Opinion
E032511.
11-21-2003
NANCY L. STEINBERG, Plaintiff and Respondent, v. ALDO ABATECOLA, Defendant and Appellant.
Aldo Abatecola, in pro. per., for Defendant and Appellant. Nancy L. Steinberg, in pro. per., for Plaintiff and Respondent.
A defendant in proceedings to enjoin harassment (Code Civ. Proc., § 527.6) appeals from the resulting injunction and from the denial of a post-judgment motion to vacate. Finding no error, we affirm.
Unless specified otherwise, all section references are to the Code of Civil Procedure.
PROCEDURAL BACKGROUND
The following events all occurred during 2002. On May 14, Nancy L. Steinberg filed a petition for an order enjoining Aldo Abatecola from harassing her. Steinberg notified Abatecola that she was applying ex parte for a temporary restraining order and order to show cause. Her application was heard on May 16. After Abatecola declared that the judge to which the matter was assigned was prejudiced against him (§ 170.6), the matter was assigned to a commissioner. The commissioner issued the TRO and the OSC re permanent injunction.
The hearing on the OSC was set for June 3. Despite seven attempts by a registered process server at personal delivery and additional attempts by mail, Steinberg was not able to effect service on Abatecola. Accordingly, at Steinbergs request, the hearing on the OSC was ordered to be continued to August 6. The trial court also ordered that the TRO would remain in effect until that new hearing date.
Steinberg applied for leave to serve by publication. (§ 415.50.) That application was granted on June 3. Publication commenced on June 28. Service was complete on July 25. (§ 415.50, subd. (c); Gov. Code, § 6064.)
On August 5, Abatecola moved to quash service. (§ 418.10.) On August 6, apparently unaware that a motion to quash had been filed, the trial court granted Steinbergs petition and issued a permanent injunction. Abatecola responded by applying ex parte for an order vacating the injunction, which was granted on September 18. At the September 18 hearing, the trial court also denied the motion to quash and set the hearing on the OSC for October 11.
On September 30, Abatecola petitioned the appellate division of the trial court for a writ of mandate to compel the trial court to grant the motion to quash service. The appellate division dismissed that petition on October 8.
On October 11, Abatecola appeared on the hearing on the OSC and moved to dismiss the action on the ground that the hearing was not held within 22 days of the date that the TRO was issued. (See § 527.6, subd. (d).) Abatecola also objected on the ground that he was entitled to file responsive pleadings up to 10 days after notice of the final judgment in the mandate proceedings. (§ 418.10, subd. (c).) Judge John Tomberlin proceeded with the hearing, thereby implicitly denying Abatecolas motion and overruling his objection. At the conclusion of the hearing, the trial court granted Steinbergs petition and issued a permanent injunction. Abatecola then orally requested a statement of decision (§ 632), which the trial court denied.
Abatecola appealed from the judgment on October 11.
On October 21, Abatecola filed a lengthy written response to the harassment petition.
On November 6, Abatecola moved to vacate the October 11 judgment. On November 12, he moved to disqualify Judge Tomberlin for actual prejudice. (§§ 170.1, 170.3.) Judge Tomberlin ordered the disqualification statement stricken on December 5. Abatecola filed a second disqualification statement on December 11, which Judge Tomberlin struck on December 17.
Judge Tomberlin denied Abatecolas motion to vacate on December 19. Abatecola appealed from that post-judgment order on December 30. We deem the appeal from the judgment and the appeal from the post-judgment order to constitute a single appeal.
CONTENTIONS
Abatecola expressly disclaims any challenge to the merits of the order granting Steinbergs harassment petition. Instead, he raises purely procedural and constitutional challenges. Specifically, he contends that the trial court lacked personal jurisdiction over him, acted in excess of jurisdiction by hearing the petition, and lacked jurisdiction to decide the disqualification motions. He also contends that the injunction violates his constitutional rights and that the trial courts failure to issue a statement of decision was reversible per se. Finally, Abatecola seeks an award of sanctions on appeal.
Steinberg asks that Abatecola be declared to be a vexatious litigant.
