Opinion
A150150
03-16-2018
JOHN H. STEWART, Plaintiff and Appellant, v. MICHAEL DOWNEY, as Special Administrator, etc. et al. Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. DR081020)
Plaintiff John H. Stewart challenges the trial court's orders declaring him to be a vexatious litigant and barring him from filing future litigation in propria persona without permission of the court. (Code Civ. Proc., § 391.7, subd. (a).) We conclude substantial evidence supports the orders and affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Because of the posture of this proceeding, a complete recitation of the factual background is unnecessary. Moreover, as the matters described below have come before this court on several occasions, we are very familiar with the underlying facts.
On October 31, 1994, plaintiff and Patricia married. Some months before the wedding, Patricia purchased a ranch at 5000 Crooked Prairie Road (Ranch). The deed was recorded April 25, 1994, indicating that she took title in her own name "as a single woman."
In 2005, plaintiff caused the preparation of an interspousal deed transferring the ranch to him and Patricia as "husband and wife as community property with right of survivorship." John and Patricia executed the deed on May 17, 2005. The deed was not recorded until after her death.
On November 9, 2007, Patricia filed a dissolution action (In re Marriage of Stewart (Super. Ct. Humboldt County, 2007, No. FL070587).)
On January 31, 2008, plaintiff filed a conservatorship petition seeking to become Patricia's conservator. (Conservatorship of Stewart (Super. Ct. Humboldt County, 2008, No. PR080037).)
On August 29, 2008, a jury rejected plaintiff's conservatorship petition, finding the appointment of a conservator for Patricia to be unnecessary. The petition was ordered dismissed.
On November 5, 2008, plaintiff filed a complaint for breach of contract against Patricia for breach of an alleged Marvin-style agreement. (Stewart v. Stewart (Super. Ct. Humboldt County, 2008, No. DR081020).)
Marvin v. Marvin (1976) 18 Cal.3d 660.
On November 17, 2008, plaintiff filed a notice of appeal, purportedly from a judgment entered August 29 in the conservatorship case, though no judgment had been entered.
On December 16, 2008, the family court issued its written decision, granting Patricia's petition and declaring the marriage dissolved. The court found Patricia competent and able to participate in the proceeding. The court also found the 2005 interspousal deed to be invalid under principles of undue influence.
On February 5, 2009, a judgment of dissolution in the family court matter was entered, terminating the parties' marital status as of December 31, 2008. The judgment confirmed the Ranch was Patricia's sole and separate property. Patricia subsequently sold the Ranch to William and Ronda Rolff. A deed transferring title to the Ranch to the Rolffs was recorded on February 19, 2009.
Patricia died on February 23, 2009.
On February 24, 2009, the day after Patricia died, plaintiff recorded the interspousal transfer deed that the family court had previously declared to be unenforceable.
On February 27, 2009, plaintiff filed a probate petition based on a purported will dated April 9, 2007 (Estate of Stewart (Super. Ct. Humboldt County, 2009, No. PR090073).)
On March 12, 2009, plaintiff filed an appeal of the judgment of dissolution of marriage.
On March 23, 2009, James Taylor (Patricia's caretaker) filed a probate petition based on a purported will dated February 20, 2009 (Estate of Lean (Super. Ct. Humboldt County, 2009, No. PR090102).) The two probate proceedings were later consolidated.
On April 30, 2009, plaintiff filed a first amended complaint against the public administrator of Patricia's estate in the breach of contract action.
On July 10, 2009, plaintiff filed a motion in the breach of contract action for a preliminary injunction under section 527.
On July 31, 2009, William Rolff filed an ex parte application for leave to intervene in the breach of contract action, based on his interest as the holder of title to the Ranch.
On October 23, 2009, the trial court filed its order denying plaintiff's motion for preliminary injunction. He appealed the ruling.
On July 21, 2010, we filed our opinion affirming the trial court's order denying plaintiff's motion for preliminary injunction. (Stewart v. Parris (July 21, 2010, A126382 [nonpub. opn.] review den. Oct. 13, 2010, S185893) (Stewart v. Parris I).)
