Filed 8/27/26 Schmid v. County of Sonoma CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
FREAR STEPHEN SCHMID et al.,
Plaintiffs and Appellants,
A172089
v.
COUNTY OF SONOMA, (Sonoma County
Super. Ct. No. SCV270568)
Defendant and Respondent.
The trial court declared attorney Frear Stephen Schmid (Frear) a
vexatious litigant on the ground that he had suffered five adverse
determinations in the last seven years in cases he had brought in propria
persona (pro per) (Code Civ. Proc., § 391, subd. (b)(1)1) and included a
prefiling order barring him from initiating any further litigation in pro per
without leave of court. It declined to find his wife, Astrid, a vexatious litigant
but cautioned that if any of her future court filings appeared to be prepared
by Frear, they would not be permitted unless Frear substituted in as her
counsel.
Represented by counsel (at least, nominally), both now appeal. Astrid,
barely addressing whether we even have jurisdiction to address her claims,
Unless otherwise specified all further statutory references are to the
1
Code of Civil Procedure.
1
contends the trial court had no statutory or legal basis to opine on whether it
would accept her filings in the future if they appeared to be the work of her
husband and, furthermore, that its cautionary comments are
unconstitutional several times over. Frear challenges the order entered
against him with a dizzying number of arguments, both statutory and
constitutional.
This is not our first encounter with the Schmids’ self-represented
litigation activities. A little over one year ago, we affirmed a judgment
entered against them in a lawsuit they brought in pro per over unpermitted
repairs they had made to their barn that, decades later, they sought to
legalize. Their lawsuit challenged the authority of local officials to ask for an
inspection of the Schmids’ barn before deciding whether to grant them an
exemption from local permitting requirements. That lawsuit was the second
lawsuit they filed to prevent an inspection of their barn, having previously
filed and lost such a suit in federal court on an array of federal constitutional
claims. In a lengthy unpublished opinion, we rejected their arguments under
state law as to why their rights were being violated by what appeared to be
nothing more than a reasonable request for a building inspection, arguments
asserting violations of local and state enactments and policies, equitable
estoppel and violations of the state constitution. We rejected their many
arguments challenging the validity of the local administrative proceedings
that resulted in the challenged permitting decision. And we concluded the
threshold issue as to whether local law allowed its officials to inspect the
barn as a condition of issuing an exemption had been conclusively resolved
against them in federal court and they were barred from attempting to
relitigate that issue. (Schmid v. County of Sonoma (Mar. 27, 2025,
No. A169274) [nonpub.].)
2
Now, we come to this latest appeal from an order declaring Frear a
vexatious litigant and imposing a prefiling requirement on him, based on his
having suffered at least five adverse determinations in cases he has brought
as a self-represented plaintiff in the last seven years (§ 391, subd. (b)(1)).
The order was entered before we rendered our opinion in the barn case, and
so that loss was not even included.2
Before addressing this latest appeal, we are tempted to inquire whether
Frear himself took the laboring oar in preparing the parties’ appellate briefs
to evaluate whether his appellate counsel of record has lent his name to the
briefs largely as window dressing—that is, to facilitate an effort by Frear to
evade the prefiling order on appeal.3 But we will not do so. This appeal has
consumed many judicial resources already and we will not devote more.
2 An order declaring a party to be a vexatious litigant, although not
itself directly appealable, is reviewable in conjunction with an order requiring
the litigant to obtain prefiling judicial permission before initiating new
litigation, because the prefiling order is injunctive in nature and therefore
appealable. (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 618-619
(Deal).) Here, the vexatious litigant order and prefiling order are combined.
Frear may challenge the vexatious litigant determination because the appeal
is from a ruling that contains a prefiling order.
3 Given the prefiling order entered against him, Frear himself cannot
initiate any appeals in pro per without seeking leave of this court. (See
§ 391.7.) And appellate courts take such orders seriously. We have the
power to consider whether retained counsel is basically just a puppet and
whether the vexatious litigant himself is the true author of the appellate
briefs counsel has signed. (See In re Kinney (2011) 201 Cal.App.4th 951, 958
(Kinney) [“Although the language of the vexatious litigant statute refers to
individuals acting in propria persona, it has also been applied when hired
counsel ‘acts as a mere puppet or conduit’ for abusive litigation”]); see also
Golin v. Allenby (2010) 190 Cal.App.4th 616, 635-636 [prefiling permission
not required where appellants are not acting as self-represented litigants
actually or de facto, but are represented by able counsel as reflected by
quality of appellate briefing].)
3
We reject all the Schmids’ arguments. They have shown no basis to
disturb the trial court’s ruling.4
BACKGROUND
The Schmids, owners of rural land in Sonoma County (the County),
filed this action in pro per against the County and Air Exchange Inc.,
challenging the County’s issuance of a permit allowing Air Exchange Inc. to
install an exhaust ventilation system in a garage structure located on a
neighboring parcel being used to store firetrucks and firefighting equipment
for a local volunteer fire department. Already pending at the time they
brought it were long-running, consolidated lawsuits the Schmids had filed
against the County and the volunteer fire department, both challenging the
County’s issuance of a permit allowing the volunteer fire department to use
the garage for storing its vehicles and equipment.
The trial court stayed the action pending a determination of the other
related, consolidated cases. It ruled that “[t]he entire basis of Plaintiffs’
claims against the County here rests on the issues which they already raised”
in their pending lawsuit against the County (No. SCV-266225). The stay was
lifted about a year and a half later, and then Air Exchange settled with the
Schmids, agreeing never to install the challenged exhaust system, and a
stipulated judgment to that effect was entered.
Subsequently, the County filed a motion to declare the Schmids
vexatious litigants under section 391. The motion detailed numerous
lawsuits the Schmids had filed in the last seven years (in both state and
federal court), including 10 arising from their dissatisfaction with the
4 The County and the Schmids both filed motions asking us to take
judicial notice of various materials, and we previously took those motions
under submission. We now deny both requests on the ground that none of
the materials are relevant to the bases upon which we render our decision.
4
volunteer fire department’s construction of the garage. Regarding that
subject alone, the Schmids had sued the fire department and the County
multiple times; third party vendors; and even a local fire protection district.
In addition to those 10 cases, the motion identified four other cases the
Schmids had brought and lost and then appealed and lost again (the County
said one was outside the seven-year window but was still “illustrative
of . . . the repetitive filings and appeals in constitutional claims that are
determined to have no merit”).
The County asserted in its motion that many of these 14 lawsuits were
repetitive, overlapping, duplicative, and unmeritorious. Most had been
resolved against the Schmids (they lost in the trial court and then again on
appeal), several were still pending and in none had the Schmids yet
prevailed. As summarized in an attorney declaration filed with the motion,
“[t]he Schmids rarely, if ever, accept an adverse ruling, always appealing a
trial court’s decision to the appellate court. They often file in Federal Court
yet pursue similar causes of action in State court after receiving an adverse
decision in U.S. District Court and with the 9[th] Circuit Court of Appeals.”
The Schmids summarize none of this history.
The County’s motion was supported by more than 350 pages of
evidence. It includes two attorney declarations addressing the Schmids’
litigation history and 22 exhibits from court records that the trial court
judicially noticed. According to an attorney declaration, some of the lawsuits
had been filed through an Oregon attorney named J. Curtis Edmonson (i.e.,
counsel of record in this appeal), who appeared to be merely lending his name
to pleadings given identical grammar, syntax, tone and content of pleadings
filed under the attorney’s name and the many pleadings filed by Frear in the
pro per cases.
