, Inc.; Hotel Metro; Hotel Churchill; Gaslamp Hotel Management, Inc.; Ralphs Grocery Company; Travelers Motel; First Lutheran Development, Inc.; Royal Vista Inn; Madrid Suites; Avon Motel; Bay Cities Motel; Pacific-Beach Certified Farmers Market; Golden West Hotel; Heritage Security Services; Cathedral Plaza (Monfric, Inc.); MLA Property Management; Area Agency on Aging; Horton House (Interfaith Housing Assistance Corp.); Louis E. Chesner; Sprint PCS; and Does One Through Twenty."
In his complaint, Mahdavi alleged the defendants engaged in a massive, multifaceted conspiracy to "neutralize the . . . efforts of [Mahdavi] to write the facts that undermine the status quo and to publish them." He claimed the alleged conspirators subjected him to constant unlawful surveillance for the purpose of collecting information about him that could be used to prevent him from seeking employment, and thereby cause him to exhaust his "meager resources" that were indispensable to his writing, of which the police allegedly disapproved. Other alleged conspiratorial acts included: the remote control of appliances and toilets in premises that Mahdavi rented; the infection of Mahdavi with seven types of liquid, powdery, and gaseous poisons introduced into his living space through wall capillary tubes, the ventilation systems and other means; similar infection by police outside his rented premises, and by librarians who "[wore] the powder that causes his allergy and approached him"; the depletion of his financial resources by convincing certain stores not to stock his preferred food items in order to force him to buy the foodstuffs from more expensive retailers; the introduction of teenage girls with the goal of implicating him in statutory rape; the prevention of his getting sound rest in various downtown motels and apartments by planting undercover agents in neighboring rooms, and instructing them to bang on the wall, slam doors, and drop heavy objects on the floors of apartments above his; and a successful effort to tempt him into buying poisoned crab legs that had been soaked in a harmful chemical and then refrozen.
B. The Judicial Councils Assignment of the Case to Presiding Judge Jameson and His Reassignment of the Case to Judge Dunning
Because Mahdavi named as defendants a judge and a subordinate judicial officer of the Superior Court of San Diego County, the Judicial Council transferred the matter to Presiding Judge Jameson. Presiding Judge Jameson reassigned the matter to the trial judge in this matter, Judge Dunning.
C. The Courts January 23, 2002 Rulings Sustaining Demurrers and Granting Mahdavi 30 Days Leave to Amend
A number of defendants thereafter challenged Mahdavis pleadings by filing demurrers and motions to strike. On January 23, 2002, after issuing a tentative ruling that sustained the demurrers, the court heard oral argument on those matters. Mahdavi was present during the hearing.
The courts minute order shows that after hearing oral argument, the court dismissed the complaint with prejudice as to 12 of the 30 defendants that Mahdavi named in his complaint. As to the remaining 18 defendants, the court sustained the demurrers on the ground Mahdavi had only alleged a broad conspiracy without clearly identifying any independently viable cause of action. With respect to the claims against the 18 remaining defendants, the court granted Mahdavi 30 days leave to amend his complaint.
The following 12 defendants were stricken from the complaint: Sara Frances, Inc.; Falkenberg, Gilliam, and Associates, Inc.; Hotel Churchill; San Diego Housing Commission; Gaslamp Hotel Management, Inc.; Hon. Rafael A. Arreola; Hon. Karen Riley; Travelers Motel; Royal Vista Inn; Ralphs Grocery Company; Pacific Beach Farmers Market; and Louis E. Chesner. As to these defendants, the court determined that their alleged conduct was either not actionable or Mahdavis claims against them were time-barred.
1. Notice of the courts January 23, 2002 rulings
On February 1, 2002, counsel for defendants City of Chula Vista and the Chula Vista Police Department (together Chula Vista) prepared, filed, and served on Mahdavi by mail a notice formally informing him of the courts January 23, 2002 rulings. The proof of service by mail shows that Chula Vista mailed the notice of ruling to Mahdavi at the address he provided on the first page of his complaint.
D. Mahdavis Failure To Amend His Pleading, and the Courts Entry of Judgment of Dismissal
Mahdavi did not amend his complaint. On March 28, 2002, more than 50 days after Chula Vista served Mahdavi (on February 1 of that year) with notice of the courts January 23, 2002 rulings, Chula Vistas counsel, Scott Patterson, served Mahdavi with notice of Chula Vistas intent to appear ex parte before Judge Dunning on April 3, 2002, for the purpose of requesting dismissal of the complaint and entry of judgment.
On April 3, 2002, the court granted Chula Vistas ex parte request, and ordered that "Mahdavis complaint be dismissed with prejudice for failure to file a timely amendment after the Court sustained the defendants demurrers to the complaint with 30 days leave to amend. Judgment to be entered in favor of all defendants in accordance with this order." Mahdavi did not respond to the notice of hearing that Chula Vista served on him, and he did not appear at the hearing. The court entered a judgment of dismissal with prejudice in favor of all defendants on that same date.
