Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. P89-00547, Ct. No. C08-00137)
Richman, J.
The time has come to put an end to appellant Astarte Davis-Rice’s seemingly unquenchable thirst for litigation—and her egregious waste of judicial resources. For the past two decades, in the courts of both the United States and the United States Virgin Islands, Davis-Rice has repeatedly, and without success, relitigated issues concerning the distribution of the estate of James Merrills Rice, her companion (she says husband) who mysteriously disappeared in 1986. After Davis-Rice attempted, yet again, to reopen in 2007 a probate case that closed in 1989 with a declaration of Rice’s death, the probate court of the County of Contra Costa finally declared Davis-Rice a vexatious litigant, a declaration she now challenges in appeal no. 120355.
We would be hard pressed to imagine a litigant more worthy of the vexatious litigant designation, and we easily affirm the trial court’s order in appeal no. 120355. We also conclude that this appeal was frivolous and taken for improper purposes, and grant the motion of respondent Kathleen Clements for sanctions against Davis-Rice in the amount of $8,887.50. Finally, we reject Davis-Rice’s appeal in the appeal no. 121250, which we consolidated with appeal no. 120355 for purposes of decision.
I. BACKGROUND
In July 1986, James Merrills Rice mysteriously disappeared from his home in St. Croix, U.S. Virgin Islands. Clements, Rice’s daughter, became concerned about her father’s whereabouts and, after reporting his disappearance to the authorities, enlisted a private investigator to help find him. While the investigation proved unsuccessful at locating Rice, it did uncover a scheme headed by Davis-Rice to defraud the Rice estate of its sizable assets.
It is a mystery that remains unsolved to this day, although according to Clements, Davis-Rice has long been considered the prime suspect in his disappearance. She denied any involvement, claiming instead that he left the Virgin Islands for Australia with another woman.
Davis-Rice was indicted by both the United States and Virgin Islands governments on numerous criminal charges related to the scheme. (Government of the Virgin Islands v. Davis, D.C. V.I. Crim. No. 88-132; United States v. Davis, D.C. V.I. Crim. No. 88-403.) One court described her criminal conduct this way: “Both the [Virgin Islands] Case and the [United States] Case involved Davis’ efforts to defraud the estate of James Merrills Rice (Rice estate) of more than one million dollars worth of real and personal property. Specifically, Davis prepared a false and fictitious last will and testament of James Rice purporting to bequeath to her the bulk of the Rice Estate; altered Rice’s power of attorney, giving herself full and complete control over his property, assets and affairs; and prepared a false warranty deed for the purpose of facilitating the transfer of valuable realty owned by Rice to herself. Using the forged documents, Davis transferred title for or otherwise unlawfully appropriated or conveyed personal property belonging to Rice which was valued at more than $120,000. Davis also forged Rice’s signature on a series of checks which totaled $10,985 and entered into contractual agreements concerning Rice’s boat, the Fish Eagle, assigning to herself a percentage of the profits earned by the venture. [¶] In addition to the other illegal activities Davis stood convicted of by virtue of her plea in the [Virgin Islands] Case, she filed a lawsuit against a number of entities and individuals, including Rice, to quiet title to property she had fraudulently obtained. In preparation for that lawsuit, Davis forged letters, deeds and other documents to make it appear as though James Rice was alive and that he had given all his worldly possessions to her and her sons. Davis presented the false documents at a deposition during which she also gave false testimony. [¶] With respect to the [United States] Case, Davis prepared forged documents instructing the Guardian Savings Bank in Houston, Texas, to transfer two hundred thousand (100,000) dollar certificates of deposit into an account held by the Icon Corporation, which was wholly-owned by Davis and her sons.” (Government of Virgin Islands v. Davis (3d Cir. 1994) 43 F.3d 41, 43, fns. omitted).)
Davis-Rice pleaded guilty to some of the charges against her and was sentenced to ten years in prison in the Virgin Islands case, and 15 months in prison in the United States case. The sentences were consecutive to a three-year sentence she was then serving in California for an unrelated 1991 embezzlement conviction.
On September 1, 1989, Davis-Rice became a fugitive from the Virgin Islands charges. When authorities located her in Santa Barbara 15 months later, she was living under an assumed identity and embezzling from her employer.
