Opinion
C072938
11-13-2017
In re the Marriage of KATINA LEE RAPTON and ANDREW GUS KARRES. KATINA LEE RAPTON, Respondent, v. ANDREW GUS KARRES, Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 01FL06813 )
In November 2012, after finding that the parties' then 11-year old dissolution action had turned away from issues relating to the well-being of the parties' young daughter and had instead become an effort by her father to focus on their child's "mother, the process, judicial officers, child custody evaluators, therapists, [and] credentials" among other issues and further finding that issues ostensibly relating to the daughter had provided her father "with a forum by which he has with . . . impunity castigated, vilified, and/or embarrassed, or attempted to embarrass the child's mother," the trial court declared the father, appellant Andrew Gus Karres (Karres), a vexatious litigant. Based in part on those findings, the trial court entered a "Prefiling Order-Vexatious Litigant" order pursuant to Code of Civil Procedure section 391.7, undesignated section references are to the Code of Civil Procedures, prohibiting Karres "from filing any new litigation in propria persona in the courts of California without approval of the presiding judge of the court in which the action is to be filed."
Karres appeals. He argues the trial court "failed to afford him basic constitutional notice that [respondent] Katina [Rapton (Rapton)] sought to declare [him] a vexatious litigant under Code of Civil Procedure [section] 391" and that he was denied any opportunity to defend himself against Rapton's request. We find that Karres had adequate notice that the motion at issue would consider whether he should be declared a vexatious litigant, and that he has forfeited that argument in any event. We further hold that, by failing to object to the court's order vacating the hearing scheduled on the motion, he has forfeited his argument that he was denied his right to be heard. We affirm the judgment.
FACTS AND PROCEEDINGS
As noted, this appeal arises from an order made after a post-judgment motion filed by Rapton which sought various forms of relief but, in pertinent part, asked the court to enter a "pre-filing order" that (whether acting on his own or with the assistance of counsel) he was required to obtain permission from the court before he could file any additional motions in this litigation.
In her memorandum of points and authorities in support of the motion Rapton wrote: "Code of Civil Procedure [section] 128(a)(5) provides that every court shall have the power to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every manner pertaining thereto. [¶] Respondent has frequently filed non-meritorious motions, both while in propria persona and while represented by counsel. Respondent continues to file such motions despite imposition of sanction fees. If sanction fees do [not] curb misuse of the judicial process, the court's authority to control its proceedings provides the basis for a pre-filing order, requiring that Respondent submit any motions to the court so that only meritorious motions may be scheduled for hearing."
Rapton did not cite section 391 in the motion or in the memorandum of points and authorities.
Karres filed several declarations in opposition to Rapton's rather wide-ranging motion, but failed to challenge the propriety of the requested prefiling order other than to check a box on a preprinted form that said, "I do not consent to the order requested."
The trial court treated Rapton's motion as requesting, in part, that Karres be "designated a vexatious litigant."
On November 13, 2012, the trial court issued a lengthy statement of decision, vacating the hearing scheduled for the next day on the basis that Sacramento Superior Court Rule 14.02(C), section 2009, and Family Code section 210 allowed it to decide the noticed motion on the written submissions.
In pertinent part, the trial court found that Karres had previously been determined to be singularly focused on 50-50 custody, which had been denied by a series of judges who had all upheld an award of sole custody to Rapton. It noted that Karres's behavior was "getting progressively worse—not better" and that his focus was on Rapton, not their child. It determined Karres had filed numerous spurious motions and that this behavior had been unchecked by sanctions due to Karres's financial condition. "Effectively, [Rapton] has emerged as a victim to [Karres's] use of the courtroom environment to cast aspersions on her personal life, embarrass her publicly, and make baseless allegations with evident impunity."
The trial court ruled that, as Karres was then represented by counsel, his current filings did not then bring him within the provisions of section 391, subdivision (b). Even so, Karres's arguments caused the court to review the post-2008 proceedings, and it determined that in the 17 months preceding the statement of decision, Karres had engaged in behavior qualifying him as a vexatious litigant under section 391, subdivisions (b)(2) and (b)(3). "Accordingly, in any proceeding in which [Karres] appears in propria persona, he shall comply with the requirement of Code of Civil Procedure section 391.7. . . ."
The parties appeared on the date set for the hearing, making a record that the hearing had been vacated by the court. Karres and his counsel did not object to vacating the hearing or make an offer of proof as to any further evidence that might have been submitted at the hearing. The court entered the "Prefiling Order-Vexatious Litigant" order the same day. Thereafter, Karres filed additional declarations and a 25-page objection to the statement of decision, none of which mentioned the vexatious litigant order or objected to the order based on his right to due process of law. On November 29 and after reviewing Karres's submissions, the court issued an order declining to modify its November 14, 2012, statement of decision. On January 10, 2013, Karres filed his notice of appeal.