E. Mahdavis Motion To Vacate the Judgment as Void
Mahdavi challenged the judgment of dismissal by filing a motion asking the court to set aside the judgment as void under Code of Civil Procedure section 473 and to appoint a new judge through the Judicial Council. In his motion, Mahdavi claimed the judgment was void (1) because Judge Dunning did not have jurisdiction to hear the matter, and (2) because of alleged due process irregularities with respect to the filing of the parties papers and the courts consideration thereof, as well as to the provision of notice regarding the courts January 23, 2002 rulings, including the granting of 30 days leave to amend the complaint.
On May 28, 2002, after conducting a hearing, the court denied Mahdavis motion to vacate the judgment as void. Mahdavi did not appear at the hearing.
Although the order states that it is an order of the Superior Court of Orange County, as previously discussed Judge Dunning was sitting by assignment as a judge of the Superior Court of San Diego County.
F. Mahdavis Appeal and Recusal Motion
In June 2002, Mahdavi appealed from the order denying his motion to vacate the judgment as void. He thereafter filed in this court his pending "Motion that Each Appellate Justice Assigned to This Appeal Should, After Considering the Facts of the Motion, Decide Whether His, or Her, Recusal Is Required" (recusal motion).
APPEALABILITY AND STANDARD OF REVIEW
If a judgment is void, it is subject to collateral attack by means of a postjudgment motion under Code of Civil Procedure section 473 to vacate or set aside the judgment as void. (Residents for Adequate Water v. Redwood Valley County Water Dist. (1995) 34 Cal.App.4th 1801, 1805; Brown v. Williams (2000) 78 Cal.App.4th 182, 186, fn. 4.) "An order denying such a motion is a special order made after entry of judgment that may be directly attacked on appeal" under Code of Civil Procedure section 904.1, subdivision (a)(2). (Residents for Adequate Water v. Redwood Valley County Water Dist., supra, 34 Cal.App.4th at p. 1805.)
A trial courts order granting or denying a motion to set aside a void judgment is reviewed on appeal for abuse of discretion. (Brown v. Williams, supra, 78 Cal.App.4th at p. 186.) " Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.]" (Ibid. )
DISCUSSION
I. MAHDAVIS RECUSAL MOTION
In his pending recusal motion, Mahdavi complains (among other things) that he had argued another appeal (Mahdavi v. One Hundred State, County & City Officials (Dec. 15, 1997, No. D024614) nonpub. opn.) before a panel of this court in December 1997, and this court had thereafter issued a "typical appellate decision based neither upon the facts of the case nor upon the applicable laws, affirming the judgment." Mahdavi also maintains that "after the Court of Appeal had responded to [a] police call for demolishing all that constitutes the human rights in the Appeal No. D024614, [Mahdavi], who abominates the judicial dictatorship, in vain exerted the efforts to leave the State of California where there has been the business as usual: The persecutions to which the President FBI has continued to subject [him] include the police-induced illnesses, the police-induced poverty, and the unlawful evictions executed by the police henchmen—in short, the waste of [his] time and resources."
The justices assigned to the instant case have read Mahdavis recusal motion and have considered the facts and arguments presented therein. Recusal is not required of any of the assigned justices.
II. MAHDAVIS APPEAL
A. Jurisdiction
Mahdavi first contends the court abused its discretion by denying his motion to vacate the judgment as void because Judge Dunning lacked jurisdiction to enter the judgment of dismissal. Specifically, Mahdavi contends the Judicial Councils assignment of the case to Presiding Judge Jameson "did not include the power to reassign the case again to another judge," and the court was not lawfully "organized" because Presiding Judge Jameson lacked authority to reassign Mahdavis action to Judge Dunning. We reject this contention.
1. Background
The record shows that because Mahdavi named as defendants a judge and a subordinate judicial officer of the Superior Court of San Diego County, that court transferred the matter "for all purposes" to Presiding Judge Jameson on December 3, 2001, pursuant to authorization issued on November 27, 2001, by the Honorable Ronald M. George, Chief Justice of the California Supreme Court and Chairperson of the Judicial Council.
The record also shows that in a minute order dated December 19, 2001 (the December 19 minute order), Presiding Judge Jameson reassigned the matter "for all purposes" to Judge Dunning in Department C27 of the Superior Court of Orange County. Due to a clerical mistake, the December 19 minute order erroneously stated that Presiding Judge Jameson was issuing it from Department C1 of the Superior Court of Los Angeles County.
