Filed 5/1/14 Smith v. Spight Property II CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
KEVIN SMITH et al.,
Plaintiffs and Appellants,
A111543
v.
SPIGHT PROPERTY II, LLC et al., (Contra Costa County
Super. Ct. No. C04-00532)
Defendants and Respondents.
I.
INTRODUCTION
Appellants Kevin Smith and Lucienne Hunter, appearing in propria persona as
they did in the trial court, were declared vexatious litigants and required to furnish
$250,000 security in order to proceed with their lawsuit against respondents. The trial
court also subjected appellants to a prefiling order under Code of Civil Procedure section
391.71 prohibiting them from filing any new litigation in propria persona without first
obtaining court permission. Appellants’ lawsuit was eventually dismissed after they
repeatedly failed to “state coherent and legal[ly] sufficient claims” against respondents.
1
All further undesignated statutory references are to the Code of Civil Procedure.
1
Appellants’ opening brief challenging these determinations violates numerous
rules of court, including California Rules of Court, rule 8.204(a)(2)(C)2 requiring “a
summary of the significant facts limited to matters in the record,” and rule 8.204(a)(1)(C)
requiring any reference to a matter in the record be supported by a “citation to the volume
and page number of the record where the matter appears.” On this basis, alone, we would
be fully justified in rejecting appellants’ appeal and in affirming the dismissal of this
case.
Despite the procedural grounds warranting affirmance, we have, however,
reviewed the record, and conclude the trial court’s determination that appellants are
vexatious litigants who must obtain a prefiling order before commencing further
litigation is supported by substantial evidence. We also conclude the court did not abuse
its discretion in ordering appellants to post $250,000 in security in order to proceed with
this litigation, and that the trial court’s dismissal of this case was proper. Therefore, we
affirm the trial court’s orders on their merits.
II.
FACTS AND PROCEDURAL HISTORY
We need not provide a detailed recitation of the facts underlying this case to reach
our results in this appeal. Briefly, on December 31, 2001, respondent Spight Property II,
LLC (Spight) purchased undeveloped property in Cloverdale, California. When Spight
acquired the property, there were more than 25 commercial coaches (modular structures
on wheels) on the property belonging to appellants. In 2002, Spight filed an unlawful
2
All rule references are to the California Rules of Court. An order determining a
party to be a vexatious litigant an requiring the posting of security under section 391.3 is
not directly appealable. However, an appeal lies from the subsequent order or judgment
of dismissal. (Childs v. PaineWebber, Incorporated (1994) 29 Cal.App.4th 982, 985,
988, fn. 2; Roston v. Edwards (1982) 127 Cal.App.3d 842, 846.) Appellants have
appealed from the order of dismissal. Consequently, the trial court’s determinations
declaring them to be vexatious litigants and requiring them to post security are properly
reviewable in this appeal.
2
detainer action against appellants to have them move the “old and seemingly abandoned”
commercial coaches from the property.
Despite their agreement to do so, appellants failed to move the commercial
coaches. The judge who heard the unlawful detainer action signed an order after hearing
on February 20, 2003, which provided “that [respondents’] personal property on the
Cloverdale Property shall be disposed of by [appellants] pursuant to Civil Code section
1983 et seq.” During the next year, appellants did not move the commercial coaches
from the property.
Appellants filed this lawsuit on March 26, 2004, alleging 21 causes of action
related to the abandoned commercial coaches. Their legal theories and the facts allegedly
supporting these theories are difficult to decipher. However, their opening brief offers
the following synopsis of their grievances against respondents: “[Respondents] entered
into a leased property, forcibly removed appellants [sic] equipment from said property,
moved it to an entirely different parcel which they claim to be better for appellants
because it is highly visible (from U.S. 101) . . . .” Respondents allegedly “damaged
[appellants’] equipment and placed them [sic] in a highly visible location, which caused
[appellants’] equipment to be subject to vandalism.” Appellants acknowledge, “Perhaps,
the complaint Appellants filed was burdensome, but after everything that respondents had
done to destroy [their] business, it seemed necessary to allege each and every one of
Respondents [sic] egregious actions.”
