Appellants Jeffrey R. Golin and Elsie Y. Golin (collectively, the Golins) appeal from the dismissal of this action after the trial court determined them to be vexatious litigants under Code of Civil Procedure section 391, subdivision (b)(2) and (3),
In 2001, the Golins' daughter Nancy, a woman in her 30's with developmental disabilities, was living in their care and custody, as she had all her life. In November of that year, Nancy was with her mother, Elsie, at Elsie's studio in Palo Alto when Nancy wandered off.
While in the hospital, Nancy was subjected to a Welfare and Institutions Code section 5150 psychiatric hold. After a detention hearing, Nancy was ordered released and the Golins went to the hospital to pick her up. But there,
Meanwhile, in November 2001, the Golins were arrested on a felony charge of adult dependent abuse as a result of police investigation into Nancy's living circumstances when she wandered off. The Golins posted bail and were released but not before Elsie was held overnight and a psychiatrist examined her in connection with a possible psychiatric detention. The criminal charges were ultimately dismissed on January 29, 2003.
In October 2003, the probate court conducted a three-week trial to resolve the question of Nancy's conservatorship. As noted, the proceedings were initiated by the State Department of Developmental Services (acting through the San Andreas Regional Center (SARC) and Embee Manor, where Nancy then resided), which petitioned the court for its director to serve as Nancy's permanent, limited conservator. (Prob. Code, §§ 1801, 1820, subd. (a)(4).) The Golins, named as respondents and representing themselves, strenuously opposed the conservatorship and they alternatively sought an order naming themselves as Nancy's conservators. On October 22, 2003, after several judicial challenges under section 170.6 by one or both of the Golins and their unsuccessful efforts to disqualify attorneys for other parties,
The court's statement of decision further noted that the Golins' conduct during the proceedings showed a clear pattern of inappropriate behavior, including witness coaching, misleading the court, evasiveness, late appearances, interruptions, and other disruptive conduct and that they had resisted providing the court with information about their finances and living situation that bore on their ability to act in the capacity of conservators over Nancy.
The day after the probate court issued its statement of decision resolving the question of Nancy's conservatorship, the Golins filed an action in the federal district court. As self-represented litigants, they named themselves and Nancy as individual plaintiffs. They named as defendants, among others, multiple local and state agencies, and employees of those agencies—virtually everyone affiliated with Nancy's conservatorship proceeding and her ongoing
The Golins' 69-page first amended complaint in the federal court alleged in 12 counts civil rights violations (due process and equal protection), a conspiracy to deprive them and Nancy of their civil rights based on the removal of Nancy from the Golins' custody, and deficiencies in Nancy's care and treatment since then.
In April 2004, the district court granted a defense motion to dismiss the Golins' first amended complaint under rule 12(b)(6) of the Federal Rules of Civil Procedure (28 U.S.C.). As to plaintiff Nancy Golin, who as a conservatee lacks capacity to appear in an action on her own behalf, the court's order determined that the Golins lacked standing to pursue her claims, concluding that under rule 17 of the Federal Rules of Civil Procedure (28 U.S.C.) and California law (§ 372) a conserved person must appear in an action through a guardian approved by the court or an appointed conservator. The order observed that where an incompetent person is so represented, it is only when the representative is unable to or refuses to act, or there is a conflict between the person and their representative, that a "next friend," as the Golins attempted to qualify themselves, may appear in an action on a conservatee's behalf. And the court concluded that none of these circumstances applied. Moreover, the court noted, constitutional challenges in the federal court may not be vicariously asserted for another through a nonlawyer.
The court also viewed the Golins' federal action that in part sought to regain custody over Nancy as an attempt to supplant the California probate court's prior order, which had already decided Nancy's status as a conservatee and her custodial needs, retaining ongoing jurisdiction to address these
On April 26, 2006, the Golins, through New York Counsel Gerard W. Wallace (who appeared as counsel pro hac vice),
Shortly after filing the complaint, which was not immediately served, the Golins submitted an ex parte application, with no notice to any defendants, for an order appointing Elsie as Nancy's guardian ad litem to represent her interests in the action. The application, which was granted, contended that the appointment was needed because Nancy's conservator was a defendant in the action and it was thus necessary for a third party to represent Nancy's interests and protect her rights as asserted in the complaint.
In August 2006, the Golins filed their 135-page verified first amended complaint, the operative pleading in the action. It named additional parties as
In July 2006, before any formal appearance by defendants in the action, some of them moved on numerous grounds to change venue from Sacramento County to Santa Clara County. Over the Golins' objection, the motion was granted by written order filed October 10, 2006, under section 394. The Golins, with Jeffrey now representing himself, moved for reconsideration of the order, but in response, the court affirmed its prior order transferring venue to Santa Clara County. The Golins petitioned for a writ of mandate in the Third District Court of Appeal but that was denied. They also petitioned for review in the California Supreme Court but that too was denied.
