Kinney v. Clark ( 2017 )

Filed 6/14/17 Unmodified opinion attached
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CHARLES KINNEY, B265267
Cross-complainant and (Los Angeles County
Appellant, Super. Ct. No. BC354136)
v. ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
MICHELE R. CLARK,
Cross-defendant and
Respondent.
THE COURT:
IT IS ORDERED that the opinion filed herein on May 17,
2017, be modified in the following particulars:
On page 13, at the end of the first sentence in the first full
paragraph, after the words “improper windfall,” add the words
“because it is as if she never incurred the attorney fees and
costs,” so that the sentence now reads: Kinney also argues Clark
was not entitled to collect on the December 15, 2008 order
awarding her attorney fees and costs because her pre-petition
debt to her attorneys was discharged in bankruptcy, so her
recovery on that award would constitute an improper windfall
because it is as if she never incurred the attorney fees and costs.
On page 14, in line seven of the first partial paragraph,
after the word “raised,” add the word “properly,” so that the
sentence now reads: Arguments that should have been raised
properly in appellate case number B253093, regarding Clark’s
entitlement to collect on the December 2008 award, are not
germane to our resolution of this appeal.
On page 14, at the end of the first partial paragraph, after
the sentence modified above, add a footnote (which will be
footnote number 7) stating: As explained previously, Kinney filed
the notice of appeal in appellate case number B253093 as
attorney for his mother’s trust and estate, although the claim of
exemption was his own, and the trust and estate were not parties
to the action in the trial court and did not seek to intervene in the
action or vacate the order in the trial court. Accordingly, we
dismissed the appeal based on lack of standing. Had Kinney
appealed from the order himself in appellate case number
B253093 as he should have done, and not circumvented the
prefiling order by filing a notice of appeal on behalf of
disinterested third parties, we would have considered then the
argument he belatedly raises now—that Clark was not entitled to
collect on the December 15, 2008 order awarding her attorney
fees and costs because her pre-petition debt to her attorneys was
discharged in bankruptcy.
On page 14, at the end of the last sentence in the first full
paragraph (“Accordingly, we reject Kinney’s argument that
allowing Clark to enforce the judgment against him would be
inequitable to him and a windfall for her”), add a footnote (which
will be footnote number 8) stating: In support of his standing
2
argument, Kinney cites cases where a non-prevailing party had
standing to challenge whether the prevailing party technically
incurred attorney fees where in-house counsel performed the
legal services on behalf of the prevailing party (PLCM Group, Inc.
v. Drexler (2000) 22 Cal. 4th 1084) or the law firm in which the
prevailing party was a partner performed the legal services
(Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal. App. 4th
212). These cases are not germane to Kinney’s argument
regarding the effect of Clark’s bankruptcy discharge on her pre-
petition debt to her attorneys and whether he has standing to
challenge the December 15, 2008 award of attorney fees and costs
based on these bankruptcy concerns.
Beginning on page 16, renumber the footnotes in the
opinion based on the addition of new footnote numbers 7 and 8,
as specified above.
On page 16, in the second to last sentence in the partial
paragraph on that page, before the words “Kinney does not cite
authority,” add the words “In his opening and reply appellate
briefs,” so that the sentence now reads: In his opening and reply
appellate briefs, Kinney does not cite authority or provide
argument supporting his position that an appeal from an
attorney fee order would prevent the trial court from issuing a
subsequent, separate and distinct attorney fee order based on
new and different legal services rendered.
On page 16, after the partial paragraph on that page, add
two new paragraphs stating: In a supplemental brief in this
matter, urging this court not to impose sanctions on him for filing
a frivolous appeal, Kinney cites Elsea v. Saberi (1992) 4
Cal. App. 4th 625 (Elsea) in support of his argument “that an
appeal of an order stay[s] further proceedings which rely on the
3
validity of that order.” Elsea is inapplicable to the circumstances
in the case before us. There, the defendants appealed the trial
court’s denial of their motion to vacate a default judgment in a
personal injury action. While the defendants’ appeal was
pending, defendants’ insurer appeared before a different trial
court judge, intervened in the trial court action, and successfully
moved to vacate the judgment as to itself under Code of Civil
Procedure section 473. (Id. at p. 628.) The plaintiff appealed and
the Court of Appeal reversed the order vacating the default
judgment as to the insurer, concluding, “Because the trial court’s
ruling on [the insurer]’s section 473 motion affected enforcement
of the default judgment, it impacted on the effectiveness of the
pending appeal [the defendants’ appeal from the order denying
their motion to vacate the same default judgment] and therefore
was in excess of the court’s jurisdiction.” (Id. at p. 629.)
Here, we do not have a situation like Elsea where multiple
parties (the defendants and the intervener) were appealing from
the same judgment. We have a situation where the same party is
appealing from different post-judgment attorney fee orders. An
appeal from one attorney fee order does not stay the trial court
action under Code of Civil Procedure section 916 and prevent the
trial court from issuing a subsequent attorney fee order based on
new legal services rendered.
This modification does not result in a change in the
judgment.
CERTIFIED FOR PUBLICATION.
____________________________________________________________
ROTHSCHILD, P. J. CHANEY, J. JOHNSON, J.
4
Filed 5/17/17 Unmodified opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CHARLES KINNEY, B265267
Cross-complainant and (Los Angeles County
Appellant, Super. Ct. No. BC354136)
v.
MICHELE R. CLARK,
Cross-defendant and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Barbara M. Scheper, Judge. Appeal dismissed;
motions for sanctions granted.
William M. Rubendall; Cyrus Sanai for Cross-complainant
and Appellant.
