Opinion
C099366
08-05-2024
JONATHAN ASSELIN-NORMAND, Plaintiff and Appellant, v. CROSSLAND SACRAMENTO et al., Defendants and Respondents
NOT TO BE PUBLISHED
Super. Ct. No. 34-2018-00228188-CU-CR-GDS
Duarte, J.
This case involves a vexatious litigant. From 2014 to 2018, plaintiff Jonathan Asselin-Normand, a resident of Canada proceeding in propria persona, brought suit against numerous hotels and other "lodging establishments" throughout California, alleging violations of the Unruh Civil Rights Act (Civ. Code, § 51, et seq.) and other claims. The lawsuits challenged, as unlawful age discrimination, the defendants' minimum age requirement; specifically, the policy and/or practice of refusing to rent rooms to people under a certain age, such as 21 years. In 2018, the trial court declared Asselin-Normand to be a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(1), ordered him to furnish security as a condition of prosecuting his complaint (§§ 391.3, subd. (a), 391.4), and imposed a prefiling order prohibiting him from filing any new litigation in propria persona without first obtaining leave of the presiding justice or judge (§ 391.7, subd. (a)). In 2022, nearly four years after this action was dismissed for failure to furnish the court-ordered security (§ 391.4), Asselin-Normand filed a motion to vacate the prefiling order and remove his name from the Judicial Council's vexatious litigant list under sections 391.8, subdivision (a) and 533. Asselin-Normand appeals from the trial court's order denying his motion. We affirm.
Undesignated statutory references are to the Code of Civil Procedure.
BACKGROUND
To provide proper context for the issues raised in this appeal, we summarize the relevant aspects of the substantive law and underlying proceedings.
The Unruh Civil Rights Act
The Unruh Civil Rights Act (Act) provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) Any person aggrieved by conduct violative of the Act may bring suit against the violator for damages and injunctive relief. (See Civ. Code, § 52, subds. (a), (c).)
Although Civil Code section 51.5 is not technically part of the Act (Semler v. General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1404), it provides similar protection against discrimination by business establishments. It states in part: "No business establishment . . . shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined in [the Act] . . ." (Civ. Code, § 51.5, subd. (a).)
The Act's purpose is "to secure to all persons equal access to public accommodations," regardless of their personal characteristics (e.g., race, religion, ancestry, etc.). (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1169 (Harris), superseded by statute on another ground in Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 664-665.) It is intended to eradicate arbitrary, invidious discrimination by business establishments, and stand "as a bulwark protecting each person's inherent right to 'full and equal' access to 'all business establishments.'" (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167.)
The Act's protection against discrimination is not confined to the specific categories listed in the statute. (Harris, supra, 52 Cal.3d at p. 1152 [the list is" 'illustrative rather than restrictive' "]; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 732 [the Act prohibits all arbitrary discrimination by business establishments, regardless of whether the ground for discrimination is expressly listed in the statute].) Although age is not a category listed in the Act, "California courts have applied the Act to discrimination based on age." (See Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1394 (Javorsky) [citing cases].) However, not all age-based discrimination is unlawful. (Pizarro v. Lamb's Players Theatre (2006) 135 Cal.App.4th 1171, 1175 [unlike other categories of discrimination listed in the Act, there is no general prohibition against all age-based discrimination]; Sargoy v. Resolution Trust Corp. (1992) 8 Cal.App.4th 1039, 1043 [neither the language of the Act itself nor case law interpreting the Act hold that all age-based discrimination is unlawful].) "Indeed, courts have recognized that age-based disparate treatment may be justified by the circumstances of the age group that is being favored, and treatment on the basis of age is less likely to perpetuate stereotypes than discrimination on the basis of immutable characteristics such as sex and race." (Javorsky, at p. 1400.)
