Pittman v. Beck Park Apartments

Filed 2/27/18
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

RANDALL PITTMAN, B266654

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC410261)
v.

BECK PARK APARTMENTS
LTD., et al.,

Defendants and
Respondents.

APPEAL from an order of the Superior Court of
Los Angeles County, Michelle R. Rosenblatt, Judge. Affirmed.
Randall Pittman, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
___________________________
 On May 28, 2010 the trial court declared Randall Pittman a
vexatious litigant and prohibited him, pursuant to Code of Civil
Procedure section 391.7, from filing in propria persona any new
litigation in the courts of this state without first obtaining leave
of the presiding judge or justice of the court where the litigation
is proposed to be filed. Over the past seven years Pittman has
made several attempts to have that order stricken, reconsidered,
vacated or overturned. This appeal is from the trial court’s most
recent denial of Pittman’s motion to vacate the order declaring
him a vexatious litigant. We affirm.
PROCEDURAL BACKGROUND
1. The Complaint and First Amended Complaint
On March 23, 2009 Pittman, representing himself, sued his
former landlord, Beck Park Apartments Ltd., its parent company,
Goldrich & Kest Industries LLC, and their attorneys, Kimball,
Tirey & St. John LLP, for wrongful eviction, race and disability
discrimination, retaliation, fraud, intentional infliction of
emotional distress, unfair business practices and bad faith
retention of security deposit. Pittman subsequently amended the
complaint to substitute for previously named Doe defendants his
former employers, Siemens Healthcare Diagnostics Inc. and
Siemens Corporation (collectively Siemens), TEG Staffing Inc.
and Unified Technical, Inc., and his former attorneys, Hicks &
Hicks; Arias, Ozzello & Gignac, LLP; Krieger & Krieger; and
Westrup Klick, LLP. On June 18, 2009 Pittman voluntarily
dismissed Kimball Tirey, and on November 6, 2009 he voluntarily
dismissed Beck Apartments and Goldrich & Kest Industries
pursuant to Code of Civil Procedure section 581.1

1 Statutory references are to this code.

2
 Pittman filed a first amended complaint on December 2,
2009 that abandoned the claims related to his landlords and the
wrongful eviction and instead alleged employment-related claims
of discrimination, retaliation, failure to prevent retaliation,
blacklisting, intentional infliction of emotional distress, as well as
a claim for legal malpractice. The first amended complaint
named as defendants the former employers and attorneys
previously added to the complaint by substitution.
2. The Vexatious Litigant Motions
On January 26, 2010 TEG Staffing moved to declare
Pittman a vexatious litigant pursuant to section 391,
subdivision (b).2 Six weeks later Pittman voluntarily dismissed
TEG Staffing from the litigation.3

2 Section 391, subdivision (b), identifies four situations in
which a litigant may be deemed vexatious. Once declared
vexatious, the statutes provide two complementary sets of
remedies. Pursuant to sections 391.1, 391.3 and 391.4, “[i]n
pending litigation, a defendant may have the plaintiff declared a
vexatious litigant and, if the plaintiff has no reasonable
probability of prevailing, ordered to furnish security. If the
plaintiff fails to furnish the security, the action will be
dismissed.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1171.) In
addition, pursuant to section 391.7, “a potential defendant may
prevent the vexatious litigant plaintiff from filing any new
litigation in propria persona by obtaining a prefiling order and, if
any new litigation is inadvertently permitted to be filed in
propria persona without the presiding judge’s [or presiding
justice’s] permission, may then obtain its dismissal.” (Shalant, at
p. 1171.)
3 It does not appear the trial court ruled on TEG Staffing’s
motion.

3
 On March 16, 2010 Siemens moved to declare Pittman a
vexatious litigant pursuant to section 391, subdivision (b).4
Siemens contended Pittman was a vexatious litigant pursuant to
section 391, subdivision (b)(1), which defines a vexatious litigant
to include a self-represented litigant who “[i]n 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.” Siemens asserted Pittman had commenced and
represented himself in five actions between 2006 and 2008, each
of which had been voluntarily dismissed, adjudicated against
Pittman or abandoned. Three of those actions named Siemens or
related entities as defendants.
Siemens also asserted Pittman was a vexatious litigant
pursuant to section 391, subdivision (b)(3), which defines a
vexatious litigant to include anyone who, “[i]n 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.” Siemens argued Pittman’s
pleadings were unmeritorious and redundant. Specifically,
Pittman had filed three lawsuits against Siemens alleging the
same wage-and-hour violations based on 15 months of
employment in 2003 and 2004. Pittman had also added Siemens

4 Beck Park Apartments and G&K Management Co., Inc.,
stating it had been erroneously sued as Goldrich & Kest
Industries, later joined Siemens’s motion although they
previously had been dismissed from Pittman’s lawsuit.

