Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court No. GIC 777523 of San Diego County, Eugenia A. Eyherabide, Judge.
NARES, J.
Plaintiff Bryant Morris appeals from an order declaring him a vexatious litigant under Code of Civil Procedure section 391 et seq. (hereafter the vexatious litigant statute). Morris also challenges an order denying without prejudice his latest of six petitions or request under section 527.6 for an order restraining defendant Kevin Badiei from harassing him, and dismissing his case without prejudice.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Morris contends (1) the court erred in ordering that he be declared a vexatious litigant because (a) the vexatious litigant statute does not apply to requests for restraining orders, as such requests are for equitable relief only, and cases requesting issuance of restraining orders are thus small claims cases within the meaning of section 391, subdivision (b)(1) (hereafter section 391(b)(1)), which limits the application of the vexatious litigant statute to "litigations other than in a small claims court"; (b) the record is unclear as to which statutory provision─section 391(b)(1) or section 391, subdivision (b)(2) (hereafter section 391(b)(2))─supports the court's finding that he is a vexatious litigant, and substantial evidence does not support that finding under either provision; and (c) the court's finding that he is a vexatious litigant violates his constitutional right to petition the court for redress of grievances.
Morris also contends (2) the court erred in denying without prejudice his sixth request for a restraining order because (a) there was both reasonable proof of Badiei's harassment of Morris under section 527.6, subdivision (c) (hereafter section 527.6(c)) and clear and convincing evidence to support a permanent injunction under section 527.6, subdivision (d) (hereafter section 527.6(d)); and (b) the court abused its discretion in refusing to hear evidence of Badiei's course of conduct. We affirm the order declaring Morris a vexatious litigant. We also conclude this court lacks jurisdiction to review the court's order denying without prejudice Morris's sixth request for a restraining order.
FACTUAL AND PROCEDURAL BACKGROUND
Because of the posture of this case, a complete recitation of the facts underlying the ongoing dispute between the parties is unnecessary.
In March 2001 Badiei took his 1993 Toyota Supra Turbo automobile to Morris, an automobile mechanic, for repairs. After he completed the repairs, Morris took the car for a drive, which Morris characterized as a test drive, and Badiei called a "reckless" full-throttle "joyride." The car was totaled when it fish-tailed, jumped a sidewalk, and crashed head-on into a tree.
A. Morris's Five Previous Requests for a Restraining Order Against Badiei
Between November 2001 and June 2005, claiming that Badiei was harassing him, Morris commenced, on the following dates, five petitions or requests in propria persona against Badiei seeking an injunction prohibiting harassment under section 527.6: (1) November 5, 2001; (2) April 9, 2002; (3) July 11, 2003; (4) August 18, 2004; and (5) June 15, 2005. Morris brought all five requests in the Superior Court of the County of San Diego under the same case number (No. GIC777523). Each proceeding was heard by a different judge, and each request was denied without prejudice.
Although Morris stated in his handwritten June 15, 2005 request that Jack A. Balistreri was his lawyer, no signature appeared on the "Attorney's signature" line on the last page of the request form, and the court's minutes from the July 8, 2005 hearing on that request, which showed the court denied the request without prejudice, indicated that Morris had represented himself at that hearing.
B. Morris's Sixth Section 527.6 Request and Badiei's Vexatious Litigant Motion
In July 2006, represented by counsel, Morris commenced a sixth request under section 527.6 for an order enjoining Badiei from harassing him. The request summarized each of the previous alleged incidents of harassment since 2001, as well as more recent incidents in which Morris alleged Badiei broke six windows at Morris's home with a baseball bat on June 4, 2006, and later scrawled graffiti on the house after Morris moved out.
Badiei filed written opposition and brought an opposed motion under sections 391 and 391.7 (hereafter referred to as the vexatious litigant motion) for an order declaring Morris a vexatious litigant and requiring him to both furnish security and seek leave of court before filing any new litigation.
In late August 2006 the court heard Badiei's vexatious litigant motion and issued a tentative ruling granting the motion in part. The court found Morris met the definition of a vexatious litigant under section 391(b)(1) in that within the last seven years he had commenced in propria persona five requests for an injunction, all of which were denied without prejudice and finally determined adversely to him. The court denied Badiei's request that Morris be required to furnish security and seek leave of court before filing any new litigation.
