Opinion
H050879
02-01-2024
In re the Marriage of MARI-LYNNE EARLS and CARLTON G. AMDAHL v. CARLTON G. AMDAHL, Respondent. MARI-LYNNE EARLS, Appellant,
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 19921FL027294
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
In August 2011, the trial court entered a prefiling order declaring appellant Mari-Lynne Earls a vexatious litigant. In or about January 2023, appellant filed an application for an order vacating the prefiling order and removing her name from the Judicial Council's vexatious litigant list. Under Code of Civil Procedure section 391.8, subdivision (c) (hereafter section 391.8(c)), a court may vacate a prefiling order if the applicant shows (1) "a material change in the facts upon which the order was granted" and (2) "the ends of justice would be served by vacating the order." In this case, the trial court denied the application, and appellant has appealed from that order. For reasons that we will explain, we will affirm the order.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The record on appeal includes both a clerk's transcript (requested by appellant) and an appellant's appendix (submitted by appellant). The California Rules of Court provide for one or the other, not both (Cal. Rules of Court, rule 8.120(a)(1)), and it is not clear why appellant provided both. As appellant's notice designating the record on appeal elected the clerk's transcript (see id., rule 8.121(b)(1)(B)), and as the appendix appears to be duplicative of the clerk's transcript, we will rely on the clerk's transcript.
A. The 2011 Vexatious Litigant Finding
Appellant and respondent Carlton G. Amdahl were parties to a 1992 dissolution action that included issues of child custody, child support, and spousal support.
On August 23, 2011, the trial court granted respondent's motions (1) to quash and strike appellant's multiple motions to set aside prior orders of the court or to assert breach of fiduciary duties, (2) for attorney's fees and costs, and (3) to declare appellant a vexatious litigant. First, the court found that appellant's motions and claims were "sham pleadings which attempt[ed] to circumvent prior final orders of the court." The court further found that appellant's motions and claims were "barred by principles of res judicata and collateral estoppel[], d[id] not constitute attacks on void or voidable prior orders, [were] barred by statutes of limitations and the equitable doctrine of laches and judicial estoppel, and [were] barred by the law of the case." The court also granted respondent's motion to quash and denied appellant's discovery requests. Second, the court ordered appellant to pay $300,000 to respondent for attorney's fees and costs. The court recognized that the amount was "substantial" but determined it was "fully justified" in view of appellant's "latest full scale assault on long final judgments and orders." Third, after finding appellant to be a vexatious litigant, the court prohibited her from filing any new litigation in propria persona without first obtaining leave from the presiding judge of the court where the litigation was proposed to be filed. In finding appellant to be a vexatious litigant, the court determined that she met the definitions of a vexatious litigant found in section 391, subdivision (b)(2) and (3).
Section 391, subdivision (b) provides that a vexatious litigant includes any person who: "(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."
B. The 2023 Application to Vacate the Prefiling Order
According to appellant, in 2015, 2017, 2018, 2019, and 2021, she filed unsuccessful applications to vacate the prefiling order.
In or about January 20, 2023, appellant filed the instant application under section 391.8 to vacate the 2011 prefiling order and to be removed from the Judicial Council's vexatious litigant list. Appellant's application was on a Judicial Council form, which required her to list every case filed in the last five years in which she was a party, the number of motions that she had filed in each case, and the number of requests for new litigation that she had filed.
On the application, appellant indicated that in 2018, she pursued a federal civil rights action against then Chief Justice Tani Cantil-Sakauye and Presiding Judge Patricia Lucas. The federal district court entered a judgment dismissing the action, and plaintiff appealed to the Ninth Circuit Court of Appeals, which affirmed the judgment of dismissal. (Earls v. Cantil-Sakauye (9th Cir. 2018) 745 Fed.Appx. 696.)
Appellant also indicated that in 2019, she pursued a federal civil rights action against Presiding Justice Mary Greenwood. The federal district court entered a judgment dismissing the action, and plaintiff appealed to the Ninth Circuit Court of Appeals, which affirmed the judgment of dismissal. (Earls v. Greenwood (9th Cir. 2020) 816 Fed.Appx. 155.)
