Cono v. Mazza CA2/5 ( 2022 )

Filed 9/12/22 Cono v. Mazza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
LEO CONO, B314477
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 21STCV07520)
v.
ADAM MAZZA,
Defendant and Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, David J. Cowan, Judge. Affirmed.
Leo Cono, in pro. per., for Plaintiff and Appellant.
Bryan, Cave, Leighton, Paisner, Jed P. White and Helen
Goodman for Defendant and Respondent.
____________________________________
Plaintiff and appellant Leo Cono appeals the August 5,
2021 orders declaring him a vexatious litigant and
prohibiting him, under Code of Civil Procedure1
section 391.7, from filing any new litigation in the courts of
California without approval of the presiding justice or
presiding judge of the court in which the action is to be filed,
unless he is represented by an attorney. The parties are
familiar with the facts and our opinion does not meet the
criteria for publication. (Cal. Rules of Court, rule 8.1105(c).)
We accordingly resolve the cause before us, consistent with
constitutional requirements, via a written opinion with
reasons stated. (Cal. Const., art. VI, § 14; Lewis v. Superior
Court (1999) 19 Cal.4th 1232, 1262–1263 [three-paragraph
discussion of issue on appeal satisfies constitutional
requirement because “an opinion is not a brief in reply to
counsel’s arguments”; “[i]n order to state the reasons,
grounds, or principles upon which a decision is based, [an
appellate] court need not discuss every case or fact raised by
counsel in support of the parties’ positions”].)
FACTS AND PROCEDURAL HISTORY
On February 25, 2021, Cono filed a 222-page civil
complaint against “Adam Mazza, et al.,” apparently in
response to the termination of a co-working lease agreement.
On June 16, 2021, the trial court issued an order to show
cause why it should not find Cono to be a vexatious litigant.
1All further statutory references are to the Code of Civil
Procedure, unless stated otherwise.
2
The record on appeal only contains the first page of the court’s
June 16, 2021 order, which states that “[s]ince December 6,
2019, Leo Cono has initiated, in propria persona, twelve new
litigations in Los Angeles Superior Court.”
The August 5, 2021 minute order indicates that no court
reporter was present at the hearing. The minute order stated,
in relevant part: “In a minute order dated June 16, 2021 filed
in the above case, this court scheduled for this date an Order to
Show Cause (‘OSC’) Re: Leo Cono Should Not Be Declared a
Vexatious Litigant and be subject to a pre-filing order,
prohibiting any new litigation in the courts of this state in
propria persona without first obtaining leave of the Presiding
Judge of the court where the litigation is proposed. (CCP
§ 391.7(a).)” According to the August 5, 2021 order, Cono
presented his objections orally at the hearing. The court found
sufficient grounds to declare Leo Cono a vexatious litigant
under section 391, “and Cono has failed to sufficiently evidence
why the [c]ourt should not make this finding.” On the same
day, the trial court also filed a separate Judicial Council form
order (VL-100, Prefiling Order – Vexatious Litigant), which
stated that on the court’s motion, Leo Cono “unless represented
by an attorney, [is] prohibited from filing any new litigation in
the courts of California without approval of the presiding justice
or presiding judge of the court in which the action is to be filed.”
The order directed the clerk to provide a copy of the order to the
California Judicial Council.
After filing a timely notice of appeal, Cono filed in the
trial court several applications for an order to vacate the
prefiling order and remove plaintiff/petitioner from the Judicial
Council vexatious litigant list.
3
Cono has filed in this court a myriad of motions in
connection with the current appeal.2 By this opinion, we deny
the following outstanding motions:
1. Response/Reply, filed March 8, 2022;
2. Request for a statement of decision, filed May 12, 2022;
3. Request for a statement of decision, filed May 16, 2022;
4. Request to adjudicate immediately, filed May 24, 2022;
5. Request to adjudicate immediately, filed June 6, 2022;
and
6. Letter brief re: preference, filed August 8, 2022.
I. Relevant Law and Standard of Review
A party may not be declared to be a vexatious litigant
without a noticed motion and hearing “which includes the right
to oral argument and presentation of evidence.” (Bravo v. Ismaj
(2002) 99 Cal.App.4th 211, 225 (Bravo).) Section 391,
subdivision (b), offers several definitions for a vexatious
litigant, including a person who “[i]n the immediately preceding
seven-year period has commenced, prosecuted, or maintained in
propria persona at least five litigations other than in a small
claims court that have been (i) finally determined adversely to
the person or (ii) unjustifiably permitted to remain pending at
least two years without having been brought to trial or
hearing,” or who “[a]fter a litigation has been finally
determined against the person, repeatedly relitigates or
attempts to relitigate, in propria persona, either (i) the validity
2 Respondent Adam Mazza filed a notice stating he took no
position on Cono’s appeal. Mazza did not file anything in
response to Cono’s motions on appeal.
