Marriage of Hiramanek

 

 

 

 

 

 

 

 

 

 

 

Filed 8/23/12  Marriage of Hiramanek CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SIXTH
APPELLATE DISTRICT

 
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In re Marriage of KAMAL and ADIL HIRAMANEK.	H035887      (Santa Clara County       Super. Ct. No. FL149682)
KAMAL HIRAMANEK,   Respondent,   v.   ADIL HIRAMANEK,   Appellant.

            Adil
Hiramanek appeals from an order of the family
law court declaring him a vexatious litigant
and requiring him to submit his papers for court approval before filing.  We affirm the order.href="#_ftn1" name="_ftnref1" title="">[1]

appealability

            “There are
three categories of appealable judgments or orders:  (1) final judgments as determined by case
law, (2) orders and interlocutory judgments made expressly appealable by
statute, and (3) certain judgments and orders that, although they do not
dispose of all issues in the case are considered ‘final’ for appeal purposes
and are exceptions to the one-final-judgment rule.”  (Conservatorship of Rich (1996) 46
Cal.App.4th 1233, 1235.)  There is no
final judgment in this case; the underlying family law proceeding within which
the order was made is still pending.  And
an order designating a person to be a vexatious litigant under Code of Civil
Procedure section 391.7href="#_ftn2"
name="_ftnref2" title="">[2]
is not expressly made appealable by any statute.  But where, as here, the order is made in the
course of an underlying action but is collateral to the subject of that action,
it is appealable pursuant to the collateral order doctrine.  (Lester v. Lennane, supra,
84 Cal.App.4th at p. 561.)  Under the
majority rule, “an interim order is appealable if: [¶] 1. The order is
collateral to the subject matter of the litigation, [¶] 2. The order is final
as to the collateral matter, and [¶] 3. The order directs the payment of money
by the appellant or the performance of an act by or against appellant.”  (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th
289, 297-298, citing Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.)  The order in this case is wholly collateral
to the subject of the underlying proceeding. 
Indeed, it has no effect upon the proceeding.  It affects only litigation Hiramanek might
want to file in the future.  The trial
court’s granting of the motion is a final decision on that issue.  And the order directs Hiramanek to perform an
act, namely to obtain an order from the presiding judge before filing any
future litigation.  Thus, the order is
appealable as a final decision on a collateral matter.

legal background and scope of review

            Section
391, subdivision (b), defines several categories of vexatious litigants,
including one who, “[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.”  (§
391, subd. (b)(3).)

            The
Legislature passed vexatious litigant statutes to curb misuse of the courts by
litigants acting in propria persona
who repeatedly relitigate the same issues. 
These persistent and obsessive litigants often file groundless actions
against judges and other court officers who made decisions adverse to
them.  This abuse of the system wastes
court time and resources and prejudices other parties waiting their turns
before the courts.  (Bravo v. Ismaj
(2002) 99 Cal.App.4th 211, 220-221.)

            name="citeas((Cite_as:_2003_WL_22311315,_*3_(C">Once a party has been
declared a vexatious litigant, the court on its own motion or that of any party
may enter a “prefiling” order prohibiting that party from filing new state
court litigation in propria persona absent leave of the presiding judge where
the litigation is proposed to be filed. 
(§ 391.7, subd. (a); In re R.H. (2009) 170 Cal.App.4th 678,
690.)  After a prefiling order issues,
the presiding judge shall permit the party to file further litigation “only if
it appears that the litigation has merit and has not been filed for the
purposes of harassment or delay.”  (§
391.7, subd. (b).)

            Section
391, subdivision (b)(3) does not define what constitutes “repeatedly” filing
“unmeritorious” litigation.href="#_ftn3"
name="_ftnref3" title="">[3]  We therefore defer to the sound discretion of
the trial court to make that determination. 
(Morton, supra,
156 Cal.App.4th at p. 971.) 
“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 name="SR;3386">vexatious is correct and imply findings necessary to support
the judgment” so long as there is evidence to support the findings.  (Golin v. Allenby (2010) 190
Cal.App.4th 616, 636.)

“When a trial court’s factual
determination is attacked on the ground that there is no substantial evidence
to sustain it, the power of an appellate court begins and ends with the
determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the determination,
and when two or more inferences can reasonably be deduced from the facts, a
reviewing court is without power to substitute its deductions for those of the
trial court.  If such substantial
evidence be found, it is of no consequence that the trial court believing other
evidence, or drawing other reasonable inferences, might have reached a contrary
conclusion.”  (Bowers v. Bernards
(1984) 150 Cal.App.3d 870, 873-874, italics omitted.)

the trial court’s order

            The trial
court’s order stemmed from its own motion in this acrimonious dissolution
proceeding.  The motion included a
nonexclusive list of 32 pleadings in the case. 
Twenty-five pleadings were filed by Hiramanek toward achieving some form
of relief.  One pleading was dismissed;
one was suspended; and 23 were denied. 
The denied requests included:  two
challenges for cause against the trial judge; four requests for a statement of
decision; four motions to modify child visitation--three of them ex parte;
three motions to modify child custody--two of them ex parte; two motions to
quash a subpoena; an ex parte motion to compel discovery; and a motion for
reconsideration. 

