Filed 10/22/26 Marriage of Filipp CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of KRISTI
FILIPP and FABIAN V. FILIPP.
D086699
KRISTI FILIPP,
Respondent, (Super. Ct. No. 19FL014075C)
v.
FABIAN V. FILIPP,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Christopher S. Morris, Judge. Reversed and remanded with directions.
Fabian V. Filipp, in pro. per, for Appellant.
No appearance for Respondent.
Appellant Fabian V. Filipp, a self-represented litigant, appeals from an
order declaring him a vexatious litigant under Code of Civil Procedure section
391.1 He contends the family court misapplied section 391, erred by counting
nonqualifying proceedings, and committed “procedural and structural due
process violations,” namely by denying him a court reporter, omitting a
statement of decision, modifying the record, and failing to properly serve him.
During the pendency of this appeal, the California Supreme Court
decided Family Violence Appellate Project v. Superior Court (2026) 20 Cal.5th
564 (Family Violence Appellate Project), in which it held that “courts have a
ministerial duty . . . to provide indigent litigants, upon request, with
meaningful access in all cases to an official verbatim record of proceedings,
including by means of electronic recording if an official reporter or official
reporter pro tempore is unavailable.” (Id. at p. 596.) Here, the record shows
the court had issued Fabian a fee waiver and he timely requested an official
court reporter for the vexatious litigant hearing, but did not receive a court
reporter. On this record we cannot say the court’s failure to meet its
ministerial duty to provide either an official reporter or an electronic
verbatim recording of the proceeding was harmless. Accordingly, we reverse
for a new hearing at which the court will provide a court reporter to Fabian
at no charge or alternatively use electronic recording if a reporter is not
available.
1 Undesignated statutory references are to the Code of Civil Procedure.
We refer to the parties by their first names for clarity, not out of disrespect.
As in prior appeals, the respondent and moving party below, Kristi Filipp,
has not filed a respondent’s brief. We still adjudicate the appeal’s merits.
(See In re Bryce C. (1995) 12 Cal.4th 226, 232-233; In re Marriage of Everard
(2020) 47 Cal.App.5th 109, 111, fn. 1.)
2
FACTUAL AND PROCEDURAL BACKGROUND
To state the underlying facts, we focus on matters that the superior
court relied upon to support its vexatious litigant order as evidenced by the
docket or papers in the record.2
Underlying Family Court Proceedings
Fabian and Kristi have a history of numerous proceedings in the family
court; the register of actions, which spans almost 60 pages, shows matters
starting in November 2019 through the end of 2025.
In early 2020, Fabian and Kristi entered into a stipulation regarding
temporary child custody and visitation. On November 12, 2020, the court
issued rulings on support and financial matters. The court found Fabian
lacked credibility and was not candid regarding his finances, and thus
imputed full-time minimum wage income to him, and a rate of return on
equity in real property he owned. The court issued orders for guideline child
support. At the time of the relevant hearings, Fabian was represented by
attorney Marc J. Mastriano.
The next day, Fabian, represented by attorney Mastriano, filed another
request for an order to modify the custody and support orders.
2 Fabian has moved to augment the record with several documents,
including Kristi’s July 11, 2024 request for an order declaring him a
vexatious litigant. We grant the motion as to that request, as well as the
orders or requests identified in the court’s order pertaining to Fabian’s
settled statement, and other orders referenced by the court in its February
22, 2024 final order on custody and visitation. (See Cal. Rules of Court, rule
8.155(a)(1).) We also grant the request as to Fabian’s form request for a court
reporter. As for the rest of the documents, Fabian does not explain their
significance, so for those, we deny his request as irrelevant to our decision.
(Holland v. Jones (2012) 210 Cal.App.4th 378, 382, fn. 1 [denying motion to
augment record with irrelevant materials].)
3
Following hearings in March and April 2021 on Fabian’s November 13,
2020 request for order, the trial court, acknowledging the ongoing COVID-19
pandemic, ruled Fabian had not substantiated a material change in
circumstances despite the pandemic. Fabian was represented by counsel,
Dolores Contreras.