Marcus, Watanabe & Enowitz, David M. Marcus and Eric
Chomsky for Cross-defendant and Respondent.
__________________________________
Charles Kinney appeals from a post-judgment award for
attorney fees and costs Michele Clark incurred in a prior appeal
while attempting to enforce an earlier award for attorney fees
and costs against Kinney. Kinney has been challenging Clark’s
entitlement to fees and costs in this action since 2008, when the
trial court first awarded Clark attorney fees and costs under a
residential purchase agreement to which she and Kinney were
parties and under which Kinney brought this unsuccessful cross-
action against Clark. This appeal, like the numerous appeals
before, lacks merit. We grant Clark’s motion to dismiss the
appeal because it is frivolous.
The Los Angeles Superior Court, this court, and the United
States District Court for the Central District of California all
have declared Kinney to be a vexatious litigant. Under a
prefiling order issued in 2011, Kinney, while self-represented,
may not file new litigation (including any appeal or writ) in a
California state court without first obtaining leave of the
presiding judge. Undeterred, Kinney has retained a series of
attorneys to represent him in his continued and unconscionable
campaign in the courts against Clark. The prefiling order
covering Kinney’s in propria persona litigation has been
ineffective in constraining his vexatious litigation. Accordingly,
on Clark’s motion, we impose an expanded prefiling order,
requiring Kinney to obtain leave of the presiding judge before
filing new litigation (including any appeal or writ) against Clark
or her attorney in a court of this state, even when he is
represented by counsel. This prefiling order is necessary to
protect Clark, her attorneys, and our courts from Kinney’s abuse
of the judicial process.
2
On the court’s own motion, we impose monetary sanctions
on Kinney for filing a frivolous appeal.
BACKGROUND
In 2005, Clark sold a residential property in the Silver
Lake neighborhood of Los Angeles (the Fernwood property) to
Kinney and Kimberly Kempton. The purchase agreement
governing the transaction (the Agreement) included a prevailing
party attorney fees clause.
Kinney’s State Court Actions
In 2006, Kinney and Kempton began filing lawsuits
concerning the Fernwood property in the Los Angeles Superior
Court. They sued their new neighbors, the City of Los Angeles,
Clark, and the brokers who represented her in the transaction.
Most of the litigation related to easements and fences. Kinney,
1
an attorney, represented himself and Kempton in the six
2
lawsuits they filed (and ultimately lost) regarding the Fernwood
property. (In re Kinney, supra, 201 Cal.App.4th at pp. 955-956.)
1
Kinney is no longer licensed by the State Bar of
California. In June 2016, he was disbarred for his conduct in the
Fernwood property litigation as well as his conduct in
representing clients in another residential property dispute
involving an easement. On the court’s own motion, we take
judicial notice of the opinion and order of the State Bar of
California Review Department, filed on December 12, 2014 in
case numbers 09-O-18100 and 09-O-18750, setting forth the
reasons for the recommendation of disbarment (Kinney’s conduct
in the property dispute litigation).
2
Kempton v. Cooper, BC354136; Kempton v. Harris,
BC354138; Kempton v. Harris, BC363261; Kempton v. City of Los
Angeles, BC363837; Kempton v. Clark, BC374938; and Kempton
3
In the action before us, Kempton v. Cooper, BC354136 (the
Present Action), Kinney and Kempton filed a cross-action against
Clark, alleging unmerchantable title. The trial court sustained
Clark’s demurrer to the cross-complaint without leave to amend,
and the judgment was affirmed on appeal. (Kempton v. Clark
(June 30, 2008, B200893) [nonpub. opn.].)
Following Kinney and Kempton’s unsuccessful appeal,
Clark moved for attorney fees under the Agreement as the
prevailing party in the litigation. On December 15, 2008, the
trial court granted her motion and awarded $9,349 in attorney
fees. Kinney and Kempton appealed and we affirmed the fee
award. (Kempton v. Clark (Feb. 3, 2010, B213386) [nonpub.
opn.].)
Kinney is Declared a Vexatious Litigant in State Courts
Meanwhile, Kinney and Kempton were still litigating
Kempton v. Clark, BC374938, a fraud action arising from the
Fernwood property transaction (the Related Action). In 2008, at
the request of Clark and her brokers in the Related Action, the
Los Angeles County Superior Court declared Kinney to be a
vexatious litigant. (In re Kinney, supra, 201 Cal.App.4th at p.
954; Kempton v. Clark (Sept. 25, 2014, B248713) [nonpub. opn.],
p. 2.) Kinney thereafter dismissed himself as a plaintiff without
prejudice, but continued to represent Kempton as her attorney in
the Related Action. (Kempton v. Clark, supra, B248713, p. 2.)
Three years later, in a published opinion issued in
December 2011, Division Two of this District also declared
v. City of Los Angeles, BC413357. (In re Kinney (2011) 201
Cal. App. 4th 951, 954, fn. 3.) We take judicial notice of the
unpublished Court of Appeal opinions in these cases, which are
cited below.
4
Kinney to be a vexatious litigant and imposed “a prefiling order
prohibiting Kinney from filing any new litigation—either in his
own name or in the name of Kimberly Jean Kempton—in the
courts of this state without first obtaining leave of the presiding
judge.” (In re Kinney, supra, 201 Cal.App.4th at pp. 960-961.)
The opinion explained: “In the Court of Appeal alone, Kinney has
lost 16 times since 2007: (1) his writ petition was denied in 2007;
(2) he has lost 10 appeals in three different divisions of this
appellate district and three appeals in the Fourth Appellate
District; and (3) two appeals he filed were involuntarily
dismissed by the court. All of the proceedings in this appellate
district are related to Kinney’s ownership of the Fernwood
Property.” (Id. at p. 960, fns. omitted.)