The lower court sustained respondents’ demurrers to appellants’ original
complaint, with leave to amend. Appellants filed their first amended complaint on July 1,
2004. Respondents again demurred. The demurrers were again sustained with leave to
amend. The second amended complaint (SAC) was filed on September 13, 2004,
alleging 20 causes of action. Respondents again demurred to the SAC.
Respondents then filed a motion to have appellants declared vexatious litigants.
Respondents contended appellants met the statutory definition of “vexatious litigant[s]”
because they had commenced, prosecuted, or maintained in propria persona at least five
litigations in the preceding seven years (§ 391, subd. (b)(1)) and had, while acting in
3
propria persona in litigation, repeatedly filed unmeritorious motions, pleadings or other
papers, conducted unnecessary discovery, or engaged in other tactics that were frivolous
or solely intended to cause unnecessary delays (§ 391, subd. (b)(3)). The motion was
supported by declarations as well as voluminous pleadings and dockets from many
lawsuits filed or maintained by appellants. Respondents further submitted evidence of
the attorney fees already expended in defending this action and a projection of fees likely
to be incurred if the litigation was permitted to proceed.
The lower court sustained respondents’ demurrers to the SAC on the basis that it
failed to allege sufficient facts to state any cause of action, and that the SAC was “still so
uncertain that [respondents] cannot reasonably determine what claims are directed against
which [respondents].” The lower court simultaneously ordered the action stayed pursuant
to section 391.6, until respondents’ vexatious litigants motion could be heard. The order
further set a deadline for the filing of an amended complaint “. . . if, at the hearing [on the
vexatious litigants motion], the court permits [appellants] to file an amended
complaint . . . .”
Respondents’ motion to declare appellants vexatious litigants was heard and
granted on March 2, 2005. The order stated appellants either prosecuted or maintained
20 actions over the past seven years which had either been (a) finally determined
adversely to them, or (b) unjustifiably permitted to remain pending for at least two years
without having been brought to trial or hearing. Further, appellants repeatedly filed
“unmeritorious motions” and engaged in “other tactics that [were] frivolous or solely
intended to cause unnecessary delay.” The court ordered appellants to furnish security in
the amount of $250,000 to be filed with the clerk of the court for respondents’ anticipated
legal expenses. The court also concluded the evidence “clearly indicates the need for [a
prefiling order]” which would prevent appellants “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 . . . .”
The court then generously gave appellants until April 1, 2005, to file a motion for
leave to file a third amended complaint (TAC) that stated “coherent and legally sufficient
4
claims,” and to seek modification of the amount of the security “if valid causes of action
could be presented.” On April 1, 2005, appellants filed a “Motion for Order Granting
Leave to Amend the Complaint and for Hearing to Exonerate the Bond or Alternatively
to Reduce the Bond Amount.” The motion attached a proposed TAC consisting of 13
causes of action and was accompanied by appellant Smith’s declaration, which stated that
appellants would “. . . address the amount of the bond and the reasons for its reduction” at
the hearing. No memorandum of points and authorities was filed with the motion. The
hearing was set for June 8, 2005, but was continued by stipulation to June 22, 2005.
Almost two months later, appellants filed a lengthy “memorandum of points and
authorities,” to which respondents objected.3
The court issued a tentative ruling denying appellants’ motion to once again
amend the complaint and ordering the case dismissed with prejudice. Appellants
intended to contest this tentative ruling at the hearing scheduled for June 22, 2005, but
failed to timely appear. At the hearing, the court checked its voicemail and determined
that appellants had left a message stating they were in traffic and running late. The trial
court observed that appellants were “. . . well aware of their responsibility to be here and
to be here on time. I am not going to require counsel to remain here and wait upon
[appellants] Miss Hunter and Mr. Smith’s deciding to show up, nor am I going to keep
counsel waiting on the trial matter. [¶] My tentative [ruling] is confirmed as the order of
the court.”