5
The Schmids summarize none of this evidence.
The motion was brought on three statutory grounds. It contended that
the Schmids have commenced, prosecuted or maintained in pro per in the last
seven-year period at least five cases that have been finally determined
adversely to them, thereby satisfying the definition of a vexatious litigant
under section 391, subdivision (b)(1), a provision we discuss more fully below.
It also contended that the Schmids “continue to file frivolous and repetitious
legal actions, motions and pleadings,” thereby satisfying the definition of a
vexatious litigant under section 391, subdivision (b)(2) and (3).5 As to those
latter grounds, the motion argued, “The Schmids have a significant history of
instituting and maintaining frivolous and highly duplicative actions. They
persist in repeatedly filing multiple versions of unmeritorious claims. They
repeatedly appeal well-reasoned rulings by both State and Federal trial
courts, only to lose on appeal. When they lose one case, they turn around and
file another case, or multiple cases, concerning the same general issues. They
‘forum-shop’ in both State and Federal court. When they lose in one court,
they file the same claims in the other court system. These repetitious
5 Section 391, subdivision (b)(2) defines a vexatious litigant as someone
who “[a]fter 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.”
Section 391, subdivision (b)(3) applies to someone 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.”
6
lawsuits qualify the Schmids as vexatious litigants, independent of the
number of adverse determinations in the past 7 years.”
After issuing a tentative ruling, the trial court heard oral argument at
a hearing of which no appellate record has been made (the record on appeal
lacks either a reporter’s transcript or a settled statement) and then granted
the motion as to Frear and denied it as to Astrid, in a 14-page written
ruling.6
Concerning Frear, the court’s analysis focused mostly on the definition
of a vexatious litigant under section 391, subdivision (b)(1). The court
expressly found that five of the 14 cases counted toward the tally of adverse
determinations suffered by a pro per litigant, thereby satisfying the statutory
requirements. It expressly found that six did not count: two were outside the
requisite seven-year period and four were still pending. And although the
court’s ruling could have been clearer, it also effectively found that in three
other cases Frear did not appear in pro per because he was represented by
Edmonson in those cases and there was insufficient evidence that Edmonson
was being used as a mere mouthpiece for Schmid. In this regard, the court
observed generally that in light of its finding that five cases counted, “the
Court need not engage in speculation on whether Mr. Edmonson acted as a
mere proxy for Frear Stephen Schmid’s claims. The Court notes substantial
similarities between (for example) [Nos.] SCV-270568 and 19-CV-0883, but
there is no evidence or argument displayed sufficient to show that it is
Edmonson who derives his pleadings from Frear Stephen Schmid. The
inverse appears equally likely without additional showing.”
6 The record also does not contain the reply memorandum of points and
authorities the County filed in support of its motion on October 25, 2024.
7
The court ruled that it “does not generally find the relitigation of the
same issues is applicable to the Plaintiffs,” which we construe as a ruling
declining to find Frear a vexatious litigant under section 391,
subdivision (b)(2). The court did not expressly address the County’s
argument that Frear satisfies the alternative definition under
subdivision (b)(3) as someone 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.”
The court entered an order declaring Frear a vexatious litigant and
enjoining him from filing “any new litigation in the courts of this state in
propria persona without first obtaining leave of the presiding judge of the
court where the litigation is proposed to be filed”, and this timely appeal
followed.
DISCUSSION
I.
Astrid’s Arguments
As noted, the trial court declined to find Astrid a vexatious litigant. It
did, however, state that: “Subsequent to this order, should Astrid Schmid’s
motion or papers appear to be the work of Frear Stephen Schmid, it will only
be allowed if Plaintiff Frear substitutes in as counsel, as would be
permissible as a member of the California Bar.”
Astrid now challenges this comment on several grounds. She argues
there is no legal basis for the court imposing any such restriction on her (she
says the court’s comment amounts to an order), it denies her due process of
law because it issued without any notice or opportunity for her to be heard,
8
and the court’s comment is both unconstitutionally overbroad and
unconstitutionally vague.
The record does not reflect that Astrid raised any of these issues below.
The court announced in its tentative ruling that it intended to include this
language in its ruling and allowed the parties an opportunity to address the
subject by contesting the tentative ruling, the matter was argued but we do
not have a transcript, and the record does not contain any indication that
Astrid objected to this aspect of the ruling, much less on any of the grounds
she now asserts. Under these circumstances we cannot and will not consider
any of these issues.
“[I]t is a fundamental principle of appellate procedure that a trial court
judgment is ordinarily presumed to be correct and the burden is on an
appellant to demonstrate, on the basis of the record presented to the
appellate court, that the trial court committed an error that justifies reversal
of the judgment. [Citations.] . . . ‘In the absence of a contrary showing in the
record, all presumptions in favor of the trial court’s action will be made by
the appellate court.’ . . . ‘ “A necessary corollary to this rule is that if the
record is inadequate for meaningful review, the appellant defaults and the
decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently,
[the appellant] has the burden of providing an adequate record. [Citation.]
Failure to provide an adequate record on an issue requires that the issue be
resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594
608-609.) A record is inadequate if an appellant “ ‘ “ignores or does not
present to the appellate court portions of the proceedings below which may
provide grounds upon which the decision of the trial court could be
affirmed.” ’ ” (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014)
229 Cal.App.4th 635, 644; see, e.g., Maria P. v. Riles (1987) 43 Cal.3d 1281,
9
1295-1296 [where attorney fee hearing was unreported, record is inadequate
and appeal “must be resolved against [appellants]”.)
That is true here. Without a record of the oral proceedings, we cannot
tell if Astrid forfeited, waived or otherwise acquiesced in the very thing she
now assigns as error (namely, a restriction on her ability to file papers
drafted by her husband to the extent the court’s comment imposed one). She
thus fails to show error by an adequate record. (See, e.g., In re Kathy P.
(1979) 25 Cal.3d 91, 102 [appellant “has not met her burden of showing error
by an adequate record” where hearing was unreported and record does not
show whether appellant waived right to counsel and consented to informal
hearing procedures]; In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8-10
[where record does not show husband objected to exercise of personal
jurisdiction, appellate court “ ‘must . . . presume that what occurred at that
[unreported] hearing supports the judgment’ ” and thus presumes he
consented to jurisdiction at unreported hearing].)
Relatedly, an appellant must affirmatively demonstrate that she
preserved an issue for our review, including by citing the record showing
exactly where her objection was made, or else explaining why the issue can
be raised for the first time on appeal. When an appellant does neither, we
may deem the issue forfeited. (See Dietz v. Meisenheimer & Herron (2009)
177 Cal.App.4th 771, 798-802; accord, Colombo v. BRP US Inc. (2014)
230 Cal.App.4th 1442, 1478.) We do so here. Indeed, it is particularly
appropriate to deem Astrid’s objections to the scope and language of the
court’s ruling forfeited. We have no way of knowing whether the trial court
might have narrowed or clarified its ruling had Astrid called to its attention
the constitutional overbreadth and vagueness objections she now asserts.