Clark’s Bankruptcy
In July 2010, Clark declared bankruptcy. “The expense of
defending against Kinney’s claims was a substantial factor
leading to Clark’s bankruptcy.” (Kempton v. Clark, supra,
B248713, p. 3.) In March 2011, the bankruptcy court ordered
Clark to appear in state court and defend the Related Action. On
Clark’s motion, the superior court in the Related Action declared
Kempton to be a vexatious litigant because she was “merely
acting as Kinney’s proxy and he [was] using her as his puppet.”
(Id. at p. 4.) After Kempton failed to post a bond as ordered, the
superior court dismissed the Related Action. Kinney sought
relief from this ruling on behalf of Kempton in the bankruptcy
court, federal district court, and the Ninth Circuit Court of
Appeals. (Id. at pp. 4-5.) He was unsuccessful in each venue.
After the superior court dismissed the Related Action,
Clark moved for attorney fees against Kinney and Kempton
under the Agreement. Kinney opposed the motion, arguing Clark
5
lacked standing to claim attorney fees and costs due to her
bankruptcy. (Kempton v. Clark, supra, B248713, p. 5.) On
October 18, 2012, after Clark was discharged from bankruptcy,
the United States Bankruptcy Court for the Central District of
California issued an order stating in pertinent part, “All of
[Clark]’s right to recovery [of] attorneys’ fees and costs from
Kempton and Kinney arising from litigation concerning the
Fernwood Property are deemed to have been abandoned by the
3
Trustee.” The order further explained: “Kempton and Kinney
are not creditors of this estate. They have twice sued [Clark] in
state court, and lost both times. (Kempton and Kinney also lost
several related appeals.) As non-creditors, Kempton and Kinney
have no interest in the administration of this Estate. Therefore,
the Court finds that Kempton and Kinney do not have standing
to object to the Motion [to compel abandonment of property].”
The bankruptcy court stated that “the amount of fees, if any,”
recoverable under the Agreement and California law “will be
4
adjudicated in the state court.” Back in state court, Clark
3
We grant Kinney’s November 2, 2016 request for judicial
notice of the bankruptcy court’s October 18, 2012 order. We deny
the remainder of Kinney’s November 2, 2016 request for judicial
notice as well as his July 11, 2016 and November 7, 2016
requests for judicial notice because he seeks judicial notice of
documents that are irrelevant to our decision (e.g., documents
related to the 2005 purchase of the Fernwood property and
documents detailing the particulars of Clark’s bankruptcy).
4
On November 22, 2016, the Ninth Circuit Court of
Appeals issued an opinion rejecting, among other claims, Judith
Kempton’s (representative of the Estate of Kimberly Kempton,
who had died) belated attempt to attack the bankruptcy court’s
6
prevailed on her motion for attorney fees in the Related Action
and successfully defended Kinney and Kempton’s appeal from the
order awarding fees. (Kempton v. Clark, supra, B248713, p. 15.)
Clark’s Enforcement of the 2008 Fee Award and
Additional Claims for Attorney Fees Against Kinney
In 2013, Clark began her efforts to enforce the December
15, 2008 award of attorney fees and costs in the Present Action.
Kinney attempted to thwart those efforts by serving a claim of
exemption, asserting the funds Clark was seeking belonged to his
mother’s trust and/or estate, although the funds were in an
account that did not bear the name of the trust or estate. Clark
filed a motion to determine the claim of exemption. The trial
court denied Kinney’s claim and allowed a levy upon funds to pay
the award. Instead of filing the appeal in his own name and
seeking leave of court to proceed under the prefiling order,
Kinney filed a notice of appeal from that order as attorney for his
mother’s trust and estate. We dismissed the appeal based on lack
of standing because the trust and estate were not parties to the
action in the trial court and did not seek to intervene in the
action or vacate the order in the trial court. (Kinney v. Clark
(Dec. 31, 2014, B253093) [nonpub. opn.], pp. 2-3.)
On March 5, 2014, the trial court awarded Clark additional
fees for work her attorneys performed in attempting to enforce
the December 15, 2008 fee award. Kinney had opposed Clark’s
motion for fees on his own behalf, and on behalf of Judith
Kempton (representative of the Estate of Kimberly Kempton) and
his mother’s estate. (Kempton v. Cooper (June 4, 2015, B255794)
October 18, 2012 abandon property order. We grant Clark’s
December 6, 2016 request for judicial notice of the Ninth Circuit’s
November 22, 2016 opinion in case number 14-60081.
7
[nonpub. opn.], p. 3.) Attorneys filed a notice of appeal on behalf
of Kinney, Judith Kempton and Kinney’s mother’s estate. We
dismissed the appeal as to Judith Kempton and Kinney’s
mother’s estate based on lack of standing. (Id. at p. 6.) We
affirmed the March 5, 2014 fee award as to Kinney, rejecting his
argument (among others) that pending state and federal appeals
automatically stayed the action and precluded the trial court
from entering a new fee award under the Agreement. (Id. at pp.
8-9.)
