Marriage of Deal ( 2020 )

Filed 2/24/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of
PATRICIA and THOMAS
DEAL.
PATRICIA DEAL, A154425
Respondent,
v. (Alameda County
THOMAS DEAL, Super. Ct. No. CH222312)
Appellant.
This is an appeal from trial court orders reaffirming a legal
determination first made in 2005 that appellant Thomas Deal is
a “vexatious litigant” within the meaning of Code of Civil
Procedure section 391 1 and requiring him to obtain permission
from the presiding judge before filing any new litigation or
motions in propria persona. 2 Thomas, proceeding in propria
persona for purposes of this appeal, contends these orders are
All statutory citations herein are to the Code of Civil
1
Procedure unless otherwise indicated.
2We refer to the parties by their first names for ease of
reference. (See In re Marriage of Green (1992) 6 Cal. App. 4th 584,
588, fn. 1.)
1
void, unenforceable and unsupported by substantial evidence.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent Patricia Deal filed a petition for the dissolution
of her marriage to Thomas in October 2001. A judgment
dissolving their marriage was entered in November 2002, and a
judgment on reserved issues such as property distribution was
entered in 2008.
In 2005, the trial court, with Commissioner Greg Oleon
presiding, determined on Patricia’s motion that Thomas was a
vexatious litigant and issued a prefiling order that prohibited
him from filing any new litigation or motion in propria persona
without first obtaining leave of the presiding judge of the court
where the litigation was proposed to be filed. 3 These decisions,
issued on July 29, 2005, stemmed from Thomas’s conduct and
filings in the marital dissolution proceedings, as well as in two
separate civil actions he filed against Patricia. Thomas was also
ordered to pay sanctions in the amount of $17,786 to cover the
attorney fees Patricia incurred to successfully defend the two civil
cases. We affirmed these orders in a nonpublished opinion filed
on January 16, 2007. (In re Marriage of Deal (Jan. 16, 2007,
A111281).)
3 Under section 391.7, subdivision (a), 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.”
2
Nearly a year after Commissioner Oleon’s vexatious
litigant and prefiling orders were entered, Thomas moved on
June 5, 2006, to have the commissioner disqualified under section
170.1. The court timely responded to and denied Thomas’s
challenge. On July 21, 2006, Thomas filed another section 170.1
challenge, to which the court failed to timely respond. Thomas
then filed a “ ‘Notice of Recusal by Default’ ” that was granted on
October 3, 2006. 4 Pursuant to the court’s order, Commissioner
Oleon was disqualified by reason of default from hearing this
matter further.
On November 19, 2007, notwithstanding his
disqualification, Commissioner Oleon reentered his previous
vexatious litigant and prefiling orders “effective nunc pro tunc
from 7/29/05.” Commissioner Oleon took this action because,
when entering his original orders in 2005, he neglected to file the
mandatory Judicial Council form MC-700. Over a decade later,
on February 10, 2018, Thomas complained to the presiding judge
of the Alameda County Superior Court regarding Commissioner
Oleon’s postdisqualification involvement in this case, prompting
the court to issue an order to show cause (OSC) on March 21,
2018, with respect to the following three issues: (1) whether the
court should vacate the vexatious litigant order of July 29, 2005;
(2) whether the court should vacate the Judicial Council form
MC-700 vexatious litigant order of November 19, 2007; and
4The trial court initially denied Thomas’s request to have
Commissioner Oleon recused by default but then granted it upon
reconsideration.
3
(3) whether the court should enter a new Judicial Council form
MC-700 vexatious litigant order. The parties were permitted to
file briefs with respect to each of these issues, and the matter was
set for hearing on April 12, 2018.
Prior to this hearing, Thomas sought permission to file two
new motions in propria persona, the first for a change of venue to
Amador County and the second for a long cause hearing
regarding his vexatious litigant designation. The court denied
Thomas’s requests on April 12, 2018, the same day the hearing
on the OSC took place.
