Chaker v. Superior Court CA4/1 ( 2021 )

Filed 4/19/21 Chaker v. Superior Court CA4/1
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DARREN CHAKER, D075494
Plaintiff and Appellant,
v. (Super. Ct. No. GIC757326)
SAN DIEGO SUPERIOR COURT,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
John S. Meyer, Judge. Affirmed as modified.
Darren Chaker, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Darren Chaker was determined to be a vexatious litigant subject to a
prefiling order, first in 1997 and again in 2001. (Code Civ. Proc., §§ 391-
391.8.)1 As such, prior to filing any new litigation in the courts of this state
in propria persona, Chaker must first obtain leave of the presiding judge of
1 All undesignated statutory citations are to the Code of Civil Procedure.
the court where the litigation is proposed to be filed. (§ 391.7, subd. (a).) In
2018, Chaker filed an application to vacate the prefiling orders and remove
his name from the Judicial Council’s list of vexatious litigants subject to
prefiling orders. (§ 391.8, subd. (a).) The trial court denied the application,
concluding Chaker did not demonstrate good cause for the requested relief.
(Id., subd. (c).) Chaker appeals, challenging the trial court’s denial of his
application, and contending the trial court should have modified the portion
of the 2001 order requiring him to obtain prefiling permission even when
represented by counsel. We find the trial court properly denied Chaker’s
request to remove his name from the Judicial Council’s list of vexatious
litigants; however, for reasons explained below, we modify the prefiling order
to comply with the vexatious litigant statute and governing case law.
We granted Chaker’s request for rehearing on the issue of whether
judicial notice may be taken of the superior court files referenced in this
opinion. (Cal. Rules of Court, rule 8.268.) We reject the arguments raised on
rehearing, concluding judicial notice of the referenced records is appropriate.
FACTS
Chaker’s Application to Be Removed from Vexatious Litigant List
We grant Chaker’s unopposed request for judicial notice and take
judicial notice of the original orders declaring him to be a vexatious litigant:
the 1997 order issued in Chaker v. Bradberry (Mun. Ct. San Diego County,
1997, No. L591421) and 2001 order issued in Nero v. Conam Management
Corporation (Super. Ct. San Diego County, 2001, No. GIC757326), as well as
various orders dismissing his prior cases, which Chaker states led to the
initial vexatious litigant designation. (Evid. Code, §§ 452, subd. (d)(1), 459,
subd. (a).) In addition, we take judicial notice of Chaker’s prior appeals
Chaker v. Superior Court (Mateo) (Feb. 19, 2015, D067490); Chaker v. Mateo
2
(Sept. 30, 2015, D068886) appeal dismissed; Chaker v. S.A. (Oct. 19, 2015,
D069040) appeal dismissed; Chaker v. Mateo (Sept. 23, 2016, D071029)
appeal dismissed; Chaker v. S.A. (Feb. 21, 2020, D077191) appeal dismissed.
(Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) Finally, we take judicial
notice of certain orders discussed post, entered in Nero v. Conam
Management Corporation (Super. Ct. San Diego County, 2001,
No. GIC757326), Chaker v. Mateo (Super. Ct. San Diego County, No. 37-2010-
00094816-CU-DF-CTL), and Chaker v. S.A. (Super. Ct. San Diego County,
2015, No. D543061).2 (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)3
Chaker was first determined to be a vexatious litigant in 1997 in
Chaker v. Bradberry (Mun. Ct. San Diego County, 1997, No. L591421). The
motion to declare Chaker a vexatious litigant was based on Chaker
commencing, in the seven-year period preceding the motion, at least five
litigations that were finally determined adversely to him. (§ 391,
subd. (b)(1).)
In 2000, Chaker filed through counsel the case of Nero v. Conam
Management Corporation (Super. Ct. San Diego County, 2001,
No. GIC757326). In his brief on appeal, Chaker states that his counsel
subsequently withdrew. After a hearing on June 22, 2001, the trial court
again found Chaker to be a vexatious litigant. The court ordered Chaker to
post a bond in that action and also entered a prefiling order requiring Chaker
to obtain leave of the presiding judge prior to filing any new litigation in the
2 Chaker acknowledges on appeal that he has used the pseudonyms
Darren Del Nero and Darren Nero.
3 As discussed post, we take judicial notice of these records on our own
motion and for good cause, pursuant to Evidence Code sections 452 and 459.
3
courts of this state, whether in propria persona or when represented by
counsel.4
In July 2018, Chaker, through counsel, filed an application to vacate
the prefiling orders and to order his name removed from the Judicial
Council’s list of vexatious litigants subject to prefiling orders.5 In support of
his application, he argued that the portion of the order requiring him to
obtain a prefiling order even if he is represented by counsel “is no longer valid
and should be vacated.” He further argued that, because the original order
declaring him to be vexatious was issued more than 20 years ago, and since
then Chaker has attempted only once to file a new lawsuit in propria
persona, the “factual basis for the vexatious litigant determinations is no
longer true,” which constituted “a material change in the facts justifying
vacating the prefiling orders.” He concluded there existed good cause to
vacate the prefiling orders. Chaker did not argue that the ends of justice
would be served by vacating the order.
In connection with his 2018 application, Chaker completed Judicial
Council form MC-703, which requires the applicant to list all cases in which
prefiling orders were issued and “a list of every case filed in the last five
years in which [Chaker has] been a plaintiff, cross-complainant, or defendant,
the approximate number of motions [Chaker] filed in each case, and the
4 The copy of the minute order Chaker included in his request for judicial
notice is blurry and some of the language is difficult to discern. However, a
clear copy of the notice of ruling was obtained from the Superior Court’s
publicly available records. Notably, Chaker did not include in his request for
judicial notice the subsequent formal order declaring him to be a vexatious
litigant, entered on July 10, 2001, discussed post.
5 Chaker is not represented by counsel on appeal; however, he obtained
an order granting leave to pursue this appeal.
