Kihagi v. Liu CA2/5 ( 2024 )

Filed 5/14/24 Kihagi v. Liu CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
ANNE KIHAGI, B319340
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCV33378)
LIN DEE LIU et al.,
Defendants and
Respondents.
APPEAL from an order from the Superior Court of the
County of Los Angeles, Michael P. Linfield, Judge. Dismissed.
Charles E. Shelton for Plaintiff and Appellant.
Leland, Parachini, Steinberg, Matzger & Melnick, David B.
Tillotson, and Ravi D. Sahae for Defendants and Respondents
Lin Dee Liu and Ami Kimoto.
I. INTRODUCTION
Plaintiff Anne Kihagi purports to appeal from the trial
court’s order declaring her a vexatious litigant. Because plaintiff
has appealed from a nonappealable order, we dismiss her appeal.
II. BACKGROUND
A. Prior Litigation (the San Francisco Housing Action)
On June 4, 2015, the City and County of San Francisco and
the People of the State of California (the People) filed, in the
Superior Court for the County of San Francisco, a complaint
charging plaintiff with violations of the housing laws, nuisance,
and unfair competition.
On May 23, 2017, the San Francisco trial court found
plaintiff liable on all causes of action, assessed $2,729,529 in civil
penalties, issued an injunction, and awarded attorney fees.
Plaintiff appealed from the judgment and on December 3, 2018,
the Court of Appeal affirmed. The remittitur issued on
March 14, 2019.
Following the issuance of the remittitur, plaintiff,
appearing in propria persona, filed numerous pleadings seeking
to relitigate the judgment against her.
1. On May 24, 2019, plaintiff filed a “Motion to Set-
Aside Plaintiff’s May 2017 Injunction And For Removal of Its
Recordation at the County Assessor-Recorders Office.” In that
motion, plaintiff requested that the court vacate the
May 23, 2017, judgment.
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2. Four days later, on May 28, 2019, plaintiff filed a
“Renewed Motion for Order Vacating Notice of Pendency of
Action [Lis Pendens].” The People had recorded the lis pendens
at the time they filed their complaint, and plaintiff explained that
she sought to “renew” the motion that she had initially filed on
October 9, 2018, which had been denied by the trial court on
December 4, 2018. On July 17, 2019, the trial court denied the
May 28, 2019, motion.
3. On August 26, 2019, plaintiff filed a “Joint Motion to
Set Aside and Vacate Judgment and Attorney Fees Award.” In
this motion, plaintiff, while appearing in propria persona,
purported to represent related entities. Following the trial
court’s continuance of the hearing date, plaintiff did not seek to
reschedule a hearing on the motion.
4. On November 23, 2020, plaintiff filed another motion
to vacate the injunction and its enforcement, entitled a “Motion to
Vacate Void Injunc[t]ion and its Enforcement Thereof.”1 The
trial court conducted a hearing on the motion and denied it on
February 8, 2021.
5. On December 28, 2020, plaintiff filed a memorandum
of points and authorities in support of a “Motion to Vacate
Contempt Orders of July 29th, 2019 as Constitutionally Void.” In
that motion, plaintiff sought to vacate the injunction, which she
now described as a “contempt” order. On February 19, 2021, the
trial court denied the motion.
6. On June 7, 2021, plaintiff, in propria persona, filed a
“Memorandum of Points & Authorities ISO Motion To Vacate
Judgments of May 23, 2017 & October 18, 2017 Under [Code of
1 Although the caption of the motion included the names of
two attorneys, plaintiff alone signed the motion.
3
Civil Procedure section] 473[, subdivision] (d) Based Upon
Prosecutorial Misconduct By Intentionally Presenting False Law
To Tribunal That Materially Impacted The Court Rulings and
Impeded a Fair Trial.”2 As indicated by the title, the motion
challenged the People’s prosecution of the case. Two days before
the scheduled hearing, and after the People filed their opposition,
plaintiff withdrew her motion.
