Sanai v. Saltz
Filed 3/20/13 Sanai v. Saltz CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
CYRUS M. SANAI,
Plaintiff and Appellant,
v.
HARVEY A. SALTZ et al.,
Defendants and Respondents.
B232770
(Los Angeles
County
Super. Ct.
No. BC235671)
APPEAL from
an order of the Superior Court
of
County, Kevin C. Brazile, Judge. Reversed with directions.
Cyrus
Sanai, in pro. per., for Plaintiff and Appellant.
Jacobson
Russell Saltz & Fingermann, Michael J. Saltz, Colby A. Petersen and Blair
Schlecter, for Defendants and Respondents.
>
Cyrus M. Sanai originally sued The
U.D. Registry, Inc. (UDR)
name="_ftnref1" title="">[1] and its owner, Harvey A. Saltz, in September
2000 for several torts and for violation of statutes regulating consumer credit
reporting agencies based on UDR’s negative credit reports following a dispute
between Mr. Sanai and his landlord over the amount of rent due for a Newport
Beach apartment Mr. Sanai had leased.
Notwithstanding more than 12 years of extremely contentious
litigation, the case remains unresolved in the trial court.
saga, on April 28, 2011 the trial court declared Mr. Sanai a vexatious
litigant and prohibited him, pursuant to Code of Civil Procedure section 391.7,
from filing in propria persona any new litigation in the courts of this state
without first obtaining leave of the presiding judge or justice of the court
where the litigation is proposed to be filed.
FACTUAL AND
PROCEDURAL BACKGROUND
This case was last before us following the trial
court’s September 28, 2009
denial of the Saltz parties’ special motion to strike the first four causes of
action of Mr. Sanai’s first amended supplemental verified complaint. (See Sanai
2010, supra (Sept. 16, 2010,
B219963).)
appeal on October 27, 2009. We affirmed that order in a nonpublished
opinion filed on September 16,
2010. (Ibid.)
On February 18, 2010, while their appeal was pending in this
court, the Saltz parties moved in the trial court to declare Mr. Sanai a
vexatious litigant pursuant to Code of Civil Procedure sections 391,
subdivision (b), and 391.1.
name="_ftnref5" title="">[5] The Saltz parties also sought and obtained
over Mr. Sanai’s objection permission for the motion to be heard on shortened
time and for leave to extend the page limit for the memorandum in support of
the motion. On March 10, 2010 we granted
Mr. Sanai’s petition for writ of supersedeas, ruling the vexatious litigant
motion was subject to an automatic stay of proceedings under section 916,
subdivision (a), triggered by the filing of the Saltz parties’ appeal, as
described in Varian Medical Systems, Inc.
v. Delfino (2005) 35 Cal.4th 180 [appeal from denial of special motion
to strike under § 425.16 effects an automatic stay of the trial court
proceedings].)
Our remittitur in
2010 the Saltz parties renewed their motion to declare Mr. Sanai a
vexatious litigant with a 63-page supporting memorandum, several declarations
and multiple volumes of exhibits. The
Saltz parties contended Mr. Sanai must be found to be a vexatious litigant as a
matter of law pursuant to section 391, subdivision (b)(4), because the Ninth
Circuit had already found him to be a vexatious litigant for his meritless
attacks on federal judges. Although not
expressly referring to section 391, subdivision (b)(3), which defines a
vexatious litigant to include a self-represented litigant who “repeatedly files
unmeritorious motions, pleadings, or other papers . . . or engages in other
tactics that are frivolous or solely intended to cause unnecessary delay,†the
moving papers also appeared to assert Mr. Sanai was properly found to be a
vexatious litigant on this alternate ground.
More than 40 pages of the 63-page supporting memorandum were devoted to
the Saltz parties’ argument Mr. Sanai could not succeed on the merits of his
four remaining causes of action, a prerequisite to an order requiring security
pursuant to section 391.1.
On January 18, 2011 the court rejected Mr. Sanai’s contention
it lacked jurisdiction to decide the vexatious litigant motion because the
Saltz parties, in filing their second motion, had failed to comply with section
1008’s procedural requirements for reconsideration of their first, unsuccessful
motion. The court ruled the dismissal of
the initial motion, based on our order granting Mr. Sanai’s petition for writ
of supersedeas, was procedural only and did not preclude a determination on the
merits of the new motion. On February 9,
2011 Mr. Sanai filed his opposition papers; and on February 16, 2011 the
Saltz parties filed a lengthy reply in support of the motion in which they
referred specifically to section 391, subdivision (b)(3), as a basis for a
vexatious litigant finding and also argued for the first time that Mr. Sanai
had filed in propria persona more than five unsuccessful proceedings or civil
actions in the past seven years within the meaning of section 391, subdivision
(b)(1). Mr. Sanai objected to the Saltz
parties’ attempt to raise new grounds for a vexatious litigant finding in their
reply papers.
After a hearing on February 18,
2011 the court ruled the Saltz parties had failed in their moving papers to
satisfy their burden by presenting sufficient evidence to enable the court to
find Mr. Sanai a vexatious litigant under section 391, subdivision (b)(3) or
(4)—specifically rejecting their argument that Mr. Sanai’s conduct in
repeatedly filing motions to tax costs or his frequent recusal motions and
objections to the various trial judges who had presided over the case
constituted tactics that were frivolous or solely intended to cause unnecessary
delay. However, the court observed the
arguments raised for the first time in the reply papers might persuade it to
declare Mr. Sanai a vexatious litigant.
Although those arguments were largely based on exhibits submitted with
the moving papers, the court explained it would be improper to consider them
without giving Mr. Sanai an opportunity to respond. Accordingly, it allowed Mr. Sanai to submit a
further opposition and set a new hearing on the motion.