4
number of requests for new litigation that [he has] filed.” Chaker disclosed
the 1997 and 2001 orders declaring him to be a vexatious litigant. He
disclosed one case in which he was the plaintiff or cross-complainant (Chaker
v. Crudup (Super. Ct. L.A. County, No. BC604607), in which he claims to
have filed two motions), and two cases in which he is the defendant
(McMillan v. Chaker (S.D.Cal. 2016, No. 3:16-cv-2186) dism.; McMillan v.
Chaker (Super. Ct. San Diego County, No. 37-2017-00036344)).
In a declaration signed by Chaker under penalty of perjury, Chaker
attested that since being declared a vexatious litigant, he has sought leave of
court only once to file a lawsuit in propria persona. He was the plaintiff in
another lawsuit filed by counsel; counsel subsequently withdrew, and he was
left unrepresented. He claims he did not file any small claims actions.
Chaker’s Application Fails to Disclose Accurate and Complete Information
Regarding His Litigation Activities
In his application for an order vacating the prefiling orders and
ordering removal of his name from the vexatious litigant list, Chaker listed
two cases in which prefiling orders were issued. He did not include the
formal order declaring him to be vexatious and imposing a new prefiling
order in case No. GIC757326. He did not disclose that his prior request to
dissolve the prefiling order in that case was denied in 2009. He also
neglected to disclose that two additional prefiling orders were entered
against him in 2015 in San Diego Superior Court case Nos. D543061 and
37-2010-00094816. Moreover, Chaker failed to disclose multiple additional
requests to file new litigation.
5
Formal Order Declaring Darren Del Nero
(aka Darren Chaker) a Vexatious Litigant in Case No. GIC757326
In October 2000, Chaker (under the alias Darren Del Nero) sued
Conam Management Corporation, Bryan Casteel, and others; asserting
various allegations related to employment discrimination and wrongful
termination. Chaker was represented by counsel when the action was filed,
but in May of 2001, the court granted counsel’s motion to withdraw, and
Chaker proceeded to litigate the case unrepresented.6
In June 2001, defendants in the case moved for an order declaring
Chaker a vexatious litigant and requiring him to post security as a condition
of proceeding with litigation. In the motion, defendants argued that Chaker
had already been declared a vexatious litigant in 1997; that, in the last seven
years, he had initiated 22 civil actions in propria persona which had been
adjudicated against him, and he had been criminally convicted of making
false claims of police misconduct. Defendants argued that Chaker “has a long
history of using attorneys whom he engages as mere puppets in his strategy
to abuse the judicial system” and qualified as a vexatious litigant who “would
not be deterred by a pre-filing order preventing only propria persona new
filings.” As such, defendants argued, under In re Shieh (1993) 17 Cal.App.4th
1154 (Shieh), Chaker’s prefiling order should “be broadened to include
attorney represented filings.” Chaker did not oppose defendants’ motion.
6 Counsel’s declaration in support of the motion to be relieved as counsel
was submitted to the court for in camera review only and does not appear in
the record. However, in its order granting counsel’s motion, the trial court
found “counsel has shown that there has been sufficient breakdown in the
attorney-client relationship to preclude counsel from being able to adequately
represent their client.”
6
In the formal order entered on July 10, 2001 (after the June 22
hearing), the trial court declared Darren Del Nero “(aka Darren David Del
Nero, Darren David Chaker, Darren D. Chaker)” to be a vexatious litigant
under section 391, subdivision (b)(1). The court required him to furnish for
defendants’ benefit a security in the amount of $15,000 pursuant to
section 391.3. Finally, the court issued a prefiling order pursuant to
section 391.7:
“The Court finds that a pre-filing order prohibiting only
new litigation filed in propria persona is inadequate, and
therefore, pursuant to [Shieh, supra,] 17 Cal.App.4th [at
pp.] 1167-1168, enters a pre-filing order which prohibits
[Chaker] from initiating any new litigation in any court in
the State of California, whether in propria persona or
represented by counsel, without first obtaining leave of the
presiding judge of the court where the litigation is proposed
to be filed with notice to the affected party.”
The court subsequently entered judgment in defendants’ favor on all
claims and awarded defendants $2,522.20 in costs.
Order Denying Chaker’s 2009
Request to Dissolve the Prefiling Order in Case No. GIC757326
In 2009, Chaker requested that the court in case No. GIC757326
dissolve the July 10, 2001 order declaring him a vexatious litigant. The trial
court denied Chaker’s motion without prejudice. The court explained its
rationale in a detailed minute order entered after hearing:
“Plaintiff states that he is not bringing this motion so that
he can file any lawsuits in pro per. His declared purpose
for bringing this motion is that he wants to go to law school
and he is concerned what impact the vexatious litigant
[o]rder would have on his ability to be admitted into law
school and to the State Bar.
“[¶] . . . [¶]
7
“[Chaker] admits that since this [c]ourt’s [o]rder he has
filed one other civil lawsuit, in Los Angeles County, but
that lawsuit was abandoned before the defendant was
served.
“[Chaker] states that he is ‘truly sorry about the expense
and inconvenience that [he] caused by filing lawsuits
without understanding the legal and procedural
requirements.’ [Citation.] [He] then attempts to justify or
excuse his conduct: ‘In my own defense, I can say only that
I genuinely believed at the time that the cases had merit.’
[Citation.] He states the cases were not filed to harass
others, and most of them were dismissed because plaintiff
did not attend ‘a status conference or file a reply motion.’
[Citation.] ‘It was never determined I filed any of those
cases in “bad faith” nor was I sued in any of those cases for
malicious prosecution.’ [Citation.]
“[Chaker] has not paid the judgment for costs entered
against him in this litigation. . . . [Chaker] states that he is
not aware of any judgment for costs, but that he ‘would be
happy to arrange to make payments towards the cost.’
[Citation.] [Chaker’s] sincerity is questionable, particularly
considering [he] filed a request to waive court fees so that
he could bring this motion.