Also in 2014, Clark began her efforts to enforce a July 10,
2012 award of attorney fees and costs the trial court granted for
work Clark’s attorneys performed in successfully defending
Kinney and Kempton’s appeal from the December 15, 2008 fee
award. Neither Kinney nor Clark appealed from the July 10,
2012 award. Kinney again filed a claim of exemption, contending
Clark’s enforcement of the July 10, 2012 award was stayed by his
pending appeals in the state court (including case No. B253093,
the appeal from the denial of his first claim of exemption,
discussed above) and federal court (arising out of the bankruptcy
proceedings). Clark filed a motion to determine the claim of
exemption. Kinney filed a written opposition, representing
himself, the Estate of Kimberly Kempton, and his mother’s trust
and estate. The trial court denied the claim of exemption and
allowed a levy upon funds to pay the award. Kinney, the Estate
of Kimberly Kempton, and Kinney’s mother’s trust and estate
appealed. An attorney represented Kinney and the other
appellants. We dismissed the appeal for lack of standing as to
the Estate of Kimberly Kempton and Kinney’s mother’s trust and
estate because these parties could not show they were aggrieved
by the order, as the levy was upon Kinney’s property. We
8
dismissed the appeal as to Kinney, concluding it lacked merit
because the state and federal appeals, which were not related to
the July 10, 2012 fee award, did not stay Clark’s efforts to enforce
that award. (Kinney v. Clark (Sept. 8, 2015, B258399) [nonpub.
opn.], pp. 3-5.)
On May 5, 2015, the trial court awarded Clark $22,115 in
additional attorney fees under the Agreement for work her
attorneys performed in successfully defending Kinney’s appeal
from the denial of his first claim of exemption (appellate case No.
B253093, discussed above). This is the award we are reviewing
in the present appeal. Attorney William Rubendall filed a notice
of appeal from the May 5, 2015 award on behalf of Kinney.
Kinney is Declared a Vexatious Litigant in Federal Court
Kinney removed the appeal that is presently before us to
the United States District Court for the Central District of
California. On February 4, 2016 the district court remanded the
matter to this court, issuing an order rejecting Kinney’s claims of
federal court jurisdiction, imposing sanctions on Kinney in the
amount of $6,000, and inviting Clark and her attorneys to file a
motion to have Kinney declared a vexatious litigant in the
district court. On May 13, 2016, the United States District Court
for the Central District of California declared Kinney to be a
vexatious litigant on the motion of Clark and her attorneys. The
district court imposed the following prefiling order: “Charles
Kinney and any person acting on his behalf must obtain written
authorization from a Judge of this Court before initiating a new
action, where the pleading asserts claims against Michele R.
Clark, David Marcus, or Eric Chomsky [Clark’s attorneys] or any
9
of the law firms with which David Marcus or Eric Chomsky are
5
associated.”
In its May 13, 2016 opinion, the Central District court
summarized Kinney’s vexatious litigation in the federal courts
arising out of the Fernwood property litigation: his three
attempts to remove the Related Action to federal court, resulting
in the imposition of sanctions against him; his two attempts to
remove the Present Action to federal court, again resulting in the
imposition of sanctions against him; his counterclaims against
Clark and her attorneys in the failed removal actions; the Ninth
Circuit Court of Appeals’ award of attorney fees against him for
attempting to remove the Related Action without a reasonable
basis for doing so; his unsuccessful action in the United States
District Court for the Northern District of California against
Clark’s attorneys, alleging violations of his constitutional rights;
and two other federal district court actions against Clark and her
6
attorneys.
5
We grant Clark’s May 18, 2016 request for judicial notice
of the Central District court’s May 13, 2016 order declaring
Kinney to be a vexatious litigant in case number CV 15-8910 PSG
(JCx).
6
We deny Clark’s September 1, 2016 and September 9,
2016 requests for judicial notice of a total of 10 federal court
orders and opinions arising out of the Fernwood property
litigation. For the most part, the documents are cumulative to
the information in the Central District court’s May 13, 2016
opinion, and a recitation of each of these orders and opinions is
not necessary to our resolution of the matters before us.
10
DISCUSSION
Motion to Dismiss this Appeal
The Agreement between Kinney and Clark states that the
prevailing party in “[i]n any action, proceeding, or arbitration”
between the parties arising out of the Agreement is entitled to an
award of reasonable attorney fees and costs from the non-
prevailing party. The Present Action arises out of the
Agreement. Clark prevailed on appeal in this action in appellate
case number B253093, the appeal from the denial of Kinney’s
first claim of exemption. She sought an award of attorney fees
and costs for the work her attorneys performed in successfully
defending the appeal, as part of her efforts to enforce the
December 15, 2008 award of attorney fees and costs. On May 5,
2015, the trial court awarded Clark an additional $22,115 in
attorney fees and costs. Kinney does not dispute that Clark’s
attorneys performed the legal services. Nor does he challenge the
reasonableness of the amount of the award.
Instead, Kinney challenges Clark’s entitlement to attorney
fees and costs under the Agreement, asserting recycled
arguments that state and federal courts already have rejected.
He attempts to attack prior final orders as a basis for defeating
the order before us. In his appellate reply brief in this matter, he
states, “It doesn’t matter how many times Kinney loses, void
orders are never final.” But, despite many years of attempting to
invalidate the underlying judgment and each and every award of
attorney fees and costs the trial court has issued in this action,
Kinney has yet to prevail or demonstrate that any order is void in
these collateral attacks.
Clark moves this court to dismiss the appeal, arguing it is
frivolous. An appeal is frivolous “when it is prosecuted for an
11
improper motive – to harass the respondent or delay the effect of
an adverse judgment – or when it indisputably has no merit –
when any reasonable attorney would agree that the appeal is
totally and completely without merit.” (In re Marriage of
Flaherty (1982) 31 Cal. 3d 637, 650.) We agree with Clark that
the appeal is frivolous and grant her motion. The contentions
Kinney raises on appeal in opposition to Clark’s entitlement to
attorney fees and costs lack merit and are asserted in furtherance
of his decade-long campaign of harassment of Clark.