Before the case was formally transferred to Santa Clara County, and although the entire action was already stayed, defendant SARC sought a stay of the court's prior order appointing Elsie Golin as Nancy's guardian ad litem pending a formal motion to vacate the order. The asserted basis of the request was that a specific stay of the guardian ad litem order was necessary because the Golins were improperly using it to acquire Nancy's medical records. The application for a stay of the order was heard by a different judge than the one who had originally granted the order. Rather than just stay the order as requested, the court vacated it, concluding that Elsie had been erroneously appointed guardian ad litem for Nancy without notice to anyone and without
When the action was first transferred to Santa Clara County, Elsie Golin once again applied ex parte, without notice to defendants, for an order appointing her as Nancy's guardian ad litem in the action. The application, which was filed by Attorney Lara Shapiro as newly associated counsel for Elsie Golin, was granted by Judge Eugene Hyman on April 9, 2007. Two weeks later, SARC moved ex parte to vacate the order, again on the bases that no notice had been given to defendants of Elsie's application and that Judge Hyman had not been provided with Judge Martin's decision in the prior probate proceeding determining that the Golins were unfit to serve as Nancy's conservators. Judge Kevin Murphy granted SARC's application, vacating and annulling Elsie's most recent appointment as Nancy's guardian ad litem "without prejudice" to Elsie reapplying.
Elsie promptly reapplied on noticed motion to be appointed Nancy's guardian ad litem in the action. She alternatively sought the appointment of John Lehman, the "visit supervisor" for the Golins' visits with Nancy, as guardian ad litem. Defendants opposed the motion, which was heard before Judge Hyman, sitting in probate. The court determined that Nancy needed the appointment of a guardian ad litem for purposes of the action but appointed Claudia Johnson, an "independent private professional who will also retain counsel," and not Elsie Golin as requested.
But in June 2007, Claudia Johnson moved the court for an order vacating her appointment on the basis that she was unaware that the court had been considering appointing her as guardian ad litem for Nancy, that she had not received any notice of that, and that time commitments in other cases precluded her ability to act in this case for Nancy. The court granted relief and vacated her appointment, leaving Nancy, a conservatee, without a representative to act on her behalf in the action.
Meanwhile, different defendants filed several motions challenging the first amended complaint, including demurrers, motions to strike, motions for judgment on the pleadings, and an anti-SLAPP (strategic lawsuit against public participation) motion (§ 425.16). The motions were initially set to be
Before the defense motions could be heard, the Golins challenged Judge Kevin Murphy, to whom the pending matters in the case had been assigned for decision, for cause under section 170.1. Judge Murphy recused himself and the matters were taken off calendar.
The Golins also filed a motion to change venue on the asserted ground that they could not receive a fair trial in Santa Clara County. And they moved ex parte for reconsideration of Elsie's application for an order appointing her as Nancy's guardian ad litem in view of Claudia Johnson's inability to serve in that role. Jeffrey Golin also filed a for-cause challenge under section 170.1 to Judge Eugene Hyman, who had denied Elsie's previously noticed guardian ad litem application and appointed Claudia Johnson instead. After consideration by a judge assigned from another county, the challenge to Judge Hyman was denied.
The pending matters were then reassigned to Judge Neal A. Cabrinha, whom Jeffrey Golin also challenged for cause under section 170.1, and the matters were continued. After consideration by a different judge assigned from an outside county, the challenge to Judge Cabrinha was denied. Jeffrey Golin also filed a peremptory challenge to Judge Cabrinha under section 170.6. But on July 23, 2007, one of the defendants (Jacqueline Duong) was appointed as a judge to the Superior Court of Santa Clara County, "necessitating the recusal of all judges of the Superior Court of the County of Santa Clara," and the entire Santa Clara County bench disqualified itself from hearing the case.
On August 22, 2007, the Golins amended their motion for change of venue, adding as a basis for it that they could not receive a fair trial in Santa Clara County because the entire bench had recused itself. Judge Breen denied the motion by written order filed two days later. The defense motions and challenges to the first amended complaint that had been pending since June were again continued to September 17, 2007, and additional challenges to the pleading were filed by one defendant and joined by others. The Golins filed a
The Golins then filed a "renotice" of the prior motion for reconsideration of Elsie's application for an order to be appointed Nancy's guardian ad litem, the prior reconsideration motion never having been ruled upon after the challenge to Judge Hyman, who had initially ruled on the matter, and the subsequent recusal of the entire Santa Clara County bench.