"The 'fundamental purpose of the . . . Act is the elimination of antisocial discriminatory practices-not the elimination of socially beneficial ones.' [Citation.] Thus, the Act renders unlawful 'only arbitrary, invidious or unreasonable discrimination.' [Citations.] Discrimination may be reasonable, and not arbitrary, in light of the nature of the enterprise or its facilities, legitimate business interests (maintaining order, complying with legal requirements, and protecting business reputation or investment), and public policy supporting the disparate treatment." (Javorsky, supra, 242 Cal.App.4th at pp. 1394-1395; see Harris, supra, 52 Cal.3d at p. 1152 [businesses retain the right to" 'establish reasonable regulations that are rationally related to the services performed and facilities provided' "]; Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910, 925, fn. 8 ["Differential treatment is reasonable and nonarbitrary if there is a strong public policy in favor of the distinctions"].) "For example, it is permissible to exclude children from bars or adult bookstores because it is illegal to serve alcoholic beverages or to distribute' "harmful matter"' to minors. [Citation.] This sort of discrimination is not arbitrary because it is based on a 'compelling societal interest' [citation] and does not violate the Act." (Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 31.) Age-based distinctions have also been upheld in various other circumstances when justified by public policy considerations. (See, e.g., Javorsky, supra, 242 Cal.App.4th at pp. 1401-1408 [upholding age-based membership discount for "young professionals" (i.e., individuals 18 to 29)]; Pizarro v. Lamb's Players Theatre, supra, 135 Cal.App.4th at pp. 1175-1177 [upholding an age-based price discount for "baby-boomers"]); Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 15021505 [upholding policy of refusing to rent cars to drivers under 25]; Sargoy v. Resolution Trust Corp., supra, 8 Cal.App.4th at pp. 1042, 1046 [upholding policy of offering higher savings-account interest rates to seniors]; Starkman v. Mann Theatres Corp. (1991) 227 Cal.App.3d 1491, 1497-1501 [upholding age-based discounts for children and seniors].)
Complaint
In March 2018, Asselin-Normand, a 21-year-old resident of Canada proceeding in propria persona, brought suit against Crossland Sacramento and four other Sacramento area hotels (collectively defendants), including Marriott Rancho Cordova. Like his previous lawsuits against other California "lodging establishments," Asselin-Normand asserted claims based on defendants' purported discriminatory policy and/or practice of refusing to rent rooms to people under a certain age (here, 21 years old). According to Asselin-Normand, he was prevented from staying at defendants' hotels when he was 19 years old based on their unlawful minimum age requirement, which violated the Act and related statutory provision Civil Code section 51.5. The complaint sought monetary, injunctive, and declaratory relief.
Vexatious Litigant Motion
In October 2018, HV-Houston Development, Inc., d/b/a Marriott Sacramento Rancho Cordova (Marriott) moved for an order declaring Asselin-Normand to be a vexatious litigant within the meaning of section 391, subdivision (b), requiring him to furnish security as a condition of prosecuting his complaint (§ 391.3, subd. (a)), and imposing a prefiling order prohibiting him from filing any new litigation in propria persona without first obtaining leave of the presiding justice or judge (§ 391.7, subd. (a)). As relevant here, Marriott argued that Asselin-Normand was a vexatious litigant under section 391, subdivision (b)(1) because he had, in the immediately preceding seven-year period, commenced, prosecuted, or maintained in propria persona at least five litigations that were finally determined adversely to him. In making this argument, Marriott claimed that Asselin-Normand was a "serial Unruh Act litigant who ha[d] filed more than 37 lawsuits in California against more than 60 small hotels, alleging that a purported policy not to rent lodging to those under 21 violated his civil rights." Marriott further claimed that "while appearing in pro per, thirteen actions [had] been adversely decided against [Asselin-Normand] in the last two years-well more than the five required by [section] 391(b)(1)." According to Marriott, a vexatious litigant finding was warranted because Asselin-Normand had "an 'incurable litigation complex'" and had "become an 'insufferable nuisance.'" As for security, Marriott argued that, because there was no reasonable probability Asselin-Normand would prevail in this action, he should be required to furnish security in the amount of $33,695.