10
Even if we construed the court’s cautionary comments as an order
precluding Astrid from filing papers drafted by her husband, and even if the
issue had not been forfeited, we perceive no error under state law.7 Frear is
himself a vexatious litigant. Courts have the power to restrain someone who
is a vexatious litigant from filing papers in the name of another person they
are using as a strawman to advance their own interests (even if those
interests are shared). (See Kinney, supra, 201 Cal.App.4th at pp. 959, 960-
961 [restraining attorney from filing any new litigation in his own name or in
the name of client he ostensibly represented in litigation from which he stood
to personally benefit; the attorney “is purporting to act as attorney for
[client]. In reality, [client] is merely acting as a puppet or conduit for
[attorney’s] abusive litigation practices”]; see also Hupp v. Solera Oak Valley
Greens Assn. (2017) 12 Cal.App.5th 1300, 1313-1320 [court properly
dismissed claims brought by mother of vexatious litigant seeking recovery on
vexatious litigant’s behalf but not separate claims personal only to her even
though vexatious litigant appears to have drafted his mother’s pleadings].)
Astrid does not contend she asserts any causes of action that advance only
her own interests, not Frear’s. Thus, what the court’s comment really is
aimed at is restricting Frear’s abusive litigation activities undertaken to
further his personal interests. Although nominally directed at Astrid, it is
really directed at Frear. Hence, even if characterized as an injunction
carrying all attendant potential penalties for its violation rather than merely
as a cautionary warning, we perceive no error.
7 We refrain from commenting further on her constitutional arguments
not to suggest they would have any potential viability had they been shown
by an adequate record to have been preserved for appeal. We express no
opinion on that subject.
11
The parties also disagree as to whether we even have appellate
jurisdiction over Astrid’s issues, a question the opening brief does not
meaningfully address and as to which the reply brief is silent. We need not
resolve this, given that we have rejected her arguments on other grounds.8
II.
Frear’s Arguments
A. Statutory Overview and Standards Governing Our Review
“ ‘The vexatious litigant statute (§ 391 et seq.) was enacted “ ‘to curb
misuse of the court system’ ” by “ ‘persistent and obsessive’ litigants.” ’ ”
(Deal, supra, 45 Cal.App.5th at p. 618.) The Legislature has equipped courts
with several tools to do this. Generally stated, once someone has been
adjudged a vexatious litigant under the statutory framework, a court may
enter an order requiring the vexatious litigant to obtain leave of court before
initiating any new litigation in pro per, as it did here (§ 391.7, subd. (a));
8 Astrid asserts the court’s ruling as to her is appealable as an
injunction but cites no authority for the proposition, which is not self-evident.
Unlike the prefiling order it adopted as to Frear, the trial court did not
expressly order Astrid to do or refrain from doing anything; it merely
suggested any papers submitted by her in the future that appeared to be the
work of Frear would be filed only if he appeared as her counsel. The parties
have not adequately briefed whether the court’s comments in this regard
operate as an injunction (thereby making that aspect of the ruling
appealable) but because Astrid’s arguments are easily dispensed with, we
deem it expedient to treat her appeal as a petition for writ of mandate in the
interest of efficiency rather than seek supplemental briefing and/or dismiss
the appeal with her challenges unresolved. (See, e.g., Nixon v. AmeriHome
Mortgage Co., LLC (2021) 67 Cal.App.5th 934, 940 [declining to decide
appealability question and exercising discretion to treat appeal as a petition
for writ of mandate “[i]n light of the uncertainty of our jurisdiction” on appeal
“and the absence of any delay or prejudice our intervention at this stage
would cause”]; Ayala-Ventura v. Superior Court of Fresno County (2026)
119 Cal.App.5th 241, 246 [same].)
12
leave to proceed will be granted upon a showing the litigation “has merit and
has not been filed for the purposes of harassment or delay” (id., subd. (b)). In
addition, upon a showing in pending litigation that there is no reasonable
probability the plaintiff will prevail, a defendant may ask the court to require
a vexatious litigant to post security in order to proceed, on pain of dismissal.9
(See §§ 391.1, subd. (a), 391.3, subd. (a), 391.4.)
A person may be declared a vexatious litigant on multiple grounds.
(See § 391, subd. (b).) At issue here is the definition of a vexatious litigant
under subdivision (b)(1) of section 391. It states in relevant part that a
vexatious litigant “means a person who . . . [i]n the immediately preceding
seven-year period has commenced, prosecuted, or maintained in propria
persona at least five litigations other than in a small claims court that have
been (i) finally determined adversely to the person . . . .” (§ 391, subd. (b)(1).)
The term “litigation,” for purposes of the entire vexatious litigant framework,
“means any civil action or proceeding, commenced, maintained or pending in
any state or federal court.” (Id., subd. (a).)
Our colleagues in Division Three recently summarized the law under
subdivision (b)(1). “Section 391[, subdivision] (b)(1) defines a vexatious
litigant as a self-represented person who has filed at least five qualifying
litigations within the past seven years that were decided adversely to them.
(§ 391[, subd.] (b)(1)(i).) ‘Litigation is defined as any “civil action or
proceeding, commenced, maintained or pending in any state . . . court.” ’
[Citation.] This ‘includes an appeal or civil writ proceeding filed in an
9 In this case, in addition to requesting entry of a prefiling order, the
County asked for an order requiring the Schmids to post security for this
case, but it was denied because the case was still stayed as to the County and
the County also had not presented any argument or evidence addressing
whether the case has any merit. That ruling is not at issue on appeal.
13
appellate court.’ [Citation.] An action is ‘within the “ ‘immediately preceding
seven-year period’ ” so long as it was filed or maintained during that period’
[citation], and the ‘period is measured from the date the motion or OSC is
filed.’ [Citation.] The litigation is ‘finally determined adversely’ if the person
does not win and ‘avenues for direct review (appeal) have been exhausted or
the time for appeal has expired.’ ” (In re Marriage of Kouvabina & Veltman
(2025) 115 Cal.App.5th 293, 298.)
On appeal, Frear challenges the trial court’s reliance on three of the
five qualifying cases claiming they don’t satisfy the statutory standard. In
addition, he challenges the court’s determination that he is a vexatious
litigant on various constitutional grounds.
“ ‘A [trial] 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.’ ” (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 407;
accord, Deal, supra, 45 Cal.App.5th at p. 621.)
We also presume that the trial court’s ruling is correct, and it is Frear’s
burden to affirmatively demonstrate that the trial court erred. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) “ ‘This is not only a general
principle of appellate practice but an ingredient of the constitutional doctrine
of reversible error.’ ” (Ibid.) The burden of demonstrating error applies
equally to an appellant challenging a determination they are a vexatious
litigant. (See Deal, supra, 45 Cal.App.5th at p. 622.)
To demonstrate error, “ ‘an appellant must supply the reviewing court
with some cogent argument supported by legal analysis and citation to the
record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC (2019)
14
36 Cal.App.5th 142, 153 (United Grand).) Appellate courts will not consider
claims of error when they are too conclusory and undeveloped—such as when
they are supported by no discussion of any relevant legal authority (see, e.g.,
id. at pp. 160-161) or no analysis of how the law, if cited, actually applies
(see, e.g., id. at pp. 162, 163 [deeming issues forfeited because appellant “cites
one case . . . but then fails to ‘explain how it applies in his case’ ”]). When an
appellant doesn’t explain the case law he cites, we will not analyze those
cases ourselves to figure out how, if at all, they apply so as to develop an
argument for him. (See, e.g., Doe v. McLaughlin (2022) 83 Cal.App.5th 640,
654 [disregarding argument where appellant cites legal authority but “does
not explain how that authority applies here”]; Department of Alcoholic
Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002)
100 Cal.App.4th 1066, 1078 [disregarding argument where party “fails to
provide this court with its own analysis of [cited case] or any other relevant
authority, as applied to the facts in this case”].) “Mere suggestions of error
without supporting argument or authority other than general abstract
principles do not properly present grounds for appellate review.”