On December 28, 2001, Presiding Judge Jameson issued a corrective nunc pro tunc minute order (the December 28 minute order), effective as of December 19, 2001, indicating that the December 19 minute order reassigning this matter to Judge Dunning had issued from the Superior Court of San Diego County. The December 28 minute order also stated in part that "the case is hereby assigned for all purposes to [Judge Dunning], Dept. C27, assigned as a judge of the San Diego Superior Court by the Chairperson of the Judicial Council." (Original boldface.) This December 28 minute order apparently reflects a December 20, 2001 minute order issued by the Judicial Council (No. 114450-01, hereafter referred to as the Judicial Councils December 20 order), which expressly stated as follows that Judge Dunning was assigned to sit as a judge of the Superior Court of San Diego County: " THE HONORABLE KIM GARLIN DUNNING, Judge of the Superior Court of California, County of Orange, is hereby assigned to sit as a Judge of the Superior Court of California, County of San Diego, on the following date(s):
"December 20, 2001 to February 20, 2002
"and until completion and disposition of all causes and matters heard pursuant to this assignment." (Italics added.)
On December 24, 2002, defendants and respondents State of California, Rafael A. Arreola and Karen Riley filed a motion requesting that this court take judicial notice of the Judicial Councils December 20 minute order, an authenticated copy of which was attached as an exhibit to the declaration of Cynthia Go, Administrative Coordinator with the Administrative Office of the Courts of the State of California. On January 6, 2003, we issued the following order granting that request: "Respondents request for judicial notice and/or take additional evidence on appeal is GRANTED. This court takes judicial notice of the document(s) attached to the request filed on December 24, 2002."
2. Analysis
"A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties." (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691.) "Subject matter jurisdiction relates to the inherent authority of the court involved to deal with the case or matter before it. [Citation.] Lack of jurisdiction in this fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.]" (Ibid.) The issue presented is whether the reassignment of the instant case from Presiding Judge Jameson to Judge Dunning was proper, such that jurisdiction was lawfully conferred upon Judge Dunning to hear and decide this case. We conclude the reassignment was proper.
Here, the record (discussed, ante) shows that pursuant to the Judicial Councils November 27, 2001 reassignment of the instant case, Judge Jameson had dual authority both as the Presiding Judge of the Superior Court of Orange County and as the trial judge assigned to the instant case, and his reassignment of the case to Judge Dunning was proper. Under California Rules of Court, rules 6.603(b)(1)(B) and 6.603(c)(1)(D), Judge Jameson, as Presiding Judge of the Superior Court of Orange County, was authorized to reassign this case to another department as required by "convenience or necessity." Rule 6.603(b)(1)(B) provides:
All further rule references are to the California Rules of Court.
"(b)(1) The presiding judge has the authority to: [P] . . . [P] (B) Apportion the business of the court, including assigning and reassigning cases to departments." (Italics added.)
Rule 6.603(c)(1)(D) provides:
"(c)(1) (Assignments) The presiding judge has ultimate authority to make judicial assignments. The presiding judge must: [P] . . . [P] (D) Reassign cases between departments as convenience or necessity requires." (Italics added.)
The Judicial Councils initial reassignment of this case to Presiding Judge Jameson resulted from the potential conflict that arose when Mahdavi named as defendants a judge and a subordinate judicial officer of the Superior Court of San Diego County. No such conflict, however, precluded reassignment of this case within the Superior Court of Orange County, and Judge Jameson, as presiding judge of the Superior Court of Orange County, was authorized under the foregoing rules to reassign the matter to Judge Dunning, a trial judge sitting in Department C27 of that court, which is located in Santa Ana.
Furthermore, the record also shows that the Judicial Council independently reassigned the case to Judge Dunning pursuant to its December 20 order (discussed, ante), which expressly assigned Judge Dunning "to sit as a Judge of the [Superior Court of San Diego County] . . . until completion and disposition of all causes and matters heard pursuant to this assignment." In his nunc pro tunc December 28 minute order (discussed, ante), which he issued about one week after the Judicial Council issued its December 20 order, Presiding Judge Jameson properly found that the Judicial Council had assigned Judge Dunning as a judge of the Superior Court of San Diego County, and the instant case was assigned to Judge Dunning for all purposes.
Mahdavi presents no relevant authority to support the proposition that either Presiding Judge Jameson or Judge Dunning acted in excess of their jurisdiction. Mahdavi relies on Code of Civil Procedure section 170.3, subdivision (a)(2) for the proposition that "if [Presiding Judge Jameson] had been obliged to recuse himself from the case for some reason, he should legally have returned the case to the Chair of the Judicial Council for the reassignment." That subdivision, however, is inapplicable. Nothing in the record suggests that Presiding Judge Jameson disqualified himself, or was disqualified, within the meaning of that subdivision. Rather, as already discussed, the record shows that he assigned the case to Judge Dunning pursuant to his dual authority under rules 6.603(b)(1)(B) and 6.603(c)(1)(D) of the California Rules of Court and the Judicial Councils December 20 order. We conclude that Mahdavis assertion that Judge Dunning "has not been qualified to hear the case" is unavailing.
Code of Civil Procedure section 170.3, subdivision (a)(2) provides: "If the judge disqualifying himself or herself is the only judge or the presiding judge of the court, the notification shall be sent to the person having authority to assign another judge to replace the disqualified judge." (Italics added.)