Clark’s bankruptcy did not eliminate her entitlement
to attorney fees and costs under the Agreement
In his opening appellate brief, Kinney repeats his claims
that all orders awarding Clark attorney fees and costs that the
trial court issued after Clark declared bankruptcy in July 2010
violate bankruptcy law and are void, and “no state court has any
jurisdiction over these federal law issues.”
California state courts have jurisdiction over Clark’s claims
for attorney fees and costs under the Agreement. The trial court
made the first award of attorney fees and costs to Clark—the
December 15, 2008 award—before Clark declared bankruptcy.
Clark did not attempt to enforce that award in the state courts
until after the bankruptcy court discharged her and ordered that
she could pursue additional claims for attorney fees and costs
against Kinney in state court. Thus, the trial court’s post-
bankruptcy orders relating to Clark’s enforcement of the
December 15, 2008 award and awarding her additional attorney
fees and costs did not violate the automatic stay arising from her
bankruptcy petition.
Kinney asserts the trial court could not award Clark
additional attorney fees and costs under the Agreement after her
12
discharge from bankruptcy because she did not reaffirm the
Agreement in the bankruptcy court and therefore the Agreement
was deemed “rejected” under title 11 United States Code section
365 and rendered unenforceable. Only executory contracts and
unexpired leases are affected by title 11 United States Code
section 365. An executory contract within the meaning of this
statute is “‘a contract . . . on which performance is due to some
extent on both sides’ and in which ‘the obligations of both parties
are so far unperformed that the failure of either party to complete
performance would constitute a material breach and thus excuse
the performance of the other.’” (In re CFLC, Inc. (9th Cir. 1996)
89 F.3d 673, 677.) The Agreement containing the attorney fees
and costs provision is not an executory contract because it was
fully performed when the real estate transaction occurred in
2005, nearly five years before Clark declared bankruptcy.
Therefore, the attorney fees and costs provision in the Agreement
was not rendered unenforceable under title 11 United States
Code section 365.
Kinney also argues Clark was not entitled to collect on the
December 15, 2008 order awarding her attorney fees and costs
because her pre-petition debt to her attorneys was discharged in
bankruptcy, so her recovery on that award would constitute an
improper windfall. This argument does not advance Kinney’s
cause on appeal for multiple reasons.
First, this issue is not before us on appeal. As discussed
above, in appellate case number B253093, Kinney already
challenged the trial court’s order denying his claim of exemption
and allowing a levy upon his funds to pay the December 15, 2008
award. That order is final. The matter before us is Clark’s post-
bankruptcy claim for attorney fees and costs incurred in
13
successfully defending Kinney’s appeal from the trial court’s
order denying his claim of exemption and allowing a levy upon
his funds to pay the December 15, 2008 award. Kinney does not
dispute Clark prevailed in appellate case number B253093, her
attorneys performed the legal services claimed, and the amount
of the award is reasonable. Arguments that should have been
raised in appellate case number B253093, regarding Clark’s
entitlement to collect on the December 2008 award, are not
germane to our resolution of this appeal.
Second, even if Kinney’s challenge of the December 15,
2008 award of attorney fees and costs were timely, he lacks
standing to make the argument regarding the effect of Clark’s
bankruptcy discharge on her pre-petition debt to her attorneys.
Clark has a judgment against Kinney in the amount of the
December 15, 2008 award. What Clark owes her attorneys and
what she pays them out of the judgment are matters between her
and her attorneys. As the bankruptcy court pointed out to
Kinney when it granted the motion to abandon Clark’s right to
recover attorney fees and costs against him, Kinney was not a
creditor of Clark’s estate and he had no interest in the
administration of her estate. Clark’s bankruptcy did not benefit
Kinney. It did not discharge his debt to her—the December 15,
2008 award. Accordingly, we reject Kinney’s argument that
allowing Clark to enforce the judgment against him would be
inequitable to him and a windfall for her.
We note Kinney repeatedly has argued in the bankruptcy
court, the federal district court and the Ninth Circuit Court of
Appeals without success that all superior court orders awarding
Clark attorney fees and costs issued after Clark declared
bankruptcy in July 2010 violate bankruptcy law and are void. In
14
fact, Kinney removed this appeal to the United States District
Court for the Central District of California, arguing the federal
court has subject matter jurisdiction on numerous grounds,
including bankruptcy issues. The district court remanded the
matter to this court and imposed monetary sanctions on Kinney,
rejecting his claim that bankruptcy concerns are implicated in
the trial court’s award of attorney fees and costs to Clark under
the Agreement. The court explained: “The attorney’s fee motions
are pure state-court matters that belong in state court. The
Court is not persuaded that any bankruptcy concerns are being
violated by any actions or decisions in the state court.” Although
Kinney maintains in his opening appellate brief that this action
involves “issues [that] can only be resolved in federal court using
bankruptcy law,” the federal courts have rejected this assertion
and instructed the parties to litigate Clark’s claims for attorney
fees and costs in state court applying state law. Notwithstanding
Kinney’s barrage of district court filings and Ninth Circuit
appeals, the federal courts have declined his requests for an order
staying the proceedings in this action.
Pending state court appeals from other awards of
attorney fees and costs did not stay this action and
preclude the trial court from awarding Clark
additional attorney fees and costs under the
Agreement
Kinney also repeats an argument he has unsuccessfully
asserted in prior appeals in the Present Action, challenging
earlier orders awarding Clark attorney fees and costs (e.g.,
appellate case Nos. B255794 & B258399, discussed above): that
appeals related to other awards of attorney fees and costs
automatically stayed the action below under Code of Civil
15
7
Procedure section 916, preventing the trial court from awarding
Clark additional fees and costs. As set forth above, in appellate
case number B255794, Kinney appealed from the trial court’s
March 5, 2014 order in this action awarding Clark attorney fees
and costs for the work her attorneys performed in attempting to
enforce the December 15, 2008 fee award. In appellate case
number B258399, Kinney appealed from an order denying his
second claim of exemption and allowing a levy upon funds to pay
the July 10, 2012 fee award in favor of Clark and against Kinney.