4
as a defendant in a fourth lawsuit against another former
employer even though his employment with the two entities was
unrelated.
Siemens further argued Pittman repeatedly engaged in
harassing and unnecessary tactics. For example, during three of
his previous lawsuits against Siemens, Pittman had filed
five motions to disqualify the presiding judges. Each motion was
denied. Siemens stated Pittman sent “harassing and
intimidating” emails to opposing counsel, one of which included
“an extended diatribe about 9/11, the war in Iraq, pharmaceutical
companies, and the inequities of the criminal justice system,”
while in another, Pittman stated, “[L]et them know that that was
only one battle because the war will end in the courtroom and
that is where I must die.” Pittman did not oppose the vexatious
litigant motion but instead dismissed Siemens from the case on
April 5, 2010.
A hearing on the vexatious litigant motions was held on
April 12, 2010. Pittman appeared, but TEG Staffing’s and
Siemens’s counsel, believing the vexatious litigant motions had
been taken off calendar due to their clients’ dismissals, did not
appear. The court stated the dismissals did not “necessarily moot
the motion, because I can take judicial notice of the court’s
records.” The court questioned Pittman regarding the five
lawsuits discussed in Siemens’s motion. Pittman stated three of
the cases were pending on appeal. Pittman also asked the court
whether Siemens could still bring the motion given its dismissal
from the case. The court stated, “They brought the motion, then
you tactically dismissed them out.” Pittman replied that was
correct; and the court continued, “But it has been brought to my
attention, and I have the power on my own to review cases

5
[regarding] anyone who might be considered a vexatious litigant.
That’s the inherent power of the court.” The court stated it would
continue the hearing on the vexatious litigant motions pending
the outcome of the appeals and granted Pittman additional time
to oppose the motions.
Rather than file an opposition, Pittman appeared ex parte
on April 19, 2010 seeking an order “striking the false pleadings
alleged in [Siemens’s vexatious litigant motion] pursuant to the
Court’s own motion” and denying Siemens’s motion. In his
memorandum of points and authorities Pittman argued he did
not meet the statutory definition of a vexatious litigant because
the five prior lawsuits cited by Siemens were pending on appeal,
pending before the United States Department of Labor or had
been re-filed after dismissal. Siemens’s counsel was not served
with notice of Pittman’s ex parte application and did not appear.
It is not apparent from the record precisely what occurred during
the ex parte hearing. In his brief on appeal Pittman states the
court issued an order “declaring that Appellant was not a
vexatious litigant.” However, the court’s minute order states only
that Pittman’s ex parte application was granted and the hearing
date for the vexatious litigant motion was vacated. The day after
the hearing, pursuant to the court’s order, Pittman prepared and
served a notice of ruling, which stated his application for an order
striking Siemens’s vexatious litigant motion and for an order
denying the vexatious litigant motion had been granted.
On April 22, 2010 Siemens’s counsel appeared ex parte
seeking an order striking or clarifying Pittman’s notice of ruling.
In a declaration supporting the motion Siemens’s counsel stated
she had not been served with Pittman’s ex parte application and,
upon receiving the notice of ruling, she had contacted the court

6
clerk, who informed her the court had not ruled on Siemens’s
vexatious litigant motion, but had merely taken it off calendar.
Siemens asserted Pittman had fabricated the notice of ruling to
make it appear the court had denied the vexatious litigant
motion so that Pittman could assert collateral estoppel in another
proceeding where the defendants had moved to declare him a
vexatious litigant. After hearing argument from Pittman and
Siemens’s counsel, the trial court vacated its minute order of
April 19 and re-set Siemens’s vexatious litigant motion for
hearing. The court again set a deadline for Pittman to respond to
the motion.
3. Pittman’s Voluntary Dismissal of the Action
On April 26, 2010 Pittman filed a request for dismissal of
the entire action pursuant to section 581. The request was
entered as requested by the clerk on the same date.
On April 30, 2010 Siemens filed a supplemental brief in
support of its motion to declare Pittman a vexatious litigant.
Siemens contended Pittman’s dismissal of the action was a
“desperate, last-ditch effort” to avoid a ruling on the vexatious
litigant motion and argued, relying on Bravo v. Ismaj (2002)
99 Cal.App.4th 211, that the trial court had authority to decide
the motion despite the dismissal. Siemens also stated Pittman
met the standard for a vexatious litigant despite his pending
appeals because, since Siemens’s motion was filed, Pittman had
voluntarily dismissed two additional cases and a third case had
been dismissed for failure to prosecute. Siemens recounted
additional frivolous tactics in which Pittman had engaged since
the filing of the motion, including “libelous,” “offensive and
demeaning” emails to opposing counsel. In one email Pittman
told Siemens’s counsel they “need to get off that ‘crack pipe.’”