C. September 5, 2006 Order Granting in Part Badiei's Vexatious Litigant Motion
The court continued to September 5, 2006 the hearing on Badiei's motion to declare Morris a vexatious litigant. Following oral argument on that date, the court issued an order (the September 5, 2006 order) confirming its tentative ruling and finding that Badiei had met his burden under section 391(b)(1) of showing Morris was a vexatious litigant.
D. Trial on Morris's Sixth Request for a Restraining Order
Immediately thereafter, on that same date, the court began the trial on Morris's sixth request for an order enjoining Badiei from harassing him. Over the objection of Morris's trial counsel, the court ruled it was limiting the witnesses' testimony to "the most current event as to the reasons why Mr. Morris seeks a restraining order that looks like it has to do with whatever occurred on June 4, 2006," and it was excluding evidence of the events that were the subject of Morris's five previous requests. The court explained that those prior alleged events had "been litigated," "all not in favor of Mr. Morris," and the evidence of those events was inadmissible propensity evidence under Evidence Code section 1101, subdivision (b). The court then stated it was "not going to entertain any issue in reference to the course of conduct that has been happening since [20]01 in light of the fact that all of that has been denied." (Italics added.) The court also stated that "[t]he fact someone keeps bringing a case and they keep losing doesn't mean they get to keep relitigating it before each and every judge. It's not permissible under the Evidence Code." Morris then testified on his own behalf, as did Morris's wife, Victoria Chavez-Morris.
E. September 7, 2006 Order Denying Morris's Sixth Restraining Order Request
The trial continued on September 7, 2006, at which time Morris's wife resumed her testimony. Morris's uncle, William Morris, also testified on behalf of Morris. Badiei's father then testified. Various exhibits, including photographs and police reports were identified for the record.
After hearing the parties' closing statements, the court indicated that the issue to be decided was whether there was clear and convincing evidence as to the identity of the person who broke the windows and scrawled graffiti on the house. Finding that Morris had failed to present clear and convincing evidence that Badiei had committed those acts, the court issued an order (the September 7, 2006 order) dismissing the case without prejudice. Speaking to Morris, the court then explained that "[Badiei is] saying he didn't do it, and you're saying he did it. . . . There's no other corroborating evidence. [¶] So I had anticipated and hoped that more evidence was going to be presented to get me past the issue of clear and convincing evidence. [¶] All right, so based on that, I will dismiss this case without prejudice." This appeal followed.
DISCUSSION
I.
ORDER DECLARING MORRIS A VEXATIOUS LITIGANT
Morris contends the September 5, 2006 order must be reversed because the court erred in ordering that he be declared a vexatious litigant. Specifically, Morris contends (1) the record is unclear as to which statutory provision─section 391(b)(1) or section 391(b)(2)─supports the court's finding that he is a vexatious litigant; (2) the evidence does not support a finding that he is a vexatious litigant under section 391(b)(1) because he did not maintain or prosecute five litigations in propria persona; (3) the five litigations were small claims court litigations to which the vexatious litigant statute does not apply; (4) the evidence does not support a finding that he is a vexatious litigant under section 391(b)(1) because there was only a single litigation for purposes of the vexatious litigant statute; and (5) the court's finding that he is a vexatious litigant violates his constitutional right to petition the court for redress of grievances. We reject these contentions.
A. Standard of Review
"'A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court's ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment.' [Citation.] Questions of statutory interpretation, however, we review de novo." (Holcomb v. U.S. Bank National Assn. (2005) 129 Cal.App.4th 1494, 1498-1499.)
B. Vexatious Litigant Statute
Under the vexatious litigant statute, a defendant may move the court "[i]n any litigation pending in any court of this state," at any time before final judgment, for an order requiring the plaintiff to furnish security upon a showing "that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant." (§ 391.1, italics added.)
As pertinent to this appeal, a vexatious litigant includes anyone who "[i]n 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." (§ 391(b)(1), italics added.) A vexatious litigant also includes anyone who "[a]fter 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." (§ 391(b)(2).)