Both of these appeals were pending on May 5, 2015, when the
trial court made the order at issue in this appeal awarding Clark
attorney fees and costs for the work her attorneys performed in
successfully defending the appeal from the denial of his first
8
claim of exemption in appellate case number B253093. Kinney
does not cite authority or provide argument supporting his
position that an appeal from an attorney fee order would prevent
the trial court from issuing a subsequent, separate and distinct
attorney fee order based on new and different legal services
rendered. We are aware of no such authority.
7
Under Code of Civil Procedure section 916, subdivision
(a), “the perfecting of an appeal stays proceedings in the trial
court upon the judgment or order appealed from or upon the
matters embraced therein or affected thereby, including
enforcement of the judgment or order, but the trial court may
proceed upon any other matter embraced in the action and not
affected by the judgment or order.”
8
Clark prevailed in both appeals and our decisions are
final.
16
Kinney’s attempt to challenge Clark’s retainer
agreement with her attorneys fails
Kinney contends Clark’s attorneys have no right to
attorney fees and costs because they (the attorneys) “never filed a
separate, independent state court declaratory relief action
against Clark regarding their 2007 hourly-fee retainer.” Kinney
waged previous unsuccessful attacks on Clark’s retainer
agreement with her attorneys in appellate case numbers
B255794 (the Present Action) and B248713 (the Related Action).
As Division Two concluded in case number B248713, Kinney has
not demonstrated he has standing to challenge Clark’s consent to
the lien in her retainer agreement with her attorneys. (Kempton
v. Clark, supra, B248713, p. 13.) The authority Kinney cites in
this appeal to support his contention is inapposite. (Mojtahedi v.
Vargas (2014) 228 Cal. App. 4th 974, 977 [attorney’s action against
his former client’s subsequent attorney for a portion of settlement
proceeds was properly dismissed on demurrer because the
attorney failed to “establish the existence, amount and
enforceability of the lien in an independent action against his
clients”].) Clark’s attorneys provided legal services in
successfully defending Clark in this action in appellate case
number B253093. Clark filed a motion for attorney fees and costs
under the Agreement, as the prevailing party on appeal. The
trial court awarded the fees and costs. Clark’s attorneys were not
required to sue her to establish their entitlement to be paid for
the legal work they performed.
Kinney’s belated challenges to the 2008 and 2011
vexatious litigant orders are not properly before us
Finally, Kinney continues to complain about the 2008
superior court order and the 2011 decision from Division Two of
17
this District, declaring him to be a vexatious litigant. The time
has long ago passed to contest these final decisions.
This appeal is frivolous. Kinney’s recycled arguments have
no more merit now than they did the numerous times he raised
them before. We grant Clark’s motion to dismiss the appeal.
Motion for Sanctions—Prefiling Order
Clark filed a motion for sanctions against Kinney in this
court, seeking an expanded prefiling order requiring Kinney to
obtain leave of the presiding judge before filing any new
litigation, even when he is represented by counsel. Kinney
opposes the motion, arguing courts may impose prefiling
requirements on self-represented vexatious litigants only, and
not vexatious litigants who file new litigation through counsel.
Under Code of Civil Procedure section 391.7, subdivision
9
(a), a provision in the vexatious litigant statutory scheme, a
“court may, on its own motion or the motion of any party, enter a
prefiling order which prohibits a vexations litigant from filing
any new litigation in the courts of this state in propria persona
without first obtaining leave of the presiding justice or presiding
judge of the court where the litigation is proposed to be filed.”
(Italics added.)
We recognize that the prefiling order contemplated by
section 391.7 applies to litigation filed by self-represented
litigants. But this statutory limitation does not prevent us from
expanding the prefiling order under the circumstances of this
case, for two reasons. First, case law holds that it is appropriate
to extend a prefiling order issued under section 391.7 to new
9
Further statutory references are to the Code of Civil
Procedure.
18
litigation filed by a vexatious litigant through counsel where the
vexatious litigant retains attorneys who “serve as mere puppets”
instead of “neutral assessors of his claims, bound by ethical
considerations not to pursue unmeritorious or frivolous matters.”
(In re Shieh (1993) 17 Cal. App. 4th 1154, 1167 (Shieh).) Second,
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.
Section 391.7 applies where a “puppet” attorney files
new litigation on behalf of a vexatious litigant
In Shieh, this Division declared Liang-Houh Shieh to be a
vexatious litigant and imposed a prefiling order, requiring him to
obtain leave of the presiding judge before filing new litigation
(including any appeal or writ) in a California state court. (Shieh,
10
supra, 17 Cal.App.4th at pp. 1167-1168.) This court
acknowledged that prefiling orders under section 391.7
“[o]rdinarily” apply only to a vexatious litigant’s in propria
persona litigation, but the court extended the prefiling order to
litigation filed through counsel, explaining that Shieh’s case
“breaks the mold.” (Id. at p. 1167.) The court’s review of the
“syntax, grammar, style and tone” of Shieh’s pleadings and briefs
in the trial and appellate courts revealed that the documents
“ha[d] been drafted by the same hand,” whether Shieh filed them
in propria persona or through counsel. (Ibid.) Because the
attorneys Shieh retained “serve[d] as mere puppets,” the court
“conclude[d] a prefiling order limited to Shieh’s in propria
10
Shieh, like Kinney, was an attorney who already had
been declared a vexatious litigant by the trial court at the time
the appellate court found him to be a vexatious litigant. (Shieh,
supra, 17 Cal.App.4th at pp. 1156, 1166.)