The court heard further argument on
April 22, 2011 and took the
matter under submission. On April 28, 2011 the court filed its
order, granting the motion in part. The
court declared Mr. Sanai to be a vexatious litigant pursuant to section 391,
subdivision (b)(1) and (3), and issued a prefiling order pursuant to
section 391.7. The court again rejected
the contention the order of the Judicial Council of the Ninth Circuit imposing sanctions,
including a prefiling review order, on Mr. Sanai for filing frivolous
misconduct complaints against federal judges was a proper basis for a vexatious
litigant finding under section 391, subdivision (b)(4), because the Saltz
parties had failed to establish that the federal proceeding was “based upon the
same or substantially similar facts, transaction, or occurrence†as the case at
bar. Similarly, the court found neither
Mr. Sanai’s conduct with respect to motions to tax costs, which are essentially
defensive in nature, nor his repeated challenges to the bench officers
presiding in the case, with respect to which Mr. Sanai has had some success,
constituted “a pattern that rises to the level of a frivolous litigation
tactic†within the meaning of section 391, subdivision (b)(3). However, the court found Mr. Sanai was a
vexatious litigant under subdivision (b)(3) based on other conduct in the case,
specifically his filing of improper memoranda of costs, attempting to acquire a
fraudulent abstract of judgment, refusing to execute a satisfaction of judgment
because he had been overpaid and failure to serve proofs of service or
notations of mailing.
In addition, notwithstanding its
conclusion with respect to section 391, subdivision (b)(4), the court found Mr.
Sanai was a vexatious litigant under section 391, subdivision (b)(1),
based on his unsuccessful filing of judicial misconduct complaints concerning
19 federal district court and appellate judges within the past seven
years. (See In re Complaint of Judicial Misconduct (Jud. Council of the 9th
Cir. 2010) 623 F.3d 1101.) The court,
however, declined to make a finding under subdivision (b)(1) based on other
cases identified by the Saltz parties without providing the dates for final
determination or on unsuccessful writ petitions filed by Mr. Sanai in this
proceeding, explaining as to the latter point, “Defendants provide no authority
in their motion or reply briefs that each denied appeal or writ may be
considered a separate proceeding or litigation that has been finally
determined against Plaintiff.†(Emphasis
in original.)
The court continued the motion to
the extent it sought an order requiring Mr. Sanai to furnish security
under section 391.3, apparently to permit an evidentiary hearing pursuant to
section 391.2. It does not appear from
the appellate record that such a hearing has ever been held, that the trial
court has determined there is no reasonable probability Mr. Sanai will prevail
in the litigation against the Saltz parties or that Mr. Sanai has been
ordered to furnish security.
DISCUSSION
1.
Governing Law
a. California’s vexatious litigant statutes
“The vexatious litigant statutes
(§§ 391-391.7) 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.†(
1164, 1169.) The statutes provide two
complementary sets of remedies: “In
the plaintiff declared a vexatious litigant and, if the plaintiff has no
reasonable probability of prevailing, ordered to furnish security. If the plaintiff fails to furnish the security,
the action will be dismissed.
[Citation.] In addition, a
potential defendant may prevent the vexatious litigant plaintiff from filing
any new litigation in propria persona by obtaining a prefiling order and, if
any new litigation is inadvertently permitted to be filed in propria persona
without the presiding judge’s [or presiding justice’s] permission, may then
obtain its dismissal.†(
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 judgeâ€].)
Section 391, subdivision (b),
identifies four situations in which a litigant may be deemed vexatious, two of
which are at issue in this case: Under
subdivision (b)(1) a person is a vexatious litigant if “[i]n the immediately
preceding seven-year period [he or she] has commenced, prosecuted, or maintained
in propria persona at least five litigations other than in small claims court
that have been . . . finally determined adversely to the
person.†“Litigation†for purposes of
the vexatious litigant statues is broadly defined to mean “any civil action or proceeding,
commenced, maintained or pending in any state or federal court†(§ 391, subd.
(a)), which has consistently been held to include appeals and certain writ
proceedings. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1170;
Cal.App.4th 1211, 1215 (McColm).)
Under section 391, subdivision
(b)(3), a person is a vexatious litigant if he or she, 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.â€
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,â€â€™ 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 . . . .â€â€™â€ (
963, 972; see Golin v. Allenby (2010)
190 Cal.App.4th 616, 639, fn. 29 [“[t]he vexatious litigant statutes do not
define ‘frivolous’ but we note that under section 128.5,
subdivision (b)(2), this term is defined as ‘(A) totally and completely without
merit or (B) for the sole purpose of harassing an opposing party’â€].)
Although an interlocutory order by
the trial court designating a person to be a vexatious litigant and entering a
prefiling order under section 391.7 is not expressly made appealable by section
904.1 or any other statute, such an order is immediately reviewable under either section 904.1, subdivision
(a)(6), as an injunction (see Luckett v.
Panos (2008) 161 Cal.App.4th 77, 90) or the collateral order doctrine
because it is a final decision on a matter incidental to the pending action and
directs the party identified as a vexatious litigant to perform an act, that
is, to obtain an order from the presiding justice or judge before filing any
future litigation. (See
536, 561; Marsh v. Mountain Zephyr, Inc.
