Miller v. Bernie CA5 ( 2022 )

Filed 8/18/22 Miller v. Bernie CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CHARLES A. MILLER,
F080064
Plaintiff and Appellant,
(Kings Super. Ct. No. 12C0112)
v.
KEVIN F. BERNIE, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Kings County. Kathy
Ciuffini, Judge.
Charles A. Miller, in pro. per., for Plaintiff and Appellant.
Scampini, Mortara & Harris, Haig A. Harris, Jr., and Neil S. Turner for Defendant
and Respondent.
-ooOoo-
Charles Anderson Miller appeals after he was designated as a vexatious litigant
who was unlikely to prevail on the merits of his lawsuit and had his case dismissed when
he could not post the required security ordered by the trial court. (Code Civ. Proc.,
§ 391.3.)1 In addition, Miller appeals following the trial court’s decision to issue a
prefiling order against him. (§ 391.7.) For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The litigation underlying this case has been proceeding for more than a decade and
has undergone multiple appeals. We recount facts relevant to the issues before us in this
appeal.
The Complaint and Entry of Default
On June 4, 2012, Miller filed a first amended complaint in his civil action against
Kevin F. Bernie.2 The complaint requested more than $2 million in damages based on an
attached letter purporting to concede the amount owed was a debt resulting from a prior
loan from Miller to Bernie and unpaid wages from work Miller had done for Bernie. The
June 17, 2010 letter broke down the debt as consisting of $1.7 million that was allegedly
borrowed in 2008, $48,000 for paralegal work “on the Mitchell vs. Alexander case,” and
$12,500 for paralegal work “performed on behalf of Lolonis Winery, Inc.” through June
2008, along with interest. Repeatedly referenced in the letter was an alleged phone
conversation on June 15, 2010, in which these promises were purportedly made and
which the letter indicated “were no doubt also recorded by the [Department of
Corrections and Rehabilitation] prison security telephone system.”
On August 22, 2012, Miller filed a case management statement asserting that
Bernie had been served with the amended complaint but had not appeared. Included with
the filing were documents suggesting that one Patti Rodrigues had signed for a document
1 All future statutory references are to the Code of Civil Procedure, unless otherwise noted.
2 The original complaint, containing substantially similar factual assertions, was filed
March 12, 2012.
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mailed to Bernie in Hawaii on June 27, 2012, and an assertion by Miller that he had
requested an entry of default on August 3, 2012, but the document had been
“delayed/refused” by the court clerk. Also attached was a rejection slip from the superior
court noting Miller’s “default and proof of service are being returned to you unfiled:
Your Notice of Acknowledgment of Receipt must have a date of signature. We cannot
accept as is.”
On September 14, 2012, Miller filed both a proof of service and a request for entry
of default. The six-page proof of service was signed by one Sergey Lazarenko of
Novato, California and included an extensively detailed description of how he
purportedly served someone named “CYNDY” who was living at Bernie’s condominium
in Walnut Creek, California. Lazarenko described Cyndy as an adult female “50+” years
of age, with “sandy-blonde hair, green eyes, about 135 LBS in weight, and 5’7” in height
[sic].” In his description of his attempts at service, Lazarenko asserted that Cyndy had
repeatedly avoided accepting service, made several rude and crude comments in the
course of his attempts, and after being served, dropped the papers on the floor, claimed
she could not accept service, and refused to pick them up even as Lazarenko was leaving.
The document appears to have been filled out with a typewriter, utilizing multiple fonts,
and contains multiple legal citations in support of claims the service was proper. The
request for entry of default was also purportedly mailed to Bernie at the same
condominium on September 12, 2012, by Sean McCarthy, a prison inmate.
Shortly thereafter, on September 18, 2012, Miller filed an amended case
management statement again noting his desire to obtain a default entry. In this filing,
Miller noted he had twice filed proofs of service and requests for default, and that the
second set had been accepted. Subsequently, a hearing was set for the prove up of
damages.
Prior to the hearing, Miller submitted a lengthy declaration from one Kathleen
Marie Stevens, which purported to affirm the signature of Bernie on the letter supporting
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Miller’s claims. In her declaration, Stevens claimed to have been a former girlfriend of
Bernie but conceded he had obtained a restraining order against her. She claimed the
letter was authentic, but noted it was on Bernie’s “old” letterhead. She also conceded, in
discussing her claimed knowledge of the $1.7 million loan, that certain documents
claiming to show Miller’s interest in a company that money had been invested in were
“fabricated and/or fictitious.”
Miller also submitted his own declaration. In it he explained he had been a
paralegal and had worked for Bernie before he had been convicted and sentenced to a life
term under California’s “Three Strikes” law in 1998. He claims to have continued doing
paralegal work through 2009, “with knowledge of [Department of Corrections and
Rehabilitation] prison officials,” and attached billing statements and checks written by
Bernie to pay for some of those services, while detailing work occurring around 2006 to
2008. Miller further stated he had previously invested in a partnership and had been
bought out from that group in 2008 for $1.7 million, which funds he then entrusted to
Bernie to loan to Lolonis Winery. Miller acknowledged that an escrow closing statement
allegedly sent to him by a prior business partner and showing this investment “later
proved to be a fabrication.” Miller ultimately claimed the investment was never made,
but rather that Bernie kept the funds.
On December 11, 2012, the trial court issued its judgment after default hearing.
The trial court recounted the facts supporting the lawsuit, noting both that the “Escrow
Closing Statement” Miller claimed to have received was an acknowledged fabrication
and that Miller had previously filed a lawsuit in 2009 over the $48,000 paralegal fees that
had been dismissed. Relying on the letter submitted by Miller and his declaration, the
trial court entered a default judgment in the amount of $2,105,196.80.
