Filed 9/12/22 Barth v. Wiksell & Steinfeld CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SHAWN DAMON BARTH 2d Crim. No. B316355
(Super. Ct. No. 56-2021-
Plaintiff and Appellant, 00556176-CU-MC-VTA)
(Ventura County)
v.
WIKSELL & STEINFELD,
et al.,
Defendants and
Respondents.
Shawn Damon Barth, an incarcerated litigant appearing in
propria persona, appeals the trial court’s orders declaring him a
vexatious litigant (Code Civ. Proc., § 391-391.8) and dismissing
his third complaint against his former attorneys, respondents
Wiksell & Steinfeld (DBA Conflict Defense Associates), Willard P.
Wiksell, Joel B. Steinfeld, and David L. McDuffie. Appellant
contends the orders were issued in violation of his due process
rights and are not supported by substantial evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
In 2011, appellant was convicted of aggravated sexual
assault of a child and was sentenced to 15 years to life in state
prison. Appellant, who is currently incarcerated at Salinas
Valley State Prison, was at times represented in the criminal
proceedings by respondents as appointed conflict counsel.
In October 2018, appellant filed an in propria persona
“complaint for possession of personal property and damages
(claim and delivery)” against Steinfeld in Ventura County
Superior Court seeking $25,000,000 in damages for the alleged
failure to provide him with his client file after he was sentenced.
(Barth v. Steinfeld (Super. Ct. Ventura County, 2018, No. 56-
2018-00519263-CU-MC-VTA).)1 In September 2019, the trial
1 As an exhibit to his complaint, appellant attached a copy
of a January 17, 2018 letter he sent to McDuffie stating that
“given the years that have elapsed since the conclusion of your
representation, I request that all papers and property [related to
the case] be delivered to me within twenty-one (21) days of the
date of this letter.” Appellant added that if he did not receive the
materials by February 7, 2018, he would “have no choice but to
file a petition for writ of mandate to compel you to do so.”
Appellant also attached a February 22, 2018 letter he received
from McDuffie stating among other things: “I thought we dealt
with this previously. As I have indicated, and continue to
indicate, I do not have any property of yours in my possession.
To be honest with you, I do not know what property of yours I
would have had in my possession. You were provided copies of all
discovery during the pendency of your case. At the end of your
case, I turned over to Conflict Defense Associates all discovery for
them to hold. No ‘property,’ other that the aforementioned
discovery that was handed to CDA. And as I mentioned,
whatever I had I gave to them.”
2
court dismissed the complaint without prejudice due to
appellant’s failure to file a proof of service.
In January 2020, appellant filed an in propria persona
“complaint for possession of personal property and damages
(claim and delivery)” against Steinfeld, McDuffie, and Does 1
through 5 seeking either the return of his client file or
$25,000,000 in damages. (Barth v. Steinfeld et al. (Super. Ct.
Ventura County, 2020, No. 56-2020-00538980-CU-MC-VTA).) In
September 2020, the trial court sustained McDuffie’s demurrer
without leave to amend on the ground that appellant’s claims
were barred by the applicable three-year statute of limitations
(Code Civ. Proc.,2 § 338, subd. (c)).
In July 2021, appellant filed a third in propria persona
complaint against respondents seeking monetary damages for the
alleged failure to return his client file to him. (Barth v. Wiksell &
Steinfeld et al. (Super. Ct. Ventura County, 2021, No. 56-2021-
00556176-CU-MC-VTA).) Although appellant sought the same
relief (i.e., the return of his file or monetary damages), his third
complaint added causes of action including “destruction of
property, evidence and case files,” professional negligence,
intentional infliction of emotional distress, and “obstruction of
due process rights.”
Respondents then moved to have appellant declared a
vexatious litigant under section 391.1, and require him to post a
$15,000 bond to maintain his lawsuit. Appellant filed an
opposition to the motion and respondents filed a reply. Prior to
the hearing, appellant filed and served a first amended complaint
adding causes of action for legal malpractice, conversion, breach
2All statutory references are to the Code of Civil Procedure
unless otherwise stated.