In response, Asselin-Normand filed a vague and conclusory opposition. His arguments, which span approximately one page, do not include any legal analysis addressing the merits of Marriott's motion. Instead, Asselin-Normand requested a continuance to file a motion for sanctions, explaining that such a motion would be filed if Marriott failed to withdraw or "appropriately correct" its vexatious litigant motion. Without elaboration, Asselin-Normand asserted that Marriott's motion lacked merit because a different defendant in this case had "unsuccessfully challenged the sufficiency of [his] claim" by way of a demurrer.
In November 2018, the trial court granted Marriott's motion, declaring Asselin-Normand to be a vexatious litigant under section 391, subdivision (b)(1). In so ruling, the court found that Asselin-Normand had maintained five or more unsuccessful "civil actions" in the preceding seven years, noting that nine separate civil actions as well as the "appeal of at least five of these civil actions" were "resolved adversely" to Asselin-Normand. The court additionally found that Asselin-Normand had no reasonable probability of prevailing in this action, and therefore ordered him to furnish $25,000 as security to continue prosecuting his complaint (§ 391.3, subd. (a)). In so finding, the court explained: "[T]here is no authority which demonstrates that the Act prohibits discrimination against minors who are not accompanied by an adult and the express provisions of Civil Code § 1865(d), permitting an innkeeper to require a minor seeking accommodations to be accompanied by an adult who assumes full liability for any and all obligations incurred by the minor. Accordingly, this court is persuaded that [Asselin- Normand] has no 'reasonable probability' of prevailing in the present litigation and notably, the opposition does not cite any legal authority upon which a different conclusion could be based." (Underlining omitted and footnote added.) Finally, the court imposed a prefiling order (§ 391.7) requiring Asselin-Normand to obtain permission from the presiding judge or justice before filing any other action in propria persona.
In relevant part, subdivision (d) of Civil Code section 1865 provides: "As pertains to a minor, the rights of an innkeeper include, but are not limited to, the following: [¶] Where a minor unaccompanied by an adult seeks accommodations, the innkeeper may require a parent or guardian of the minor, or another responsible adult, to assume, in writing, full liability for any and all proper charges and other obligations incurred by the minor for accommodations, food and beverages, and other services provided by or through the innkeeper, as well as for any and all injuries or damage caused by the minor to any person or property."
In January 2019, a judgment of dismissal was entered after Asselin-Normand failed to furnish the court-ordered security. (§ 391.4.) No appeal was filed.
Motion to Vacate the Prefiling Order
Nearly four years later, in December 2022, Asselin-Normand filed a motion to vacate the prefiling order and remove his name from the Judicial Council's vexatious litigant list under sections 391.8, subdivision (a) and 533. As a basis for relief, he cited the following grounds: (1) a change in law or "clarification of arguable authorities"; (2) a change in the facts upon which the order was granted; and (3) the "ends of justice."
As noted post, a prefiling order issued under section 391.7 is an injunction. (Blizzard Energy, Inc. v. Schaefers (2022) 85 Cal.App.5th 802, 805; In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1347 (Rifkin & Carty).) As such, it may be modified as provided in section 533, which states: "In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order." (§ 533.)
As for the change in law, Asselin-Normand explained: "New case law put into question the findings in six of the adversely-determined litigations relied upon by [Marriott]. First, the Court of Appeal in Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138 strengthened what can be considered 'arbitrary' age discrimination under the Unruh Act. Second, the Supreme Court held that 'visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store.' (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1023.) Excluding the adverse litigations that found a minimum age policy of 21 was not arbitrary discrimination or that [Asselin-Normand] lacked standing when visiting a website, there remains only three of [Marriott's] cited adverse litigations (where [Asselin-Normand] was a minor)." Asselin-Normand, however, later clarified that "potentially five of the civil actions" relied upon by the trial court should not have been considered "adverse in light of the new Supreme Court cases," and that one of the cases relied upon by the trial court "should not have counted because it was under appeal."