The court’s written order dismissing this case with prejudice states: “[Appellants]
have still failed to convince the court that they may prosecute a viable action. Despite
repeated admonishments from this court and repeated assurances from [appellants] that
they could amend their pleadings to conform to legal requirements, the [TAC] is
essentially a repetition of the allegations in previous complaints, with only superficial
changes. . . . [Appellants] still fail to allege, and are apparently incapable of alleging, a
3
The trial court did not consider appellants’ points and authorities, noting
appellants “failed to obtain leave of court for late submission.”
5
valid lease agreement with any of the [respondents] and have not shown that any
[respondents] had any duty to protect the trailers they left on [respondents’] property.”
Appellants filed a motion for reconsideration on July 5, 2005, seeking
reconsideration of the court’s decision not to wait for appellants to arrive at the hearing
before making its ruling. Appellants filed a notice of appeal on August 22, 2005, prior to
the hearing on the motion for reconsideration. The court denied the motion for
reconsideration, finding that appellants failed to present any new facts of evidentiary
significance or new law in support of the motion.
At the hearing on respondents’ request for attorney fees as the prevailing party
under Civil Code section 17174, appellant Hunter represented that she had just filed for
bankruptcy (U.S. Bkrptcy. Ct., Case No. 05-44566-EDJ13), so the matter must be stayed
and no attorney fees motion could be awarded. However, appellant Hunter admitted that
appellant Smith was not a party to the bankruptcy filing. On September 1, 2005, an
attorney fees award in favor of respondents was entered against appellant Smith alone, in
the amount of $75,000.
While the bankruptcy action remained pending, this appeal was stayed. On
June 4, 2012, appellants filed a status report indicating that all bankruptcies that would
have affected this appeal were closed. On June 6, 2012, this court issued an order
indicating “the stay of this appeal is now lifted” and set a briefing schedule. The matter
is now fully briefed and ready for resolution.5
4
Where attorney fees are provided for by contract, the prevailing party is entitled
to attorney fees. (Civ. Code, § 1717.) The prevailing party is “the party who recovered a
greater relief in the action on the contract.” (Id. at subd. (b)(1).) A defendant who
obtains a dismissal with prejudice is a prevailing party. (§ 1032, subd. (a)(4); Adler v.
Vaicius (1993) 21 Cal.App.4th 1770, 1776.)
5
On October 31, 2005, Acting Presiding Justice William R. McGuiness signed an
order allowing this appeal to proceed.
6
III.
DISCUSSION
A. General Rules of Appellate Review
As respondents emphasize, there are black-letter rules of appellate review that
have largely been ignored by appellants. The fact that appellants are appearing in propria
persona does not exempt them from these requirements. A litigant has a right to act as
his or her own attorney but, in so doing, should be restricted to the same rules of evidence
and procedure as is required of those qualified to practice law before our courts.
Otherwise, ignorance is unjustly rewarded. (Harding v. Collazo (1986) 177 Cal.App.3d
1044, 1055-1056.)
1. Appellate Record
First, appellants have the burden of providing an adequate record on appeal.
(Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
“ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful
review, the appellant defaults and the decision of the trial court should be affirmed.’
[Citation.]” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412,
1416.) In other words, “[w]here [appellant] fails to furnish an adequate record of the
challenged proceedings, his claim on appeal must be resolved against him. [Citations.]”
(Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.)
Appellants chose to proceed by filing an appellants’ appendix. Under rule
8.124(b)(1)(B), an appendix must contain all documents “necessary for proper
consideration of the issues, including, for an appellant’s appendix, any item that the
appellant should reasonably assume the respondent will rely on.” Appellants’ appendix
consists of three volumes containing a hodgepodge of documents, many of which are
incomplete. We cannot ascertain whether most of the documents contained in the
appellant’s appendix were part of the record below. The appendix is not in any
discernible order and is confusing and disorganized. Consequently, the appendix violates
rule 8.144(a)(1)(C), because it fails to arrange documents chronologically.