7. On June 16, 2021, plaintiff, in propria persona, filed
a “Memorandum of Points and Authorities I.S.O. Defendant’s
Motion to Vacate The Court’s Judgments Based on Prosecutorial
Misconduct in Presenting False Facts and Argument Regarding
Defendant C. Mwangi’s Owner Move-In Eviction and Subsequent
Occupancy of Unit at the Subject Hill Street Property.”3 After
the People filed their opposition and two days prior to the
scheduled hearing, plaintiff withdrew the motion.
8. On August 23, 2021, plaintiff, in propria persona,
filed a “Motion to Vacate Judgment After Court Trial as Void as a
Result of Judicial Misconduct and Undisclosed Bias.”4 Plaintiff
alleged that one of the trial court judges who presided over this
matter “was a celebrated gay rights advocate” and “[a]ny such
judge is expected to recuse himself from any case involving
homosexual litigants.” Following the People’s filing of an
2 The caption of the pleading included the names of counsel
for the related entities, including Karen Y. Uchiyama. But only
plaintiff signed the pleading.
3 Although the caption of the pleading included the names of
counsel for the related entities, only plaintiff signed the pleading.
4 Although the caption of the pleading included the names of
counsel for the related entities, only plaintiff signed the pleading.
4
opposition, and six days prior to the scheduled hearing, plaintiff
withdrew her motion.
9. On October 5, 2021, plaintiff filed a “Motion to Vacate
Pre-Trial Sanction That Resuscitated Abated & Closed Violations
To Enable Awards of DBI Penalties & Attorney Fees After Trial
as Void for Judicial Misconduct, and Acts Without Jurisdiction.”5
That motion sought to vacate the trial court’s earlier issuance of
a pretrial order and requested the court to “appropriately
revers[e] all appropriate parts of the judgment that arose from
that order.” The trial court denied the motion on
December 15, 2021, observing that “[t]he issues of jurisdiction
and discovery sanctions have been determined on appeal.”
B. Plaintiff’s Complaint (Instant Litigation)
October 29, 2021, plaintiff filed an amended complaint
against defendants Ami Kimoto and Lin Dee Liu alleging breach
of fiduciary duty, violations of various disclosure laws under the
Business and Professions Code, rescission, negligent
misrepresentation, and unfair competition. Plaintiff sought to
rescind certain loans that she had obtained from defendants and
requested damages, disgorgement, injunctive relief, attorney fees,
and other relief.
5 Although the caption of the pleading included the names of
counsel for the related entities, only plaintiff signed the pleading.
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C. Plaintiff Declared a Vexatious Litigant
On December 17, 2021, defendants’ counsel filed a
declaration in support of a motion for an order declaring plaintiff
a vexatious litigant.6 Counsel’s declaration described over 30
pleadings that plaintiff filed in propria persona, including the
nine we describe above. It also described various writs that
plaintiff had taken from the rulings denying her motions.
On January 24, 2022, the trial court conducted a hearing
on defendants’ motion.7 The court then issued a minute order
finding, among other things, that counsel’s declaration “clearly
shows that [plaintiff] should be deemed a vexatious litigant.” The
court concluded that plaintiff’s “multiple, routinely-denied pro
per motions in the CCSF Action offer evidence sufficient to satisfy
[Code of Civil Procedure section 391, subdivisions (b)(2)–(3)].[8]
(See Sahae Decl., ¶¶ 23, 27, 36, 41, 46, 50, 65, 69, 75, 81, 85,
102.)” The court therefore determined that plaintiff was a
vexatious litigant and ordered that she was “prohibited from
filing any new litigation in the courts of this state in propria
persona without first obtaining leave of the presiding judge or
justice of the court where it is to be filed.”
6 Plaintiff has not included a copy of the motion in the record
on appeal.
7 Plaintiff has not submitted a reporter’s transcript or a
suitable substitute, such as a settled or agreed statement of those
proceedings.
8 All further statutory references are to the Code of Civil
Procedure.
