Marriage of Javanbakhsh and Dahms CA6 ( 2022 )

Filed 5/9/22 Marriage of Javanbakhsh and Dahms CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re the Marriage of PARISA H046034
JAVANBAKHSH and RAINER DAHMS. (Santa Clara County
Super. Ct. No. 2016-FL175505)
PARISA JAVANBAKHSH,
Appellant,
v.
RAINER DAHMS,
Respondent.
In this marital dissolution proceeding, Rainer Dahms brought a motion to declare
his spouse, appellant Parisa Javanbakhsh, a vexatious litigant pursuant to Code of Civil
Procedure section 3911. The court granted the motion after extensive briefing and a
hearing. A formal order was filed on May 24, 2018.
On appeal, Javanbakhsh contends that the trial court erred. Her appellate brief
does not comply with the California rules of appellate practice and contains no specific
argument in support of her claim of error. As we discuss, although we could elect to
1 All further unspecified statutory references are to the Code of Civil Procedure.
consider Javanbakhsh to have defaulted because of these procedural deficiencies, we
have considered the merits of the challenge to the order. Finding no error, we will affirm.
I. PROCEDURAL HISTORY
A. Prior Proceedings
Javanbakhsh filed a petition for dissolution on May 26, 2016.
On May 27, 2016, Javanbakhsh filed a request for domestic violence restraining
orders (DVRO request), based upon the allegation that on May 25, 2016, Dahms had
physically assaulted and threatened her. The court granted a temporary restraining order
that day, restraining Dahms from harassing, assaulting or contacting Javanbakhsh
pending a hearing on the matter. The hearing on that matter was continued a number of
times and did not occur until 14 months later. On August 2, 2017, after a lengthy
hearing, the trial court denied the DVRO request. A formal order was filed
August 11, 2017. Javanbakhsh appealed the August 11, 2017 order. That appeal is
presently pending in this court. (Javanbakhsh v. Dahms, H045151; the DVRO Appeal.)
Thereafter, Dahms filed a request for attorney fees and costs. The court granted
the request on October 19, 2017. In the formal order filed November 1, 2017 (the
sanctions order), the court ordered Javanbakhsh to pay to Dahms a total of $46,687,
which included $25,000 as attorney fees and costs as sanctions under Family Code
section 271,2 and $10,000 under Family Code section 63443 for attorney fees arising out
of the trial of Javanbakhsh’s DVRO request. Javanbakhsh appealed the November 1,
2 “[T]he court may base an award of attorney’s fees and costs on the extent to
which the conduct of each party or attorney furthers or frustrates the policy of the law to
promote settlement of litigation and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys. An award of attorney’s fees
and costs pursuant to this section is in the nature of a sanction.” (Fam Code, § 271,
subd. (a).)
3 “After notice and a hearing, the court may issue an order for the payment of
attorney’s fees and costs of the prevailing party.” (Fam Code, § 6344, subd. (a).)
2
2017 sanctions order, which is presently pending in this court. (Javanbakhsh v. Dahms,
H045383.)
Javanbakhsh filed a motion for reconsideration of the sanctions order. On January
3, 2018, the court heard and decided the matter, as discussed in greater detail, post.
Javanbakhsh filed an appeal from this March 1, 2018 reconsideration order. This notice
of appeal was filed with this court in an appeal already pending from the November 1,
2017 sanctions order, Javanbakhsh v. Dahms, H045383, supra. (We will hereafter
collectively refer to the challenges of Javanbakhsh to the November 1, 2017 sanctions
order and the March 1, 2018 reconsideration order in case No. H045383 as the Sanctions
Appeal.)
The court conducted a trial on March 13, 2018, on issues that included spousal
support, reimbursement claims, Dahms’s 401(k) plan, and sanctions. A formal order was
filed May 29, 2018.4 Javanbakhsh appealed the order, and that appeal is presently
pending in this court. (Javanbakhsh v. Dahms, H046077; the Trial Order Appeal.)
On May 7, 2018, the court ordered the marriage terminated.
4 The trial court, inter alia, ordered that (1) Javanbakhsh receive monthly spousal
support of $1,500 from April 1, 2018 through March 2019, $1,000 from April 1, 2019
through March 2020, $500 from April 1, 2020 through March 2021, and no spousal
support thereafter; (2) Javanbakhsh reimburse Dahms the total amount of $8,177.50; (3)
Javanbakhsh’s claim for reimbursement of tuition be denied; (4) Javanbakhsh pay
additional sanctions of $10,000 under Family Code section 271; (5) the community
interest of Javanbakhsh in Dahms’s Fidelity 401(k) plan was $47,274; (6) after offsetting
that amount from the total amount of $64,864.50 owed by Javanbakhsh ($10,000 new
sanctions, $46,687 old sanctions, and the $8,177.50 reimbursement amount),
Javanbakhsh owed Dahms the net sum of $17,590.50; and (7) Dahms shall have
judgment against Javanbakhsh in the amount of $17,590.50.