19
persona activities would be wholly ineffective as a means of
11
curbing his out-of-control behavior.” (Ibid.)
Shieh remains good law. The California Supreme Court
has not addressed the merits of Shieh. In Shalant v. Girardi
(2011) 51 Cal. 4th 1164, a case in which the Supreme Court held a
vexatious litigant did not violate a prefiling order under section
391.7 where he continued to pursue an action filed by counsel
after counsel withdrew, the Court stated in a footnote: “We
express 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. (In re
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
11
The court summarized Shieh’s litigious behavior as
follows: “Over the past two years, Shieh has filed innumerable
complaints in the federal and state courts, many of which are
duplicative and most of which are based on substantially similar
facts. These various suits have resulted in at least 19 writ
petitions to this court and 1 to the Fourth District, some of which
are duplicative and all of which have been denied. He and his
counsel have been sanctioned separately three times for pursuing
frivolous writ petitions. [¶] In addition to the two duplicative
appeals which prompted this proceeding . . . , which we recently
dismissed largely for lack of jurisdiction and partly due to Shieh’s
failure to pay the sanctions imposed by the trial court or to post a
bond to stay the order, Shieh has filed at least 14 appeals in 9
separate matters.” (Shieh, supra, 17 Cal.App.4th at pp. 1155-
1156.)
20
for Shalant.” (Shalant v. Girardi, supra, 51 Cal.4th at p. 1176,
fn. 8.)
The attorneys who have filed appeals on behalf of Kinney
in the Fernwood property litigation since Division Two imposed
the prefiling order (Nina Ringgold and William Rubendall) have
acted as puppets for Kinney, asserting the same meritless
arguments Kinney previously asserted on his own behalf. They
disregard prior, final state and federal court decisions that have
rejected these recycled arguments, and continue to maintain that
all of these decisions are “void,” so all issues in the Fernwood
property litigation should be decided anew. At Kinney’s behest,
these attorneys continue to barrage Clark with new appeals.
Since the filing of this appeal, attorney William Rubendall has
filed three other appeals on behalf of Kinney, one in the Related
Action (appellate case No. B266125) and two in the Present
12
Action (appellate case Nos. B272408 & B276290).
In his written opposition to Clark’s motion for sanctions,
Kinney did not discuss Shieh or address Clark’s argument that
William Rubendall, the attorney who filed the notice of appeal
and appellate briefs in this matter, “is not acting as a
gatekeeper,” but “is allowing Kinney to continue his vexatious
conduct.” Instead, Kinney cited John v. Superior Court (2016) 63
Cal. 4th 91, a recent California Supreme Court case in which both
Kinney and his newly-retained attorney in this appeal, Cyrus
12
On the court’s own motion, we take judicial notice of
these three appeals that were filed after this one.
21
13
Sanai, acted as amicus curiae on behalf of the petitioner, a
vexatious litigant.
In John v. Superior Court, supra, 63 Cal.4th at page 93, the
Supreme Court held “section 391.7’s prefiling requirements do
not apply to a self-represented litigant previously declared a
vexatious litigant seeking to appeal an adverse judgment or
interlocutory order in an action where he or she was the
defendant.” (Italics added.) Kinney does not cite John v.
Superior Court because the facts are relevant to this case—they
are not. He relies on this case for the opinion’s opening
statement that the “vexatious litigant statutory scheme [citation]
applies exclusively to self-represented litigants.” (Ibid.; fn.
omitted.) The decision in John v. Superior Court does not
reference Shieh or address the factual scenario presented in
Shieh (and in this case) where a vexatious litigant uses an
attorney as an instrument to evade a prefiling order.
Whether section 391.7 applies in these circumstances,
however, is immaterial to our authority to issue the expanded
prefiling order under the court’s inherent powers.
This court has authority to issue an expanded
prefiling order under its inherent powers to ensure
the administration of justice and prevent abuse of
the judicial process
“California’s Constitution provides the courts, including the
Courts of Appeal, with inherent powers to control judicial
13
Cyrus Sanai did not file the notice of appeal in this case
or sign the appellate briefs. He appeared for Kinney after we
issued our written order notifying Kinney and Rubendall that we
were considering imposing sanctions on them for filing this
frivolous appeal.
22
proceedings. [Citations.] To the same effect, Code of Civil
Procedure section 128, subdivision (a)(8) authorizes every court
‘[t]o amend and control its process and orders so as to make them
conform to law and justice.’ This provision is consistent with and
codifies the courts’ traditional and inherent judicial power to do
whatever is necessary and appropriate, in the absence of
controlling legislation, to ensure the prompt, fair, and orderly
administration of justice. (Neary v. Regents of University of
California (1992) 3 Cal. 4th 273, 276, superseded by statute on
another ground, as stated in City of Palmdale v. Board of
Equalization (2012) 206 Cal. App. 4th 329, 338.) For example, a
“court has inherent power, upon a sufficient factual showing, to
dismiss an action ‘“shown to be sham, fictitious or without
merit,”’” and to impose sanctions, “‘“in order to prevent abuse of
the judicial process.”’” (Flores v. Georgeson (2011) 191
Cal. App. 4th 881, 887.)
