Deal v. Deal (In re Deal)

• Decision Date: 24 February 2020
• Docket Number: A154425
• Citation: 259 Cal.Rptr.3d 1,45 Cal.App.5th 613
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE the MARRIAGE OF Patricia and Thomas DEAL. Patricia Deal, Respondent, v. Thomas Deal, Appellant.

45 Cal.App.5th 613

259 Cal.Rptr.3d 1

IN RE the MARRIAGE OF Patricia and Thomas DEAL.Patricia Deal, Respondent,

v.Thomas Deal, Appellant.

A154425

Court of Appeal, First District, Division 3, California.

Filed February 24, 2020

Thomas M. Deal, in pro. per., for Appellant.

Patricia Kim Deal, in pro. per., for Respondent

Jackson, J.

This is an appeal from trial court orders reaffirming a legal determination first made in 2005 that appellant Thomas Deal is a "vexatious litigant" within the meaning of Code of Civil Procedure section 391¹ and requiring him to obtain permission from the presiding judge before filing any new litigation or motions in propria persona.² Thomas, proceeding in propria persona for purposes of this appeal, contends these orders are void, unenforceable and unsupported by substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Respondent Patricia Deal filed a petition for the dissolution of her marriage to Thomas in October 2001. A judgment dissolving their marriage was entered in November 2002, and a judgment on reserved issues such as property distribution was entered in 2008.

In 2005, the trial court, with Commissioner Greg Oleon presiding, determined on Patricia’s motion that Thomas was a vexatious litigant and issued a prefiling order that prohibited him from filing any new litigation or motion in propria persona without first obtaining leave of the presiding judge of the court where the litigation was proposed to be filed.³ These decisions, issued on July 29, 2005, stemmed from Thomas’s conduct and filings in the marital dissolution proceedings, as well as in two separate civil actions he filed against Patricia. Thomas was also ordered to pay sanctions in the amount of $17,786 to cover the attorney fees Patricia incurred to successfully defend the two civil cases. We affirmed these orders in a nonpublished opinion filed on January 16, 2007. ( In re Marriage of Deal (Jan. 16, 2007, A111281) 2007 WL 98484.)

Nearly a year after Commissioner Oleon’s vexatious litigant and prefiling orders were entered, Thomas moved on June 5, 2006, to have the commissioner disqualified under section 170.1. The court timely responded to and denied Thomas’s challenge. On July 21, 2006, Thomas filed another section 170.1 challenge, to which the court failed to timely respond. Thomas then filed a " ‘Notice of Recusal by Default’ " that was granted on October 3, 2006.⁴ Pursuant to the court’s order, Commissioner Oleon was disqualified by reason of default from hearing this matter further.

On November 19, 2007, notwithstanding his disqualification, Commissioner Oleon reentered his previous vexatious litigant and prefiling orders "effective nunc pro tunc from 7/29/05." Commissioner Oleon took this action because, when entering his original orders in 2005, he neglected to file the mandatory Judicial Council form MC-700. Over a decade later, on February 10, 2018, Thomas complained to the presiding judge of the Alameda County Superior Court regarding Commissioner Oleon’s postdisqualification involvement in this case, prompting the court to issue an order to show cause (OSC) on March 21, 2018, with respect to the following three issues: (1) whether the court should vacate the vexatious litigant order of July 29, 2005; (2) whether the court should vacate the Judicial Council form MC-700 vexatious litigant order of November 19, 2007; and (3) whether the court should enter a new Judicial Council form MC-700 vexatious litigant order. The parties were permitted to file briefs with respect to each of these issues, and the matter was set for hearing on April 12, 2018.

Prior to this hearing, Thomas sought permission to file two new motions in propria persona, the first for a change of venue to Amador County and the second for a long cause hearing regarding his vexatious litigant designation. The court denied Thomas’s requests on April 12, 2018, the same day the hearing on the OSC took place.

Following the hearing, the trial court issued the orders under challenge in this appeal—the first reaffirming the finding that Thomas qualifies as a vexatious litigant (vexatious litigant order) and the second imposing a prefiling order with respect to his filing of any new motion or litigation in propria persona in this matter (prefiling order). Thomas has timely appealed.