3
B. Request Under Vexatious Litigant Statute
1. Request by Dahms
On April 17, 2018, Dahms filed a request for order (the request) finding
Javanbakhsh to be a vexatious litigant pursuant to section 391.5 The request included
extensive supporting papers. Dahms sought, inter alia, the following relief: (1) a
determination that Javanbakhsh is a vexatious litigant (§ 391, subds. (b)(2),(3)); (2) a
determination that there is no reasonable probability that Javanbakhsh would prevail in
specified pending litigation (§§ 391.1, 391.3); (3) that Javanbakhsh post security
(§§ 391.3, subd. (a)); (4) stay of litigation and posttrial proceedings, including pending
appeals (§ 391.6); and (5) a prefiling order prohibiting Javanbakhsh from filing new
litigation without prior application and court order (§ 391.7).
Dahms in his request provided a chronology of the conduct of Javanbakhsh in the
proceedings from March 15, 2017, to the April 17, 2018 filing of the request that, he
argued, demonstrated that she was a vexatious litigant. This alleged conduct included,
inter alia, (1) “[h]er obstructionistic misconduct” and refusal to answer questions in her
deposition, including her refusal to answer certain questions after a court order issued
compelling her testimony; (2) her refusal to serve Dahms’s counsel with lengthy
declarations she filed with the court; (3) her filing of a frivolous April 2017 “
‘[e]mergency’ ” ex parte order request for an order selling an automobile and imposing
“ ‘communication boundaries’ ” on contacts from Dahms’s counsel, which request was
denied; (4) her pursuit of the DVRO request, which, after an evidentiary hearing on
August 2, 2017, resulted in the denial of the request with a finding of her allegations as
“ ‘completely without any credibility whatsoever and are, therefore, not believed by this
court’ ”; (5) the court’s imposition of attorney fees and costs as sanctions against
5Dahms filed a prior request in May 2017 that Javanbakhsh be declared a
vexatious litigant. It is apparent that the request was not heard on the merits, and that
Dahms withdrew the request without prejudice to its renewal.
4
Javanbakhsh at the October 19, 2017 hearing; (6) her filing of a motion for
reconsideration of the sanctions order, which motion was denied; (7) her filing of a
lengthy peremptory challenge of the trial judge based upon a declaration with numerous
(95) “pages of haphazardly labeled, nonsequential exhibits,” which peremptory challenge
was denied as untimely; (8) the court’s statement, at the conclusion of the March 13,
2018 trial, that it had previously at the DVRO trial “ ‘made a specific finding that
[Javanbakhsh’s] . . . testimony was not credible . . . [and] in this trial [there have been]
repeated instances in which [her] testimony lacks credibility’ ”; (9) her filing (but not
serving) of a new, unmeritorious motion for reconsideration on March 23, 2018; and (10)
her failure to respond to multiple requests from Dahms’s counsel for a copy of that
unserved motion for reconsideration.
2. Opposition by Javanbakhsh
Javanbakhsh submitted a declaration in opposition in which she sought a
continuance of Dahms’s request. She addressed an ancillary issue concerning the parties’
jointly-owned car. She stated that Dahms’s request was “unmerited,” contained “false
statements,” and was filed in retaliation of her filing a request that Dahms be held in
contempt.
3. Order Granting Request
After a hearing on May 7, 2018, the court granted the request. On May 24, 2018,
the court filed a formal order declaring Javanbakhsh a vexatious litigant. In that order,
the court (1) made a finding that Javanbakhsh was a vexatious litigant (§ 391,
subd. (b)(2), (3)); (2) concluded that there was no reasonable probability that Javnbakhsh
would prevail in specified pending litigation (§§ 391.1, 391.3); (3) ordered that on or
before August 1, 2018, Javanbakhsh post security for the benefit of Dahms in the sum of
$15,000 to assure payment of his reasonable expenses in connection with pending
litigation (§§ 391.3, subd. (a)); (4) ordered that specified pending litigation be dismissed
if Javanbakhsh failed to furnish security by August 1, 2018 (§ 391.4); (5) ordered that a
5
continuation of a stay of pending litigation, including pending appeals, remain in effect
(§ 391.6); and (6) ordered the issuance of a prefiling order prohibiting Javanbakhsh from
filing new litigation without prior application and court order (§ 391.7). The existing
litigation embraced by the court’s order (hereafter, collectively, the pending litigation)
consisted of (1) the notice of appeal from the August 11, 2017 DVRO order (i.e., the
DVRO Appeal), (2) the notice of appeal from the October 19, 2017 sanctions order
(included in the issues in the Sanctions Appeal), (3) the notice of appeal from the
March 1, 2018 reconsideration order (also included in the issues in the Sanctions
Appeal), (4) the new motion for reconsideration filed March 23, 2018, and (5) an order to
show cause and affidavit of contempt filed April 9, 2018.6
Javanbakhsh filed a timely notice of appeal from the order declaring her a
vexatious litigant.
II. DISCUSSION
A. Vexatious Litigant Statutes
As the California Supreme Court has explained: “The vexatious litigant statutes
(§§ 391-391.7) are designed to curb misuse of the court system by those persistent and
obsessive litigants who, repeatedly litigating the same issues through groundless actions,
waste the time and resources of the court system and other litigants. [Citation.]”
(Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169 (Shalant).) Under section 391,
subdivision (b), a “ ‘[v]exatious 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, supra, at pp. 1169-1170.)
6 The Trial Order Appeal was not identified in the court’s order granting Dahms’s
request; this was because the notice of appeal was not filed until five months later.
6
Subdivision (b)(3) of section 391 provides that a vexatious litigant is a person “[i]n any
litigation [who,] while acting in propria persona, repeatedly files unmeritorious motions,
pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics
that are frivolous or solely intended to cause unnecessary delay.” (§ 391, subd. (b)(3).)