In the meanwhile, in 1988 Clements filed an action in the Superior Court of California for the County of Contra Costa to establish a conservatorship over the estate of her father as a missing person. (Estate of James M. Rice, No. P88-01800.) The following year, Clements filed a second probate action in the same court, seeking a declaration that her father was deceased. (No. P89-00547.) After the requested declaration was issued, that probate matter was closed, and the conservatorship was converted to the estate of a decedent.
Similar matters were filed in the Virgin Islands. (Guardianship of James M. Rice in the United States Virgin Islands, Family No. G65/89; In re James Merrills Rice, Deceased, Family No. FM5/89; In the Matter of the Estate of James Merrills Rice, Probate No. 51/1992.)
Also in 1989, Clements, as the conservator of the Rice estate, filed a civil action in Contra Costa County Superior Court, alleging that Davis-Rice and others had defrauded the Rice estate of real and personal property and asserting claims for conversion, fraud, and conspiracy. (Clements v. Davis et al., No. 89-02907.) On November 15, 1993, judgment was entered in that action, awarding Clements over $1,000,000 in compensatory damages and $1,000,000 in punitive damages against Davis-Rice and $250,000 in punitive damages against one of her sons.
Davis-Rice appealed, and this Court affirmed the judgment. Clements requested sanctions against Davis-Rice for filing a frivolous appeal, which we declined to award. However, Davis-Rice was “caution[ed] . . . to be circumspect in future litigation,” advice that, as seen below, she failed to heed. This court subsequently denied her petition for rehearing.
The Contra Costa County probate matter (No. P88-01800) concluded in December 1993, with the court determining, over Davis-Rice’s objections, that Clements was Rice’s sole heir and ordering distribution of the remaining assets to Clements. Davis-Rice filed a notice of appeal challenging the distribution order, but her appeal was dismissed for failure to pay the statutory filing fee.
In 1994, Davis-Rice filed an action in Contra Costa County Superior Court, alleging that the determination obtained by Clements establishing her as the sole heir to the Rice estate was obtained by fraud. (Davis-Rice v. Clements, No. C94-03674.) Davis-Rice sought, among other things, return of property to the estate, reimbursement for legal expenses and costs, an order enjoining Clements from asserting any interest in any property of the Rice estate, and punitive damages. Clements demurred, which demurrer was sustained without leave to amend. Davis-Rice appealed, but her appeal was dismissed for failure to timely procure the record.
That same year, Davis-Rice filed a second action in Contra Costa County Superior Court, this time against Clements and her counsel, J. Kenneth Gorman. (Davis v. Clements, et al., No. 94-05079.) The allegations of the complaint were substantially the same as in case no. C94-03674, again seeking to vacate the decision in the probate case. Again, the court sustained defendants’ demurrer without leave to amend.
Having repeatedly lost her state court challenges to the distribution of the Rice estate, in 1995 Davis-Rice turned to the federal court system, filing a complaint in the United States District Court for the Northern District of California against Clements, Gorman, and others, including the Federal Bureau of Investigation, the United States Customs Service, a United States attorney, and a United States Customs Service agent. (Davis-Rice v. Clements et al., No. C-95-0398.) The complaint, entitled “Civil Rights Action/Libelous Per Se,” was dismissed with leave to amend, only to be followed by an 84-page amended complaint that purported to set forth numerous federal and state causes of action against defendants for their alleged involvement in a conspiracy to defraud her of the Rice estate and send her to prison. The matter concluded with summary judgment entered in favor of defendants. Davis-Rice appealed from the judgment but voluntarily dismissed her appeal a short time later.
This case tracked a similar lawsuit Davis-Rice filed in the Virgin Islands on essentially the same theories. That matter was also resolved in Clements’s favor. (Davis-Rice v. Estate of Rice (3d Cir. 1998) 151 F.3d 1024 [unpublished table decision].)