The vexatious litigant statute defines "litigation" to mean "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).) A plaintiff found to be a vexatious litigant will be required to furnish security in order to proceed with the matter at hand if the court also determines there is "no reasonable probability" the plaintiff will prevail in the litigation. (§ 391.3.)
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."
C. Analysis
1. Clarity of the record
Asserting that the September 5, 2006 minute order states only that the court declared him a vexatious litigant, Morris contends the record is unclear as to which statutory provision─section 391(b)(1) or section 391(b)(2) (discussed, ante)─supports the court's finding that Morris is a vexatious litigant. We reject this contention.
It is true the court's September 5, 2006 minute order does not indicate whether the court granted Badiei's motion to deem Morris a vexatious litigant under section 391(b)(1) or section 391(b)(2). However, the reporter's transcripts of the hearings held on this matter on August 29 and September 5, 2006, clearly show that on the latter date the court ordered that Morris be declared a vexatious litigant under section 391(b)(1). During the former hearing, the court explained that its tentative ruling was to grant the motion. The court specifically found that Morris met the definition of a vexatious litigant under section 391(b)(1) in that within the previous seven years he had commenced in propria persona five requests for an injunction against Badiei, all of which were denied without prejudice and finally determined adversely to Morris. At the latter hearing, the court summarized the criteria set forth in section 391(b)(1), without specifically citing that subdivision, and then confirmed its tentative ruling.
2. Morris's claim he did not "maintain" or "prosecute" five litigations in propria persona
Morris next contends the evidence does not support a finding that he is a vexatious litigant under section 391(b)(1) because he "has not maintained his litigation in the court in pro per." (Italics added.) He acknowledges that he initiated in propria persona the first five of his six unsuccessful requests for a restraining order, but asserts he is not a vexatious litigant as "there were still only three litigations where [his] case was prosecuted in the absence of counsel" (italics added) because Balistreri, his attorney, represented him (1) at the December 12, 2003 hearing on his third request, which he commenced on July 11, 2003; and (2) at the September 1, 2004 hearing on his fourth request commenced on August 18, 2004. These contentions are unavailing.
The record shows Balistreri also represented Morris at the September 22, 2004 follow-up hearing on this request.
Under section 391(b)(1), as already discussed, the term "vexatious litigant" means a person who "[i]n 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." (Italics added.)
The test for determining whether a person is a vexatious litigant under section 391(b)(1) is not necessarily whether the person "maintained" or "prosecuted" such litigation in propria persona. The Legislature's use of the disjunctive "or" following a comma in the phrase "commenced, prosecuted, or maintained" (italics added) in section 391(b)(1) plainly indicates its intent to deem as a "vexatious litigant" any person who has commenced or prosecuted or maintained "in propria persona at least five litigations other than in a small claims court that have been . . . finally determined adversely to [that] person." Morris cites no authority to the contrary. We thus construe section 391(b)(1) to mean that any person who has commenced in propria persona at least five such litigations meets the vexatious litigant criteria set forth in section 391(b)(1) even if that person was represented by counsel in any of those litigations following the commencement of the litigation.
Here, the record shows that Morris in fact commenced his first five restraining order requests in propria persona in the San Diego County Superior Court, as he acknowledges. Because (for reasons we shall discuss, post) the record also shows that all five of those litigations were "finally determined adversely" to Morris, the court properly found he met the definition of "vexatious litigant" under section 391(b)(1).
See the discussion in footnote 3, ante, regarding the commencement of Morris's fifth request on June 15, 2005.
3. Morris's claim the five litigations were small claims court litigations to which the vexatious litigant statute does not apply
Morris also contends the vexatious litigant statute does not apply to requests for restraining orders as such requests are for equitable relief only, and cases requesting issuance of restraining orders are small claims cases within the meaning of section 391(b)(1), which by its own terms limits the application of the vexatious litigant statute to "litigations other than in a small claims court." (Italics added.) He maintains he is not a vexatious litigant under section 391(b)(1) because "his pursuit of a restraining order [was] necessarily for a value less than the small claims limit." We reject these contentions.