ANALYSIS
A. ABATECOLA WAIVED ANY DEFECT IN THE MANNER OF SERVICE BY MAKING A GENERAL APPEARANCE.
"Upon filing of a petition for an injunction under [section 527.6], the defendant shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing of the petition." (§ 527.6, subd. (g).) Abatecola contends that by specifying personal service, this subdivision precludes service by publication. No personal service having been effected, he concludes, the trial court lacked personal jurisdiction over him.
Abatecolas argument is premised on his questionable assumption that by providing in section 527.6, subdivision (g), that defendants should be "personally served," the Legislature intended to exclude any manner of service of process other than the "personal delivery" described in section 415.10. We need not resolve that contention because Abatecola waived service of process by voluntarily appearing in the action.
By making a general appearance in an action, a party consents to the courts jurisdiction of the person, thereby dispensing with the requirement of service of process. (Code Civ. Proc., § 410.50, subd. (a); Lacey v. Bertone (1949) 33 Cal.2d 649, 651; 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756.) A defendant makes a general appearance by contesting the merits of the case, objecting or seeking relief on grounds unrelated to personal jurisdiction, or otherwise participating in the action in a manner that implicitly recognizes the authority of the court to proceed. (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147; Lacey, p. 651; 366-388 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1193.)
As noted above, Abatecola appeared at the hearing on October 11 and moved to dismiss the action on the ground that the hearing had not been held in a timely fashion. By seeking relief on a ground unrelated to his personal-jurisdiction objection, Abatecola made a general appearance and thereby submitted himself to the personal jurisdiction of the trial court, regardless of whether the OSC had been served upon him in the manner described by section 527.6.
B. THE TRIAL COURT DID NOT LACK SUBJECT-MATTER JURISDICTION TO CONDUCT A HEARING ON THE PETITION.
Section 527.6, subdivision (d), provides: "Within 15 days, or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued, a hearing shall be held on the petition for the injunction." Noting that the October 11 hearing was far more than 22 days from the date the TRO was issued on May 16, Abatecola contends that the trial court was powerless to conduct a hearing and that its jurisdiction was limited to dissolving the TRO and dismissing the action.
He is mistaken. Although the statutory time limit was exceeded, that time limit was not mandatory in the jurisdictional sense.
"A statutory requirement may impose on the state a duty to act in a particular way, and yet failure to do so may not void the governmental action taken in violation of the duty. [Citations.] This distinction is generally expressed in terms of calling the duty `mandatory or `directory." (In re Richard S. (1991) 54 Cal.3d 857, 865.) "As a general rule, . . . a `"directory" or "mandatory" designation does not refer to whether a particular statutory requirement is "permissive" or "obligatory," but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates." (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145, quoting Morris v. County of Marin (1977) 18 Cal.3d 901, 908.) "If the action is invalidated, the requirement will be termed `mandatory. If not, it is `directory only." (California Correctional Peace Officers Assn., p. 1145.)
"Time limits are usually deemed to be directory unless the Legislature clearly expresses a contrary intent." (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1145.) The Legislature expresses such an intent by specifying a consequence or penalty for a violation that would have the effect of invalidating the governmental action. (Ibid.) The Legislature did not specify a penalty or consequence for the failure to conduct a hearing on the petition within 22 days.
Courts may also determine legislative intent by ascertaining whether invalidation of the governmental action would promote or defeat the purpose of the enactment. (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1145.) The general purpose of section 527.6 is to provide expedited injunctive relief to victims of harassment. (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1775.) If the 22-day time limit were mandatory, then a defendant could avoid a permanent injunction merely by evading service for a few weeks until the courts jurisdiction had evaporated. That is certainly not what the Legislature intended. Accordingly, the purposes of section 527.6 would be undermined were that time limit held to be mandatory.
We conclude that the 22-day limit specified in section 527.6, subdivision (d), is directory rather than mandatory. Therefore, the trial court did not lack the subject-matter jurisdiction to conduct a hearing on the petition more than 22 days after the issuance of the TRO.
Abatecola notes that, by holding the hearing beyond the 22-day limit, the trial court may have acted in excess of its jurisdiction. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291.) Acts of that nature may be restrained by writs of prohibition or annulled by writs of certiorari. (Ibid.) But no petitions for such extraordinary relief are before us. Instead, we are presented with an appeal, which will be successful only if the appellant demonstrates reversible error.