As for the change in facts, Asselin-Normand claimed he had "mended his ways" since the prefiling order was granted by: (1) not actively litigating any case since February 2020 "per his recollection," not filing any new lawsuits over the past four years, and not having a plan or intent to file any new lawsuit; (2) meeting with a California bankruptcy attorney and a Canadian insolvency trustee, which (according to Asselin-Normand) demonstrated genuine remorse and an intent to pay the litigation costs he owed in connection with his prior unsuccessful lawsuits; and (3) paying costs to some of the "lien claimants" in this case (i.e., prevailing defendants) and "committing" to paying costs owed to other prevailing defendants "when feasible once he ha[d] finished studying cybersecurity and received sufficient income."
As for the "ends of justice," Asselin-Normand insisted it would be "unjust to maintain a vexatious litigant designation that relied on an incorrect premise." In support of his position, Asselin-Normand explained that the trial court found he had no reasonable probability of prevailing in this action "as a 'minor seeking accommodations,'" but the verified complaint alleged he was 19-years-old at the "time of the incident." (Bold type omitted.) According to Asselin-Normand, absent this "incorrect premise," the trial court would not have imposed a prefiling order. Asselin-Normand further asserted that Marriott's counsel "misstated the status" of one of the cases relied upon by the trial court in declaring him to be a vexatious litigant. According to Asselin-Normand, the judgment in that case was not final, as the appeal had not been resolved adversely to him at the time the vexatious litigant motion was decided. Finally, Asselin-Normand noted that the defendants in this case and other lodging establishments in California no longer need "protection" from him in the form of a prefiling order because he was 25 years old and could no longer raise the same age discrimination claims asserted in his previous lawsuits.
In March 2023, the trial court issued a minute order denying Asselin-Normand's motion. A formal written order consistent with the minute order was issued in September 2023. In finding that Asselin-Normand had failed to establish he was entitled to relief from the prefiling order, the trial court explained:
"Asselin-Normand . . . argues [Marriott] and other similar businesses no longer need protection from him because he is 25 years old and the age policies [he had previously challenged] no longer apply. [Asselin-Normand] argues he has 'mended his ways' because it has been more than four years since he has filed a new case and he is not expecting or planning on conducting other litigation. However, [Asselin-Normand's] former litigation was based on suing hotels for age discrimination because he was under 21 and, therefore, unable to reserve lodging. Once [Asselin-Normand] turned 21, which was four years ago, [his] claims were no longer viable. Thus, it does not necessarily follow that [Asselin-Normand] has not filed a case for four years because he has mended his ways. Rather, the basis of his claims (i.e., being under 21) was no longer present.
"[Asselin-Norman] then claims he has started paying costs to all but one of the lien claimants appearing in this case [(i.e., prevailing defendants)]. [Citation.] Attached to [Asselin-Normand's] declaration are copies of three checks: one to Columbiana 619 Investments, LLC in the amount of $1,698.30; one to Am.'s Best Value Inn of Novato in the amount of $1,612.16; and one to Villa Inn in the amount of $1,612.16. [Citation.] He claims he will pay further costs once he has finished studying cybersecurity and receives sufficient income. [Citation.] However, he then states if the prefiling order is not vacated, he 'cannot commit to not resorting to debt restructuring as allowed, because it would raise concerns in his mind, respectfully, on the fairness of such payment efforts despite the clarification in the law, and other grounds argued in this Motion.' [Citation.]
"While [Asselin-Normand's] payments to three lien claimants is an attempt at restitution, it is insufficient without more to vacate the prefiling order, especially in light of [Asselin-Normand's] comment that he will not commit to further restitution unless the Court grants his motion.
"Based on the foregoing, the Court is not persuaded that [Asselin-Normand] has mended his ways such that the prefiling order should be vacated. [Asselin-Normand] makes no apology for his litigious behavior and instead blames others and the courts for making erroneous decisions. [Asselin-Normand] has shown an unwillingness to confront the facts upon which the prior order was made, and has not conveyed any sort of genuine remorse. His efforts at restitution are minimal and further restitution efforts are conditioned only upon this Court removing the prefiling order. Finally, there is no demonstration that he has given up his habit of suing people as a way of life, rather than no longer being young enough to maintain his claims. Accordingly, [Asselin-Normand's] motion is DENIED."