Over the next few years, Davis-Rice apparently took a hiatus from her zealous attempts to undo the probate court’s distribution order and the civil judgment against her. But on February 24, 2005, she commenced a new round of litigation, beginning with a bankruptcy case in which she sought to discharge the judgment. Clements filed an adversary proceeding seeking to exempt the judgment from discharge. Davis-Rice moved for summary judgment, on a theory that her convictions had been rendered moot and the civil and probate decisions against her were invalid because the Virgin Islands government had purportedly defaulted on a 2005 civil action she filed against it. At the same time, Clements moved for summary judgment, arguing that the doctrine of issue preclusion entitled her to judgment as a matter of law. The court denied Davis-Rice’s motion and granted that of Clements. The bankruptcy appellate panel for the Ninth Circuit affirmed, finding summary judgment appropriate in light of “the issue preclusive effects of the California Civil Judgment and the Virgin Islands Criminal Convictions.”
It is unclear from the record what kind of claim she asserted in that case. Clements describes it as a tort claim that Davis-Rice believed the Virgin Islands government had not answered. The bankruptcy appellate panel for the Ninth Circuit described it as “a civil action . . . ‘to vacate void judgments’ and for a writ of mandamus expunging her convictions.”
Having failed to discharge the judgment through a bankruptcy proceeding, in 2007 Davis-Rice tried a different tack: she sought to reopen the 1989 civil case by filing in Contra Costa County a motion for relief from judgment due to fraud. By order dated July 11, 2007, the trial court concluded that the case could not be reopened, deeming her filings void. Davis-Rice appealed from that decision, but on May 12, 2008, our colleagues in Division One dismissed her appeal as having been taken from a non-appealable order. (Clements v. Rice, No. A118606.) The court dropped as moot a motion by Clements for sanctions against Davis-Rice for filing a frivolous appeal.
Still, Davis-Rice persisted, which brings us to the appeal at hand. On January 31, 2007, she filed a “motion for relief on all orders/decrees/judgments/decisions due to fraud and deceit on the court with tortious interference of inheritance and defalcation of estate assets,” this in the probate action that had closed 18 years earlier, upon declaration that Rice was deceased .
In the minute order in which the court declared Davis-Rice a vexatious litigant, the court noted that she was attempting to reopen probate case no. P89-00547 (erroneously cited as P98-0547 in the minute order), which involved the petition to establish the fact of Rice’s death. That matter was concluded on October 26, 1989. The court speculated that Davis-Rice actually intended to reopen case no. P88-01800, the matter which commenced as a conservatorship but was converted to a probate matter upon the establishment of Rice’s death. It was this case that resulted in the determination that Clements was Rice’s sole heir and the December 6, 1993 order for final distribution of Rice’s estate to Clements.
In response, Clements filed a demurrer, motion to strike, and opposition to the motion for relief from judgment. Clements also filed a motion to declare Davis-Rice a vexatious litigant pursuant to Code of Civil Procedure section 391. The motion detailed the numerous cases Davis-Rice had pursued regarding the Rice estate and argued that Davis-Rice herself conceded in her complaint that all of the issues raised in it have been successfully litigated against her. Davis-Rice, Clements argued, simply chose to ignore the effects of res judicata.
All statutory references are to the Code of Civil Procedure.
On March 27, 2007, Davis-Rice filed a “motion for default judgment by affidavit,” which was, as described by the probate court below, “replete with citations to irrelevant cases, federal statutes and regulations.” This she followed on April 5, 2007 with “points and authorities in support of motion for relief, filed January 31, 2007, an independent action, under rule 60(b) 60(b)(6) 60 note due to fraud upon the court by affidavit” and a “traverse to defendants [sic] notice of motion and motion to have plaintiff declared a vexatious litigant, and points and authorities in support of motion to declare plaintiff a vexatious litigant, and declaration of counsel in support of motion to have plaintiff declared a vexatious litigant by affidavit.” The next day, Rice-Davis filed a “motion to strike pursuant to rule 12(f) [Fed. Rules Civ.Proc. (28 U.S.C.)].”
At a hearing on April 16, 2007, for reasons not evident from the record, Clements withdrew her demurrer and motion to strike. The court denied Davis-Rice’s “motion for relief on all orders/decrees/judgments/decisions due to fraud and deceit on the court with tortious interference of inheritance and defalcation of estate assets,” and took the vexatious litigant motion under submission.