7
Appellants’ appendix also fails to include many of the relevant documents that
were filed by respondents in the trial court. For example, this appeal is primarily taken
from the trial court’s order declaring appellants vexatious litigants and the subsequent
dismissal of this case after appellants failed to post security. Nevertheless, appellants’
appendix does not include the exhibits attached to respondents’ motion to declare
appellants vexatious litigants, including respondents’ appendices A through M and the
many hundreds of pages of court documents referenced in those appendices. Because the
superior court relied upon these documents in granting the vexatious litigant motion,
appellants should have reasonably assumed that respondents would rely on those moving
papers in this appeal. These documents are clearly necessary for the proper consideration
of the issues in this appeal.
If we did not have a complete clerk’s transcript, which includes all of the
documents filed in connection with respondents’ vexatious litigant motion, our opinion
would end here. The only reason we are able to review the matter on its merits is because
the clerk’s transcript provides a complete picture of the proceedings below; and
respondents have taken the time and effort to prepare a thorough response to this appeal
with appropriate references to the clerk’s transcript, which has greatly assisted this court
in responding to appellants’ arguments.
2. Appellate Briefing
An appellate brief must: (1) state each point under a separate heading or
subheading summarizing the point; (2) support each point by argument and, if possible,
by citation of authority, and (3) see that every factual reference is supported by a citation
to the appellate record. (Rule 8.204(a)(1)(B), (C).)
“To demonstrate error, appellant must present meaningful legal analysis supported
by citations to authority and citations to facts in the record that support the claim of error.
[Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) “[C]onclusory claims of
error will fail.” (Ibid.) We are entitled to disregard factual assertions and legal
arguments for which proper support is not provided. (Grant-Burton v. Covenant Care,
8
Inc. (2002) 99 Cal.App.4th 1361, 1379 [regarding unsupported factual assertions]; People
v. Stanley (1995) 10 Cal.4th 764, 793 [regarding unsupported legal arguments].)
In many respects, appellants’ brief is akin to the brief in Richmond Redevelopment
Agency v. Western Title Guaranty Co. (1975) 48 Cal.App.3d 343, which the court
described as “nothing more than what amounts to a random and somewhat garbled recital
of alleged grievances . . . .” (Id. at p. 347.) Appellants throw out assertions of law and
fact without citation to authority. Their brief consists of an ambiguous, rambling
narrative full of charges and conclusory allegations against respondents, including that
they “wrecked” appellants’ “business livelihood.” Appellants repeatedly claim that “to
this day” they “do not understand why Respondents turned down [appellants’] reasonable
[settlement] offer . . . .”6
For the foregoing reasons, we will treat as forfeited all of the assertions that are
not set forth in a separate heading and are not supported by at least some measure of
appropriate argument or authority. (Mansell v. Board of Administration (1994) 30
Cal.App.4th 539, 545-546; Troensegaard v. Silvercrest Industries, Inc. (1985) 175
Cal.App.3d 218, 228.) With that explanation, we will address the main arguments that
appellants appear to be making.
B. Law Applicable to Vexatious Litigants
The vexatious litigant statutes (§§ 391-391.7) were enacted in 1963 to curb misuse
of the court system by those acting in propria persona who file meritless litigation and/or
repeatedly re-litigate the same issues. Such activity does violence to judicial economy
and prejudices those with valid legal issues from obtaining timely resolution of their
claims. (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008; In re Whitaker (1992) 6
Cal.App.4th 54, 57; First Western Development Corp. v. Superior Court (1989) 212
Cal.App.3d 860, 870.)
6
In reply, respondents explain they believe appellants’ lawsuit was “frivolous”
and they “were well within their rights to refuse to settle such a case.”
9
“ ‘Vexatious litigant’ means a person who does any of the following: [¶] (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.” (§ 391,
subd. (b).)
The vexatious litigant statutes provide two remedies. The first is an order to
furnish security under section 391.3. This remedy is obtained by bringing a motion under
section 391.1, which requires a determination that the plaintiff is a vexatious litigant, and
that “there is not a reasonable probability that the plaintiff will prevail [on the merits].”