(1996) 43 Cal.App.4th 289, 297-298.)
b. Standard
of review
The trial court’s determination a
person is a vexatious litigant is generally reviewed for abuse of
discretion. (Fink v. Shemtov, supra,180 Cal.App.4th at p. 1169;
129 Cal.App.4th 1494, 1498-1499.) The
findings upon which that determination is based will be upheld if supported by
substantial evidence. (
a failure of proof [in the trial court], the question for a reviewing court
becomes whether the evidence compels a finding in favor of the [moving party]
as a matter of law. [Citations.] Specifically, the question becomes whether
the [moving party’s] evidence was (1) “uncontradicted and unimpeached†and
(2) “of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.â€â€™â€ (Sonic
Mfg. Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th
456, 466; see generally Valero v. Board
of Retirement of Tulare County Employees’ Retirement Assn. (2012) 205
Cal.App.4th 960, 965.)
The meaning of statutory language
presents a question of law we review de novo (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311; People ex
rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) As several appellate courts have observed,
portions of the vexatious litigant statutes have been “broadly
interpreted.†(See, e.g.,
150 Cal.App.4th 183, 195, disapproved in Shalant
v. Girardi, supra, 51 Cal.4th at p. 1172 & fn. 3; McColm, supra, 62 Cal.App.4th 1211; In re Shieh (1993) 17 Cal.App.4th 1154, 1167.) Yet other decisions have upheld the vexatious
litigant statutes against constitutional challenges on the ground they are
narrowly drawn and thus do not impermissibly invade the right of access to the
courts. (See, e.g., Wolfgram
v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 55-57, 60;
at p. 81; In re R.H.
(2009) 170 Cal.App.4th 678, 702; Kobayashi
v. Superior Court (2009) 175 Cal.App.4th 536, 541.) As the Supreme Court cautioned in its most
recent decision involving these provisions, courts must observe the limits set
by the applicable statutory scheme even if
a broader rule would better serve the purposes of the vexatious litigant
statutes. (Shalant, at p. 1176.)
2. Any
Purported Procedural Irregularities in the Trial Court Proceedings Were, at
Most, Harmless Error
Mr. Sanai contends the trial court committed a variety
of procedural errors that require reversal of the determination he is a
vexatious litigant. In particular, he
insists the court lacked jurisdiction to consider the Saltz parties’ December
16, 2010 motion because they failed to satisfy the requirements for
reconsideration of their earlier February 18, 2010 motion, which had been
dismissed after this court held proceeding with that motion would violate the
automatic stay triggered by the Saltz parties’ appeal of their unsuccessful
special motion to strike. He also argues
the court improperly considered arguments raised for the first time in the
Saltz parties’ reply brief or advanced by the court itself after his opposition
to the motion had been filed.
We have serious doubt whether the Saltz parties’
second vexatious litigant motion was subject to the requirements of section
1008; but even if it was, the lifting of the stay of trial court proceedings
following our decision of the Saltz parties’ appeal constituted new or
different circumstances within the meaning of that provision, justifying a
subsequent application by the Saltz parties for the same order they had
previously requested. (See § 1008, subd.
(b).) More fundamentally, unlike an
order requiring the plaintiff to furnish security, which may be made only upon
motion of the defendant (see § 391.1), the section 391.7 prefiling order
at issue in this appeal may be entered by the court on its own motion. (§ 391.7, subd. (a); see
170 Cal.App.4th at p. 690.)
Thus, any procedural deficiencies in the Saltz parties’ papers did not
limit the court’s ability to notify Mr. Sanai of its intention to consider
whether such an order was appropriate.
It did precisely that, following receipt of the parties’ papers and an
initial hearing, and allowed Mr. Sanai additional time to respond to all issues
concerning his status vel non as a vexatious litigant under section 391,
subdivision (b), including those raised for the first time in the Saltz
parties’ reply memorandum.
name="_ftnref7" title="">[7] Because the court could properly consider the
issue on its own motion and, in fact, provided Mr. Sanai with notice and an
adequate opportunity to address the matter, any procedural irregularities were
necessarily harmless. (Cal. Const., art.
VI, § 13 [“[n]o judgment shall be set aside, or new trial granted, in any
cause . . . for any error as to any matter of procedure, unless after
an examination of the entire cause, including the evidence, the court shall be
of the opinion that the error complained of has resulted in a miscarriage of
justiceâ€]; Code Civ. Proc., § 475 [“[n]o judgment, decision, or decree
shall be reversed or affected by reason of any error, ruling, instruction, or
defect, unless it shall appear from the record that such error, ruling,
instruction, or defect was prejudicial . . . and that a different
result would have been probable if such error, ruling, instruction, or defect
had not occurred or existedâ€].)
We similarly reject Mr. Sanai’s contention he was
prejudiced by the denial of an evidentiary hearing at which he could present
live testimony and cross-examine witnesses.
To be sure, section 391.2, which governs the procedures for a motion for
an order requiring security, contemplates the presentation of “evidence,
written or oral, by witnesses or affidavit, as may be material to the ground of
the motion.†As discussed, the trial court continued the hearing on the
Saltz parties’ motion for security, presumably to conduct an evidentiary
hearing on the question whether there is a reasonable probability Mr. Sanai
will prevail in the litigation. The
ruling on that aspect of the Saltz parties’ motion (if there was one) is not
before us. However, by its express terms
section 391.2 does not apply to a section 391.7 motion for a prefiling
order. Moreover, we do not construe
section 391.2, as Mr. Sanai does, to give a party the right to present oral
testimony, but rather as permitting the court to hear witnesses in its
discretion when “material to the ground of the motion.†(See generally Cal. Rules of Court, rule
3.1306(a) [evidence received at a law and motion hearing must be by declaration
or request for judicial notice unless the court, for good cause shown, orders
testimony or cross-examination]; Schlessinger
v. Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, 1105 [“a
‘hearing’ does not necessarily include ‘an opportunity to present live
testimony or be subject to cross examination’â€].)