Following the hearing, the trial court issued the orders
under challenge in this appeal—the first reaffirming the finding
that Thomas qualifies as a vexatious litigant (vexatious litigant
order) and the second imposing a prefiling order with respect to
his filing of any new motion or litigation in propria persona in
this matter (prefiling order). Thomas has timely appealed.
DISCUSSION
Thomas appears to have used the opportunity of this
appeal to make implicit threats against various members of the
California judiciary and State Bar. We decline to restate every
example of threat-making and intimidation set forth in Thomas’s
appellate briefs given their odious tone. We will, however,
identify one as representative of the whole. As stated in the
opening brief on appeal: “[D]espite my sincere prayer for relief by
the Court, I am also praying for a higher authority to cause a well
timed avalanche that kills the majority of a certain judges [sic]
family, or a tree branch that breaks the neck of the young boy in
4
the front yard, or a drunk driver tee bones [sic] the right side
door at high speed while the daughter is returning from her
senior prom. Each of these would be, of course, ‘accidents’ and
can cause a great deal of grief, but never cause the misery that
knowledge that the injuries were caused intentionally by a well
connected attorney, [name][ 5], his confederates, [names], caused
to me as they harmed my children for their own benefits.”
We do not take lightly Thomas’s use of the appellate
process to threaten, however implicitly, our state’s lawyers and
judges. Thomas clearly considers himself aggrieved by our
judicial process. That is no excuse, however, for resorting to this
sort of menacing language, which has no place in our courthouses
or communities. It degrades our institution while also wasting
its valuable resources. For this reason, we hereby warn Thomas
any further abuse of our process will result in an order of
sanctions against him. (See Flores v. Georgeson (2011) 191
Cal. App. 4th 881, 887 [a “court has inherent power, upon a
sufficient factual showing, to dismiss an action ‘ “shown to be
sham, fictitious or without merit,” ’ ” and to impose sanctions,
“ ‘ “in order to prevent abuse of the judicial process” ’ ”]; Kinney v.
Clark (2017) 12 Cal.App.5th 724, 740 [“ ‘California’s Constitution
provides the courts, including the Courts of Appeal, with inherent
powers to control judicial proceedings. [Citations.] To the same
effect, Code of Civil Procedure section 128, subdivision (a)(8)
5 In his brief, Thomas directs this hostile diatribe at six
specific attorneys and members of the bench in Alameda County.
Respecting the privacy of these individuals, we decline to name
them here.
5
authorizes every court “[t]o amend and control its process and
orders so as to make them conform to law and justice” ’ ”].)
Turning now to the merits, Thomas has raised the
following issues for our consideration: (1) Are the trial court’s
vexatious litigant order and prefiling order of April 17, 2018, void
because the original vexatious litigant and prefiling orders of
July 29, 2005, are void given they were entered by a disqualified
commissioner? (2) If not void, are the April 17, 2018 orders
nonetheless unenforceable because Thomas, as a nonplaintiff,
cannot be designated a vexatious litigant? (3) Are the orders
unsupported by substantial evidence? We address each issue in
turn after laying out the governing legal framework. 6
“The vexatious litigant statute (§ 391 et seq.) was enacted
‘ “to curb misuse of the court system” ’ by ‘ “persistent and
obsessive” litigants.’ [Citation.]” (Thompson v. Ioane (2017) 11
Cal.App.5th 1180, 1198 (Thompson).) Relevant here, a
6 Thomas raises a host of other issues not properly before
this court, including (but not limited to) whether this court
denied him due process when dismissing several of his past
appeals (most recently in 2014) and denying his motions for
reconsideration and request for permission to file a writ petition
(also most recently in 2014); whether Patricia’s former attorney
engaged in “witness tampering” or witness threatening when
representing her in the dissolution proceedings over a decade ago;
and whether the bench of the Alameda Superior Court has
collectively abused its power or committed other alleged acts of
judicial misconduct during the course of these proceedings.