“[Chaker] states that he has channeled his interest in the
law in more productive ways, assisting his attorney in
litigating [his habeas petition]. After numerous habeas
corpus petitions (including three to the California Supreme
Court), [Chaker] was finally successful with his habeas
corpus petition in the federal courts.[7]
7 Chaker was granted habeas relief from his misdemeanor conviction for
knowingly making a false statement of peace officer misconduct (former
Penal Code section 148.6, subd. (a)(1)), on the ground that the statute
impermissibly discriminated on the basis of a speaker’s viewpoint in violation
of the First Amendment because it left unregulated knowingly false speech
supportive of peace officer conduct. (See Chaker v. Crogan (9th Cir. 2005)
428 F.3d 1215, 1217.)
8
“[Chaker] has not been completely forthcoming regarding
his litigating other criminal cases. There are at least three
unpublished appellate decision[s] in which plaintiff was a
party and in which he acted in pro[.] per[.] for at least part
of the time. [Citations.]
“Although these unpublished decisions are not civil
lawsuits filed against a third-party, the continuing
litigation and numerous appeals does not convince the
[c]ourt that [Chaker] has given up his habit of pursuing
litigation. Indeed, it appears more likely that [Chaker] was
too busy with his criminal litigation that he didn’t have
time to pursue other civil litigation.
“B[ased upon the foregoing], the [c]ourt determines that
there are insufficient changes in the facts upon which the
July 10, 2001 Order was based. [Chaker] has not
demonstrated that he has given up the habit of litigating as
a way of life or that he is truly remorseful for the filing of
the prior cases. [Chaker] has not been completely honest in
his application, nor has there been a genuine effort at
restitution.”
San Diego Superior Court Case No. D543061
In May 2013, Chaker initiated through counsel Chaker v. S.A. (Super.
Ct. San Diego County, 2015, No. D543061). Although he initiated the case
through counsel, Chaker repeatedly appeared in court in propria persona,
and never with his attorney of record. After the trial court admonished him
to appear with counsel, Chaker filed a substitution of attorney to substitute
his attorney out of the case and continued to appear in propria persona.
The trial court ultimately dismissed Chaker’s action in an order filed
September 15, 2015. In the final dismissal order, the trial court described
the abusive litigation tactics Chaker employed in that action, such as issuing
subpoenas to third parties without notice to the adverse party and noticing a
litany of improper ex parte applications despite the court’s admonition.
When the party adverse to Chaker moved for an order requiring Chaker to
9
post security (§§ 391.1, 391.7), Chaker failed to appear at the noticed motion.
The trial court entered an order requiring Chaker to obtain court approval
from the presiding judge prior to filing any additional litigation. Over the
next two years, despite the court’s repeated insistence that Chaker obtain
leave to prosecute the case (consistent with his vexatious litigant prefiling
order requirements), Chaker failed to do so.
The trial court stated that “[i]t was apparent that [the] attorney [who
represented Chaker when he initiated the litigation] was at best a ‘passive
attorney,’ appearing as a mere ‘puppet.’ If he was employed at all, his
presence served the sole purpose of evading [the vexatious litigant] prefiling
orders.”
The court stated, “Darren Chaker is a ‘vexatious litigant.’ The
Administrative Office of the Courts maintains a list of vexatious litigants.
Darren Chaker’s name has appeared on that list throughout the duration of
this case. He has had over two years to obtain leave to prosecute this case.
He has failed to do so.”
The court further stated, “It is clear that based on the conduct of
[Chaker] in this case, [he] has repeatedly, and despite the court’s
admonitions for him to cease, improperly used the court’s ex parte procedures
on matters that should have been brought as noticed motions. He further
brought motions to remove [opposing] counsel and his law firm from the case.
He brought motions which were wholly unrelated to this . . . action. Such
conduct satisfies the definition set forth at . . . [section] 391[, subdivision]
(b)(3) [of vexatious litigant].”
The trial court found that Chaker’s failure to obtain permission to
continue the litigation, as required by the prefiling orders in place against
him, was dispositive and dismissal was required.
10
The trial court ordered that Chaker must “provide a copy of this order
to any court as part of any application to receive leave to file any new
litigation wherein he proposes to name [adverse party or family members of
adverse party], as a party” (the September 15, 2015 prefiling order).8
San Diego Superior Court Case No. 37-2010-00094816
In 2010, Chaker initiated through counsel Chaker v. Mateo (Super. Ct.
San Diego County, No. 37-2010-00094816). This case resulted in a published
appellate decision from this court which affirmed in full the trial court’s order
granting defendant’s special motion to strike Chaker’s complaint pursuant to
section 425.16. (Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1141.) The
trial court subsequently awarded defendant attorney fees in that case,
resulting in a final monetary judgment adverse to Chaker. Chaker
represented himself and appeared in propria persona in all postappeal
proceedings, filing a flurry of meritless motions and applications attempting
to avoid judgment collection efforts. In an order denying one such motion,
the trial court ordered Chaker to show cause “why all his pending
motions . . . should not be removed from the calendar, and also to show cause,
8 After the trial court denied Chaker’s application for an order removing
the prefiling requirements, and while that order was pending on appeal,
Chaker filed yet another new litigation, Chaker v. S.A. (Super. Ct. San Diego
County, 2019, No. 19FL009593C). In the final order denying Chaker relief in
that action, filed November 14, 2019, the trial court noted that, although
Chaker obtained permission to file that action, the permission obtained was
“defective” because Chaker failed to comply with the September 15, 2015
prefiling order (requiring him to attach that order as part of any application
to receive leave to file new litigation involving that adverse party). The court
indicated it would likely dismiss Chaker’s action on that basis had it been
requested to do so, and denied Chaker all requested relief. Chaker filed a
notice of appeal of that order, Chaker v. S.A. (Feb. 21, 2020, D077191), which
was dismissed when Chaker’s request for permission to appeal was denied.