Here, the parties had a full opportunity to present evidence
by way of declaration and exhibits, and Mr. Sanai has not identified any live
testimony that would have been germane to the determination of his status as a
vexatious litigant. In short, he has
failed to demonstrate any purported error was prejudicial, that is, that
it is reasonably probable a result more favorable to him would have been
reached in the absence of the claimed error.
(See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)
3.
Sanai Is a Vexatious Litigant
a. The
findings under section 391, subdivision (b)(1)
The Saltz parties asserted in the trial court and
maintain on appeal that Mr. Sanai unsuccessfully prosecuted in propria
persona at least five litigations during the seven years preceding the hearing
on their motion within the meaning of section 391, subdivision
(b)(1). Their position is based on cases
discussed in a decision from the United States District Court for the Western
District of Washington (Sanai v. Sanai,
July 1, 2005, No. C02-2165Z), writ petitions filed in this court during
the pendency of the instant litigation and a
Judicial Council of the Ninth Circuit.
Although the trial court declined to base a vexatious litigant finding
on the first two categories of actions or proceedings, it concluded Mr. Sanai
fell within the definition of a vexatious litigant under section 391,
subdivision (b)(1), because of his unsuccessful pursuit of federal judicial
misconduct complaints. This was error.
i. The
federal judicial misconduct proceeding
Mr. Sanai filed three misconduct complaints
judges and 13 judges of the United States Court of Appeals for the Ninth Circuit,
who had been assigned to his civil cases or appeals or who participated in
rulings with regard to his prior misconduct complaints. Pursuant to the procedures prescribed by the
federal Rules for Judicial Conduct and Judicial Disability Proceedings (Judicial
Conduct Rules), the complaints were assigned separate docket numbers (a total
of 20) for each judge named.
name="_ftnref9" title="">[9] In an order filed on November 25, 2009,
Circuit Judge Reinhart dismissed the complaints. Mr. Sanai petitioned for review. Judge Reinhart’s order was affirmed by the
Ninth Circuit Judicial Council on September 30, 2010. (In
re Complaint of Judicial Misconduct, supra, 623 F.3d 1101.) In addition to affirming the order, the
Judicial Council issued a pre-filing review order applicable to all misconduct
complaints or petitions for review filed by Mr. Sanai “that relate to this
matter.â€
These unsuccessful federal judicial
misconduct complaints (whether counted as one, three or 20) do not fall within
the ambit of “litigationâ€â€”“any civil action or proceeding, commenced,
maintained or pending in any state or federal courtâ€â€”as defined by section 391,
subdivision (a). Although arguably a
“civil†proceeding in the broadest sense, as the trial court ruled, unlike a
motion to disqualify a federal judge in a pending case pursuant to title 28
United States Code section 455, a federal judicial misconduct complaint is
resolved not by a “court,†but by the†judicial council†of the appropriate
circuit pursuant to statute and rules of procedure adopted by the United States
Judicial Conference. (See 28 U.S.C. §
351.)
With respect to circuit or district
court judges sitting within the jurisdiction of the Ninth Circuit, judicial
misconduct complaints are filed with the Ninth Circuit’s clerk (28 U.S.C.
§ 351(a); Judicial Conduct Rules, rule 7(a)(1)), evaluated initially by the
chief judge of the circuit or, if that judge is disqualified, by the most
senior circuit judge available (28 U.S.C. §§ 351(c), 352; Judicial Conduct
Rules, rule 11), reviewed by the Ninth Circuit Judicial Council or a panel of
at least five members of the Council (28 U.S.C. § 352(c), (d); Judicial
Conduct Rules, rule 18), and finally, under specified circumstance, referred to
the Judicial Conference of the United States with the circuit council’s
recommendation for action. (28 U.S.C. §
354(b); Judicial Conduct Rules, rule 20(b)(1)(C), (b)(2).) Although the judicial council for each
circuit is comprised of district court and court of appeals judges and is
authorized to hold hearings, take testimony, issue subpoenas and make orders
(28 U.S.C. § 332(a)(1), (d)(1)), it is not itself a “court,†but, as its
name denotes, a “council,†created to improve the administration of
justice. (28 U.S.C. § 351(d); see
generally Dakolias & Thachuk, Attacking
Corruption in the Judiciary: A Critical
Process in Judicial Reform (2000) 18 Wis. Internat. L.J. 353,
385-386.) In its own words the Ninth
Circuit Judicial Council is charged with “support[ing] the effective and
expeditious administration of justice and the safeguarding of fairness in the
administration of the courts within the circuit.†(See
http://www.ca9.uscourts.gov/judicial_council/judicial_council.php [as of
March 20, 2013.)
The Saltz parties note that Ninth
Circuit Chief Judge Kozinski, in ordering a complainant in an unrelated matter
to show cause why sanctions should not be imposed for filing a frivolous
misconduct complaint, commented, “A complaint of judicial misconduct is a court
filing and is therefore subject to normal constraints on such filings,
including the requirement of good faith and a proper factual foundation.†(In re
Complaint of Judicial Misconduct (Jud. Council of the 9th Cir. 2008) 527
F.3d 792, 797, affd. (2008) 550 F.3d 769.)