In July 2021, Fabian, still represented by attorney Contreras, filed a
request for an order to, among other things, end his current spousal support
payments. The basis for his request was again the COVID-19 pandemic. The
court denied the request for a lack of any change in circumstances.
In August 2021, Fabian filed a request for an order to determine
arrears and to be reimbursed for overpayment. This time, Fabian was
represented by attorney Elizabeth Lefiti. The court again denied the request,
finding no change in circumstances.
In early October 2021, Fabian, represented by attorney Lefiti, filed an
ex parte application concerning Kristi’s asserted violation of court orders.
The court denied that request in part on grounds it was inappropriate for ex
parte relief.
In May 2022, Fabian, now represented by attorney Amy Lepine, filed a
request for order for a vocational evaluation of Kristi, Family Code section
271 sanctions, and attorney fees. He asserted in part that Kristi was
unresponsive to discovery and underreporting her income. The court again
denied the request for no change in circumstances.
On July 1, 2022, the court denied Fabian’s July 2021 request for a
modification of support, finding no material and substantial change of
circumstances to warrant such an order.
On July 29, 2022, Fabian, represented by attorney Tiffany K. Brown,
filed a request for an order to modify child custody and visitation, and for
4
attorney fees and costs. He claimed that Kristi had made “fraudulent filings”
and had repeatedly violated custody orders. He repeated his claim that she
had underreported her income. The court denied the request for lack of a
change in circumstances.
At some point Kristi sought an order to declare Fabian a vexatious
litigant, but the court in May 2023 denied her request, finding she did not
meet the burden of proof required under section 391, subdivision (b).
The parties underwent trial in December and January 2024, with
Fabian representing himself. In early February 2024, the court granted
Fabian’s request for a waiver of court fees and costs. Later that month, the
court issued a final decision on custody, visitation and child and spousal
support. In it, the court summarized the proceedings between the parties
leading up to trial, observing: “Before the undersigned, [Fabian] made, for
the most part, precisely the same arguments he brought before the home
court and before [Department of Child Support Services] multiple times—
unsuccessfully—regarding custody and support. By and large, [Kristi] pled
the same responses and defenses to those arguments.” The court found Kristi
credible, and she left it “with the impression that that [she] has been trying
very hard to interact in a civil and cooperative manner with a challenging
and very litigious co-parent.” The court stated: “[Fabian] has filed repetitive
motions that for the most part have repeatedly been unsuccessful, and he has
been sanctioned in the amount of thousands of dollars for such conduct. The
record reveals a number of instances where other judges have questioned
[Fabian’s] candor and forthrightness in court, and even made an express
finding that [Fabian] lacked credibility—particularly on financial matters.
These findings are consistent with the undersigned’s experience with
[Fabian] at trial.” The court described instances during trial calling Fabian’s
5
credibility into question, including as to his claims of disability and access to
cash resources.3 Ultimately, the court found he had “presented a morass of
almost indecipherable and often inconsistent information about his finances,”
and it was “very difficult to glean what, if anything, is actually the truth
about his income.” Finding he lacked clarity and candor regarding his
financial condition, it inferred Fabian had received large payments from his
sister and other third parties which he had used on a regular and ongoing
basis to pay his daily living expenses and other expenses and he had failed to
provide credible evidence that they were loans. It used Fabian’s credit card
application using a self-reported $120,000 annual income figure to calculate
support.
In June 2024, Fabian again applied ex parte for an order regarding
custody and visitation, stating Kristi was not following the court-ordered
schedule. The court denied the request, ordering him to file a formal request
for order, which he did days later. The court denied his request again on
grounds of a lack of change in circumstances.
3 In particular, the court found Fabian had “presented no credible
evidence that he is 100 [percent] disabled, as he has claimed for some time”;
his income and expense declarations filed over the past two years were
“inconsistent, incomplete, and, based on his own testimony, untrue in certain
respects”; and Fabian admitted at a debtor’s examination that he had failed
to disclose certain bank accounts to Kristi. The court found that “[a]lthough
[Fabian] claims to have had no regular income and virtually no cash assets
for some time, his own [income and expense declarations] show huge ‘loans’
from his sister and others that he could not credibly prove at trial were in
fact loans.” The court stated: “Overall, [Fabian’s] lack of credibility was so
profound that the only matters on which the Court could find him credible
were those that were substantiated by [Kristi] herself, or by independently
verifiable sources . . . .”