7
Finally Siemens stated that, in a pending action in which
Pittman was not a party, he had moved to join the action as a
plaintiff and add 21 Doe defendants. Siemens represented that
the plaintiff and defendants in that action would be opposing
Pittman’s motion.
4. The Order Declaring Pittman a Vexatious Litigant
The trial court heard argument on Siemens’s vexatious
litigant motion on May 28, 2010. Counsel for Siemens and
counsel for G&K Management and Beck Park Apartments
appeared at the hearing. Pittman did not appear. At the
conclusion of the hearing the court granted Siemens’s motion and
declared Pittman to be a vexatious litigant pursuant to
section 391, subdivision (b), and issued a prefiling order pursuant
to section 391.7.5
On June 8, 2010 Pittman moved ex parte for an order
clarifying or striking the May 28 vexatious litigant order.
Pittman argued the order was procured by fraud because counsel
for defendant Unified Technical had told Pittman the motion had
been taken off calendar due to Pittman’s dismissal of the action.6

5 The record does not reflect whether the trial court found
Pittman to be a vexatious litigant pursuant to section 391,
subdivision (b)(1) (commencing, prosecuting or maintaining at
least five litigations in the preceding seven-year period that were
finally determined adversely to plaintiff) or pursuant to
section 391, subdivision (b)(3) (repeatedly filing unmeritorious
motions or engaging in frivolous or unnecessary tactics).
6 Pittman filed a declaration with his ex parte application,
attaching a May 17, 2010 letter from Unified Technical’s counsel
in which Pittman alleges he was told the hearing on the
vexatious litigant motion was cancelled. The letter does not
mention the vexatious litigant motion or the then-upcoming

8
Pittman further contended the issue whether he was a vexatious
litigant had already been determined in the negative in two other
proceedings. First, Pittman stated a vexatious litigant motion
had been “denied . . . in its entirety” in 2009 in a lawsuit he
brought, and subsequently dismissed, against his former
employer Day & Zimmerman Group Inc.7 Second, Pittman stated
a similar motion had been denied in June 2010 in another action
he brought, and subsequently dismissed, against G&K
Management.8 Pittman also contended he did not meet the
statutory definition of a vexatious litigant because the lawsuits
cited by Siemens were still pending. Pittman’s ex parte
application to strike the May 28 vexatious litigant order was
denied.
After his June 8, 2010 ex parte appearance Pittman served
a notice of entry of order stating the court had “declared
[Pittman] NOT to be a vexatious litigant.” Counsel for Siemens
appeared ex parte on July 7, 2010 requesting the court hold
Pittman in contempt of court due to his service of an erroneous
and fraudulent notice. Siemens’s counsel further stated Pittman

May 28 hearing, but states only, “I was advised by the Court
Clerk that the herein matter was already dismissed by you on
April 26, 2010. . . . [¶] Hence, my client need not respond and we
will not respond since the case is no longer active and has been
dismissed by the Court.”
7 The minute order cited by Pittman in support of this
statement states only that the vexatious litigant motion was
continued to a later date.
8 The minute order cited to support this assertion states a
prior order declaring Pittman to be a vexatious litigant was
vacated because Pittman had dismissed the action before the
court declared him to be a vexatious litigant.

9
had filed the erroneous notice of entry of order in support of an
opposition to a motion to dismiss in a pending appeal. The trial
court issued an order directing Pittman to show cause why he
should not be held in contempt for abusing the judicial process or
falsely pretending to act under the authority of the court (§ 1209,
subd. (a)(4)). Pittman did not file any opposition to the order to
show cause, nor did he appear at the hearing. After taking the
matter under submission, the trial court declined to hold Pittman
in contempt.
5. The Prior Appeals and First Motion to Vacate
On November 23, 2010 Pittman filed a notice of appeal of
the April 22, 2010 order striking the April 19, 2010 order, the
May 28, 2010 order declaring him a vexatious litigant, and the
June 8, 2010 order denying the motion to strike the May 28, 2010
order. (Pittman v. Beck Park Apartments LTD, B229040.) The
appeal was dismissed on March 10, 2011 as untimely.
Two and a half years later, on April 3, 2013, Pittman
moved in the trial court pursuant to section 473, subdivision (d),9
to vacate the May 28, 2010 order declaring him a vexatious
litigant and the April 22, 2010 order striking the April 19, 2010
order. Pittman argued the April 22, 2010 order was void because
the court “lacked authority to vacate its own order” and “lacked
personal jurisdiction over . . . Siemens” because Siemens had
already been dismissed from the action. Pittman further argued

9 Section 473, subdivision (d), states, “The court may, upon
motion of the injured party, or its own motion, correct clerical
mistakes in its judgment or orders as entered, so as to conform to
the judgment or order directed, and may, on motion of either
party after notice to the other party, set aside any void judgment
or order.”