Appellant in her application acknowledged that the Ninth Circuit in each case found the Rooker-Feldman doctrine applicable to her federal civil rights actions. In her application to vacate the prefiling order, she did not specify how many motions she had filed in each federal case but indicated that she had filed "responses to filings from opposing party."
"The Rooker-Feldman doctrine takes its name from Rooker v. Fidelity Trust Co. [(1923)] 263 U.S. 413 . . ., and District of Columbia Court of Appeals v. Feldman [(1983)] 460 U.S. 462 ....Under Rooker-Feldman, a federal district court does not have subject matter jurisdiction to hear a direct appeal from the final judgment of a state court." (Noel v. Hall (9th Cir. 2003) 341 F.3d 1148, 1154.) In other words, "[i]f a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district court." (Id. at p. 1164.)
Regarding the number of requests for new litigation in the last five years, appellant did not specify the number of requests but indicated that they were all "requests to file an appeal of a denied CCP 391.8 application."
In an attachment to her application to vacate the prefiling order, appellant contended that under the first prong of section 391.8(c), there was a material change in facts supporting a grant of her application. She argued that she had not filed any new litigation against respondent since 2011; she had not filed any further litigation against the defendants in the two civil rights actions; and she had not sought to relitigate the federal claims following the Ninth Circuit's determination that the claims were barred. Appellant also argued that she had satisfied the $300,000 sanctions order. Under the second prong of section 391.8(c), appellant contended that the interests of justice supported granting the application. She argued that "[t]he 'interests of justice' ordinarily" require consideration of "fundamental fairness." Appellant contended that she had been improperly prevented from obtaining appellate review of the 2011 order and that the various rulings by the trial court in that order, including the vexatious litigant finding, were wrong. She stated that she was not asking the trial court "to determine whether the 2011 order was erroneous, but rather to consider whether [appellant] had a colorable claim for appellate review."
By order filed February 21, 2023, the trial court denied appellant's application to vacate the prefiling order. Appellant 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] (Luckett).)
III. DISCUSSION
A. Appellant's Request for Judicial Notice
Appellant requests that we "take judicial notice of [her] Request for Judicial Notice RE: Reifler Offers of Proof for Preliminary Statement of Issues . . . and its exhibits A through N," which she purportedly filed in the trial court on October 12, 2010. Appellant did not provide this court with a copy of the underlying 2010 request for judicial notice or its exhibits.
We deny appellant's request for judicial notice. First, appellant failed to provide this court with a copy of the documents that she seeks judicial notice of. (Cal. Rules of Court, rules 8.252(a)(3), 8.74(c)(2).)
Second, although appellant states that she requested judicial notice of the documents in the trial court in 2010, it does not appear from the record on appeal that she requested judicial notice or otherwise provided the documents to the trial court in connection with her 2023 application to vacate the prefiling order." 'Reviewing courts generally do not take judicial notice of evidence not presented to the trial court' absent exceptional circumstances. [Citation.]" (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) No exceptional circumstances appear here for appellant's failure to provide the documents to the trial court in connection with her 2023 application to vacate the prefiling order.
Third, appellant fails to demonstrate that the documents are the proper subjects of judicial notice. For example, according to appellant's brief descriptions of the exhibits, the exhibits include a declaration or "narrative" by a party, as well as emails, letters, or other communications by appellant, respondent, or an attorney. Appellant fails to provide legal authority establishing that the content of these documents is the proper subject of judicial notice.
Fourth, to the extent appellant requests that this court take the documents as additional evidence under section 909, we decline to do so where the documents were not presented below in connection with appellant's application, were not provided to this court on appeal, and where no" 'exceptional circumstances'" have been shown (In re Zeth S. (2003) 31 Cal.4th 396, 405, italics omitted).
Section 909 states: "In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues."
B. Vexatious Litigant Statutes
1. Designation as a Vexatious Litigant
"The vexatious litigant statutes [citations] 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).) As explained by the California Supreme Court, a vexatious 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." (Id. at pp. 1169-1170; see § 391, subd. (b).)