On October 11, 2007, defendant City of Palo Alto filed a motion to have the Golins declared vexatious litigants within the meaning of section 391, subdivision (b)(2) and (3); to require them to post security to continue the litigation; and to have the court issue a prefiling order requiring the Golins to obtain the signature of the presiding judge before filing any future similar claims. The asserted grounds for the motion were that the Golins' claims had been fully litigated in previous proceedings, the present action constitutes mere relitigation of their meritless claims, and the Golins had engaged in delaying and harassing tactics by filing frivolous and repetitive pleadings in
The Golins opposed the motion and filed as part of their opposition declarations from Elsie's Attorney Gerard Wallace and Attorney David Beauvais, who had specially appeared on her behalf, to the general effect that neither was acting as a mere "puppet" for the Golins even though Jeffrey Golin as a self-represented litigant was "doing the footwork" for the case and was performing legal research that each attorney said he had reviewed. And Jeffrey Golin filed a peremptory challenge to Judge Byrne under section 170.6, which Judge Byrne denied as untimely and as being statutorily unavailable to Jeffrey Golin because he had already exercised his right to file a peremptory challenge in the case.
As part of the City of Palo Alto's reply and supplemental reply to the motion, it offered evidence that Elsie's attorney, Geoffrey White, had done nothing in the case other than sign on as local counsel to Attorney Wallace's pro hac vice application and that the attorneys' signatures on the Golins' opposition to the vexatious litigant motion, and the Wallace and Beauvais declarations filed in support of it, had all actually been signed by someone other than the attorneys themselves. Moreover, Attorney Beauvais had not substituted in or associated as counsel of record for Elsie Golin, continuing to appear specially for her. In addition, the City of Palo Alto offered evidence that the signatures of third parties on multiple proofs of service for documents filed by the Golins were forged, as the third parties so testified at the hearing.
The court admitted into evidence at the hearing the declaration of David Beauvais that Jeffrey Golin had signed, two forged proofs of service, and the court's register of actions on which defense counsel had marked 29 documents filed by the Golins that counsel contended were either "amended or supplemental" to documents already filed or constituted repetitive filings.
In announcing his ruling from the bench, Judge Byrne noted that the court register of actions reflected numerous filings by the Golins, including multiple requests for reconsideration of prior rulings, in connection with the guardian ad litem and venue issues. The court questioned whether this was sufficient to find a party vexatious. But it observed that though each of the Golins' filings viewed in isolation might be reasonable, it was when the court considered the additional time and delay necessitated by the Golins' revisitation of issues and the volume of their supplemental and amended filings that a "level of vexatiousness" was reached, speaking to an improper attempt by the Golins to "grind down the other side" or keep them from "being able to move forward" in the litigation. This, the court concluded, "created an unmeritoriousness to the [filings] themselves."
The Golins failed to post the bond as required by the court's order. At the order-to-show-cause hearing that followed, the court dismissed the entire action, with prejudice, signing an order so providing.
Section 391.7 provides the second and additional remedy. It authorizes the court 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 judge of the court where the litigation is proposed to be filed." (§ 391.7, subd. (a).) The presiding judge may allow the filing of the new action "only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3." (§ 391.7, subd. (b).)
When considering a motion to declare a litigant vexatious under section 391.1, the trial court performs an evaluative function. The court must weigh the evidence to decide both whether the party is vexatious based on the statutory criteria and whether he or she has a reasonable probability of prevailing. (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786 [55 Cal.Rptr.3d 112, 152 P.3d 416] (Moran).) Accordingly, the court does not assume the truth of a litigant's factual allegations and it may receive and weigh evidence before deciding whether the litigant has a reasonable chance of prevailing. (Id. at p. 785, fn. 7.)
Respondents challenge the Golins' right to bring this appeal without their first having obtained leave to do so from the presiding justice of this court. As noted, under section 391.7, a party who has been declared a vexatious litigant and who is the subject of a section 391.7 prefiling order as the Golins are here cannot file or maintain litigation as a self-represented litigant without first obtaining leave of the presiding judge of the court where the litigation is or would be venued. This bar extends to appeals such that a vexatious litigant contemplating a propria persona appeal must first obtain permission from the presiding justice of the appropriate reviewing court. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216-1217 [73 Cal.Rptr.2d 288].)