Witkin explains that "[a]s part of the unification of trial courts, [section] 116.210 was amended in 1998 and 2002. It now provides for a small claims division in each superior court known as the small claims court." (2 Witkin, Cal. Procedure (2007 supp.) Courts, § 271, p. 111.) The jurisdiction of the small claims court is delineated in sections 116.220 and 116.221, neither of which confers jurisdiction on the small claims court to grant injunctive relief. With exceptions not applicable here, section 116.220, subdivision (a)(1) provides: "(a) The small claims court has jurisdiction in the following actions: [¶] (1) . . . for recovery of money, if the amount of the demand does not exceed five thousand dollars ($5,000)." (Italics added.) Section 116.221 provides, with exceptions also not applicable here, that "[i]n addition to the jurisdiction conferred by section 116.220, the small claims court has jurisdiction in an action brought by a natural person, if the amount of the demand does not exceed seven thousand five hundred dollars ($7,500) . . . ."
Asserting that "[s]mall claims court proceedings involve cases with less than $7,500.00 at issue," Morris states without citation to authority that "[t]heoretically, cases requesting issuance of restraining orders are small claims cases because they too are not for relief in excess of the small claims limits," and thus restraining orders "are not unlike small claims and should be treated as such for purposes of the vexatious litigant statute."
These assertions are unavailing. After recognizing that his requests for injunctive relief under section 527.6 are actions for nonmonetary relief, Morris incorrectly implies they are also actions at law for the recovery of money, but in an amount "less than the small claims limit." " From this false premise, Morris unavailingly attempts to persuade this court that his five unsuccessful requests for a restraining order against Badiei do not qualify as "litigations other than in a small claims court" within the meaning of section 391(b)(1), and thus that there is no substantial evidence to show he is a vexatious litigant under that subdivision. Morris does not contest Badiei's argument that small claims courts lack jurisdiction to rule on requests for injunctive relief under section 527.6, as he has not filed an appellant's reply brief.
That small claims courts lack jurisdiction to hear and decide requests for injunctive relief under section 527.6 may be inferred not only from sections 116.220, subdivision (a)(1) and 116.221 (discussed, ante), but from the fact that subdivision (e) of section 527.6 expressly authorizes the parties to a proceeding under that section to be represented by counsel, whereas there is a general statutory prohibition of the participation by attorneys in the conduct or defense of a small claims action. The record shows that Morris, acting in propria persona, commenced in the Superior Court of the County of San Diego, but not in the small claims division of that court, his first five requests for a restraining order against Badiei under section 527.6. In sum, we reject Morris's claims that (1) those five requests for injunctive relief do not qualify as "litigations other than in a small claims court" within the meaning of section 391(b)(1), and (2) substantial evidence does not support the court's finding that he is a vexatious litigant under that subdivision.
Section 527.6, subdivision (e) provides in part: "This section does not preclude either party from representation by private counsel."
Section 116.530, subdivision (a) provides: "Except as permitted by this section, no attorney may take part in the conduct or defense of a small claims action." That section provides no exception for cases that involve a request for relief under section 527.6. Witkin explains that "[a] vital element of the small claims procedure has long been a general prohibition on participation by attorneys . . . ." (2 Witkin, Cal. Procedure (4th ed. 1996) Courts, § 282, p. 352.)
4. Morris's claim that his first five section 527.6 requests were a single litigation for purposes of the vexatious litigant statute
Morris also contends the evidence does not support a finding that he is a vexatious litigant under section 391(b)(1) because (1) each of his first five requests for a restraining order under section 527.6 was prosecuted under the same case number (GIC777523); (2) each time his "case" was dismissed without prejudice, which meant that he "could bring an action for further harassment"; and thus (3) there was only a single litigation for purposes of the vexatious litigant statute. We reject this contention.
The record does show that Morris commenced and prosecuted each of his first five section 527.6 requests for a restraining order under the same case number: GIC777523. The court's minutes show that each of the proceedings was heard by a different judge, and each judge dismissed or denied Morris's "case" or request without prejudice. It does not follow, however, that there was only one litigation for purposes of the vexatious litigant statute.