(§ 391.3.) If the security is not posted, the action “shall be dismissed as to the defendant
for whose benefit it was ordered furnished.” (§ 391.4; Holcomb v. U.S. Bank Nat. Assn.
(2005) 129 Cal.App.4th 1494, 1499 (Holcomb).)
“Another remedy is found in section 391.7, which authorizes the court to ‘enter a
prefiling order which prohibits 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.’ (§ 391.7, subd. (a).) The
presiding judge may allow the filing of the new litigation ‘only if it appears that the
10
litigation has merit and has not been filed for the purposes of harassment or delay. The
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
Judicial Council maintains a record of all vexatious litigants in the state and distributes a
list to the clerks of the court annually. (§ 391.7, subd. (e).) The remedy provided in
section 391.7 is in addition to the other remedies provided by the vexatious litigant
statutes. (§ 391.7, subd. (a).)” (Holcomb, supra, 129 Cal.App.4th at pp. 1499-1500,
fns. omitted.)
C. Trial Court’s Determination Appellants Are Vexatious Litigants
In this appeal, appellants primarily challenge the court’s order designating them
“vexatious litigants,” subjecting them to a prefiling order prohibiting them from filing
future litigation without court permission, and requiring them to post $250,000 in security
as a condition of continuing their litigation against respondents.
In making their arguments, appellants never cite the proper standard of review.
Furthermore, they argue the matter as if this court makes a de novo reconsideration of
respondents’ motion to have appellants declared vexatious litigants. Instead, our standard
of review is well established. “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; Holcomb, supra, 129
Cal.App.4th at pp. 1498-1499.)
Under the substantial evidence standard of review, “ ‘the power of an appellate
court begins and ends with the determination as to whether there is any substantial
evidence, contradicted or uncontradicted, which will support the finding of fact.
[Citations.] [¶] When two or more inferences can reasonably be deduced from the facts,
a reviewing court is without power to substitute its deductions for those of the trial
court.’. . .” (Scott v. Common Council (1996) 44 Cal.App.4th 684, 689, quoting Green
11
Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-
785, original italics.)
Properly focused, respondents submitted more than enough evidence to establish
appellants met the statutory requirements set out by section 391 to be declared vexatious
litigants. Judge Terence L. Bruiniers deemed respondents’ evidence “compelling.” He
found “[a]ppendices A-M submitted by [respondents] provide a detailed synopsis of the
unmeritorious motions and other dilatory tactics used by [appellants].” This evidence
revealed appellants “have either prosecuted or maintained twenty (20) actions over the
past seven years which have either been (a) finally determined adversely to the person or
(b) unjustifiably permitted to remain pending at least 2 years without having been
brought to trial or hearing. There are multiple other actions filed over 7 years ago.”
Judge Bruiniers found appellants failed to submit any “meaningful” evidence in
opposing the motion, relying instead on their own declarations, which offered excuses
and explanations, but did not meaningfully refute the evidence presented. The court
concluded that the evidence was sufficient to support an order requiring appellants to post
$250,000 as a condition of proceeding in the litigation against respondents and to subject
them to prefiling requirements for any new litigation they may file.7
On appeal, appellants claim that “[i]f the court had actually looked into the cases
presented, the evidence is overwhelming that appellants try over and over to work with
people with whom they have a disagreement before they litigate and that it [sic] at all
possible they settle.” However, this argument is undercut by a review of the material in
support of respondents’ vexatious litigants’ motion, which reveals a considerable history
of vexatious litigation. Appellants have been called “virtual litigation machines, causing
every opponent to incur massive fees, due to their litigation strategies.” The record
7
On August 19, 2013, we reserved for consideration with this appeal appellants’
request for judicial notice of several documents appellants claim are relevant to the
court’s finding they are vexatious litigants. We deny the request for judicial notice
because the documents were not before the trial court when it made its ruling. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
12
before us bears out that description and substantiates respondents’ claim that appellants
“effectively manage their litigation by claiming cancer, inability to retain counsel,
bankruptcy, spinal injury, auto accident, ‘family emergencies,’ throat surgeries and a
plethora of Notices of Bankruptcy and Notices of Unavailability.”