The trial court exercises its discretion in determining whether a person is a vexatious litigant. Review of the order is accordingly limited and the Court of Appeal will uphold the ruling if it is supported by substantial evidence. Because the trial court is best suited to receive evidence and hold hearings on the question of a party's vexatiousness, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219 [120 Cal.Rptr.2d 879]; Morton v. Wagner (2007) 156 Cal.App.4th 963, 969 [67 Cal.Rptr.3d 818].) Of course, we can only imply such findings when there is evidence to support them. When there is insufficient evidence in support of the designation, reversal is required. (Roston, supra, 127 Cal.App.3d at p. 848.)
Likewise, a court's decision that a vexatious litigant does not have a reasonable chance of success in the action is based on an evaluative judgment in which the court weighs the evidence. If there is any substantial evidence to support the court's determination, it will be upheld. (Moran, supra, 40 Cal.4th at pp. 784-786.) But questions of statutory construction or interpretation are still reviewed de novo, as are questions of law. (Holcomb, supra, 129 Cal.App.4th at pp. 1498-1499.)
The first element of their challenge relates to whether the Golins were acting in propria persona in the litigation. Jeffrey Golin began representing himself early in the case and he did so through its termination. There is accordingly no question that as to this element, the statute is satisfied as to him. The thornier question is whether Elsie Golin can be said to have been acting in propria persona when she had counsel of record (Attorneys White and Wallace throughout and Shapiro during some of the time).
Respondents observe that even though Elsie was technically represented by counsel, there is evidence in the record that Attorney White had nothing to do with the Golins' litigation activity other than signing Attorney Wallace's pro hac vice application. They further point out that there is evidence in the record that Attorney Wallace's actual representation of Elsie in the action was limited in that Jeffrey Golin was performing the legal research on which Wallace relied as well as drafting and serving legal documents for himself and Elsie. Jeffrey even sometimes signed Wallace's name not just on legal memoranda but also on a declaration purporting to be that of Wallace and he did the same with Attorney Beauvais, albeit with the attorneys' approval as to the declarations.
Based on this evidence, respondents cite Muller and Shieh for the general proposition that where counsel functions as a mere puppet by only nominally appearing for a party who is effectively acting as a self-represented litigant, and who is actually controlling the conduct of the litigation by drafting pleadings and other legal documents, the representation is a sham and it will not defeat application of the vexatious litigant statutes. (Muller, supra, 2 Cal.App.3d at p. 444; Shieh, supra, 17 Cal.App.4th at pp. 1167-1168.) The Golins counter that neither case applies because in each, the party had been declared a vexatious litigant while acting propria persona in a prior action, and it was only in the subsequent action where the party's attorney representation was disregarded in order to apply the vexatious litigant remedies.
Accordingly, that Elsie Golin was represented by counsel of record throughout the litigation is no bar to the court determining that she is nevertheless a vexatious litigant under section 391, subdivision (b)(3) when counsel did not exercise professional controls over the representation, leaving her and Jeffrey Golin to effectively run the case as self-represented litigants. Because the court's conclusion in this regard is supported by substantial evidence in the record, we cannot say that the court abused its discretion in determining Elsie to be a vexatious litigant under section 391, subdivision (b)(3) simply because she was technically—but in some sense only nominally—represented by counsel.
The Golins also contend that they were not demonstrated to have repeatedly filed unmeritorious motions, pleadings, or other papers or to have
Based on our review of the voluminous record in this case, there is substantial evidence from which to imply findings in support of the trial court's ultimate determination about the Golins' litigation tactics. We need only examine one topic—their challenges to every judicial officer assigned to this case in Santa Clara County—to reach this conclusion. This is because the record demonstrates that the Golins' persistent and obsessive use of judicial challenges in this action, both peremptory and for cause and without regard to timeliness or validity, rises to the level of a frivolous litigation tactic that qualifies them as vexatious litigants under section 391, subdivision (b)(3), even though the trial court did not specifically cite this tactic in its ruling.
The Golins contend that because a portion of their challenges resulted in judges' recusals, their conduct in this regard cannot be characterized as frivolous. But in this case alone, their judicial challenges directly resulted in recusals only twice and more often, they did not. That the entire Santa Clara County bench ultimately recused itself was not related to a challenge by the Golins, and their overall lack of success with judicial challenges is therefore not cured by this en masse recusal, which was due solely to defendant Jacqueline Duong being appointed to the Santa Clara County bench.
Jeffrey Golin's apparent forgeries on the Golins' proofs of service also qualify as substantial evidence of frivolous tactics in that such conduct is a flagrant abuse of the system.