2. Prefiling Order
The vexatious litigant statutes provide various" 'means to counter misuse of the system by vexatious litigants.'" (Shalant, supra, 51 Cal.4th at p. 1170.) "[I]n 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. [Citation.]" (In re Marriage of Rifkin &Carty (2015) 234 Cal.App.4th 1339, 1345 (Rifkin); see §§ 391.1-391.4.)
An additional "tool designed 'to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs'" is found in section 391.7. (Shalant, supra, 51 Cal.4th at p. 1170.) Section 391.7"' "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 [or justice].' [Citation.]" (Shalant, supra, at p. 1170.) Under the vexatious litigant statutes, litigation means "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).)
3. Application to Vacate the Prefiling Order
Relevant to this appeal, under section 391.8, "[a] vexatious litigant subject to a prefiling order . . . 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." (Id., 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." (Id., subd. (c); see Rifkin, supra, 234 Cal.App.4th at p. 1346.) A vexatious litigant whose application to vacate is denied cannot file another application "on or before 12 months has elapsed after the date of the denial." (§ 391.8, subd. (b).)
"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).)
4. Standard of Review
Regarding a prefiling order, section 391.7 provides that a trial court "may . . . enter" such an order on motion. (Id., subd. (a), 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.) Regarding an application to vacate a prefiling order, section 391.8(c), similarly provides that the trial "court may vacate a prefiling order" 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.
"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 (Sonic Manufacturing).) 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."' [Citation.]" (Id. at p. 466, italics added.)
The trial court's order is presumed correct, and the appellate court implies findings to support the trial court's ruling. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219 (Bravo).) On appeal, it is the appellant's burden of showing from the record the existence of an abuse of discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985 (Forthmann).)
C. Analysis
Appellant contends that the trial court erred in denying her application to vacate the prefiling order. We determine that appellant fails to show an abuse of discretion in the denial of her application.
First, appellant contends that the trial court abused its discretion by failing to provide a statement of decision regarding its denial of her application. In her application to vacate the prefiling order, appellant requested a statement of decision, citing section 632. However, "section 632 requires the trial court to issue a statement of decision only after a bench trial, when any party requests it. The general rule, however, is that a trial court need not issue a statement of decision after a ruling on a motion. [Citation.] A court may exercise its discretion to issue a statement of decision in instances other than trial, but nothing requires it to do so. [Citation.]" (In re Marriage of Turkanis &Price (2013) 213 Cal.App.4th 332, 353-354.) As appellant fails to demonstrate that the trial court was required to provide a statement of decision in connection with its denial of her application, we find no abuse of discretion in the court's failure to provide a statement of decision.
Section 632 states in part: "The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision."
Second, we understand appellant to contend that the trial court erred by implicitly determining that she failed to show under section 391.8(c) that (1) there was a material change in the facts upon which the 2011 prefiling order was granted and (2) the ends of justice would be served by vacating the order.
Regarding the first prong of section 391.8(c) - whether a material change in facts has occurred - appellant observes that she was designated a vexatious litigant in 2011, based on section 391, subdivision (b)(2) and (3), for her litigation against respondent in family court. Appellant argues that "[f]or twelve long years" since that order, she has "refrained from repeating the conduct for which she was labeled 'vexatious' subject to prefiling orders." In support of this argument, appellant cites Luckett, supra, 161 Cal.App.4th 77.
In Luckett, which was filed before the enactment of section 391.8 [application to vacate prefiling order], the appellate court "offer[ed]" its "observations as to some of the factors that necessarily bear on whether a vexatious litigant had 'mended his [or her] ways'" for purposes of an application to lift a prefiling order. (Luckett, supra, 161 Cal.App.4th at p. 93, italics omitted.) The appellate court identified the following factors: (1) showing "a propensity for honesty in his or her application," 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 in a favorable light"; (2) showing "some genuine remorse for the costs of litigation inflicted on the defendants who were the object of previous lawsuits"; (3) showing "some genuine effort at restitution toward the previous victims of his [or her] 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." (Id. at p. 93, italics omitted.) In the case before it, the appellate court stated, that "[i]f, after a decent interval-certainly no less than four years . . . -[the appellant] can show that he has stopped his obsessive litigation and shown, as laid out in this opinion, that he has genuinely 'mended his ways,' this court will welcome the occasion to vacate its 1991 prefiling order." (Id. at p. 96.)