On April 20, 2007, Davis-Rice filed a “motion for violation of due process at the hearing of April 16, 2007,” which the court treated as a motion to set aside the prior orders pursuant to section 473. A hearing on the motion was held on August 28, 2007.
By minute order dated November 26, 2007, the court found all motions by Davis-Rice to be “totally devoid of legal merit.” As the court explained in the minute order: “The factual allegations have been repeatedly adjudicated, and [Davis-Rice] brings no meaningful new evidence to the court to support any finding that would support setting aside any prior adjudications[.] It is clear from the record that [Davis-Rice] has adopted as her strategy simply coming to court time and time again with the same statements and evidence in hopes that somehow she will eventually find some court that will believe her and issue a ruling throwing out all the rulings of all the other courts. There could be no clearer exemplification of the rationale for determining that a person should be declared a vexatious litigant. At some point, prevailing litigants must be protected from being dragged into court for a matter that has been finally adjudicated.” The court concluded that “[w]hen viewed against the backdrop of [Davis-Rice’s] repeatedly litigating the same issues in various courts, these actions confirm a pattern of behavior that compels the court to determine that [Davis-Rice] is a vexatious litigant.” The court then ordered that Davis-Rice “shall not file any new litigation (including but not limited to any petition, application, or motion other than a discovery motion in a proceeding under the Family Code or the Probate Code) in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.”
On January 17, 2008, the court entered a written “Order Declaring Astarte Davis-Rice, a/k/a Astarte Davis a Vexatious Litigant.” Davis-Rice appealed, and this appeal is no. A120355 in this court.
II. DISCUSSION
Appeal No. 120355
A. Procedural Issues
We begin by addressing three procedural issues. First, Davis-Rice purports to appeal from the order declaring her a vexatious litigant. This, however, is not an appealable order. (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498 (Holcomb).) Rather, a litigant must wait until the matter is dismissed (typically following from the vexatious litigant’s failure to post a bond when ordered to do so by the court; §§ 391.3, 391.4; Holcomb, supra, 129 Cal.App.4th at p. 1498), and then appeal from the order of dismissal. (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 988, fn. 2.) While the record before us does not reflect any such dismissal, it appears that a dismissal was in fact entered, since Clements “interprets the appeal as being from the dismissal stemming from the vexatious litigant order.” We will do likewise. (Eisenberg, et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶2:243, p. 2-116 [appellate courts can invoke their “saving” power to entertain an appeal taken from such an order by construing the appeal as taken from the judgment or order of dismissal].)
Additionally, the challenged order designating Davis-Rice as a vexatious litigant contains a prefiling order requiring her to seek leave of court before filing “any case, claim, cause of action, or moving paper in any proceedings.” (See § 391.7, subd. (a).) Such an order requires leave of court to file an appeal challenging a vexatious litigant order. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1214-1217.) Where the clerk mistakenly files the litigation without a court order, any party can file a notice stating that the appellant is a vexatious litigant subject to a prefiling order, which notice automatically stays the proceeding, and the vexatious litigant must within 10 days of the notice obtain an order from the presiding judge permitting the filing of the litigation. (§ 391.7, subd. (c).) Davis-Rice initiated the instant appeal without first seeking leave of court, and the clerk mistakenly filed her notice of appeal. Because Clements did not file a notice that Davis-Rice is a vexatious litigant, however, this matter proceeded to briefing, and we will decide it on the merits.
Lastly, we note that the record on appeal is deficient. Davis-Rice appended to her opening brief four documents: (1) the order declaring her a vexatious litigant (Exhibit A); (2) an “affidavit” entitled “the court shall take judicial notice” filed in case no. 89-00547 on January 18, 2008 (Exhibit B); (3) a “complaint for enforcement of an unenforceable judgment pursuant to California Code of Civil Procedure” filed after she was declared a vexatious litigant (Exhibit C); and (4) the court’s minute order granting the motion to declare her a vexatious litigant (Exhibit E). Clements remedied some of the record’s deficiencies by augmenting it with many of the filings that provide the history of Davis-Rice’s 20-year path through the court system, but some holes remain. Accordingly, on the court’s own motion and pursuant to California Rules of Court, rule 8.155, we deem the record augmented to include the following documents filed in Contra Costa County case no. P89-00547: (1) the “motion for relief on all orders/decrees/judgments/decisions due to fraud and deceit on the court with tortious interference of inheritance and defalcation of estate assets” filed by Davis-Rice on January 31, 2007; and (2) the demurrer and supporting papers filed by Clements on February 14, 2007.