10
the May 28, 2010 order was void because it was granted after the
action had been dismissed in its entirety and the court therefore
lacked jurisdiction to proceed. Finally Pittman reiterated his
earlier argument the May 28, 2010 order was procured by fraud
because Unified Technical’s counsel had told Pittman the hearing
had been cancelled.10
After hearing oral argument from Pittman and Siemens’s
counsel the trial court denied Pittman’s motion to vacate on
April 23, 2014. The court found section 473, subdivision (d), did
not apply to the situation before it because Pittman did not argue
clerical mistakes. The court stated Pittman’s motion should have
been brought pursuant to section 391.8, which allows an
individual to seek removal of a vexatious litigant designation.
However, because Pittman had not shown changed circumstances
as required by section 391.8, the trial court found it could not
grant Pittman the relief requested. The court further stated
Pittman’s motion “appears to be an untimely attempt to make a
motion for reconsideration of previous orders . . . . Mr. Pittman
failed to bring these arguments to the Court in a timely noticed
motion pursuant to CCP section 1008.” The court did not address
Pittman’s voidness or jurisdictional arguments.
On May 2, 2014 Pittman moved for reconsideration of the
trial court’s denial of the motion to vacate. Pittman again argued
the previously filed cases underlying the vexatious litigant

10 Pittman filed a supplemental brief in support of his motion
to vacate in which he argued Siemens had withdrawn its
vexatious litigant motion and the court had “issued an order
declaring that Plaintiff was not a vexatious litigant.” The trial
court found the supplemental brief to be improper, struck it from
the record and did not consider the evidence presented in it.

11
finding were not final. He also argued the court erred by failing
to address his voidness argument. One month later, while the
motion for reconsideration was pending, Pittman moved ex parte
for an order striking all Siemens’s pleadings and “oral and
written statements” in the case. The ex parte application was
denied.
On June 19, 2014, with his motion for reconsideration still
pending, Pittman filed a second notice of appeal. Pittman again
sought review of the order declaring him a vexatious litigant as
well as of the April 2014 denial of the motion to vacate. While
the appeal was pending, Pittman filed a supplemental brief in the
trial court in support of his pending motion for reconsideration.
In the supplemental brief Pittman argued the trial court retained
jurisdiction to rule on the motion for reconsideration despite the
pending appeal. After a hearing on October 14, 2014 at which
Pittman appeared, the motion for reconsideration was denied.
Pittman’s second appeal was dismissed on January 14,
2015 after this court declined to issue a prefiling order pursuant
to section 391.7, subdivision (c). The court found Pittman had
failed to meet his burden of showing the appeal had merit and
had not been taken for the purpose of harassment or delay.
6. The Current Motion To Vacate
Pittman filed a second motion to vacate the vexatious
litigant order on March 5, 2015. He again argued the order was
void because it had been entered after Pittman’s voluntary
dismissal of the lawsuit, which he stated deprived the court of
jurisdiction to hear the vexatious litigant motion. Pittman
contended the court erred to the extent it relied on Bravo v.
Ismaj, supra, 99 Cal.App.4th 211, for authority to hear the
motion after dismissal because that case was inapplicable.

12
Pittman also argued “priority of jurisdiction” prevented the court
from ruling on the vexatious litigant motion because the issue
had already been decided in another matter. Pittman further
reiterated his argument the vexatious litigant order was void
because he had fraudulently been told by United Technical’s
counsel that the matter had been taken off calendar. Finally,
Pittman contended the order should be vacated based on
collateral estoppel because a federal judge had denied a vexatious
litigant motion directed to Pittman in 2014.11
The court held a hearing on the motion to vacate on
August 12, 2015 at which Pittman failed to appear. The court
adopted its tentative order denying Pittman’s motion. As to
Pittman’s voidness argument, the court found Pittman had not
explained why Bravo was inapplicable to this case. Further, the
court stated, a challenge to the court’s reliance on Bravo was a
“merit-based argument” that should have been brought within
the timeframe of a motion for reconsideration under section 1008,
subdivision (a). The court also rejected Pittman’s fraud argument
because he failed to meet the requirements for equitable relief as
stated in Rodriguez v. Cho (2015) 236 Cal.App.4th 742.12