We accept Judge Kozinski’s conclusion with respect to the good faith
requirements for filing a misconduct complaint directed to a federal judge, but
do not understand his statement as mandating the conclusion that such a filing
is a civil proceeding in federal court within the meaning California’s vexatious
litigant statutes. Indeed, in support of
his general proposition concerning the good faith prerequisites for filing a
misconduct complaint, Judge Kozinski relied upon In re Sassower (Jud. Council of the 2d Cir. 1994) 20 F.3d 42, in
which the Judicial Council for the Second Circuit expressly distinguished the
judicial misconduct complaint procedure from the “normal processes of
litigation,†while holding that both are subject to sanctions for abuse: “We conclude that, just as those who abuse the normal
processes of litigation may be restricted in their opportunity to initiate new
lawsuits, those who abuse the judicial misconduct complaint procedure may also
be restricted in their opportunity to initiate new misconduct complaints.†(Id.
at p. 44.)
The analogy to a misconduct complaint filed with our
own Commission on Judicial Performance, although not exact, is close. Both complaint processes are subject to
abuse. When abuse occurs, sanctions may
be imposed. Nonetheless, neither is a
“litigation†within the meaning of the vexatious litigant statutes.
ii. The
cases cited by Judge Zilly
With respect to the various cases identified by United
States District Judge Thomas S. Zilly in his 2005 opinion in
trial court found the Saltz parties’ evidence insufficient to establish they
were finally determined adversely to Mr. Sanai within the seven-year period
immediately preceding December 16, 2010.
In their brief in this court the Saltz parties respond only that
Mr. Sanai submitted no evidence to the trial court demonstrating these
cases did not fall within the relevant seven-year period (although, based on a
footnote in the trial court’s minute order, it appears he did assert at least
two of those cases were outside the seven-year window). However, it was the Saltz parties’ burden to
establish this essential fact, not Mr. Sanai’s burden to refute it. Moreover, as Mr. Sanai observes, it is
impossible to tell from Judge Zilly’s passing reference to these cases whether
Mr. Sanai was self-represented in each of them.
Certainly, the record before us is not “‘“of such a character and
weight as to leave no room for a judicial determination that it was
insufficientâ€â€™â€ to support the court’s determination that Mr. Sanai was
not a vexatious litigant based on these cases.
(See Sonic Mfg. Technologies, Inc.
v. AAE Systems, Inc., supra, 196 Cal.App.4th at p. 466.)
vexatious litigant filing on this ground was amply justified.
iii. The writ
proceedings
The Saltz parties have identified six unsuccessful
petitions filed by Mr. Sanai during the pendency of the instant
lawsuit—five writ petitions in this court and a petition for review in the
California Supreme Court—and assert each separately constitutes one of the five
required “litigations . . . finally determined adversely†to Mr. Sanai
necessary to find him a vexatious litigant.
finding, stating the Saltz parties had provided no authority that each denied
writ or appeal in a single lawsuit is properly considered a separate litigation
finally decided against the plaintiff within the meaning of section 391,
subdivision (b)(1).
Apparently misperceiving the thrust of the trial
court’s concern, the Saltz parties note they had cited and relied upon
1211, 1216, which held “‘any civil action or proceeding’ includes any appeal or
writ proceeding.†In their appellate
brief they also cite In re Kinney
(2011) 201 Cal.App.4th 951, 958 (“The vexatious litigant statutes do not apply
solely to the trial courts. Each writ
petition and appeal constitutes ‘litigation’â€).
Neither McColm nor
several unsuccessful appeals or writ proceedings during the course of an
ongoing lawsuit constitute more than one “litigation[] . . . finally
determined adversely to the person.†For
his part, Mr. Sanai argues McColm and
the cases following it have been incorrectly decided and no appeal or writ
proceeding during a pending trial court action is properly considered a
separate litigation within the meaning of section 391.
Whether and how the vexatious litigant statutes apply
to appeals and writ proceedings—that is, whether they fall within the
definition of “litigation†in section 391, subdivision (a)—has two
aspects. First, does a self-represented
litigant subject to an existing prefiling order need to obtain leave pursuant
to section 391.7, subdivision (b), before filing an appeal or an original writ
petition in an appellate court, the issue addressed in McColm. Second, to what
extent does an unsuccessful appeal or writ proceeding contribute to the
determination the litigant is properly found to be vexatious, the issue
presented here.
The Legislature definitively resolved the first issue
when it amended section 391.7 in 2011 to expressly authorize a presiding
justice, as well as a presiding judge, to permit the filing of new litigation
by a vexatious litigant subject to a prefiling order. (Stats. 2011, ch. 49, § 1.) As explained by the Assembly Judiciary
Committee, “According to the Judicial Council [which sponsored the
legislation], courts have held that the vexatious litigant statutes also apply
in the appellate courts, but this has not been
codified. . . . This bill
would clarify that the vexatious litigant statute applies to matters in the
Courts of Appeal, as well as the trial courts . . . .†(Assem. Com. on Judiciary, Rep. on Sen. Bill
No. 731 (2011-2012 Reg. Sess.), as amended March 29, 2011, p. 6; see
Sen. Com. on Judiciary, Rep. on Sen. Bill No. 731 (2011-2012 Reg. Sess.), as
introduced, pp. 3, 6 [“This bill would add ‘presiding justice’ before
‘presiding judge’ to clarify that this section also applies to the Courts of
Appeal.†“The Judicial Council notes that
it is the practice of the courts to apply the vexatious litigant statute in the
Courts of Appeal, even though the current statutory scheme does not include the
term ‘justice’ which would indicate the statute is applicable to the Courts of
Appeal. This bill would add the term
‘justice’ to clarify that the statute does apply in the Courts of Appeal. Adding the proper terminology will make the
statue consistent with case law.â€].)
This statutory change has been implemented by the Judicial Council’s
approval of optional form, MC-701 (rev. Jan. 1, 2013), Request To File New
Litigation By Vexatious Litigant, which has separate boxes to indicate whether
the request is filed in the Court of Appeal or the superior court.