Set Aside of Default and First Appeal
Shortly after the entry of default, Bernie moved to set aside the judgment on
grounds of fraud and a lack of notice. Bernie argued that service in the case was part of
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one extensive attempt to fraudulently obtain a default judgment. He alleged he had no
knowledge of the lawsuit until his brother informed him on November 25, 2012, that
papers about the default judgment had been sent to the brother’s house. Bernie further
disputed many aspects of the proof of service on Cyndy, noting that the condominium
complex he resides in does not match the descriptions given in several material ways,
including with respect to how parking spaces were numbered, how people would enter
the building, and the names of potential people residing in the building. And Bernie
asserted that no documents relating to the lawsuit had arrived at any of his properties
prior to his brother contacting him, despite several filings and notices allegedly being sent
there. Finally, Bernie submitted multiple declarations in support of his request.
One declaration came from Rodrigues concerning the first attempt at service.
Rodrigues worked as a reservationist at the complex where Bernie owns a condominium.
She stated she had received multiple calls asking if Bernie was present in Hawaii and told
the caller he had not been to that location in “quite some time.” The caller insisted
Bernie would arrive soon and asked if they could mail him something here. Rodrigues
stated that was possible, and later signed for an envelope “decorated in stickers and glitter
of whales, fish and shells,” which she then placed in a filing cabinet and left unopened
until November 26, 2012, when Bernie asked whether anything had been accepted for
him at that location.
Another declaration came from Cynthia Simoncini, the person alleged to be Cyndy
in the Lazarenko proof of service. Simoncini stated she had never gone by “Cyndy” but
had been known as Candy. She admitted to living with Bernie at the time service was
alleged but denied being served or meeting with Lazarenko at any point. Simoncini
stated she would have provided Bernie with any documents served on her as she knew he
was a lawyer and insisted she would never speak to a stranger in the terms Lazarenko had
described. Simoncini noted that the physical description given of her by Lazarenko did
not match her height or weight. Finally, Simoncini explained she had met Stevens,
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whom she called Miller’s fiancée, previously when Bernie was seeking a restraining
order and speculated Stevens had provided Miller with a description of her.
On February 22, 2013, following a hearing, the trial court set aside the default.
The trial court wrote that it found “Simoncini’s declaration credible” and that “if she had
been served with the paperwork she would have given the paperwork” to Bernie. The
court also found “it unusual that the proof of service is single spaced and fairly
controversial with reference to a proof of service with unnecessary detail.” Based on
these findings, the trial court concluded there was no “actual knowledge by … Bernie of
the summons and complaint in time to defend this action.”
On April 2, 2013, Miller appealed the trial court’s order to this court. In an
unpublished opinion dated October 10, 2014, this court affirmed the trial court’s ruling.
(Miller v. Bernie, Oct. 14, 2014, F067619.) This court wrote that while there was
conflicting evidence in the record, the trial court made a credibility finding that Bernie
lacked notice of the lawsuit and that there “was competent evidence sufficient to support
the trial court’s finding.”
Discovery, Dismissal, and Second Appeal
Upon remand, the case proceeded to pretrial matters and discovery. Relevant to
this appeal, Miller filed three discovery motions that were denied by the trial court.
The first motion, filed ex parte, sought to name Stevens as a “legal runner,
Assistant, and/or legal non-attorney representative,” purportedly to assist Miller with the
litigation. Stevens, who had since married Miller, was requested under the premise that
pro se attorneys could name individuals who were authorized to visit them to serve as
their legal runners under the applicable regulations.
The second motion sought an order to compel further compliance with a subpoena
issued to the Department of Corrections and Rehabilitation (CDCR) to produce
recordings of telephone conversations relating to Miller. In this motion, Miller
acknowledged that the relevant recordings had been provided to him in a format that
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required a computer to access. Noting that he could only possess a CD player, Miller
requested the recordings be reformatted and reproduced to him in a “useable” format.
The third motion sought an order compelling further compliance with a subpoena
issued to the CDCR through Pleasant Valley State Prison to produce visitor logs relating
to Miller. In response to Miller’s initial subpoena for such records, the CDCR provided a
declaration from a custodian of records stating that they did not maintain those specific
records. Miller argued this statement contradicted written policies on where the
documents should be stored and noted he had seen portions of the records in the
possession of a different officer.
The trial court denied each of these motions after holding a hearing on each. On
the first motion, the court’s confirmed at the outset that the CDCR was not a party to the
lawsuit and thus could only be compelled to act by mandamus. Miller, often overtalking
the court, then conceded the case law did not permit the court to appoint his wife as a
legal runner with respect to the CDCR. The court then explained to Miller that he would
need to go through the normal prison-side procedures to have a legal runner appointed.
In further discussions, it became clear that the normal process for appointing a runner
could take several months, and Miller wanted an advisory opinion from the court that
could assist with having Stevens appointed by the prison. The trial court refused to do
this.
The trial court heard the second and third motions at the same time. It denied the
second motion writing that “EIS[, the custodian of record for the CDCR,] already
fulfilled its legal obligation by producing the telephone call records in the form in which
they are ordinarily maintained and in a form that is reasonably useable, and EIS cannot
reproduce the recordings in the format requested by Miller.” The court denied the third
motion noting “Pleasant Valley State Prison is not the proper custodian of records for
Miller’s visiting records.” At the hearings on these motions, the CDCR explained to the
court that the visitor log files would be kept at Miller’s current prison, that no regulation
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required them to be kept where Miller argued they were, that the CDCR would work with
Miller to help him understand who to ask for the records, that they had produced the
audio files in the format they were kept, and that they had no software that would convert
the files to another format. The court accepted these representations in denying the
motions.