(Department of Alcoholic Beverage Control, at p. 1078.)
With these principles in mind, we turn to Frear’s contentions on
appeal.
B. The Challenged Cases
First, we consider his arguments concerning those cases he asserts
were wrongly counted toward the tally of five adverse determinations under
section 391, subdivision (b)(1).
1. Schmid et al. v. City and County of San Francisco
et al., No CGC-18-571283
In 2018, Frear and San Francisco resident Patricia Briggs brought suit
to challenge the City’s decision to remove a controversial monument in San
15
Francisco’s Civic Center, the Pioneer Monument. Alleging their shared
interests as local taxpayers, residents or former residents of the City and “as
citizens of California,” they purported to bring suit “as members of the
general public and as individual taxpaying citizens” to preserve a local
historic resource. A demurrer was sustained without leave to amend and a
judgment of dismissal was entered.
Frear not only was a party in the case, nominally represented by
counsel, he also was attorney of record for his co-plaintiff. Hence, the trial
court in this case ruled that he was effectively litigating in pro per on her
behalf: it ruled, “This matter particularly is muddled by the additional fact
that Frear Stephen Schmid, while represented by counsel, appeared as
counsel himself for his co-litigant. This matter appears questionable, as
Frear Stephen Schmid availed himself of his rights as an attorney licensed in
this state to appear on behalf of another party, advancing his own interest
while avoiding pro per status. . . . [T]his is sufficient to find Plaintiff Frear
Stephen Schmid was a litigant in this action.” (Italics added.)
Frear argues the court erred in counting this as a qualifying case
because he didn’t file or maintain the action in pro per.10 We do not agree,
and extended discussion is unnecessary.
Courts don’t elevate form over substance when determining whether
someone is a vexatious litigant. An attorney of record may be found to be the
actual litigant where the client is a puppet or conduit being used to advance
the attorney’s own interests. (See Kinney, supra, 201 Cal.App.4th at pp. 958-
959.)
He also argues there was no evidence the case was frivolous or
10
brought in bad faith; we address that subject below.
16
Frear acknowledges this authority but contends “there is no evidence
Schmid used Ms. Briggs as a puppet or conduit while he acted as her
attorney.” This ignores the declaration he filed in the trial court. According
to that declaration, two of the four causes of action were brought in both
parties’ names (for “violation of California Civil Rights” and Declaratory
Relief); he was his co-plaintiff’s attorney of record for those causes of action
and he himself was represented by ostensibly separate counsel (Edmonson).
That highly unorthodox way of setting up the representation alone screams
“conduit.” In addition, his co-plaintiff alleged a taxpayer claim under Code of
Civil Procedure section 526a; he was her attorney of record on that cause of
action.11 What was the point but to allow Frear to control the litigation (for
example, why would his attorney of record, Edmonson, not represent both
plaintiffs on the two joint causes of action if not the entire lawsuit? And why
does Frear need to appear as counsel at all? Conversely, why separate
counsel at all?) This unusual arrangement is substantial evidence that
Frear’s representation of his co-plaintiff in that case was just a ruse, and that
he himself was effectively the client, and he presents no colorable argument
to the contrary. Indeed, this case presents an even stronger basis to infer
that the nominal client was a mere conduit for the vexatious litigant than in
Kinney, because here the vexatious litigant participated in the case as both
attorney of record and as a party. Because there is substantial evidence
Frear’s client was his conduit, the trial court did not abuse its discretion in
counting this case.
11 Represented by counsel, Frear also asserted “a cause of action for
writ of mandamus” in his name alone.
17
2. The Appeal in Anello
Next, Frear challenges the court’s reliance on his unsuccessful appeal
of a judgment granting a civil restraining order against him in a case in
which he was the defendant, Anello v. Schmid (June 11, 2021, A160440,
A160540) [nonpub.]). Citing John v. Superior Court (2016) 63 Cal.4th 91
(John) and Shalant v. Girardi (2011) 51 Cal.4th 1164 (Shalant), Frear
asserts that “[a]s a matter of law, the appeal from a trial court determination
where Schmid was not the plaintiff does not constitute an instance of him
‘maintaining litigation.’ ” By this, we take him to mean that such an appeal
cannot be counted as litigation that was “commenced, prosecuted, or
maintained in propria persona” even if it was “finally determined adversely
to the person” initiating the appeal (§ 391, subd. (b)(1)).
This argument, encompassing all of one page, is too undeveloped for us
to consider. Neither John nor Shalant considers what constitutes qualifying
litigation for purposes of determining under section 391 whether someone is a
vexatious litigant. They address the scope and application of prefiling orders
entered under section 391.7, the statute that authorizes a prefiling order
barring someone who has been adjudged a vexatious litigant from “filing any
new litigation” in pro per without leave of court (id., subd. (a)). Shalant held
that a lawsuit filed by counsel on behalf of a vexatious litigant who was
subject to a prefiling order was not subject to dismissal even if counsel
withdrew and the vexatious litigant continued to pursue the litigation in pro
per. (See Shalant, supra, 51 Cal.4th at p. 1168.) John held that prefiling
orders entered under section 391.7 do not prevent self-represented
defendants from appealing from an adverse judgment without leave of court.
(John, supra, 63 Cal.4th at p. 93.)
Frear does not meaningfully discuss or analyze either of those cases or
the statutory language at issue here (i.e., section 391, subdivision (b)(1)). Nor
18
does he discuss or apply any principles of statutory interpretation to
persuade us that the definition of “vexatious litigant” under that provision
cannot include an unsuccessful appeal by a defendant.
Equally problematic is that Frear fails to acknowledge (much less
discuss) authorities directly contrary to his position. Our colleagues in
Division Three recently examined this question and said this: “We cannot
find anything in [John] holding a defendant’s appeal cannot constitute
‘litigation’ under section 391[, subdivision] (b)(1). [Appellant’s] assertion
otherwise is unfounded. [¶] Nor can we find anything in the text of
section 391[, subdivision] (b)(1) or in case law—and [appellant] does not draw
our attention to anything—indicating a defendant’s appeal does not
constitute ‘litigation’ for purposes of section 391[, subdivision] (b)(1).” (In re
Marriage of Kouvabina & Veltman, supra, 115 Cal.App.5th at p. 300; see also
ibid. [“Nothing suggests a defendant’s appeal is exempted from this
definition”]; see also In re R.H. (2009) 170 Cal.App.4th 678, 693-696 [no error
in counting appeals by defendant], disapproved on other grounds in John,
supra, 63 Cal.4th at p. 99.) A proper appellate argument would acknowledge
and discuss these authorities.
