Opinion
H047106
05-29-2020
WILLIAM BROWN, Plaintiff and Appellant, v. M.S. EVANS, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. M82457)
In August 2007, the trial court entered a prefiling order declaring appellant William Brown a vexatious litigant. In May 2019, Brown filed an application for an order vacating the prefiling order and removing his name from the California Judicial Council's vexatious litigant list pursuant to Code of Civil Procedure section 391.8. The court denied the application, and Brown appeals that order.
All further unspecified statutory references are to the Code of Civil Procedure.
Finding no error, we will affirm.
I. PROCEDURAL HISTORY
According to his application, a prefiling order in which it was determined that Brown was a vexatious litigant under section 391.7 was entered by the trial court on August 8, 2007. That prefiling order was not attached to the application.
The underlying superior court action arose out of a January 2007 complaint filed by Brown against, among others, M.S. Evans, the warden of the state prison where Brown was incarcerated. After a judgment was entered on Evans's demurrer to the complaint, Brown appealed. In an opinion filed in July 2008, this court affirmed the judgment. (Brown v. Evans (Jul. 2, 2008, H031885) [nonpub. opn.].) Pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a), we take judicial notice of that opinion. (See ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 73, fn. 3; see also Flatley v. Mauro (2006) 39 Cal.4th 299, 306, fn. 2 [judicial notice of court materials appropriate to "help complete the context of this case"].) This court stated in the prior opinion that the judgment was entered on January 9, 2008, and it included the trial court's order finding Brown to be a vexatious litigant. We assume for purposes of this opinion that, as alleged in Brown's application, the trial court filed an initial prefiling order on August 8, 2007.
Brown requested that the court vacate the prefiling order and remove him from the Judicial Council's vexatious litigant list. He alleged in the application that the order had come about as a result of his having filed "complaints that were frivolous or not having merit." Brown asserted that after entry of the prefiling order, he had "come to understand the process in which a complaint is to be relied upon." Brown alleged that he had "changed his habits in filing of outrageous complaints[, and that s]ince 2007 [he had] learned what it takes and understands the criteria of a complaint/pleading." Brown stated further that he had not used civil process over "the past several years" except for the filing of a petition for writ of mandate in December 2018 in Kern County Superior Court, which was apparently voluntarily dismissed. The form application included a recital that there was an attachment listing all cases filed in the past five years in which Brown was a plaintiff, cross-complainant, or defendant, including a listing of the number of motions he had filed in each case and the number of requests for new litigation that he had filed. There was no such attachment to the application filed by Brown.
Brown attached to the petition a copy of an unexecuted, unfiled, and undated request for voluntary dismissal of petition for writ of mandate, reciting that he had filed a writ petition on December 10, 2018, and that he was requesting that the petition be dismissed. No further information about this proceeding is provided in the appellate record.
On May 30, 2019, the court filed its order denying Brown's application to vacate the prefiling order and to remove his name from the Judicial Council's vexatious litigant list.
Brown filed a timely notice of appeal from the order.
The order denying the application under section 391.8 to vacate the prefiling order is an appealable order. (See Luckett v. Panos (2008) 161 Cal.App.4th 77, 90 [order denying motion to vacate prefiling order construed as order refusing to dissolve permanent injunction, and thus an appealable order].)
After the filing of the notice of appeal, this court stayed the appeal due to Brown's failure to seek permission from the presiding justice of this court to file the appeal as required under section 391.7, subdivision (c). Brown thereafter filed a request to file new litigation as a vexatious litigant, which was granted.
II. DISCUSSION
A. Vexatious Litigant Statutes
"The vexatious litigant statutes (§§ 391-391.7) are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants. [Citation.]" (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169 (Shalant).) Under section 391, subdivision (b), a " '[v]exatious litigant' " is "a person who has, while acting in propria persona, initiated or prosecuted numerous meritless litigations, relitigated or attempted to relitigate matters previously determined against him or her, repeatedly pursued unmeritorious or frivolous tactics in litigation, or who has previously been declared a vexatious litigant in a related action." (Shalant, supra, at pp. 1169-1170.)
There are two "sets of remedies" provided in the vexatious litigant statutes. (In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1345 (Rifkin).) First, sections 391.1 through 391.6, enacted in 1963, provide "a means of moderating a vexatious litigant's tendency to engage in meritless litigation. [Citations.] Under these sections, a defendant may stay pending litigation by moving to require a vexatious litigant to furnish security if the court determines 'there is not a reasonable probability' the plaintiff will prevail. Failure to produce the ordered security results in dismissal of the litigation in favor of the defendant. [Citations.]" (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221 (Bravo).) The second aspect of the statutes is the prefiling order requirement of section 391.7, which " ' "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.' [Citation.]" (Shalant, supra, 51 Cal.4th at p. 1170.) In general under the vexatious litigant statutes, " ' "[l]itigation" ' means 'any civil action or proceeding, commenced, maintained or pending in any state or federal court.' (§ 391, subd. (a).)" (Rifkin, supra, at p. 1345.)
