Bauman v. Wells Fargo Bank CA4/1

Filed 4/8/22 Bauman v. Wells Fargo Bank CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JORDANA BAUMAN, D078697
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-
00013452-CU-OR-CTL)
WELLS FARGO BANK, N.A.,
Defendant and Respondent.
APPEAL from orders of the Superior Court of San Diego County,
Ronald F. Frazier, Judge. Affirmed.
Jordana Bauman, in pro. per., for Plaintiff and Appellant.
Severson & Werson, Jan T. Chilton and Kerry W. Franich for
Defendant and Respondent.
I.
INTRODUCTION
Plaintiff Jordana Bauman filed the underlying action against Wells
Fargo Bank, N.A. (Wells Fargo) and other defendants, based on Bauman’s
allegations that Wells Fargo wrongfully foreclosed on her home. Bauman is
appealing from two orders that the trial court issued in the underlying
proceeding; Bauman seeks reversal of the trial court’s order declaring her a
vexatious litigant and its subsequent order requiring her to obtain the
approval of the court before filing additional litigation.
We conclude that the inadequacy of the record provided on appeal is
such that Bauman cannot demonstrate reversible error. We therefore affirm
the orders of the trial court.
II.
BACKGROUND
Bauman filed this action in March 2019. Deficiencies in the record on
appeal make it difficult to ascertain precisely what occurred as the litigation
proceeded.1 A copy of the trial court’s register of actions that is included in
the record reflects that a number of motions and requests were filed in the
case between the filing of the complaint and August 2020, when Wells Fargo
filed a renewed motion for entry of a vexatious litigant prefiling order.2
According to the register of actions, Wells Fargo filed a request for
judicial notice in conjunction with its motion for entry of a vexatious litigant
prefiling order. The register of actions also reflects that Bauman filed an
opposition to the motion.
1 Documents in the record appear to demonstrate that Bauman was
engaged in at least one other separately filed action against defendant Wells
Fargo while this case was proceeding.
2 The register of actions shows that Wells Fargo initially sought a
vexatious litigant prefiling order in November 2019. The record does not
include the moving papers for this motion or the court’s order with respect to
the motion.
2
None of the papers or evidence that the parties submitted with respect
to Wells Fargo’s motion was designated to be included in the Clerk’s
Transcript on appeal. As a result, these documents are not in the record.
The record does include the trial court’s January 28, 2021 order
granting Wells Fargo’s “Renewed Motion for Vexatious Litigant Pre-Filing
Order.” In the order, the court states:
“Plaintiff asserts she was not properly served with the
moving papers. However, the minute order from the last
hearing states ‘[u]pon the court’s inquiry, plaintiff
stipulates to accept electronic service from defendant(s).’
(ROA 146.) Wells Fargo’s proof of service indicates
Ms. Bauman was served by email per that stipulation, and
a copy was also sent to Ms. Bauman’s home address by
overnight mail. Further, the court observes Ms. Bauman’s
opposition thoroughly discusses the moving papers, and
that she was able to file an opposition more than a month
before the hearing. In light of these facts, the court
concludes that either Ms. Bauman was properly served, or
was at least able to obtain the moving papers in some way
in sufficient time to prepare a timely opposition to the
motion.
“Based on the evidence submitted by Wells Fargo
demonstrating Ms. Bauman has commenced, prosecuted, or
maintained in propria persona at least five litigations other
than in a small claims court in the immediately preceding
seven-year period that have been finally determined
adversely to [her], the court finds Plaintiff Jordana
Bauman to be a vexatious litigant. (Code Civ. Proc.
§ 391(b)(1)(i).)
3
“Pursuant to Code of Civil Procedure section 391.7 the
court enters a prefiling order prohibiting Ms. Bauman from
filing 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
to be filed. The clerk of court is directed to provide the
Judicial Council with a copy of this prefiling order. (Code
Civ. Proc., § 391.7, subd. (f).)
“Wells Fargo’s requests for judicial notice are granted.”
On February 2, 2021, the trial court issued a subsequent confirming
order titled “PREFILING ORDER—VEXATIOUS LITIGANT.” The order
prohibits Bauman “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.”
Bauman filed a timely appeal from the January 28th and February 2nd
orders on February 11, 2021.3
3 Wells Fargo filed a request for judicial notice on September 23, 2021,
the same date it filed its respondent’s brief. Wells Fargo asks this court to
take judicial notice of our court’s opinions and the remittiturs issued in case
Nos. D076767 and D076781, two recently decided appeals involving Bauman
and Wells Fargo. Wells Fargo contends that these documents are relevant to
the current appeal “because they demonstrate that Bauman has added two
more qualifying ‘litigations’ to her roster of unsuccessful pro se cases.” We
deny the request for judicial notice because these documents are not
necessary to our review in this case. (See Guarantee Forklift, Inc. v. Capacity
of Texas, Inc. (2017) 11 Cal.App.5th 1066, 1075 [appellate court “may decline
to take judicial notice of matters not relevant to dispositive issues on
appeal”].)
4
III.
DISCUSSION
Although her briefing on appeal lacks clarity, we can discern from the
notice of appeal that Bauman is challenging the trial court’s January 28,
2021 order granting Wells Fargo’s motion for a vexatious litigant prefiling
order, and the court’s subsequent February 2, 2021 issuance of a prefiling
order.
“The vexatious litigant statutes ([Code Civ. Proc., ]§§ 391–391.7) are
designed to curb 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 (Shalant).) Under section
391, subdivision (b), a vexatious litigant is “a person who has, while acting in
propria persona, initiated or prosecuted numerous meritless litigations,
relitigated or attempted to relitigate matters previously determined against
him or her, repeatedly pursued unmeritorious or frivolous tactics in
litigation, or who has previously been declared a vexatious litigant in a
related action.” (Shalant, at pp. 1169–1170.)
