Filed 6/16/15 That v. Alders Maintenance Assn. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
DINH TON THAT,
Plaintiff and Appellant, G049216
v. (Super. Ct. Nos. 07CL05523,
30-2009-00122398, 30-2010-
ALDERS MAINTENANCE 00394102)
ASSOCIATION et al.,
OPINION
Defendants and Respondents.
Appeal from an order of the Superior Court of Orange County, Janet Pesak,
Temporary, Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Dinh Ton That, in pro. per., for Plaintiff and Appellant.
Law Offices of Nicholas T. Basakis and Nicholas T. Basakis for
Defendants and Respondents.
* * *
Appellant Dinh Ton That appeals from the trial court’s order declaring him
a vexatious litigant pursuant to Code of Civil Procedure section 391.1 This order was
based on a series of lawsuits against respondents Alders Maintenance Association
(Alders or the Association) and 16 others, including property management companies,
their representatives, volunteer members of the Alders Board of Directors (Board), and
other homeowners who volunteered to assist in Board elections. This consolidated action
involved three specific lawsuits, which were concluded after this motion was decided, by
way of terminating sanctions against appellant. Appellant has also brought two other
suits which have since been concluded in respondents’ favor, as well as a small claims
matter dismissed for lack of jurisdiction. He has taken three prior appeals to this court.
We conclude the evidence presented to the trial court demonstrated the
vexatious litigant order was amply justified. Accordingly, the order is affirmed.
I
FACTS
The Alders community is a 248-unit condominium development in Irvine.
It is governed by respondent Alders through the Board pursuant to the Davis-Stirling
Common Interest Development Act (the Act). (Former Civil Code, § 1350 et seq.; now
Civil Code, § 4000 et seq.) Appellant served as a member of the Board from 2002 until
November 2006, when he was recalled by the membership. He was the sitting Board
president at the time.
Pursuant to former Civil Code sections 1363.03 through 1363.09, which
were adopted by the legislature in 2006, in September 2006, the Board promulgated new
election rules, specifying qualifications for Board members, nomination procedures, and
voting procedures. One of the qualifications was that prospective Board members must
1 Subsequent statutory references are to the Code of Civil Procedure unless otherwise
indicated.
2
be in good standing with Alders, and could not be in litigation with the Association,
presumably due to the inherent conflict of interest.
Appellant, was directly impacted by these changes because he was not a
member in good standing at the time. According to Alders, appellant took this
personally, viewing it as part of a wide-ranging conspiracy to deny him a seat on the
Board.
First Lawsuit (That Consolidated I)
After the annual election in July 2007, appellant filed his first lawsuit, That
v. Professional Community Management (Super. Ct. Orange County, 2007, No.
07CL05523). His initial complaint was 41 pages long and 36 lines per page. It alleged
causes of action for “temporary injunctive, declaratory, permanent injunctive reliefs 1 &
2, violation of [Business and Professions Code sections] 17200 and conspiracy, violation
of election laws & conspiracy, quasi-abuse of process & conspiracy, pattern of
racketeering (R.I.C.O.).” Each claim related to the conduct of the 2007 Board election.
Appellant sought reinstatement to the Board, the invalidation of the election rules, and
other similar relief, alleging a conspiracy against him as well as unfair business practices
and racketeering.
Like each of his subsequent lawsuits, it was filed on his own behalf,
although that did not prevent him from demanding attorney fees. His alleged
compensatory damages were $7,561.91, although he also sought double or treble
damages, punitive damages, and injunctive relief.
Several of these claims were disposed of on demurrer in February 2008,
including the Business and Professions Code section 17200 claim. The three claims
primarily related to the conduct of the election were tried, resulting in a directed verdict
against appellant in December 2008. The court found appellant failed to meet his burden
of proof and failed to establish any liability on behalf of the individual plaintiffs.
3
According to respondents, “all of the motions and ex parte applications he filed,
including a demurrer to defendants’ answer, were denied. Additionally, he was
sanctioned for discovery abuses.”