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of the determination against the 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.” (§ 391, subd. (b)(1) & (2).) A
person who “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” while acting in propria persona is also a
vexatious litigant. (§ 391, subd. (b)(3).) The term “litigation” as
used in section 391, subdivision (b)(1), is broadly defined “as
meaning ‘any civil action or proceeding, commenced,
maintained or pending in any state or federal court.’ ” (Fink v.
Shemtov (2010) 180 Cal.App.4th 1160, 1170, see § 391,
subd. (a).)
Section 391.7, subdivision (a), authorizes the court to
“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.”
“A court exercises its discretion in determining whether a
person is a vexatious litigant.” (Bravo, supra, 99 Cal.App.4th at
p. 219.) “An abuse of discretion occurs ‘where, considering all
the relevant circumstances, the court has exceeded the bounds
of reason[,] or it can fairly be said that no judge would
reasonably make the same order under the same
circumstances.’ ” (In re Marriage of Olson (1993)
14 Cal.App.4th 1, 7.) On appeal, “[w]e uphold the court’s ruling
5
if it is supported by substantial evidence. [Citations.] . . . [W]e
presume the order declaring a litigant vexatious is correct and
imply findings necessary to support the judgment.” (Bravo, at
p. 219.)
“ ‘In order to demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record.’ ” (United Grand Corp.
v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153
(United).) The appellate court is not required to develop an
appellant’s arguments for him. (Ibid.) “We may and do
‘disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by
which the appellant reached the conclusions he wants us to
adopt.’ ” (Ibid.) An appellate court has no obligation to make an
independent search of the record to find support for contentions
on appeal. (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1406.)
It “is appellant’s burden to provide a reporter’s transcript
if ‘an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court . . .’
(Cal. Rules of Court, rule 8.120(b)), and it is the appellant who
in the first instance may elect to proceed without a reporter’s
transcript (Cal. Rules of Court, rule 8.130(a)(4)).” (Sanowicz v.
Bacal (2015) 234 Cal.App.4th 1027, 1034, fn. 5.) In an appeal
involving the abuse of discretion standard of review, a
reporter’s transcript, or an agreed or settled statement of the
proceedings is usually indispensable. (See, e.g., Vo. V. Las
Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448
[“The absence of a record concerning what actually occurred at
the trial precludes a determination that the trial court abused
6
its discretion”] (Vo); Southern California Gas Co. v. Flannery
(2016) 5 Cal.App.5th 476, 487 [without reporter’s transcript or
suitable substitute, appellant cannot demonstrate an award of
attorney fees constituted an abuse of discretion].) That a party
is in propria persona does not excuse compliance with these
requirements. (Rappleyea v. Campbell (1994) 8 Cal.4th 975,
984–985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th
536, 543.)
II. Analysis
We see nothing on the face of the trial court’s August 5,
2021 order or in the record provided on appeal that would lead
us to question whether Cono was provided with adequate notice
and an opportunity to demonstrate why he should not be
declared a vexatious litigant. “[W]e presume the order
declaring a litigant vexatious is correct and imply findings
necessary to support the judgment.” (Bravo, supra,
99 Cal.App.4th at p. 219.)
Cono’s appellate briefing does not present any cognizable
legal arguments explaining how or why the trial court abused
its discretion when it declared Cono a vexatious litigant under
section 391, subdivision (b), and entered a pre-filing order
against Cono under section 391.7. In addition, Cono fails to
provide an adequate record to challenge the trial court’s
exercise of discretion: the record on appeal does not include a
reporter’s transcript, settled statement, or agreed statement as
authorized by California Rules of Court, rules 8.134 and 8.137.
Absent any cogent analysis, an adequate record, or citations to
support in the record provided, Cono has not carried his burden
7
to demonstrate any error. (United, supra, 36 Cal.App.5th at
p. 153.)
DISPOSITION
The August 5, 2021 orders declaring Leo Cono a vexatious
litigant and prohibiting him from filing any new litigation in
the courts of California without approval of the presiding justice
or presiding judge of the court in which the action is to be filed,
unless he is represented by an attorney, are affirmed. Each
party shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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