The vexatious litigant statutes may be invoked in family law proceedings. (See In re
Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1005-1007.)
There are two “sets of remedies” provided in the vexatious litigant statutes. (In re
Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1345 (Rifkin).) Both statutory
remedies are at issue in this case. First, sections 391.1 through 391.6, enacted in 1963,
provide “a means of moderating a vexatious litigant’s tendency to engage in meritless
litigation. [Citations.] Under these sections, a defendant may stay pending litigation by
moving to require a vexatious litigant to furnish security if the court determines ‘there is
not a reasonable probability’ the plaintiff will prevail. Failure to produce the ordered
security results in dismissal of the litigation in favor of the defendant. [Citations.]”
(Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221 (Bravo).) The second aspect of the
statutes, enacted in 1990, is the prefiling order requirement of section 391.7. (Shalant,
supra, 51 Cal.4th at p. 1170.) Section 391.7 “ ‘ “operates beyond the pending case” and
authorizes a court to enter a “prefiling order” that prohibits a vexatious litigant from
filing any new litigation in propria persona without first obtaining permission from the
presiding judge.’ ” (Shalant, supra, at p. 1170.) This statutory prefiling requirement
“does not deny the vexatious litigant access to the courts, but operates solely to preclude
the initiation of meritless lawsuits and their attendant expenditures of time and costs.
[Citation.]” (Bravo, supra, at pp. 221-222.)
In general under the vexatious litigant statutes, “ ‘ “[l]itigation” ’ means ‘any civil
action or proceeding, commenced, maintained or pending in any state or federal court.’
(§ 391, subd. (a).) The statute governing prefiling orders, however, provides an
additional definition of the term: for purposes of section 391.7, ‘ “litigation” includes
7
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).)” (Rifkin, supra,
234 Cal.App.4th at pp. 1345-1346.)
“When considering a motion to declare a litigant vexatious, the court must weigh
the evidence to decide whether the litigant is vexatious based on the statutory criteria and
whether the litigant has a reasonable probability of prevailing. [Citation.]” (Goodrich v.
Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265.)
We review the trial court’s determination of whether a person is a vexatious
litigant for substantial evidence. (Bravo, supra, 99 Cal.App.4th at p. 219.) In our review,
“we presume the order declaring a litigant vexatious is correct and imply findings
necessary to support the judgment. [Citation.]” (Ibid.; see also Golin v. Allenby (2010)
190 Cal.App.4th 616, 636 (Golin) [order presumed correct “[b]ecause the trial court is
best suited to receive evidence and hold hearings on the question of a party’s
vexatiousness”].) Similarly, a determination that “that a vexatious litigant does not have
a reasonable chance of success in the action is based on an evaluative judgment,” and the
trial court will be upheld if substantial evidence supports its finding. (Golin, supra, at
p. 636.)
B. Noncompliance with Appellate Procedural Rules
Our review of the merits of this appeal is severely hampered by Javanbakhsh’s
noncompliance with rules of appellate procedure. We discuss that noncompliance below.
1. Structural Deficiencies
The California Rules of Court7 prescribe basic rules for the format and content of
appellate briefs. The party is required in his or her brief to “[s]tate each point under a
separate heading or subheading summarizing the point, and support each point by
argument and, if possible, by citation of authority.” (Rule 8.204(a)(1)(B); see Pizarro v.
7 Further rule references are to the California Rules of Court.
8
Reynoso (2017) 10 Cal.App.5th 172, 179 (Pizarro) [“[f]ailure to provide proper headings
forfeits issues that may be discussed in the brief but are not clearly identified by a
heading”].) An appellant in his or her opening brief is also required to “(A) [s]tate the
nature of the action, the relief sought in the trial court, and the judgment or order
appealed from; [¶] (B) [s]tate that the judgment appealed from is final, or explain why the
order appealed from is appealable; and [¶] (C) [p]rovide a summary of the significant
facts limited to matters in the record.” (Rule 8.204(a)(2); see Kleveland v. Siegel &
Wolensky, LLP (2013) 215 Cal.App.4th 534, 558 [omission by appellant of summary of
significant facts limited to those found in the record deemed a “flagrant violation of
rule 8.204(2)(C)”].)
Javanbakhsh’s opening brief does not comply with these basic requirements under
rule 8.204(a). She does not (1) provide separate headings summarizing the points made
in support of her appeal, (2) summarize the relevant procedural history of the case (i.e.,
the nature of the action) with citations to the record, (3) explain why the order is
appealable, or (4) provide a summary of significant facts limited to matters in the record.
2. Citations to the Record
Javanbakhsh’s opening brief is replete with statements of specific factual and
procedural matters upon which she bases her claim that the court below erred. But she
fails in her 33-page brief to include any citations to the appellate record identifying where
the specific facts were presented to the trial court. For example, in 10 pages of her brief,
Javanbakhsh identifies and describes 11 separate hearings in this case without any
citations to the record.
