Marriage of Holtz CA4/1 ( 2022 )

Filed 12/19/22 Marriage of Holtz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of SARAH
HOLTZ and BENJAMIN HOLTZ.
D079859
SARAH HOLTZ,
Respondent, (Super. Ct. No. 18FL007268N)
v.
BENJAMIN HOLTZ,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Harry L. Powazek, Judge. Affirmed.
Benjamin Holtz, in pro per, for Appellant.
Mazur & Mazur and Janice R. Mazur, for Respondent.
Benjamin Holtz appeals from an order declaring him to be a vexatious
litigant (Code Civ. Proc., § 391)1 and a related prefiling order prohibiting him
from filing any new litigation in the California courts in propria persona
1 All further statutory references are to the Code of Civil Procedure.
without first obtaining leave of the presiding justice or presiding judge of the
court where the litigation is proposed to be filed. (§ 391.7.) We find no error
and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Action
Benjamin and Sarah Holtz are parties to a marital dissolution action
filed in San Diego County Superior Court in 2018. They have one minor
child. The court entered a dissolution judgment on November 7, 2019.
On January 24, 2020, Commissioner Patti Ratekin issued a statement
of decision and ruling after a review hearing. She declined to adopt a plan for
equal sharing of child custody by both parents. The commissioner expressed
concerns about Benjamin’s “erratic behavior” and “inability to value the
mother’s role in the child’s life.” She ordered that the parents would continue
to share joint legal custody, Sarah would have the final decision-making
authority, and the child would be with Benjamin for one 48-hour period each
Sunday through Tuesday and one four-hour period each Thursday.
Benjamin was represented by counsel up until this order, but then
became self-represented after his attorney refused to file an appeal. In
September 2020, Commissioner Ratekin recused herself at Benjamin’s
request, and the matter was reassigned to the Honorable Harry L. Powazek.
In April 2021, Judge Powazek issued a statement of decision granting
Sarah’s request for a domestic violence restraining order (DVRO) and
modifying the child custody and visitation orders. Judge Powazek awarded
Sarah sole legal custody and reduced Benjamin’s visitation time.
From May through August 2021, before being declared a vexatious
litigant, Benjamin filed five statements of disqualification against Judge
Powazek in propria persona. These statements of disqualification were each
2
stricken by the court on the grounds that they were untimely, they failed to
state any legal basis for disqualification, and they constituted improper
repeat challenges. Among other things, the court found that Benjamin’s
claims of bias did not require disqualification because they arose from his
mere disagreement with Judge Powazek’s statements and rulings made in
his official capacity, and the fact that Benjamin had filed a lawsuit against
Judge Powazek was also not a proper basis for disqualification. Each of these
orders stated: “This order constitutes a determination of the question of
disqualification of the [trial] judge pursuant to section 170.3, subdivision (d).”
Benjamin filed three writ petitions with this court challenging Judge
Powazek’s orders striking his requests for disqualification. We summarily
denied the first of these writ petitions (No. D078900) on May 14, 2021, and
the Supreme Court denied review on July 28, 2021. We summarily denied
the second petition (No. D078936) on May 19, 2021. We summarily denied
the third petition (No. D079079) on June 18, 2021, and the Supreme Court
denied review on August 11, 2021.2
As a self-represented litigant, Benjamin also filed multiple ex parte
applications, many seeking to protest prior rulings, accuse the family court of
abusive conduct, and relitigate issues already decided. Between July 9, 2020
and July 21, 2021, Benjamin filed at least 14 ex parte applications that were
denied and one that was taken off calendar when he failed to appear. His ex
parte applications included requests to “[r]emove the wacky court ordered
2 We grant Sarah’s unopposed request for judicial notice of records of
Benjamin’s filings in this court, the California Supreme Court, and the
United States District Court for the Southern District of California, all of
which were referred to in the trial court. (Evid. Code, §§ 452, subd. (d), 459,
subd. (a).)
3
custody schedule,” grant “relief from the abusive clutches of Dept 19,” “stop
abuse,” and “please stop raping my family.”
Judge Powazek repeatedly admonished Benjamin not to file ex parte
applications unless there was an emergency (Cal. Rules of Court, rule
3.1202(c)), but Benjamin continued to do so. Judge Powazek also warned
Benjamin, “[w]e don’t re-litigate on an ex parte basis, as you know.”
Benjamin also filed and then ultimately dismissed three contempt
charges against Sarah and two DVRO requests.