6
In July 2024, Kristi sought a request for order to, among other things,
deem Fabian a vexatious litigant. The matter was set for April 8, 2025. In
August 2024, Fabian filed a form “request for a court reporter by a party with
a fee waiver” (capitalization omitted) for the April 8, 2025 hearing, pointing
out that the court had earlier approved a waiver of court fees and costs.
Before the hearing, Kristi, representing herself, filed a declaration in
support of the request asserting it was her belief Fabian’s conduct fell within
section 391. She stated in part: “Since filing for divorce, [Fabian] has
repeatedly either obstructed, delayed or filed in retaliation motions for
modifications immediately following custody as [sic] support orders that he
does not agree to. He has caused excessive litigation, defied and distort [sic]
court orders that have caused me to need to file requests to have orders
followed and clarified. He has hired and fired attorneys conveniently ahead
of major hearings in order to obtain continuances and dangled false
settlement offers in attempt to paint me as the high conflict individual.”
(Some capitalization omitted.) Kristi complained of Fabian’s unsuccessful
appeals, his refusal to pay court-ordered sanctions and attorney fees, and his
efforts to obstruct and delay a turnover order and debtor’s exams.
Following an unreported hearing, the court granted Kristi’s motion,
ruling: “Petitioner’s motion to deem respondent a vexatious litigant is
granted. The Court finds respondent to be a vexatious litigant under
[section] 391.” It issued a prefiling order prohibiting Fabian from filing new
litigation in California courts without the presiding justice’s or judge’s
approval.
Appellate Proceedings
Fabian filed this appeal. He proceeded with a settled statement, but
set forth only the court’s general vexatious litigant ruling without
7
summarizing the parties’ arguments or the court’s reasoning. Thereafter, the
court issued an order for corrections, attaching a modified settled statement
listing docket entries on which it had relied in finding Kristi had met her
burden under section 391, as well as brief summaries of its rulings on
Fabian’s requests, such as “This RFO seeking a change in support orders was
denied for a lack in change of circumstance.” The modified settled statement
concludes: “In light of the number of unsuccessful filings over the preceding
four years, some of which were brought seeking changes to orders that had
been recently entered, on April 8, 2025, the court granted [Kristi’s] request to
declare [Fabian] a vexatious litigant under . . . section 391.”
DISCUSSION
I. Vexatious Litigant Legal Principles
We begin with the law governing the court’s vexatious litigant
declaration, as it is relevant to our prejudice analysis below. The vexatious
litigant statutes are set forth in sections 391 to 391.7. (Shalant v. Girardi
(2011) 51 Cal.4th 1164, 1169 (Shalant).) They “are designed to curb misuse
of the court system by those persistent and obsessive litigants who,
repeatedly litigating the same issues through groundless actions, waste the
time and resources of the court system and other litigants.” (Ibid.) Section
391 sets out several definitions of “ ‘[v]exatious litigant[s].’ ” These include “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.” (§ 391, subd. (b)(3); Thompson v. Ioane (2017) 11
Cal.App.5th 1180, 1198 (Thompson).) Based on the statute’s disjunctive
language, a person may be vexatious simply by “engag[ing] in tactics that are
frivolous or solely intended to cause unnecessary delay.” (See Golin v.
8
Allenby (2010) 190 Cal.App.4th 616, 639 (Golin), italics added.) The statute
also defines a vexatious litigant as “ ‘a person who . . . (1) 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. [¶] (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 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. [¶] . . . [and] [¶] (4) Has previously been declared to be
a vexatious litigant by any state or federal court of record in any action or
proceeding based upon the same or substantially similar facts, transaction, or
occurrence.’ ” (See Thompson, supra, at pp. 1198-1199.)