Javanbakhsh elected to proceed in this appeal with a clerk’s transcript of the
proceedings. A 13-volume clerk’s transcript was thereafter prepared and filed with this
court. She also requested that a reporter’s transcript of the May 7, 2018 hearing be
transcribed. That reporter’s transcript was filed with this court. Thus, the collective
appellate record here to which the parties were required to reference in their briefs was a
9
13-volume clerk’s transcript and a one-volume reporter’s transcript. Javanbakhsh’s brief
contains no references to this appellate record.8
Javanbakhsh’s failure to include citations to the record in her appellate brief
constitutes a violation of rule 8.204(a)(1)(C), which requires that every brief “[s]upport
any reference to a matter in the record by a citation to the volume and page number of the
record where the matter appears.” “When an appellant’s brief makes no reference to the
pages of the record where a point can be found, an appellate court need not search
through the record in an effort to discover the point purportedly made. [Citations.] We
can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]”
(In re S.C. (2006) 138 Cal.App.4th 396, 406-407; see also Yeboah v. Progeny Ventures,
Inc. (2005) 128 Cal.App.4th 443, 451 (Yeboah) [factual statements in briefs “not
supported by references to the record are disregarded” by the reviewing court].)
The difficulty presented by Javanbakhsh’s failure to include record citations in
support of her assertions of fact and procedure is heightened in this case where the
record—consisting of a reporter’s transcript and a 13-volume clerk’s transcript containing
nearly 3700 pages—is extensive. We “ ‘ “cannot be expected to search through a
voluminous record to discover evidence on a point raised by [a party] when his [or her]
brief makes no reference to the pages where the evidence on the point can be found in the
record.” ’ [Citations.]” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735,
745.) We will therefore disregard Javanbakhsh’s factual contentions and any references
to procedural matters below for which she has failed to provide citations to the record.
(Yeboah, supra, 128 Cal.App.4th at p.451.)
8 In her opening brief, Javanbakhsh refers to 20 exhibits that were purportedly
attached to the brief. No such exhibits appear in the record. At the time Javanbakhsh
filed her opening brief, she attempted to file an appendix, which was returned to her
because she had elected to proceed with a clerk’s transcript.
10
3. Referring to Matters Outside the Record
A further, related, difficulty is presented by Javanbakhsh’s failure to include
citations to the record in support of facts raised in her appellate brief. She refers in her
opening brief—unsupported by citations to the record—to a number of extraneous
matters, such as allegedly harassing conduct by Dahms occurring while the appeal was
pending, and an unsupported narrative of alleged abuse prior to the filing of the
dissolution proceeding. These matters (assuming their existence) are not part of the
appellate record.
As appellant, Javanbakhsh is required by the California Rules of Court in her
opening brief to “[p]rovide a summary of the significant facts limited to matters in the
record.” (Rule 8.204(a)(2)(C), italics added.) “Factual matters that are not part of the
appellate record will not be considered on appeal and such matters should not be referred
to in the briefs.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.) We will
therefore disregard extraneous matters outside the record that are referenced in
Javanbakhsh’s brief. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6.)
4. Citation of Legal Authorities
Javanbakhsh has failed to cite any legal authority in support of her position that
the court erred in granting the vexatious litigant request. An appellate court has no
obligation to “develop the appellants’ arguments for them.” (Dills v. Redwoods
Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) As one court has explained, “We
are not required to make an independent, unassisted study of the record in search of error
or grounds to challenge a trial court’s action. . . . When a brief fails to contain a legal
argument with citation of authorities on the points made, we may ‘treat any claimed error
in the decision of the court . . . as waived or abandoned.’ [Citations.]” (Ellenberger v.
Espinosa (1994) 30 Cal.App.4th 943, 948.)
11
5. Undeveloped Arguments
Javanbakhsh in her appellate brief makes a number of general assertions—
unsupported by citations to the record—regarding her position that the court erred. Most
of her brief identifies other court orders not at issue in the present appeal which she
asserts, generally, were erroneous. In addressing the vexatious litigant order that is the
subject of this appeal, Javanbakhsh makes the following, one-paragraph, conclusory
argument: “I believe that the above order of the court date on May 7, 2018 contains legal
errors because, for example and as briefly summarized in this declaration [sic], I do not
fulfill the requirements of being labeled a vexatious litigant in the first place.
Furthermore, the order of the court date on May 7, 2018 is detrimental to my life.”
Javanbakhsh fails to state a cogent argument as to why the trial court committed error in
issuing the vexatious litigant order. She does not discuss, with citations to the record, the
evidence presented in support of the order made in Dahms’s request. Nor does she
provide any evidence, with citations to the record, that she provided to the court below in
opposition to Dahms’s request. We understand the gist of her position in her opening
brief to be as follows: “The court erred in declaring that I am a vexatious litigant because
I am not a vexatious litigant.” This circular reasoning is not proper appellate argument
and is of no benefit to this court in evaluating the merits of a claim of error.
“Conclusory assertions of error are ineffective in raising issues on appeal.
[Citation.]” (Howard v. American Nat. Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523,
citing rule 8.204(a)(1)(B).) As a panel of this court has explained: “We are not bound to
develop appellants’ argument for them. [Citation.] The absence of cogent legal
argument or citation to authority allows this court to treat the contention as waived.” (In
re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830; see also Pizarro,
supra, 10 Cal.App.5th at p. 179.)
Based upon the foregoing, we may treat any claims of error asserted by
Javanbakhsh that have not been adequately developed as waived.
12
6. Conclusion
We acknowledge that Javanbakhsh is representing herself in this appeal and has
not had the formal legal training that would be beneficial in advocating her position.
However, the rules of civil procedure apply with equal force to self-represented parties as
they do to those represented by attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975,
984-985.) Thus, “[w]hen a litigant is appearing in propria persona, he [or she] is entitled
to the same, but no greater, consideration than other litigants and attorneys.” (Nelson v.