B. Other Appellate Filings
In addition to the three writ petitions seeking disqualification of Judge
Powazek, Benjamin filed seven other appeals or writ petitions with this court
during a 15-month period from June 3, 2020 through September 7, 2021, all
arising out of the same underlying family court case. Benjamin abandoned
one of these appeals (Holtz v. Holtz (Apr. 16, 2021, D077723) app.
abandoned); he voluntarily dismissed a second appeal after full briefing
(Holtz v. Holtz (May 26, 2021, D078795) app. dism.); we dismissed a third
appeal on the basis that it was barred by Benjamin’s abandonment of his
prior appeals (Holtz v. Holtz (Sept. 22, 2021, D079329) app. dism.); and we
summarily denied his four other writ petitions (Nos. D078702, Mar. 24, 2021
summary denial order; D078878, May 5, 2021 summary denial order;
D079423, Sept. 8, 2021 summary denial order; and D079433, Sept. 9, 2021
summary denial order).
C. Federal Court Action
In a separate action that was removed to federal court in August 2021,
Benjamin sued Judge Powazek, two other superior court judges, a superior
court commissioner, a superior court executive officer, and three attorneys
involved in the family court proceedings. (Holtz v. Powazek (Nov. 22, 2021,
4
No. 3:21-cv-01401-CAB-JLB) dism.) He asserted claims including violations
of the Civil Rights Act (42 U.S.C. §§ 1983, 1985, 1986) and the Racketeering
and Corrupt Organizations Act (18 U.S.C. § 1962). Benjamin’s complaint
alleged that he was suing “the black robed tyrants in San Diego County
Family Court and other related associates/professionals” who “shall hereafter
be referred to as the Judicial Nobility Extortion Syndicate (JNES).”
On October 19, 2021, the federal court granted a motion to dismiss the
superior court defendants based on judicial immunity. Holtz later dismissed
all claims against the remaining parties.3
D. Vexatious Litigant Order
In May 2021, Sarah filed a request for order in the trial court to have
Benjamin declared a vexatious litigant under section 391. In a supporting
declaration, she summarized 31 requests for relief Benjamin had filed as a
self-represented litigant, and the outcome of each. She also stated that she
had spent over $46,000 in attorney fees from the start of the case, much of
which was incurred in responding to Benjamin’s constant filings. In a
supplemental declaration filed before the hearing, Sarah summarized 14
more requests for relief filed by Benjamin while the motion was pending, and
the outcome of each.
On October 25, 2021, the trial court held a hearing and heard
arguments on the motion. Sarah’s counsel argued that Benjamin met each of
the alternative definitions of a vexatious litigant under section 391,
subdivision (b)(1)-(3). In response, Benjamin argued, “I did go through this
civil avenue, I tried to correct what I viewed as some wrongs, but
3 The record suggests that Benjamin also filed another civil action
against Judge Powazek and other judicial officers. At the time of the hearing
on the motion to declare Benjamin a vexatious litigant, this action had
apparently been dismissed with leave to amend.
5
unfortunately they determined that my attempts are futile because there’s no
facts whatsoever that would support my arguments.” He asserted, “I mean,
I’m not vexatious. I just want to be a parent to [the child]. So, you know, if
the court feels that I’m vexatious, that’s up to you, you have that power.”
The court noted it had never questioned that Benjamin had a strong
bond with his son. The court also noted its reluctance to declare someone a
vexatious litigant. However, the court expressed concerns about Benjamin’s
multiple unsuccessful filings and took the matter under submission.
Four days after the hearing, before any final ruling, Benjamin filed a
sixth statement of disqualification of Judge Powazek. On November 2, 2021,
Judge Powazek issued an order striking the sixth statement on the ground
that it was “untimely, fails to allege any legal basis for disqualification, and
is an improper repeat challenge because there are no new substantive
allegations raised in the instant request to disqualify Judge Powazek from
this case.” The court noted that “[t]he majority of the Sixth Statement
appears to be cut and pasted from [Benjamin]’s prior Statements of
Disqualification.”4
Also on November 2, 2021, the court issued an order after hearing
granting Sarah’s motion to have Benjamin declared a vexatious litigant. The
court found that Benjamin “while acting in [propria] persona has repeatedly
filed unmeritorious motions, pleadings and other papers and has engaged in
tactics that were frivolous within the meaning of [Code of Civil Procedure]
section 391[, subdivision] (b)(3) and therefore, he is declared a vexatious
4 Apparently unaware of Judge Powazek’s order, the supervising judge
later issued a separate order denying Benjamin permission to file the sixth
statement of disqualification and ruling that his “latest effort includes no new
facts, evidence or legal argument that compel a new look at these issues.”
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litigant.” The court did not decide whether Benjamin met the alternative
definitions of a vexatious litigant under section 391, subdivision (b)(1) or (2).