Because these issues are not within the scope of Thomas’s notice
of appeal or otherwise properly before this court, we decline to
consider them. (In re Marriage of Rifkin & Carty (2015) 234
Cal. App. 4th 1339, 1347; Garcia v. Rehrig Internat., Inc. (2002) 99
Cal. App. 4th 869, 876.)
6
“ ‘[v]exatious litigant’ ” is one who, proceeding in propria persona,
“repeatedly relitigates or attempts to relitigate” matters already
finally determined against them or “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”
(inter alia). (§ 391, subd. (b)(2), (3).) “ ‘Litigation’ ” for purposes
of section 391 means “any civil action or proceeding, commenced,
maintained or pending in any state or federal court.” (§ 391,
subd. (a).) A vexatious litigant may be prohibited from filing new
litigation unless he or she obtains leave to do so from the
presiding justice or judge of the court where he or she intends to
file. (Wolfgram v. Wells Fargo Bank (1997) 53 Cal. App. 4th 43,
48–49; § 391.7, subd. (a).) This 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.” (Bravo v. Ismaj (2002)
99 Cal. App. 4th 211, 221–222.)
Both parties acknowledge Thomas is entitled to bring this
appeal without prior approval from the presiding justice and
without a showing of a reasonable probability that his appeal has
merit notwithstanding his designation in the trial court as a
vexatious litigant because Thomas did not initiate this action
below. 7 (See John v. Superior Court (2016) 63 Cal. 4th 91, 99
7 Our record reflects Thomas has filed no less than nine
appeals and two writs in our court, three of which resulted in
affirmances in favor of Patricia, one of which was dismissed for
failure to designate a record on appeal, and seven of which were
7
[“the language of the vexatious litigant statute indicates that the
prefiling permission requirement applies to appeals by plaintiffs,
not to parties who did not initiate the action in the trial court”].)
While an order declaring a person to be a vexatious litigant is not
itself appealable (People v. Harrison (2001) 92 Cal. App. 4th 780,
785, fn. 6), such order may be reviewed “in conjunction with an
appeal from some subsequent otherwise appealable judgment or
order.” (In re Bittaker (1997) 55 Cal. App. 4th 1004, 1008.)
Relevant here, an order requiring a person to obtain permission
from the presiding judge or justice before filing “new litigation” in
propria persona (§ 391.7) is injunctive in nature and therefore
appealable under section 904.1, subdivision (a)(6). (Luckett v.
Panos (2008) 161 Cal. App. 4th 77, 90.) Accordingly, we turn to
the specific issues raised on appeal.
I. Are the April 17, 2018 vexatious litigant order and
prefiling order void?
The original orders designating Thomas a vexatious
litigant and imposing a prefiling order with respect to any new
litigation or motion filed in propria persona were issued on
dismissed based on our finding that Thomas was a vexatious
litigant unable to demonstrate a reasonable probability that his
appeal had merit. (Deal v. Deal (Feb. 18, 2005, A105221 [nonpub.
opn.]); In re Marriage of Deal (Jan. 16, 2007, A110256, A111281
[nonpub. opns.]); Deal v. Deal (Aug. 10, 2006, A114364
[dismissed]); Deal v. Deal (Sept. 3, 2008, A122217 [dismissed]);
Deal v. Deal (April 21, 2009, A124050 [dismissed]); Deal v. Deal
(July 28, 2009, A124577 [dismissed]); Deal v. Deal (June 15,
2010, A128225 [dismissed]); Deal v. Deal (Aug. 8, 2014, A142556
[dismissed]); Deal v. Deal (May 20, 2014, A141764 [dismissed]);
Deal v. Deal (Sept. 9, 2009, A126043 [permission to file writ petn.
denied].)
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July 29, 2005. According to Thomas, these orders are void
because the judicial officer who issued them, Commissioner
Oleon, was later disqualified from the case by default. Based on
this reasoning, Thomas contends the orders now challenged on
appeal—those entered on April 17, 2018—are void because the
trial court merely “ ‘re-issued’ ” the purportedly void 2005 orders.