In view of the inadequate briefing, we will not reach out ourselves to
analyze and consider whether a defendant’s appeal may qualify. The
question has not been adequately briefed, and we deem it forfeited for lack of
a cognizable, developed legal argument. (See Dilbert v. Newsom (2024)
101 Cal.App.5th 317, 323 [“each point must be supported ‘by argument and, if
possible, by citation to authority’ ”; this “requires more than simply stating a
bare assertion that the judgment ‘is erroneous and leaving it to the appellate
court to figure out why’ ”; “ ‘it is not the appellate court’s role to construct
theories or arguments that would undermine the judgment and defeat the
19
presumption of correctness’ ”; “ ‘self-represented parties are “ ‘held to the
same restrictive procedural rules as an attorney’ ” ’ ”]; People v. Stanley
(1995) 10 Cal.4th 764, 793 [failure to provide legal argument with citation of
authorities on point made may be treated as waived and not considered].)
3. Schmid v. County of Sonoma No. SCV-270771
Next, Frear argues the trial court erred by counting Schmid v. County
of Sonoma No. SCV-270771, because that case was dismissed without
prejudice after the defendants dropped all efforts to continue with the actions
that he challenged, thereby “achiev[ing] [his] desired litigation results” and
rendering the case moot. He asserts that a dismissal without prejudice for
mootness after a pro per plaintiff has achieved his litigation objectives is not
a litigation “finally determined adversely to the person” under section 391,
subdivision (b).
He cites no authority supporting this proposition. None of the cases he
relies on construe or interpret section 391.12 And the trial court cited
authority recognizing that “[a] litigation is finally determined adversely to a
plaintiff if he does not win the action or proceeding he began, including cases
that are voluntarily dismissed by a plaintiff.” (Garcia v. Lacey, supra,
231 Cal.App.4th at pp. 406-407.) Frear says Garcia is wrong, but it is not the
12 See Association of Irritated Residents v. Department of Conservation
(2017) 11 Cal.App.5th 1202, 1207 (dismissal for mootness has no preclusive
effect under res judicata because it is not on the merits); Wilson v. Bittick
(1965) 63 Cal.2d 30, 35 (affirming summary judgment of affirmative defense
of “vexatious litigation,” holding litigant had not acted vexatiously by
dismissing prior suit without prejudice after failing to join an indispensable
party and then refiling); Cook v. Stewart McKee & Co. (1945)
68 Cal.App.2d 758 (holds there is no right to appeal from clerk’s entry of
voluntary dismissal, which is ministerial not judicial act); Oprian v. Goldrich,
Kest & Associates (1990) 220 Cal.App.3d 337 (addresses what constitutes a
“favorable termination” for purposes of malicious prosecution).
20
only such case. Our colleagues in Division Three have also recognized, “[A]
dismissal—voluntary or not—constitutes an adverse determination.”
(Karnazes v. The Lauriedale Homeowners Assn. (2023) 96 Cal.App.5th 275,
281.) They explained, moreover, “it is the loss that matters” under
section 391 when a case is dismissed, “not whether a litigant is satisfied with
the result.” (Ibid.) That Frear says he dismissed this case because he had
achieved his desired results is thus irrelevant.
Frear cites no authority construing the statute in a manner that
supports his interpretation. Nor does he engage in any attempt at statutory
interpretation to persuade us that dismissals for mootness categorically do
not count in the tally of qualifying adverse determinations. (See Karnazes,
supra, 96 Cal.App.5th at pp. 278, 279, 281 [nine appeals were determined
adversely to litigant including one dismissed for mootness; each “ ‘ represents
a final determination of a litigation in a manner that was adverse to [her]’
under the [vexatious litigant] statute”].) Accordingly, he has failed to show
error.
Not only is his argument legally insufficient, it is also refuted by the
record. The trial court rejected his mootness argument on the facts in its
vexatious litigant ruling, after having personally presided over the case in
question. It observed: “Plaintiffs may not pepper governmental entitles with
meritless cases and dismiss them in an effort to avoid adverse
determinations. In SCV-270771, that appears to be exactly what occurred.
The trial court (which was this judicial officer) sustained the demurrer of the
defendants, including the County, with leave to amend. Plaintiffs amended
their complaint but subsequently dismissed after defendants filed subsequent
demurrers. Plaintiffs do not successfully argue mootness where their claims
were already found lacking. The posture of the case at the time of dismissal
21
indicates that it lacked merit, even if the action became moot. To hold
otherwise would encourage browbeating through meritless litigation.” (Italics
added.) Frear does not address this finding and has forfeited any argument
that it is factually unsupported or legally insufficient by itself to support the
court’s ruling. (See Cruz v. Tapestry, Inc. (2025) 113 Cal.App.5th 943, 953–
954 [“ ‘ “ ‘Issues not raised in an appellant’s brief are deemed waived or
abandoned’ ” ’ ”].) We thus affirm the court’s ruling on this alternative,
independent ground as well.
C. Constitutional Issues
Next, we come to Frear’s constitutional arguments—and again, there
are many.
Regrettably, they are rambling and unfocused. Many are not clearly
identified in an argument heading of his brief as they should be (see Herrera
v. Doctors Medical Center of Modesto (2021) 67 Cal.App.5th 538, 547;
Tsakopoulos Investments, LLC v. County of Sacramento (2023)
95 Cal.App.5th 280, 309-310), and some are framed with (somewhat) greater
specificity only in the reply brief (see Bitner v. Department of Corrections &
Rehabilitation (2023) 87 Cal.App.5th 1048, 1065, fn. 3; Benach v. County of
Los Angeles (2007) 149 Cal.App.4th 836, 852, fn. 10). All of this makes our
work needlessly harder. “It is not our responsibility to act as counsel for [an
appellant] and attempt to arrange his arguments coherently.” (Pizarro v.
Reynoso (2017) 10 Cal.App.5th 172, 181.) Under the foregoing authorities, we
could deem most of his constitutional arguments forfeited on these grounds.
Nevertheless, we will address those issues that we can discern in Frear’s
unsystematic briefing; any other arguments not discussed in this opinion are
deemed forfeited on these grounds. (See United Grand, supra,
36 Cal.App.5th at p. 153.)
22
As best we understand Frear, he contends: (1) The prefiling order
violates his constitutional right of access to the courts, under both the federal
and state constitutions, because it is not supported by evidence that the
qualifying lawsuits were frivolous, truly harassing or burdensome; (2) the
prefiling order violates his First Amendment rights because it is a prior
restraint on his speech yet does not pass muster under the constitutional
standards for imposing a prior restraint; (3) the prefiling order violates his
First Amendment right to free speech because it is not the least restrictive
means of achieving its desired objective of controlling his abusive litigation;
(4) the prefiling order violates his First Amendment right to free speech
because it restricts his right to “core” political speech criticizing or
challenging governmental activities and thus is viewpoint discriminatory and
yet, again, does not satisfy the constitutional standard for imposing a prior
restraint on his speech; (5) the prefiling order violates his federal
constitutional right to equal protection of the law, because it subjects him to a
restriction on his access to the courts that does not apply to parties
represented by counsel or to other attorneys who represent a client; and (6)
because all five of the qualifying lawsuits were actions brought against
governmental entities, they are absolutely privileged under the First
Amendment and thus cannot serve as the basis for a determination he is a
vexatious litigant.13
13 In his reply brief, he asserts another argument: the prefiling order
“punishes” him for employing lawful means of seeking redress for grievances
over governmental actions. This argument does not clearly pertain to any of
the constitutional arguments tendered in his opening brief. It appears to be a
new issue, and we disregard it. (See Bitner v. Department of Corrections &
Rehabilitation, supra, 87 Cal.App.5th at p. 1065, fn. 3 [“ ‘As a general rule,
points not addressed until a reply brief will not be considered unless good
23
These are serious claims. Made in all of about 13 pages of the opening
brief which, on average, is about two pages per constitutional issue. This
calls to mind some of the most basic advice for litigants on appeal: selectivity
in choosing appellate issues is critical. As a leading commentator has put it,
“[t]hink carefully before raising multiple issues on appeal. ‘More’ is not
necessarily ‘better.’ ” (Eisenberg et al., Cal. Practice Guide: Civil Appeals
and Writs (The Rutter Group 2026) ¶ 9:19, pp. 5-6.) As we have explained,
an appellant must proffer a cogent legal argument, supported by legal
authority and analysis to frame an issue for our review. A “kitchen sink”
approach to appellate advocacy is rarely effective to state a cognizable
appellate argument. And it is ineffective here.