11 The record reflects an opposition to the second motion to
vacate was filed on June 15, 2015, but it was not provided in the
record on appeal.
12 “‘“The court may grant relief under its inherent equity
power if, because of the fraud of his opponent, the aggrieved
party was prevented from presenting his claim or defense to the
court. . . .”’ [¶] Additionally, the party seeking equitable relief on
the grounds of extrinsic fraud or mistake must show three
elements: (1) a meritorious defense; (2) a satisfactory excuse for
not presenting a defense in the first place; and (3) diligence in

13
Specifically, Pittman did not present a declaration from the
attorney he claimed had told him the motion was off-calendar,
nor had Pittman shown he had a meritorious defense to the
motion. The court also rejected Pittman’s collateral estoppel
argument because the 2014 federal court order could not have
estopped the earlier 2010 vexatious litigant order.
Pittman filed a notice of appeal on September 4, 2015.
After the record on appeal was filed and Pittman responded to an
order requiring a preliminary showing of merit pursuant to
section 391.7, subdivision (b), Pittman was granted leave to
proceed with his appeal.
DISCUSSION
1. Governing Law and Standard of Review
Section 473, subdivision (d), provides a trial court “may, on
motion of either party after notice to the other party, set aside
any void judgment or order.” “[I]nclusion of the word ‘may’ in the
language of section 473, subdivision (d) makes it clear that a trial
court retains discretion to grant or deny a motion to set aside a
void judgment [or order].” (Cruz v. Fagor America, Inc. (2007)
146 Cal.App.4th 488, 495.) However, the trial court “has no
statutory power under section 473, subdivision (d) to set aside a
judgment [or order] that is not void . . . .” (Id. at pp. 495-496.)
Thus, the reviewing court “generally faces two separate
determinations when considering an appeal based on section 473,
subdivision (d): whether the order or judgment is void and, if so,
whether the trial court properly exercised its discretion in setting
it aside.” (Nixon Peabody LLP v. Superior Court (2014)

seeking to set aside the default judgment once discovered.”
(Rodriguez v. Cho, supra, 236 Cal.App.4th at p. 750.)

14
230 Cal.App.4th 818, 822.) The trial court’s determination
whether an order is void is reviewed de novo; its decision whether
to set aside a void order is reviewed for abuse of discretion.
(Ibid.; see also Cruz, at p. 496.)
In determining whether an order is void for purposes of
section 473, subdivision (d), courts distinguish between orders
that are void on the face of the record and orders that appear
valid on the face of the record but are shown to be invalid
through consideration of extrinsic evidence. “This distinction
may be important in a particular case because it impacts the
procedural mechanism available to attack the judgment [or
order], when the judgment [or order] may be attacked, and how
the party challenging the judgment [or order] proves that the
judgment [or order] is void.” (OC Interior Services, LLC v.
Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327
(OC Interior Services).)
An order is considered void on its face only when the
invalidity is apparent from an inspection of the judgment roll or
court record without consideration of extrinsic evidence.
(OC Interior Services, supra, 7 Cal.App.5th at p. 1327 [“[t]o prove
that the judgment is void [on its face], the party challenging the
judgment is limited to the judgment roll, i.e., no extrinsic
evidence is allowed”]; see also Tearlach Resources Limited v.
Western States Internat., Inc. (2013) 219 Cal.App.4th 773, 779.)
There is no time limit to attack a judgment void on its face.
(OC Interior Services, at p. 1327; Ramos v. Homeward
Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440 (Ramos);
Plaza Hollister Ltd. Partnership v. County of San Benito (1999)
72 Cal.App.4th 1, 19.) If the invalidity can be shown only
through consideration of extrinsic evidence, such as declarations

15
or testimony, the order is not void on its face. Such an order
must be challenged within the six-month time limit prescribed by
section 473, subdivision (b), or by an independent action in
equity. (OC Interior Services, at p. 1328; Ramos, at p. 1440;
Plaza Hollister Ltd. Partnership, at p. 19.)
2. The Order Declaring Pittman To Be a Vexatious Litigant
Is Not Void for Lack of Jurisdiction
Pittman argues the trial court erred in failing to vacate the
vexatious litigant order as void because his voluntary dismissal of
the case deprived the trial court of jurisdiction to rule on the
pending vexatious litigant motion. Pittman’s chronology is
correct: The record shows Siemens’s vexatious litigant motion
was filed in March 2010, Pittman dismissed the case in April
2010, and the court granted Siemens’s motion in May 2010.
Pittman’s motion to vacate was filed almost five years after
the challenged order. However, because the facts supporting the
alleged jurisdictional defect are ascertainable by looking solely at
the record, Pittman’s argument can be categorized as challenging
the order as void on its face. As such, Pittman’s motion was not
barred for being untimely. (See OC Interior Services, supra,
7 Cal.App.5th at p. 1327.)13