We reject this reasoning.
The only orders presently before this court on appeal are
the April 17, 2018 orders declaring Thomas a vexatious litigant
(§ 391) and prohibiting him from filing any new motion or
litigation in propria persona without permission from the
presiding justice or judge (§ 391.7.) Whether the July 29, 2005
orders are void is a separate issue not determinative of whether
the April 17, 2018 orders are valid. As explained above (ante, pp.
2–3), the April 17, 2018 orders arose from the OSC issued by the
court on March 21, 2018. The parties filed briefs with respect to
each issue raised in the OSC and appeared at the April 12, 2018
hearing to argue these issues before the trial court rendered its
decisions. Thomas provides no evidence or reasoned argument to
prove the court’s actions were void or voidable. He merely points
to language in the court’s written order of April 17, 2018, that it
was “reaffirm[ing]” the previous vexatious litigant findings and
prefiling orders from 2005 and 2007. Contrary to Thomas’s
suggestion, the court’s wording alone does not establish it merely
“rubber stamped” those earlier findings and orders rather than
discharge its duty to consider and decide the issues raised in the
OSC on their own merits. We decline to presume otherwise in
9
the absence of actual evidence. (See Schwartz v. Poizner (2010)
187 Cal. App. 4th 592, 599 [on a silent record and absent evidence
to the contrary, a reviewing court will presume the trial court
complied with its official duty to determine the matter at hand];
Evid. Code, § 664 [“It is presumed that official duty has been
regularly performed”].) Accordingly, we reject Thomas’s claim
that the April 17, 2018 orders are void.
II. Can a nonplaintiff be designated a vexatious
litigant?
Thomas next contends that as a matter of law he cannot be
designated a vexatious litigant because he has never been the
“plaintiff” or the “petitioner” in these proceedings; he has been
only the respondent to Patricia’s dissolution-of-marriage petition
and the appellant on appeal. His argument hinges on our
interpretation of the vexatious litigant statute, section 391.
We follow the plain meaning of a statute where its
language is clear and unambiguous unless “ ‘to do so would
“frustrate[] the manifest purposes of the legislation as a whole or
[lead] to absurd results.” ’ [Citation.]” (Thompson, supra, 11
Cal.App.5th at p. 1199.) “Section 391 defines ‘vexatious litigant’
as ‘a person,’ not a plaintiff, whose litigation history contains
particular behaviors (e.g., repeated attempts to relitigate (subd.
(b)(2))). . . . [¶] . . . Section 391, subdivision (b)(3) applies to any
litigant—plaintiff or defendant—who, ‘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.’ (See John [v. Superior Court], supra, 63 Cal.4th at p. 99
10
[appellate courts have the authority to declare a defendant
appellant or writ petitioner to be a vexatious litigant in the first
instance during the course of an appeal from litigation the
defendant or writ petitioner did not file under § 391, subd.
(b)(3)].) Applying section 391, subdivision (b)(3) to both plaintiffs
and defendants advances the purpose of the statute—curbing
abuse of the judicial system. Likewise, applying section 391,
subdivision (b)(2) to any litigant, whether plaintiff or defendant,
who repeatedly litigates prior determinations is consistent with
the statutory purpose.” (Id. at p. 1200, italics added.)
We agree with the Thompson court’s analysis with respect
to section 391, subdivisions (b)(2) and (b)(3). 8 On their face, these
8 The Thompson court also held that section 391,
subdivision (b)(4)—a provision not relevant here—must be
construed as applying only to the plaintiff in the current action in
order not to frustrate the statutory purpose of curbing misuse of
the court system. (Thompson, supra, 11 Cal.App.5th at p. 1200.)