In addition to the proceedings on these motions, Bernie sought to dismiss the
action against him on the ground the trial court could not permit the action to proceed
unless it determined the lawsuit was a bona fide action. The trial court ultimately granted
this motion, dismissing Miller’s action, and Miller appealed.
In an unpublished opinion, this court reversed the dismissal. (Miller v. Bernie,
June 15, 2018, F073153.) In the course of the opinion, this court recounted many of the
facts presented by both sides regarding the case, noting Miller’s claims that he had not
been paid for paralegal work and had loaned Bernie an alleged $1.7 million that had been
improperly diverted, along with Bernie’s claims that all of the relevant documents
regarding the purported loan were fabricated and that the paralegal work claims were
barred both by statute of limitation and regulatory hurdles. This court then looked at the
nature of Bernie’s motion to dismiss, lacking in any statutory authority, and determined it
was an improper speaking motion to dismiss, a form of motion that had been statutorily
eliminated by the summary judgment statutes.
Having reached this conclusion, this court explained that the appeal exemplified
the reasons for the current summary judgment proceedings, focusing on the limited
briefing schedule and the deluge of evidence presented to the trial court in the course of
the motion. Concluding that the record contained “triable issues of material fact” and
that Bernie “did not follow the proper procedures for bringing a motion for summary
judgment,” which is how it should have treated the motion to dismiss, this court reversed
the order dismissing the action.
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Following this conclusion, the opinion extensively considered whether the rules
are different for a prisoner-plaintiff. Reviewing the case law, this court found there were
some circumstances where an indigent prisoner-plaintiff may be required to demonstrate
the existence of a bona fide action in order to obtain supplemental services necessary to
ensure access to the courts. However, such circumstances would not warrant a minitrial
on the plaintiff’s evidence but would focus upon the evidence presented in the light most
favorable to the plaintiff. Finally, this court dismissed the argument the court could
dismiss the action as frivolous because that argument had not been properly raised in the
briefing or raised below.
Remittitur and Cost Motions
Given the trial court’s order dismissing the case was reversed, the matter was
remanded to the trial court for further proceedings. On June 26, 2018, the trial court
entered a notice of hearing after remittitur, scheduling the hearing for August 6, 2018. In
response, Miller attempted to file a memorandum of costs related to the costs awarded to
him in the prior appeal. This filing, however, was rejected based on a faulty proof of
service. On July 24, 2018, Bernie filed a motion to strike Miller’s request for costs,
arguing the request was prematurely filed. On July 30, 2018, the court vacated the
scheduled hearing after remittitur, noting it was prematurely set in error. On August 30,
2018, the remittitur issued, and a new hearing was scheduled for September 21, 2018.
Shortly thereafter, on September 10, 2018, the trial court granted Bernie’s motion to
strike the costs filing that had been rejected by the clerk’s office. The order shows that
Miller did not appear for the telephonic hearing which occurred on August 21, 2018,
prior to the remittitur issuing.
Separately, on or around September 1, 2018, Miller filed a memorandum of costs,
seeking $6,313.83 in appellate costs. Bernie filed motions to tax the requested costs on
the ground Miller did not actually incur the majority of them and to apply any award to a
lien Bernie held against Miller. Following a hearing, the trial court struck all but $593.60
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associated with “the preparation of the relevant reporter’s transcript” and granted the
motion to apply that sum against the lien.
The Vexatious Litigant Motions, Rulings, and Present Appeal
On May 6, 2019, Bernie filed two related motions seeking to have the court
declare Miller a vexatious litigant, determine he had no reasonable probability of success
on the merits, and order Miller post a security to proceed. Bernie’s argument focused on
the litigation history detailed above, contending Miller frivolously attempted to obtain a
default judgment through improper service, fabricated documents, and pursued an
unmeritorious appeal, before engaging in unmeritorious and frivolous discovery
proceedings, and ultimately filing unmeritorious and frivolous costs requests. Miller
opposed the request. Following a hearing, the trial court granted Bernie’s motions.
The trial court’s written order determined that Miller qualified as a vexatious
litigant under section 391, subdivision (b)(3). The court reached this determination by
concluding Miller had “filed eight frivolous motions, pleadings and other papers without
colorable merit.” The court stated these filings were “frivolous based on fabricated
proofs of service, and litigation tactics, for ulterior motives to defraud and harass Mr.
Bernie and/or the [CDCR].” The court then looked at the eight filings individually. On
the first, the court found Miller filed a “case management conference statement and asked
for an entry of a default judgment based on a defective proof of service” to “fraudulently
later obtain a default judgment.” The court found this frivolous because the service was
purportedly made in Hawaii “while Mr. Miller knew that [Bernie] did not live in Hawaii,
as shown through deceptive phone calls to a reservationist .…” The second, the
fabricated proof of service, was a filing the court called “a glaring fabrication” and “a key
pin to the lawsuit.” The court specifically noted its conclusion that “Miller fabricated this
proof of service” in part because of the unique nature of the proof of service and the
court’s conclusion “that the font on that proof of service appeared to be from Mr. Miller’s
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typewriter.” Similarly, the court considered Miller’s pursuit of the first appeal to be part
of this fraudulent service of process issue.
