Pomogaibo v. Berman CA6 ( 2023 )

Filed 12/26/23 Pomogaibo v. Berman CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
KATERYNA POMOGAIBO, H050674
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 21CV382347)
v.
EKATERINA BERMAN,
Defendant and Respondent.
MEMORANDUM OPINION1
Appellant Kateryna Pomogaibo voluntarily dismissed her action against
respondent Ekaterina Berman.2 Shortly thereafter, the trial court granted Berman’s
request to declare Pomogaibo a vexatious litigant and enter a prefiling order, which
Berman filed before Pomogaibo dismissed the case. On appeal, Pomogaibo contends the
trial court erred in granting the request. She claims the court issued the order after first
taking the motion off calendar, and then reconsidering the issue based on Berman’s oral
motion, made during improper ex parte communications with the court. She also alleges
1
We resolve this case by memorandum opinion under California Standards of
Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847,
852-855.)
2
Berman did not file a respondent’s brief in this appeal. We decide the appeal on
the record and the opening brief, as the parties waived oral argument. (Cal. Rules of
Court, rule 8.220(a)(2).)
the court erred in adopting some but not all of the tentative rulings it issued prior to the
subject hearing.3
We must affirm the judgment because Pomogaibo did not provide us with an
adequate appellate record. “ ‘A court exercises its discretion in determining whether a
person is a vexatious litigant. [Citation.] We uphold the court’s ruling if it is supported
by substantial evidence. [Citations.] On appeal, we presume the order declaring a
litigant vexatious is correct and imply findings necessary to support the judgment.
[Citation.]’ [Citations.]” (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 407-408.)
Pomogaibo has the burden to affirmatively show error based on the record presented to
this court. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson); Hewlett-
Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 563.) Where an appellant fails
to provide a sufficient record for review, we will affirm the judgment based on the
presumption of correctness. (Jameson, at p. 609; Stasz v. Eisenberg (2010)
190 Cal.App.4th 1032, 1039.)
Pomogaibo elected to use a clerk’s transcript to provide the record on appeal.
Such a transcript only consists of the documents designated by an appellant for the trial
court clerk to include in the record, and only of documents that were filed or lodged in
the trial court at the time the court issued the order being appealed. (See Cal. Rules of
Court, rule 8.122; Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 723.) Here,
Pomogaibo designated only her December 12, 2022 request for dismissal, the minute
orders from hearings on December 13, 2022, and the trial court’s December 14, 2022
3
Pomogaibo did not seek a prefiling order from this court to file the appeal, as
required by Code of Civil Procedure section 391.7, subdivision (c). However, because
she timely appealed from the appealable order designating her as a vexatious litigant and
subjecting her to a prefiling order requirement, we allow her appeal to proceed.
2
order designating her as a vexatious litigant.4 Pomogaibo elected to proceed without a
record of oral proceedings from the December 13, 2022 hearings.5
Pomogaibo contends that the trial court erred in ruling on the vexatious litigant
request after the parties failed to appear at the time scheduled for the hearing. She claims
that Berman made an untimely, oral request for reconsideration, which the trial court
erred by granting, as she argues that the request constituted an improper ex parte
communication. The minute orders from December 13, 2022, do not explicitly reference
Berman’s request to declare Pomogaibo a vexatious litigant.6 One of the minute orders
states that Berman appeared at 10:45 a.m., for a hearing scheduled to take place at 9 a.m.
The court informed her that the “motion was taken off calendar due to dismissal.” The
minute order then states, “Court to research if there is still jurisdiction to rule on motion
after case is dismissed.” The next day, the court issued its order designating Pomogaibo
as a vexatious litigant. That order does not reference the December 13 hearings, or
indicate that the court engaged in any ex parte communications about Berman’s vexatious
litigant motion on that date. The record designated by Pomogaibo does not support her
contentions that the trial court committed a procedural error at the December 13 hearings,
or in issuing the December 14 order.
4
Pomogaibo also designated for inclusion in the record a motion for
reconsideration filed after the order that is the subject of this appeal, and
contemporaneous with the notice of appeal in this matter. We cannot properly consider
that motion in evaluating whether the trial court erred in issuing the December 14 order.
(See Glassman v. Safeco Ins. Co. of America (2023) 90 Cal.App.5th 1281, 1307.)
5
Although there was not a court reporter present at the hearings, Pomogaibo could
have provided an agreed statement under California Rules of Court, rule 8.134, or a
settled statement under rule 8.137. She elected not to do so.
6
Berman’s request is not part of the record on appeal, nor are any pleadings the
trial court might have considered in ruling on the request. The register of actions
included in the record confirms that Berman did file a motion to declare Pomogaibo
vexatious.
3
Nor is there anything in the record to support Pomogaibo’s claim that the trial
court issued tentative rulings before the hearing, or that the court erred by adopting some,
but not all of the tentative rulings at the hearing. None of the documents properly
designated by Pomogaibo reference tentative rulings issued by the court in advance of the
December 14 order at issue in this appeal. Pomogaibo’s unsupported contentions that the
trial court engaged in ex parte communications or other procedural irregularities are
insufficient for us to discern that the court erred in issuing the order designating
Pomogaibo a vexatious litigant.
Notably, Pomogaibo agrees that the trial court had jurisdiction to rule on the
request to designate her as a vexatious litigant even after she dismissed the action without
prejudice. While the voluntary dismissal of an action generally deprives the court of
jurisdiction to issue further orders in the matter, a motion to declare a self-represented
plaintiff a vexatious litigant falls under one of several exceptions to the rule, as it deals
with an ancillary issue, and the purpose of the vexatious litigant statute is fulfilled by
allowing the trial court to retain jurisdiction to hear the motion after dismissal. (Pittman
v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1022, 1024.) Thus, the fact
the court issued the subject order after Pomogaibo dismissed her action without prejudice
does not itself reveal an error on the trial court’s part. Pomogaibo has not otherwise
demonstrated, based on the record before this court, that the trial court abused its
discretion or otherwise committed reversible error in issuing the December 14, 2022
order designating her as a vexatious litigant. We presume the order is correct and will
affirm it as such.
DISPOSITION
The December 14, 2022 order is affirmed.
4
_______________________________
Greenwood, P. J.
WE CONCUR:
_______________________________
Grover, J.
_______________________________
Lie, J.
H050674 - Pomogaibo v. Berman