On May 17, 2011, we dismissed as untimely an appeal plaintiff filed from an order of the trial court dated December 3, 2010. (Stewart v. Parris, A131721 (Stewart v. Parris II).)
On June 30, 2011, we dismissed as untimely an appeal plaintiff filed from an order of the trial court dated March 16, 2011. (Stewart v. Parris, A132208 (Stewart v. Parris III).)
On August 23, 2011, we filed our opinion affirming the judgment in the conservatorship action. (Conservatorship Stewart (Aug. 23, 2011, A123544 [nonpub. opn.].)
On January 26, 2012, we filed our opinion affirming the judgment in the dissolution action. (In re Marriage of Lean & Stewart (Jan. 26, 2012, A124777 [nonpub. opn.] review den. Mar. 28, 2012, S200643 (Marriage of Lean & Stewart).)
On March 23, 2016, Rolff filed a motion to declare plaintiff a vexatious litigant.
On April 8, 2016, plaintiff filed his opposition to Rolff's motion.
On April 11, 2016, intervenor James Lewis Taylor joined the motion to declare plaintiff a vexatious litigant.
On April 15, 2016, plaintiff filed an opposition to Taylor's joinder.
On September 2, 2016, Taylor filed a summary of plaintiff's failed appellate cases.
On October 21, 2016, the trial court filed its order declaring plaintiff to be a vexatious litigant under section 391, subdivisions (b)(1), (b)(2), and (b)(3), and included a prefiling order.
On November 17, 2016, the trial court entered its prefiling order prohibiting plaintiff from filing new litigation in the courts of California in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. This appeal followed.
DISCUSSION
I. Vexatious Litigants
The statutory scheme that authorizes a court to declare a person a vexatious litigant (§§ 391 to 391.8) was originally "enacted in 1963 to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues. Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts." (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.) "A vexatious litigant may be required to furnish security before proceeding with the pending litigation; if that security is not furnished, the litigation must be dismissed. [Citations.] In addition, the court may, on its own motion or on motion of a party, issue a prefiling order that prohibits the vexatious litigant from filing any 'new litigation' without first obtaining permission of the presiding judge of the court where the litigation is proposed to be filed." (Ibid.; see §§ 391.3, 391.4, 391.7.)
" 'Vexatious litigant' is defined in section 391, subdivision (b) as a person who has, while acting in propria persona, initiated or prosecuted numerous meritless litigations, relitigated or attempted to relitigate matters previously determined against him or her, repeatedly pursued unmeritorious or frivolous tactics in litigation, or who has previously been declared a vexatious litigant in a related action." (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169-1170; see § 391, subd. (b).) "Litigation" is defined to mean "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).) A litigation includes an appeal or civil writ proceeding filed in an appellate court. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216 (McColm).)
Section 391, subdivision (b)(1) defines a vexatious litigant as a person who, in 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."
Section 391, subdivision (b)(2) defines a vexatious litigant as a person who, after a final judgment against him or her, "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."
Section 391, subdivision (b)(3) defines a vexatious litigant as a person who, "[i]n 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."
"The trial court exercises its discretion in determining whether a person is a vexatious litigant. Review of the order is accordingly limited and the Court of Appeal will uphold the ruling if it is supported by substantial evidence. Because the trial court is best suited to receive evidence and hold hearings on the question of a party's vexatiousness, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment." (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636; see In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1346 (Rifkin).) Questions of law concerning the vexatious litigant designation are reviewed de novo. (Rifkin, at p. 1346.)
In the present case, we will conclude substantial evidence supports the trial court's ruling. While the court found appellant had satisfied three subdivisions of section 391, subdivision (b), we need only address the first subdivision, subdivision (b)(1). Consistent with this provision, it is apparent that in the seven years preceding the filing of the motion to declare him a vexatious litigant, plaintiff filed or maintained no less than five litigations, all of which were "finally determined adversely" to him. II. Vexatious Litigants Under Section 391 , Subdivision (b)(1)
Plaintiff does not contest his status as a pro per litigant.
An action is counted as being within the "immediately preceding seven-year period" (§ 391, subd. (b)(1)) so long as it was filed or maintained during that period. (Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 225.) The seven-year period is measured as of the time the motion is filed. (Id. at p. 224.)