Subdivisions (b)(2) and (b)(3) of section 391 on their face apply “to any
person—whether a plaintiff, defendant, petitioner, respondent or appellant—
based on the nature of his or her conduct during litigation rather than his or
her party designation.” (In re Marriage of Deal (2020) 45 Cal.App.5th 613,
620-621; see also Thompson, supra, 11 Cal.App.5th at p. 1200.) This
advances the purpose of the statute to curb abuse of the judicial system. (In
re Marriage of Deal, at p. 620.) Thus, a respondent in a family law matter, as
Fabian is here, can be designated a vexatious litigant based on his or her
litigation conduct. (See id. at p. 621.)
9
Another provision, section 391.7, “ ‘provide[s] the courts with an
additional means to counter misuse of the system by vexatious litigants.
Section 391.7 “operates beyond the pending case” and authorizes a court to
enter a “prefiling order” that prohibits a vexatious litigant from filing any
new litigation in propria persona without first obtaining permission from the
presiding judge.’ ” (Shalant, supra, 51 Cal.4th at p. 1170.)
Section 391’s definition of a vexatious litigant identifies only a person
“in propria persona.” But this does not prevent a court from declaring a
person a vexatious litigant even when they are represented by counsel. (See
Golin, supra, 190 Cal.App.4th at p. 638 [“where a party effectively conducts
himself or herself in an action as a self-represented litigant without the
professional and ethical considerations that constrain counsel, the party’s
nominal engagement of an attorney will not insulate him or her from the
statutory consequences of the vexatious litigant provisions”].) In Golin, the
court found a party’s representation by counsel of record no bar to a vexatious
litigant determination under section 391, subdivision (b)(3) “when counsel did
not exercise professional controls over the representation, leaving [the
parties] to effectively run the case as self-represented litigants.” (Golin, at
p. 638.) Golin held the trial court did not abuse its discretion because the
record contained substantial evidence to imply findings in support of the
court’s determination of the parties’ litigation tactics. (Id. at p. 639.)
Likewise, section 391.7’s prefiling order “ ‘[o]rdinarily’ appl[ies] only to
a vexatious litigant’s in propria persona litigation . . . .” (Kinney v. Clark
(2017) 12 Cal.App.5th 724, 738 (Kinney), quoting In re Shieh (1993) 17
Cal.App.4th 1154, 1167 (Shieh).) In Kinney, however, the appellate court
held the statutory limitation in section 391.7 did not prevent it from
expanding the prefiling order to litigation filed by a vexatious litigant
10
through counsel under the circumstances there. It acknowledged Shieh had
held it was “appropriate to extend a prefiling order issued under section
391.7 to new litigation filed by a vexatious litigant through counsel where the
vexatious litigant retains attorneys who ‘serve as mere puppets’ instead of
‘neutral assessors of his claims, bound by ethical considerations not to pursue
unmeritorious or frivolous matters.’ ” (Kinney, at p. 738, quoting Shieh, at
p. 1167.) Kinney observed that the California Supreme Court had
acknowledged Shieh but did not express any opinion on it, so that Shieh
remained good law. (Kinney, at p. 739, citing Shalant, supra, 51 Cal.4th at
p. 1176, fn. 8.) The Kinney court held the attorneys acting for the vexatious
litigant in that case “have acted as puppets . . . , asserting the same meritless
arguments [the appellant] previously asserted on his own behalf;” the
attorneys had “disregard[ed] prior, final state and federal court decisions that
have rejected these recycled arguments, and continue[d] to maintain that all
of these decisions are ‘void,’ so all issues in the [litigation at issue] should be
decided anew”; and they “continue[d] to barrage [the respondent] with new
appeals.” (Kinney, at p. 739.)
Kinney went on to hold that even if case law did not permit it to expand
the prefiling order to litigation filed by a vexatious litigant through counsel,
it had authority to expand the prefiling order under its inherent powers to
ensure the administration of justice. (Kinney, supra, 12 Cal.App.5th at
p. 740.) Thus, “[w]here a vexatious litigant circumvents a section 391.7
prefiling order by hiring an attorney who acquiesces in his campaign of
frivolous litigation, this court has the inherent power to issue an expanded
prefiling order to control the orderly administration of justice and prevent
abuse of the judicial process.” (Id. at pp. 740-741.)