DISCUSSION

Thomas appears to have used the opportunity of this appeal to make implicit threats against various members of the California judiciary and State Bar. We decline to restate every example of threat-making and intimidation set forth in Thomas’s appellate briefs given their odious tone. We will, however, identify one as representative of the whole. As stated in the opening brief on appeal: "[D]espite my sincere prayer for relief by the Court, I am also praying for a higher authority to cause a well timed avalanche that kills the majority of a certain judges [sic ] family, or a tree branch that breaks the neck of the young boy in the front yard, or a drunk driver tee bones [sic ] the right side door at high speed while the daughter is returning from her senior prom. Each of these would be, of course, ‘accidents’ and can cause a great deal of grief, but never cause the misery that knowledge that the injuries were caused intentionally by a well connected attorney, [name],⁵ his confederates, [names], caused to me as they harmed my children for their own benefits."

We do not take lightly Thomas’s use of the appellate process to threaten, however implicitly, our state’s lawyers and judges. Thomas clearly considers himself aggrieved by our judicial process. That is no excuse, however, for resorting to this sort of menacing language, which has no place in our courthouses or communities. It degrades our institution while also wasting its valuable resources. For this reason, we hereby warn Thomas any further abuse of our process will result in an order of sanctions against him. (See Flores v. Georgeson (2011) 191 Cal.App.4th 881, 887, 119 Cal.Rptr.3d 808 [a "court has inherent power, upon a sufficient factual showing, to dismiss an action ‘ "shown to be sham, fictitious or without merit," ’ " and to impose sanctions, " ‘ "in order to prevent abuse of the judicial process" ’ "]; Kinney v. Clark (2017) 12 Cal.App.5th 724, 740, 219 Cal.Rptr.3d 247 [" ‘California’s Constitution provides the courts, including the Courts of Appeal, with inherent powers to control judicial proceedings. [Citations.] To the same effect, Code of Civil Procedure section 128, subdivision (a)(8) authorizes every court "[t]o amend and control its process and orders so as to make them conform to law and justice" ’ "].)

Turning now to the merits, Thomas has raised the following issues for our consideration: (1) Are the trial court’s vexatious litigant order and prefiling order of April 17, 2018, void because the original vexatious litigant and prefiling orders of July 29, 2005, are void given they were entered by a disqualified commissioner? (2) If not void, are the April 17, 2018 orders nonetheless unenforceable because Thomas, as a nonplaintiff, cannot be designated a vexatious litigant? (3) Are the orders unsupported by substantial evidence? We address each issue in turn after laying out the governing legal framework.⁶

"The vexatious litigant statute ( § 391 et seq. ) was enacted ‘ "to curb misuse of the court system" ’ by ‘ "persistent and obsessive" litigants.’ [Citation.]" ( Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1198, 218 Cal.Rptr.3d 501 ( Thompson ).) Relevant here, a " ‘[v]exatious litigant’ " is one who, proceeding in propria persona, "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" (inter alia). ( § 391, subd. (b)(2), (3).) " ‘Litigation’ " for purposes of section 391 means "any civil action or proceeding, commenced, maintained or pending in any state or federal court." ( § 391, subd. (a).) A vexatious litigant may be prohibited from filing new litigation unless he or she obtains leave to do so from the presiding justice or judge of the court where he or she intends to file. ( Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 48–49, 61 Cal.Rptr.2d 694 ; § 391.7, subd. (a).) This 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." ( Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221–222, 120 Cal.Rptr.2d 879.)

Both parties acknowledge Thomas is entitled to bring this appeal without prior approval from the presiding justice and without a showing of a reasonable probability that his appeal has merit notwithstanding his designation in the trial court as a vexatious litigant because Thomas did not initiate this action below.⁷ (See John v. Superior Court (2016) 63 Cal.4th 91, 99, 201 Cal.Rptr.3d 459, 369 P.3d 238 ["the language of the vexatious litigant statute indicates that the prefiling permission requirement applies to appeals by plaintiffs, not to parties who did not initiate the action in the trial court"].) While an order declaring a person to be a vexatious litigant is not itself appealable ( People v. Harrison (2001) 92 Cal.App.4th 780, 785, fn. 6, 112 Cal.Rptr.2d 91 ), such order may be reviewed "in conjunction with an appeal from some subsequent otherwise appealable judgment or order." ( In re Bittaker (1997) 55 Cal.App.4th 1004, 1008, 64 Cal.Rptr.2d 679.) Relevant here, an order requiring a person to obtain permission from the presiding judge or justice before filing "new litigation" in propria persona (§ 391.7) is injunctive in nature and therefore appealable under section 904.1, subdivision (a)(6). ( Luckett v. Panos (2008) 161 Cal.App.4th 77, 90, 73 Cal.Rptr.3d 745.) Accordingly, w...