The court stated that it had considered the following unsuccessful
filings by Benjamin in making the vexatious litigant determination:
(1) fifteen ex parte applications, 14 of which were denied and one taken off
calendar when Benjamin failed to appear; (2) three dismissed contempt
proceedings; (3) two dismissed DVRO requests; (4) five judicial
disqualification requests that were stricken; and (5) ten unsuccessful
proceedings in the Court of Appeal and Supreme Court.
The court also imposed a prefiling order under section 391.7. The
prefiling order stated that “unless represented by an attorney,” Benjamin
was “prohibited from filing any new litigation in the courts of California
without approval of the presiding justice or presiding judge of the court in
which the action is to be filed.”
Two days later, Benjamin filed a declaration accusing Judge Powazek
of “absolute disregard for the law” and stating that “[s]eeking Mr. Powazek’s
removal from my case because he is a liar is not frivolous” because “I have
proven him a liar.” Benjamin asserted: “What this is all about is
Mr. Powazek writing Orders because he does not like anyone who questions
him.”
After filing another notice of appeal, Benjamin requested permission to
appeal. The presiding justice of this court granted his request in a written
order stating: “The appeal is limited to the November 2, 2021 order(s)
declaring appellant a vexatious litigant and imposing a prefiling order.”
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DISCUSSION
A. Standard of Review
We review a trial court’s order declaring a party to be a vexatious
litigant for substantial evidence. (Goodrich v. Sierra Vista Regional Medical
Center (2016) 246 Cal.App.4th 1260, 1265 (Goodrich).) We must presume the
order is correct and imply findings necessary to support the vexatious litigant
designation. (Id. at pp. 1265-1266.) A reversal is required only if there is no
substantial evidence to imply findings in support of the vexatious litigant
designation. (Id. at p. 1266.)
B. Vexatious Litigant Statutes
The vexatious litigant statutes (§§ 391-391.7) are designed to curb
misuse of the court system by those acting in propria persona who repeatedly
file groundless lawsuits or motions to relitigate issues previously decided
against them. (Goodrich, supra, 246 Cal.App.4th at p. 1265.) Section 391,
subdivision (b) provides four alternative definitions of a vexatious litigant,
including someone who “[i]n any litigation while acting in propria persona,
repeatedly files unmeritorious motions, pleadings, or other papers, conducts
unnecessary discovery, or engages in other tactics that are frivolous or solely
intended to cause unnecessary delay.” (§ 391, subd. (b)(3).)
Section 391.7, subdivision (a) provides that the court may “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.”
C. Analysis of Vexatious Litigant Order
As noted, the trial court declared Benjamin a vexatious litigant under
section 391, subdivision (b)(3) based on its finding that he had repeatedly
8
filed unmeritorious motions, pleadings, and other papers, and had engaged in
tactics that were frivolous. Specifically, the court relied on Benjamin’s
unsuccessful ex parte applications, the dismissed contempt proceedings, the
dismissed DVRO requests, the multiple requests for disqualification of Judge
Powazek, and the 10 unsuccessful appeals and writ petitions.
For several reasons, Benjamin has failed to meet his burden of
demonstrating any error. First, Benjamin has failed to provide us with an
adequate record on appeal. A judgment or order of the lower court is
presumed correct, and error must be affirmatively shown. (In re Julian R.
(2009) 47 Cal.4th 487, 498-499.) Consequently, the appellant has the burden
of providing an adequate record. (Bowser v. Ford Motor Co. (2022)
78 Cal.App.5th 587, 610.) Failure to provide an adequate record on appeal
requires that the issue be resolved against the appellant. (Ibid.)
Although Benjamin argues on appeal that he did not repeatedly file
unmeritorious or frivolous pleadings, the appellate record does not include
most of the pleadings the trial court relied on in reaching a contrary
conclusion. Specifically, the record does not include the dismissed contempt
charges, the dismissed DVRO requests, the multiple requests for
disqualification of Judge Powazek, the unsuccessful writ petitions and
appellate filings, and many of Benjamin’s unsuccessful ex parte applications.
Benjamin cannot overcome the presumption that the trial court’s ruling
is correct without including the relevant pleadings in the appellate record.
We would have to review these pleadings to determine whether the trial
court properly found them to be unmeritorious. And the fact that Benjamin
is self-represented does not excuse his failure to provide an adequate
appellate record. Self-represented litigants must follow the same rules of
procedure as litigants who are represented by counsel. (Rappleyea v.
9
Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1247.)