Section 391, subdivision (b)(4) defines a “ ‘[v]exatious litigant’ ” as
“a person who . . . [¶] . . . [¶] [h]as previously been declared to be
a vexatious litigant by any state or federal court of record in any
action or proceeding based upon the same or substantially similar
facts, transaction, or occurrence.” (§ 391, subd. (b)(4).) According
to the Thompson court, “by its plain language, section 391,
subdivision (b)(4) allows any party to an action to be declared a
vexatious litigant. . . . Such a result would be absurd and
inconsistent with the statutory purpose of ‘curb[ing] 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.’ (Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1169 [126
Cal. Rptr. 3d 98, 253 P.3d 266].) The passive act of being sued
constitutes neither a misuse of the court system, nor a waste of
the time and resources of the court system and other litigants.”
(Thompson, supra, 11 Cal.App.5th at p. 1200.) We need not
11
provisions apply to any person—whether a plaintiff, defendant,
petitioner, respondent or appellant—based on the nature of his or
her conduct during litigation rather than his or her party
designation. (Thompson, supra, 11 Cal.App.5th at p. 1200.)
Arguing to the contrary, Thomas directs us to Mahdavi v.
Superior Court (2008) 166 Cal. App. 4th 32 (Mahdavi). There, the
reviewing court concluded: “In appealing from a ruling in a case
that he did not initiate, [the defendant] cannot be said to be
‘maintaining’ the litigation any more than any defendant can be
considered to be ‘maintaining’ litigation by seeking to defend
himself through the filing of pleadings and motions in the trial
court.” (Id. at p. 41.) Thomas’s authority, however, was
overruled in part by John, supra, 63 Cal. 4th 91, wherein the
court “disapprove[d] language in Mahdavi . . . to the extent it
could be interpreted as precluding a Court of Appeal from
declaring an in propria persona defendant on appeal to be a
vexatious litigant under section 391.” (Id. at pp. 99–100, fn. 2.)
In doing so, the court held that appellate courts had authority to
declare a defendant appellant proceeding in propria persona to be
a vexatious litigant pursuant to section 391, subdivision (b)(3)
during the course of an appeal notwithstanding the fact that the
defendant did not initiate the litigation in the trial court. (Id. at
p. 99.)
weigh in on the court’s holding with respect to subdivision (b)(4)
because it is not implicated in this appeal.
12
Based on this legal authority, we reject Thomas’s argument
that, as a matter of law, a nonplaintiff litigant (such as him)
cannot be designated a vexatious litigant.
III. Does substantial evidence support the vexatious
litigant order and prefiling order?
Last, Thomas contends the April 17, 2018 orders lack the
support of substantial credible evidence, in that the trial court
simply accepted Commissioner Oleon’s “void order at face value”
without independently considering the record. Again, we
disagree.
“A court exercises its discretion in determining whether a
person is a vexatious litigant. [Citation.] . . . On appeal, we
presume the order declaring a litigant vexatious is correct and
imply findings necessary to support the judgment.” (Bravo v.
Ismaj, supra, 99 Cal.App.4th at p. 219.)
Thomas appears to acknowledge the presumption on appeal
that a court’s order is supported by the record, as well as the rule
that a court’s implied finding of fact will be upheld if there is
substantial evidence in the record to support it. (Fair v.
Bakhtiari (2011) 195 Cal. App. 4th 1135, 1148.) Yet Thomas
argues that the court’s orders in this case are “too vague to
properly appeal” and insists he does “not need to address the
specifics of a void order in order to avoid them.” Thomas also
condemns Patricia for relying on the number of entries in the
trial court register of actions, which reflects his filing of new
motions, to argue in her respondent’s brief that the vexatious
litigant and prefiling orders were supported by the record.
Thomas’s arguments fail.
13
First, we have already held the challenged orders are not
void. (Ante, pp. 6–7.) Second, the record adequately supports the
trial court’s implied finding that Thomas meets the statutory
definition of a vexatious litigant. Specifically, the record reflects
that between 2005 and April 2018, Thomas filed innumerable
motions, applications and other requests in this case. Moreover,
the hearing transcript from the April 12, 2018 hearing on the
OSC reflects that the court considered these filings, along with
the parties’ briefs and arguments, before issuing the challenged
orders.