Appellant then appealed the entire case, including the demurrers, to the
appellate division of the superior court. In February 2010, most of the trial court’s
decisions were upheld, including the finding appellant had failed to meet his burden of
proof on the claim seeking an injunction to be restored to the Board, and general violation
of election laws. The court also found the demurrer on the Racketeering Influenced
Corrupt Organizations Act (RICO) claim was properly sustained. The appellate division
granted a limited reversal as to the sustained demurrers on certain claims, concluding
appellant should have been granted leave to amend to plead injury in fact, primarily on
the Business and Professions Code section 17200 claims, allegations missing from
appellant’s earlier pleadings. The court also redesignated the case as an unlimited civil
matter. We rejected appellant’s attempt to transfer his appeal from the appellate division
to this court (G043471, Apr. 8, 2010).
Upon remand, appellant attempted to amend his complaint. His third
amended complaint, filed in August 2010, was 112 pages and included 43 footnotes,
extensive citations and legal arguments. His claims under Business and Professions Code
section 17200 resulted in a demurrer sustained without leave to amend in October 2010,
on the grounds that he suffered no injury in fact. His further request for attorney fees,
creation of a “legal trust fund”2 and punitive damages were stricken. This apparently left
only a claim for declaratory relief directly relating to the election rule requiring
candidates not be in litigation with the Association. Defendants answered on October 28,
2010.
2 Appellant’s apparent intent here was to require respondents to put money into a “legal
trust fund” that other homeowners could use to sue the Association.
4
Second Lawsuit (That Consolidated II)
While That Consolidated I was still at the pleading stage, appellant filed
That v. Professional Community Management (Super. Ct. Orange County, No. 30-2009-
00122398) (That Consolidated II) on April 30, 2009. The first paragraph of the
complaint acknowledged it was a “continuation” of the related case, That Consolidated I.
The 30-page complaint alleged most of the same causes of action as That Consolidated I,
including violation of Business and Professions Code section 17200, the RICO statute
(18 U.S.C. 1961 et seq.), and conspiracy, and again it sought injunctive relief,
compensatory damages, and attorney fees, despite the fact that appellant was representing
himself. He again requested a “legal trust fund.”
All of the wrongs appellant asserted were related to his purported exclusion
from the 2008 Board election and were essentially duplicative of the claims in That
Consolidated I. He claimed Alders enacted “illegal” election laws and wrongfully
disciplined him, and sought to invalidate the rule requiring members be in good standing
to run for office.
Third Lawsuit (That Consolidated III)
On July 28, 2010, appellant filed That v. Alders Maintenance Association
(Super. Ct. Orange County, No. 30-2010-00394102) (That Consolidated III). This
complaint addressed the 2009 and 2010 Alders elections, and again stated a cause of
action for violation of Business and Professions Code section 17200, repeated the attempt
to invalidate the “member in good standing rule” and other similar issues related to the
election. Appellant again sought the establishment of a “legal trust fund.”
Additional Cases
In addition to the cases discussed above, appellant filed two other cases in
superior court. On March 9, 2009, he filed That v. Alders Maintenance Association
5
(Super. Ct. Orange County, No. 30-2009-0011969) (That IV), a petition for a preemptory
writ of mandate. This matter was related to an attempted recall of the Board sitting at
that time, which respondents claim was orchestrated by appellant. After the recall failed
for lack of quorum, the meeting was adjourned. Appellant contended the recall should
have been continued to another date and sought a writ to reopen those proceedings. The
petition was summarily denied,3 as was a motion for reconsideration. Appellant filed an
appeal with this court, which was dismissed after the regular annual election was
conducted. (G042070, app. dism. Oct. 1, 2009.) Upon remittitur, appellant attempted to
“amend” his writ petition by adding causes of action, which was rejected by the trial
court as a procedurally improper effort to convert a writ petition into a complaint.
Undeterred, on March 5, 2010, nearly 13 months after the recall election,
appellant filed That v. Alders Maintenance Association (Super. Ct. Orange County, No.
