Opinion
F063915
01-19-2012
In re Finding of RONALD E. PIERCE as a Vexatious Litigant.
Ronald E. Pierce, in pro. per.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Kane, Acting P.J., Poochigian, J. and Detjen, J.
ORIGINAL PROCEEDING; proceeding to find Ronald E. Pierce a vexatious litigant.
Ronald E. Pierce, in pro. per.
Over the last seven years, Ronald E. Pierce, in propria persona, has filed, prosecuted or maintained several appeals which this court determined lacked merit. Accordingly, this court concludes that Mr. Pierce is a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(1) and should be subject to a prefiling order. (§ 391.7.)
Further statutory references are to the Code of Civil Procedure.
PROCEDURAL HISTORY
On December 21, 2011, this court issued a written order and notice to Mr. Pierce that he appeared to be a vexatious litigant as defined by section 391, subdivision (b)(1). The order listed the appeals filed in this court that qualified Mr. Pierce for vexatious litigant treatment. The order further notified Mr. Pierce that the court was considering declaring him a vexatious litigant and prohibiting him from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or judge of the court where the litigation is proposed to be filed. (§ 391.7.) The order invited Mr. Pierce to file evidence and argument on or before January 10, 2012, on the question of whether this court should declare him a vexatious litigant subject to a prefiling order. The order stated the matter was set for oral argument on January 17, 2012, at 2:45 p.m.
Mr. Pierce filed papers in opposition on January 9, 2012, which this court has reviewed. He also appeared and presented oral argument on January 17, 2012.
DISCUSSION
Vexatious Litigant Law
The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file frivolous lawsuits or attempt to relitigate issues previously determined against them. (§§ 391-391.7; Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 222-223; for an overview of the vexatious litigant statutory scheme see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 1:914 et seq., pp. 216-222 et. seq. or 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 365 et seq., p. 470.)
Section 391.7, subdivision (a), the prefiling order provision, curbs misuse by prohibiting a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. (Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 59-61 [rejecting constitutional challenges].) "Litigation" for purposes of vexatious litigant requirements includes proceedings initiated in the appellate court by notice of appeal or by writ petitions other than habeas corpus or criminal matters. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1219.)
In Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32, the court held that the requirement to seek leave to file an appeal does not apply to a defendant who has been declared a vexatious litigant in unrelated litigation. The court reasoned that an appealing defendant is not filing "'new'" litigation but rather attempting to "'undo'" the results of litigation that had been instituted against him. (Id. at pp. 40-41.)
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The statutory definition of "vexatious litigant" includes a litigant who:
"(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 ...." (§ 391, subd. (b)(1).)
There need not be pending litigation for a court to move to declare an individual a vexatious litigant and subject him to a prefiling order. The prefiling order is directed at precluding the initiation of a meritless lawsuit and the costs associated with defending such litigation. Thus, section 391.7 affords protection to defendants named in pleadings not yet filed with the court. If individuals named as defendants in these lawsuits were required to wait until the action was pending, the prefiling order provided for in section 391.7 would be illusory. (Bravo v. Ismaj, supra, 99 Cal.App.4th at pp. 222-223.)
A court on its own motion may declare a party a vexatious litigant and enter a prefiling order. (§ 391.7, subd. (a).) For example, in In re Luckett (1991) 232 Cal.App.3d 107, the Court of Appeal issued a written order notifying Luckett that it appeared he was a vexatious litigant based on his having filed 43 different appeals and writs as well as unmeritorious motions, pleadings, and other papers. The order notified Luckett the court was considering entering a prefiling order declaring him a vexatious litigant and prohibiting him from filing any new litigation without first obtaining leave of the presiding judge. (Id. at p. 108.) The order directed the clerk to set the matter for hearing on a given date, advised Luckett of his right to appear before the court at that time and present argument and evidence on whether he was a vexatious litigant and whether the court should enter the proposed prefiling order. (Ibid.) Luckett submitted written materials disputing whether he met the criteria to be declared a vexatious litigant but did not appear at the scheduled hearing. (Id. at p. 109.) The court considered Luckett's written arguments, found him to be a vexatious litigant within the meaning of the statute, and entered a prefiling order barring him from filing new litigation without the permission of the presiding judge. (Id. at p. 110.)
