First Western Development Corp. v. Superior Court

• Decision Date: 31 July 1989
• Docket Number: No. B042039,B042039
• Citation: 212 Cal.App.3d 860,261 Cal.Rptr. 116
• Court: California Court of Appeals Court of Appeals
• Parties: FIRST WESTERN DEVELOPMENT CORP., et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Albert ANDRISANI, Real Party in Interest.

Page 116

261 Cal.Rptr. 116

212 Cal.App.3d 860

FIRST WESTERN DEVELOPMENT CORP., et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent Albert ANDRISANI, Real Party in Interest.

No. B042039.

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

July 31, 1989.

As Modified Aug. 15, 1989.

Review Denied Oct. 12, 1989.

Stewart S. Mims, Inc., Stewart S. Mims and Robin A. Mims, Los Angeles, for petitioners

No appearance for respondent.

Albert Andrisani, in pro. per.

THE COURT: ^*

Upon review of a petition for writ of mandate in which First Western Development Corp. (FWDC), a California corporation, is seeking to have Albert Andrisani declared a vexatious litigant, we have determined that Andrisani is repeatedly attempting to relitigate issues finally and conclusively determined in an unpublished opinion of this court.

In denying the motion re vexatious litigant as "premature," the respondent court failed to give consideration to the final and conclusive determination of the issues raised in First Western Development Corp. v. Andrisani (Jan. 9, 1989) B031357 [nonpub. opn.] (FWDC I ). ¹ Andrisani is a vexatious litigant insofar as this action is based on issues determined in FWDC I. Accordingly, we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In FWDC I, we reviewed the contentions raised by Samuel Andrisani and Albert Andrisani in a purported appeal after trial of an unlawful detainer action awarding possession of real property to FWDC. We treated the purported appeal from a nonappealable interlocutory order as a petition for writ of mandate. ² (FWDC I, supra, at p. 2, n. 1.)

In our decision we disposed of numerous contentions raised by the Andrisanis, including the contention that FWDC contravened the summary nature of the unlawful detainer proceedings by fomenting delay. (FWDC I, supra at p. 5.) We found the Andrisanis' argument that they were prejudiced by the delay unpersuasive as the delay largely resulted from the Andrisanis' conduct during the action. (FWDC I, supra at p. 10.) Further, and in any event, the Andrisanis continued to enjoy possession for the duration, and were required to pay rent at the usual rate as long as they remained in possession, irrespective of the existence of the unlawful detainer action.

In addition, in that opinion we imposed sanctions against the Andrisanis for filing a frivolous appeal taken solely for delay. (Code Civ. Proc., § 907; ³ Cal. Rules of Court, rule 26(a); FWDC I, supra, pp. 16-21.)

After oral argument in FWDC I the Andrisanis filed a motion to disqualify this court asserting that the Order to Show Cause re sanctions for the filing of a frivolous appeal was a prejudgment of the issues raised and revealed the court's bias against them. After our denial of the motion to disqualify and the filing of our opinion in FWDC I, the Andrisanis sought review in the Supreme Court which denied the petition for review. When, as here, all avenues for direct review have been exhausted, the judgment is final for all purposes. The only issues remaining in the unlawful detainer case were those issues connected with an accounting as to rents due from the Adrisanis to FWDC.

Thereafter, Albert Andrisani initiated several lawsuits:

1. NVC 19092, filed November 23, 1988, in which Andrisani alleged claims against FWDC and various officers and employees of FWDC, alleging causes of action for false arrest, false imprisonment, destruction and confiscation of property, emotional distress and trespass, apparently in connection with the enforcement of the order granting possession of real property to FWDC. In that action the superior court found Andrisani to be a vexatious litigant and ordered the posting of a $45,000 bond. When Andrisani failed to post the bond the action was dismissed. Andrisani filed an appeal of the order of dismissal.

2. LASC 657407, filed May 16, 1988, Andrisani together with his brother Samuel, who was a co-defendant in the unlawful detainer action, filed a lawsuit against FWDC, officers and employees of FWDC, TMC Escrow Co., Lincoln Title Co., and others, alleging 13 causes of action arising from the unlawful detainer case. A summary judgment was entered against the Andrisanis on December 13, 1988 as to all claims raised.

3. NVC 20269, filed March 3, 1989, a complaint naming FWDC as a defendant, alleging malice in proceeding with the unlawful detainer action. Andrisani, on June 16, 1989, was found a vexatious litigant and ordered to post a bond.