13 Pittman has not addressed, either in the trial court or on
appeal, the propriety of filing successive and repetitive motions to
vacate the same order. The rule allowing an aggrieved party to
challenge an order void on its face at any time does not mean a
party may perpetually move to vacate the order until he or she
receives a favorable ruling. “‘Somewhere along the line, litigation
must cease.” (Gillies v. JPMorgan Chase Bank, N.A. (2017)
7 Cal.App.5th 907, 914.) Because we now decide Pittman’s
jurisdictional argument on the merits, any subsequent attempt
by him to challenge the validity of the vexatious litigant order on

16
 On the merits, Pittman is correct that a plaintiff’s
voluntary dismissal of an action generally deprives the court of
jurisdiction in the case. (See Wells v. Marina City Properties, Inc.
(1981) 29 Cal.3d 781, 784 [“[u]pon the proper exercise of that
right [of voluntary dismissal], a trial court would thereafter lack
jurisdiction to enter further orders in the dismissed action”]; Law
Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869,
876 [same].) Accordingly, most orders entered after the dismissal
are void and have no effect. (Gogri v. Jack in the Box Inc. (2008)
166 Cal.App.4th 255, 261 [“‘[a]n order by a court lacking subject
matter jurisdiction is void’”]; Paniagua v. Orange County Fire
Authority (2007) 149 Cal.App.4th 83, 89 [“‘[i]t is a well-settled
proposition of law that where the plaintiff has filed a voluntary
dismissal of an action . . . , the court is without jurisdiction to act
further, and any subsequent orders of the court are simply
void’”].)
Notwithstanding this general principle, “courts have carved
out a number of exceptions to this rule in order to give meaning
and effect to a former party’s statutory rights.” (Frank Annino &
Sons Construction, Inc. v. McArthur Restaurants, Inc. (1989)
215 Cal.App.3d 353, 356 (Frank Annino).) When a post-dismissal
or postjudgment motion involves collateral statutory rights, then
the court may retain jurisdiction to determine and enforce those
rights. (Id. at p. 357; accord, Day v. Collingwood (2006)
144 Cal.App.4th 1116, 1125 (Day).) One frequent example of
post-dismissal or postjudgment retention of jurisdiction occurs
when courts hear motions related to attorney fees and costs.

this ground would run afoul of the principles of issue and claim
preclusion, as well as exposing Pittman to sanctions under
section 128.5.

17
(See, e.g., Barry v. State Bar of California (2017) 2 Cal.5th 318,
326 [“[n]or is lack of subject matter jurisdiction a bar to awarding
attorney’s fees and costs”]; Maria P. v. Riles (1987) 43 Cal.3d
1281, 1290 [“dismissal [for failure to prosecute] does not divest
the trial court of jurisdiction to award attorney fees”]; State of
California ex rel. Standard Elevator Co. v. West Bay Builders,
Inc. (2011) 197 Cal.App.4th 963, 980 [holding trial court had
jurisdiction to award statutory attorney fees in qui tam action
even if court had no subject matter jurisdiction over the case];
Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211,
218 [“defendants were entitled to a ruling [after dismissal] on the
merits of their SLAPP motion, the result of which will necessarily
determine their right to attorney fees”].) Courts have likewise
held jurisdiction is retained post-dismissal and postjudgment to
decide motions for sanctions. (See, e.g., Day, at p. 1126 [“[w]e
conclude the trial court had jurisdiction to consider Collingwood’s
postjudgment motion for sanctions”]; Eichenbaum v. Alon (2003)
106 Cal.App.4th 967, 976 [same]; West Coast Development v. Reed
(1992) 2 Cal.App.4th 693, 706 [same]; Frank Annino, at pp. 358-
359 [same].)
The rationale for retaining jurisdiction to decide sanctions
motions is particularly instructive for the issue before us. In
Frank Annino the plaintiff voluntarily dismissed a defendant the
day before the hearing on that defendant’s motion for summary
judgment. (Frank Annino, supra, 215 Cal.App.3d at p. 356.)
After the dismissal the defendant moved for sanctions under
section 128.5 based on the plaintiff and his attorney’s alleged bad
faith and frivolous tactics. The trial court granted the motion.
On appeal this court acknowledged the general rule that
dismissal deprives the court of jurisdiction but held consideration