B. Due Process
Next, Mahdavi contends the court abused its discretion by denying his motion to vacate the judgment as void because the court violated his due process rights by (1) issuing "contradictory" and "predetermined" demurrer rulings; (2) "impounding" the legal papers he filed in response to the defendants challenges to his complaint "in order not to consider the evidence presented by him"; and (3) failing to notify him of the courts order sustaining the demurrers and granting him 30 days leave to amend his complaint. We reject Mahdavis claims of constitutional error.
1. "Contradictory" and "predetermined" demurrer rulings
Mahdavi asserts that "the contradictory court decisions rendered without the hearing scheduled for the 23rd of January 2002 (see the paragraph 9 in the Section I. The Statement of the Case, supra) attest that those decisions[] were predetermined — to wit, they are based upon no evaluation of the related evidences (a violation of the due process of the law)." (Italics added.) In referenced paragraph No. 9 at page 4 of his appellants opening brief, Mahdavi clarifies that the "predetermined" decision to which he refers is the courts tentative ruling, which was posted outside the courtroom prior to the January 23, 2002 hearing on the various demurrers and motions to strike that challenged the legal sufficiency of Mahdavis complaint.
After hearing oral argument on the tentative ruling, the court dismissed the complaint with prejudice as to 12 of the 30 defendants. As to the remaining 18 defendants, the court sustained the demurrers, with 30 days leave to amend the complaint, on the ground Mahdavi had only alleged a broad conspiracy without clearly identifying any independently viable cause of action.
Mahdavis principal complaint is that the court "had decided the disputed issues before the hearing and had posted the decision outside the courtroom for all to see," and it "converted the hearing into the lecture on what the trial court called the hearing on the tentative ruling for which no party had had the time to prepare." In his reply brief, Mahdavi further complains that "this was the deception played by the trial court on [him], because he . . . had prepared his arguments for the demurrers, not for the tentative ruling of which he had no knowledge until a minute before the hearing." Mahdavi maintains that his due process rights were violated because "the trial court never heard out [Mahdavi] on the demurrers and the related motions."
By definition, a tentative ruling is only tentative. It is not a final ruling or decision. Here, the record shows that the court posted its tentative ruling outside the courtroom before the January 23, 2001 hearing began. By posting a tentative ruling, the court provided to Mahdavi and the other parties an opportunity to learn prior to the hearing how the court was inclined to rule on the pending motions. No deception was involved in the posting of the tentative ruling, which is a common practice in many trial courts, and which provided to Mahdavi the opportunity to more effectively present the arguments he intended to make orally to the court during the hearing. The record shows that Mahdavi was personally present during the hearing and nothing in the record suggests that he was denied the opportunity to participate in the presentation of oral arguments.
Mahdavi also claims that the court was "ignorant of the file" when it issued its rulings. The courts January 23, 2002 minute order, however, refers to case citations improperly set forth in Mahdavis pleading, specifically names numerous defendants, and grants him 30 days leave to amend his complaint to "allege facts concerning his compliance or noncompliance with the Tort Claims Act as to the public entity defendants." This record establishes that the court was very familiar with the nature of this case and the pleadings filed by the parties. Nothing in the record shows the courts rulings were contradictory or inconsistent.
2. "Impounding" of Mahdavis legal papers
Mahdavi also contends the judgment of dismissal was void because the Superior Court of San Diego County "impounded" the papers he filed in response to the defendants challenges to his pleadings, including his opposition to the demurrers and motions to strike, and his request for entry of default as to some of the defendants. Specifically, he maintains the Superior Court of San Diego County rejected his requests for conformed copies of his filings and suggests the purpose of this conduct was to prevent the Superior Court of Orange County from receiving and considering his papers. We reject these contentions.
Mahdavi fails to explain how his dispute with the Superior Court of San Diego County regarding the return of conformed copies of his filings implicates due process concerns. He has not cited any evidence in the record to support his apparent belief that his filings did not reach Judge Dunning. The record shows that some of Mahdavis filings bear the stamp of the Superior Court of Orange County. Mahdavi filed timely opposition to the demurrers, he was present during oral argument on January 23, 2002 (discussed, ante), and nothing in the record indicates that Judge Dunning did not read and consider Mahdavis papers.
Mahdavis filings in the Superior Court of Orange County include, for example, "The Plaintiffs Objection to the Judicial Scheme to Deprive Him of the Due Process of the Law," filed on January 11, 2002; and "The Plaintiffs Reply Both to the Oppositions of the Defendants the City of San Diego, Bay Cities Motel, and Golden West Hotel to His December-20th-2001 Motion to Strike Out Their Demurrers and to the Belated Demurrers of the Defendants Farm Direct Association of San Diego (Pacific-Beach Certified Farmers Market), Hotel Churchill, Cathedral Plaza, Sprint PCS, and First Lutheran Development, Inc.," filed on January 18, 2002.
3. Notice regarding 30 days leave to amend the complaint
Last, Mahdavi contends the court violated his due process rights by failing to notify him of the courts January 23, 2002 order granting him 30 days leave to amend his complaint. We reject this contention.