11
if any there be, why he should be [sic] precluded from filing any additional
motions, in light of the fact he has neither requested nor received permission
from the Presiding Judge or his designee.” The trial court noted that
Chaker’s conduct in the postjudgment collection litigation “[met] and
exceed[ed] most if not all” of the definitional criteria for a vexatious litigant:
i.e., one who “repeatedly relitigates or attempts to relitigate, in propria
persona, . . . issues of fact or law, determined or concluded by the final
determination against the same defendant . . . as to whom the litigation was
finally determined” (§ 391, subd. (b)(2)); one who “repeatedly files
unmeritorious motions . . . or engages in other tactics that are frivolous or
solely intended to cause unnecessary delay” (§ 391, subd. (b)(3)); or one who
“[h]as 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)(4)).
The trial court noted: “Instead of attempting to pay off the [final,
nonappealable] judgment, [Chaker] has raised every possible roadblock to
[opposing counsel’s] lawful collection activities (while, it must be noted,
interest continues to accrue at 10%). The motions he has filed have almost
all been meritless, frivolous, dilatory and repetitive—the very paradigm of
‘vexatious.’ The motions also fit the definition of ‘new litigation’ envisioned
in . . . sections 391(a), 391.7(a), and 391.7(d).” The trial court ordered the
parties to submit briefing and set a hearing date for the order to show cause.
After a hearing, the trial court entered an order removing Chaker’s
pending motions from calendar and prohibiting him from filing additional
motions without written prior approval of the civil presiding judge. The trial
court reiterated that Chaker’s postjudgment litigation conduct meets and
exceeds nearly all of the definitional criteria for a vexatious litigant. The
12
court observed that “Chaker has not advanced any basis or argument as to
why his pending motions should not be removed from the calendar. He does
not present any reasonable challenge to his vexatious litigant determinations
by other judges, or that he has successfully appealed those, or that he has
had them set aside.” The trial court analogized the present action to that in
Singh v. Lipworth (2014) 227 Cal.App.4th 813, 816-817, inasmuch as Chaker
was a vexatious litigant with no reasonable probability of prevailing in the
litigation because the lawsuit amounted to an impermissible collateral attack
on a prior final judgment and postjudgment orders. The trial court reiterated
that Chaker continued to raise “every possible roadblock” in the proceedings,
and that his filings were “meritless, frivolous, dilatory and repetitive—the
very paradigm of ‘vexatious.’ ” Finally, the trial court observed: “The San
Diego Superior Court has endured [six] years of budget cuts which have
reduced services to the bone. . . . The court cannot afford Mr. Chaker’s
continued efforts to make litigation his personal playground and tool for
harassment. The court must have the ability to stop abusive tactics so it can
pay attention to legitimate disputes.”
In a subsequent order entered in March 2016 appointing a receiver in
that case, the trial court described Chaker as “a proven (and unrepentant)
vexatious litigant,” noting that “Chaker has, instead of modulating the
bullying conduct which gave rise to the vexatious litigant findings, sought to
intimidate the court by threatening to post the court’s (already publicly
available) FPPC Form 700 on the internet, and by repeatedly writing to the
[Council on Judicial Performance]. The court understands that his sister is a
lawyer; and, of course, he was formerly represented in this case and evidently
has counsel in other cases he is involved in. The papers he has filed display a
high level of sophistication and fixation. The latter, of course, is often a
13
hallmark of the vexatious litigant.” The trial court appointed a receiver for
judgment collection, observing that such an action was only considered as a
last resort and was justified in the case before it.9 The trial court noted, “The
court has observed, in some instances first hand, the lengths Mr. Chaker has
gone to in his efforts to avoid answering for a just debt (a final non-
appealable judgment). He has several aliases. He claims to use what is
referred to as a ‘throw-down’ phone. He eschews the use of credit cards and
bank accounts. He claims to have no assets. He has obstructed the judgment
debtor process at every turn. In this regard, the court notes that of the
250-plus entries in the [register of actions], all but 60 are dated after the
court granted the motion for attorneys’ fees on appeal.”
Additional Requests to File New Litigation
These additional prefiling orders were not the only incidents Chaker
failed to disclose in his application to vacate the prefiling order and remove
his name from the Judicial Council’s list of vexatious litigants. When
requested to list “every case filed in the last five years in which [Chaker has]
been a plaintiff, cross-complainant, or defendant, the approximate number of
motions [Chaker] filed in each case, and the number of requests for new
litigation that [he has] filed,” he disclosed one Los Angeles Superior Court
case in which he was the plaintiff or cross-complainant and two cases in
which he was named a defendant. However, Chaker failed to disclose at least
three attempted appeals to this court filed in Chaker v. Mateo (Super. Ct. San
Diego County, No. 37-2010-00094816-CU-DF-CTL): Chaker v. Superior Court
(Mateo) (Feb. 19, 2015, D067490); Chaker v. Mateo (Sept. 30, 2015, D068886)
appeal dismissed; and Chaker v. Mateo (Sept. 23, 2016, D071029) appeal
9 Chaker did not timely oppose the judgment creditor’s motion to appoint
a receiver.
14
dismissed; as well as a series of unsuccessful postjudgment motions and
applications filed in the trial court in that action, which led to the imposition
of yet another prefiling order against Chaker for his vexatious litigation
tactics.
Trial Court’s Denial of Chaker’s Application and Appeal
In August 2018, the trial court entered an order denying Chaker’s
application without prejudice. The trial court found “Chaker’s application
does not demonstrate good cause for the requested relief at this time.”
Chaker appeals.
DISCUSSION
I.
Challenges to the 1997 and 2001 Orders Are Not Cognizable on This Appeal
Chaker appears to challenge both the original 1997 and 2001 orders,
contending the trial court “erred by initially finding [Chaker] qualified [as a
vexatious litigant] under section 391” and imposing a prefiling order, and
further contending that “none of the [10 underlying cases identified in his
brief] were found to be meritless.”10 (Italics added.) Specifically with respect
10 The statute requires the prior lawsuits to be “finally determined
adversely to the person.” (§ 391, subd. (b)(1).) “A litigation is finally
determined adversely to a plaintiff if he does not win the action or proceeding
he began, including cases that are voluntarily dismissed by a plaintiff.”
(Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406; see also Fink v. Shemtov
(2010) 180 Cal.App.4th 1160, 1173-1174 (Fink) [in propria persona appeal
dismissed as untimely is a litigation finally determined adversely to plaintiff,
for purposes of the determination that plaintiff was a vexatious litigant].)
Chaker’s request for judicial notice includes seven orders dismissing his
actions, three adverse judgments, an adverse order granting opposing party’s
motion to dismiss, and an adverse order sustaining opposing party’s
demurrer. Each of these represents a determination adverse to Chaker,
satisfying the statutory requirements under section 391, subdivision (b)(1).
15
to the 2001 order, Chaker contends the trial court erred when it declared him
to be a vexatious litigant because he was represented by counsel when the
case was initially filed.
We reject Chaker’s efforts to attack the validity of the underlying
orders. “It is well established that an appellate court may not review a
decision or order from which an appeal could previously have been taken.”
(In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1347
(Rifkin).) The 1997 and 2001 orders were subject to appellate review in the
actions in which they were issued. (In re Marriage of Deal (2020)
45 Cal.App.5th 613, 618-619 [order declaring a person to be a vexatious
litigant is reviewable on appeal from subsequent appealable judgment or
order issued in that action].) We are not authorized to review them now—
23 years and 19 years, respectively, after they were entered. (§ 906 [“Upon
an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review
the verdict or decision and any intermediate ruling, proceeding, order or
decision which involves the merits or necessarily affects the judgment or
order appealed from or which substantially affects the rights of a party,
including, on any appeal from the judgment, any order on motion for a new
trial . . . . The provisions of this section do not authorize the reviewing court
to review any decision or order from which an appeal might have been
taken.”].) Chaker’s arguments regarding the underlying orders declaring him
to be a vexatious litigant and imposing a prefiling order therefore fail.
II.
Chaker’s Request to Vacate the Prefiling Orders
A. Legal Principles
“The vexatious litigant statutes (§§ 391-391.7) are designed to curb
misuse of the court system by those persistent and obsessive litigants who,
16
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 (Shalant).) Under section 391,
subdivision (b), a vexatious litigant is “a person who has, while acting in
propria persona, initiated or prosecuted numerous meritless litigations,
relitigated or attempted to relitigate matters previously determined against
him or her, repeatedly pursued unmeritorious or frivolous tactics in
litigation, or who has previously been declared a vexatious litigant in a
related action.” (Shalant, at pp. 1169-1170.)
If an individual is determined to be a vexatious litigant, the court may
“ ‘enter a “prefiling order” that prohibits a vexatious litigant from filing any
new litigation in propria persona without first obtaining permission from the
presiding judge.’ ” (Shalant, supra, 51 Cal.4th at p. 1170.) The prefiling
order “ ‘ “operates beyond the pending case.” ’ ” (Ibid.) The statutes define
“ ‘litigation’ ” as “any civil action or proceeding, commenced, maintained or
pending in any state or federal court.” (§ 391, subd. (a).) For purposes of
section 391.7, “ ‘litigation’ includes any petition, application, or motion other
than a discovery motion, in a proceeding under the Family Code or Probate
Code, for any order.” (§ 391.7, subd. (d).)
“A vexatious litigant subject to a prefiling order under Section 391.7
may file an application to vacate the prefiling order and remove his or her
name from the Judicial Council’s list of vexatious litigants subject to prefiling
orders.” (§ 391.8, subd. (a).) “A court may vacate a prefiling order and order
removal of a vexatious litigant’s name from the Judicial Council’s list of
vexatious litigants subject to prefiling orders upon a showing of a material
change in the facts upon which the order was granted and that the ends of
justice would be served by vacating the order.” (Id., subd. (c).)
17
A trial court has discretion to enter a prefiling order against a litigant
who has been determined to be vexatious. (§ 391.7, subd. (a) [the court, on its
own motion or the motion of a party, “may . . . enter a prefiling order”], italics
added; see Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) “Review of the
order is accordingly limited and the Court of Appeal will uphold the ruling if
it is supported by substantial evidence. Because the trial court is best suited
to receive evidence and hold hearings on the question of a party’s
vexatiousness, we presume the order declaring a litigant vexatious is correct
and imply findings necessary to support the judgment.” (Golin v. Allenby
(2010) 190 Cal.App.4th 616, 636 (Golin); accord Bravo, at p. 219.)
A trial court likewise has discretion to vacate a prefiling order and to
order the removal of a vexatious litigant’s name from the Judicial Council’s
list of vexatious litigants subject to prefiling orders. (§ 391.8, subd. (c) [“[a]
court may vacate a prefiling order”], italics added.) As such, we apply the
same standard of review as that for an order imposing a prefiling order. We
presume the order is correct, and imply findings necessary to support the
judgment when there is substantial evidence to support them. (Golin, supra,
190 Cal.App.4th at p. 636.)11
B. Analysis
Chaker contends the trial court erred when it denied his application to
vacate the prefiling orders and order removal of his name from the Judicial
11 The trial court’s order denying Chaker’s section 391.8 application to be
removed from the statewide vexatious litigant list is appealable as an order
refusing to dissolve an injunction. (§ 904.1, subd. (a)(6).)
18
Council’s list of vexatious litigants subject to prefiling orders. We reject
Chaker’s claims of error.12
Chaker’s application neglected to disclose judicially noticeable
documents reflecting his continued abuse of the litigation process. At least
two additional orders finding Chaker to be a vexatious litigant and imposing
new prefiling orders were issued in 2015. In addition, Chaker filed numerous
motions and applications in San Diego Superior Court case Nos. D543061 and
37-2010-00094816 which precipitated imposition of these new prefiling
orders, as well as multiple attempted appeals. These motions, applications,
and appeals qualify as “new litigation” and are encompassed by the vexatious
litigant statutes. (See §§ 391.7, subds. (a), (b), 391 subd. (a); see also John v.