Abatecola does not contend that, under the circumstances, the trial court erred by extending the date of the hearing, or that if the court did err, he was prejudiced thereby. Accordingly, he has not demonstrated grounds for reversal on appeal.
C. THE TRIAL COURT DID NOT ERR BY CONDUCTING A HEARING LESS THAN 10 DAYS AFTER THE APPELLATE DIVISION DISMISSED ABATECOLAS PETITION FOR WRIT OF MANDATE.
Relying on section 418.10, Abatecola contends that the trial court erred by conducting a hearing less than 10 days after the appellate division dismissed his misdirected petition for writ of mandate. He is mistaken.
If a trial court denies a motion to quash, the moving defendant "may petition an appropriate reviewing court for a writ of mandate to require the trial court to enter its order quashing the service of summons . . . ." (§ 418.10, subd. (c).) If the defendant files and serves a notice that he has petitioned for a writ of mandate, his time to plead is extended "until 10 days after service upon him or her of a written notice of the final judgment in the mandate proceeding." (Ibid.) "No default may be entered against the defendant before expiration of his or her time to plead . . . ." (Id., subd. (d).)
As noted, those provisions apply only if the defendant has filed a petition for writ of mandate with an "appropriate" reviewing court. Abatecola did not meet that prerequisite. He filed his petition for writ of mandate with the appellate division of the superior court. In civil cases, the jurisdiction of the appellate division to issue writs of mandate extends only to limited civil cases. (Cal. Const., art. VI, §§ 10 & 11, subd. (b); § 1085, subd. (b).) A proceeding under section 527.6 does not meet the definition of a limited civil case or proceeding. (§§ 85-86.1.) Accordingly, the appellate division was not an "appropriate" reviewing court.
Having failed to file his petition in a court that was empowered to grant the relief he sought, Abatecola was not entitled to an extension of time in which to plead under section 418.10, subdivision (c).
D. THE DENIAL OF THE MOTION TO VACATE, EVEN IF ERRONEOUS, WAS NOT PREJUDICIAL BECAUSE THE PRIOR APPEAL FROM THE JUDGMENT HAD DEPRIVED THE COURT OF JURISDICTION.
As noted above, Judge Tomberlin denied Abatecolas motion to vacate the judgment after Abatecola had attempted to disqualify him. Abatecola contends that, because he had disqualified Judge Tomberlin, the judge was precluded by ruling on his motion and that the order denying the motion is void. We need not consider that contention because, regardless of which judge the motion might have been referred to, the trial court could not rule on it because it lacked subject matter jurisdiction.
"A timely notice of appeal suspends the trial courts jurisdiction over the cause and vests jurisdiction in the appellate court." (In re Marriage of Varner (1998) 68 Cal.App.4th 932, 936; accord, Adoption of Alexander S. (1988) 44 Cal.3d 857, 864; Gold v. Superior Court (1970) 3 Cal.3d 275, 280; Estate of Hanley (1943) 23 Cal.2d 120, 123.) Accordingly, subject to certain exceptions not applicable here, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby . . . ." (§ 916, subd. (a).)
"`The purpose of the rule depriving the trial court of jurisdiction during the pending appeal is to protect the appellate courts jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it. [Citation.] Accordingly, whether a matter is "embraced" in or "affected" by a judgment within the meaning of section 916 depends upon whether postjudgment trial court proceedings on the particular matter would have any impact on the "effectiveness" of the appeal. If so, the proceedings are stayed; if not, the proceedings are permitted." (In re Marriage of Varner, supra, 68 Cal.App.4th at p. 936, quoting Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.)
A motion to vacate a judgment from which an appeal has been taken directly concerns "matters embraced" in or "affected" by the judgment. (Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 486.) As a general rule, therefore, trial courts lack jurisdiction to entertain a motion to vacate a judgment that is valid on its face. (Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc. (1996) 43 Cal.App.4th 630, 641.) However, if the appealed-from judgment is void on its face — i.e., if its infirmity may be determined from an inspection of the judgment roll or the record — it may be set aside on motion at any time after its entry by the court that rendered the judgment, even if an appeal from the judgment is pending. (Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 523.)
This judgment is not void on its face. Therefore, after Abatecola filed his notice of appeal from the judgment on October 11, the trial court was without jurisdiction to entertain a motion to vacate that judgment. Accordingly, even if Judge Tomberlin had been disqualified when he denied the motion, that denial was not prejudicial to Abatecola.