As already discussed, the vexatious litigant statute defines "litigation" to mean "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a), italics added.) Thus, each proceeding that followed Morris's filing of a section 527.6 petition or request was a separate "litigation" for purposes of the vexatious litigant statute notwithstanding the fact that each of the five petitions or requests was brought under the same case number and the court's minutes show that Morris's "case" (or request) was dismissed (or denied) without prejudice.
We reject Morris's contention that the dismissals and denials without prejudice establish there was only one litigation for purposes of the vexatious litigant statute. In Tokerud v. Capitol Bank Sacramento (1995) 38 Cal.App.4th 775 (Tokerud), the trial court found that the plaintiff met the definition of a vexatious litigant under section 391(b)(1) in that he had prosecuted in propria persona five actions within the previous seven years, and all of them were finally determined adversely to him. (Tokerud, supra, 38 Cal.App.4th at p. 778.) The plaintiff appealed, challenging two of the five matters on which the trial court had relied, on the ground that he had voluntarily dismissed those two matters without prejudice. (Id. at pp. 778, 781.) The Court of Appeal rejected the plaintiff's contention that a voluntarily dismissed action cannot be counted for purposes of the vexatious litigant statute, stating that this contention was "contrary to the underlying intent of that legislation." (Id. at p. 779.) The Tokerud court explained that "[a]n action which is ultimately dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system, albeit less of a burden than if the matter had proceeded to trial. A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion. The difference is one of degree, not kind." (Ibid.) The same reasoning applies in cases or proceedings brought and prosecuted under section 527.6 that are involuntarily dismissed without prejudice for lack of proof. Such litigation is no less a burden on the target of the litigation and the judicial system.
Morris's attempt to distinguish Tokerud, supra, 38 Cal.App.4th 775, is unavailing. He asserts that "Tokerud is distinguishable from the instant matter in that Tokerud involved a civil action for damages while the instant action is simply a request for an injunction prohibiting the harassment of [Morris]. There is a fundamental difference between a prayer in equity and a prayer for monetary compensation. Moreover, Tokerud involved distinct and separate actions filed by the plaintiff [in pro per]. They did not involve the same action, filed by the court with the same case number as a single case as in this matter." These assertions are unpersuasive. For reasons discussed, ante, we have rejected Morris's contention that he brought only a single litigation against Badiei for purposes of the vexatious litigant statute. His contention that a proceeding resulting from the filing of a section 527.6 petition is not a litigation for purposes of the vexatious litigant statute is unavailing. Morris again ignores the plain language of the vexatious litigant statute. As already discussed, section 391, subdivision (a) defines "litigation" as "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (Italics added.) The vexatious litigant statute contains no exception for a section 527.6 proceeding and makes no distinction between an equitable action and an action at law for damages. The definition of "litigation" set forth in section 391, subdivision (a) is sufficiently broad to encompass a proceeding commenced by the filing of a section 527.6 petition or request.
5. Claim of unconstitutionality
Last, Morris contends the court's finding that he is a vexatious litigant violates his constitutional right to petition the court for redress of grievances. He also contends that "[h]olding [he] is a vexatious litigant when the statute explicitly provides for a remedy in court for continuous harassment violates [his] constitutional rights to pursue[] safety, happiness, and security." He further contends that "[c]haracterizing [him] as vexatious and therefore necessitating a prefiling order and, perhaps, furnishing security under the vexatious litigant statutes certainly limits his speech" and "[t]his constitutes a prior restraint under the present circumstances . . . ." These contentions are unavailing.
Because the court denied Badiei's request that Morris be required to furnish security and seek leave of court before filing any new litigation, its finding that Morris is a vexatious litigant did not result in any restraint in this case, and thus Morris's claim that this finding constitutes a prior restraint on the exercise of free speech is moot and unavailing.
In support of his contention that the court's determination that he is a vexatious litigant violates his constitutional right to petition the court for redress of grievances, Morris cites Smith v. Silvey (1983) 149 Cal.App.3d 400 (Smith). He asserts that "[t]o declare [him] a vexatious litigant under the circumstances would be analogous to making a finding that a perpetrator that has victimized a person multiple times could no longer be convicted of different crimes in criminal court. It would also be analogous to court-ordered suicide."