In its order, the trial court noted
that the case itself had “expanded to occupy twelve volumes of Court files” and
it had “done its best to determine how many motions and OSCs (ex parte or not)
were filed” by Hiramanek in propria persona. 
The trial court explained:  “Due
to the volume of documents and the way that issues were continued over
different hearings, the Court is not certain that its count is perfect, but
notes that neither Petitioner nor [Hiramanek] challenged the court’s total
count in their briefs.”  It then
carefully catalogued Hiramanek’s multiple filings:  “Analysis of [Hiramanek’s] in pro per filings
and their dispositions demonstrates their repetitive and meritless nature.  In sum, the Court counts that in a one year
period, [Hiramanek] filed in pro per seventeen initial motions, OSCs, challenges,
and requests for statement of decision, in addition to other
non-initial-pleading documents he has filed. 
[Hiramanek] abused the ex parte process, filing eight ex parte motions
or OSCs:  seven were denied outright and
one was granted an order shortening time, but denied substantive temporary
orders.  When his ex partes eventually
came on for regular hearing, they were again denied.  In addition to the eight ex partes, [Hiramanek]
filed four non-ex parte motions or OSCs: 
three were denied outright, the fourth contained four issues:  two were denied, one continued and one taken
off calendar.  [Hiramanek] filed two
170.1 challenges for cause against Judge L. Michael Clark, both of which were
denied by Judge Massullo of San Francisco County.  [Hiramanek] objected to having Ed Mills
appointed as judge pro tem, then he later requested to have Mills appointed as
case manager.  [Hiramanek] filed four
requests for a statement of decision in a six week period, the fourth of which
was filed after the request had already been denied.  The vast majority of [Hiramanek’s] motions,
OSCs and other requests have been denied. [¶] . . . [¶] In addition to the
filings listed above, [Hiramanek] has filed well over a dozen ‘supplemental’
documents, consisting of additional declarations, responses, and other
requests.  He has sometimes filed several
‘supplemental’ documents for the same motion, and even filed them after a
decision on the matter had been rendered.” 
(Fns. omitted.)  The trial court
also observed that Hiramanek occasionally used attorneys as puppets evidenced
by recycled pleadings under an attorney’s name that “appear to be penned by the
same hand” as pro per pleadings that “frequently make the same mistakes the
Court hopes an attorney would not make, such as the hearsay problem of
referring to an exhibit drafted by [Hiramanek] himself as ‘clear proof’ of a
factual or legal assertion contained therein.”  

discussion

The pleadings identified by the
trial court are part of a 16-volume, 4,429-page clerk’s transcript on
appeal.  They support a finding that
Hiramanek, “while acting in propria persona, repeatedly file[d] unmeritorious
motions, pleadings, or other papers . . . or engage[d] in other tactics that
are frivolous or solely intended to cause unnecessary delay.”  (§ 391, subd. (b)(3).)name=F00552018674817>

We add that Hiramanek’s appeal is
also frivolous.  The opening brief, filed
by attorney Lyle W. Johnson, consists of 79 pages of rambling incoherence that,
at its best, is a reargument and, at its worst, is irrelevant nonsense.  For example, attorney Johnson tells us the
following:  “Contrasting judicial
discretion between Judges; Judge-Johnson got child visitation started in a 30
minute hearing, by neutralizing Kamal’s frustrating efforts.  After 210+ hearings with Judge-Clark (25 in
2011 alone), children continue to be denied contact with Adil, 4th year in a
row, not even a phone call.”  Attorney
Johnson also informs us that “Compounding the situation is complaints against
Judge-Clark from numerous other attorney/litigants.  Judge-Clark’s adjudication on Adil’s filings
do not lend itself to an automatic presumption of unmeritorious.”  (Fn. omitted.)

            Attorney
Johnson does not meaningfully argue that the
record lacks substantial evidence demonstrating that Hiramanek meets the statutory
definition of a vexatious litigant.  The brief is disorganized, repetitive, and
largely incoherent.  (See Cal. Rules of
Court, rule 8.204(a)(1), (2)(A)-(C).)  It
is no more than a criticism of the trial court’s characterization of the
numerous documents filed by Hiramanek as being frivolous and unmeritorious.

It is the appellant’s burden on
appeal to show both that the trial court committed error, and that the error
was prejudicial to the appellant.  (In
re Marriage of Behrens (1982) 137 Cal.App.3d 562, 575.)  “ ‘In a challenge to a judgment, it is
incumbent upon an appellant to present argument and authority on each point
made.  Arguments not presented will
generally not receive consideration.’ ” 
(In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272,
278.)  Indeed, “failure of an appellant
in a civil action to articulate any pertinent or intelligible href="http://www.mcmillanlaw.com/">legal argument in an opening brief may,
in the discretion of the court, be deemed an abandonment of the appeal
justifying dismissal. . . .  ‘ “
‘Contentions supported neither by argument nor by citation of authority are
deemed to be without foundation, and to have been abandoned.’  [Citations.]” 
[Citation.]  Nor is an appellate
court required to consider alleged error where the appellant merely complains
of it without pertinent argument.’ ”  (Berger
v. Godden (1985) 163 Cal.App.3d 1113, 1119.)  “One cannot simply say the court erred, and
leave it up to the appellate court to figure out why.”  (Niko v. Foreman (2006) 144
Cal.App.4th 344, 368.)



 

disposition

            The order
subjecting Adil Hiramanek to a prefiling order as a vexatious litigant under
Code of Civil Procedure section 391.7 is affirmed.  The appeal from the emergency screening order
of May 20, 2010, is dismissed.

 

 

 

 

                                                                       

Premo,
J.

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

                                                                       

                        Rushing,
P.J.

 

 

 

 

 

 

 

 

                                                                       

                        Márquez,
J.