30-2010-00350755) (That V), again complaining about the recall election under the Act
and, in an amended complaint, asserting a claim under Business and Professions Code
section 17200. Respondents’ demurrer was sustained and respondents were awarded
some $15,000 in attorney fees.
Appellant appealed, which resulted in this court’s partially published
opinion in That v. Alders Maintenance Assn. (2012) 206 Cal.App.4th 1419.4
Thus, appellant has filed a total of five superior court actions, one small
claims action, and three appeals against respondents. As of the date the vexatious litigant
3Appellant originally tried to bring this claim as one for injunctive relief in small claims
court, which dismissed the matter for lack of jurisdiction.
4 Our opinion in that case was issued after appellant was declared a vexatious litigant and
is therefore of limited relevance, but we note that respondents prevailed on every issue
with the exception of the availability of statutory attorney fees. We agreed with
respondents that appellant’s “decision to file this lawsuit was indeed frivolous . . . .”
(That v. Alders Maintenance Association, supra, 206 Cal.App.4th at p. 1428, fn. omitted.)
This court denied rehearing, and the Supreme Court summarily denied review.
6
motion was filed, plaintiff had not won a lasting victory on any issue; indeed, he had lost
at nearly every turn.
The Vexatious Litigant Motion
On December 17, 2010, respondents moved in That Consolidated III to
have appellant declared a vexatious litigant. They argued appellant attempted to
relitigate issues repeatedly in subsequent lawsuits after those issues had been decided in
previous ones and he engaged in frivolous tactics intended solely to harass. Respondents
pointed to the same issues repeatedly raised in cases against the same set of defendants in
all of the related matters, resulting in $200,000 in attorney fees thus far. The five
lawsuits were essentially based on the same set of facts and legal issues, such as the
“member in good standing rule.” The trial court ruled against him on this issue in That
Consolidated I and the appellate division declined to disturb that ruling in February 2010.
Yet when appellant filed That Consolidated III in July 2010, he raised the same issue.
Despite the court’s rulings dismissing his claims based on Alders’ decision to enact new
election rules, which was dismissed twice on demurrer in That Consolidated I, he
continued to bring the same claim in subsequent cases.
Respondents also argued that appellant engaged in frivolous tactics such as
frustrating discovery, resulting in several thousand dollars in sanctions. He refused to
dismiss his appeal on That IV, his request for a writ of mandate regarding the recall
election, despite the fact the annual election had already been held, requiring respondents
to instead file a motion to dismiss in this court. Despite his self-represented status,
appellant continued to request attorney fees or a “legal trust fund” in each case, despite
the fact motions to strike this language had been consistently granted.
Appellant filed a four-page opposition. If he filed supporting evidence, it is
not included in the record. He argued nothing had been “finally determined” and
accordingly the motion was baseless. He also stated: “It is unfortunate that this court
7
might dislike self-representing parties and might have a propensity to invoke the
vexatious litigant statute as a means to effect such dislike against self-representing
parties.” He offered no evidence of this purported “dislike.” He claimed his pleadings,
despite running to dozens of pages and including legal argument and case citations, “were
and are as necessitated by the legal process.”
Appellant pointed to his sole success at the appellate division as evidence
his claims had merit (while ignoring those claims were ultimately dismissed on remand).
He claimed because of the lack of a transcript, the appellate division had no choice but to
affirm most of the judgment in That Consolidated I (a fact the appellate division does not
mention). Appellant further argued he was justified in bringing a new action for each
election. Finally, he argued the vexatious litigant statute was preempted by the section of
the Act pertaining to remedies (former Civil Code section 1363.09). He cited, without
argument, a single case that involved neither the Act, the vexatious litigant statute, or
principles of preemption.