There is no similar unambiguous statutory language or
legislative history addressing the second issue. However, if the word “litigation†in the
phrase “filing any new litigation†includes proceedings in the Courts of Appeal
for purposes of prefiling permission under section 391.7, subdivision (a), then
we would generally presume the same word in the phrase “commenc[ing],
prosecut[ing], or maintain[ing] in propria persona at least five litigations
other than in a small claims court†in section 391, subdivision (b)(1), also
includes appellate proceedings. (See,
e.g., People v. Briceno (2004) 34
Cal.4th 451, 461 [word used in a statute presumed to have the same meaning
throughout]; see also Musaelian v. Adams
(2009) 45 Cal.4th 512, 517 [“unless there is evidence the Legislature had a
contrary intent, logic and consistency suggest the same language in analogous
statutes should be construed the same wayâ€].)
That is apparently the conclusion reached by our colleagues in Division
Three of the Fourth Appellate District in Fink v. Shemtov, supra, 180 Cal.App.4th 1160, who held an
unsuccessful appeal by Fink, acting in propria persona, from a judgment entered
in favor of the defendants following a bench trial and a separate unsuccessful
appeal from a postjudgment order in the same underlying case awarding the
defendants attorney fees constituted two litigations
finally determined adversely to Fink for purposes of determining he was a
vexatious litigant as defined by section 391, subdivision (b)(1). (Fink,
at pp. 1173-1174.)
name="_ftnref13" title="">[13]
Although relying on
1215, to broadly define the term “litigation†to include “any appeal or writ
proceeding†(see Fink v. Shemtov, supra,
180 Cal.App.4th at pp. 1170, 1172), the Fink
court also held the summary denial of a writ petition does not necessarily
constitute a litigation that has been finally determined adversely to the
person within the meaning of section 391, subdivision (b)(1). Based on the analysis by the Supreme Court in
Leone v. Medical Board (2000)
22 Cal.4th 660—a case holding the judicial power of the appellate courts
is not unconstitutionally impaired when the Legislature limits review of
judgments in administrative mandate actions in cases of physician discipline to
extraordinary writs—Fink
distinguished “writ petitions challenging pretrial superior court rulings that
could also be reviewed on appeal from the judgment ultimately entered in the
action†from “situations in which a writ petition was the only authorized mode
of appellate review.†(
former type of writ petition, the Fink
court held, cannot constitute a “final†determination of litigation within the
meaning of section 391, subdivision (b)(1), because the court does not take
jurisdiction over the case and does not give the legal issue full plenary
review. (Fink, at p. 1172.)
However, when a writ petition is the exclusive means of obtaining
appellate review, the Supreme Court in Leone
had held, “an appellate court must
judge the petition on its procedural and substantive merits, and a summary
denial of the petition is necessarily on the merits. [Citations.]
An appellate court that summarily denies a writ petition for lack of substantive
merit or for procedural defect thereby fulfills its duty to exercise the
appellate jurisdiction vested in it by the state Constitution’s appellate
jurisdiction clause.†(Leone, at
p. 670.) According to Fink,
under those circumstances an appellate court’s summary denial of this type of
writ petition, including, as here, a writ petition challenging a ruling on a
motion to disqualify a trial judge under section 170.3, is properly considered
a final determination of litigation for purposes of qualifying for vexatious
litigant status under section 391, subdivision (b)(1). (Fink, at p. 1173.)
Even applying these expansive holdings from Fink v. Shemtov, supra, 180 Cal.App.4th 1160, the Saltz parties have identified four, not
six, writ proceedings initiated by Mr. Sanai and determined adversely to him in
this court during the pendency of this lawsuit.
On June 18, 2010, while Sanai 2010 was pending in this court and
after we had granted Mr. Sanai’s petition for writ of supersedeas, Mr. Sanai
filed a petition for writ of mandate to review the denial of a disqualification
motion under section 170.3 (B225160). On
July 6, 2010 we granted Mr. Sanai’s request to file a supplemental petition,
which included information about events occurring in the trial court subsequent
to the filing of the initial petition.
On July 14, 2010 we denied Mr. Sanai’s request to file a second
supplemental petition “without prejudice to the filing of a new,
separate petition, on or before July 26, 2010, that includes all issues
presented in the original and first supplemental petition and any new issues
petitioner wishes to raise.†Pursuant to
this court’s direction, on July 26, 2010 Mr. Sanai filed a new petition for
writ of mandate that included the items identified in our July 14, 2010
order (B226058). Thereafter, on
September 29, 2010, after receiving an opposition to the new petition and a
reply in support of it, we denied the petition.
The following day we dismissed the initial petition (that is, B225160),
explaining it “has been rendered moot by this court’s order of September 29,
2010 denying Sanai’s petition number B226058.â€
Mr. Sanai filed a petition for review following our denial of the
petition in B226058, which the Supreme Court denied without comment
(S187176).
Contrary to the Saltz parties’
calculation, these three petitions—B225160, B226058 and S187176—can be
considered, at most, a single litigation finally determined adversely to Mr.
Sanai under section 391, subdivision (b)(1):
Dismissal of the petition in B225160 was neither on the merits nor, in
light of the superseding petition he filed at our suggestion, necessarily
adverse to Mr. Sanai. (See
176 Cal.App.3d 288, 314 [“because we dismiss the case as moot, we do not
have a prevailing party on the merits on appealâ€].) Similarly, denial of the petition for review
in S187176 was not on the merits (see Trope
v. Katz (1995) 11 Cal.4th 274, 287, fn. 1 [denial of a petition for
review is not an expression on the merits of the cause]), and the Supreme Court
had not taken jurisdiction over the matter within the meaning of
Cal.4th 660 and Fink v. Shemtov, supra,
180 Cal.App.4th 1160. In short, the
disqualification issues presented by B225160, B226058 and S187176 were finally
resolved only once.