Superior Court (2016) 63 Cal.4th 91, 100 (John) [appeals and writs filed by
vexatious litigants are subject to the prefiling requirement if the vexatious
litigant was the party who initiated the action below, but “[s]ection 391.7’s
prefiling requirements do not apply to a self-represented vexatious litigant’s
appeal of a judgment or interlocutory order in an action in which he or she
was the defendant”].) These facts should have been disclosed to the trial
court in his application to dissolve the prefiling order, but Chaker failed to
disclose them.
Aside from the lack of transparency Chaker displayed, the application
itself was insufficient to justify relief. Although Chaker argued in his
application that a material change in the facts amounted to good cause to
vacate the prefiling order, he did not argue that vacating the prefiling order
would further the ends of justice. Under the statute, these two requirements
must both be addressed and satisfied. (§ 391.8, subd. (c) [authorizing a court
12 However, as discussed in Section III post, we conclude modification of
the 2001 prefiling order is warranted.
19
to vacate a prefiling order only upon a showing of a material change in the
facts upon which the order was granted and that the ends of justice would be
served by vacating the order].) Absent a showing that vacating the prefiling
order would further the ends of justice, Chaker was not entitled to relief. The
trial court was therefore justified in impliedly finding Chaker did not make
the required showing that “ ‘the ends of justice would be served’ ” by vacating
the prefiling order. (Rifkin, supra, 234 Cal.App.4th at p. 1346 [appellate
court presumes the challenged order regarding a vexatious litigant is correct
and implies findings necessary to support the judgment].)13
Chaker’s arguments in support of reversal are unpersuasive. Chaker
contends “no evidence was before the court” to show he qualified as a
vexatious litigant, thus the trial court abused its discretion when it declined
to dissolve the prefiling order. As discussed ante, to the extent Chaker is
merely attacking issuance of the underlying order, his claim is not reviewable
in this appeal. Moreover, his claim fails because there is ample evidence
supporting the multiple trial court findings that Chaker is a vexatious
litigant. The evidence demonstrates there has not been “a material change in
the facts” that would justify vacating the prefiling order or that the ends of
justice would be served by vacating the order. (§ 391.8, subd. (c).) To the
contrary, the record shows that Chaker has continued to employ the same
abusive litigation tactics that initially led to his vexatious litigant
designation more than two decades ago. In addition, Chaker’s failure to
disclose all relevant evidence in the trial court and on appeal “waste[s] the
13 Chaker’s brief on appeal is completely silent regarding the second
conjunctive requirement of the statute, further demonstrating that his claim
of error has no merit.
20
time and resources of the court system.” (Shalant, supra, 51 Cal.4th at
p. 1169.)
We also reject Chaker’s contention that “section 391[,] as applied to
[him,] is unconstitutional since it does not comport with any state interest
preventing meritless actions.” Chaker appears to contend the prefiling order
impermissibly chills his First Amendment right to free speech. Preliminarily,
we note that Chaker forfeited this claim by failing to raise it in the trial
court. (In re Sheena K. (2007) 40 Cal.4th 875, 889 [noting that facial
constitutional challenges may be raised for the first time on appeal, unlike
as-applied challenges that do not present “ ‘ “pure questions of law that can
be resolved without reference to the particular [facts]” ’ ”].)
Even if Chaker had preserved this claim, it lacks merit. Courts have
repeatedly rejected free speech and due process challenges to California’s
vexatious litigant statutes. (See, e.g., In re R.H. (2009) 170 Cal.App.4th 678,
701, 703 [rejecting free speech and due process challenges to the vexatious
litigant statutes], disapproved on other grounds in John, supra, 63 Cal.4th at
p. 99, fn. 2; Fink, supra, 180 Cal.App.4th at pp. 1170-1171 [vexatious litigant
statutes do not violate constitutional due process]; Wolfe v. George (9th Cir.
2007) 486 F.3d 1120, 1125 [California’s vexatious litigant statute is not
unconstitutionally overbroad because “there is no constitutional right to file
frivolous litigation” under the First Amendment]; see also Bill Johnson’s
Restaurants, Inc. v. N.L.R.B. (1983) 461 U.S. 731, 743 [“Just as false
statements are not immunized by the First Amendment right to freedom of
speech [citations], baseless litigation is not immunized by the First
Amendment right to petition.”].) Chaker has not shown how applying the
vexatious litigant statutes to him is inconsistent with the First Amendment.
21
We thus reject Chaker’s meritless constitutional challenge to the vexatious
litigant statutes.
III
Modification of the 2001 Prefiling Order
In the trial court, Chaker’s application to vacate the prefiling order
alternatively requested that the trial court “vacate” as invalid “that portion of
the [2001] pre-filing order . . . that Chaker not file any new lawsuits even if
he is represented by counsel.” While we disagree that that portion of the
prefiling order should be stricken altogether, we agree the 2001 order should
be modified to narrowly tailor it to apply (1) in cases Nero v. Conam
Management Corporation (Super. Ct. San Diego County, 2001,
No. GIC757326) and Chaker v. S.A. (Super. Ct. San Diego County, 2015,
No. D543061); (2) in any related litigation filed against any adverse party in
cases Nero v. Conam Management Corporation (Super. Ct. San Diego County,
2001, No. GIC757326) and Chaker v. S.A. (Super. Ct. San Diego County,
2015, No. D543061); and (3) in any other litigation previously filed by Chaker
where the trial court has found that Chaker has attempted to circumvent
section 391.7 by retaining counsel to serve as a mere “ ‘puppet’ attorney”
(Kinney v. Clark (2017) 12 Cal.App.5th 724, 738 (Kinney)), and in any related
litigation filed against any adverse party in such cases.14 By tailoring the
prefiling order in this manner, however, we stress that the trial court is not
precluded from making orders pursuant to its inherent authority in response
to any further abuses of the litigation process by Chaker—whether he is
14 We are unable to more precisely identify the litigation covered by the
prefiling order because Chaker has not presented a complete record to this
court.
22
proceeding in propria persona or is represented by counsel—in any future
litigation.