There was no Exhibit D.
Against that background, we turn to the substance of Davis-Rice’s appeal in no. A120355. And we conclude it is frivolous.
B. Standard of Review
“A 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. [Citation.]” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.
C. Davis-Rice is a Vexatious Litigant
Pursuant to section 391, subdivision (b), a vexatious litigant is an individual whose conduct falls within any of the following four categories: “(1) In 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. [¶] (2) After 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. [¶] (3) 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. [¶] (4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.”
The probate court did not specify under which subdivision it made its ruling. However, the order stated that Davis-Rice is a vexatious litigant because “she has prosecuted actions which have been decided adversely to her previously,” which suggests that the court found her to be a vexatious litigant as set forth in section 391, subdivision (b)(2). Our review of the record clearly reveals substantial evidence to support a finding that Davis-Rice is an individual who has, in propria persona, repeatedly relitigated a cause of action, claim, or controversy that has previously been determined against her. She is, therefore, a vexatious litigant within the meaning of section 391, subdivision (b)(2).
Likewise, Clements’s moving papers below did not specify the subdivision pursuant to which she was seeking the vexatious litigant declaration.
It does not matter what subdivision the court found applicable to Davis-Rice, because “[i]f the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §340, p. 382; see also Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 661, quoting Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568 [“ ‘There is perhaps no rule of review more firmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion.’ ”].)
In Holcomb, supra, 129 Cal.App.4th 1494, the court considered what “repeatedly” means in the context of section 391, subdivision (b)(2). It noted that while subdivision (b)(2) lacks “specific numerical benchmarks,” subdivision (b)(1) contains such benchmarks, including “five cases,” “seven years,” and “two years.” The court then reasoned that given the specificity in subdivision (b)(1), it could be presumed that if the Legislature intended “repeatedly” to simply mean “more than one time,” it would have said so. Instead, the court concluded, the Legislature intended “repeatedly” to refer to “a past pattern or practice on the part of the litigant that carries the risk of repetition in the case at hand.” (Id. at p. 1505.)
Here, there is ample evidence that Davis-Rice has, in propria persona, repeatedly relitigated matters pertaining to the distribution of the Rice estate that have finally been decided adversely to her. While we have detailed this history above, we summarize it again here. In the 1989 Contra Costa County civil case brought by Clements against Davis-Rice and her friends and family, the court determined that defendants had fraudulently looted the Rice estate and awarded judgment in Clements’s favor in excess of $2 million. Davis-Rice appealed from the judgment, and this Court denied both her appeal and request for a rehearing. She then filed two cases in 1994, one against Clements and the other against Clements and Gorman, in which she again sought to litigate the issues surrounding the Rice estate. In both cases, defendants’ demurrers were sustained without leave to amend. The following year, Davis-Rice filed a federal action against Clements, Gorman, and others, once again seeking resolution of issues surrounding the Rice estate. This action was dismissed after defendants prevailed on summary judgment. In 2005, Davis-Rice filed a request in bankruptcy court for relief from the civil judgment, arguing, inter alia, the civil and probate decisions against her were invalid. The bankruptcy court granted Clements’s motion for summary judgment, and the bankruptcy appellate panel affirmed the judgment. In mid-January 2007, she sought to resurrect the long-closed 1989 civil case that resulted in Clements’s judgment against her and her son. That matter was dismissed by the court, as was her appeal of the dismissal. And in late January 2007, she filed the “motion for relief on all orders/decrees/judgments/ decisions due to fraud and deceit on the court with tortious interference of inheritance and defalcation of estate assets” in the present case, which the probate court denied as “totally devoid of legal merit.”
If that were not enough, perhaps the most vivid—and shocking—example of Davis-Rice’s unrelenting insistence at relitigating these issues over and over again occurred after the court in this case declared her a vexatious litigant. On January 22, 2008, a mere five days after the court entered its order declaring her a vexatious litigant, in complete and flagrant disregard for the authority of the court, Davis-Rice filed yet another complaint against Clements in Contra Costa County Superior Court, this one entitled “complaint for enforcement of an unenforceable judgment pursuant to California Code of Civil Procedure” and purporting to set forth four causes of action for “unenforceable judgment.” (No. C08-00137.) In an audacious display of disrespect for the court, Davis-Rice actually appended a copy of that complaint as Exhibit C to her opening brief here!