Gaunt (1981) 125 Cal.App.3d 623, 638; see also Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1246-1247.)
As appellant, Javanbakhsh bears the burden of showing that there was no
substantial evidence to support the findings of the trial court under the vexatious litigant
statute. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) She has
failed to meet her burden of demonstrating error. She has (1) not complied with the
requirements for the content and format of briefs, (2) failed to include any citations to the
appellate record, (3) cited to matters outside the record, (4) failed to provide any legal
authorities in support of her position, and (5) made general contentions, including
undeveloped assertions of error.
Notwithstanding Javanbakhsh’s material noncompliance with basic rules of
appellate procedure, in the interests of justice, we will consider whether the trial court
erred in granting the request declaring Javanbakhsh a vexatious litigant.
C. The Court Did Not Err
1. Vexatious Litigant Finding
We first examine whether the court erred in finding Javanbakhsh to be a vexatious
litigant. In so finding, the court was required to determine that Javanbakhsh, “while
acting in propria persona [in the dissolution proceeding], repeatedly file[d] unmeritorious
motions, pleadings, or other papers, conduct[ed] unnecessary discovery, or engage[d] in
other tactics that [were] frivolous or solely intended to cause unnecessary delay.” (§ 391,
13
subd. (b)(3) [of section 391], italics added.) The statute reads in the disjunctive. (Golin,
supra, 190 Cal.App.4th at p. 636.) “What constitutes ‘repeatedly’ and ‘unmeritorious’
under subdivision (b)(3), in any given case, is left to the sound discretion of the trial
court. [Citation.]” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 971 (Morton).) As
we discuss, there was substantial evidence supporting the vexatious litigant finding under
the first prong of section 391, subdivision (b)(3)—repeated unmeritorious filings.
The overall context for a finding that Javanbakhsh made repeated unmeritorious
filings was her DVRO request filed on May 27, 2016, and court filings and proceedings
related to that DVRO request that followed over the subsequent year and one-half. In her
DVRO request, Javanbakhsh twice stated under penalty of perjury that at approximately
6:00 a.m. on May 25, 2016, Dahms “pulled [her] hair, grabbed [her] hand so hard that the
skin turned blue and shoved and pushed [her] against the wall[;] after several minutes of
screaming and hitting [her], he threatened that if [she did] not sign [documents
surrendering her rights under the marriage], . . . he [would] get a gun and will kill [her]
and himself.” She alleged that her injuries included “severe bruising of right hand.”
Javanbakhsh also twice alleged that there had been six domestic violence incidents in
May that had preceded the May 25 incident.
These statements were the focus of Dahms’s opposition to the DVRO request at
the evidentiary hearing on August 2, 2017. In addition to his denial of any domestic
violence, Dahms asserted in his opposition, inter alia, that (1) she had not reported the
abuse to anyone, including a 24-hour security guard present in her high-rise apartment
building; (2) there were no contemporaneous photographs depicting a severely bruised
hand that were taken by her or her attorney, whom she saw the same day to prepare the
DVRO request; (3) photographs taken by the police on the evening of May 25 showed no
bruising of the right hand at all; (4) she did not report to the police on the evening of May
25 the alleged incident that morning referred to in her DVRO request; (5) she did not
report to the police on the evening of May 25 the several alleged domestic violence
14
incidents earlier in May that she had identified in her DVRO request; and (6) the only
alleged incident she reported to the police was one that she did not mention in her DVRO
request that had been prepared in consultation with counsel earlier the same day.
After an evidentiary hearing on the August 2, the court denied the DVRO request.
In its formal order of August 11, 2017, the court stated: “Based on the . . . testimony, the
court ordérs that Ms. Javanbakhsh’s Request for Domestic Violence Restraining is denied
and finds that all of the allegations alleged in [her DVRO request and accompanying
declaration], and any other subsequent pleadings she has filed with this court in which
she has reiterated those allegations, are completely without any credibility whatsoever
and are, therefore, not believed by this court.” On September 28, 2017, Javanbakhsh
filed a notice of appeal of the order denying her DVRO request.
Dahms then filed a request for attorney fees and costs as sanctions on
September 7, 2017. The request was founded substantially on the consequences to
Dahms in defending, ultimately successfully, Javanbakhsh’s DVRO request. In Dahms’s
request, he contended that Javanbakhsh had “misrepresented and fabricated material
facts” in connection with her DVRO request, and she had “changed her ‘story’ about
‘severe bruising of her right hand.’ ” The court granted the request. It ordered that
Javanbakhsh pay Dahms a total sum of $46,687, namely (1) $5,000 for repayment of
attorney fees he paid to Javanbakhsh’s prior attorney;9 (2) “$6,687 for the out-of-pocket
expenses incurred as result of his arrest based on [Javanbakhsh’s] false allegations to the
9 The basis for this reimbursement request was that Dahms alleged that, early in
the proceedings, he had been ordered to pay $5,000 to Javanbakhsh’s then-attorney,
Peyman Rad. This order, Dahms asserted, was based upon “the false claim on her
Income & Expense Declaration signed by Mr. Rad and her on May 16, 2016, that she had
only $40 to her name, had not paid a retainer and still owed $5,000 for attorney fees,”
(italics and bold-face omitted) when, in fact, she had paid her attorney a $5,000 retainer
on May 10, 2016 and did not owe him money at the time she signed the declaration.