The court entered the judgment of dismissal after Mahdavi failed to amend his defective complaint. The record shows that Mahdavi was present at the January 23, 2002 hearing, and thus establishes that he had actual notice of the order granting him 30 days leave to amend his complaint. Mahdavi does not dispute on appeal that he received such notice.
The record also shows that on February 1, 2002, counsel for Chula Vista prepared, filed, and served on Mahdavi by mail a notice formally informing him of the courts January 23, 2002 rulings, including the order granting Mahdavi 30 days leave to amend his complaint. The proof of service by mail shows that Chula Vista mailed the notice of ruling to Mahdavi at the address he provided on the first page of his complaint.
On March 28, 2002, more than 50 days after Chula Vista served Mahdavi with notice of the courts January 23, 2002 rulings, Chula Vistas served Mahdavi with notice that it intended to appear ex parte before Judge Dunning on April 3, 2002, for the purpose of requesting dismissal of the complaint and entry of judgment. The court granted Chula Vistas ex parte request on April 3, 2002, and ordered that "Mahdavis complaint be dismissed with prejudice for failure to file a timely amendment after the Court sustained the defendants demurrers to the complaint with 30 days leave to amend. Judgment to be entered in favor of all defendants in accordance with this order."
Based on the foregoing record, Mahdavis contention that he did not receive notice of the courts order granting him 30 days leave to amend his pleadings is unavailing. Equally unavailing is his contention that "the order, which was signed by the attorney for the police, is void." The "order" to which Mahdavi refers is not an order. It is Chula Vistas "Notice of Ruling Granting Relief from Default and Sustaining Demurrers," a copy of which Chula Vista served on Mahdavi by mail on February 1, 2002 (discussed, ante).
Mahdavi cites pages 500-502 of the clerks transcript.
C. Legal Sufficiency of Mahdavis Complaint
Mahdavi spends a significant portion of his opening brief challenging the merits of the courts ruling on the demurrers and stating why he believes the court should have overruled those demurrers. Mahdavi, however, did not appeal from the judgment on the ground the courts demurrer rulings constituted reversible error. In his notice of appeal, Mahdavi stated he was appealing "from the denial of his motion to vacate the void judgment and to request the Chair of the Judicial Council to appoint the new judge; the denial, which the plaintiff has not received, was rendered on the 22nd of May 2002." Accordingly, we need not, and do not, reach the merits of his contention that his complaint was legally sufficient.
III. RALPHS REQUEST FOR COSTS ON APPEAL
Also pending in this matter is Ralphs Grocery Companys (Ralphs) request for costs on appeal. We conclude Ralphs is entitled to recover its costs on appeal.
A. Background
In October 2002, Ralphs filed a motion in this court seeking dismissal of Mahdavis appeal in this matter on the ground the appeal was untimely as to Ralphs. By order dated November 13, 2002 (the November 13 order), this court granted Ralphs motion and dismissed Mahdavis appeal as to Ralphs.
This courts order dated November 13, 2002, states in part: "The motion to dismiss is GRANTED AS TO [RALPHS] ONLY. Certain defendants, including [Ralphs], were dismissed with prejudice on March 12, 2002. Other defendant[]s were dismissed April 3, 2002. This judgment was followed by the denial of a motion to vacate which is presently on appeal and does not include the defendants dismissed in March."
Mahdavi challenged the November 13 order by filing in this court a motion for reconsideration. Asserting that Mahdavis motion for reconsideration was intended to vex and harass it, Ralphs filed written opposition and requested that it be awarded its costs on appeal.
On December 6, 2002, this court issued an order denying Mahdavis motion for reconsideration and deferring ruling on Ralphs pending request for costs on appeal.
The December 6, 2002 order stated in part: "The request to reconsider the ruling of November 13, 2002 is GRANTED. After reconsideration the motion is DENIED. [P] . . . [P] Ruling on [Ralphs] motion for costs on appeal is deferred and will be decided by the panel handling the case on the merits." (Italics added.)
B. Analysis
A "prevailing" party on appeal in a civil case is entitled to recover costs on appeal. (Rule 27(a)(1).) A respondent is a "prevailing" party for purposes of that rule if the Court of Appeal dismisses the appeal or affirms without modification the appealed judgment or order. (Rule 27(a)(2); Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2002) P 11:88, p. 11-27 (rev. # 1 2002).)
Rule 27(a)(1) provides: "(a)(1) Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case is entitled to costs on appeal."
Rule 27(a)(2) provides in part: "(a)(2) The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal."
Here, Ralphs is a prevailing party entitled to costs on appeal because it successfully moved for dismissal of Mahdavis appeal in this matter, and this court is affirming without modification the appealed order denying Mahdavis motion to vacate the judgment as void. (Rules 27(a)(1) & 27(a)(2).)