It is unquestionable that in each of these cases Davis-Rice has attempted to unwind the 1993 decision of the probate court concluding that Clements is Rice’s sole heir, as well as the 1993 judgment against her for defrauding the Rice estate, despite the fact that each action has been barred by the doctrine of res judicata. She simply chooses to ignore this concept and has, in the words of the trial court, “adopted as her strategy simply coming to court time and time again with the same statements and evidence in hopes that somehow she will eventually find some court that will believe her and issue a ruling throwing out all the rulings of all the other courts.” This conduct undeniably constitutes “a past pattern or practice on the part of the litigant that carries the risk of repetition in the case at hand.” (Holcomb, supra, 129 Cal.App.4th at p. 1505.) In light of this history, it could not be any clearer that Davis-Rice has relitigated, and continues to attempt to relitigate, these issues, despite the fact that they have been decided adversely to her time and time again. Substantial evidence supports the conclusion that Davis-Rice is a vexatious litigant within the meaning of section 391, subdivision (b)(2). She will flout the law no more.
D. Clements’s Motion For Sanctions
In addition to opposing Davis-Rice’s appeal on the merits, Clements filed in this court a motion for sanctions accompanied by a supporting memorandum and a declaration of her counsel. The motion argued that the appeal was frivolous, citing section 907 and California Rules of Court, rule 8.276. By order of June 12, 2008, we notified Rice-Davis that we were considering imposing monetary sanctions against her for filing a frivolous appeal and afforded her 10 days to file a letter brief on the subject.
By letter dated June 27, 2008, Davis-Rice responded to our notice, stating, “My reopening herein probate case was not to harass Clements and was not truly meant to be vexatious; it was solely to turn around the decree of death for my husband James Rice as I truly do not believe him dead, I have since learned that this lower court did not decree his death, this was not information that was offered, that which would have canceled/stopped any filings herein. I have no intention of pursuing this matter any further. I do have a default judgment in my Virgin Islands civil case and I am pursuing my federal tort claim for the injustice of the federal government against me in my criminal case. I am not a vexatious litigate, [sic] I only wanted to correct a wrong.” Davis-Rice also protested that because she is elderly “with no verifiable assets,” it would not further the ends of justice to sanction her as she could not satisfy the sanction order. We reject Davis-Rice’s protestations, and conclude that sanctions are appropriate.
“When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” (§ 907.) California Rules of Court, rule 8.276, subdivision (a)(1) provides that a court of appeal may impose sanctions for “[t]aking a frivolous appeal or appealing solely to cause delay.” “[A]n appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).)
A litigant appearing in propria person is generally held to the same rules and procedures as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) And cases have long recognized the authority of the court to sanction a litigant who has in propria persona filed a frivolous appeal. (See Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [$2,500 sanction award]; Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [$10,000 sanction award]; Papadakis v. Zelis (1992) 8 Cal.App.4th 1146, 1150 [$20,000 sanction award].)
Flaherty cautions, however, that when evaluating whether an appeal is frivolous, we must be careful to “avoid a serious chilling effect on the assertion of litigants’ rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of fear of reprisals.” (Flaherty, supra, 31 Cal.3d at p. 650.) Indeed, because the line between a frivolous appeal and an appeal which simply has no merit is vague, this “punishment should be used most sparingly to deter only the most egregious conduct.” (Id. at p. 651.) Davis-Rice’s appeal here, we conclude, “represents the acme of frivolity.” (Muller v. Muller (1959) 174 Cal.App.2d 517, 519). It manifests the most “egregious conduct.” Clements’s motion for sanctions is well taken.
The motion is accompanied by a declaration from Clements’s counsel stating that he spent 22.5 hours in connection with the appeal in No. 120355, including the preparation of respondent’s brief, accompanying motions, declarations, attached documents, and communications with Clements and the court, for which he has billed Clements at a rate of $200 per hour. He explains, however, that his customary hourly rate is $395, but he has billed Clements at a reduced rate because Davis-Rice’s conduct has been so outrageous. He requests sanctions at his full hourly rate, which totals $8,887.50, an amount that seems eminently reasonable to us.