15
police of domestic violence”;10 (3) $25,000 under Family Code section 271 arising from
her “frustration of the settlement process”; and (4) $10,000 under Family Code
section 6344 for attorney fees arising out of the trial of the DVRO request.11 On
November 30, 2017. Javanbakhsh filed a notice of appeal of the order granting Dahms’s
request for sanctions.
On November 15, 2017, Javanbakhsh filed a motion for reconsideration of the
sanctions order. She asserted that it had been an “honest mistake” that she had not
appeared for the October 19, 2017 hearing on Dahms’s request for sanctions.
Javanbakhsh argued, inter alia, that sanctions would impose an unreasonable financial
burden upon her, Dahms had been uncooperative when she took his deposition, and he
and his attorney had been responsible for litigation abuse throughout the proceedings,
including intimidation and harassment when her deposition was taken. Dahms filed
opposition to the motion for reconsideration. He argued, inter alia, that the motion was
procedurally defective, she had been properly served with Dahms’s request for sanctions,
and she failed to present a ground for reconsideration. On January 2, 2018, one day prior
to the hearing, Javanbakhsh filed a 125-page document designated as a “[r]esponsive
[d]eclaration” that was in fact in further support of her motion for reconsideration. In the
document, she requested a continuance of her own motion, asserting that she had not had
an opportunity to respond to the opposing papers submitted by Dahms.
10 Dahms indicated that he had incurred $2,500 for bail bond expenses; $1,500 for
a criminal attorney whose dealings with the District Attorney resulted in a decision that
no criminal charges be filed; $187 to an immigration attorney for advice on the potential
impact of the DVRO request upon Dahms’s immigration status and request for United
States citizenship; and $2,500 for a criminal attorney to represent him in filing a petition
for determination of factual innocence (Pen. Code, § 851.8) necessary for Dahms to
maintain his security clearance for his work.
11 On November 1, 2017 (almost two months after Dahms filed his sanctions
request and 13 days after the hearing on that request), Javanbakhsh filed a purported
responsive declaration to the request, opposing the relief sought.
16
The court heard and decided Javanbakhsh’s motion for reconsideration on
January 3, 2018. In a formal order dated March 1, 2018, the court, inter alia, (1) found
that “[t]here [was] no credibility whatsoever to [Javanbakhsh’s] claim that her failure to
appear at the . . . hearing [on Dahms’s request for sanctions] was the result of an ‘honest
mistake’ ”; (2) found that Javanbakhsh had “failed to demonstrate any ‘new or different
facts, circumstances or law’ ” under section 1008, subdivision (a) warranting
reconsideration of the prior sanctions order; (3) indicated it had reexamined the issue of
when and how Javanbakhsh should pay to Dahms the reimbursement amount, attorney
fees, and sanctions of $46,687 previously ordered; (4) found that Javanbakhsh had the
present ability to pay $10,000 in monthly installments of $500, for Dahms’s attorney fees
arising from the hearing on the DVRO request (awarded under Fam. Code, § 6344);
(5) held that Dahms would receive a cash credit of $46,687 (less any amounts paid by
Javanbakhsh on the $10,000 sanctions award) when the court ordered the division of
community assets and Dahms’s 401(k) plan; and (6) denied Javanbakhsh’s request for
attorney fees and sanctions. On March 12, 2018, Javanbakhsh filed a notice of appeal
from the order denying her motion for reconsideration.
The motion for reconsideration was not signed by Javanbakhsh under penalty of
perjury. Section 1008, subdivision (a) provides that “[t]he party making the application
[for reconsideration] shall state by affidavit what application was made before, when and
to what judge, what order or decisions were made, and what new or different facts,
circumstances, or law are claimed to be shown.” (Italics added.) The moving party’s use
of an affidavit (or declaration under penalty of perjury) is thus a statutory requirement for
making a motion for reconsideration. Therefore, Javanbakhsh’s “motion to reconsider
was invalid when filed and served because the motion failed to contain an affidavit or
declaration in support of the motion.” (Branner v. Regents of University of California
(2009) 175 Cal.App.4th 1043, 1048, original italics (Branner).) Additionally,
Javanbakhsh did not cite any law, and it does not appear from her motion that she
17
presented new or different facts or circumstances as required under section 1008,
subdivision (a). Further, it does not appear that Javanbakhsh presented justification for
her failing to raise the matters in her motion earlier. (See Baldwin v. Home Sav. of
America (1997) 59 Cal.App.4th 1192, 1200 (Baldwin) [“court has no jurisdiction to
reconsider a prior order on the basis of ‘different facts’ in the absence of a satisfactory
explanation for the failure to present them earlier”].) It appears that her motion for
reconsideration was in fact a tardy opposition to Dahms’s request for sanctions that
should have been presented prior to the hearing on that request. (See Hennigan v. White
(2011) 199 Cal.App.4th 395, 406 [facts known by a party when the original motion was
pending do “not constitute ‘new or different facts’ for purposes of granting
reconsideration”].)
On January 2, 2018, one day prior to the hearing on her reconsideration motion,
Javanbakhsh filed an affidavit of peremptory challenge under section 170.6 to disqualify
the trial judge. The declaration and exhibits consisted of over 330 pages. The court
denied the disqualification request on the ground that it was untimely.