The fourth, fifth, and sixth filings were the three discovery motions following the
first appeal. The court called the request for a legal runner to be “unmeritorious and
frivolous” in part “because [Miller] knew the Court had no personal jurisdiction over the
CDCR due to his failure to serve a subpoena or Writ of Mandate.” The court called both
the request for phone records and the request for visitation records “unmeritorious”
because “the code relating to record production is quite clear with respect to the form in
which those recordings would be produced” and because “the custodian stated under oath
that he did not have those visitation records in his possession.”
The seventh and eighth filings were the two cost requests. The court called the
first “unmeritorious” because it was “premature in that it was filed prior to the issuance
of the remittitur” and resulted in “Bernie having to defend that.” The eighth was found
“unmeritorious” based on the large difference between the costs requested and those
awarded.
Having determined Miller to be a vexatious litigant, the trial court next determined
there was “no reasonable possibility” that Miller would prevail in the action against
Bernie. The court noted it was permitted to weigh the evidence in the case when making
this determination before identifying three reasons why the case was not likely to be
successful. Two of the reasons for the court’s findings were based on procedural hurdles.
First, the trial court concluded Miller’s claims were likely barred by the statute of
limitations. The court noted the alleged paralegal work was completed in 2005 and 2006,
but the complaint was not filed until 2012, well beyond the four-year statute of
limitations for oral or written contracts. Second, the court found that Miller was a
prisoner at the time of the alleged work and thus was barred from enforcing any
agreement for payment under section 3924, subdivision (a) of Title 15 of the California
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Code of Regulations, which requires permission from the warden for any inmate to
perform paid work.
The third reason was more substantive. Extensively discussing the evidence it
relied upon, the trial court concluded that “the documents underlying the lawsuit” were
“fabricated.” Looking at key evidence supporting Miller’s claims, the court found many
problems. First, it concluded the key evidence supporting Miller’s claim, a letter
purportedly sent from Bernie to Miller on June 17, 2010, was “a forgery.” The court
noted that the letter referenced a June 15, 2010 phone call and that subpoenaed records
from that date included one 14-minute phone call from that date. However, the transcript
of that call contained no discussion of any debt owed to Miller regarding paralegal fees.
The court further noted that a forensic examiner had examined the letter memorializing
the purported June 15, 2010 call and, as the court put it, “He didn’t state it in those terms,
but the Court has made an inference based on his statement and his findings that the
letter, in fact, was a forgery.”3 Continuing on, the court found the “envelope that Mr.
Miller allegedly received the letter in was, in fact, an envelope that Mr. Miller received
from Lolonis Winery containing a book of stamps and regular envelopes.”4 Wrapping up
the forgery analysis, the court expressed its view that the “forgery is very apparent when
3 The actual declaration from the examiner in the record, who looked at several signatures
for comparison, states the signature on the letter “pictorially resembles some of the obvious
handwriting features that are present in the K-1 through K-12 genuine signatures of Kevin F.
Bernie; However, any real similarity ends there.” The examiner continues by stating, “[T]here
are numerous differences present between the questioned and known signatures which strongly
indicate that the writer of the questioned signature made an effort to imitate the obvious
uppercase ‘K’ and uppercase ‘F,’ which were carelessly simulated.” The examiner concludes,
“[T]here still is sufficient evidence present for me to positively conclude that the questioned
signature is not the normal or genuine signature of Keven F. Bernie when compared with the K-1
through K-12 signatures. Rather, there was an attempt by an individual to imitate the genuine
signature of Kevin F. Bernie.”
4 This was based on declarations submitted to the court explaining Lolonis Winery would
often send such envelopes to Miller and additional phone recordings from June 17, 2010, where
Miller asked for a book of stamps and regular envelopes.
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compared to the proof of service with respect to the service of Mr. Bernie. And that is
the proof of service allegedly authored by Sergey Lazarenko, which was used in support
of a default judgment.”
The court then briefly looked at the possibility Miller had loaned $1.7 million to
Bernie. The court noted it “proved out to be that [Miller] did not have the $1.7 million.”
The court pointed to Miller’s admission that the escrow statement suggesting he had the
money was an admitted forgery and that phone records were subpoenaed from Pleasant
Valley State Prison which showed “there was never a telephone conversation with
Lolonis Winery about Mr. Miller investing in this partnership of Lolonis Winery and
receiving $1.7 million from Mr. Miller.”
Based on these findings the court ordered Miller to post a security in the amount
of $265,000 to proceed with the litigation.5 In addition, at the hearing on these motions,
the court stated it was “going to issue a prefiling order under … 391.7.” This order was
entered March 3, 2020. Miller did not pay the required security and his case was
eventually dismissed.
Miller timely appealed the order declaring him a vexatious litigant and requiring
he provide security to proceed. We construe that notice to also include the prefiling
order, which was ordered prior to the appeal, but not entered until after, and was part of
Miller’s previously granted request to file this litigation as required under the vexatious
litigant statutes.
DISCUSSION
Basis for the Vexatious Litigant Statutes
There are various permeations of the explanation for California’s vexatious litigant
statutory scheme. Our Supreme Court has explained that “[t]he vexatious litigant statutes
(§§ 391–391.7) are designed to curb misuse of the court system by those persistent and
5 Miller has dropped any argument the amount of the security was an abuse of discretion, a
point upon which we reach no conclusions.