A. Legal Principles
In Shieh, the Court of Appeal imposed a prefiling order on a vexatious
litigant, forbidding the litigant from filing “any new litigation in the courts of
this state, whether in propria persona or through an attorney, without first
obtaining leave of the presiding judge of the court in which he proposes to file
the litigation.” (Shieh, supra, 17 Cal.App.4th at pp. 1167-1168.) The court
found that the breadth of this order, encompassing litigation filed both in
propria persona or through an attorney, was justified by the findings that the
litigant “does not engage attorneys as neutral assessors of his claims, bound
by ethical considerations not to pursue unmeritorious or frivolous matters on
behalf of a prospective client. [Citation.] Rather, these attorneys who
ostensibly ‘represent’ [the litigant] serve as mere puppets. Based on these
facts, we conclude a prefiling order limited to [the litigant’s] in propria
persona activities would be wholly ineffective as a means of curbing his out-
of-control behavior.” (Id. at p. 1167.)
Subsequently, in Shalant, supra, 51 Cal.4th 1164, the California
Supreme Court observed that “[s]ection 391.7 . . . is not reasonably
susceptible to a reading under which a prefiling order would bar the
vexatious litigant from filing motions or other papers in propria persona even
when the action . . . was itself properly filed through counsel.” (Id. at
p. 1175.) The court noted that “[n]othing in the prefiling order prohibits
Shalant from continuing to prosecute or maintain an action in propria
persona as long as he did not file the action in propria persona (and nothing
in the statutory language would authorize the issuance of a prefiling order
containing such a prohibition).” (Id. at p. 1171, third italics added.)
23
However, the Supreme Court “express[ed] no opinion as to whether
section 391.7 may be applied when the record shows the vexatious litigant’s
attorney has, in filing the action, acted as a ‘mere puppet[]’ of the litigant.
([Shieh, supra,] 17 Cal.App.4th [at p.] 1167.) The trial court made no such
finding in dismissing Shalant’s action, and defendants, though they cite
Shieh as supporting a broad interpretation of section 391.7, do not argue the
dismissal should be affirmed on grounds the attorney who filed this action
was merely a puppet for Shalant.” (Id. at p. 1176, fn. 8.)
In Kinney, the court opined that “Section 391.7 applies where a ‘puppet’
attorney files new litigation on behalf of a vexatious litigant,” and further
opined that, even after Shalant, “Shieh remains good law.” (Kinney, supra,
12 Cal.App.5th at pp. 738-739.) However, Kinney alternatively reasoned
that, “irrespective of section 391.7, the court has inherent powers to control
judicial proceedings to ensure the administration of justice and prevent abuse
of the judicial process,” and, in light of the vexatious litigant’s use of “a
‘puppet’ attorney” to continue to abuse the litigation process, imposed a new,
expanded prefiling order “providing that, even when [the vexatious litigant]
is represented by counsel, he must seek leave of the presiding judge before
filing any new litigation in a court of this state against [defendant] or the
attorneys who have been representing her or represent her in the future in
[related] litigation . . . .” (Id. at pp. 738, 741.) The court emphasized that
“[t]he expansion of the prefiling order that we impose today is narrowly
tailored to the circumstances before us” in that it “only applies to litigation
[the vexatious litigant’s] attorneys file against [defendant] or her attorneys.”
(Id. at p. 741.)
24
B. Analysis
Chaker contends the trial court erred when it failed to strike the
portion of the 2001 prefiling order applying the requirement to all litigation,
whether initiated in propria persona or through counsel. He contends the
order’s language purporting to bar him from initiating new litigation through
counsel conflicts with the plain language of section 391.7, subdivision (a),
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.” (Italics added.)
Shalant observed that “[s]ection 391.7 . . . is not reasonably susceptible
to a reading under which a prefiling order would bar the vexatious litigant
from filing motions or other papers in propria persona even when the
action . . . was itself properly filed through counsel,” and “nothing in the
statutory language would authorize the issuance of a prefiling order
containing such a prohibition.” (Shalant, supra, 51 Cal.4th at pp. 1171,
1175.) Thus, we agree with Chaker’s contention that the plain language of
section 391.7 does not authorize a prefiling order that applies to new
litigation which is filed by someone who is represented by counsel. However,
“irrespective of section 391.7, the court has inherent powers to control judicial
proceedings to ensure the administration of justice and prevent abuse of the
judicial process.” (Kinney, supra, 12 Cal.App.5th at p. 738.)
As in Kinney, the record here demonstrates that an expanded prefiling
order is necessary to “control the orderly administration of justice and
prevent abuse of the judicial process.” (Kinney, supra, 12 Cal.App.5th at
p. 741.) Thus, we disagree with the scope of relief requested by Chaker, and
instead opt to more narrowly tailor the prefiling order based on the record
25
before us. The record demonstrates that Chaker has at least twice been
found to use attorneys as “mere puppets” to pursue litigation in
circumvention of section 391.7. In 2001 in case No. GIC757326, the trial
court imposed the broad prefiling requirement pursuant to Shieh, implicitly
finding that Chaker had engaged his attorney not as a neutral assessor of his
claims, bound by ethical considerations, but rather as a “mere puppet[]”
serving only at Chaker’s whim. In its 2015 order finding Chaker’s conduct to
be vexatious, dismissing his petition, and imposing a new prefiling order, the
trial court in case No. D543061 expressly found that the attorney who
represented Chaker when he initiated the litigation “was at best a ‘passive
attorney,’ appearing as a mere ‘puppet.’ If he was employed at all, his
presence served the sole purpose of evading [the vexatious litigant] prefiling
orders.”
Although the record here demonstrates that an expanded prefiling
order is necessary, we agree that the order should be narrowly tailored.