Second, even if we were to decide the merits of the appeal based on the
limited record before us, there would still be ample evidence to support the
trial court’s order. In one four-month period, Benjamin filed five repetitive
requests seeking disqualification of Judge Powazek, as well as three
repetitive writ petitions seeking the same relief. After they were all denied,
he filed a sixth statement of disqualification just days before he was declared
a vexatious litigant. In his appellate briefing, Benjamin makes no effort to
justify these duplicative requests for disqualification, explain why it was
proper for him to relitigate the same disqualification issue multiple times, or
demonstrate that any of these requests or writ petitions had a reasonable
probability of success.
Our independent review of the trial court’s orders convinces us that
Benjamin had no reasonable probability of prevailing on any of his
disqualification requests. As Judge Powazek ruled, “the fact that [he] ruled
in a particular way, or in a way [Benjamin] believes is erroneous, is
insufficient to constitute legal evidence of prejudice, bias, or the inability to
be impartial.” (Brown v. American Bicycle Group, LLC (2014)
224 Cal.App.4th 665, 674 [“[t]he mere fact that the trial court issued rulings
adverse to [plaintiff] on several matters in this case, even assuming one or
more of those rulings were erroneous, does not indicate an appearance of
bias, much less demonstrate actual bias”].) No matter how much they may
have upset Benjamin, these rulings and the opinions Judge Powazek formed
and expressed during the course of the judicial proceedings do not even
arguably amount to a disqualifying bias. (Moulton Niguel Water Dist. v.
Colombo (2003) 111 Cal.App.4th 1210, 1219-1220.) “When making a ruling, a
10
judge interprets the evidence, weighs credibility, and makes findings. In
doing so, the judge necessarily makes and expresses determinations in favor
of and against parties. How could it be otherwise?” (Id. at p. 1219.) And it is
settled that a litigant cannot disqualify a judge who has issued adverse
rulings just by filing a lawsuit against him. (First Western Development
Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 867.)
There was certainly no reasonable basis for Benjamin to file multiple,
repetitive statements of disqualification. The statute itself provides: “A
party may file no more than one statement of disqualification against a judge
unless facts suggesting new grounds for disqualification are first learned of or
arise after the first statement of disqualification was filed. Repetitive
statements of disqualification not alleging facts suggesting new grounds for
disqualification shall be stricken by the judge against whom they are filed.”
(§ 170.4, subd. (c)(3).) Benjamin does not contend that he had any new
grounds for disqualification justifying his multiple requests. Thus, the record
supports a finding that Benjamin’s duplicative requests for disqualification
were unmeritorious.
These requests for disqualification would be enough to sustain the trial
court’s order finding Benjamin to be a vexatious litigant under section 391,
subdivision (b)(3)—even without considering any of his other unsuccessful
requests for relief. An essential purpose of the statute is “to curb misuse of
the court system by those acting as self-represented litigants who repeatedly
relitigate the same issues.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635,
italics added.) A litigant’s “persistent and obsessive use of judicial
challenges . . . without regard to timeliness or validity, rises to the level of a
frivolous litigation tactic that qualifies them as vexatious litigants under
section 391, subdivision (b)(3) . . . .” (Id. at p. 639.) And five (or six)
11
duplicative requests for disqualification plus three repetitive writ petitions
seeking disqualification are more than enough. Indeed, “as few as three
motions might form the basis for a vexatious litigant designation where they
all seek the exact same relief, which has already been denied . . . .”
(Goodrich, supra, 246 Cal.App.4th at p. 1266; see also id. at p. 1268 [holding
litigant “repeatedly” filed unmeritorious motions within the meaning of
subdivision (b)(3) by filing three motions attempting to relitigate final
judgment].)
Benjamin has also failed to demonstrate any error in the trial court’s
reliance on his other unsuccessful filings. The record shows that Benjamin
repeatedly filed ex parte applications to relitigate issues already decided and
make accusations of allegedly “abusive” treatment by the court. Benjamin
also ignored repeated warnings from the court about his improper use of ex
parte applications. Even the ones Benjamin has chosen to include in the
appellate record contain patently frivolous requests for relief, such as “relief
from the abusive clutches of Dept 19” and a request to “please stop raping my
family.” Likewise, Benjamin has shown no error in the trial court’s reliance
on the three dismissed contempt proceedings, the two dismissed DVRO
requests, and the multiple unsuccessful writ petitions and appeals to make
its ruling under section 391, subdivision (b)(3).
Benjamin asserts that not every one of his multiple requests for relief
was denied. As a matter of law, however, this does not preclude a finding
that Benjamin is a vexatious litigant within the meaning of section 391,
subdivision (b)(3). (See, e.g., In re Luckett (1991) 232 Cal.App.3d 107, 109
[finding individual was vexatious litigant notwithstanding “his successes in
certain lawsuits”].)