California courts have repeatedly upheld the vexatious litigant
framework against constitutional attack. (See Moran v. Murtaugh Miller
Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786; Fink v. Shemtov (2010)
180 Cal.App.4th 1160, 1170; Kobayashi v. Superior Court (2009)
175 Cal.App.4th 536, 541; Wolfgram v. Wells Fargo Bank (1997)
53 Cal.App.4th 43 (Wolfgram); Muller v. Tanner (1969) 2 Cal.App.3d 445,
450-454; Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521 (Taliaferro); accord,
Karnazes v. The Lauriedale Homeowners Assn., supra, 96 Cal.App.5th at
p. 280 [“ ‘California’s vexatious litigant statutes are constitutional’ ”]; see also
In re Whitaker (1992) 6 Cal.App.4th 54, 56 [“[appellant] is again contending
that the vexatious litigant statutes are unconstitutional, an argument we
expressly rejected in one of his cases only last year. This identical argument
has also been rejected by other divisions of this court in cases in which he
was a party. By coming forward again with this argument, [appellant] is
reason is shown for failing to address them earlier’ ”]; accord, United Grand,
supra, 36 Cal.App.5th at p. 158.)
24
engaging in frivolous conduct”].) So too has the Ninth Circuit. (See Pierce v.
Cantil-Sakauye (9th Cir. 2016) 628 Fed.Appx. 548 (Pierce); Wolfe v. George
(9th Cir. 2007) 486 F.3d 1120 (Wolfe).)
We refrain from exhaustively surveying that body of constitutional law
or delving into any particular case in any depth. But for a single appellate
decision in this area (Wolfgram, supra, 53 Cal.App.4th 43), Frear has not
cited, discussed or analyzed any of it.
For the most part, Frear’s constitutional arguments are based on
assertions of broad principles of constitutional law drawn from cases
involving different factual situations than the one presented here, and he
makes no attempt to show that the actual questions presented in any of the
cases he cites are in any way analogous to the imposition of a vexatious
litigant prefiling order.
In short, and as we will further explain, most of his constitutional
arguments are inadequate and too undeveloped for us to consider. (See, e.g.,
Wolfgram, supra, 53 Cal.App.4th at p. 61, fn. 11 [deeming constitutional
challenge to vexatious litigant statutory scheme waived “for lack of argument
heading or analysis”].) As this court said decades ago when upholding the
constitutionality of the vexatious litigant statutes, “we must approach this
question with all of the usual presumptions and intendments in favor of
constitutionality,” and “[a]ll doubts must be resolved in favor of the statute.”
(Taliaferro, supra, 236 Cal.App.2d at p. 525.) Frear has not overcome that
presumption.
Given the extremely cursory manner in which Frear addresses each
constitutional point, we will do the same.
25
1. Evidence of Frivolousness, Harassment or Burden
As specified more clearly in his reply brief, Frear asserts the prefiling
order violates his constitutional right of access to the courts, under both the
federal and state constitutions, because it is not supported by evidence that
the qualifying lawsuits were frivolous, truly harassing or burdensome. We
summarily reject this argument.
Frear has not summarized any of the factual background or
circumstances of those lawsuits, and so the entire factual predicate of this
argument—i.e., the absence of substantial evidence they were harassing or
burdensome—is forfeited. (See, e.g., Slone v. El Centro Regional Medical
Center (2024) 106 Cal.App.5th 1160, 1173-1175 [holding substantial evidence
arguments forfeited due to incomplete, one-sided discussion of evidence].) “In
every appeal, the appellant has the duty to fairly summarize all of the facts
in the light most favorable to the judgment.” (Id. at p. 1173.) To do this,
“appellants cannot recite only evidence in their favor, but must ‘ “set forth in
their brief all the material evidence on the point and not merely their own
evidence. Unless this is done the error is deemed to be waived.” ’ ” (Ibid.)
Frear has not done this.
We could stop there, but this argument is forfeited not only factually
but also legally. Frear’s argument that a showing of frivolousness is
constitutionally required is directly refuted by Wolfgram, supra,
53 Cal.App.4th 43, a case Frear merely cites but does not discuss or analyze.
Wolfgram held the statute does not impermissibly chill the right to petition
or penalize the filing of unsuccessful colorable suits. (Id. at p. 59.) It
explained the vexatious litigant statute reflects the understanding that a pro
per litigant who has filed five unmeritorious, though potentially colorable
lawsuits, “has been using the court system inappropriately and will continue
26
to do so.” (Id. at p. 57.) “The rationale is that there is a limit to how many
causes of action an individual is likely to accrue.” (Id. at p. 49.) Wolfgram
specifically held that “[t]he fact that the statute does not include a
requirement that the five losing suits be frivolous does not render it
unconstitutional.” (Id. at p. 58.)
Without discussing Wolfgram or examining its analysis (or even
acknowledging its holding), Frear asks us to re-examine the decision in light
of more recent federal case law. He mentions in passing two United States
Supreme Court cases that he implies have abrogated Wolfgram but does not
discuss or analyze those cases either. (See Christopher v. Harbury (2002)
536 U.S. 403 [addressing elements of cause of action for unconstitutional
denial of access to courts]; BE & K Const. Co. v. NLRB (2002) 536 U.S. 516
[First Amendment protects unsuccessful but objectively reasonable lawsuit
from liability under federal labor law]; but see BE & K Const. Co. at p. 537
[“nothing in our holding today should be read to question the validity of
common litigation sanctions imposed by courts themselves—such as those
authorized under Rule 11 of the Federal Rules of Civil Procedure—or the
validity of statutory provisions that merely authorize the imposition of
attorney’s fees on a losing plaintiff”].)
He also asserts California should follow the federal standard for
vexatious litigants that the Ninth Circuit has adopted (see Ringgold-
Lockhart v. County of Los Angeles (9th Cir. 2014) 761 F.3d 1057, 1062) but
does not explain why that standard is constitutionally required nor how it
renders California’s framework unconstitutional. This problem is all the
more glaring because, as we have noted, the Ninth Circuit has upheld the
constitutionality of California’s vexatious litigant framework. (See Pierce,
supra, 628 Fed.Appx. 548 [applying heightened scrutiny]; Wolfe, supra,
27
486 F.3d 1120.) Its most recent opinion concluded, “California has
‘sufficiently important’ interests [citation] in ensuring the orderly resolution
of disputes and protecting [litigants] and courts from vexatious litigants” and
the statutory framework is “ ‘closely tailored,’ [citation] to advance these
interests.” (Pierce, at p. 549.)
Frear’s slap-dash treatment of this constitutional question is not
sufficient to state a cognizable issue on appeal. We will not and do not
consider it on the merits.