“A motion to disqualify a judge by filing an affidavit of prejudice pursuant to
Code of Civil Procedure section 170.6 is untimely if made after the judge has conducted a
pretrial hearing involving a determination of contested fact issues relating to the merits.
[Citations.]” (Briggs v. Superior Court (2001) 87 Cal.App.4th 312, 317.) The trial judge
here had been the assigned judge for all purposes since the commencement of the
proceedings in May 2016, and he had heard numerous matters prior to the filing of the
disqualification request. The affidavit of disqualification under section 170.6 filed by
Javanbakhsh was untimely and was thus properly denied.
On March 22, 2018, Javanbakhsh filed a motion for reconsideration of the findings
and orders from the March 13, 2018 trial (second motion for reconsideration). The
motion identified no issues but stated that it was being made “due to new facts and
circumstances.” She indicated that a “complete Motion for Reconsideration . . . [would]
18
follow[].” This second motion for reconsideration was not accompanied by an affidavit
or declaration and was therefore invalid. (Branner, supra, 175 Cal.App.4th at p. 1048.)
On April 9, 2018, Javanbakhsh submitted an application and obtained an order to
show cause re contempt (the OSC Application), relating to the parties’ ongoing dispute
concerning the sale of their automobile. The record does not reflect that the OSC
Application was served by Javanbakhsh upon Dahms or his counsel.12
Based upon the foregoing, a finding under section 391, subdivision (b)(3) that
Javanbakhsh was a vexatious litigant was supported by the record. The trial court
properly concluded that the “unmeritorious motions, pleadings, or other papers” that had
been “repeatedly file[d]” by Javanbakhsh consisted of the following documents: (1) her
DVRO request of May 27, 2016; (2) her September 28, 2017 notice of appeal from the
court’s order denying her DVRO request; (3) her purported responsive declaration filed
November 1, 2017, in opposition to Dahms’s request for sanctions that had been filed,
heard, and decided prior to her filing; (4) her November 16, 2017 motion for
reconsideration of the sanctions order; (5) her January 2, 2018 purported responsive
declaration in further support of her motion for reconsideration, (6) her March 12, 2018
notice of appeal of the court’s order denying her motion for reconsideration, (7) her
January 2, 2018 affidavit to disqualify trial judge; (8) her March 22, 2018 second motion
for reconsideration;, and (9) her April 9, 2018 OSC Application. There was substantial
evidence supporting the trial court’s finding that Javanbakhsh was a vexatious litigant
under the repeated unmeritorious filings prong of section 391, subdivision (b)(3).
(Bravo, supra, 99 Cal.App.4th at p. 219.)13
12 In any event, the record reflects that there were further court proceedings (on
May 7 and June 20, 2018) in which the mechanics of the sale of the automobile were
discussed between Javanbakhsh, Dahms’s counsel, and the court.
13 Because there was substantial evidence supporting a vexatious litigant finding
that Javanbakhsh “repeatedly file[d] unmeritorious motions, pleadings, or other papers”
(§ 391, subd. (b)(3), we need not address the other two disjunctive prongs of the statute,
19
2. Requirement of Posting Security
Under section 391.1, “the court may require the posting of security by the plaintiff
if it determines, on an evidentiary showing, both that the plaintiff is a vexatious litigant
and that there is no reasonable probability that the plaintiff will prevail in the action
against the moving defendant.” (Golin, supra, 190 Cal.App.4th at p. 640.) The “no
reasonable probability” determination is made by the trial court by making an evaluative
judgment after weighing the evidence. (Moran v. Murtaugh Miller Meyer & Nelson, LLP
(2007) 40 Cal.4th 780, 785-786 (Moran).)
We have addressed the vexatious litigant finding above. That discussion of the
pending litigation to which the order requiring security applies demonstrates that there
was a substantial basis for the trial court’s conclusion that there was no reasonable
probability that Javanbakhsh would prevail in those matters. We will briefly address the
pending litigation in the context of section 391.1.
Appeal of DVRO Order. The notice of appeal filed by Javanbakhsh on
September 28, 2017, concerns the denial of her DVRO request after an evidentiary
hearing. The trial court’s conclusion in denying the request was based upon its
assessment of the credibility of the witnesses, namely, Javanbakhsh, Dahms, and a police
officer involved in Javanbakhsh’s report of domestic violence. As noted, the court
concluded Javanbakhsh’s DVRO request and subsequent filings in which she repeated
her domestic violence claims were “completely without any credibility whatsoever
and . . . not believed by this court.” In a review of the order denying Javanbakhsh’s
DVRO request, the appellate court will be required to defer to the trial court’s
determinations regarding the credibility of witnesses. (Ashby v. Ashby (2021) 68
i.e., that she “conduct[ed] unnecessary discovery, or engage[d] in other tactics that [were]
frivolous or intended to cause unnecessary delay” (ibid.).
20
Cal.App.5th 491, 518 [reviewing court defers to trial court’s assessment of credibility of
witnesses in appellate challenge to domestic violence restraining order].)