In denying the motion, the trial court rejected Asselin-Normand's arguments concerning a change in law and the purported misstatement made by Marriott's counsel in connection with the vexatious litigant motion; namely, counsel's assertion that Asselin-Normand had raised the "exact [same] claims" which had been rejected in other cases. The court stated: "None of [these] . . . arguments go to any factor the Court must evaluate to determine whether the prefiling order should be removed and [Asselin-Normand] does not cite to any legal authority to the contrary. Essentially, [Asselin-Normand's] argument is that this Court, and other lower courts, made errors in their rulings against him and that recent case law may have resulted in different outcomes. This is not the type of 'material change in the facts' discussed in [the case law], nor is this a motion for reconsideration. On this motion the Court must determine whether [Asselin-Normand] has sufficiently established he has mended his ways."
Appeal
Asselin-Normand timely appealed.
DISCUSSION
Asselin-Normand argues the trial court erred in denying his motion to vacate the prefiling order and remove his name from the Judicial Council's list of vexatious litigants. We disagree.
I
Applicable Legal Principles and Standard of Review
The purpose of the vexatious litigant statutory scheme is to curb the misuse of the court system by the persistent and obsessive litigant who repeatedly files groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and not only places an unreasonable burden on the courts but also prejudices other parties waiting their turn before the courts. (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169; Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406; In re Kinney (2011) 201 Cal.App.4th 951, 957-958.) The statutory scheme "provides a 'means of moderating a vexatious litigant's tendency to engage in meritless litigation.'" (Garcia, at p. 406.)
To be declared a vexatious litigant, a party must come within one of the four definitions set forth in section 391, subdivision (b). As relevant here, section 391, subdivision (b)(1) defines a vexatious litigant as 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 or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing." Under the statutory scheme, "litigation" means any civil action or proceeding, "commenced, maintained or pending in any state or federal court" (§ 391, subd. (a)), and it includes any appeal or writ proceeding. (Garcia v. Lacey, supra, 231 Cal.App.4th at p. 406; McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216, overruled on other grounds by John v. Superior Court (2016) 63 Cal.4th 91.) Qualifying litigations for purposes of the vexatious litigant law include separate appeals and writ petitions from multiple orders within the same case that are finally determined adversely to the person. (In re Marriage of Falcone &Fyke (2012) 203 Cal.App.4th 964, 1005-1007 [wife declared vexatious litigant under section 391, subdivision (b)(1) based on unsuccessful writ petitions and appeals taken from various orders in marital dissolution action].)
A litigation is" 'finally determined adversely' to the litigant under section 391 if they do not win the action or proceeding they began - including appeals they have voluntarily dismissed and those involuntarily dismissed for procedural defects - and the 'avenues for direct review (appeal) have been exhausted or the time for appeal has expired.'" (Karnazes v. The Lauriedale Homeowners Assn. (2023) 96 Cal.App.5th 275, 280; see Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173-1174 [appeal dismissed as untimely].)
"The [vexatious litigant] statutory scheme provides two sets of remedies. First, in pending litigation, 'the defendant may move for an order requiring the plaintiff to furnish security on the ground the plaintiff is a vexatious litigant and has no reasonable probability of prevailing against the moving defendant.' [Citations.] If the court finds in the defendant's favor on these points, it orders the plaintiff to furnish security in an amount fixed by the court. [Citation.] Failure to provide the security is grounds for dismissal." (Rifkin &Carty, supra, 234 Cal.App.4th at p. 1345.) The security is intended to compensate the defendant for its reasonable costs and attorney fees incurred in defending the suit. (Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 49.) The second remedy" '" 'operates beyond the pending case' and authorizes a court to enter a 'prefiling order' that prohibits a vexatious litigant from filing any new litigation in propria persona without first obtaining permission from the presiding judge." '" (Rifkin &Carty, at p. 1345.) "This prefiling requirement 'does not deny the vexatious litigant access to the courts, but operates solely to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs.'" (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 618.)