In reply, respondents pointed to three specific areas appellant persisted in
relitigating: attorney fees, Business and Professions Code section 17200, and the RICO
statute. They also argued his contention that new lawsuits were necessary was simply
wrong: “Cutting through the mostly incoherent babble of plaintiff’s bloated pleadings, it
is evident that plaintiff takes issue with the ALDERS’ election rules. It takes but one
proceeding to adjudicate the legality [of] those rules and the statutes that govern them,
not many. It is unnecessary to file a new action every time a purportedly invalid or
illegal rule is enforced. Final adjudication of the merits of such rules will govern their
enforcement [in] subsequent settings.”
On February 25, 2011, respondents’ motion was granted, and appellant was
ordered to post a bond of $25,000. A prefiling order, preventing appellant from filing
additional actions without approval of the presiding judge, was entered on March 1, 2011.
8
On July 8, 2011, the court granted, over appellant’s opposition, respondents’ motion to
consolidate the three matters we have been referring to as That Consolidated I, II, and III.
Ultimately, the trial court dismissed the three consolidated actions on
November 9, 2012. The judgment, dated January 25, 2013, states that appellant “was
consistently uncooperative in providing responses to written discovery in each of the
three cases. Defendants filed numerous motions to compel against plaintiff, which were
granted in whole or in part. Plaintiff further ignored court orders concerning his failure to
provide basic discovery responses. Plaintiff was sanctioned in each motion to compel,
but failed to pay any of said sanctions.” The court, “based upon plaintiff’s abuse of
written discovery” ordered the appointment of a discovery referee, found neither party
had demonstrated an inability to pay, and ordered the parties to split the fees equally.
Despite the court granting an opportunity to do so, appellant failed to file a sealed
statement of worth and income if he wished to challenge the order. Appellant then
refused to pay his share, and respondents filed a motion for an order compelling him to
do so, or alternatively, for terminating sanctions. The court issued an order to show
cause, but appellant filed no response. Accordingly, the court dismissed the consolidated
cases and ordered appellant to pay reasonable attorney fees and costs.
On June 21, 2013, costs and fees were awarded in the amount of
$305,953.99. In its order, the court noted appellant’s opposition was procedurally
defective for numerous reasons, including exceeding the page limit, and failure to include
tables of contents or authorities. Appellant “was warned about these types of defects in
prior pleadings.”
Appellant filed a notice of appeal listing 33 issues, but he failed to comply
with the vexatious litigant statute by demonstrating to this court that any of those issues
had merit. Only the vexatious litigant determination itself did not require such a
showing, and accordingly, that is the only issue on appeal.
9
II
DISCUSSION
Appellant’s Briefing
We begin with a word about appellant’s briefing in this appeal. In the
interests of justice and to assure parties their arguments have been heard and considered,
our general practice is to address the specific arguments the parties raise, no matter how
legally incorrect or unsupported by the record those arguments might be. But in some
instances, no matter how much time or effort is expended attempting to fathom just what
a party is attempting to say, the arguments presented to us are simply of no use in the
appellate process. This is one of those cases.
Appellant’s opening brief alone is 49 pages and 13,995 words — just short
of the maximum allowable word count, the same word count that must be followed in
most multimillion-dollar complex litigation matters with a multitude of legal issues. It
has sections that start at “A” and continue to “EE” — roughly 30 separate sections, all on
the single legal issue of whether the vexatious litigant order was justified.
This is an example of one such heading, in which “VLS” stands for
vexatious litigant statute: “L. This Logical Bar to Nullification (Dilution, Corruption) of
Necessary-conditions Alternatives Is Reinforced by the Additional Strictness of
Interpretation Arising from the Generality of VLS as a Remedial Statute Which by
Categorizing Category-of-Plaintiffs to be Restrained Works in Opposite Direction To,
and must Therefore Yield To, More Specific Other Remedial Statutes Protecting
Category-of-Plaintiffs From Category-of-Defendants and Prohibiting Specific Conduct
by Category-of-Defendants Against Category-of-Plaintiffs, among Which Other
Remedial Statutes Article_2 (Civ.C._§_1364.09(b)) Specifically Proscribes, and
Therefore Pre-empts, the Remedies of VLS, and Thus VLS Itself.”