In short, the record overwhelmingly shows appellants meet the statutory definition
of vexatious litigants because they have established a pattern of misusing the courts of
this state, and of wasting precious time and resources of the opposing parties and the
judicial system. (See Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.) Appellants’ self-
serving explanations and excuses on appeal do not demonstrate that the lower court erred
in declaring them vexatious litigants, requiring them to post security for the litigation to
proceed, and entering a prefiling order prohibiting them from filing new litigation in
propria persona without court permission.
D. Motion for Reconsideration
Appellants also challenge the denial of their motion for reconsideration. That
motion asked the trial court to reconsider its ruling denying appellants’ motion requesting
permission to file their TAC, and to exonerate, or alternatively to reduce, the amount of
security to proceed with this litigation. When appellants failed to appear for the hearing
on this motion, the trial court proceeded to adopt its tentative ruling denying the motion
and dismissing this case. In seeking reconsideration of this ruling, appellants claim they
were unlawfully deprived of a meaningful opportunity to be heard.
Citing a number of cases decided prior to 2012, respondents first claim that orders
denying a motion for reconsideration are not appealable. It is true that prior to 2012,
there was a split in decisional authority over whether an order denying a motion for
reconsideration under section 1008 was separately appealable. As the court noted in
Powell v. County of Orange (2011) 197 Cal.App.4th 1573 (Powell), “[t]he majority of
courts addressing the issue have concluded an order denying a motion for reconsideration
is not appealable, even when based on new facts or law. [Citations.]” (Id. at pp. 1576-
1577.)
13
However, an amendment to section 1008, subdivision (g), effective January 1,
2012, has since clarified that “[a]n order denying a motion for reconsideration made
pursuant to subdivision (a) is not separately appealable. However, if the order that was
the subject of a motion for reconsideration is appealable, the denial of the motion for
reconsideration is reviewable as part of an appeal from that order.” (§ 1008, subd. (g);
see Assem. Bill No. 1067 (Reg. Sess.2011–2012) § 1.) Thus, this amendment resolved
the split in favor of the majority of courts that had concluded that: (1) an order denying a
motion for reconsideration is not appealable, even when based on new facts and law, but
(2) the denial of a motion for reconsideration is reviewable if the request for
reconsideration is made from an appealable judgment or order. (Powell, supra, 197
Cal.App.4th at p. 1577.)
Considering the denial of appellants’ motion for reconsideration as part of our
appellate review of the dismissal of this lawsuit, we turn to the merits of the court’s
ruling. “A trial court’s ruling on a motion for reconsideration is reviewed under the
abuse of discretion standard. [Citation.]” (Glade v. Glade (1995) 38 Cal.App.4th 1441,
1457.) Section 1008 expressly prohibits the granting, or even consideration, of a motion
for reconsideration unless it is “based upon new or different facts, circumstances, or law.”
(§ 1008, subds. (a), (e).) In addition, the moving party is generally required to show a
satisfactory explanation for the failure to present those new or different facts or law
earlier. (McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265; New
York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
At the hearing on the reconsideration motion, appellants admitted that they were
not seeking reconsideration of the court’s ruling based on any new or different
circumstances or law; but only wished to challenge the court’s decision to go forward
with the hearing in appellants’ absence. In the court’s written order denying appellants’
motion for reconsideration, the court pointed out appellants “present[ed] no new facts of
any evidentiary significance and no new law. [Appellants’] failure to timely appear for
the previously scheduled hearing in this matter does not constitute a basis to reconsider
the order . . . .”
