Deal v. Deal (In re Deal)

• Decision Date: 21 June 2022
• Docket Number: A164185
• Citation: 80 Cal.App.5th 71,295 Cal.Rptr.3d 415
• Parties: IN RE the MARRIAGE OF Patricia and Thomas DEAL. Patricia Deal, Respondent, v. Thomas Deal, Appellant.
• Court: California Court of Appeals Court of Appeals

80 Cal.App.5th 71

295 Cal.Rptr.3d 415

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

v.Thomas Deal, Appellant.

A164185

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

Filed June 21, 2022

No appearance for respondent.

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

Rodríguez, J. 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, 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, 259 Cal.Rptr.3d 1.) 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, 259 Cal.Rptr.3d 1.) 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, 259 Cal.Rptr.3d 1.) 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, 259 Cal.Rptr.3d 1.)

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, 259 Cal.Rptr.3d 1.) And we warned 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, 259 Cal.Rptr.3d 1.) 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, 259 Cal.Rptr.3d 1.)

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 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. [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, 259 Cal.Rptr.3d 1.) 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, 259 Cal.Rptr.3d 1.) "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 he ... intends to file." ( Id. at p. 618, 259 Cal.Rptr.3d 1.) 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, 259 Cal.Rptr.3d 1.)

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, 32 Cal.Rptr.2d 275, 876 P.2d 1074.) 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, 188 Cal.Rptr.3d 461.) 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, 4 Cal.Rptr.2d 689.)

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, 54 Cal.Rptr.2d 459.) The order is not, as Thomas suggests, appealable...