IV. ORDER DECLARING MAHDAVI A VEXATIOUS LITIGANT
Since September 1994, Mahdavi has filed 12 unmeritorious appeals or writ petitions in this court (including the current appeal) while acting in propria persona. In the instant appeal, Mahdavi repeatedly filed unmeritorious motions and other papers. After providing to Mahdavi due notice and an opportunity to be heard, this court finds that he is a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(3) (hereafter section 391(b)(3)), in that he has "repeatedly filed unmeritorious motions, pleadings, or other papers, conducted unnecessary discovery, or engaged in other tactics that are frivolous or solely intended to cause unnecessary delay."
All further statutory references are to the Code of Civil Procedure.
A. Background
On June 9, 2003, pursuant to In re Luckett (1991) 232 Cal. App. 3d 107, 283 Cal. Rptr. 312, this court issued to Mahdavi a written notice and order to show cause (the June 9 order) why this court on its own motion should not declare him a vexatious litigant within the meaning of section 391, subdivisions (b)(2) and (b)(3), and enter a prefiling order under the provisions of section 391.7, subdivision (a) (hereafter section 391.7(a)), prohibiting him from filing in propria persona any new litigation in the courts of this state without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.
Section 391.7(a) provides: "In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new 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. Disobedience of the order by a vexatious litigant may be punished as a contempt of court." (Italics added.)
The June 9 order recited this courts observations that in 11 specified cases (listed by Court of Appeal case number in descending order, excluding the instant appeal) Mahdavi had repeatedly filed in this court in propria persona unmeritorious motions, pleadings or other papers, or engaged in other tactics that are frivolous or solely intended to cause unnecessary delay. The June 9 order also recited some of the allegations and statements (discussed, post) he had set forth in both his fatally defective complaint in the underlying civil conspiracy action from which this appeal arose (Super. Ct. No. GIC777032), and in the unmeritorious recusal motion he filed in the instant appellate proceeding.
The June 9 order identified the 11 unmeritorious cases as follows: "(1) Mahdavi v. Superior Court (D041784), petition for writ of mandate summarily denied on March 21, 2003; [P] (2) Mahdavi v. Superior Court (D033515), petition for writ of mandate summarily denied on June 4, 1999; [P] (3) Mahdavi v. Superior Court (D033077), petition for writ of mandate summarily denied on March 23, 1999; [P] (4) Mahdavi v. Director of Department of Social Services (D025096), appeal, affirmed in full on June 6, 1996; [P] (5) Mahdavi v. Superior Court (D025062), petition for writ of mandate summarily denied on December 26, 1995; [P] (6) Mahdavi v. One Hundred State, County and City Officials (D024614), an appeal, affirmed in full on December 15, 1997; [P] (7) Mahdavi v. Superior Court (D024571), petition for writ of mandate summarily denied on October 6, 1995; [P] (8) Mahdavi v. Superior Court (D024103), petition for writ of mandate summarily denied on July 27, 1995; [P] (9) Mahdavi v. Superior Court (D023746), petition for writ of mandate summarily denied on June 26, 1995; [P] (10) Mahdavi v. Superior Court (D023614), petition for writ of mandate summarily denied on May 18, 1995; and [P] (11) Mahdavi v. Superior Court (D021869), petition for writ of mandate summarily denied on September 20, 1994."
The June 9 order notified Mahdavi this court was considering declaring him a vexatious litigant and entering a prefiling order pursuant to section 391.7(a) prohibiting him from filing any new 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. The order directed the clerk to set the matter for hearing on July 1, 2003 (the July 1 hearing). The order was sent to Mahdavi advising him of his right to submit any affidavits or other documentary evidence he wished this court to consider and to appear before this court at the hearing to present argument on whether this court should declare him a vexatious litigant and enter the proposed section 391.7(a) prefiling order.
Mahdavis Written Opposition to the June 9 Order and His Oral Argument
In response to the June 9 order, Mahdavi filed a document titled "The Appellants Opposition to the Schizophrenic Indictment that He Should Be Declared a Vexatious Litigant," which explains his defenses. Among other things, Mahdavi contends that, "the so-called order is schizophrenic on the grounds that neither the cited law applies to [his] appeal nor the purported evidence adduced by the Court of Appeal supports the indictment." He maintains that "to deny the petitions of [Mahdavi] summarily and to base the decisions upon the assumed facts and the concocted laws are the proof not that the petitions and the appeals were frivolous, but that democracy has failed." Mahdavi also acknowledges his history of bringing meritless litigation and complains about what he calls the "judicial dictatorship":
"No court has ever heeded the demands of [Mahdavi]. The courts render the arbitrary predetermined decisions on the cases of [Mahdavi] first, and then indict him for the crime committed by a vexatious litigant. The absolutism practiced in the judiciary is based upon the unrealistic assumption that the judges, like the religious leaders and the communist prophets, are perfect and know everything. When Comrade Stalin, or Comrade Ayatollah rendered a decision, there remained nothing to be done, but to obey — dogmatism. The acceptance of the judicial summary denial as the determination that the petition to which the denial was related is frivolous substantiates [Mahdavis] discovery of the judicial dictatorship." (Italics added.)