If an individual is determined to be a vexatious litigant, the court may
“ ‘enter a “prefiling order” that prohibits a vexatious litigant from filing any
new litigation in propria persona without first obtaining permission from the
presiding judge.’ ” (Shalant, supra, 51 Cal.4th at p. 1170.) The prefiling
order “ ‘ “operates beyond the pending case.” ’ ” (Ibid.) The statutes define
“ ‘litigation’ ” as “any civil action or proceeding, commenced, maintained or
pending in any state or federal court.” (§ 391, subd. (a).)
5
A “prefiling order contemplated by section 391.7, subdivision (a) is an
injunction. It is, literally, an order requiring [a party] to refrain from doing a
particular act—filing any new litigation without certain permission.”
(Luckett v. Panos (2008) 161 Cal.App.4th 77, 85.) An order granting an
injunction is appealable (§ 904.1, subd. (a)(6)).
“ ‘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.] Questions of statutory interpretation,
however, we review de novo.” (Holcomb v. U.S. Bank Nat. Assn. (2005)
129 Cal.App.4th 1494, 1498–1499.) These same standards are applicable to
the court’s decision to enter a prefiling order as a result of the vexatious
litigant determination.
The standards of review from vexatious litigant rulings demonstrate
that they incorporate a fundamental rule of appellate review: an appealed
judgment or order is presumed correct. (See Denham v. Superior Court (1970)
2 Cal.3d 557, 564.) “ ‘All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be
affirmatively shown. . . .’ [Citations.]” (Ibid.)
To overcome the presumption of correctness, it is incumbent on an
appellant to provide an adequate appellate record in order to demonstrate
error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Ballard v. Uribe (1986)
41 Cal.3d 564, 574 [“[A] party challenging a judgment has the burden of
showing reversible error by an adequate record”].) “ ‘A necessary corollary to
this rule [is] that a record is inadequate . . . if the appellant predicates error
6
only on the part of the record he [or she] provides [to] the trial court, but
ignores or does not present to the appellate court portions of the proceedings
below which may provide grounds upon which the decision of the trial court
could be affirmed.’ [Citation.]” (Osgood v. Landon (2005) 127 Cal.App.4th
425, 435.) Thus, in a situation in which an appellant fails to provide an
adequate record of the challenged proceedings, we must presume that the
appealed judgment or order is correct, and on that basis, affirm. (Maria P. v.
Riles, supra, at pp. 1295–1296; Estrada v. Ramirez (1999) 71 Cal.App.4th
618, 620, fn. 1.) These rules apply even where a litigant is representing
herself: “Pro. per. litigants are held to the same standards as attorneys.”
(Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Bauman has not provided this court with a record that would permit us
to assess the merits of her appellate contentions. Specifically, the record does
not include Wells Fargo’s moving papers pertaining to its vexatious litigant
motion, any of the evidence that Wells Fargo submitted in support of its
motion, or Bauman’s response to Wells Fargo’s motion. The arguments and
evidence on which the trial court relied in making a ruling are relevant and
necessary for an appellate court’s review of a challenged order. Given the
state of the record, we have no choice but to apply the presumption of
correctness to the trial court’s order determining Bauman to be a vexatious
litigant, as well as to the trial court’s prefiling order requiring that Bauman
seek approval before filing any litigation in the courts of this state.4 We
therefore affirm the court’s orders.
4 Even after the inadequacies of the record were pointed out to Bauman
by Wells Fargo in its respondent’s brief, Bauman did not attempt to remedy
them. Instead, Bauman suggests in her reply brief that Wells Fargo bears
7
the burden to “provide a record to back their argument about a bad record”
and that in failing to do so, Wells Fargo has “unclean hands.” Bauman
quotes from Mountain Lion Coalition v. Fish & Game Com. (1989) 214
Cal.App.3d 1043, 1051, fn. 9, in support of her contention. Mountain Lion
Coalition states:
“We take this opportunity to express our frustration with
the inadequacies of the record that has been provided by
appellants for our review. The clerk’s transcript omits
virtually every critical exhibit that was submitted to the
superior court in support of the parties’ memoranda,
motions and affidavits. We should not have to point out to
counsel who should be well-versed in appellate procedure
that the appellant has the burden of affirmatively
demonstrating error by providing an adequate record.
(Santa Clara County Environmental Health Assn. v. County
of Santa Clara (1985) 173 Cal.App.3d 74, 83–84, and cases
cited therein; 9 Witkin, Cal. Procedure (3d ed. 1985)
Appeal, § 418.) A necessary corollary to this rule is that if
the record is inadequate for meaningful review, the
appellant defaults and the decision of the trial court should
be affirmed. Throughout their brief, respondents assail the
lack of an adequate record, but nevertheless go on to make
numerous arguments based upon the missing exhibits. We
point out that respondents have the same obligation to
insure that the record contains the matter on which they
rely.” (Ibid.)
What Bauman fails to appreciate, however, is that Wells Fargo is not
attempting to rely on matters that are not in the record on appeal. Rather,
Wells Fargo’s argument is that the record is wholly inadequate to permit
appellate review of the errors that Bauman alleges, and that for this reason,
the presumption of correctness must be applied and the challenged orders
affirmed. Wells Fargo is correct; the inadequacies of the appellate record are
apparent on the face of the record. Bauman’s argument in this regard is
wholly without merit.
8
IV.
DISPOSITION
The January 28 and February 2, 2021 orders of the trial court are
affirmed. Wells Fargo is entitled to costs on appeal.
AARON, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
9