A "final" determination against a litigant is one in which "all avenues for direct review have been exhausted." (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 993.) Even a voluntary dismissal by a plaintiff counts as a final adverse determination against the plaintiff. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 (Tokerud).) Where a plaintiff challenges multiple orders from the same case by filing separate appeals and writs, each appeal or writ that is finally determined adversely to the plaintiff may qualify. (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1005-1006 [qualifying litigation included summary denials of writ petitions, a dismissal of an appeal from a nonappealable order, a dismissal of an appeal for failure to file opening brief, and appeals rejected on merits].)
The trial court concluded the following causes were finally determined adversely to plaintiff:
Item 1: Conservatorship of Stewart, supra, A123544, taken from Humboldt County Superior Court case number PR080037, affirmed August 23, 2011. The appeal was taken after plaintiff's petition to be appointed Patricia's conservator was rejected by a jury. Although she died before he could perfect an appeal of the jury's decision, mooting the matter, he maintained the appeal, contending that the trial court should have removed certain tax returns from its file rather than merely sealing them. We concluded there was no abuse of discretion and affirmed. The matter is thus final and it was determined adversely to plaintiff.
Plaintiff concedes that he lost this appeal.
On appeal, plaintiff first asserts that section 391 does not apply to probate matters because such matters are not "litigations." He relies on Probate Code section 1970, subdivision (b). The statutory language does not support his assertion.
Probate Code section 1970 provides a separate basis for finding a person to be a vexatious litigant, notwithstanding the definition provided in section 391. Probate Code section 1970, subdivision (b) provides, in part: "Notwithstanding Section 391 . . ., if a person other than the conservatee files a petition for termination of the conservatorship, or instruction to the conservator, that is unmeritorious or intended to harass or annoy the conservator, and the person has previously filed pleadings in the conservatorship proceedings that were unmeritorious or intended to harass or annoy the conservator, the petition shall be grounds for the court to determine that the person is a vexatious litigant for the purposes of Title 3A (commencing with Section 391) of Part 2 of the Code of Civil Procedure." In no sense does this provision stand for the proposition that section 391 does not apply to probate actions or that probate actions do not qualify as "litigations." Nor does plaintiff cite to any cases holding to that effect. Rather, this provision serves to augment section 391 by providing an alternative method by which a person may be declared a vexatious litigant in a conservatorship proceeding. In particular, unlike section 391, Probate Code section 1970 does not limit the reach of the statute to persons who file pleadings in propria persona.
We also note that subdivision (d) of section 391.7, which applies to prefiling orders, provides: "For purposes of this section, 'litigation' includes any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order." This inclusion does not suggest a legislative intent to exempt Probate Code matters from the scope of vexatious litigation jurisprudence.
Plaintiff also asserts that a conservatorship case is not a " 'civil action or proceeding.' " He is wrong again. A conservatorship proceeding is a civil proceeding. Probate Code section 1827 provides: "The court shall hear and determine the matter of the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee." (See Conservatorship of Law (1988) 202 Cal.App.3d 1336, 1342 ["[W]e reiterate the conservatorship is a civil not a criminal proceeding . . . ."].)
Item 2: Marriage of Lean & Stewart, supra, A124777, derived from Humboldt County Superior Court case No. FL070587 and was affirmed January 26, 2012. In this matter, plaintiff appealed from the judgment dissolving his marriage to Patricia. He contended that her death, which occurred shortly after he filed motions for a new trial and to vacate the judgment, rendered the family court judgment void. He also asserted that the court made numerous other errors. We affirmed the judgment. Accordingly, the matter is final and was determined adversely to plaintiff.
Plaintiff's petition for rehearing was denied on February 27, 2010. His petition to United States Supreme Court was denied on October 1, 2012 (Marriage of Lean & Stewart, supra, A124777, cert. denied sub. nom. Stewart v. Parris (2012) 568 U.S. 914.)
As to this appeal, plaintiff asserts that he was not the plaintiff in that action and argues that section 391, subdivision (b)(1) does not apply to defendants. Similar to his argument above, he also contends that a dissolution action is not a "litigation" under section 391.