Under subdivision (a) of section 391.8, "[a] vexatious litigant subject to a prefiling order under Section 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." A vexatious litigant who has submitted a previous application that was denied must wait 12 months after such order to file a new application. (§ 391.8, subd. (b).) The 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." (Id., subd. (c); see Rifkin, supra, 234 Cal.App.4th at p. 1346.)
"A vexatious litigant subject to a prefiling order under Section 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. The application shall be filed in the court that entered the prefiling order, either in the action in which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to file new litigation under Section 391.7. The application shall be made before the justice or judge who entered the order, if that justice or judge is available. If that justice or judge who entered the order is not available, the application shall be made before the presiding justice or presiding judge, or his or her designee." (§ 391.8, subd. (a).)
B. Standard of Review
Under section 391.7, subdivision (a), the court, either upon motion by a party or upon the court's own motion, "may . . . enter a prefiling order." (Italics added.) The statute has been interpreted to afford "[t]he trial court . . . discretion in determining whether a person is a vexatious litigant." (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636.) On appeal, an order declaring a person a vexatious litigant is presumed correct, and the appellate court implies findings to support the trial court's ruling. (Bravo, supra, 99 Cal.App.4th at p. 219.) The statute governing applications to vacate prefiling orders at issue here, section 391.8, subdivision (c), similarly provides that the trial "court may vacate a prefiling order and order removal of a vexatious litigant's name from the Judicial Council's list of vexatious litigants subject to prefiling orders" based upon a showing of a material change of facts and that the ends of justice would be served by such order. (Italics added.) We conclude that an order granting or denying an application to vacate a prefiling order—like an order granting or denying a prefiling order itself—is reviewed on appeal for abuse of discretion.
An abuse of discretion occurs where it is shown that " 'the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].' [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 195.) It is the appellant's burden of showing from the record the existence of such an abuse of discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985 (Forthmann).)
C. The Court Did Not Err
Brown argues on appeal that the trial court should have granted his application to vacate the prefiling order. He contends that "[i]n the past twelve years[, he] ha[d] not filed any suits that were frivolous." He asserts multiple times in his brief that he had "changed his ways" since the prefiling order issued, thereby justifying the granting of his application under section 391.8.
Attached to Brown's appellate brief is a declaration signed by Brown on October 6, 2019, which declaration includes several attachments. "Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs." (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.) Accordingly, we will not consider Brown's declaration or the attachments thereto in addressing this appeal. --------
Brown's presentation on appeal is entirely conclusory. It is nothing more than assertions—unsupported by citation to the appellate record or to apposite legal authority—that he had changed his ways and he is no longer a person who files frivolous litigation. Brown's failure to include citations to the record in his appellate brief constitutes a violation of rule 8.204(a)(1)(C) of the California Rules of Court, which requires that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." Based upon his failure to cite to the record, we may deem Brown's contentions on appeal "to lack foundation and, thus, to be forfeited. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 407.) Further, Brown's failure to cite legal authority in support of his argument that the trial court erred leads us to conclude that his argument has been abandoned. (See People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284.) And Brown's failure to develop his appellate argument beyond the conclusory assertion that the application should have been granted because he has changed his ways causes us to find that his appellate challenge has been abandoned. (Nisei Farmers League v. Labor & Workforce Development Agency (2019) 30 Cal.App.5th 997, 1018 [arguments in briefs raised in perfunctory fashion will be deemed by the appellate court to be abandoned].)
Even were we to overlook the failings in Brown's appellate brief, we would conclude there was no error. The relevant statute, section 391.8, subdivision (c), explicitly provides that relief may be granted only if the vexatious litigant presents an application with "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." (Italics added.) These two requirements are conjunctive; both must be addressed and satisfied. Brown's application below alleged that he "ha[d] changed his habits in filing of outrageous complaints," and presently had a better understanding of the law as it concerned "the criteria of a complaint/pleading." He stated further that, with the exception of a 2018 writ of mandate petition, he "ha[d] not utilized the civil process within the past several years." There were no specifics provided in Brown's application. The trial court was therefore justified in impliedly finding that Brown had not made the required showing under the statute that there was "a material change in the facts upon which the [prefiling] order was granted." (§ 391.8, subd. (c); cf. Bravo, supra, 99 Cal.App.4th at p. 219 [appellate court implies findings to support the trial court's ruling declaring party a vexatious litigant].)
As to the second conjunctive requirement of the statute, Brown did not address in his application in any way how "the ends of justice would be served by vacating the order." (§ 391.8, subd. (c).) The trial court was therefore justified in impliedly finding that Brown had not made the required showing that "the ends of justice would be served" if the prefiling order were vacated. (Ibid.; cf. Bravo, supra, 99 Cal.App.4th at p. 219 [appellate court implies findings to support the trial court's ruling declaring party a vexatious litigant].)
Brown has not satisfied his burden as the appellant to establish that the trial court abused its discretion in denying the application to vacate the prefiling order. (Forthmann, supra, 97 Cal.App.4th at pp. 984-985.) There was no error.
III. DISPOSITION
The May 30, 2019 order denying appellant William Brown's application to vacate the court's prior prefiling order and to remove Brown from the Judicial Council's vexatious litigant list is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
ELIA, J.