Morris's reliance on Smith is unavailing. In Smith the trial court granted an injunction under section 527.6 restraining the defendant, a tenant in a mobilehome park, from initiating complaints with public agencies against the plaintiff mobilehome park owner in relation to the park and from contacting any residents in the park. (Smith, supra, 149 Cal.App.3d at p. 402.) The Court of Appeal reversed the judgment and dissolved the injunction, holding that the injunction violated the tenant's constitutionally protected right to petition the government for redress of grievances to the extent it enjoined him from contacting various governmental agencies under the authority of section 527.6. (Smith, supra, 149 Cal.App.3d at p. 406.) The Smith court also held that the portion of the trial court's order prohibiting the tenant from "contacting" any of the park residents was unconstitutionally overbroad because its vague wording prohibited lawful as well as unlawful activity. (Id. at pp. 406-407.) Smith is distinguishable in that (1) it did not involve a motion brought under the vexatious litigant statute, and (2) here, unlike in Smith, no restraining order has been issued. Morris has not explained what the vexatious litigant determination prevents him from doing. The court's order in this case does not prevent Morris from seeking redress in the courts.
II.
ORDER DENYING MORRIS'S RESTRAINING ORDER REQUEST (§ 527.6)
Morris also contends the September 7, 2006 order denying his sixth and latest section 527.6 request for a restraining order against Badiei should be reversed because there was both reasonable proof that Badiei harassed him (§ 527.6, subd. (c)) and clear and convincing evidence to support a permanent injunction (§ 527.6, subd. (d)). He also claims the court abused its discretion in refusing to hear evidence of Badiei's prior course of conduct.
In his respondent's brief, Badiei contends this court lacks jurisdiction to review the court's decision to deny without prejudice Morris's sixth request for a restraining order against Badiei. We first address Badiei's contention and conclude this court lacks jurisdiction to review the September 7, 2006 order.
A. Background
In his appellant's opening brief, as already noted, Morris seeks reversal of (1) the court's September 5, 2006 order declaring him a vexatious litigant, and (2) the court's September 7, 2006 order denying without prejudice his sixth request for a restraining order against Badiei.
Morris's notice of appeal, which he filed on November 6, 2006, indicates only that he is appealing an "order after judgment" (§ 904.1, subd. (a)(2)) entered on September 5, 2006. It does not mention the September 7, 2006 order.
B. Analysis
In his respondent's brief, Badiei objects that the notice of appeal fails to mention the September 7, 2006 order, and asserts it is not reasonably certain through that notice that Morris is appealing any order other than the September 5, 2006 order declaring him a vexatious litigant. Morris has not filed an appellant's reply brief to contest these contentions.
Although rule 8.100(a)(2) of the California Rules of Court provides that "[t]he notice of appeal must be liberally construed," it also provides that "[t]he notice is sufficient if it identifies the particular judgment or order being appealed. . . ." (Italics added.) "The rule of liberal construction does not permit appellate review of an unspecified portion of the judgment where the notice of appeal unambiguously evidences an intent to appeal from only part of the judgment or one of several separate appealable orders or judgments." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 3:130.5, p. 3-54 (rev. #1 2006); see also Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47 [no appellate jurisdiction to review a separately appealable postjudgment order granting litigation costs and attorney fees where the notice of appeal unambiguously designated only a previously filed amended judgment].)
Here, we cannot construe Morris's notice of appeal as applying to the September 7, 2006 order under the rule of liberal construction set forth in California Rules of Court, rule 8.100(a)(2). Because the notice of appeal in this case unambiguously identified only the September 5, 2006 order declaring him a vexatious litigant, we conclude this court has no jurisdiction to review the September 7, 2006 order. Accordingly, we do not reach Morris's contentions regarding the latter order.
DISPOSITION
The order granting in part Badiei's vexatious litigant motion is affirmed. Badiei shall recover his costs on appeal.
WE CONCUR: McCONNELL, P. J., IRION, J.