The interrelationship among these
three petitions, moreover, illustrates the deceptive simplicity of equating the
term litigation for purposes of section 391.7’s prefiling requirement with the
phrase “litigation[] . . . finally determined adversely†to the
putative vexatious litigant in section 391, subdivision (b)(1). Filing a new complaint in superior court in
propria persona and filing an appeal in this court after that complaint has
dismissed with prejudice both require permission if there is an outstanding
prefiling order. But because the civil
action commenced by the complaint is not finally determined until the appeal
has been resolved and a petition for review denied, the trial court proceeding,
the appeal and the petition for review should properly be considered only one
litigation, not three, for purposes of determining whether the plaintiff is a
vexatious litigant under subdivision (b)(1).
(See
156 Cal.App.4th at pp. 970-971 [“[a]ny determination that a litigant
is vexatious must comport with the intent and spirit of the vexatious litigant
statute . . . to address the problem created by the persistent and obsessive
litigant who constantly has pending a number of groundless actions and whose
conduct causes serious financial results to the unfortunate objects of his or
her attacks and places an unreasonable burden on the courtsâ€].)
Similarly, multiple appeals or writ
petitions during the course of a single lawsuit may each require permission
from the presiding justice if a prefiling order has previously been issued. And without question, repeatedly filing
frivolous writ petitions during the course of that lawsuit can properly subject
a self-represented party to a vexatious litigant finding under section 391,
subdivision (b)(3). (See, e.g.,
at p. 960; cf. In re Whitaker (1992)
6 Cal.App.4th 54, 55-56 [based on multiple unsuccessful actions in superior
court and in writ and appellate proceedings, litigant found to be vexatious
within both § 391, subd. (b)(1) & (b)(3)].) But the lawsuit itself and the issues raised
in it are only finally determined after all proceedings in the trial court have
concluded and all appeals and writ matters have been decided. There is then one “litigation†that has been
finally determined adversely to the losing party. (Cf. Shalant
v. Girardi, supra, 51 Cal.4th at p. 1169 [“litigation†as defined in §
391, subd. (a), cannot include every procedural step taken during an
action or special proceeding].)
name="_ftnref14" title="">[14] At the very least, it was not an abuse of
discretion for the trial court to conclude Mr. Sanai’s multiple writ
petitions during this lawsuit do not make him a vexatious litigant
b. The
findings under section 391, subdivision (b)(3)
The trial court also
determined Mr. Sanai was a vexatious litigant based on its finding he had used
tactics during the course of the lawsuit that were frivolous or solely intended
to cause unnecessary delay. This, too,
was error.
Section 391, subdivision (b)(3), defines a vexatious
litigant as a party who, 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 interpreted this
disjunctive language to limit the express requirement of repeated misconduct to
the first set of abusive actions (filing unmeritorious motions, pleadings or
other papers) and not the others, stating, “Repeated conduct is therefore not
necessarily required if the litigation tactics engaged in by Plaintiff are
frivolous or solely intended to cause unnecessary delay.†The Supreme Court, however, has explained
this aspect of the vexatious litigant definition requires a finding the person
has “repeatedly pursued unmeritorious or frivolous tactics in litigation.†(Shalant
v. Girardi, supra, 51 Cal.4th at pp. 1169-1170; cf.
(1976) 16 Cal.3d 30, 41 [according to normal English usage, adverb preceding
series of verbs modifies each verb]; see generally Long v. United States (4th Cir. 1952) 199 F.2d 717, 719 [“[t]he use
of the adverb ‘forcibly’ before the first of the string of verbs, with the
disjunctive conjunction used only between the last two of them, shows quite
plainly that the adverb is to be interpreted as modifying them allâ€].) Indeed, if “repeatedly†modified only “filesâ€
and not also “conducts†and “engages,†as the Saltz parties contend and the
trial court ruled, a self-represented
plaintiff could be found a vexatious litigant based solely on a single instance
of serving “unnecessary discovery,†a plainly absurd result. (See Simpson
Strong-Tie Co., Inc. v. Gore (2010)
49 Cal.4th 12, 27 [court should avoid a construction of statutory language that
would lead to absurd results].) Thus,
the correct question is not whether Mr. Sanai has ever engaged in frivolous
tactics in his action against the Saltz parties, but whether he had repeatedly
done so. On this record, the answer is
no.
title="">[15]
As discussed, the trial court rejected the Saltz
parties’ initial arguments that Mr. Sanai’s repeated motions to tax costs,
filed only in response to the Saltz parties’ various memoranda of costs, or his
multiple challenges to the bench officers presiding in the case, at least some
of which ultimately proved successful, constituted frivolous litigation
tactics within the meaning of section 391, subdivision (b)(3). That determination was well within the
court’s discretion. (See
180 Cal.App.4th at p. 1169.)
i. Section
1013 and notations of mailing
Turning to issues raised in the
Saltz parties’ reply memorandum and addressed by Mr. Sanai in his sur-reply,
the court concluded Mr. Sanai had engaged in vexatious tactics by “filing
improper memorandums of costs, failing to properly comply with abstracts of
judgment, and engaging in methods and practices with proofs of service.†With respect to his treatment of proofs of
service, the trial court criticized Mr. Sanai’s refusal to include proofs of
service or notations of mailing on service copies of documents filed with the
court—a practice that Mr. Sanai acknowledges.