DISCUSSION
I
Standard of Review
A determination whether an individual is a vexatious litigant falls within the discretion of the trial court and will be overturned only if unsupported by substantial evidence. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219 (Bravo).) "On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment." (Ibid.) Questions of law concerning the vexatious litigant designation are reviewed de novo. (In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1346.)
II
Karres Has Not Shown the Trial Court Erred in Designating Him a Vexatious Litigant
The Legislature created the vexatious litigant statutes to " 'curb misuse of the court system' " by those people representing themselves who sought to " 'repeatedly relitigate the same issues.' " (Bravo, supra, 99 Cal.App.4th at pp. 220-221.) To that end, section 391 subdivisions (b)(2)-(3) defines a vexatious litigant, in pertinent part, as a person who:
"(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 same defendant . . . 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.
"(3) In any litigation while acting in propria persona, 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."
The initial passage of the vexatious litigant statute created a mechanism requiring the vexatious litigant to post security in order to continue litigation under certain specified circumstances. (See Bravo, supra, 99 Cal.App.4th at p. 221.) Later legislation created an additional curb on vexatious litigants, the creation of a prefiling order requiring any vexatious litigant to obtain permission prior to filing any new litigation. (Ibid.) It is this mechanism that is at issue in this case.
Section 391.7 empowers the court, either "on its own motion or the motion of any party" 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." (§ 391.7, subd. (a).) It defines " 'litigation' " to include "any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code. . . ." (§ 391.7, subd. (d).)
Thus, the prefiling order entered in this matter prevents Karres from filing, while acting as his own attorney, most motions in this case, as well as new litigation in the courts of California without first obtaining permission. (See Bravo, supra, 99 Cal.App.4th at p. 221; In re Marriage of Rifkin & Carty, supra, 234 Cal.App. 4th at pp. 1345-1346.)
Karres complains the trial court erred because (1) Karres was not given notice that Rapton's motion for a "prefiling order" would be determining whether he was a "vexatious litigant" and (2) the order was impermissibly entered without an opportunity to address whether he should be declared a vexatious litigant.
Rapton counters that Rapton's motion and supporting papers clearly requested a "prefiling order" to curb Karres's abuses of the legal system and that family law procedures are more lax, requiring a detailed and specific memorandum of points and authorities only on a case by case basis. Rapton also argues the parties had been previously warned by the court of the potential for a vexatious litigant designation with a prefiling order, and that in fact, Karres had requested the court deem Rapton a vexatious litigant on multiple occasions.
Section 391.7, subdivision (a) recognizes the court's ability, on its own motion, to designate Karres a vexatious litigant and Karres had been previously warned of that possibility by the court. The trial court had the authority on its own motion to declare Karres a vexatious litigant and enter a prefiling order no matter what was in Rapton's moving papers. In any event, Rapton asked for a prefiling order in her motion and made it plain in her memorandum of points and authorities that she was asking for an order that would prevent Karres from filing further motions in this litigation without the permission of a judge. Her failure to specifically mention section 391 in her moving papers did not deprive Karres of notice that vexatious litigant status would be an issue to be addressed by the court. Moreover, a reading of section 391.7 relating to the entry of prefiling orders demonstrates that such orders may be entered only after a person has been declared a vexatious litigant. Rapton's motion for a "pre-filing order" placed Karres on notice that the motion sought a "pre-filing order" as that phrase is used in section 391.7.
This does not mean, however, that Karres was not entitled to an opportunity to be heard on whether he should be declared a vexatious litigant subject to a section 391.7 prefiling order. (See Bravo, supra, 99 Cal.App.4th at pp. 223-225 [litigant entitled to hearing prior to issuance of section 391.7 order if not previously designated a vexatious litigant consistent with sections 391.1-391.6 governing imposition of the security requirement].)
But, ultimately, Karres has forfeited the two arguments he presents in this appeal.
On the date the motion was otherwise to be heard there was a cordial conversation between the court and counsel confirming on the record that the hearing had been vacated by the court in favor of a statement of decision (and not a tentative ruling).
Karres failed to object at the time of the parties' appearance before the court that his procedural due process rights were being infringed in that he had not had adequate notice that he might then be declared a vexatious litigant or that he had not had an adequate opportunity to be heard on the issue. Nor were either of those contentions made in Karres's 25-page objection to the statement of decision.
Karres has forfeited these challenges which, had they been raised in the trial court could have been considered and, if necessary, remedied there. (See People v. Riccardi (2012) 54 Cal.4th 758, 801 [failure to raise procedural due process claim with trial court forfeited that argument]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [reviewing court will not review assertions of procedural error that could have but were not presented to the lower court because "it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected. . . ."; italics omitted]; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [refusing to consider assertions of error based upon arguments that could have been, but were not presented to the lower court].)
DISPOSITION
The judgment is affirmed. Respondent is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
HULL, Acting P. J. We concur: BUTZ, J. DUARTE, J.