18
of sanctions issues was an exception. (Id. at pp. 357-359.) We
analogized the postjudgment consideration of a sanctions motion
to the postjudgment award of attorney fees, explaining the
purpose of statutory sanctions is “much the same” as statutory
attorney fees: “to discourage parties and their attorneys from
engaging in bad faith tactics and to compensate a party
victimized by such tactics. . . . [T]here is no basis in logic or
public policy to deny the victim the remedy of sanctions simply
because, through the bad actor’s own doing, the victim is no
longer a party.” (Id. at p. 358.) A contrary rule, we continued,
“would render section 128.5 virtually useless as a weapon against
actions or tactics that are totally without merit or undertaken for
the sole purpose of harassment. A party or attorney could act in
the most egregious bad faith, engage in the most outrageous
conduct, and do so with impunity. They could avoid sanctions by
simply dismissing the action without prejudice. . . . Such a result
is untenable given the obvious purpose of the sanction statute. It
also violates any reasonable sense of justice and fair play.” (Id. at
p. 359.)
In Day the court similarly held jurisdiction was retained to
consider a sanctions motion filed after summary judgment was
granted to defendant. The court adopted the reasoning we had
articulated in Frank Annino and further emphasized the
collateral and ancillary nature of a sanctions motion, stating, “[A]
trial court’s consideration of a postjudgment sanctions request
does not undermine the finality of the merits of the judgment.”
(Day, supra, 144 Cal.App.4th at p. 1125.) Thus, retaining
jurisdiction to decide a postjudgment motion would not interfere
with a party’s entitlement to rely on that judgment. (Ibid.)

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 The United States Supreme Court has reached the same
conclusion. In Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S.
384 [110 S.Ct. 2447, 110 L.Ed.2d 359] the Court held sanctions
under rule 11 of the Federal Rules of Civil Procedure (Rule 11)
could be imposed when the plaintiff voluntarily dismissed the
complaint after the sanctions motion had been filed. The Court
noted a voluntary dismissal does not eliminate the sanctionable
conduct, stating, “[T]he harm triggering Rule 11’s concerns has
already occurred. Therefore, a litigant who violates Rule 11
merits sanctions even after a dismissal.” (Cooter, at p. 398.) The
Court stated imposing sanctions after dismissal was consistent
with Rule 11’s purpose to deter litigant misconduct, otherwise “a
litigant could purge his violation of Rule 11 merely by taking a
dismissal . . . .” (Cooter, at p. 398.) The Court also emphasized
that a sanctions motion has no effect on the merits of the action
but is a “determination of a collateral issue . . . . Such a
determination may be made after the principal suit has been
terminated.” (Cooter, at p. 398; see also Willy v. Coastal Corp.
(1992) 503 U.S. 131, 139 [112 S.Ct. 1076, 1081, 117 L.Ed.2d 280]
[holding court could impose Rule 11 sanctions despite not having
subject matter jurisdiction because the “interest in having rules
of procedure obeyed, by contrast, does not disappear upon a
subsequent determination that the court was without subject-
matter jurisdiction”].)
Similar reasoning was employed by the court in Bravo v.
Ismaj, supra, 99 Cal.App.4th 211, relied on by Siemens and the
trial court. In Bravo the trial court granted a vexatious litigant
motion filed after judgment had been entered. On appeal
plaintiff argued a lawsuit must be pending at the time a party
files a vexatious litigant motion. As Pittman correctly points out,

20
the case is distinguishable because the Fourth District held the
matter was still pending when the vexatious litigant order was
issued due to the plaintiff’s motion for a new trial. However, as
an alternative basis for its ruling, the court rejected the plaintiff’s
contention that an action must be pending for a vexatious litigant
order to issue. Without addressing the jurisdictional issues, the
court reasoned 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, at pp. 222-223.)
We agree with the reasoning in these cases. Like a motion
for attorney fees or sanctions, a motion to declare a self-
represented plaintiff a vexatious litigant deals with an ancillary
issue and has no bearing on the finality of the judgment or
dismissal. Retaining jurisdiction to decide a vexatious litigant
motion is consistent with the purpose of the statutes, which 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.” (Shalant v. Girardi (2011)
51 Cal.4th 1164, 1169.) A dismissal does not rectify the harm
already done by the filing of a groundless action. Nor does the
dismissal extinguish the court’s interest in deterring and
punishing the waste of judicial resources. A contrary rule would
allow a litigant to strategically escape a vexatious litigant finding
altogether by dismissing a party or an action prior to a ruling on
the vexatious litigant motion and then refiling his or her claims
in a later proceeding. This is precisely the tactic Pittman has
engaged in here. To fulfill the statute’s aim of protecting future