While plaintiff did not initiate the divorce proceeding in the lower court, section 391 does not prohibit a court from declaring a defendant appellant to be a vexatious litigant based on an appeal taken from litigation the defendant did not file: "Throughout the vexatious litigant statute, ' "Litigation" means any civil action or proceeding, commenced, maintained or pending in any state or federal court.' [Citation.] Manifestly, 'any civil action or proceeding' includes any appeal or writ proceeding. Of course, 'any state or federal court' includes the California Court of Appeal." (McColm, supra, 62 Cal.App.4th at p. 1216.) Thus, plaintiff's appeal constituted a civil proceeding commenced in a state court, qualifying it as a "litigation" initiated by him. In an attempt to avoid this result, plaintiff relies on cases holding that a person who was already determined to be a vexatious litigant retains the right to appeal cases in which he is a defendant. Those cases are inapposite.
As to his other argument, we note that Family Code section 210 expressly includes the vexatious litigant statutes as among the rules of practice and procedure applicable in family court. The statute provides: "Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure , apply to, and constitute the rules of practice and procedure in, proceedings under this code." (Fam. Code, § 210, italics added.) Hogoboom and King recognize that, in addition to various sanctions remedies, "a pro per litigant who repeatedly files unmeritorious petitions, applications or motions (other than a discovery motion) in a Family Code proceeding is subject to the 'vexatious litigant' statutes applicable in general civil actions." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 1:500, p. 1-175, citing §§ 391.7, subd. (d); 391, subd. (b); & Fam. Code, § 210.)
Item 3: Stewart v. Parris I, supra, A126382, was taken from Humboldt County Superior Court case No. DR081020, and was affirmed July 21, 2010. The underlying case was the civil action that plaintiff brought for breach of an alleged Marvin-style agreement. The appeal was from the order denying his request for a preliminary injunction. We affirmed the lower court's ruling. The matter is final and was, again, determined adversely to plaintiff.
Plaintiff's petition for rehearing was denied on August 16, 2010.
Plaintiff asserts this action was not a "final determination" because "[a]n order denying a preliminary injunction is not a final determination of the party's right to the injunction, nor is an appeal that affirms an order denying a preliminary injunction." As to the appeal, however, the matter was fully briefed by the parties, with oral argument, resulting in the reviewing court's affirmance of the trial court's denial of injunctive relief. Thus, the appeal is a final determination of that aspect of the litigation.
Item 4: Stewart v. Parris II, supra, A131721, was dismissed on May 17, 2011, as untimely filed.
Item 5: Stewart v. Parris III, supra, A132208, was dismissed on June 30, 2011, as untimely filed.
Plaintiff contends that the two appeals dismissed for untimeliness do not "count" for purposes of vexatious litigation determinations. We disagree.
In Fink v. Shemtov (2010) 180 Cal.App.4th 1160, the appellate court included untimely appeals in its calculation of final determinations for purposes of section 391, subdivision (b)(1). (Id. at pp. 1173-1174.) Manifestly, an appeal that is ultimately dismissed by a court as having been untimely filed 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 adjudication. A party who repeatedly files appeals only to have them dismissed as having been untimely filed is no less vexatious than the party who files a timely appeal. "The difference is one of degree, not kind." (Tokerud, supra, 38 Cal.App.4th at p. 779.)
Plaintiff also argues that these appeals are not "litigations" because they were dismissed prior to becoming a "cause" under California Constitution article VI, section 14. He relies on Countrywide Homes Loans v. Superior Court (1997) 54 Cal.App.4th 828, a case that is inapposite because it does not discuss the vexatious litigation statutes. Additionally, Garcia v. Lacey (2014) 231 Cal.App.4th 402, 411, another case on which he relies, is inapposite in that it held that denials of a prisoner's applications to proceed in forma pauperis did not constitute "litigations" because the denials prevented him from filing his complaints. Here plaintiff did not, and was not required to, seek permission before filing his untimely appeals.