E. THE INJUNCTION HAS NOT BEEN SHOWN TO BE OVERBROAD.
Next, Abatecola contends that the injunction violates his right to due process of law because it is overbroad in several respects. Abatecola has waived this claim by failing to present a sufficient record.
To evaluate his claim that the anti-harassment injunction is overly broad, we would need to compare the nature and extent of the harassment with the nature and extent of the restraints imposed by the injunction. In short, we must evaluate the merits of the judgment. But Abatecola insists in his briefing that he is not challenging the merits of Steinbergs allegations. Accordingly, when designating the portions of the oral proceedings to be transcribed, he specifically instructed the court reporter that the "transcript shall not include, in whole or in part, the plaintiffs sworn testimony . . . [because, inter alia,] the points to be raised on appeal are strictly procedural in nature. The issues on appeal will not reach the merits of the case." Pursuant to that instruction, the court reporter omitted the evidence received at the hearing.
A trial courts ruling is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To overcome that presumption, an appellant must present a record that affirmatively establishes the existence of error, not just that it might have occurred. (Ibid.; Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) In the absence of a record of the evidence presented at the hearing regarding the nature of the harassment committed by Abatecola, he has failed to present a record sufficient to establish that the injunction is overbroad. (Construction Financial v. Perlite Plastering Co. (1997) 53 Cal.App.4th 170, 179.) Therefore, he has failed to demonstrate any error on that ground.
F. THE TRIAL COURT DID NOT ERR BY DENYING ABATECOLAS REQUEST FOR A STATEMENT OF DECISION.
Abatecola contends that the trial court erred by denying his request for a statement of decision. He is mistaken, for two reasons.
First, the obligation to issue a statement of decision arises only upon a timely request. (§ 632.) To be timely, "[t]he request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision." (Ibid.) Thus, for trials of longer than a day, the request may be made after the matter is submitted for decision and the tentative decision is announced, but for trials of less than a day, the request must be made before the matter is submitted and the tentative decision is announced.
A nonjury trial is submitted when the parties have either exhausted or waived their last opportunities to present evidence or argument. (Cal. Rules of Court, rule 825(a); Mardikian v. Commission on Judicial Performance (1985) 40 Cal.3d 473, 477; Social Service Union v. County of Monterey (1989) 208 Cal.App.3d 676, 680.) Although the trial here lasted less than a day, Abatecola did not request a statement for decision until after he had declined to present evidence or argument and after the trial court had announced its tentative decision. Therefore, the request was untimely because it was not made until after the cause had been submitted. The trial court properly denied the untimely request. (See, e.g., Jones v. Adams Financial Services (1999) 71 Cal.App.4th 831, 840.)
Furthermore, "[t]he request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision." (§ 632.) A party who fails to comply with that requirement waives his right to object to the trial courts failure to honor his request. (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1292; Atari, Inc. v. State Bd. of Equalization (1985) 170 Cal.App.3d 665, 674-675.) Abatecola failed to specify any of the issues on which the court was to issue a statement of decision. Therefore, he has waived any objection to the trial courts denial of his request.
For both of these reasons, the trial court did not err by denying Abatecolas request for a statement of decision.
G. ABATECOLA IS NOT ENTITLED TO SANCTIONS ON APPEAL.
In the final paragraph of his reply brief, Abatecola asks for an award of "sanctions in the reasonable sum of $500.00, along with costs of appeal." The requests are denied.
Abatecola cites no authority for sanctioning the respondent for her supposed failures to comply with rules of appellate practice. When counsel asserts a point but fails to support it with reasoned argument and citations to authority, the court may deem it to be waived, and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) We deem Abatecola to have waived his request for sanctions.
H. ABATECOLA IS A VEXATIOUS LITIGANT.
A "vexatious litigant" is 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 . . . ." (§ 391, subd. (b)(1).) "`Litigation means any civil action or proceeding, commenced, maintained or pending in any state or federal court." (Id., subd. (a).) Thus, litigation includes appeals and petitions for extraordinary writs. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216, 1219.) "[T]he 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." (§ 391.7, subd. (a).)