11
“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.” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219; see
also In re Marriage of Deal, supra, 45 Cal.App.5th at p. 622; In re Marriage of
Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1346.) “Under well-established
rules of appellate procedure, [Fabian], as the appellant, has the burden to
provide an adequate record on appeal and to affirmatively show error.” (In re
Marriage of Deal, at p. 622.)
II. Family Violence Appellate Project
As stated above, during the pendency of this appeal, the California
Supreme Court decided Family Violence Appellate Project, supra, 20 Cal.5th
564. We gave the parties the opportunity to brief the case. In Family
Violence Appellate Project, the petitioners, who represented indigent and low-
income litigants in trial and appellate proceedings, alleged that despite
requesting an official court reporter, those litigants frequently found one was
unavailable. (Id. at p. 577.) This was assertedly contrary to the guarantee
set out by the court in Jameson v. Desta (2018) 5 Cal.5th 594 (Jameson) that
indigent litigants must have access to an official verbatim record of trial
court proceedings notwithstanding their inability to afford a private court
reporter. (Family Violence Appellate Project, at pp. 576, 591 [superior court
must “ ‘assure[ ] [indigent] litigants the availability of a verbatim record of
the trial court proceedings, which under current statutes would require the
presence of an official court reporter’ ”], quoting Jameson, at p. 623.) The
Family Violence Appellate Project court agreed, observing the Jameson
obligation was insufficient to afford indigent litigants meaningful access to
12
justice and an official verbatim record. (Family Violence Appellate Project, at
pp. 576 [the Jameson guarantee “has proven illusory”], 578 [it was
undisputed that the “Jameson obligation is insufficient to afford indigent
litigants meaningful access to justice and an official verbatim record”].) For
those litigants, the courts had failed to fulfill their duty under the forma
pauperis doctrine to facilitate equal access to justice. (Id. at p. 578.)
The court stated that given these circumstances, courts “may . . .
‘devis[e] alternative procedures . . . so that indigent litigants are not, as a
practical matter denied their day in court.’ ” (Family Violence Appellate
Project, supra, 20 Cal.5th at p. 578.) Such procedures included electronic
recording, notwithstanding a statute, Government Code section 69957,
prohibiting the use of such recording in most civil cases. (Family Violence
Appellate Project, at p. 578.) Family Violence Appellate Project held that
“courts can and should imply an exception to [Government Code] section
69957 where reasonably necessary to provide indigent civil litigants with
meaningful access to justice and an official verbatim record.” (Ibid.) The
court declined to “imply some absolute standard of indigency,” rather, it
explained that “any litigant who cannot afford to pay a private reporter may
apply to proceed in forma pauperis and qualify as indigent for this purpose.”
(Ibid.; see also id. at p. 593, fn. 3.)
Thus, the court in Family Violence Appellate Project set out the
following rule: “If a court is able to provide equal access to an official
verbatim record in a given proceeding through the use of a court reporter,
[Government Code] section 69957 precludes it from using electronic
recording. If a court is unable to use a court reporter, the in forma pauperis
doctrine requires the court to imply an exception to [Government Code]
section 69957 in that proceeding and use electronic recording, if such an
13
exception is required to provide an indigent litigant with access to an official
verbatim record. Courts have no discretion in this regard. It is their duty
under Jameson[, supra, 5 Cal.5th 594] and the in forma pauperis doctrine to
provide indigent litigants with some way of obtaining an official verbatim
record of proceedings.” (Family Violence Appellate Project, supra, 20 Cal.5th
at pp. 595-596, italics added.) Additionally, the court stated that “[n]either
Jameson nor the in forma pauperis doctrine is limited to cases involving
fundamental rights or liberty interests; they reflect the broader policy of
ensuring meaningful access to the judicial system as a whole.” (Id. at p. 596.)