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Finally, although the trial court only relied on section 391, subdivision
(b)(3) as a basis for declaring Benjamin to be a vexatious litigant, its ruling
may also be affirmed under the alternative definition contained in
subdivision (b)(1). (See Perlin v. Fountain View Management, Inc. (2008)
163 Cal.App.4th 657, 663-664 [appealed order must be sustained if correct on
any theory of law applicable to the case].) Subdivision (b)(1) defines a
vexatious litigant to include someone who “[i]n the immediately preceding
seven-year period has commenced, prosecuted, or maintained in propria
persona at least five litigations other than in a small claims court that have
been . . . finally determined adversely to the person . . . .” (§ 391, subd.
(b)(1).)
As a self-represented litigant, Benjamin filed three writ petitions
challenging the trial court’s disqualification rulings in 2021. We summarily
denied all three petitions. When a writ petition is the exclusive means for
obtaining appellate review of the challenged order, a summary denial “is
properly considered a final determination of litigation for purposes of
qualifying for vexatious litigant status under section 391, subdivision (b)(1).”
(Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173 (Fink).) This applies to
“a ruling on a motion to disqualify a judge under section 170.3, subdivision
(d).” (Id. at p. 1172.) Such a ruling “is not an appealable order and may be
reviewed only by a writ of mandate . . . .” (§ 170.3, subd. (d).) Thus, our
summary denials of these three writ petitions each qualify as final adverse
determinations under section 391, subdivision (b)(1).5
5 Our summary denials of Benjamin’s other writ petitions do not qualify
under subdivision (b)(1), because they pertained to orders for which writ
relief was not the exclusive means of obtaining appellate review. (Fink,
supra, 180 Cal.App.4th at pp. 1172-1173.)
13
Benjamin also filed three appeals as a self-represented litigant in 2020
through 2021 (not including this one). He abandoned one of these appeals; he
dismissed a second appeal after full briefing; and we dismissed the third
appeal on the basis that it was barred by Benjamin’s abandonment of his
prior appeals.
The word “litigation” in section 391, subdivision (b)(1) includes appeals.
(Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406 (Garcia).) Moreover, “[a]
litigation is finally determined adversely to a plaintiff if he does not win the
action or proceedings he began, including cases that are voluntarily
dismissed by a plaintiff.” (Ibid.) “A party who repeatedly files baseless
actions only to dismiss them is no less vexatious than the party who follows
the actions through to completion.” (Tokerud v. Capitolbank Sacramento
(1995) 38 Cal.App.4th 775, 779.) Thus, the dismissal or abandonment of each
of the three prior appeals Benjamin filed in 2020 through 2021 also qualify
under section 391, subdivision (b)(1). (See Fink, supra, 180 Cal.App.4th at
pp. 1173-1174 [appeals dismissed as untimely qualified as final
determination of litigation under § 391, subd. (b)(1)].)
Benjamin’s three unsuccessful appeals plus his three unsuccessful writ
petitions on judicial disqualification yield a total of six qualifying adverse
determinations against him under section 391, subdivision (b)(1). The record
therefore establishes that Benjamin commenced more than five litigation
matters in propria persona within the seven-year period preceding the trial
court’s order that were finally determined adversely to him. (§ 391, subd.
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(b)(1).) Accordingly, the trial court’s order declaring him a vexatious litigant
was proper under section 391, subdivision (b)(1) and (3).6
Like the trial court, we have no reason to question Benjamin’s bond
with his son. We also recognize that heightened emotions often come into
play in a child custody dispute. But a self-represented litigant is still
expected to play by the rules. He may not take out his frustrations on the
judicial system by obsessively filing unmeritorious and repetitive motions,
pleadings, appeals, and writ petitions seeking to relitigate matters already
decided. Such vexatious conduct imposes unreasonable burdens and costs on
the opposing party and the courts—which the vexatious litigant statutes are
designed to prevent.
6 We need not decide whether any of Benjamin’s unsuccessful petitions
for review in the California Supreme Court or his withdrawn DVRO and
contempt requests also qualify under section 391, subdivision (b)(1). We also
do not rely on the federal court’s dismissal of his lawsuit against Judge
Powazek and others, as we cannot determine from the record whether the
dismissal order is still subject to appellate review. (See Garcia, supra,
231 Cal.App.4th at p. 407, fn. 5 [“A particular litigation is finally determined
when avenues for direct review (appeal) have been exhausted or the time for
appeal has expired.”].)
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DISPOSITION
The order declaring Benjamin to be a vexatious litigant and the
prefiling order are affirmed. Respondent shall recover her costs on appeal.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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