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potential litigants, the ability to declare an individual a vexatious
litigant must survive even after the action has been dismissed.
(See Bravo v. Ismaj, supra, 99 Cal.App.4th at pp. 222-223.)
3. Pittman’s Motion To Vacate Based on Extrinsic Fraud
Was Untimely
Pittman also contends the vexatious litigant order is void
because he was fraudulently told by opposing counsel the hearing
on the motion would not occur. As discussed, “[w]here, as here, a
motion to vacate is made more than six months after entry of a
judgment [or order], a trial court may grant a motion to set aside
that judgment [or order] as void only if the judgment [or order] is
void on its face.” (Ramos, supra, 223 Cal.App.4th at p. 1440.)
Here, Pittman’s contention the order is void based on
extrinsic fraud cannot be resolved by examining the court record.
Rather, it requires consideration of extrinsic evidence, specifically
Pittman’s own factual assertions, his declaration and the letter
sent to him by counsel for Unified Technical. Accordingly,
Pittman’s motion under section 473, subdivision (d), made five
years after the entry of the order, was untimely. (See OC Interior
Services, supra, 7 Cal.App.5th at p. 1327; Ramos, supra,
223 Cal.App.4th at p. 1440; Plaza Hollister Ltd. Partnership v.
County of San Benito, supra, 72 Cal.App.4th at p. 19.)
To the extent Pittman intended to argue the trial court
should have exercised its equitable powers to grant relief, his
argument fails. “[E]ven where relief is no longer available under
statutory provisions, a trial court generally retains the inherent
power to vacate a default judgment or order on equitable grounds
where a party establishes that the judgment or order . . . resulted
from extrinsic fraud or mistake.” (County of San Diego v.
Gorham (2010) 186 Cal.App.4th 1215, 1228.) As the trial court

22
recognized, “the party seeking equitable relief on the grounds of
extrinsic fraud or mistake must show three elements: (1) a
meritorious defense (2) a satisfactory excuse for not presenting a
defense in the first place; and (3) diligence in seeking to set aside
the [order] once discovered.” (Rodriguez v. Cho, supra,
236 Cal.App.4th at p. 750.)
The trial court found Pittman had not carried his burden
because he failed to show he had a meritorious defense to the
vexatious litigant motion. Pittman has not addressed this
finding on appeal other than the vague statement he “would have
provided evidence that showed that he had not lost five lawsuits
within the preceding seven years and that his conduct did not
rise to [the] level to be declared a vexatious litigant.” Given the
absence of any evidence or argument in the record establishing a
meritorious defense to the vexatious litigant motion, the trial
court did not abuse its discretion in declining to vacate the order
on equitable grounds. (See County of San Diego v. Graham,
supra, 186 Cal.App.4th at p. 1230 [“[w]e review the court’s denial
of a motion for equitable relief to vacate a default judgment or
order for an abuse of discretion”].)
4. Pittman’s Argument the Trial Court Lacked Jurisdiction
To Vacate Its April 19, 2010 Minute Order Is Forfeited
Pittman argues the trial court lacked jurisdiction to vacate
its April 19, 2010 order (and subsequently to enter the order
declaring him a vexatious litigant) because the requirements of
section 1008, governing motions for reconsideration, were not
met.14 While we have considerable doubt regarding the

14 Section 1008, subdivision (a), allows a party to move for
reconsideration of an order within 10 days after service on the
party of written notice of the order and requires any motion for

23
applicability of section 1008 to the circumstances here, we need
not resolve the issue. Pittman did not raise the question of
section 1008’s applicability in the motion to vacate, and it is
forfeited. (See In re Sheena K. (2007) 40 Cal.4th 875, 880 [“‘“[n]o
procedural principle is more familiar to this Court than that a
constitutional right,” or a right of any other sort, “may be
forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction
to determine it”’”]; Doers v. Golden Gate Bridge etc. Dist. (1979)
23 Cal.3d 180, 184-185, fn. 1 [it is fundamental that a reviewing
court will ordinarily not consider claims made for the first time
on appeal which could have been but were not presented to the
trial court]; Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592
[“‘[a]ppellate courts are loath to reverse a judgment on grounds
that the opposing party did not have an opportunity to argue and
the trial court did not have an opportunity to consider’”].)

reconsideration be based “‘upon new or different facts,
circumstances, or law. . . .’” (See Le Francois v. Goel (2005)
35 Cal.4th 1094, 1098; Advanced Building Maintenance v. State
Comp. Ins. Fund (1996) 49 Cal.App.4th 1388, 1392.)

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 DISPOSITION
The order is affirmed. Because no respondent appeared,
Pittman is to bear his own costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

BENSINGER, J.*

* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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