In reaching its holding, the court recognized that appellants have
alternative procedures where an official verbatim record is unavailable or
incomplete, such as agreed or settled statements. (Family Violence Appellate
Project, supra, 20 Cal.5th at p. 591; Cal. Rules of Court, rules 8.134, 8.137.)4
Though it found those procedures were “by no means a facially inadequate
method for creating an adequate [appellate] record” (Family Violence
Appellate Project, at p. 591), it observed those tools did not solve the problem
of restricted meaningful access to the courts: “[S]ettled statements suffer
4 The court described the requirements for both, but for our purposes, its
description of a settled statement is relevant: “A settled statement consists of
(1) ‘a statement of the points the appellant is raising on appeal,’ (2) ‘a
condensed narrative of the oral proceedings,’ including ‘a concise factual
summary of the evidence and testimony of each [relevant] witness’ and, if
relevant, ‘any [jury] instructions submitted orally and not in writing,’ along
with the identity of ‘the party that requested the instruction and any
modification,’ and (3) ‘a copy of the judgment or order being appealed.’ ([Cal.
Rules of Court], rule 8.137(d).) A settled statement is produced through an
adversarial process involving the appellant, the respondent, and the trial
court. (Id., rule 8.137(d)–(g).) If the parties do not stipulate to the contents
of the settled statement, the trial court must adjudicate any disputes. (Id.,
rule 8.137(h).)” (Family Violence Appellate Project, supra, 20 Cal.5th at
p. 591.)
14
from well-known shortcomings that preclude their use as a systematic
substitute for an official verbatim record of trial court proceedings.
[Citations.] Thus, we held in Jameson that ‘the potential availability of a
settled or agreed statement does not eliminate the restriction of meaningful
access caused by the policy’ of depriving indigent civil litigants of a means to
obtain an official verbatim record.” (Ibid., quoting Jameson, supra, 5 Cal.5th
at p. 623, fn. 20.)
The Family Violence Appellate Project court concluded that “courts
have a ministerial duty . . . to provide indigent litigants, upon request, with
meaningful access in all cases to an official verbatim record of proceedings,
including by means of electronic recording if an official reporter or official
reporter pro tempore is unavailable.” (Family Violence Appellate Project,
supra, 20 Cal.5th at p. 596.)
III. Fabian’s Contentions
Fabian’s contentions are posed as questions and his arguments largely
set out in undeveloped bullet point fashion. He nevertheless cites cases,
albeit without pinpoint references. Fabian argues the court’s designation of
him as a vexatious litigant is “invalid as a matter of law.” According to
Fabian, the trial court “misapplied . . . [section 391] by conflating counsel-
represented, defensive, settled and continued matters with qualifying
litigations.” He argues there were “no five qualifying litigations . . . in
propria persona and finally determined adversely within seven years[.]” He
points out he was represented by counsel in most of the referenced
proceedings. He suggests he was engaged in “defensive litigation,” and that
“[m]ultiple motions in single case [sic] do not count.” He also points out the
trial court failed in its ruling to identify the applicable subdivision of section
15
391. Thus, Fabian maintains there is no competent evidence to support the
court’s vexatious litigant designation.
Further, relying on Jameson, supra, 5 Cal.5th 594, Fabian suggests the
court violated his procedural due process in various ways, including by
denying him a court reporter for the vexatious litigant hearing. He argues
the denial of a verbatim record prevents appellate review of the court’s
factual or procedural errors summarized above.
Because Fabian’s latter contention has merit and requires reversal, we
do not reach the substance of the court’s vexatious litigant order.
IV. The Court Was Obligated to Provide Fabian with a Court Reporter or
Alternatively an Electronic Recording of the Vexatious Litigant Hearing
Application of Family Violence Appellate Project in this case is
straightforward. “ ‘ “As a rule, judicial decisions apply ‘retroactively’ ” ’ ” and
“[a] new rule is generally presumed to apply retroactively to matters not yet
final on appeal.” (People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 320;
see also Dogan v. Comanche Hills Apartments, Inc. (2019) 31 Cal.App.5th
566, 570 (Dogan).) Under Family Violence Appellate Project, courts lack
discretion to deny an indigent litigant access to a court reporter or an official
verbatim electronic record of proceedings, on that litigant’s request. (Family
Violence Appellate Project, supra, 20 Cal.5th at pp. 587, 596.)