4. NVC 20449, filed March 22, 1989, in which Adrisani alleges harassment, fright, emotional and physical distress arising from the unlawful detainer action. FWDC 5. C719704, filed April 5, 1989, in which Andrisani alleged causes of action for abuse of process, negligence, malicious prosecution, defense expenditures, emotional and physical distress against FWDC, various officers of FWDC, the attorney and law firm which represented FWDC in the unlawful detainer action, the State Bar of California and the Los Angeles County Bar Assn. The basis of the claims asserted in this action is that FWDC, its officers, and legal representatives delayed the "fast paced proceedings of unlawful detainer for ulterior motives." The claims against the state and county bar associations are based on allegations the associations failed properly to "supervise the legal organization," thereby allowing the delay of the unlawful detainer action. It is this action which is the subject of the present writ proceeding.

counsel for FWDC, and an employee of FWDC are named defendants. On June 16, 1989, Andrisani was found a vexatious litigant and ordered to post a bond.

When FWDC was served with yet another complaint arising from the unlawful detainer action, it filed a motion for order requiring Andrisani to post security under the vexatious litigant statutes. ( § 391 et seq.) ⁴ After that motion was denied without prejudice as premature, FWDC sought a writ petition in this court. We issued a stay and notified the parties on May 26, 1989, that we were considering the issuance of a peremptory writ of mandate in the first instance as required by Palma v. U.S. Industrial Fasteners. Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893. ⁵

In response to our notice that we were considering the issuance of a peremptory

writ, Andrisani claims (1) this court was disqualified in November 1988 prior to our decision in FWDC I; (2) unlawful detainer proceedings adjudicate only possession, not abuse of process or malicious prosecution; (3) The opinion in FWDC I is not a final or conclusive determination as to the delay in the unlawful detainer action, because it was a writ petition, not an appeal; and (4) a conspiracy by women lawyers and judges against Andrisani, a male, deprived him of his due process and equal protection rights.

DISCUSSION

I. Disqualification

A. The November 1988 Motion to Disqualify Is Final.

Andrisani's contention relating to "disqualification" of this court arises from a November 1988 attempt to disqualify the panel after we advised the parties we were considering the imposition of sanctions in FWDC I because the appeal appeared both frivolous and taken solely for delay. After we heard oral argument both on the "merits" of the Andrisanis' contentions and on the sanctions issue in FWDC I, Andrisani filed a motion to disqualify this court. He does not choose to understand that our denial of that motion to disqualify in November 1988 is final and may not now be challenged. ⁶

B. The June 1989 Attempt to Disqualify Judges Who Have Entered Rulings Adverse to Andrisani Is Frivolous.

Andrisani, in connection with the instant petition, again attempted to obtain a disqualification of this court, filing a separate lawsuit naming the members of this panel as defendants, together with other judges and court officers who allegedly are engaged in a conspiracy to discriminate against Andrisani. Since the lawsuit was filed six days after we sent notice to Andrisani and all other parties that we were considering the issuance of a peremptory writ of mandate, the lawsuit is an obvious ploy to cause us to recuse ourselves.

The courts of this state cannot permit a litigant to "shop" for a judge through the device of filing a lawsuit against those judges who enter rulings adverse to the litigant. Such procedure would make it possible for a litigant who obtains an unfavorable decision from a trial court or from an appellate court to cause that court to become disqualified or to recuse itself merely by filing a lawsuit naming the judicial officers as defendants. Such an obvious attempt to manipulate the legal system will not be condoned. Further, the rule relating to disqualification of an appellate judge is that each appellate judge himself decides whether recusal is required. (Kaufman v. Court of Appeal (1982) 31 Cal.3d 933, 937-940, 184 Cal.Rptr. 302, 647 P.2d 1081.)

Because we can conceive of only one purpose, i.e., "judge-shopping," for Andrisani's attempt to disqualify this court and/or to cause this court to recuse itself, we individually and as a unit denied Andrisani's motion to disqualify this panel from proceeding in this matter. We are confident that review by a higher court will reveal no bias or prejudice against Andrisani but will reveal a decision based solely upon the law and the facts relevant to a determination of the legal issues.

II. Vexatious Litigant

A. The Purpose of the Vexatious Litigant Statutes Is to Prevent Abuse of the Judicial Process.

Subdivision (b) of section 391 is directed at the person who repeatedly relitigates or attempts to relitigate, in propria persona, (1) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined, or (2) 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...