In addition to the request for sanctions in the form of attorneys’ fees, Clements requests additional sanctions “of a far greater amount” to serve as a deterrent against Davis-Rice’s ongoing harassment. (See Papadakis v. Zelis, supra, 8 Cal.App.4th at p. 1150 [sanctions may include an amount above attorneys’ fees “for purposes of specific and general deterrence”]; People Ex Rel. Department of Transportation v. Outdoor Media Group (1993) 13 Cal.App.4th 1067, 1082 [sanctions may include “sums sufficient to discourage future frivolous litigation”].) We are hopeful that sanctions in the form of Clements’s attorneys’ fees will put an end to Davis-Rice’s harassment of Clements, not to mention her abuse of the court system. However, should she remain undeterred and come before us again in yet another attempt to relitigate these issues, we will not hesitate to accept Clements’s invitation to impose sanctions “of a far greater amount.”
Appeal No. 121250
As noted above, a mere five days after the order declaring her a vexatious litigant, Davis-Rice filed a new “complaint for enforcement of an unenforceable judgment pursuant to California Code of Civil Procedure,” purporting to set forth four causes of action for “unenforceable judgment.” (No. C08-00137.) That complaint was filed without permission, and on February 11, 2008, the trial court struck the complaint in no. C08-00137 due to the vexatious litigant order and dismissed the action. Davis-Rice has appealed from that dismissal, and it is numbered A121250. (Davis-Rice v. Clements, No. A121250.)
On May 27, 2008, Clements filed a motion to dismiss appeal no. 121250 as well as a motion for sanctions. On June 30, 2008, Davis-Rice filed opposition to Clements’s motions, and also filed a “motion to dismiss respondent’s pleadings requesting dismissal and sanctions.” Meanwhile, the parties also filed briefs on the merits. On August 20, 2008, we ordered the appeal in case no. A121250 consolidated with the appeal in A120355.
We have affirmed the trial court’s determination that Davis-Rice is a vexatious litigant, and as such can be subject to a pre-filing order. The trial court issued such an order, which Davis-Rice flouted by filing the complaint without permission. The trial court struck that complaint. Such was manifestly proper as within the court’s power to control its orders (see § 128, subd. (a)(8)), not to mention its power to take steps to enforce a judgment. (Security T. & S. Bk. v. S.P.R.R. Co. (1935) 6 Cal.App.2d 585, 588.) In short, in light of our affirmance in appeal no. 120355, Davis-Rice’s appeal in no. A121250 is clearly without merit, and we affirm the dismissal in that case. Clement’s motion for sanctions in that case is denied.
III. DISPOSITION
Vexatious litigant statutes were created “to curb misuse of the court system by those acting in propria persona who repeatedly litigate the same issues.” (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.) “Their abuse of the system not only wastes court time and resources, but also prejudices other parties waiting their turn before the courts.” (Ibid.) Davis-Rice’s conduct is precisely the type of abuse this statutory scheme was designed to curb. After 20 years, Clements deserves finality on these issues and should not be forced back into court every time Davis-Rice contrives another manner in which to resurrect these matters long-ago concluded.
In appeal no. 120355, we affirm the order of the trial court declaring Davis-Rice to be a vexatious litigant and specifically reiterate that she is required to obtain the permission of the presiding judge or justice of any court of this state in which she proposes to commence any litigation. We also grant Clements’s motion for sanctions, awarding sanctions against Davis-Rice in the amount of $8,887.50 to Kathleen Clements. Clements shall also receive her costs on appeal. We reject Davis-Rice’s appeal in no. 121250.
We concur: Kline, P.J., Lambden, J.
Davis-Rice mounted countless legal challenges to her incarceration, arguing that the charges against her were based on lies perpetuated by a conspiracy (masterminded by Clements) aimed at defrauding her out of the assets of the Rice estate to which she was the rightful heir. We omit the details of her numerous criminal actions here because only her civil cases are relevant to the vexatious litigant issue.