Here, the register of actions shows the court granted Fabian a fee
waiver in February 2024, before the April 2025 hearing.5 He formally and
5 Family Violence Appellate Project emphasized that in this context,
there is no “absolute standard of indigency.” (Family Violence Appellate
Project, supra, 20 Cal.5th at p. 593, fn. 3.) “Instead, the right to proceed in
forma pauperis extends to any litigant who cannot reasonably afford the costs
necessary to access the judicial process. . . . Courts should be flexible in
assessing a litigant’s ability to pay” and a formal in form pauperis application
is not required. (Ibid.)
16
timely requested a court reporter for that hearing. If the family court could
not provide Fabian an official court reporter at no charge, it had an obligation
to use electronic recording. (Family Violence Appellate Project, supra, 20
Cal.5th at pp. 587 [“Where a litigant requests the creation of an official
verbatim record and establishes an inability to pay for a private court
reporter, a superior court has a duty to provide some way for the litigant to
obtain an official verbatim record, including by electronic recording if an
official reporter is unavailable. It has no discretion to decline to do so”], 596.)
Fabian was not required to show the proceedings involved a fundamental
right or liberty interest. (Ibid.)
V. The Error Is Not Harmless
In Family Violence Appellate Project, supra, 20 Cal.App.5th 564, the
court did not address the question of harmless error, as it did in Jameson,
supra, 5 Cal.5th at pages 623-625 and as this court did in Dogan, supra, 31
Cal.App.5th at page 570. We assume without deciding that harmless error
principles apply here. Those principles lead us to conclude that the absence
of a court reporter or verbatim electronic recording of the proceeding was not
harmless.
First, Fabian’s use of a settled statement did not eliminate the court’s
ministerial obligation. (Family Violence Appellate Project, supra, 20 Cal.5th
at p. 591.) But that statement was not sufficient to create an adequate record
in any event even with the family court’s modifications, as it does not include
a condensed narrative of the oral proceedings or a concise factual summary of
the evidence and testimony of each relevant witness. (Ibid.) Further, of the
nine proceedings identified by the family court in its modification to the
settled statement, Fabian was represented by counsel in all but one. Thus,
determining Fabian to be vexatious required a highly fact-specific inquiry to
17
determine whether his attorneys served as “ ‘mere puppets’ ” for him.
(Kinney, supra, 12 Cal.App.5th at p. 738; Shieh, supra, 17 Cal.App.4th at
p. 1167.) There is not evidence in the record sufficient to imply findings in
support of the court’s vexatious litigant designation under these
circumstances, and absent that, reversal is required. (Goodrich v. Sierra
Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1266; Morton v.
Wagner (2007) 156 Cal.App.4th 963, 969.)
Finally, the family court in its minute order did not state reasons for its
ruling or even the particular subdivision of the statute on which it relied in
determining Fabian was vexatious. Its order was by no means an attempt to
set out the parties’ testimony verbatim. (Accord, Dogan, supra, 31
Cal.App.5th at p. 570 [absence of a court reporter was not harmless where
trial court’s statement of reasons in its minute order was not a verbatim
transcript of the testimony, but rather the court’s characterization of one part
of the testimony, which differed from the litigant’s recollection].) In short, we
“cannot fairly conduct . . . review without a reporter’s transcript” (ibid.) or a
verbatim transcription of the proceedings obtained via an electronic
recording.
DISPOSITION
The order declaring Fabian Filipp a vexatious litigant is reversed and
the matter remanded for a new hearing at which an official court reporter
shall be provided at no charge, or, alternatively the court shall use electronic
recording if a reporter is unavailable. Fabian V. Filipp shall recover his costs
on appeal.
O’ROURKE, Acting P. J.
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WE CONCUR:
BUCHANAN, J.
KELETY, J.
19