"A vexatious litigant subject to a prefiling order under [s]ection 391.7 may file an application to vacate the prefiling order and remove his or her name from the Judicial Council's list of vexatious litigants subject to prefiling orders." (§ 391.8, subd. (a).) The trial court "may" grant the application "upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order." (§ 391.8, subd. (c), italics added; see also Rifkin &Carty, supra, 234 Cal.App.4th at p. 1346.)
A prefiling order issued pursuant to section 391.7 is an injunction. (Blizzard Energy, Inc. v. Schaefers, supra, 85 Cal.App.5th at p. 805; Rifkin &Carty, supra, 234 Cal.App.4th at p. 1347.) As such, the decision as to whether to grant a motion to vacate the prefiling order rests in the sound discretion of the trial court, and we review that determination for an abuse of discretion. (In re Butler (2018) 4 Cal.5th 728, 738; Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.)
"The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.) Regarding the substantial evidence standard, when the trial court" 'has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment [or order].'" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.) Instead," 'where the issue on appeal turns on a failure of proof . . ., the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant'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." '" (Id. at p. 466.)
The abuse of discretion standard of review that we must apply to the trial court's ruling does not permit us to disturb that ruling unless it "exceeds the bounds of reason" and results in "a miscarriage of justice." (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1036-1037.)" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
II Analysis
As an initial matter, we note that while Asselin-Normand challenges the order denying his motion to vacate the prefiling order, he devotes a substantial portion of his briefing (as he did in the trial court) to discussing the merits of the vexatious litigant determination and the validity of the prefiling order, which were subject to appellate review following the issuance of the prefiling order in 2018. (In re Marriage of Deal, supra, 45 Cal.App.5th at pp. 618-619.) In so doing, Asselin-Normand fails to appreciate that our review is limited to examining whether the trial court erred in denying his motion to vacate the prefiling order. We are not authorized to review the validity of that order. (See Rifkin &Carty, supra, 234 Cal.App.4th at p. 1347 ["It is well established that an appellate court may not review a decision or order from which an appeal could previously have been taken"]; § 906.) Thus, we need not and do not address Asselin-Normand's collateral attacks on the prefiling order, including an argument he makes for the first time on appeal. Instead, we decide whether the trial court abused its discretion in denying Asselin-Normand's motion to vacate that order. As we next explain, no basis for reversal appears.
As for the first prong of section 391.8, subdivision (c)--whether a material change in facts has occurred--Asselin-Normand relies on Luckett v. Panos (2008) 161 Cal.App.4th 77. In that case, which was decided before the enactment of 391.8, the appellate court identified several factors that "necessarily bear on whether a vexatious litigant has 'mended his ways'" for purposes of vacating a prefiling order. Those factors, which tend to show a material change in facts upon which the order was granted, include: (1) "a propensity for honesty," which includes "an accurate confrontation with the facts on which the prior vexatious litigant finding was made, as well as intervening facts that might not put the application [to vacate the prefiling order] in a favorable light"; (2) "some genuine remorse for the costs of litigation inflicted on the defendants who were the object of previous lawsuits"; (3) "some genuine effort at restitution toward the previous victims of his litigation, including actual payment of costs orders made by the courts in that litigation"; and (4) "actually giv[ing] up the habit of suing people as a way of life." (Luckett, at pp. 93-94.)
In 2011, the Legislature added section 391.8 to the statutory scheme to specify the means by which vexatious litigants may seek to vacate a prefiling order and remove the vexatious litigant's name from the Judicial Council's list of vexatious litigants subject to such orders. (Stats. 2011, ch. 49, § 2.)
