Filed 8/31/26 Burke v. Erik’s Bike Shop CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
GREGORY BURKE,
Plaintiff and Appellant, G066343
v. (Super. Ct. No. 30-2025-
01457874)
ERIK’S BIKE SHOP, INC.,
OPINION
Defendant and Respondent.
Appeal from an order of the Superior Court of Orange County,
Kimberly A. Knill, Judge. Reversed and remanded with instructions.
Gregory Burke, in pro. per. for Plaintiff and Appellant.
Newmeyer & Dillon, James J. Ficenec, and Christopher C.
Steckbauer; Winthrop & Weinstine, and Anthony Todero for Defendant and
Respondent.
Appellant Gregory Burke appeals from an order declaring him a
vexatious litigant and prohibiting him from filing any new state court
litigation in propria persona without first obtaining leave to do so. Burke
contends the order must be reversed because the trial court misapplied case
law. We agree. We therefore reverse the order and remand with instructions.
We express no opinion on the merits of the motion.
FACTUAL AND PROCEDURAL BACKGROUND
The underpinning of this case is a civil matter regarding the sale
of a bike. In June 2025, Erik’s Bike Shop, Inc. (Erik) filed a motion to have
Burke declared a vexatious litigant. Burke opposed the motion arguing,
among other things, that some of the cases Erik cited as adverse
determinations were settlements with merit, and thus, should not be
considered adverse determinations. He provided redacted settlement
agreements in support.
Before the trial court held a hearing on the vexatious litigation
determination, it ordered Burke to provide unredacted settlement
agreements for three of the cases Erik cited. The court then issued a tentative
ruling denying Erik’s motion to declare Burke a vexatious litigant because
Burke had demonstrated three of the seven actions Erik cited were not
frivolous.
After considering the arguments of the parties, both written and
oral, the trial court granted Erik’s motion. In its written ruling, the court
listed six court filings Burke had filed that were adversely determined
against him. Burke had voluntarily dismissed four of the actions and two of
the appeals. The court explained that “settling a case then dismissing it
constitute[d] an adverse determination.” In support, the court cited “the most
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recent case addressing the issue,” Karnazes v. Lauriedale Homeowners Assn.
(2023) 96 Cal.App.5th 275 (Karnazes).
Burke timely appealed.
DISCUSSION
Burke challenges the order granting Erik’s motion to declare him
a vexatious litigant. He argues we should reverse the trial court’s order
because the court applied the wrong legal standard when it concluded he had
at least five litigations finally determined adversely against him. He also
contends the court abused its discretion by changing its tentative ruling,
improperly determining the denial of a writ constituted a litigation finally
determined adversely, and incorrectly accepting there is a limit on how many
cases a self-represented litigant may file.
I.
VEXATIOUS LITIGANT DECLARATION
A. Legal Principles
“The vexatious litigant statute ([Code Civ. Proc.,] § 391 et seq.)
was enacted ‘“to curb misuse of the court system”’ by ‘“persistent and
obsessive” litigants.’” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1198.)
“‘A court exercises its discretion in determining whether a person
is a vexatious litigant’” based on statutory criteria. (In re Marriage of Deal
(2020) 45 Cal.App.5th 613, 621; see [Code Civ. Proc.,] § 391, subd. (b).) 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.” (Code Civ. Proc., § 391(b)(1).)
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“Once a person has been declared a vexatious litigant, the court,
on its own or a party’s motion, may ‘enter a prefiling order which prohibits
[the person] 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.’” (Shalant v. Girardi (2011)
51 Cal.4th 1164, 1170; see Code Civ. Proc. § 391.7.)
B. Standard of Review
“We review the trial court’s order declaring a party to be a
vexatious litigant for substantial evidence. [Citation.] We are required to
presume the order declaring a litigant vexatious is correct and imply findings
necessary to support that designation. [Citation.] A reversal is required only
where there is no substantial evidence to imply findings in support of the
vexatious litigant designation.” (Goodrich v. Sierra Vista Regional Medical
Center (2016) 246 Cal.App.4th 1260, 1265–1266.) “Questions of statutory
interpretation, however, we review de novo.” (Holcomb v. U.S. Bank Nat.
Assn. (2005) 129 Cal.App.4th 1494, 1499.) “[W]hen the trial court’s order
involves the interpretation and application of . . . case law, questions of law
are raised and those questions of law are subject to de novo (i.e.,
independent) review on appeal. [Citation.] It is an abuse of discretion for a
trial court to misinterpret or misapply the law.” (Prigmore v. City of Redding
(2012) 211 Cal.App.4th 1322, 1333–1334.)
C. Analysis
Burke contends the trial court improperly applied Karanazes,
supra, 96 Cal.App.5th 275 in determining all dismissals are considered
adverse determinations. We agree.
In Karanazes, supra, 96 Cal.App.5th 275, the appellate court
concluded the appellant was a vexatious litigant because she had
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“‘commenced, prosecuted, or maintained’ nine appeals” that had “been ‘finally
determined adversely’ to her.” (Id. at p. 278.) The appellant argued she was
“not vexatious because some of the appeals were resolved on terms
satisfactory to her.” (Id. at p. 281.) The appellate court found “no evidence to
support” her “self-serving statement.” (Ibid.) The appellate court explained
that even if it were true, “a dismissal—voluntary or not—constitutes an
adverse determination; it is the loss that matters, not whether a litigant is
satisfied with the result.” (Ibid.) Applying this definition, the appellate court
concluded nine appeals had been determined adversely to appellant. (Ibid.)
In Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th
775, 779–780 (Tokerud) the trial court found appellant was a vexatious
litigant because he had prosecuted in propria persona five actions within the
previous seven years, and all of them were finally determined adversely to
him. (Id. at p. 778.) On appeal, appellant challenged three of the five matters,
arguing he had voluntarily dismissed them without prejudice. (Id. at pp. 778,
781.) The Court of Appeal rejected appellant’s contention that a voluntarily
dismissed action cannot be counted for purposes of the vexatious litigant
statute, stating 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.)
However, the Tokerud court explained that “[i]n the comparable
context of a malicious prosecution action, a voluntary, unilateral dismissal of
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the underlying dispute is generally considered a termination in favor of the
defendant. [Citation.] Only where the dismissal leaves some doubt regarding
the defendant’s liability, as where the dismissal is part of a negotiated
settlement, will the dismissal not be deemed a termination favorable to the
defendant.” (Tokerud, supra, 38 Cal.App.4th at pp. 779–780, italics added, fn.
omitted.) The Tokerud court further explained a plaintiff opposing a
vexatious litigant determination creates “doubt” about a previous dismissal
only by setting forth contrary proof. (Id. at p. 780 & fn. 3 [“[v]oluntary
dismissal is only prima facie proof the litigation was ‘determined adversely’ to
the plaintiff,” who “may rebut this showing by contrary proof”].) For example,
if a landlord’s unlawful detainer complaint causes a nonpaying tenant to
voluntarily vacate, then the landlord may have achieved the goal of the
litigation, even though the landlord thereafter dismissed it. (Id. at pp. 779–
780 and fn. 3.)
Here, the trial court seemingly acknowledged Burke could show
some of the voluntary dismissals were not adverse terminations because they
were part of negotiated settlements. At an October 2025 hearing, the court
ordered Burke to submit the unredacted settlement agreements in three of
the seven cases Erik cited.1 Moreover, in its December 2025 tentative ruling,
it denied Erik’s motion and explained three of the seven cases Erik cited were
not frivolous. In the court’s final ruling, however, it stated it was relying on
“the most recent case” addressing voluntary dismissals, Karanazes, supra, 96
1 Despite the trial court’s order, Erik contends in his reply brief
that Burke “improperly filed” confidential settlement agreements related to
the motion. Erik also contends that, at the October 2025 hearing, the court
“instructed Burke not to file any additional documents.” Erik’s position is
belied by the record.
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Cal.App.5th 275. Relying on Karnazes, the court determined “settling a case
then dismissing it constitutes an adverse determination.” Consequently, the
court did not analyze the potential “contrary proof” that could have rebutted
the presumption that some of the voluntary dismissals were adverse
determinations. (Tokerud, supra, 38 Cal.App.4th at p. 780, fn. 3.) This was
error.
The Karnazes court did not find the appellant was vexatious
based on voluntary dismissals. Rather, all the adverse determinations in that
case were appeals that had been involuntarily dismissed or affirmed on
appeal. (Karanazes, supra, 96 Cal.App.5th 275, 278–279.) Moreover, the
Karnazes court did not specifically disapprove of or overrule Tokerud in its
analysis. (Id. at p. 281.)2 Thus, the trial court abused its discretion by failing
to consider Burke’s evidence that may have rebutted the prima facie finding
the dismissals were determined adversely to him. (Tokerud, supra, 38
Cal.App.4th at p. 780 & fn. 3.)
II.
SUMMARY WRIT DENIAL
Burke next contends the trial court erred in finding a denial of a
summary writ constitutes an adverse determination under Code of Civil
Procedure section 391. Burke appears to either misunderstand or misstate
the record. The writ he takes issue with, Burke v. Superior Court of Orange
County (case number G061869), is listed as case number five in the court’s
minute order. However, the order indicates the court relied on actions one
2 To the extent Karnazes can be read to hold a dismissal,
whether voluntary or involuntary, constitutes an adverse determination for
purposes of the vexatious litigant analysis in every circumstance, we
disagree.
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through four, six, and seven, not five. Thus, the record shows the court did
not determine the denial of a summary writ constitutes an adverse
determination under Code of Civil Procedure section 391.
III.
TENTATIVE RULING
Burke further argues the trial court abused its discretion by
changing its tentative ruling. In support, Burke cites case law for the
propositions that a court abuses its discretion when it applies an incorrect
legal standard, disregards controlling authority, or fails to reconcile its ruling
with its own factual findings. The cases cited by Burke are irrelevant to the
issue of whether the court may issue a final order that is different than its
tentative ruling. In contrast, it is well established “a trial court’s tentative
ruling is not binding on the court.” (Silverado Modjeska Recreation & Park
Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 300.) The court is free
to change its ruling until it issues its final order. (Ibid; Guzman v. Visalia
Community Bank (1999) 71 Cal.App.4th 1370, 1378 [“A tentative ruling is
just that, tentative”].)
IV.
LIMIT ON FILINGS BY SELF-REPRESENTED LITIGANT
Finally, Burke claims the trial court “appeared to accept” that
Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 49 holds there is an
implicit limit on how many cases a self-represented litigant may file. Burke
does not cite to any part of the record showing the trial court relied on
Wolfgram in making its ruling, and we find none.
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DISPOSITION
We reverse the order finding Burke to be a vexatious litigant and
entering a prefiling order. We remand with directions to the court to apply
Tokerud, supra, 38 Cal.App.4th 775 and to enter a new ruling on the motion.
Burke is entitled to his costs on appeal.
DELANEY, ACTING P. J.
WE CONCUR:
GOODING, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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