In sum, the trial court's ruling that plaintiff qualifies as a vexatious litigant under section 391, subdivision (b)(1) is supported by substantial evidence. While we need not address the parties' arguments any further, we will briefly discuss the alternative grounds under which plaintiff was determined to be a vexatious litigant. III. Vexatious Litigants Under Section 391 , Subdivisions (b)(2) and (b)(3)
Section 391, in subdivisions (b)(2) and (b)(3), defines a vexatious litigant, in pertinent part, as a person who: "(2) After 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 (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. [¶] (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."
As to section 391, subdivision (b)(2), plaintiff asserts he did not relitigate any issues "against the same defendant" with respect to the dissolution action or the conservatorship action. Assuming, without deciding, that he is correct, there is substantial evidence to support a vexatious finding under section 391, subdivision (b)(3).
The trial court found plaintiff had litigated unmeritorious issues with respect to his marital status, the petition for a postmortem MRI exam of Patricia's brain tissue, and her competency at the time she entered into a real estate transaction and executed her final will.
"Not all failed motions can support a vexatious litigant designation. The repeated motions must be so devoid of merit and be so frivolous that they can be described as a ' "flagrant abuse of the system," ' have 'no reasonable probability of success,' lack 'reasonable or probable cause or excuse' and are clearly meant to ' "abuse the processes of the courts and to harass the adverse party than other litigants." ' " (Morton v. Wagner (2007) 156 Cal.App.4th 963, 972.) The examples cited by the trial court qualify under this standard.
As to plaintiff's marital status, the trial court properly found his repeated assertions that he was married to Patricia at the time of her death to be unmeritorious. The court noted plaintiff had continued to assert this claim, even as late as in a supplemental opposition that was filed October 7, 2016. Several years earlier, we concluded in Marriage of Lean and Stewart, supra, A124777 (filed Jan. 26, 2012) that "Patricia's death postjudgment did not terminate the dissolution proceedings, void the judgment and leave John a married man." In spite of our ruling, even in his opening brief in this appeal plaintiff restates the assertions made in his supplemental opposition below that "Patricia remained married on the date of her death because the dissolution did not become final until long after she died" and that " '[f]iling that Will for probate with knowledge that Patricia was still legally married on the date of her death and without any knowledge of any later Will cannot be considered to be facially unmeritorious . . . .' " He further contends that "[t]he marriage was not dissolved until the United States Supreme Court denied the petition for writ of certiorari . . . on October 1, 2012," which would mean that his marriage to Patricia was valid until over three years after her death. The contention is absurd.
For example, in the probate matter (Estate of Stewart, supra, Humboldt County Superior Court case No. PR090102), plaintiff filed an amended will contest on April 21, 2009, in which he asserted that he was Patricia's surviving spouse.
Secondly, the petition seeking the retention of Patricia's postmortem brain tissue strikes us as highly morbid, in addition to being unmeritorious. We also agree with the trial court that plaintiff's repeated motions challenging her competency were "unmeritorious and frivolous in light of the prior determinations of competency." In sum, while we need not address the third vexatious litigant prong in light of our conclusions, as stated above, that the court's findings with respect to section 391, subdivision (b)(3) are supported by substantial evidence.
In Marriage of Lean & Stewart, supra, A124777, we noted the family court "repeatedly found Patricia competent to participate in the dissolution proceeding." (Id. at p. *12.) We also noted that after the jury trial in the conservatorship proceeding "the court barred [plaintiff] 'from filing further petitions to appoint a conservator of Patricia Stewart.' " (Id. at p. *13.)
Plaintiff has relentlessly pursued litigation in these related matters, despite his continued lack of success. "Bluntly speaking, the judicial system does not have the resources to indulge petulant litigants." (Portola Hills Community Assn. v. James (1992) 4 Cal.App.4th 289, 294, disapproved on another ground in Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 386.) While our ruling here is unlikely to put a complete stop to plaintiff's efforts, we conclude the vexatious litigation orders are amply justified.
As of the date of this writing, plaintiff has five active matters pending in this court, including the present appeal. (Taylor v. Lean (A151849, app. pending); Stewart v. Downey (A150463, app. pending); Stewart v. Downey (A150150, app. pending); Stewart v. Downey (A148501, app. pending); & Stewart v. Downey (A148396, app. pending.).) --------
DISPOSITION
The orders declaring plaintiff a vexatious litigant and subjecting him to a prefiling order are affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.