Steinberg has moved for a determination that Abatecola is a vexatious litigant pursuant to section 391 and for a prefiling order pursuant to section 391.7, subdivision (a). Abatecola opposes the motion. We reserved a ruling for a decision with the appeal.
Preliminarily, we reject Abatecolas assertion that, as a plaintiff, Steinberg is ineligible to move for relief under the vexatious-litigant statutes. The Legislature has expressly authorized "any party" to move for a prefiling order, not just defendants. (§ 391.7, subd. (a).) Moreover, even had the section referred solely to defendants, Steinberg would still qualify. Because "litigation" includes appeals and writ petitions, "plaintiff" must be construed to include appellants and petitioners and "defendant" must be construed to include respondents and real parties in interest. (McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1217.)
We also note that this is not the first time that we have been asked to find Abatecola to be a vexatious litigant. The defendants and respondents in Abatecola v. Covington & Crowe (Jan. 10, 1997, E015192), made such a request. In that case, we found that the conduct of Abatecola and his wife on appeal had been "reprehensible." Nevertheless, we declined to find Abatecola to be vexatious, apparently because his misconduct did not rise to the extreme level of malfeasance displayed by the litigants in In re Luckett (1991) 232 Cal.App.3d 107.
In retrospect, we were too lenient. Rather than heed the disapproval that we expressed in our 1997 opinion, Abatecola has continued to burden the courts of this state with meritless litigation over the last seven years.
To the extent necessary, we take judicial notice of the records of this Court, the California Supreme Court, and the San Bernardino Superior Court. (Evid. Code, §§ 459, subd. (a) & 452, subd. (d)(1).)
On August 8, 1996, he filed a petition for review in the Supreme Court. (Abatecola v. Kraft, S055389.) The Supreme Court denied that petition on September 18, 2003.
Abatecola filed a petition for review of our decision in Abatecola v. Covington & Crowe, supra, E015192, on February 13, 1997. (S059060.) The Supreme Court denied that petition on April 16, 1997.
As noted above, Abatecola filed a petition for writ of mandate with the appellate division of the superior court on September 30, 2002, which the appellate division dismissed on October 8, 2002. (Abatecola v. Superior Court (Steinberg), VCVVS028205.)
On October 16, 2002, Abatecola filed a petition for writ of mandate in this court. (Abatecola v. Superior Court, E032563.) We summarily denied that petition on October 23, 2002.
On December 27, 2002, he filed another petition for writ of mandate in this court. (Abatecola v. Superior Court, E032946.) We summarily denied that petition on January 3, 2003. He immediately filed what he conceded to be an identical petition seeking identical relief on January 9, 2003. (Abatecola v. Superior Court , E032997.) We summarily denied that petition on January 15, 2003. A week later, he filed a petition for review with the Supreme Court on January 22, 2003. (Abatecola v. Superior Court, S112991.) The Supreme Court denied that petition for review on March 19, 2003.
In summary, within the last seven years Abatecola has prosecuted in propria persona seven separate actions or proceedings in California courts that have been finally determined adversely to him. Therefore, he is a vexatious litigant under the criteria specified in section 391, subdivision (b)(1), which is satisfied by five or more such actions or proceedings. We note that, by filing duplicative petitions for writs of mandate and thereby attempting to relitigate matters that have been finally determined, he also meets the alternative test described in subdivision (b)(2) of that section.
"Court filing fees ordinarily deter even the most persistent litigants. But [Abatecola] has been relieved of the obligation to pay filing fees because of his statutory right to forma pauperis relief. He has, however, abused that right by repeatedly filing unmeritorious and frivolous pleadings. [His] tactics waste precious court time. This court has previously [reprimanded him], but he persists." (In re Luckett, supra, 232 Cal.App.3d at p. 110.)
We conclude that Abatecola meets the statutory definition of a vexatious litigant under section 391, subdivisions (b)(1) and (b)(2). Good cause appearing, Steinbergs motion for a prefiling order under section 391.7, subdivision (a), is granted.
DISPOSITION
The judgment is affirmed. Steinberg shall recover her costs on appeal.
Abatecola is prohibited 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 in which he proposes to file the litigation. (§ 391.7, subd. (a).) The clerk of this court is directed to notify the Judicial Council of this order. (Id., subd. (e).)
We concur: Richli, J., Ward, J.