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obsessive litigants who, repeatedly litigating the same issues through groundless actions,
waste the time and resources of the court system and other litigants.” (Shalant v. Girardi
(2011) 51 Cal.4th 1164, 1169 (Shalant).) Another court recounted: “ ‘ “The purpose of
the statutory scheme is to deal with the problem created by the persistent and obsessive
litigant who has constantly pending a number of groundless actions, often against the
judges or other court officers who decide or were concerned in the decisions of previous
actions adversely to him.” ’ ” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 634
(Golin).) Curbing such abuses was deemed necessary because such “ ‘ “abuse of the
system not only wastes court time and resources but also prejudices other parties waiting
their turn before the courts.” ’ ” (Id. at p. 635.) “ ‘Since fewer sanctions are available
against a pro per litigant, the power to declare him vexatious becomes an important tool
for the courts to manage their dockets and prevent frivolous claims.’ ” (Shalant, supra,51 Cal.4th at p. 1176.)
The statutes contain “two distinct and complementary sets of remedies. In
pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if
the plaintiff has no reasonable probability of prevailing, ordered to furnish security. If
the plaintiff fails to furnish the security, the action will be dismissed. [Citation.] In
addition, a potential defendant may prevent the vexatious litigant plaintiff from filing any
new litigation in propria persona by obtaining a prefiling order and, if any new litigation
is inadvertently permitted to be filed in propria persona without the presiding judge’s
permission, may then obtain its dismissal.” (Shalant, supra, 51 Cal.4th at p. 1171, italics
added.)
The first remedy arises out of sections 391.1 through 391.6, while the second
arises out of section 391.7. Both remedies share the foundational requirement of
identifying a vexatious litigant if the court is to implement them. Under section 391.1,
any motion seeking an order requiring security to proceed “shall be based upon the
ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there
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is not a reasonable probability that he or she will prevail in the litigation against the
moving defendant.” Under section 391.7, “[i]n addition to any other relief provided” in
the statutory scheme, 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.” (§ 391.7, subd. (a).)
Standard of Review and Applicable Law
A vexatious litigant is defined as one satisfying one of four tests, of which only the
third is applicable to this case. Under that test, a vexatious litigant is one 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).)
This test has been considered disjunctive by prior courts, looking at whether the plaintiff
satisfied any of the listed courses of conduct individually, either by repeatedly filing
unmeritorious motions, by conducting unnecessary discovery, or by engaging in frivolous
litigation tactics. (Golin, supra, 190 Cal.App.4th at pp. 638–639.) The term “repeatedly”
has been construed to refer “to a past pattern or practice on the part of the litigant that
carries the risk of repetition in the case at hand.” (Holcomb v. U.S. Bank Nat. Assn.
(2005) 129 Cal.App.4th 1494, 1505 (Holcomb).) The term “frivolous” has been
construed to include actions “ ‘(A) totally and completely without merit or (B) for the
sole purpose of harassing an opposing party’ ” as well as “a ‘ “ ‘flagrant abuse of the
system,’ ” ’ having ‘ “no reasonable probability of success,” ’ or lacking ‘ “reasonable or
probable cause or excuse.” ’ ” (Golin, supra, 190 Cal.App.4th at p. 639, fn. 29.)
“At the hearing upon the motion the court shall consider any evidence, written or
oral, by witnesses or affidavit, as may be material to the ground of the motion.”
(§ 391.2.) “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
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criteria and whether the litigant has a reasonable probability of prevailing.” (Goodrich v.
Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265 (Goodrich).)
The “normative conclusion that, in any litigation, the plaintiff has engaged in
‘unnecessary’ discovery or ‘other tactics that are frivolous or solely intended to cause
unnecessary delay’ ” is an evaluative function that requires the trial court to weigh the
evidence. (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786
(Moran).) Where evidence on the relevant issues is conflicting, “ ‘ “It is for the trial
court to weigh the evidence and its finding, based upon substantial conflicting evidence,
is in this as in every civil case binding upon the appellate court.” ’ ” (Id. at pp. 784–785.)
Of course, “[a]ny determination that a litigant is vexatious must comport with the intent
and spirit of the vexatious litigant statute.… Therefore, to find that a litigant is vexatious,
the trial court must conclude that the litigant[’]s actions are unreasonably impacting the
objects of [the] appellant’s actions and the courts as contemplated by the statute.”
(Morton v. Wagner (2007) 156 Cal.App.4th 973, 970–971 (Morton).)
Accordingly, we “review the trial court’s order declaring a party to be a vexatious
litigant for substantial evidence. [Citation.] We are required to presume the order
declaring a litigant vexatious is correct and imply findings necessary to support that
designation. [Citation.] A reversal is required only where there is no substantial
evidence to imply findings in support of the vexatious litigant designation.” (Goodrich,
supra, 246 Cal.App.4th at pp. 1265–1266.) “Likewise, a court’s decision that a vexatious
litigant does not have a reasonable chance of success in the action is based on an
evaluative judgment in which the court weighs the evidence. If there is any substantial
evidence to support the court’s determination, it will be upheld.” (Golin, supra,
190 Cal.App.4th at p. 636.)
Substantial Evidence Supports the Vexatious Litigant Finding
The trial court’s order in this case determined Miller was a vexatious litigant under
section 391, subdivision (b)(3) based on the fact he had “filed eight frivolous motions,
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pleadings and other papers without colorable merit.” The court found these filings
frivolous or meritless “based on fabricated proofs of service, and litigation tactics, for
ulterior motives to defraud and harass .…”
Miller spends significant effort breaking apart the various filings discussed by the
trial court and attempting to demonstrate that there is no substantial evidence on an
individual basis to conclude that any filings were frivolous or otherwise filed for an
improper purpose. We do not agree. Indeed, upon review of the record, we conclude
there is more than enough evidence for the trial court to determine Miller engaged in
frivolous litigation tactics, specifically through the use of fraudulent service documents to
obtain a default judgment. Miller’s arguments to the contrary generally seek to impose
additional burdens on Bernie and the trial court to specifically prove Miller’s intent on a
filing-by-filing basis or have this court weigh the evidence submitted independently and
agree with Miller that it does not demonstrate an intent to “harass, annoy, burden
financially, or cause undue distress” to Bernie.6 But there is no basis for this court to do
so. The statutory scheme permits a global finding of vexatious litigation tactics that does
not turn on “individual unmeritorious filings.” (Golin, supra, 190 Cal.App.4th at p. 639.)