2. Prior Restraint
The same is true of Frear’s next argument: that the prefiling order
violates the First Amendment because it is a prior restraint on his speech yet
does not pass muster under the constitutional standards for imposing a prior
restraint.
Wolfgram rejected this argument too and held that a prefiling order
imposed on a vexatious litigant isn’t a prior restraint. (See Wolfgram, supra,
53 Cal.App.2d at pp. 59-60.) It explained, “The prefiling order component of
the vexatious litigant statute is a necessary method of curbing those for
whom litigation has become a game,” and is only a “partial restriction on the
ability to file suit” that has never “been held to be a ‘prior restraint’ ”
requiring a showing of clear and present danger and concomitant procedural
safeguards.” (Id. at p. 60.) It explained, rather, that “[t]o the extent it keeps
vexatious litigants from clogging courts, it is closer to ‘licensing or permit
systems which are administered pursuant to narrowly drawn, reasonable and
definite standards’ which represent ‘government’s only practical means of
managing competing uses of public facilities[.]’ [Citation.] When a vexatious
litigant knocks on the courthouse door with a colorable claim, he may enter.”
(Ibid.; see also Luckett v. Panos (2008) 161 Cal.App.4th 77, 81 (Luckett)
28
[Wolfgram “squarely held that the operation of California’s vexatious litigant
statutes [does] not offend the right to petition—basically because a vexatious
litigant still retains the right to bring lawsuits even after a vexatious litigant
determination” and “explained that the vexatious litigant statutes are
narrowly drawn and reasonable in promoting the conservation of public
judicial resources. [Citation.] Being narrowly drawn, California’s vexatious
litigant statutes allow a vexatious litigant to continue to file lawsuits”].) To
the extent Frear is suggesting Wolfgram was wrong on this point too, he has
failed to say so expressly much less present a coherent, developed legal
argument explaining why.
More generally (and Wolfgram notwithstanding), Frear also fails to
explain how a prefiling order imposed on a vexatious litigant is a prior
restraint. Generally stated, the vice of a prior restraint is that it enjoins
expressive or petitioning activity before any determination that the activity
may be lawfully regulated notwithstanding the First Amendment. (See
generally Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141,
1148 [holding that permanent injunction barring repetition of statements
found at trial to be defamatory is not a prior restraint]; see also California
Chamber of Commerce v. Council for Education and Research on Toxics (9th
Cir. 2022) 29 F.4th 468, 481-482 [where plaintiff established probability of
proving that litigation to enforce consumer labeling law is unconstitutional,
preliminary injunction enjoining such litigation “is not an unconstitutional or
otherwise impermissible prior restraint”].) Even the authority Frear cites (in
all of one sentence) draws this distinction. (See Alexander v. United States
(1993) 509 U.S. 544, 551 [distinguishing between prior restraint and
punishment for past criminal conduct; “[t]he constitutional infirmity in
nearly all of our prior restraint cases involving obscene material . . . was that
29
the Government had seized or otherwise restrained materials suspected of
being obscene without a prior judicial determination that they were in fact
so”].) Frear does not meaningfully address the doctrine of prior restraint
other than in extremely general terms, and in so doing fails to explain how a
prefiling order entered after a pro per litigant has been judicially determined
to have repeatedly abused the court system in one or more ways specified by
section 391 constitutes a prohibited prior restraint. (See also California
Chamber of Commerce, at p. 481, fn. 17 [“enjoining prospective lawsuits does
not per se violate the First Amendment”].)
In short, his prior restraint argument is conclusory, undeveloped and so
superficial that it defies analysis.
In his reply brief, Frear says the prefiling order is a prior restraint
because it prevents him from “exercising [his] First Amendment right[] to
communicate at the very least for the time period it takes for [him] to seek
leave of court to file or pursue an action.” By raising this point in his reply
brief he has deprived the County of a chance to respond and therefore has
waived it. (See LAOSD Asbestos Cases (2026) 118 Cal.App.5th 1041, 1060-
1061.) And waiver notwithstanding, he cites no authority supporting that
premise, which is by no means self-evident and, if anything, wrong. Frear is
free to file any lawsuit he wishes as long as he is represented by counsel, and
even under the prefiling order he has the right to go to court and
communicate with a judge concerning any lawsuit he wishes to bring in pro
per, in an effort to persuade the judge to allow him to proceed with it. He
need only show that such a lawsuit has merit and is not being filed for an
improper purpose. (See § 391.7, subd. (b).) The statute thus does not deprive
him of the right to petition the court. Indeed, federal case law he cites in his
reply brief that he portrays as somehow favorable to his position upheld the
30
constitutionality of a prefiling order entered in federal court. (See Pavilonis
v. King (1st Cir. 1980) 626 F.2d 1075, 1078 [upholding prefiling order
imposed on vexatious litigant under federal All Writs Act; “[W]e reject
[appellant’s] argument that enjoining litigation is unconstitutional”].)
Finally, even if Frear had presented a developed, cognizable legal
argument that this limited burden constitutes a prior restraint (he hasn’t), he
cites no principle of constitutional law suggesting that it is an unlawful one:
i.e., that it is a constitutional burden so weighty that it trumps the state’s
interest in managing abuses of its courts by vexatious litigants.14 He doesn’t
even discuss the countervailing interests involved. That is yet another
omission in his highly superficial, undeveloped treatment of this question.
Simply put, here again, we will not decide the merits of whether the
prefiling order imposed on Frear constitutes an unconstitutional,
impermissible prior restraint because Frear has not adequately briefed that
question. It is forfeited.
3. Overbreadth
Frear asserts the prefiling order violates his First Amendment right to
free speech because it is not the least restrictive means of achieving its
desired objective of controlling his abusive litigation. We summarily reject
14 The only case he cites, Roman Catholic Diocese of Brooklyn v. Cuomo
(2020) 592 U.S. 14, in no way suggest this. It is a per curiam opinion issuing
an emergency injunction pending appeal of an executive order promulgated
during the COVID pandemic that imposed limits on in-person gatherings for
religious ceremonies. The Supreme Court enjoined it from taking effect
during appeals to the Second Circuit based on a strong showing of probability
of success that the regulation violated the free exercise clause and the
irreparable harm it would cause to the great number of people who would be
denied the ability to attend in-person services. It is irrelevant.
31
this argument. It too is undeveloped and cites no relevant supporting legal
authority.
California courts have held that the vexatious litigant framework is not
constitutionally overbroad, but Frear neither cites nor discusses any of those
cases. (See Kobayashi, supra, 175 Cal.App.4th at p. 541 [“California’s
vexatious litigant statutes are constitutional because they allow vexatious
litigants to keep filing lawsuits; the statutes are narrowly drawn so that
vexatious litigants simply must comply with reasonable limitations, such as
obtaining a prefiling order”]; see also Wolfgram, supra, 53 Cal.App.4th at
p. 60; Luckett, supra, 161 Cal.App.4th at pp. 80-81.)