We believe appellant is attempting to make some argument about the scope
of the vexatious litigant statute, or perhaps that it is preempted by some other law (which
10
he argued slightly more coherently below), but frankly, we cannot be certain. This
heading is followed by another heading which is followed by a one-sentence argument
that does not support the heading. Neither does the statute cited in the heading.5 Other
headings have no arguments accompanying them, or include one sentence which contains
no argument or authority. Unfortunately, this is a typical rather than an unusual feature
of appellant’s briefing style.
As the trial court noted at one point: “Substantively, the opposition is
virtually incomprehensible. It consists of quotations from cases summaries and other
authorities that lack relevance and materiality. Plaintiff’s attempts at analysis are
illogical and unsound. Plaintiff was warned about this kind of briefing in prior
pleadings.” Appellant is also unnecessarily accusatory toward respondents. In his reply
brief, appellant accuses respondents, without basis, of “fraud on the Court of Appeal” and
attempting a “cover up.”
Our scope of review is limited to issues that have been adequately raised
and are supported by analysis.6 (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
Authority must be on point. (Krupnik v. Hartford Accident & Indemnity Co. (1994) 28
Cal.App.4th 185, 199; Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991,
5 Civil Code section 1364.09 does not appear to have ever existed. Civil Code section
1364, along with the remainder of Title 6 of Part 4 of Division 2 of the Civil Code, was
repealed effective January 1, 2014, pursuant to a comprehensive reorganization of the
Act. The Act was recodified on that date starting with Civil Code section 4000. (Stats.
2012, ch. 180, § 1.) Appellant’s opening brief was filed on August 7, 2014.
In the event appellant is referring to former Civil Code section 1363.09,
subdivision (b), that section provides a prevailing member the right to reasonable
attorney fees and costs. There is no authority for the proposition that it preempts any
other statute.
6We also disregard any attempts by appellant to bring in matters outside the record on
appeal. He attempts to incorporate by reference the clerk’s transcript in case No.
G044799, which is patently improper. The rule permitting such incorporation only
applies in the same action. (Cal. Rules of Court, rule 8.147(b)(1).)
11
1003-1004.) When an appellant raises an issue “but fails to support it with reasoned
argument and citations to authority, we treat the point as waived. [Citations.]” (Badie v.
Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Moreover, “failure of an
appellant in a civil action to articulate any pertinent or intelligible legal argument in an
opening brief may, in the discretion of the court, be deemed an abandonment of the
appeal justifying dismissal.” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)
Accordingly, to the considerable extent appellant’s arguments are simply
unfathomable or incoherent, we cannot address them. While we would be within proper
appellate procedure to simply deem appellant’s arguments waived or to dismiss the
appeal altogether, we shall instead conduct a review, based on the record, as to whether
the court appropriately granted respondents’ motion to designate appellant a vexatious
litigant.
Request for Judicial Notice
On March 11, 2015, well after briefing was closed, appellant requested this
court take judicial notice of certain documents relating to trial court proceedings in
several entirely unrelated matters: Townsend v. Brothers International (Super. Ct.
Orange County, No. 30-2010-00389396) and Wittenberg v. Beachwalk Homeowners
Association (Super. Ct. Orange County, No. 30-2010-00415477) and three related cases.
These documents include pleadings, reporter’s transcripts, and minute orders. He claims
that in a Townsend pleading, for example, Judge Robert Moss did not criticize the page
numbering of a demurrer, while using the same infraction as a basis for applying the
vexatious litigation statute to appellant. He also asserts the trial court documents in the
Wittenberg cases support his arguments in the underlying matters.
First, this request is untimely. Appellant refers to both matters in his
opening brief, and he was therefore aware of them at that time. Indeed, he states his
intent to bring a request for judicial notice in his opening brief, yet he neglected to do so
12
at any time when respondents could have discussed the documents in their own brief. He
claims these documents were “left out from [the] record on appeal” yet he took no action
to remedy this purported defect until shortly before oral argument. Requests for judicial
notice should generally be made “well before” the briefing stage (People v. Preslie
(1977) 70 Cal.App.3d 486, 494), not after briefing is closed.