14
On appeal, appellants’ claim this ruling demonstrates the “Judge’s obvious bias
against Pro Per litigants.” The court responded to this identical argument at the hearing
on appellants’ motion for reconsideration by making this oral ruling: “Now, I have heard
you sit here and accuse the Court of being biased against you because you are pro pers, of
failing to give you adequate consideration because you are pro pers. Whatever your
feelings are on that, that I can’t do anything about[.] [¶] But I think the record will reflect
this Court has bent over backwards to give you different considerations, including
additional time to amend your pleadings, when as far as I could see, you have engaged in
exactly the same pattern of this conduct before this Court which resulted in the finding of
being a vexatious litigant.”
The court’s remarks were justified. The record before us demonstrates the court
exhibited extraordinary patience and restraint in allowing appellants to make several
attempts to state a viable cause of action against respondents. No abuse of discretion has
been demonstrated in the denial of appellants’ motion for reconsideration.
E. Trial Court’s Award of Attorney Fees
Finally, appellants argue that respondents were not entitled to recover $75,000 in
attorney fees awarded by the trial court. They claim the trial court’s award of attorney
fees is unwarranted and excessive because in preparing the vexatious litigant motion,
respondents “ran up a very significant amount of those fees emailing, phoning and
contacting those parties with whom Appellant [sic] had had prior litigation, despite the
fact . . . the court records obtained in those matters should have been sufficient for their
purpose.” They also claim respondents “have included time spent in pursuing the ends of
three prior cases they filed against Appellants, which they were unsuccessful at and
which should not be included in this case’s costs.”
In response, respondents first argue appellants cannot challenge the court’s
attorney fee award as part of this appeal. They point out the court’s September 1, 2005
order awarding respondents $75,000 in attorney fees postdated appellants’ August 26,
2005 notice of appeal from the judgment dismissing their action. Respondents claim that
15
because “[a]ppellants never separately appealed the attorney’s fees award . . . it is too late
to do so now.”
However, we note the judgment, which was timely appealed, indicates that
respondents are entitled to recover their costs, and appellants’ notice of appeal indicates
appellants appeal “any post-judgment orders granting [respondents] costs and/or fees.”
Thus, we liberally construe the premature notice of appeal to be from the subsequent
appealable order. (See rule 8.100(a)(2); Grant v. List & Lathrop (1992) 2 Cal.App.4th
993, 998 [when “a judgment awards costs and fees to a prevailing party and provides for
the later determination of the amounts, the notice of appeal subsumes any later order
setting the amounts of the award” (italics added)]; R. P. Richards, Inc. v. Chartered
Construction Corp. (2000) 83 Cal.App.4th 146, 158 [same].)
The amount of attorney fees awarded is left to the discretion of the trial court.
(Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.) Once again,
appellants’ arguments challenging the court’s award of attorney fees as excessive are
conclusory and unaccompanied by even a single citation to legal authority or the record.
Such deficient argument is properly disregarded. (In re S.C., supra, 138 Cal.App.4th at
p. 408; Grant-Burton, supra, 99 Cal.App.4th at p. 1379.) Therefore, we reject appellants’
challenge to the attorney fee award.
F. Request for Sanctions
Respondents argue they are entitled to sanctions because “the instant appeal is
frivolous, lacks any merit, refers to an incomplete and improper Appendix and has been
prosecuted solely for the purpose of harassing Respondents.” Appellants do not respond
to this argument.
Section 907 and rule 8.276(a)(1) provide for the awarding of sanctions by the
reviewing court when the appeal is frivolous or taken solely for delay. “[A]n appeal
should be held to be frivolous only when it is prosecuted for any 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
16
637, 650.) However, an appeal that is simply without merit is not by definition frivolous.
The borderline between a frivolous appeal and one which has no merit is vague, therefore
the punishment for a frivolous appeal should be used most sparingly to deter only the
most egregious conduct. (Id. at pp. 650-651.)
Although we have determined this appeal is without merit, we do not find the facts
support a finding of egregious conduct justifying sanctions. We therefore decline to
assess sanctions against appellants.
IV.
DISPOSITION
The judgment dismissing this action is affirmed. Respondents are entitled to
recover their costs on appeal.
_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
HUMES, J.
17