Marriage of Deal

Filed 6/21/22
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,
Respondent, A164185
v.
(Alameda County
THOMAS DEAL,
Super. Ct. No. CH222312)
Appellant.
Thomas Deal is a vexatious litigant who, while self-represented, may
not file new motions or litigation in the trial court without first obtaining
permission from the presiding judge.1 (Code Civ. Proc., §§ 391, 391.7, all
statutory references are to this code.) The prefiling order has been ineffective
in limiting Thomas’s vexatious litigation. In the 17 years since he was
initially declared a vexatious litigant and subject to the prefiling order,
1We refer to the parties by their first names for convenience, intending
no disrespect. This case has a long history, some of which is detailed in our
opinions in Thomas’s prior appeals, including In re Marriage of Deal (2020)
45 Cal.App.5th 613, 615 (Deal). We incorporate by reference the factual and
procedural background from Deal and recite only those facts necessary to
resolve the issues presented in this appeal. Thomas has filed 12 appeals and
seven writ petitions in this court, all of which have been decided adversely to
him.
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Thomas has waged a litigation war against his former wife, Patricia. In the
latest battle, Thomas — again representing himself — challenges the validity
of a November 2021 trial court order denying his serial requests to file new
litigation. We dismiss his appeal.
BACKGROUND
Patricia and Thomas married in 1989 and had twins in 1996. In 2001,
Patricia petitioned to dissolve the marriage. A judgment dissolving the
marriage was entered the following year. Thereafter, Thomas began
representing himself. In 2005, the trial court deemed Thomas a vexatious
litigant and issued a prefiling order prohibiting him from filing new motions
or litigation when representing himself without first obtaining leave of the
presiding judge of the court where the litigation was proposed to be filed.
(Deal, supra, 45 Cal.App.5th at p. 615.) In 2008, the court entered judgment
on reserved issues. (Ibid.)
In 2018, the trial court reaffirmed its previous finding that Thomas is
a vexatious litigant, and it again imposed a prefiling order. (Deal, supra,
45 Cal.App.5th at p. 616.) Representing himself, Thomas appealed. His
briefs contained “menacing” and “odious” language making “implicit threats
against various members of the California judiciary and State Bar.” (Id. at
pp. 616–617.) In addition to arguing the vexatious litigant and prefiling
orders were void and unsupported by substantial evidence, Thomas
challenged trial court orders and appellate court rulings made years — and
in some instances decades — earlier. (Id. at p. 617 & fn. 6.)
In a February 2020 published opinion, this court declined to consider
Thomas’s challenges to the long-since final orders as they were “not within
the scope of Thomas’s notice of appeal or otherwise properly before this
court.” (Deal, supra, 45 Cal.App.5th at pp. 617–618, fn. 6.) And we warned
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Thomas that further “use of the appellate process to threaten, however
implicitly, our state’s lawyers and judges” would “result in an order of
sanctions.” (Id. at p. 617.) We also rejected Thomas’s claims on the merits:
we held the 2018 vexatious litigant and prefiling orders were valid and
supported by sufficient evidence, and we concluded a nonplaintiff may be
declared vexatious under section 391. (Deal, at pp. 617–622.)
In 2021, Thomas filed seven requests to file new litigation, along with
numerous other documents.2 Among other things, Thomas sought permission
to file a motion for a status conference, a motion to change venue, a request
for discovery, and a request for an evidentiary hearing to question several
bench officers who had issued rulings in the case.
The requests were assigned for all purposes to a retired bench officer
from a different county. At a hearing, Thomas urged the trial court to
“overturn the prior rulings that had been made in the case.” In November
2021, the court issued a thorough written order denying the requests
(§ 391.7, subd. (b)). First, the court deemed it “abundantly clear that there
are no issues remaining to be decided in this case. All issues have been
decided in the unbelievably numerous prior hearings that have been held
over 20 years. The register of actions details 48 pages of single-spaced lines
listing documents that have been filed and hearings and trials that have been
held over the years. It is difficult to comprehend how one divorce could
2 Our summary of the requests is derived from the trial court’s order
denying permission to file the new litigation. Thomas has not cited to the
portions of the record where these requests appear, and we decline to scour
the 15 volumes of clerk’s transcripts to find the documents. (Harshad &
Nasir Corp. v. Global Sign Systems, Inc. (2017) 14 Cal.App.5th 523, 527,
fn. 3.) Thomas’s failure to include a cogent factual summary in his opening
brief — as required by California Rules of Court, rule 8.204(a)(2)(C) — has
hampered our review. All “rule” references are to the Rules of Court.