6
On February 4, 2022, the trial court conducted a further
hearing and ordered that plaintiff post a $200,000 bond as
security, pursuant to sections 391.1 and 391.3, subdivision (a).9
D. Plaintiff’s Notices of Appeal
On February 23, 2022, plaintiff filed a notice of appeal,
challenging the trial court’s January 24, 2022, order, declaring
her a vexatious litigant (the Instant Appeal).
On May 11, 2022, the trial court dismissed plaintiff’s
amended complaint for plaintiff’s failure to post a security bond.
That same date, plaintiff filed a notice of appeal from the
dismissal order (the Second Appeal). On January 27, 2023, this
court found plaintiff to be in default on her Second Appeal and
dismissed the appeal. Plaintiff did not file a motion to reinstate
the Second Appeal and the remittitur dismissing it issued on
April 6, 2023.
On April 6, 2023, defendants filed a motion to dismiss the
Instant Appeal on the grounds that vexatious litigant orders are
not appealable. (Golin v. Allenby (2010) 190 Cal.App.4th 616,
635). On April 21, 2023, plaintiff filed an opposition to the
dismissal, requesting that this court treat the Instant Appeal as
an appeal from the trial court’s subsequent dismissal order, the
order at issue in the Second Appeal.
9 The record does not include a transcript of this hearing or a
suitable substitute, such as a settled or agreed statement.
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III. DISCUSSION
“An order determining a party to be a vexatious litigant
and requiring the posting of security under section 391.3 is not
directly appealable.” (Golin v. Allenby, supra, 190 Cal.App.4th at
p. 635.) “But if the plaintiff subsequently fails to furnish
security, an appeal lies from the subsequent order or judgment of
dismissal that follows under section 391.4.” (Ibid.) Although we
could ordinarily exercise our discretion to treat a prematurely
filed notice of appeal as having been filed immediately after entry
of the appealable judgment (Cal. Rules of Court, rule 8.104(d)(2)),
here, plaintiff timely filed a notice of appeal after entry of
judgment (the Second Appeal), but that appeal has now been
dismissed and the remittitur has issued, which divests this court
of jurisdiction over the appealable order. (Snukal v. Flightways
Manufacturing, Inc. (2000) 23 Cal.4th 754, 774.)
In any event, even if we were to consider the merits of
plaintiff’s appeal, we would affirm. “‘“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.]’”
(In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339,
1346.)
Section 391, subdivision (b) defines a “vexatious litigant” as
“a person who does any of the following: [¶] . . . [¶] (2) After a
litigation has been finally determined against the person,
repeatedly relitigates or attempts to relitigate, in propria
persona, either (i) the validity of the determination against the
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same defendant or defendants as to whom the litigation was
finally determined or (ii) the cause of action, claim, controversy,
or any of the issues of fact or law, determined or concluded by the
final determination against the same defendant or defendants as
to whom the litigation was finally determined.”
Plaintiff contends that substantial evidence does not
support the trial court’s order because, in her view, the case “is
still pending because the San Francisco Court retained
supervision over the Injunction.” Plaintiff’s contention is
meritless. The judgment became final on March 14, 2019, when,
following the Court of Appeal’s affirmance of the judgment, the
remittitur issued. (Rare Coin Galleries, Inc. v. A-Mark Coin Co.,
Inc. (1988) 202 Cal.App.3d 330, 338 [“where no review is sought
beyond the California Supreme Court, it is the issuance of the
remittitur in the underlying action which exhausts the appellate
process . . .”].) Plaintiff did not file pleadings seeking to
determine whether she had complied with the terms of the
injunction against her. Instead, as described above, she
repeatedly filed pleadings seeking to relitigate the merits of the
underlying judgment. Substantial evidence therefore supports
the court’s order declaring her a vexatious litigant.
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IV. DISPOSITION
Plaintiff’s appeal of the order declaring her a vexatious
litigant is dismissed. Respondents are entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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