But as Mr. Sanai argues, although section 1013, subdivision (b),
provides papers served by mail “shall bear a notation of the date and place of
mailing or be accompanied by an unsigned copy of the affidavit or certificate
of mailing,†subdivision (h) of that provision expressly provides subdivision
(b) is “directory†only—that is, although obligatory, the failure to comply
does not invalidate the action to which the procedural requirement
attaches. (See City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 923-924;
958.) There is no finding that
Mr. Sanai did not actually serve any of the documents without a
section 1013, subdivision (b), certificate or notation of mailing
(although there have been claims that certain papers were never properly filed
and served) or that he had violated a court order by this practice,
“technically proper under the Code of Civil Procedure.†Nor was there any showing that hearings had
to be delayed as a result of the Saltz parties’ failure to receive adequate
notice. Under these circumstances no
substantial evidence supports the trial court’s determination this practice was
either frivolous or solely intended to cause unnecessary delay.
ii.
The memoranda of costs and
abstracts of judgment
The other litigation activities upon which the trial
court based its vexatious litigant determination are thoroughly described in
pages 757 through 759 and 779 through 781 and need not be repeated in detail
here. In brief, we had awarded Mr. Sanai
his costs on appeal in Sanai 2005 and
directed the trial court to consider his request for restitution, initially
made to us in connection with that appeal, and to order reimbursements to the
extent appropriate. As found by the
trial court and confirmed in our opinion in Sanai
2009, in pursuing recovery of his costs on appeal and restitution, Mr.
Sanai engaged in a variety of improper and abusive practices, including seeking
restitution in the form of attorney fees by way of a memorandum of costs,
rather than a noticed motion; improperly serving the memorandum of costs and
then altering court documents in an attempt to conceal the defective service;
acquiring a fraudulent abstract of judgment after the court had struck the
original memorandum; and refusing to execute a satisfaction of judgment because
the Saltz parties had allegedly overpaid.
The evidence before the trial court fully supports its
finding that these tactics were frivolous within the meaning of section 391,
subdivision (b)(3)— totally and completely without merit and intended to
abuse the processes of the courts and to harass the adverse party. (See Morton
v. Wagner, supra, 156 Cal.App.4th at p. 972; Golin v. Allenby, supra, 190 Cal.App.4th at p. 639, fn. 29.) Indeed, based on this misconduct the trial
court awarded statutory damages/sanctions and attorney fees, which we affirmed
on appeal. (Sanai 2009, supra, 170
Cal.App.4th at p. 783.) But one such set
of inappropriate litigation tactics involving the same (improper) attempt to
recover costs, no matter how egregious, is not enough: Under section 391, subdivision (b)(3), a
vexatious litigant determination could only be made only if Mr. Sanai had
the litigation. (Shalant v. Girardi, supra, 51 Cal.4th at pp. 1169-1170; see
bright-line rule as to what constitutes ‘repeatedly’†in this context, but
“most cases affirming the vexatious litigant designation involve situations
where litigants have filed dozens of motions either during the pendency of an
action or relating to the same judgmentâ€].)
The evidence presented to the trial court was insufficient to support
such a determination here.
* * *
In reversing the trial court’s
order, we do not intend to signal our approval of the manner in which this
litigation has been conducted. It has
gone on far too long. It has consumed
far too much of the judicial system’s limited resources. Gamesmanship appears too often to take
precedence over reasonable efforts to resolve procedural disputes and to
address the merits of the remaining controversy. Civility and courtesy are absent. Strong oversight by the trial court is
obviously necessary.
name="_ftnref17" title="">[17] But applying a vexatious litigant designation
beyond the limits set by the applicable statutory
scheme is not the solution.
DISPOSITION
The April 28, 2011 order is
reversed. Mr. Sanai is to recover his
costs on appeal, but the trial court is directed to stay any enforcement of the
cost award until it enters a final judgment in the matter and assesses whatever
setoffs may be appropriate in light of other orders for sanctions, costs or
attorney fees.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
was acquired by First Advantage Corporation in April 2004. On April 21, 2005 we granted Mr. Sanai’s
unopposed motions to substitute First Advantage Corporation for UDR in the
appeal then pending before us. First
Advantage Corporation thereafter actively participated in the litigation and
was expressly identified as UDR’s successor in interest. (See, e.g., Sanai v. Saltz (2009) 170 Cal.App.4th 746, 751 (
subsequently acquired, although the parties disagree whether by Corelogic, Inc.
or its subsidiary Corelogic US, Inc.—a dispute we refused to resolve. The Irvine Company, which has an ownership
interest in the entity that had leased the apartment to Mr. Sanai, is also
named as a defendant in the current, operative pleading. For consistency and clarity we refer to the
defendants collectively as the Saltz parties.
Mr. Sanai has suffered repeated defeats in the trial court, he has been more
successful before this court. (See
B170618) [nonpub. opn.] (
void the judgment entered during appeal of the order denying special motion to
strike and remanding with directions to conduct further proceedings based on
the state of the pleadings on January 16, 2001]; Sanai 2009, supra, 170 Cal.App.4th 746 [reversing in part judgment
entered after trial court granted motions for judgment on the pleadings filed
by Mr. Saltz and UDR]; see also Sanai
v. Saltz (Mar. 21, 2002, B147392) [nonpub. opn.] (Sanai 2002) [affirming trial court’s denial of special motion to
strike filed by Mr. Saltz and UDR]; Sanai
v. Saltz (Sept. 16, 2010, B219963) (Sanai
2010) [nonpub. opn.] [affirming trial court’s denial of special motion to
strike Mr. Sanai’s first amended supplemental verified complaint].)