In sum, Jeffrey Golin was acting in propria persona in the litigation and Elsie Golin's legal representation of record does not preclude the same conclusion, in fact, as to her. Moreover, based on their numerous unsuccessful judicial challenges, and the forged proofs of service on their documents, there is substantial evidence in the record to support the conclusion that the Golins are vexatious litigants under section 391, subdivision (b)(3), in that they have engaged in litigation tactics that can be described as frivolous. No more is required under this subdivision, which specifies neither a quantity of actions necessary to fit the bill nor a timeframe within which the actions had to have taken place in order for a party to be designated a vexatious litigant. (Morton v. Wagner, supra, 156 Cal.App.4th at p. 971.)
As noted, section 391.1 provides that on motion of a defendant, the court may require the posting of security by the plaintiff if it determines, on an evidentiary showing, both that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the action against the moving defendant. (See also § 391.3.) The burden on the motion is on the moving party and the court is required to weigh the evidence in exercising its discretion to determine whether the plaintiff has no reasonable likelihood of prevailing in the action. (Moran, supra, 40 Cal.4th at p. 786.)
Here, the moving parties offered no evidence relating to the merits of the case, relying instead, with little analysis, on the asserted preclusive effect of the court's prior determinations in the conservatorship proceeding and the district court's determinations in its order dismissing the Golins' federal action. And in concluding that there was no reasonable likelihood of the Golins' prevailing in the action, the court said that it had relied on the district court's order.
The Golins contend that neither prior order had preclusive effect because neither determined, on the merits, the same issues or claims as are raised here. The conservatorship proceeding resolved only whether Nancy should be conserved and if so, who should then be appointed to act as her conservator. It did not purport to decide other issues. The district court, they contend, did not decide anything on the merits but instead dismissed the Golins' case, in which they had sought among other things custody of Nancy, by invoking principles of federal abstention that left them free, as the order expressly stated, to litigate their claims arising under state law in state court. Accordingly, even if the order could be argued to be determinative of some of the Golins' claims made here, the same cannot be said of their state law claims that the order left expressly unresolved and preserved.
Respondents devote just over one page of their brief to the question whether the Golins are unlikely to prevail on the merits of the case. They cite no authority and offer no real analysis to support their bald conclusion that because of the two prior orders, there is no reasonable likelihood that the Golins will prevail against them on any cause of action.
We conclude that on the face of it, neither of the orders (of which we take judicial notice) determined the merits of essential claims raised here by the Golins—their entitlement to damages arising from the alleged illegal search of their property and from their having allegedly been maliciously prosecuted
We have concluded that the trial court's dismissal of the entire action must be reversed. This reversal will effectively reinstate all causes of action alleged in the first amended complaint, including those ostensibly brought by Nancy, who was never determined to be a vexatious litigant and whose claims therefore should not have been dismissed through the vexatious litigant statutes. (Estate of McDill (1975) 14 Cal.3d 831, 840 [122 Cal.Rptr. 754, 537 P.2d 874] [general reversal encompasses entire judgment where claims are inextricably interwoven]; Warren v. Merrill (2006) 143 Cal.App.4th 96, 108 [49 Cal.Rptr.3d 122].) Contrary to respondents' contentions, the first
Because Nancy cannot appear on her own behalf, and no guardian ad litem is currently appointed for her, her claims are presently at risk of dismissal. The Golins contend that Elsie remains Nancy's duly appointed guardian ad litem because the orders vacating her appointment are void, having been made by judges other than the ones who appointed her. They cite Ford v. Superior Court (1986) 188 Cal.App.3d 737, 741-742 [233 Cal.Rptr. 607] (Ford) in support of this proposition. But in Ford, a plaintiff filed a complaint seeking to overturn a judgment previously rendered in another action by the same court. The Court of Appeal held that a judgment rendered in one department of the superior court is not subject to interference or restraint by another department of the same court because the power of appellate review is vested in our Courts of Appeal and the Supreme Court by virtue of the California Constitution. (Ibid.) And when a matter is assigned for hearing and determination to one department of a superior court, it is beyond the power of another department of the same court to interfere with that jurisdiction. (Ibid.)
The circumstances in Ford are a far cry from those here concerning Elsie's appointment as Nancy's guardian ad litem and the vacation of those orders. Whether in Sacramento County or Santa Clara County, at the time of the ex parte orders appointing Elsie, the case was not assigned to a particular department for hearing and determination. Moreover, the appointment of a guardian ad litem is subject to ongoing court supervision and the removal of
As noted, while the entire action will be reinstated by virtue of our reversal of the dismissal, Nancy Golin, as a conservatee, cannot pursue claims or causes of action on her own behalf and she can only do so either through her conservator or a duly appointed guardian ad litem.
The order of dismissal is reversed.
Rushing, P.J., and McAdams, J., concurred.