Moreover, a court will not normally take judicial notice of matters that
were not brought to the attention of the trial court or presented to the trier of fact. (Coy v.
County of Los Angeles (1991) 235 Cal.App.3d 1077, 2083, fn. 3.) As appellant admits,
these were not.
Finally, even if these other procedural defects were not present, we would
decline to take judicial notice of these documents. Contrary to appellant’s argument,
judicial notice of these documents is not proper under the “mandatory” judicial notice
statute, Evidence Code section 451. There is a provision under the “permissive” judicial
notice statute, Evidence Code section 452, subdivision (d), which permits us to take
judicial notice of “[r]ecords of . . . any court of this state,” but does not require us to do
so. (Evid. Code, § 459, subdivision (a).)
We choose not to exercise that discretion. The trial court records offered
by appellant are not citable as legal authority. (R & P Capital Resources, Inc. v.
California State Lottery (1995) 31 Cal.App.4th 1033, 1040; Cal. Rules of Court, rule
8.1115.) That is exactly the purpose for which appellant offers the Wittenberg
documents, and we decline appellant’s invitation to permit an end run around this
principle by taking judicial notice of uncitable documents. Second, the Townsend
documents are simply irrelevant. The fact that one party in one other matter was or was
not given precisely identical treatment to appellant is neither here nor there, and does not
speak to the issue at hand. Matter to be judicially noticed must be relevant to a material
issue. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422-423,
fn. 2.) Accordingly, appellant’s request is denied.
13
Statutory Framework and Standard of Review
As pertinent here, subdivision (b) of section 391defines a vexatious litigant
as “(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,” or “(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.”
“The vexatious litigant statutes (§§ 391-391.7) are designed to curb misuse
of the court system by those persistent and obsessive litigants who, repeatedly litigating
the same issues through groundless actions, waste the time and resources of the court
system and other litigants. [Citation.] [Citations.]” (Shalant v. Girardi (2011) 51
Cal.4th 1164, 1169.)
“Section 391.1 provides that in any litigation pending in a California court,
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. The action is stayed pending determination of the motion.
(§ 391.6.) If, after a hearing, the court finds for the defendant on these points, it must
order the plaintiff to furnish security ‘in such amount and within such time as the court
shall fix.’ (§ 391.3.) The plaintiff’s failure to furnish that security is grounds for
dismissal. (§ 391.4.)” (Shalant v. Girardi, supra, 51 Cal.4th at p. 1170.) Additionally,
“‘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
14
propria persona without first obtaining permission from the presiding judge. [Citation.]’”
(Ibid.)
The trial court’s determination that an individual is a vexatious litigant is an
exercise of its discretion. We presume the order is correct and imply the findings
necessary to support the judgment, upholding the ruling if it is supported by substantial
evidence. (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 407.) When reviewing for
substantial evidence, we “view the evidence most favorably to the prevailing party,
giving it the benefit of every reasonable inference and resolving all conflicts in its favor.
[Citation.] Substantial evidence is evidence of ponderable legal significance, reasonable,
credible and of solid value. [Citation.]” (Oregel v. American Isuzu Motors, Inc. (2001)
90 Cal.App.4th 1094, 1100.)
The Instant Order
This is not a close case, and we find no abuse of discretion in the trial
court’s order. With respect to section 391, subdivisions (b)(2) and (b)(3) are both
grounds for declaring a party a vexatious litigant. Because appellant’s conduct falls so
squarely within subdivision (b)(3), we need not further address (b)(2). Under subdivision
(b)(3), a vexatious litigant is a self-represented person who “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.”