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produce such a volume of litigation. [Thomas’s] dissatisfaction with the
outcome has not been for want of litigation.”
The trial court continued: “It is obvious from [Thomas’s] extensive and
voluminous pleadings and submissions to the Court that he is dissatisfied
with the judicial rulings that have been made. He has heretofore ascribed
the decisions that have been made to a conspiracy against him by the judicial
officers of the Alameda County Superior Court. This ruling is made by
a judge . . . unfamiliar with any judge or commissioner of Alameda County,
a consummate and unquestionable outsider who is making this decision
solely on the basis of the evidence presented. [Thomas] would do well to
recognize that the decision is based not on any bias or prejudice against him,
nor on any association or relationship with anyone else. The fact is that
every issue in this case has already been decided . . . and there is nothing
further for the Court to decide.”
Next, the trial court considered and denied Thomas’s requests to file
new litigation. It observed that the requests — at their core — sought to
overturn “prior rulings” and to have the dissolution judgments “declared
void.” As the court explained, “[t]hat is not going to happen.” The court
determined the requests to file new litigation lacked merit and had “no basis
or legitimate purpose.”
The trial court concluded with a poignant observation that Thomas was
one of many “who have gone away unhappy with the results of their divorce.
Most do not allow their emotions to consume them. It is unfortunate that
instead of using his skills in a productive manner, he has dedicated himself to
the Sisyphean task of endlessly pursuing the impossible. [Thomas’s]
emotions have blinded him to the reality that our legal system has limits.
Right or wrong, all issues in this divorce have been decided. The war is over.
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[Thomas] stands alone on the silent battleground rattling his saber. All other
adversaries and observers have gone home. Whatever battles were to be
fought have been fought. The little children who were the subject of custody
orders are now grown adults. There is no more property or debts to divide, no
more support to be ordered. The time for appealing to a higher court has
expired. [Thomas] would do well to focus his remaining energies on escaping
his self-imposed poverty and using his abilities to become self-supporting.”
Thomas petitioned this court for writ relief and filed a notice of appeal.
We denied the writ petition. Thereafter, we notified Thomas we were
considering dismissing the appeal as frivolous, and we gave him the
opportunity to file written opposition and to address the issue of sanctions at
oral argument. (Rule 8.276(c)–(e).) Thomas responded to the sanctions
notice in writing and waived oral argument.
DISCUSSION
We begin with a brief overview of the vexatious litigant statutory
scheme. Section 391 — the vexatious litigant statute — “ ‘was enacted “ ‘to
curb misuse of the court system’ ” by “ ‘persistent and obsessive’ litigants.” ’ ”
(Deal, supra, 45 Cal.App.5th at p. 618.) As relevant here, a vexatious litigant
is one who, while self-represented, “ ‘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.’ ” (Ibid., quoting § 391, subd. (b)(2), (3).) A self-
represented defendant may be designated a vexatious litigant even if he did
not initiate the litigation in the trial court. (Deal, at p. 621.) “A vexatious
litigant may be prohibited from filing new litigation unless he . . . obtains
leave to do so from the presiding justice or judge of the court where
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he . . . intends to file.” (Id. at p. 618.) The “presiding judge shall permit the
filing of that litigation only if it appears that the litigation has merit and has
not been filed for the purposes of harassment or delay.” (§ 391.7, subd. (b).)
The “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.’ ” (Deal, at p. 618.)
I.
With this statutory background in mind, we turn to the threshold
question of whether the order at issue is appealable. The existence of an
appealable judgment or order “is a jurisdictional prerequisite to an appeal.”
(Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) A corollary of this rule is
that an appeal from a judgment or order that is not appealable must be
dismissed. (Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759,
765.) Section 904.1 — which governs the right to appeal in civil actions —
lists appealable judgments and orders. The statute “codifies the ‘one final
judgment rule’ and provides that only final judgments are appealable. The
one final judgment rule is based on the theory that piecemeal appeals are
oppressive and costly, and that optimal appellate review is achieved by
allowing appeals only after the entire action is resolved in the trial court.”
(Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.)
An order denying a vexatious litigant’s request to file new litigation is
not among the appealable orders listed in section 904.1. And there is no final
judgment as no new litigation was allowed or filed. (Conservatorship of Rich
(1996) 46 Cal.App.4th 1233, 1235.) The order is not, as Thomas suggests,
appealable as an order made after a final judgment under section 904.1,
subdivision (a)(2). It is well settled that “not every postjudgment order that
follows a final appealable judgment is appealable.” (Lakin v. Watkins
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Associated Industries (1993) 6 Cal.4th 644, 651.) To be appealable under
section 904.1, subdivision (a)(2), a postjudgment order must follow a final
judgment and “satisfy two additional requirements.” (Lakin, at p. 651, fn.
omitted.) The first “is that the issues raised by the appeal from the order
must be different from those arising from an appeal from the judgment.” The
second requirement is “that ‘the order must either affect the judgment or
relate to it by enforcing it or staying its execution.’ ” (Id. at pp. 651–652.)
The order does not satisfy either requirement. Thomas is using this
appeal to litigate the validity of the dissolution judgments. Thus, the issues
raised in this appeal are not different from those that could have been raised
in appeals from the dissolution judgments. Second, the order denying
Thomas’s request to file new litigation does not affect the dissolution
judgments. As the trial court aptly observed, every issue relating to the
dissolution has “already been decided” and there is “nothing further for the
Court to decide.”3 Accordingly, the order denying Thomas’s request to file
new litigation under section 391.7 is not appealable as a postjudgment order
under section 904.1, subdivision (a)(2).
Nor is the order appealable as an injunction under section 904.1,
subdivision (a)(6). We have held that a prefiling order imposed pursuant to
section 391.7 “is injunctive in nature and therefore appealable under section
904.1, subdivision (a)(6).” (Deal, supra, 45 Cal.App.5th at p. 619.) But this is
not an appeal from the prefiling order. (Thomas challenged the 2018
3 Likewise, Thomas’s attempt to relitigate the validity of the 2018
vexatious litigant and prefiling orders does not bring the appealed order
within section 904.1, subdivision (a)(2). Moreover, his challenge of those
orders in this appeal is barred by the law of the case doctrine, which
“ ‘precludes a party from obtaining appellate review of the same issue more
than once in a single action.’ ” (Dickinson v. Cosby (2019) 37 Cal.App.5th
1138, 1153.)
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prefiling order in his most recent prior appeal without success.) Here,
Thomas has appealed an order denying his request for permission to file new
litigation, a request he was required to make because he is a vexatious
litigant subject to a prefiling order. The order denying permission to file new
litigation under section 391.7 cannot reasonably be construed as an
injunction. To do so would be contrary to the policy underlying the vexatious
litigant statutory scheme — which is to curb misuse of the court system — as
it would make each denial of a request to file new litigation separately
appealable. Finally, we decline to exercise our discretion to treat this
purported appeal as a writ petition. (Katzenstein v. Chabad of Poway, supra,
237 Cal.App.4th at p. 770; Messih v. Lee Drug, Inc. (1985) 174 Cal.App.3d
312, 315, fn. 4.)
In sum, we conclude a trial court order denying a vexatious litigant’s
request to file new litigation under section 391.7 is not appealable. And
without an appealable order, we must dismiss the appeal.
II.
We dismiss the appeal for an additional reason: it is frivolous. An
“appeal is frivolous ‘when it is prosecuted for an improper motive—to harass
the respondent or delay the effect of an adverse judgment—or when it
indisputably has no merit.’ ” (Kinney v. Clark (2017) 12 Cal.App.5th 724,
732.) “Courts ‘impose a penalty for a frivolous appeal for two basic reasons:
to discourage further frivolous appeals, and to compensate for the loss that
results from the delay.’ ” (Id. at p. 742.) Dismissal is an authorized
sanction for prosecuting a frivolous appeal. (Flores v. Georgeson (2011)
191 Cal.App.4th 881, 887 [court may “dismiss an action ‘ “shown to be sham,
fictitious or without merit in order to prevent abuse of the judicial
process” ’ ”].) “California courts have the inherent power to dismiss frivolous
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appeals.” (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516.)