(Kinney, supra, 12 Cal.App.5th at p. 741.) The 2001 prefiling order is a
continuing injunction against Chaker, which can be modified to comport with
the language of the statute and governing case law. (See § 533 [modification
of an injunction may be predicated on change in the facts, change in the law,
or the ends of justice]; Luckett v. Panos (2008) 161 Cal.App.4th 77, 85
[vexatious litigant prefiling order is an injunction subject to modification
pursuant to section 533]; Banks v. State of California (1993) 14 Cal.App.4th
1147, 1149-1150 [modifying vexatious litigant prefiling order].) “[W]here
there has been a change in the controlling facts upon which a permanent
injunction was granted, or the law has been changed, modified or extended,
or where the ends of justice would be served by modification or dissolution,
the court has the inherent power to vacate or modify an injunction where the
26
circumstances and situation of the parties have so changed as to render such
action just and equitable.” (Welsch v. Goswick (1982) 130 Cal.App.3d 398,
404.) Based on this record, we modify the trial court’s order consistent with
this opinion.
IV
Proceedings on Rehearing
On October 8, 2020, an opinion was filed in this case. Like this opinion,
the initial opinion took judicial notice of the portions of the superior court
files referenced ante, concluded the trial court did not abuse its discretion in
refusing to vacate the prefiling orders, and modified the 2001 prefiling order.
Chaker subsequently filed a petition for rehearing. Among other claims,
Chaker contended this court should not have taken judicial notice of the
portions of the superior court files. He argued that, if he was aware the court
would take judicial notice of superior court records, he would not have waived
his right to oral argument before this court. At this court’s request, the
Superior Court filed a response to Chaker’s rehearing petition, arguing it was
appropriate for this court to take judicial notice of the superior court records,
and further arguing rehearing was not necessary.
On November 6, we granted Chaker’s petition in part, vacated our
opinion filed October 8, 2020, and ordered rehearing solely on the issue of
whether judicial notice may be taken of the superior court files referenced in
the opinion. (Cal. Rules of Court, rule 8.268.) We invited the parties to file a
supplemental brief addressing whether judicial notice may be taken of the
superior court files referenced in our initial opinion. We also provided the
parties an opportunity to request oral argument.
Chaker requested oral argument and filed a supplemental brief,
arguing it is improper to take judicial notice without prior notice and the
27
records are not subject to judicial notice because they contain “disputed
facts.” He further argued the “records in dispute” are irrelevant to a
determination of whether Chaker “had filed meritless lawsuits” and should
“still qualify” as a vexatious litigant under section 391. He further contended
the records failed “to correlate to ‘puppet attorney conduct.’ ” Chaker
appeared for oral argument in April 2021.
We reject Chaker’s contentions raised on rehearing. The Evidence
Code permits this court to take judicial notice of the court records discussed
above. (Evid. Code, §§ 452, subd. (d)(1), 459.) “We may take judicial notice of
the existence of judicial opinions and court documents, along with the truth of
the results reached—in the documents such as orders, statements of decision,
and judgments—but cannot take judicial notice of the truth of hearsay
statements in decisions or court files, including pleadings, affidavits,
testimony, or statements of fact.” (Williams v. Wraxall (1995) 33 Cal.App.4th
120, 130, fn. 7.) These principles apply in cases involving vexatious litigants.
(See Kinney, supra, 12 Cal.App.5th at p. 727, fns. 1, 2; id. at p. 739, fn. 14
[appellate court sua sponte took judicial notice of trial court orders and
appellate court opinions from vexatious litigant’s prior lawsuits]; In re Kinney
(2011) 201 Cal.App.4th 951, 954, fn. 3 [taking judicial notice on appeal of
prior order “declaring Kinney a vexatious litigant, and the motion underlying
that order,” as well as other superior court files and appellate opinions
stemming from six separate cases, noting that the “judicially noticed files and
opinions are matters leading to the present proceeding”].)
Consistent with these authorities, we take judicial notice of the
relevant superior court records for a limited purpose. We are not taking
judicial notice of the truth of all of the matters stated in the documents, but
rather look to the existence of these orders and the fact that they were made,
28
for purposes of evaluating whether the trial court erred in denying Chaker’s
request to vacate the prefiling orders. Contrary to Chaker’s contentions and
as fully discussed ante, the orders demonstrate the propriety of the trial
court’s refusal to vacate the prefiling orders and evidence Chaker’s use of
“puppet” attorneys on at least two prior occasions. They are both relevant
and appropriate subjects of judicial notice.
DISPOSITION
The order denying Chaker’s application to vacate the prefiling orders
and remove his name from the Judicial Council’s list of vexatious litigants
subject to prefiling orders is modified to direct that the 2001 prefiling order
be amended as follows:
The 2001 order shall be amended such that the portion of the order
that previously provided that the court “enters a pre-filing order which
prohibits [Chaker] from initiating any new litigation in any court in the State
of California, whether in propria persona or represented by counsel, without
first obtaining leave of the presiding judge of the court where the litigation is
proposed to be filed with notice to the affected party” shall provide that the
court “enters a prefiling order which prohibits Chaker, under any name or
alias, from initiating any new litigation in any court in the State of California
in propria persona without first obtaining leave of the presiding judge of the
court where the litigation is proposed to be filed with notice to the affected
party.” In addition, whether Chaker is proceeding in propria persona or is
represented by counsel, the prefiling order applies: (1) in cases Nero v.
Conam Management Corporation (Super. Ct. San Diego County, 2001,
No. GIC757326) and Chaker v. S.A. (Super. Ct. San Diego County, 2015,
No. D543061); (2) in any related litigation filed against any adverse party in
cases Nero v. Conam Management Corporation (Super. Ct. San Diego County,
29
2001, No. GIC757326) and Chaker v. S.A. (Super. Ct. San Diego County,
2015, No. D543061); and (3) in any other litigation previously filed by Chaker
where the trial court has found that Chaker has attempted to circumvent
section 391.7 by retaining counsel to serve as a mere “ ‘puppet’ attorney”
(Kinney, supra, 12 Cal.App.5th at p. 738), and in any related litigation filed
against any adverse party in such cases.
As modified, the order denying Chaker’s application to vacate the
prefiling orders and remove his name from the Judicial Council’s list of
vexatious litigants subject to prefiling orders is affirmed.
GUERRERO, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
30