Mahdavi personally appeared at the July 1 hearing. This court has read and considered Mahdavis written arguments. This court has also considered the arguments Mahdavi presented orally at the July 1 hearing.
B. Analysis
One of the statutory definitions of a vexatious litigant is set forth in section 391(b)(3), which provides:
"(b) Vexatious litigant means a person who does any of the following: [P] . . . [P] (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." (Italics added.)
For reasons we now explain, we find that Mahdavi is a vexatious litigant within the meaning of section 391(b)(3).
1. Prior Finding of the United States District Court for the Northern District of California that Mahdavi is a Vexatious Litigant
We begin by taking judicial notice that the United States District Court for the Northern District of California (the District Court) has previously declared Mahdavi a vexatious litigant. By order dated April 18, 1985 in Mahdavi v. The Director of the Equal Employment Opportunity Commission, case No. C-85-2827-MHP), the District Court dismissed that action, finding that Mahdavis "repeated filing of nonmeritorious cases causes this court to conclude that he is abusing the processes of this court." It ordered the court clerk to "not file any further complaints, petitions or papers submitted by [Mahdavi] until they have been approved and found by a judge of this District to have sufficient merit for filing."
We also take judicial notice of the District Courts order dated March 27, 1986, in the matter of In re Kamal B. Mahdavi (case No. CIV-86-063-MISC ), in which the District Court barred Mahdavi from entry into the United States Courthouse located in San Francisco and ordered that Mahdavi conduct all future business he may have with that court by means of the United States mail. The District Court found that, aside from the "patent meritlessness" of a series of actions Mahdavi had instituted in that court, "it has come to the attention of the Court that [Mahdavi] has consistently conducted his affairs in this Court in a rude, brusque, and insulting manner, and has sought to avenge his repeated failures on the merits by means of a campaign of harassment of the Clerk and his staff."
We take further judicial notice of the District Courts order dated November 23, 1987, in the matter of In re Kamal B. Mahdavi (case No. CIV-87-232-MISC-MHP), in which the District Court, noting that Mahdavi "has been deemed a vexatious litigant," ordered that Mahdavi be denied leave to file a complaint that it characterized as "[Mahdavis] newest assault upon an array of perceived co-conspirators," and as "another in the repeated examples of [Mahdavis] vexatious lawsuits." The District Court also noted that "the named defendants run the gamut from legal services organizations to the director of the Central Intelligence Agency; they include at least one judge, two entire city governments, a public defenders office, the Federal Bureau of Investigation, the Postmaster General, a YMCA, a temporary employment agency and a hotel, to name only a few."
2. The Instant Appeal
With respect to the instant meritless appeal, we begin by reiterating the nature of the civil conspiracy action from which it arose.
a. Allegations in Mahdavis Complaint
In his complaint, which he filed in propria persona, Mahdavi named 30 defendants, including various public entities (such as the State of California, the County of San Diego, the Chula Vista Police Department, the San Diego Housing Commission, and the San Diego Police Department), various hotels and property management firms, a judge, a commissioner, and certain retail establishments and service providers (such as Ralphs and Sprint PCS).
Mahdavi claimed the defendants conspired to subject him to constant unlawful surveillance for the purpose of collecting information about him that could be used to prevent him from seeking employment, and thereby cause him to exhaust his "meager resources" that were indispensable to his writing, of which the police allegedly disapproved. Mahdavi also alleged the defendants remotely controlled appliances and toilets in premises that he rented, and infected him with seven types of liquid, powdery, and gaseous poisons introduced into his living space through wall capillary tubes, ventilation systems and other means. He further alleged that one of the harmful gases repeatedly forced into his apartment "caused the depression of the mind"; "the police uses the harmful gases and the harmful powder, or gel, on [Mahdavi] outside the premises, too," and "some librarians . . . wear the powder that causes his allergy and approach him;" and a farmer insisted on shaking Mahdavis hand on Saturday mornings, and would "rub the gel impregnated with the infectious agents on his hands before shaking hands with [Mahdavi]."
Mahdavi also claimed the defendants conspired to deplete his financial resources by convincing certain stores not to stock his preferred food items in order to force him to buy the foodstuffs from more expensive retailers; they brought a CIA agent from abroad to recruit him, and then "accelerated the tempo of his persecution after he had rebuffed the implicit invitation of the CIA to join the Agency"; they introduced teenage girls to him with the goal of implicating him in statutory rape; they prevented him from getting sound rest in various downtown motels and apartments by planting undercover agents in neighboring rooms, and instructing them to bang on the wall, slam doors, and drop heavy objects on the floors of apartments above his; a living unit that one of the defendants rented to him was a "torture chamber" that "had been set up to torture the conformity to the status quo from him"; landlords and the police spray harmful chemicals in his bed and "disorder the devices in the living unit"; and defendants successfully tempted him into buying poisoned frozen crab legs that had been thawed out, soaked in a harmful chemical, and then refrozen.
b. Mahdavis Meritless Recusal Motion
In the current appellate proceeding, Mahdavi filed a motion for recusal in propria persona (discussed, ante), complaining that he had argued another appeal (Mahdavi v. One Hundred State, County & City Officials, supra, D024614) before another panel of this court in December 1997, and this court had issued a "typical appellate decision based neither upon the facts of the case nor upon the applicable laws, affirming the judgment."