There are myriad examples of such behavior by appellant. He continued to
raise issues previously rejected by the court in subsequent complaints, such as requesting
attorney fees while representing himself, demanding the establishment of a legal trust
fund, and asserting claims such as those under RICO and Business and Professions Code
section 17200, even after such claims had been previously been rejected by the court. He
persisted in maintaining That IV even after the election had been conducted, and brought
That V 13 months after the election in question had taken place. Early on, he sought
15
temporary and permanent injunctive relief preventing respondents from applying the
election rules it had enacted. But he did not actually move for an order until eight months
later, negating any plausible claim of irreparable harm. Unsurprisingly, he lost. His
behavior during discovery eventually led to several thousand dollars in sanctions.
Appellant also ignored court directions about the formatting of his
pleadings, and was admonished again for the same reason months later. The court
eventually struck appellant’s second amended complaint in That Consolidated I for
failure to comply. The sheer volume of the pleadings is also indicative of abusive and
frivolous tactics, especially when combined with a failure to follow formatting rules
designed to increase comprehensibility. Appellant’s complaints sometimes ran as long as
80 to 100 pages or more, not including exhibits. Appellant’s notice of appeal in That
Consolidated I included each and every ruling by the court, including discovery orders.
The notice of appeal in this case initially included 33 issues.
A motion or pleading is “frivolous” if it is “so devoid of merit and be so
frivolous that they can be described as a ‘“flagrant abuse of the system,”’ have ‘no
reasonable probability of success,’ lack ‘reasonable or probable cause or excuse’ and are
clearly meant to ‘“abuse the processes of the courts and to harass the adverse party than
other litigants.”’ [Citation.]” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 972.)
Continually pleading the same rejected causes of action – indeed, continuing to file new
cases at all — was an entirely frivolous tactic in this case. As respondents pointed out in
their motion below, appellant’s principal complaint appeared to be that certain election
rules were illegal. Filing a new case after each election was completely unnecessary to
address any such illegality, if it existed, as a single ruling in a single case would apply to
all future elections. Appellant only needlessly complicated the situation by filing action
after action. We have little doubt that but for the vexatious litigant order, he would have
continued to do so.
16
We have also gleaned from appellant’s briefs that he believes there is some
hierarchy between “procedural rights statutes” and “substantive rights” statutes. Because
the vexatious litigant statute is merely procedural, he claims, it is therefore somehow
subservient to a substantive rights statute such as the Act. Appellant’s argument has no
legal basis, and the cases he cites are completely off point. None of them stand for the
proposition that he asserts. Nor, in fact, does his argument make any sense. If the
vexatious litigant statute must give way every time a statute provided for a substantive
remedy, it would be the exception that swallowed the rule. If the Legislature had
intended the vexatious litigant statute to only apply in rare cases where a substantive
remedy was not at issue, surely the statute would say so. Appellant’s argument, such as it
is, is therefore rejected.
Finally, we note that as early as March 2008, while only That Consolidated
I was pending, respondents attempted to settle this matter. According to their section 998
offer, they proposed reinstating appellant as a Board member, forgiving the special
assessment levied against him, and leaving each party to pay their own fees and costs.
Appellant, obviously, did not accept, despite this offer addressing his primary grievance
— his unseating from the Board. Instead, he continued prosecuting That Consolidated I
until he lost on nearly every issue, and went on to file the additional cases. His opponent
was not a gigantic business entity who could readily afford to defend these cases, but a
fairly small homeowners association. The costs of litigation were specially assessed to
the members, including, ironically, appellant, who wound up paying for a portion of
respondents’ defense. His conduct after being declared a vexatious litigant only
demonstrates the correctness of the order in retrospect. Appellant was so intransigent
with respect to discovery that it led to dismissal of all of three actions and left
respondents with over $300,000 in attorney fees in the consolidated cases alone.
17
It is time for appellant’s vendetta to end, and for respondents to be free
from litigation that does not have at least some minimal merit as determined by the
presiding judge. The court’s order was amply supported by the evidence and within its
discretion.
III
DISPOSITION
The order is affirmed. Respondents are entitled to their costs on appeal.
MOORE, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.
18