It is this global analysis that we review when considering whether substantial evidence
supports the trial court’s ruling.
Looking at the record, we conclude substantial evidence exists upon which the
trial court could conclude that Miller fabricated the Lazarenko proof of service and failed
to inform Bernie of the lawsuit against him until after a default judgment was entered.
On this point, Bernie submitted declarations from himself and Simoncini regarding notice
of the lawsuit and the allegations made in the Lazarenko proof of service. In setting aside
6 Because this court affirms the trial court’s finding on the basis of frivolous tactics, we
need not specifically reach the alternative potential bases of multiple unmeritorious filings or
unnecessary discovery. We specifically note in this context that our conclusion here does not
touch on whether Miller’s cost filings constitute an independent basis for the trial court’s rulings.
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the default, the trial court specifically concluded that Simoncini’s declaration that she had
not, in fact, been served in the case was credible. Further, additional evidence in the form
of contradictions between statements made by Lazarenko about the building and people
he encountered in the declaration and the actual facts regarding the building and the
people present at the site as detailed in Bernie’s declaration support the conclusion that
Simoncini was not actually served.
That Miller’s actions were part of a broader frivolous litigation tactic is then
further supported by the declaration submitted by Rodrigues detailing the deceptive
attempt to serve Bernie in Hawaii. Although Miller contends that his later filing of case
management conference statements cannot support the vexatious litigant finding because
Bernie had not yet appeared and the filings were required by court rules, it is not the just
the filings that are relevant but also the underlying actions in attempting to serve Bernie
in a location he was not residing and through potentially deceptive phone calls and
mailings in order to seek a default. The court could readily rely on these record facts to
conclude Miller’s actions were frivolous, as fraudulent proofs of service “qualify as
substantial evidence of frivolous tactics in that such conduct is a flagrant abuse of the
system.” (Golin, supra, 190 Cal.App.4th at p. 640.) That Miller then pursued his
improperly obtained default judgment through an appeal and lost further solidifies the
trial court’s implied conclusion that Miller was acting in a manner that warranted
application of the vexatious litigant statutes because he was “unreasonably impacting the
objects of [Miller]’s actions and the courts as contemplated by the statute.” (Morton,
supra, 156 Cal.App.4th at p. 971.)
Miller contends on appeal that Bernie waived any right to seek relief under the
vexatious litigant statutes by waiting until this case had proceeded for many years, and
through multiple appeals, to raise the issue with the trial court. Miller argues the delay
was prejudicial because the time delay meant multiple judges ruled on different aspects
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of the case. Miller also argues that the lack of any prior judge sanctioning Miller affirms
his claim of prejudice in the delay. We do not agree.
It is true that attempting to rely on cold docket sheets, particularly when
referencing actions in prior cases, can render it “impossible to discern whether the
particular motion was completely meritless, or made for an improper purpose.”
(Holcomb, supra, 129 Cal.App.4th at p. 1506.) But that is not the case here. Bernie
could rely not just on ultimate rulings listed in a docket, but also on direct evidence in the
form of declarations submitted in the pending case and written rulings from the trial court
that considered those declarations supporting Bernie’s positions. There is also no
indication that the trial court in this case was in any worse position than any other court
to make the relevant vexatiousness determination. And there is no history of motions for
sanctions being denied. (See ibid. [court in prior litigation had considered same evidence
and rejected vexatious litigant request].) Although Miller notes he has not been
previously sanctioned, he points to no law which requires such conduct before the trial
court can conclude that a party’s overall litigation tactics are frivolous. (See Shalant,
supra, 51 Cal.4th at p. 1176 [“ ‘Since fewer sanctions are available against a pro per
litigant, the power to declare him vexatious becomes an important tool for the courts to
manage their dockets and prevent frivolous claims.’ ”].)
Nor is any purported delay in seeking the vexatious litigant ruling inappropriate.
Not only does section 391, subdivision (b)(3) “not specify either a timeframe or quantity
of actions necessary to support a vexatious litigant finding,” but the broader statutory
scheme states that a motion can be filed “at any time until final judgment is entered.”
(Morton, supra, 156 Cal.App.4th at p. 971; § 391.1.) Moreover, even if delay was a
defense, the facts of this case do not imply there was an improper delay. Bernie has filed
only one motion seeking relief and has done so in the case in which Miller’s conduct
occurred. Moreover, Bernie’s filing came only after more direct attempts at resolving the
alleged underlying fraud in the case were unsuccessful. While Bernie’s motion could
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have been filed earlier, this court sees no reason why Bernie cannot muster a fuller
evidentiary record before filing, particularly where issues of fraud and overall litigation
tactics are concerned.