In In re Whitaker (1992) 6 Cal.App.4th 54, 57, the Court of Appeal declared Whitaker a vexatious litigant after ordering him to show cause why a prefiling order should not be granted. The matter was set for hearing, Whitaker appeared and presented arguments, and the court issued a written opinion declaring him a vexatious litigant subject to a prefiling order.
In Andrisani v. Hoodack (1992) 9 Cal.App.4th 279, 281, Andrisani had been found to be a vexatious litigant on two occasions in published Court of Appeal decisions. When Andrisani filed an application for a waiver of court fees and costs in anticipation of filing a new appeal, the court issued an order requesting the parties to file memoranda addressing whether the court should issue a prefiling order that would prohibit him from filing new litigation. (Id. at pp. 280-281.) Based on those responses, the court found no sound reason to preclude it from issuing a prefiling order and did so. (Id. at p. 281.)
Notice and Hearing Requirements
Although the statute is silent on the subject, an individual may not be declared a vexatious litigant without a noticed motion and hearing, which includes the right to oral argument and presentation of evidence. (Bravo v. Ismaj, supra, 99 Cal. App. 4th at p. 225.) However, failure to hold oral argument or a hearing does not necessarily constitute prejudicial error. If the litigant is afforded a full and fair opportunity to litigate the issues in the documents he or she files, the error may be harmless. (Id. at pp. 225-227.)
Application to Mr. Pierce
Mr. Pierce meets the definition of a vexatious litigant provided in section 391, subdivision (b)(1), in that in the immediately preceding seven-year period he has commenced, prosecuted, or maintained in propria persona at least five litigations that have been finally determined adversely to him. The following is a list of six such cases:
1. In F059887, In re the Marriage of Ronald E. Pierce and Nadira M. Arreola, Mr. Pierce appealed from the trial court's order of February 19, 2010, denying his request for a modification of child custody and other relief. This court affirmed the order of the lower court on February 17, 2011.
2. In F060078, In re the Marriage of Ronald E. Pierce and Nadira M. Arreola, Mr. Pierce appealed from the trial court's order entered on April 9, 2010, extending a restraining order against him. This court affirmed the order of the lower court on February 17, 2011.
3. In F060724, In re the Marriage of Ronald E. Pierce and Nadira M. Arreola, Mr. Pierce appealed from the trial court's order of June 25, 2010, which
increased his visitation time with his children but denied some of the relief he had sought. This court affirmed the order of the lower court on May 20, 2011.
4. In F061097, Pierce v. Arreola, Mr. Pierce appealed from the trial court's order entered on September 3, 2010, which, among other things, denied his petition for writ of habeas corpus, denied his motion for protective order, and denied his request for appointment of attorney. This court affirmed the order of the lower court on August 31, 2011.
5. In F061379, Pierce v. Arreola, Mr. Pierce appealed from the trial court's order of October 1, 2010, that denied his motion to obtain protective orders and to modify child custody arrangements. This court affirmed the order of the lower court on August 31, 2011.
6. In F061386, Pierce v. California Unemployment Insurance Appeals Board, Mr. Pierce appealed the trial court's order denying his petition for writ of mandate arising out of the Unemployment Insurance Appeals Board decision denying his request for disability benefits. This court affirmed the order of the lower court on October 12, 2011.
DISPOSITION
This court finds that Ronald E. Pierce is a vexatious litigant within the meaning of section 391. Henceforth, pursuant to section 391.7, Ronald E. Pierce may not file "any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed." (§ 391.7, subd. (a).) Disobedience of this order may be punished as a contempt of court. (Ibid.) "The presiding justice or presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3." (§ 391.7, subd. (b).)
The clerk of this court is directed to provide a copy of this opinion and order to the Judicial Council. (§ 391.7, subd. (e).) Copies shall also be mailed to the presiding judge and clerk of the Tulare County Superior Court.