We acknowledge, however, that appellate courts should exercise their
inherent power to dismiss frivolous appeals only “in the absolutely clearest
cases.” (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1318.)
This is one of those cases. Without a doubt, the appeal is “objectively
and subjectively frivolous.” (Malek Media Group, LLC v. AXQG Corp. (2020)
58 Cal.App.5th 817, 835 (Malek); In re Marriage of Flaherty (1982) 31 Cal.3d
637, 649–650.) An appeal is objectively frivolous when a reasonable person
would “agree that the appeal is completely devoid of merit.” (Malek, at
p. 834.) That standard is easily met here. A trial court’s order is presumed
correct, and the burden is on Thomas to demonstrate prejudicial error.
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) Thomas’s opening brief
fails to present an intelligible argument challenging the appealed order.
Instead, Thomas disputes the validity of the long since final dissolution
judgments, as well as the 2018 vexatious litigant designation and prefiling
order, both of which were recently affirmed on appeal. (Deal, supra,
45 Cal.App.5th at p. 615; Kinney v. Clark, supra, 12 Cal.App.5th at p. 732
[appeal attacking “prior final orders as a basis for defeating” the order on
appeal was frivolous].)
Rather than articulating a persuasive basis for reversing the order,
Thomas levels ad hominem attacks on Patricia, and baselessly accuses
numerous bench officers who have presided over the litigation of corruption
and “criminal behavior.” “Disparaging the trial judge is a tactic that is not
taken lightly by a reviewing court.” (In re S.C. (2006) 138 Cal.App.4th 396,
422; Malek, supra, 58 Cal.App.5th at p. 837 [appellate court is not a forum for
ranting about conspiracy theories]; Pierotti v. Torian (2000) 81 Cal.App.4th
17, 32 & fn. 9 [appeal deemed frivolous based in part on defendant’s “attempt
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to assassinate [plaintiff’s] character based on facts that find no support in the
record”].) We previously warned Thomas that further abuse of our
process would result in an order of sanctions against him. (Deal, supra,
45 Cal.App.5th at p. 617.) Thomas did not heed our warning; his latest
appeal “has only served as a drain on the judicial system and the taxpayers of
this state.” (Malek, at p. 837.)
The appeal is also subjectively frivolous. Under the “subjective test, an
appeal is frivolous when ‘ “ ‘it is prosecuted for an improper motive—to
harass the respondent or delay the effect of an adverse judgment.’ ” ’ ”
(Malek, supra, 58 Cal.App.5th at p. 836.) “A complete lack of merit is
evidence that the appellant brought the appeal for the purpose of delay.”
(Ibid.) As discussed above, the appeal is wholly without merit, and Thomas’s
“war-like mentality” toward everyone “involved with this case” is further
evidence this appeal is being prosecuted for an improper motive. (Ibid.; In re
Marriage of Gong & Kwong, supra, 163 Cal.App.4th at p. 519 [appeal in
dissolution action was prosecuted “solely for the purpose of delay”].)
The prefiling order and the repeated rejections of Thomas’s
arguments — including in a previous published decision of this court — have
not curbed his abuse of the judicial process. In this egregious case, dismissal
is the appropriate sanction to deter Thomas from filing further frivolous
appeals. (Kinney v. Clark, supra, 12 Cal.App.5th at p. 742.) “Somewhere
along the line, litigation must cease.” (In re Marriage of Crook (1992)
2 Cal.App.4th 1606, 1613.) That point has been reached here.
DISPOSITION
The appeal is dismissed. No costs are awarded because respondent did
not make an appearance. (Rule 8.278(a)(5).)
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A164185
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Superior Court of Alameda County, Hon. Glade F. Roper. (Retired Judge of
the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of
the Cal. Const.)
No appearance for respondent.
Thomas M. Deal, in pro. per, for appellant.
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