Ultimately, the trial court was in a position to review the full record of the case
and weigh the potentially competing evidence regarding whether Miller qualified as a
vexatious litigant under the statutory scheme. Although Miller may disagree with the
trial court’s factual findings, upon review we find no basis to conclude they were
unsupported by substantial evidence. Indeed, the record contains a flood of evidence
indicating that Miller is exactly the type of litigant that the vexatious litigant statutes seek
to control—one that will engage in a decade long litigation founded on multiple attempts
to fraudulently obtain a default judgment and containing a multitude of potentially
meritless filings. Accordingly, as the trial court is entitled to consider and weigh the
evidence presented to it, and we are bound to affirm that balancing if properly supported,
we affirm the trial court’s vexatious litigant finding and its later issuance of a prefiling
order. We next turn to whether the trial court properly imposed a security requirement
upon a finding that Miller lacked a reasonable probability of success on the merits.
Substantial Evidence Supports the Finding of No Reasonable Probability of Success
The trial court determined Miller had no reasonable probability of success on the
merits based on its analysis of both legal and factual hurdles facing the case. From a
legal standpoint, the court concluded that Miller could not overcome the relevant statute
of limitations or certain controlling regulations with respect to his claims for paralegal
fees. From a factual standpoint, the court concluded Miller could not demonstrate he
ever loaned $1.7 million dollars to Bernie. Relevant to all of these determinations was
the court’s conclusion that the core evidence Miller submitted with his complaint—a
purported letter from Bernie—was fabricated.
The evidence supporting these conclusions was certainly substantial and the legal
conclusions the court drew from them were sound. With respect to the paralegal work,
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the court pointed to evidence in the record that the alleged paralegal work was completed
in 2005 and 2006, but the complaint was not filed until 2012, well beyond the two-year
statute of limitations for oral contracts and the four-year statute of limitations for written
contracts. (§§ 337, 339.) The court also noted that no evidence presented demonstrated
the warden of any of Miller’s prisons had granted him permission to engage in business
activities. As Bernie notes, without such permission, Miller’s alleged contract is
unenforceable. (See Homani v. Iranzadi (1989) 211 Cal.App.3d 1104, 1109 [“ ‘ “The
general principle is well established that a contract founded on an illegal consideration, or
which is made for the purpose of furthering any matter or thing prohibited by statute, or
to aid or assist any party therein, is void.” ’ ”]; see also Manning v. Bunnell (E.D.Cal.
May 23, 2013, No. 2:12-cv-2440 MCE AC P) 2013 U.S.Dist. Lexis 74098, 49 [“The
undersigned agrees with defendants that because Manning is a prisoner and barred by the
regulation from conducting business and profiting from his writing, he can have no
legally-enforceable contractual rights or expectation of prospective economic advantage
in relation to the publication of his books”].)
With respect to the $1.7 million loan to Bernie, the court pointed to the fact that
Miller could not demonstrate he ever had that amount of money, and that the only
document implying such funds ever existed was admitted by Miller to be a forgery. The
court also pointed to the June 15 phone call purporting to memorialize the debt, noting
“there was never a telephone conversation with Lolonis Winery about Mr. Miller
investing in this partnership of Lolonis Winery and receiving $1.7 million from
Mr. Miller.” The failure to have or lend the money would preclude a claim for recovery.
(See Pleasant v. Samuels (1896) 114 Cal. 34, 36–38 [to state a common count for money
lent, the plaintiff need only allege that the defendant is indebted in a certain sum for
money loaned by the plaintiff and that the defendant has not repaid the money]; Pike v.
Zadig (1915) 171 Cal. 273, 276 [to prevail on a common count for money had and
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received, the plaintiff must prove that the defendant is indebted to the plaintiff for money
the defendant received for the use and benefit of the plaintiff].)
Finally, with respect to all claims, the court noted that the primary evidence Miller
relied upon to prove his case was the purported letter from Bernie confirming the debts
owed. The court reviewed the evidence submitted regarding that letter and concluded it
was a forgery. In doing so, the court pointed to substantial evidence in the record
including transcribed phone calls that did not mention the debt, forensic examinations
that found Bernie’s signature to not be authentic, a comparison of the letter with the
Lazarenko proof of service, another perceived forgery, implying both were created by the
same person, and evidence explaining how Miller came into possession of the documents
needed to forge the letter. All of this evidence was before the trial court and the court’s
factual findings regarding the weight and veracity of that evidence is well within its
discretionary authority. (See Golin, supra, 190 Cal.App.4th at p. 636 [“Likewise, a
court’s decision that a vexatious litigant does not have a reasonable chance of success in
the action is based on an evaluative judgment in which the court weighs the evidence. If
there is any substantial evidence to support the court’s determination, it will be
upheld.”].)
Despite the presence of this evidence, Miller argues the trial court could not weigh
the evidence and find Miller lacked a reasonable probability of success. Miller argues
that the law of the case, as detailed in the second prior appeal, prevents any factual
conclusions that he lacks a reasonable probability of success. Additionally, Miller argues
the record in this case shows the trial court abused its discretion by relying upon the
overturned order underlying the second appeal in concluding Miller lacked a probability
of success. Neither contention is availing.
Under the law of the case doctrine, a decision made by an appellate court in an
action binds both trial and appellate courts in subsequent proceedings in that same case.
(Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) Thus, “[t]he rule of ‘law of the
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case’ generally precludes multiple appellate review of the same issue in a single case.”
(Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.) “The doctrine, as the name
implies, is exclusively concerned with issues of law and not fact.” (People v. Shuey
(1975) 13 Cal.3d 835, 842, overruled on other grounds in People v. Bennett (1998)
17 Cal.4th 373, 389–390, fn. 4.)
It is true that a ruling reversing summary judgment based on the existence of a
material issue of fact can trigger the law of the case. (See Yu v. Signet Bank/Virginia
(2002) 103 Cal.App.4th 298, 309–310, disapproved on other grounds in Newport Harbor
Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 646.)