3
of contract, destruction of personal property, vicarious liability,
and a violation of his civil rights under 42 United States Code
section 1983.3
Following a November 1, 2021 noticed hearing at which
appellant apparently made no effort to appear, the court (1)
declared appellant a vexatious litigant for repeatedly litigating
the same action; (2) ordered him to post a $15,000 bond by
November 29 in order to maintain his current action, upon which
he had no likelihood of prevailing; and (3) prohibited him from
filing any new litigation in propria persona without first
obtaining leave from the presiding judge of the court where the
action is to be filed. After appellant failed to post the required
security, his complaint was dismissed.
DISCUSSION
Appellant contends the trial court erred in declaring him a
vexatious litigant. We conclude otherwise.
Section 391.7, subdivision (a), authorizes a court to enter,
on its own motion or the motion of any party, “a prefiling order
which prohibits a vexatious litigant from filing any new
litigation” in propria persona without first obtaining permission
from the presiding judge. Section 391, subdivision (b) defines a
vexatious litigant as a person who meets any of four specified
criteria. As relevant here, a vexatious litigant includes any
person who, “[a]fter a litigation has been finally determined
against the person, repeatedly relitigates or attempts to
3In his reply to respondent’s motion, appellant attached a
May 22, 2020 letter from Steinfeld stating: “As we advised you in
September, 2016[,] we do not have your file. It has been purged.
Therefore copies cannot be provided. Mr. McDuffie provided you
redacted copies during the course of his representation.”
4
relitigate, in propria persona, . . . [a] 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.”
(§ 391, subd. (b).) The court shall order any party declared a
vexatious litigant who fails to establish a reasonable probability
of prevailing on their claim to post a security bond to maintain
the action. (§ 391.3.) The court may also issue an order requiring
vexatious litigant to obtain permission from the court prior to
filing any new litigation in propria persona. (§ 391.7)
“‘“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.]’” (In re Marriage of Rifkin & Carty (2015) 234
Cal.App.4th 1339, 1346.) Moreover, “it is appellant’s burden to
affirmatively show error. [Citation.] 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.” (In re S.C. (2006) 138 Cal.App.4th
396, 408.) The rules of appellate procedure apply to appellant
even though he is representing himself on appeal. (McComber v.
Wells (1999) 72 Cal.App.4th 512, 523.)
Appellant fails to meet his burden of showing that the
court’s ruling was an abuse of discretion. Although appellant
claims the court violated his due process rights by failing to hold
a hearing, the court plainly held such a hearing, appellant
received notice thereof, and he offers nothing to demonstrate that
5
he was prevented from appearing at the hearing telephonically
just as respondents’ counsel did.
Moreover, the court did not err in declaring appellant a
vexatious litigant. The current action is his third attempt to
litigate his claim that respondents owe him monetary damages
for their alleged failure to return his client file. For purposes of
the vexatious litigant statute, the two prior actions were finally
determined against appellant notwithstanding that the first
action was dismissed without prejudice. (Garcia v. Lacey (2014)
231 Cal.App.4th 402, 406-407.) Moreover, appellant fails to
persuade us that his third complaint seeks anything other than
what was sought in his first two complaints, i.e., either the
return of his client file or monetary damages.
Appellant also failed to establish a probability of prevailing
on the merits of his claims. In sustaining the demurrer to
appellant’s second complaint, the trial court correctly concluded
that the action was barred by the three-year statute of
limitations set forth in Code of Civil Procedure section 338,
subdivision (c). In declaring appellant a vexatious litigant, the
trial court found there was a “strong possibility that his claims
are barred by the statute of limitations.” Although appellant’s
first amended complaint in the instant matter added several
causes of action, he waited over 10 years to seek relief. Suffice to
state that the statutes of limitation that apply to appellant’s
claims are all less than 10 years. (See, e.g., § 340.6, subd. (a)
[one-year statute of limitations applies to legal malpractice
claim].) Accordingly, the current action is barred by the statute
of limitations and res judicata. (Atwell v. City of Rohnert Park
(2018) 27 Cal.App.5th 692, 698.)
6
DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.*
We concur:
GILBERT, P.J.
YEGAN, J.
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
7
Ronda McKaig, Judge
Superior Court County of Ventura
______________________________
Shawn Damon Barth, in pro. per., for Plaintiff and
Appellant.
Nemecek & Cole, Michael McCarthy, Kenny C. Brooks, for
Defendants and Respondents.