In 2011, Division Two imposed the prefiling order on
Kinney to stop him from filing meritless appeal after meritless
appeal. Five years later, nothing has changed except adding an
attorney’s name to the filings. By filing additional meritless
appeals, Kinney’s conduct in this action—even while represented
by counsel—continues to constitute an abuse of the judicial
process. Where a vexatious litigant circumvents a section 391.7
prefiling order by hiring an attorney who acquiesces in his
campaign of frivolous litigation, this court has the inherent power
to issue an expanded prefiling order to control the orderly
administration of justice and prevent abuse of the judicial
process.
This opinion will serve as a prefiling order providing that,
even when Kinney is represented by counsel, he must seek leave
23
of the presiding judge before filing any new litigation in a court of
this state against Clark or the attorneys who have been
representing her or represent her in the future in the Fernwood
property litigation (including David Marcus, Eric Chomsky, and
any law firm with which David Marcus or Eric Chomsky is
14
associated). This prefiling order “applies to appeals and writ
petitions, as well as to new litigation in the trial court. ‘[E]ach
appeal or writ petition is “new” to this court when it is filed, thus
qualifying as “new litigation” . . . .’” (In re Kinney, supra, 201
Cal.App.4th at p. 961.) The prefiling order imposed by Division
Two governing Kinney’s in propria persona litigation remains in
place.
The expansion of the prefiling order that we impose today
is narrowly tailored to the circumstances before us. The
expanded prefiling order only applies to litigation Kinney’s
attorneys file against Clark or her attorneys. After a decade of
vexatious litigation that has not abated even after Kinney has
retained counsel, Clark, her attorneys, and the courts of this
state are in need of relief from Kinney’s abuse.
Disobedience of this order will be punished as contempt of
court. The clerk of this court is directed to provide a copy of this
opinion and order to the Judicial Council. (In re Shieh, supra, 17
14
We include Clark’s attorneys in the prefiling order
because Kinney has filed several recent claims against them in
federal courts, and we do not want to allow Kinney to circumvent
this prefiling order by suing Clark’s attorneys as a proxy for her.
24
Cal.App.4th at p. 1168; In re Kinney, supra, 201 Cal.App.4th at p.
15
961.)
Monetary Sanctions
On its own motion, this court may impose sanctions when
an appeal is frivolous or taken “solely to cause delay.” (Cal. Rules
of Court, rule 8.276(a)(1).) As stated above, an appeal is frivolous
“when it is prosecuted for an improper motive – to harass the
respondent or delay the effect of an adverse judgment – or when
it indisputably has no merit – when any reasonable attorney
would agree that the appeal is totally and completely without
merit.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)
Courts “impose a penalty for a frivolous appeal for two basic
reasons: to discourage further frivolous appeals, and to
compensate for the loss that results from the delay.” (Pierotti v.
Torian (2000) 81 Cal. App. 4th 17, 33.)
Prior to oral argument, we notified Kinney and William
Rubendall, the attorney who filed the notice of appeal and
appellate briefs on his behalf, that we were considering imposing
sanctions on both of them for filing a frivolous appeal. (Cal.
Rules of Court, rule 8.276(c).) Attorney Cyrus Sanai filed a
written response to our order to show cause regarding sanctions
and appeared at oral argument to represent both Kinney and
Rubendall regarding sanctions, and Kinney on appeal.
15
Clark also moved this court for an order requiring
Kinney to furnish security under section 391.1 or have his appeal
dismissed. We deny the motion for security as moot because we
have resolved the merits of the appeal. We also deny the August
31, 2016, October 12, 2016, and January 4, 2017 requests for
judicial notice Clark filed in connection with the motion for
security.
25
As discussed above, this appeal is frivolous. Briefly,
Kinney continues to challenge Clark’s entitlement to attorney
fees and costs based on arguments that have been rejected
repeatedly by many courts. Prefiling orders and repeated
rejections of his arguments by the courts have not curbed
Kinney’s abuse of the judicial process and incessant attempts to
thwart Clark’s efforts to collect the attorney fees and costs to
which she is entitled under the Agreement.
To discourage further frivolous appeals and to compensate
Clark for the loss resulting from the delay, we order Kinney
personally to pay sanctions in the amount of $10,000, payable to
Clark in full upon issuance of the remittitur in this case. We
believe this sanction, coupled with the expanded prefiling order,
is necessary to deter Kinney from persisting in the filing of
frivolous appeals.
We direct the clerk of this court to send a copy of this
opinion to the State Bar of California. Although Kinney was
disbarred for his conduct in this and other property dispute
litigation, he might seek future reinstatement as a member of the
bar. The State Bar should be aware that Kinney’s vexatious
litigation against Clark has not ceased.
We have decided not to impose sanctions on William
Rubendall, as at this juncture, he has not come before us multiple
times with meritless arguments. Accordingly, we will give him
16
the benefit of the doubt on this appeal.
16
This is the first of the four appeals Rubendall filed on
behalf of Kinney in the Fernwood property litigation in the last
two years.
26
DISPOSITION
The appeal is dismissed. Clark’s motion for sanctions is
granted and the following expanded prefiling order is imposed:
Even when Kinney is represented by counsel, he must seek leave
of the presiding judge before filing any new litigation (including
any appeal or writ) in a court of this state against Clark or the
attorneys who have been representing her or represent her in the
future in the Fernwood property litigation (including David
Marcus, or Eric Chomsky, or any law firm with which David
Marcus or Eric Chomsky is associated). On the court’s own
motion, Kinney is ordered to pay sanctions in the amount of
$10,000, payable to Michele Clark in full upon issuance of the
remittitur in this case. Also upon issuance of the remittitur, the
clerk of this court is directed to provide a copy of this opinion and
order to the Judicial Council and the State Bar of California.
Clark is entitled to recover her costs on appeal.
CERTIFIED FOR PUBLICATION.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
27