Falcone v. Fyke, s. H034104

• Decision Date: 23 February 2012
• Docket Number: H036368.,H035337,H034127,H034869,Nos. H034104,s. H034104
• Citation: 2012 Daily Journal D.A.R. 2398,138 Cal.Rptr.3d 44,203 Cal.App.4th 964,12 Cal. Daily Op. Serv. 2231
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARRIAGE OF Richard FALCONE AND Kathey FYKE.Richard S. Falcone, Appellant, v. Kathey Fyke, Respondent.

12 Cal. Daily Op. Serv. 2231

138 Cal.Rptr.3d 44

2012 Daily Journal D.A.R. 2398

203 Cal.App.4th 964

In re MARRIAGE OF Richard FALCONE AND Kathey FYKE.Richard S. Falcone, Appellant,

v.Kathey Fyke, Respondent.

Nos. H034104

H034127

H034869

H035337

H036368.

Court of Appeal, Sixth District, California.

Feb. 23, 2012.

See Annot., Validity, Construction, and Application of State Vexatious Litigant Statutes (2009) 45 A.L.R.6th 493; Cal. Jur. 3d, Actions, § 54; Cal. Civil Practice (Thomson Reuters 2011) Procedure, §§ 15:46, 15:53; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2011) ¶ 16:235 (CAFAMILY Ch. 16-B); 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 5; 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, §§ 367, 368, 370.

Kathey Fyke, In pro. per.

Bernard N. Wolf, Law Offices of Bernard N. Wolf, San Francisco, Lynne Yates–Carter, Law Offices of Yates–Carter, San Jose, for Respondent Richard S. Falcone.

PREMO, J.

These are five more in propria persona appeals that we are considering together in the series of appeals or writ petitions filed in this court since 2005 by Kathey Fyke in her dissolution of marriage proceeding with Richard S. Falcone. Here, Kathey ¹ challenges (1) a judgment distributing marital property (H034104), (2) a postjudgment order awarding attorney fees, costs, and sanctions against her (H034127), (3) a postjudgment order confirming an accounting and distributing funds (H034869), (4) a postjudgment order awarding sanctions against her for appealing an order awarding sanctions against her (H035337), and (5) a prejudgment order awarding sanctions against her for misconduct in her efforts to obtain a trial continuance (H036368). We reject the challenges and affirm the judgment and orders. We also find that Kathey is a vexatious litigant henceforth subject to a prefiling order pursuant to Code of Civil Procedure section 391.7. ²

H034104—THE JUDGMENT DISTRIBUTING MARITAL PROPERTY

Background

During in limine proceedings before trial court judge Thomas William Cain, Kathey made a request for need-based attorney fees pursuant to Family Code section 2031, subdivision (b)(1), which allows that such a motion may be made orally, without notice, at the time of the hearing of the cause on the merits. The colloquy is as follows.

“[Kathey]: Okay. On May 12th, you told me that I couldn't file any more motions, and I respected that. But I have a couple issues that I would like to address that are kind of—I would like to make one more request for attorney's fees. I'd like to make that in accordance with Family Code 2031(b), that provides for oral motion. And, again, because the opposition had asked you that I not be able to file any more motions, I'm putting it in the form of an oral motion. [¶] I have the 5–12 transcript if you would like to look at that. I—I have a current I & E. One was recently filed. I'm not sure if you have it, but I brought a courtesy copy for you. I'm prepared to discuss the financial capabilities of both parties. I also brought the required ... [¶] ... [¶] ... three years of tax returns with me. [¶] I'd like to address the Saratoga funds which seem to be brought up a lot. And given the fact if I touch the fruits of the judgment, I waive my right to appeal the sale of the Saratoga home—... I think there is no parity in our representation. I realize that this is the 11th hour, but I would still like to request attorney fees.

“THE COURT: The request is denied.

“[Kathey]: Okay. Can I request attorney fees for the appeal process?

“THE COURT: The request is denied.

“[Kathey]: Okay. Along those—can I ask why?

“THE COURT: Not timely.

“[Kathey]: To both of them?

“THE COURT: Yes, among other reasons.”