We find no error in the trial court's determination that Asselin-Normand failed to show a material change in facts. In his motion papers, Asselin-Normand presented a selfserving perspective on his previous unsuccessful lawsuits. As such, he failed to demonstrate a "propensity for honesty," which requires an accurate confrontation with the facts on which the prior vexatious litigant finding was made. At no point did Asselin-Normand acknowledge that his age discrimination claims had no merit. Instead, he attempted to relitigate the vexatious litigant finding and the validity of the prefiling order. As for the other Luckett factors, we cannot conclude the record compels a finding of genuine remorse on the part of Asselin-Normand or that he had actually abandoned his vexatiousness. Indeed, as his trial and appellate briefing make clear, Asselin-Normand continues to argue the merits of the vexatious litigant finding and prefiling order. And while there is some evidence of restitution towards the victims of Asselin-Normand's prior unsuccessful litigation, we cannot say the trial court erred in finding that such restitution (payment of costs to three prevailing defendants) was "minimal," and therefore insufficient to show a material change in facts.
Similarly, we see no error in the trial court's determination that Asselin-Normand failed to show he had actually given up "suing people as a way of life." The evidence in the record does not compel a contrary finding.
As for the second prong of section 391.8, subdivision (c), we find no error in the trial court's determination that Asselin-Normand failed to show that the "ends of justice" would be served by vacating the prefiling order. As a basis for relief under this prong, Asselin-Normand insists the prefiling order was issued based on a "misleading" statement by Marriott's counsel in connection with the vexatious litigant determination; specifically, counsel's statement that the instant lawsuit raised the "exact [same] claims" rejected in prior cases. According to Asselin-Normand, the trial court would not have determined he had no reasonable probability of prevailing in this action had it known he was actually 19 years old (as opposed to a minor under 18) at the time of the events giving rise to this action. Asselin-Normand, however, made no attempt in the trial court (or now on appeal) to show that the merit of his age discrimination claims turned on whether or not he was a minor. He cites no authority showing that this distinction has any bearing on the merit of his claims. Thus, even assuming the trial court failed to recognize that he was 19 years old, there is no basis for concluding the prefiling order should be vacated because it was improperly imposed.
Finally, we are unpersuaded by Asselin-Normand's cursory contention that reversal is required because "new case law put into question the findings in six of the adversely determined litigations relied upon by [Marriott]" in moving for an order declaring him to be a vexatious litigant." In support of his position, Asselin-Normand cites, without any meaningful discussion, three cases, and then directs us to his trial court briefing, which (according to him) shows the specific "portions of the adverse determinations where the courts improperly applied what the new case law says." We need not address the merits of this undeveloped argument, and it is improper to simply incorporate by reference arguments presented in the trial court. (Placer County Local Agency Formation Commission v. Nevada County Local Agency Formation Commission (2006) 135 Cal.App.4th 793, 814-815 see Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [" 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived' "].)
In any event, having reviewed the cited cases, we are unpersuaded that reversal is required based on a change in the controlling law. (See Salazar v. Eastin, supra, 9 Cal.4th at p. 850 [court has inherent power to vacate an injunction upon a showing of a change in controlling law]; Welsch v. Goswick (1982) 130 Cal.App.3d 398, 404-405 [if an intervening change in the controlling law renders the injunction inequitable, refusal to vacate is an abuse of discretion].) None of the cases show that Asselin-Normand's age discrimination claims have merit under current law. Moreover, even assuming (as Asselin-Normand suggests) that, under current law, the age discrimination claims he alleged in five prior lawsuits were improperly dismissed for lack of standing, we see no basis for reversal. The record reveals that at least five litigations were determined adversely to Asselin-Normand within the relevant period, and that none of those determinations were based solely on a lack of standing.
In sum, because Asselin-Normand failed to satisfy either of the two prongs necessary for relief from the prefiling order (§ 391.8, subd. (c)), we conclude the trial court did not abuse its discretion in denying his motion.
DISPOSITION
The trial court's order denying Asselin-Normand's motion to vacate the prefiling order and remove his name from the Judicial Council's vexatious litigant list is affirmed. Marriott shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: Earl, P. J., J. Wiseman, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.