In his recusal motion, Mahdavi also states as follows without any factual basis:
"After the Court of Appeal had responded to [a] police call for demolishing all that constitutes the human rights in the Appeal No. D024614, [Mahdavi], who abominates the judicial dictatorship, in vain exerted the efforts to leave the State of California where there has been the business as usual: The persecutions to which the President FBI has continued to subject [him] include the police-induced illnesses, the police-induced poverty, and the unlawful evictions executed by the police henchmen—in short, the waste of [his] time and resources."
c. Mahdavis Meritless Motion for Reconsideration
Mahdavi has also filed a meritless motion for reconsideration in this appellate proceeding. In October 2002, Ralphs filed a motion in this court seeking dismissal of Mahdavis appeal in this matter on the ground the appeal was untimely as to Ralphs. In the November 13 order, this court granted Ralphs dismissal motion and dismissed Mahdavis appeal as to Ralphs.
On November 19, 2002, Mahdavi challenged the November 13 order dismissing Mahdavis appeal as to Ralphs by filing an unmeritorious motion for reconsideration. Ralphs filed written opposition, asserting that Mahdavis motion for reconsideration was intended to vex and harass it, and requesting that it be awarded its costs on appeal.
On December 6, 2002, this court issued an order denying Mahdavis motion for reconsideration and deferring ruling on Ralphs pending request for costs on appeal.
d. Mahdavis Meritless Oppositions to Motions To Dismiss
His Appeal as Untimely
On December 12, 2002, defendant and respondent Louis Chesner filed a motion to dismiss Mahdavis appeal in this matter on the ground the appeal was untimely as to Chesner. Specifically, Chesner argued that (1) in its order dated March 12, 2002 (the March 12 order), the trial court dismissed Chesner as a defendant in this action; (2) the clerk served Mahdavi with a copy of the March 12 order on that date; and (3) Mahdavi filed his notice of appeal on June 26, 2002, more than 60 days after service of the March 12 order, as required California Rules of Court, rule 2(a)(1).
On December 20, 2002, Mahdavi filed written opposition to Chesners motion to dismiss the appeal as to him. By order dated December 26, 2002, this court granted Chesners motion.
On February 5, 2003, defendants and respondents Rafael Arreola and Karen Riley filed a similar motion to dismiss Mahdavis appeal in this matter on the ground the appeal was untimely as to them. On February 13, 2003, Mahdavi filed written opposition to that motion. By order dated February 19, 2003, this court granted Arreola and Rileys motion to dismiss Mahdavis appeal as to them.
Mahdavis current meritless appeal, motions and oppositions follow 11 other meritless appeal or writ petition proceedings that he has unsuccessfully litigated in this court. (See fn. 16, ante.)
3. Findings and Order
On this record, we find that Mahdavi is a vexatious litigant within the meaning of section 391(b)(3), in that he has "repeatedly filed unmeritorious motions, pleadings, or other papers, conducted unnecessary discovery, or engaged in other tactics that are frivolous or solely intended to cause unnecessary delay." The defendants successfully challenged Mahdavis fatally defective complaint in this matter, and his current appeal lacks merit. In this appellate proceeding, Mahdavi has filed meritless motions for recusal and reconsideration and meritless written oppositions to the motions to dismiss this appeal brought by Ralphs, Chesner, Arreola and Riley. Although not essential to this courts finding that Mahdavi is a vexatious litigant, the evidence shows the District Court has previously declared Mahdavi to be a vexatious litigant and has issued an order barring him from entry into the United States Courthouse in San Francisco as a result of his abusive behavior.
Henceforth, pursuant to section 391.7(a) (see fn. 15, ante), Mahdavi may not file "any new 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." Disobedience of this order may be punished as a contempt of court. (Ibid.) "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 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.[]" ( § 391.7, subd. (b).)
Section 391.3 provides: "If, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix."
DISPOSITION
Mahdavis recusal motion is denied, the order denying Mahdavis motion to vacate the judgment is affirmed, and Ralphs request for costs on appeal is granted. Mahdavi is declared a vexatious litigant. The clerk of this court is directed to provide a copy of this opinion and order to the Judicial Council. ( § 391.7, subd. (e).) Copies shall also be mailed to the presiding judge and clerk of the San Diego County Superior Court.
Section 391.7, subdivision (e) provides: "The clerk of the court shall provide the Judicial Council a copy of any prefiling orders issued pursuant to subdivision (a). The Judicial Council shall maintain a record of vexatious litigants subject to those prefiling orders and shall annually disseminate a list of those persons to the clerks of the courts of this state."
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.