Appeal of Sanctions Order. The notice of appeal filed by Javanbakhsh on
November 30, 2017, concerns the order granting Dahms’s request for attorney fees and
costs as sanctions in the total sum of $46,687. A large component of the award ($25,000)
was made by the court pursuant to Family Code section 271 arising from Javanbakhsh’s
“frustration of the settlement process.” “An award of attorney fees and costs as sanctions
under section 271 is reviewed for abuse of discretion. [Citation.]” (In re Marriage of
Corona (2009) 172 Cal.App.4th 1205, 1225.) Another component of the award
($10,000) was made under Family Code section 6344 for attorney fees incurred by
Dahms that arose out of the trial of the DVRO request. There is no question that Dahms
was the “prevailing party” in connection with that proceeding as required under
subdivision (a) of Family Code section 6344. An order awarding attorney fees under that
statute is reviewed for abuse of discretion, “ ‘and the amount of a fee awarded by such a
judge will therefore not be set aside on appeal absent a showing that it is manifestly
excessive in the circumstances.’ [Citation.]” (Loeffler v. Medina (2009) 174 Cal.App.4th
1495, 1509.) The third and fourth components of the award consisted of amounts to
reimburse Dahms (1) for payment of attorney fees to Javanbakhsh’s prior attorney that
she had already paid ($5,000), and (2) for out-of-pocket expenses resulting from his
arrest based on Javanbakhsh’s allegations to the police of domestic violence ($6,687).
Orders concerning reimbursement requests are reviewed for abuse of discretion. (See In
re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1127.) Each aspect of
the order, therefore, will be subject to review under a deferential abuse of discretion
standard. (See Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448 [appellant
challenging an order that is reviewed on appeal for abuse of discretion “is confronted
with more than a daunting task[;] . . . [it] is an uphill battle”].)
21
Appeal of Reconsideration Order. On March 12, 2018, Javanbakhsh filed a notice
of appeal from the order denying her motion for reconsideration of the sanctions order.
As we have observed, ante, the motion for reconsideration, having not been signed by
Javanbakhsh under penalty of perjury, “was invalid when filed and served because the
motion failed to contain an affidavit or declaration in support of the motion.” (Branner,
supra, 175 Cal.App.4th at p. 1048, original italics.) Further, the motion appears to have
also not been in compliance with section 1008 because Javanbakhsh cited no law, did not
appear to have presented new or different facts or circumstances, and did not present
justification for her failure to raise the matters stated in her motion earlier. (See Baldwin,
supra, 59 Cal.App.4th at p. 1200.)
Second Motion for Reconsideration. As noted, the second motion for
reconsideration, filed by Javanbakhsh on March 22, 2018, was not signed under penalty
of perjury and was therefore invalid. (Branner, supra, 175 Cal.App.4th at p. 1048.) In
any event, the second motion identified no issues and simply stated conclusorily that it
was being made “due to new facts and circumstances.”
OSC Application. The April 9, 2018 OSC Application filed by Javanbakhsh does
not appear to have been served upon Dahms or his counsel.
Based upon our summary above, as to each of the five pending litigation (appeal
and postjudgment) matters, there was substantial evidence supporting the trial court’s
conclusion that there was no reasonable probability that Javanbakhsh would succeed.
(See Golin, supra, 190 Cal.App.4th at p. 636.)14 The court therefore did not err in
14 In reaching the conclusion that there was substantial evidence supporting the
trial court’s finding that there was no reasonable probability that Javanbakhsh would
succeed with respect to her three notices of appeal (i.e., challenges to the DVRO order,
the sanctions order, and the reconsideration order), we are not addressing the merits of
the DVRO Appeal or the Sanctions Appeal. While those related appeals are pending in
this court and briefs have been filed, they are not before us at this time.
22
ordering that Javanbakhsh furnish security under section 391.1 in order to proceed with
those pending matters.15
3. The Prefiling Order
Section 391.7, subdivision (a) provides that, additional to other relief available
under the vexatious litigant statutes, “the court may, on its own motion or the motion of
any party, enter a prefiling order 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 justice or presiding judge of the court where the litigation is proposed to be
filed.” A violation of such a prefiling order is punishable by contempt. (Ibid.) We
review a challenge to a prefiling order under section 391.7 for substantial evidence. (In
re Marriage of Deal (2020) 45 Cal.App.5th 613, 621.) “[W]e presume the order
declaring a litigant vexatious is correct and imply findings necessary to support the
judgment.” (Bravo, supra, 99 Cal.App.4th at p. 219.)
We have concluded, ante, that there was substantial evidence to support the trial
court’s findings that Javanbakhsh was a vexatious litigant and that there was no
reasonable probability that she would prevail in pending litigation (i.e., the five pending
postjudgment and appellate matters identified in the order). For the reasons we have
discussed, there was substantial evidence supporting the implied finding of the court that
the issuance of a prefiling order under section 391.7 was appropriate.
15 To the extent that Javanbakhsh may challenge the amount of the security
ordered by the court, we note that this amount is less than one-quarter of the amount of
security requested by Dahms. Moreover, in determining the amount of security to be
furnished under section 391.1, the court is not required to address the financial condition
of the party declared a vexatious litigant. (Devereaux v. Latham & Watkins (1995) 32
Cal.App.4th 1571, 1588 [“the vexatious litigant statutes . . . nowhere require the trial
court to take into consideration the plaintiff’s means in determining the amount of
security to be required”], disapproved on other grounds in Moran, supra, 40 Cal.4th at
p. 785, fn. 7.)
23
III. DISPOSITION
The May 24, 2018 order declaring appellant Parisa Javanbakhsh a vexatious
litigant is affirmed.
24
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
WILSON, J.
Javanbakhsh v. Dahms
H046034