Under well-established rules of appellate procedure,
Thomas, as the appellant, has the burden to provide an adequate
record on appeal and to affirmatively show error. (See Osgood v.
Landon (2005) 127 Cal. App. 4th 425, 435 [“It is the appellant’s
affirmative duty to show error by an adequate record”]; In re
Marriage of Wilcox (2004) 124 Cal. App. 4th 492, 498 [same].)
Thomas cannot avoid his burden on appeal to affirmatively prove
error by merely labeling the court’s orders “vague” or condemning
Patricia’s reliance on certain facts in the respondent’s brief. (See
Boyle v. CertainTeed Corp. (2006) 137 Cal. App. 4th 645, 649 [“If
an appeal is pursued, the party asserting trial court error may
not then rest on the bare assertion of error but must present
argument and legal authority on each point raised”]; Tokerud v.
Capitolbank Sacramento (1995) 38 Cal. App. 4th 775, 780
[presumption of correctness applies in vexatious litigant
proceedings].) Accordingly, given his mere assertions to the
contrary, we conclude Thomas has failed to prove the April 17,
14
2018 orders lack the support of substantial evidence. The orders
stand. 9
9 Thomas’s request for judicial notice, filed August 17, 2018,
is granted in part and denied in part. We grant his request for
judicial notice of certain legal terms, including
“plaintiff/petitioner,” “defendant/respondent,” “void” and
“voidable,” that are set forth in the Abridged Sixth Edition of
Black’s Law Dictionary (1991). (Evid. Code, § 452, subd. (h).) We
also grant Thomas’s request for judicial notice of the document
entitled “Request to File New Litigation by a Vexatious Litigant”
received by the trial court on May 16, 2018. (Evid. Code, § 452,
subd. (d).) We deny as moot his request for judicial notice of the
following documents, which are already in our record on appeal:
(1) February 15, 2018 letter to Thomas from Presiding Judge
Wynne S. Carvill of the Superior Court of Alameda County;
(2) June 1, 2018 letter to Thomas from the Clerk of the Court of
the First District Court of Appeal; and (3) June 11, 2018 order of
Administrative Presiding Justice William R. McGuiness of the
First District Court of Appeal, Division Three. We also deny
Thomas’s request for judicial notice of a document entitled
“Vexatious Litigant List from Prefiling Orders Received from
California Courts” because this document appears incomplete
and is therefore not helpful to this court. Thomas’s remaining
requests are denied for noncompliance with California Rules of
Court, rule 8.252(a)(3), which provides, “If the matter to be
noticed is not in the record, the party must attach to the motion a
copy of the matter to be noticed or an explanation of why it is not
practicable to do so.”
On February 7, 2020, we denied Thomas’s motion to
preserve records relevant to pending appeals, which covered “any
and all documents and the electronic files of those documents and
proceedings” in the Alameda County dissolution proceedings, as
well as in his previous appeals, numbering 11, filed in this court.
As stated in our order, these documents are not in our record on
appeal and we have no jurisdiction to reopen any of his appeals,
which have long become final. (California Rules of Court, rules
8.120, 8.104(a).)
Thomas’s motion to correct the clerk’s transcript filed on
November 30, 2018, is denied.
15
DISPOSITION
The orders of April 17, 2018, are affirmed. Costs on appeal
are awarded to Patricia.
16
_________________________
Jackson, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Petrou, J.
A154425/In re Marriage of Deal
17
A154425/In re Marriage of Deal
Trial Court: Superior Court of Alameda County
Trial Judge: Gregory Syren, J.
Counsel: Thomas M. Deal, in pro. per., for Appellant.
Patricia Kim Deal, in pro. per., for Respondent.
18