In the present case, appellant relies on the "no less than four years" language from Luckett, supra, 161 Cal.App.4th at page 96, to argue that "certainly, twelve years has been long enough an interval for this court to find that [she] has 'mended' her ways" because she has not sued respondent since the 2011 prefiling order was entered. She also contends that her application to vacate the prefiling order included a copy of the 2011 prefiling order, disclosed her two federal civil actions from 2018 and 2019, and indicated that she had paid the 2011 sanctions order.
We determine that it was not an abuse of discretion for the trial court to implicitly find that appellant failed to show a material change in the facts upon which the prefiling order was granted. (See § 391.8(c).) One of the two grounds for the 2011 prefiling order against appellant was section 391, subdivision (b)(3), which provides that a vexatious litigant includes a person who "[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, . . . or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." Litigation includes "any civil action or proceeding, commenced, maintained or pending in any . . . federal court." (Id., subd. (a).) In the instant application to vacate the prefiling order, appellant failed to demonstrate that her federal civil actions did not involve the "repeated[] fil[ing]" of "unmeritorious motions, pleadings, or other papers" or that she did not "engage[] in other tactics that [were] frivolous." (Id., subd. (b)(3).) To the contrary, she acknowledges that her successive federal civil actions against a state court judge and/or justice resulted in the dismissal of those actions.
Appellant contends that the Ninth Circuit did not make a finding that the federal civil actions were improperly filed or that there were excessive motions or pleadings. However, the record does not adequately demonstrate that the issue was actually raised and determined by the federal court.
Appellant also contends that there is no substantial evidence that the federal lawsuits were vexatious. However, the substantial evidence standard of review is not the applicable test here. Where, as here, 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, supra, 196 Cal.App.4th at p. 465.) Instead, in this case, appellant must show that" 'the evidence compels a finding in favor of . . . 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."' [Citation.]" (Id. at p. 466, italics added.) Appellant fails to meet this burden for her contention that the federal lawsuits were not vexatious. To the contrary, she admits that her successive federal lawsuits were both dismissed on the same grounds.
Consequently, appellant fails to establish that the trial court abused its discretion by implicitly finding that she did not meet her burden of showing "a material change in the facts upon which the [2011 prefiling] order was granted." (§ 391.8(c); Bravo, supra, 99 Cal.App.4th at p. 219 [trial court's order is presumed correct]; Forthmann, supra, 97 Cal.App.4th at p. 985 [appellant's burden to show error].)
Regarding the second prong of section 391.8(c) - whether the ends of justice would be served by vacating the 2011 prefiling order - we understand appellant to argue that she was improperly prevented from appealing the 2011 order and that an appeal of the 2011 order would have been successful. Appellant's argument that she was improperly prevented from appealing the 2011 order is based on unsupported factual assertions, including that she "handed" a clerk of this court "a [J]udicial [C]ouncil form requesting leave of the court to file . . . an attached notice of appeal" and that the clerk "refused to file [her] request to file new litigation as required pursuant to [section] 391.7." Her remaining arguments appear to be not only an attempt to relitigate the vexatious litigant finding, but also an attempt to relitigate the motions and claims that ultimately resulted in the finding that she was a vexatious litigant and the prefiling order. We determine that the trial court did not abuse its discretion in determining that appellant failed to show "that the ends of justice would be served by vacating the [2011 prefiling] order." (§ 391.8(c).)
In sum, we conclude that the trial court did not abuse its discretion in denying appellant's 2023 application to vacate the prefiling order and to remove her from the Judicial Council's vexatious litigant list.
IV. DISPOSITION
The February 21, 2023 order denying appellant's application to vacate the prefiling order and to remove appellant from the Judicial Council's vexatious litigant list is affirmed.
WE CONCUR: WILSON, J., ADAMS, J. [*]
[*]Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.