However, the scope of the doctrine is limited to those legal issues necessarily decided and
does not bar subsequent consideration of similar issues under different legal standards.
(See Donohue v. State of California (1986) 178 Cal.App.3d 795, 801–802 [noting prior
determination that issues of fact precluded summary judgment did not prevent court from
later granting judgment on the pleadings].)
Miller’s arguments in this case seek to apply a standard that views all evidence in
the light most favorable to the opposing party and asks whether there are any material
issues of fact that must be tried to resolve the case to a situation where the trial court is
tasked specifically with weighing competing evidence and determining whether a
security is required because the vexatious litigant opposing the motion lacks a reasonable
probability of success on the merits. (See Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843 [describing summary judgment standards].) From the contrasting
standards alone, it is clear that any finding Miller has come forward with evidence upon
which a claim could be tried does not preclude the trial court from later weighing that
evidence under authority granted by the vexatious litigant statutes and concluding it fails
to show a reasonable probability of success on the merits. The legal findings in each
instance are simply different, meaning the law of the case does not limit the court’s
authority under these different standards.
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Miller’s argument fails for the additional reason that this court’s prior appellate
opinion did not rely upon any conclusion that Miller had satisfied the summary judgment
standards. Rather, this court found that the trial court had wrongly circumvented the
substantive and procedural safeguards afforded by the summary judgment statutes in
order to make factual findings that would not otherwise be appropriate if summary
judgment was utilized. The closest this court came to considering the evidence presented
in the context of the summary judgment standard was a concluding sentence in that
portion of the analysis where we wrote: “Because defendant did not follow the proper
procedures for bringing a motion for summary judgment, and because the evidence
indicated there were triable issues of material fact, defendant’s motion should have been
denied.” This one sentence recognition of conflicting evidence in the record was not
material to the decision given that the trial court’s failure to adhere to any aspects of the
summary judgment law constituted reversible error and, more importantly, was not a
legal conclusion as to the validity of any of the evidence presented by Miller.
Indeed, the entire point of this court’s analysis was that no such analysis of
conflicting facts could be done under a motion that had to be treated as a request for
summary judgment. As such, we find no merit in Miller’s assertion that this court
previously implicitly or explicitly ruled a trial is necessary to determine for all purposes
whether the statute of limitations applies, certain regulations preclude recovery, or
Miller’s core documents are fabricated. Nor do we find merit in Miller’s claim that
Bernie was required to present new evidence, not presented during the improperly
conducted summary judgment proceedings, to prevail. Rather, this court merely held that
the trial court could not make factual findings in the course of a motion that had to be
analyzed under the summary judgment rubric. Whether such an analysis could be
triggered by separate statutory authority was not before us, and we see no reason why an
issue of fact precluding summary judgment would bar a court from later considering
24.
whether one properly deemed a vexatious litigant had a reasonable probability of success
on the merits.
In a partially related argument, Miller contends the trial court abused its discretion
by relying on the order reversed in the second appeal in order to determine Miller lacked
a reasonable probability of success on the merits. Although Miller claims the trial judge
“is entitled to the ‘presumption’ that she properly performed her duties without bias,” he
claims this presumption is overcome by the fact the trial court was provided with a copy
of the prior motion in the briefing and made similar factual findings. We do not agree.
Nothing in the record suggests the trial judge disregarded her duties. Rather, it is
apparent that substantial thought and consideration went into the court’s ruling.
Regardless, this court reviews the judgment, not the court’s reasoning, upon appeal. (See
Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 769–770.) As
discussed extensively above, the record contains substantial evidence supporting the
court’s findings independent of any information contained in the contested order.
Motions for Judicial Notice and Sanctions
In the course of briefing this appeal, Miller filed two motions, one for judicial
notice and one for sanctions against Bernie. We deny both motions.
Miller’s motion for judicial notice requests this court take judicial notice of
multiple appellate and trial court documents and the unpublished appellate opinion from a
case called Semendinger v. California Department of Corrections and Rehabilitations
(January 31, 2012, F060472 [2012 Cal.App.Unpub. LEXIS 814]). Miller argues that
proofs of service used in that case are substantially similar to the Lazarenko proof
submitted in this case and that this similarity arises because Miller sent exemplars from
that case to Lazarenko. There is no dispute that these documents were not presented to
the trial court. Accordingly, we deny the request for judicial notice. (See Simmons v.
Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 366–367 [courts need not
take judicial notice of late discovered documents that could impeach or discredit a
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witness].) The documents are not relevant to the issues on appeal, namely whether
substantial evidence supported the trial court’s ruling.
Miller’s motion for sanctions asks this court to utilize its inherent authority to
penalize Bernie and his counsel for alleged “bad faith tactics” which include the
nonstatutory speaking motion reversed in the second appeal and the present vexatious
litigant motion, which Miller alleges violates the law of the case. Assuming this court
has authority to issue sanctions, we find no basis to do so. Miller obtained a sufficient
remedy in the prior appeal and Bernie’s filing of the vexatious litigant request has been
affirmed in this appeal.
DISPOSITION
The judgment is affirmed. Miller’s “Motion for Judicial Notice,” filed March 11,
2021, is DENIED. Miller’s “Motion for Issue, Evidence, or Monetary Sanctions,” filed
April 13, 2021, is DENIED. Costs are awarded to Bernie.
HILL, P. J.
WE CONCUR:
DETJEN, J.
MEEHAN, J.
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