So too has the Ninth Circuit, again in decisions Frear has not cited. It
has said California’s vexatious litigant framework “is not overbroad, because
there is no constitutional right to file frivolous litigation. ‘Just as false
statements are not immunized by the First Amendment right to freedom of
speech, . . . baseless litigation is not immunized by the First Amendment
right to petition.’ Under the California statute, a vexatious litigant may file
potentially meritorious claims not intended solely to harass or delay, so the
courthouse doors are not closed to him.” (Wolfe, supra, 486 F.3d at p. 1125,
fns. omitted; see also Pierce, supra, 628 Fed.Appx. at p. 549 [vexatious
litigant statute withstands strict scrutiny constitutional review; narrowly
tailored because it “calls for an individualized determination that a litigant is
vexatious based on specific instances of harassing or frivolous litigation
tactics”].)
Acknowledging none of this legal authority, Frear says that there are
less restrictive means of curtailing his abusive litigation given his status as a
licensed member of the California bar which “subjects him to the applicable
rules and ethical considerations and the oversight of the court . . . and . . . the
32
California State Bar.” We do not agree. Although the conduct of licensed
members of the State Bar can be policed through enforcement of the ethical
rules, their conduct also can be policed through measures equally applicable
to pro per litigants who are nonlawyers, such as through the imposition of
judicial sanctions; yet, the availability of sanctions to curb litigation abuse
has not led courts to hold the vexatious litigant remedies unconstitutionally
overbroad. What is more, whatever theoretical constraints the threat of
State Bar discipline and/or judicial sanctions may pose to Frear in his
capacity as a licensed member of the State Bar, they have proved ineffective
in curbing his torrent of unsuccessful personal litigation.15
Frear also asserts the prefiling order is not narrowly tailored because
“the injunction is for life, unless he can convince a judge to modify it.”
Again, this point is directly answered by California case law he has not cited.
It explains, “[T]here is nothing in the Wolfgram analysis that suggests any
constitutional problem with a vexatious litigant determination being
permanent. If the vexatious litigant is still being afforded his or her right to
petition in the immediate aftermath of a vexatious litigant determination and
imposition of a prefiling order, he or she necessarily will retain those same
constitutional rights for the indefinite future thereafter. The vexatious
litigant status simply subjects the person in that category to the possibility of
a reasonable restriction on his or her right to sue in propria persona, namely
15 So too have they proved ineffective in deterring him and/or his
appellate counsel of record from burdening this court in this appeal with
pages and pages of unsupported arguments that barely skate the surface of
serious charges of error and constitutional infirmity. His counsel is ethically
bound to disclose to this court legal authority from California “known . . . to
be directly adverse” to Frear’s position (Rules Prof. Conduct., rule 3.3(a)(2)),
and yet time and again has failed to do so.
33
the possibility of a bond requirement.” (Luckett, supra, 161 Cal.App.4th at
p. 82.)
4. Viewpoint Discrimination
Next, Frear argues the prefiling order violates his First Amendment
right to free speech because it restricts his right to “core” political speech
criticizing or challenging governmental activities and thus is viewpoint
discriminatory but, yet again, does not satisfy the constitutional standard for
imposing a prior restraint on his speech. We summarily reject this
convoluted argument, one we do not even really understand.
The prefiling order is facially neutral. It applies across the board to all
manner of civil litigation, without distinction. Frear’s position appears to boil
down to a complaint that “the trial court’s motivation behind the subject
order was not content agnostic but rather was intended to suppress and be
discriminatory against [Frear’s] speech challenging government activities.”
(Bolding omitted.) But from our reading of the record, all that happened is
that most if not all the 14 lawsuits identified in the County’s vexatious
litigant motion, including those that counted in the tally of adverse
determinations, were lawsuits Frear filed against governmental entities.
Frear points to no lawsuit he has ever filed pro per against a private party
that did not also name or involve a governmental entity as a defendant. That
doesn’t make the resulting prefiling order content discriminatory; it makes
Frear a vexatious litigant with a particular penchant for suing public
entities.
5. Equal Protection
Next is Frear’s argument that the prefiling order violates his federal
constitutional right to equal protection of the law, because it subjects him to a
restriction on his access to the courts that does not apply to parties
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represented by counsel or to other attorneys who represent a client. The
argument rests on a confusing jumble of First Amendment jurisprudence and
equal protection principles. To the extent this argument is intended as a
stand-alone First Amendment argument, we deem it forfeited for lack of an
intelligible legal argument captioned under a separate argument heading.
And he has also failed to present a cognizable legal argument that the
prefiling order violates equal protection.
This court has held the statutory framework does not
unconstitutionally discriminate against pro per litigants (Taliaferro, supra,
236 Cal.App.2d at p. 527) and our Supreme Court has held it doesn’t
discriminate against litigants of “ ‘modest means’ ” (Moran v. Murtaugh
Miller Meyer & Nelson L.L.P., supra, 40 Cal.4th at p. 786; see also Muller v.
Tanner, supra, 2 Cal.App.3d at p. 453 [“the classification of persons to whom
the [vexatious litigant] statute applies, and the terms imposed are
reasonable”].) Frear does not acknowledge any of this authority.
The Ninth Circuit also has upheld the vexatious litigant framework
against equal protection challenge. (Wolfe, supra, 486 F.3d at pp. 1126-1127.)
It explained: “Frequent pro se litigants are not a suspect class meriting strict
scrutiny. A state can rationally distinguish litigants who sue and lose often,
sue the same people for the same thing after they have lost, and so on, from
other litigants. When no bond is required, the California prefiling order does
little more than require sua sponte review of a vexatious litigant’s complaint
to see whether it states a claim before imposing the burden of litigation on a
defendant. The defendant could move to dismiss for the same reason, so the
statute is not a substantial or irrational bar to access.” (Ibid., fns. omitted.)
Frear does not cite or discuss any of this authority much less articulate
any persuasive reason to depart from it. A proper, cognizable appellate
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argument would do both. Analytically, Frear does not even address what
level of constitutional scrutiny is required to evaluate the prefiling order’s
constitutionality under equal protection principles. His argument is thus too
undeveloped for us to consider. It too is forfeited.
6. Privilege To Sue Public Entities and Public Figures
Finally, Frear argues the following in all of three sentences: “For the
reasons set forth above about the First Amendment protection, the actions
against government entities and its agents are privileged under the First
Amendment and thus cannot count towards the requisite five final adverse
determination. See New York Times v. Sullivan, 376 U. S. 254, 270. Just as
the First Amendment provides privilege for libelous or slanderous speech
(id.), it likewise provides [Frear] protection from his litigation against the
government and its agents or public figures or regarding public matters from
being counted as an adverse final decision.” On that basis, he asserts that
none of the five lawsuits found to qualify count, because they were all actions
brought against governmental entities or a “public figure.”
We have searched the preceding 49 pages of his opening brief in vain to
find “the reasons set forth above about the First Amendment protection” that
support this sweeping legal contention. We can’t find them. Nor are they to
be found in Frear’s bare, unexplained citation to New York Times Co. v.
Sullivan, supra, 376 U.S. 254, a seminal First Amendment decision rendered
more than 60 years ago in the area of defamation law. A proper appellate
argument would explain the reasoning of that decision; the extent to which
its principles have been expanded and/or limited to other contexts in the
course of the last 60 years; and why the interests at stake in imposing a
damages award for defamation are comparable to the interests at stake in
adjudging someone a vexatious litigant.
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This argument is too undeveloped for us to consider. It too is forfeited.
DISPOSITION
The order is affirmed. Construing Astrid’s appeal as a petition for writ
of mandamus, the petition is denied.
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STEWART, P. J.
We concur.
RICHMAN, J.
MILLER, J.
Schmid et al. v. County of Sonoma (A172089)
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