Also during the in limine proceedings, the trial court granted Richard's motion “to exclude testimony and documents as to any reimbursement claims that [Kathey] might have, and expenses, that based on failure to provide documentation in discovery for which she was ordered to produce, including characterization, valuation, division of assets, any reimbursement claims she might have or expenses, attorney's fees, health issues.” During the proceedings, it remarked: “You were ordered to produce. You have produced very little, if anything.” It observed: “I'm looking at binders that you've provided to the Court. [¶] ... [¶] Four full binders of 215 exhibits. [¶] ... [¶] ... [but] the only thing that's attached to [your response to form interrogatories] is two tax returns and two mortgage statements. [¶] ... [¶] I'm just saying that's all you've produced, yet you've provided me with four binders of 215 exhibits.” Concerning Richard's request for production of documents, the trial court asked Kathey “What else did you produce?” When Kathey replied that “I produced probably 25 [or 12] boxes of stuff,” the trial court asked Kathey “To whom did you provide these 12 boxes of documents?” Ultimately, Kathey replied: “I didn't give them to anybody....” The trial court also declined Kathey's request to consider a specific real estate appraisal after remarking that the case had been continued for reasons of Kathey's health and Kathey had obtained the real estate appraisal during the interim. It concluded: “Let's put it this way, [Kathey]. I'm going to grant the exclusion and it's going to be up to you, if you attempt to produce something, to demonstrate that it was provided in response to either their interrogatories, requests for production, or prior order of the court. And failing that, it will not be considered.”

The trial court finally noted that the parties had agreed to bifurcate the issue of attorney fees: “Because with regard to attorney's fees, it's my understanding that [Richard] has requested that the issue be bifurcated and heard by declaration, or whatever, posttrial. And I gathered from the items that [Kathey] had provided me that sounded like [Kathey] had no objection to that.” To this, Kathey replied, “No.” She then added, “But with regards to that, I would like to do it in person, not just by paper.” The trial court then concluded: “Well, again, we can address the forum, but the concept being it's separated and we'll deal with it after the trial.”

The trial court conducted the trial in 2008 on August 13 through 15, 18 through 22, 25 through 27, and October 6 through 7. During trial and Kathey's testimony, the trial court reminded Kathey that the trial was scheduled to take two weeks “And we got to the end of it and to be fair to you, I wanted to give you a chance to testify because we never got to your testimony. [¶] ... [¶] That's why I gave you the extra day over objections of opposing counsel. So I just wanted to warn you. I am aware that you are concerned about having enough time. It's up to you how you want to use it.” Kathey nevertheless again objected to “the time limit of only one day.” She explained: “It is my understanding that the trial was originally estimated to require two weeks. We've only had four full days and six half days, equating to seven days, not the ten days as originally requested. Those days were used by [Richard] to present his case.” The trial court then replied as follows: “Well, [Kathey], as I repeatedly reminded you during the course of the earlier two-week proceedings that you were burning time over nonproductive matters. It was not unusual for [Richard] to present a witness that took 20 minutes and you spent literally four hours in unproductive cross-examination. [¶] I kept warning you that you are burning your own time and you continued to pursue every witness in that same unproductive fashion, to the point that if you are short of time you have no one to blame but yourself. Consequently, request for further time beyond the two days—excuse me—the two afternoons is denied.” Kathey nevertheless continued to argue with the trial judge raising points such as “a comment that [the trial court] made back in August.... [¶] ... [¶] [r]egarding those 20 boxes of documents and the discovery issues,” “this is a case of abuse of ... power,” and “[Richard's] intent was to leave [her] without the funds to maintain her own attorney.” This argument takes up six pages of the reporter's transcript after which the trial court inquired, “Again, why are you testifying to all of this? What does this have to do with the issues before me? This sounds like a closing argument. It doesn't sound like testimony with regard to the property issues.” Kathey continued making her points motivating the trial court to ask, “Why don't you get to the property issues. That's what's before the Court.” When Kathey did not address the property issues, the trial court commented: “Well, I don't understand why you are going through the history of who represents whom and who you contacted and everything else. None of this has to do with the property issues. You've got a lot of property issues you need to address.” After the trial court stated “I don't even know what your basic position is as to any of the issues,” Kathey exclaimed, “That's what I'm trying to preface here. I could have been through by now. We wasted 10 minutes on this.”

The trial court rendered a proposed statement of decision, a statement of decision incorporating the proposed statement, and a judgment incorporating the statement. The judgment expresses the following.

“The issues that are addressed below are all matters that could have been resolved by the parties with even the least bit of cooperation on the part of [Kathey]. [¶] Although in contested matters there is generally fault to be found with both sides, in this matter, the relatively isolated shortcomings of [Richard] pale in comparison to [Kathey's] delay tactics; the lack of any ascertainable direction or remotely perceptible objective on her part as to any issue; the endless motions (most of which had been previously been repeatedly ruled upon); the virtually valueless and lengthy time-consuming cross-examination of each and...