PERREN, J.
John Nist
This appeal represents the latest chapter in appellant's quest to undo his mother's lawful transfer of her residence to his sister Barbara more than 35 years ago. The relevant facts are largely derived from our prior opinion affirming the judgment entered after the trial court sustained Barbara's demurrer to the first complaint appellant filed against her in 2004. (Nist v. Crane (Dec. 26, 2006, B187574) [nonpub. opn.].)
In 1975, Stalker Nist executed a quitclaim deed transferring her residence in San Luis Obispo (the property) to her daughter Barbara. Stalker Nist continued living at the property until 1994, when she moved in with Barbara due to her declining health. Stalker Nist died in 1996.
In 1994, appellant began living at the property under a month-to-month rental agreement he executed with Barbara. Appellant lived at the property with his girlfriend until he moved in late 2003. Appellant's girlfriend continued to rent the property until April of 2004. Appellant returned to the property the following month after his girlfriend had vacated the premises, but he refused to pay rent.
On July 6, 2004, Barbara filed an unlawful detainer action seeking past due rent and possession of the property. In opposing the action, appellant claimed among other things that Barbara had given him the property pursuant to an oral agreement they entered in connection with the month-to-month rental agreement that was executed in 1994. Appellant claimed that Barbara had promised to use the "rent" proceeds to pay down a 15-year, $56,400 mortgage she took out on the property in June of 1994, and that she would convey the property to him when the loan was paid off. Following a court trial, appellant was found to be Barbara's tenant and was ordered to pay $3,000 in past due rent. The court also cancelled the rental agreement and found that Barbara was entitled to exclusive possession of the property. Appellant did not request a statement of decision.
Judgment in the unlawful detainer action was entered in favor of Barbara on September 9, 2004. Appellant did not appeal.
On September 24, 2004, appellant filed a complaint against Barbara alleging numerous causes of action including fraud, misappropriation, and financial elder abuse (Nist I). In addition to reiterating his claim that Barbara had orally agreed to sell him the property, appellant alleged that Barbara had obtained title to the property through fraud and undue influence upon their mother. Appellant admitted that his mother had informed him of the property transfer in 1982, yet claimed that Barbara had fraudulently induced him to refrain from challenging the transfer by falsely representing that the property would be divided among their mother's heirs upon her death. Barbara demurred to the complaint on the grounds that appellant's claims were either foreclosed by the judgment in the unlawful detainer action, contrary to law, or barred by the statute of limitations. After the demurrer was sustained with leave to amend, appellant filed an amended complaint that was substantially similar to the original complaint. On July 12, 2005, the court entered an order sustaining Barbara's demurrer to the amended complaint without leave to amend on the finding that appellant was "unable to cure the defects in the Amended Complaint."
On August 10, 2005, appellant moved for reconsideration of the court's order sustaining Barbara's demurrer without leave to amend. In support of his motion, appellant offered a memorandum of points and authorities filed in 1992 in the dissolution proceeding between Barbara and Bernard (the 1992 memorandum) in which Barbara asserted that Stalker Nist "made a separate property gift to Barbara so that Barbara could deduct the real property taxes and interest expenses from her income taxes." According to appellant, this "new" evidence, which he purportedly discovered for the first time on June 23, 2005, established that Barbara had obtained the property through fraud and misrepresentation. The court concluded that this evidence did not warrant reconsideration of its prior ruling and accordingly denied the motion. Appellant moved for reconsideration again on November 23, 2005, and that motion was also denied. Appellant appealed and we affirmed.
While the appeal in Nist I was pending, appellant filed a probate action alleging that the property was an asset off his mother's estate. (Estate of Elizabeth Stalker Nist (Super. Ct. San Luis Obispo County, 2005, No. PR050278).) The probate action was summarily dismissed on December 20, 2005.
On January 26, 2007, appellant filed a new complaint (Nist II) seeking, among other things, cancellation of the trust deed identifying Barbara as the owner of the property. Washington Mutual was also named as a defendant, although appellant only served the complaint on Barbara. The basis of the complaint was the very same 1992 memorandum from Barbara's dissolution proceeding that appellant offered in moving for reconsideration in Nist I. According to appellant, the memorandum established among other things that Barbara "made a false promise to take title of the property `merely' as a tax write-off" and "had no intentions of ever keeping such a promise to [Stalker Nist.]" Appellant purported to overcome the statute of limitations on the ground that he "did not learn of the grounds for cancellation until June 23, 2005," when he "first inspected [Barbara's] 1992 divorce records."
Barbara filed a demurrer to the complaint and appellant did not file any opposition. When the demurrer was called for hearing on March 29, 2007, appellant requested a continuance and sought leave to file an amended complaint. Barbara did not oppose the request. After the amended complaint was filed, Barbara asked that the demurrer be considered as to that complaint and indicated that she intended to file a motion to declare appellant a vexatious litigant.
When the demurrer and vexatious litigant motion were called for hearing on May 24, 2007, attorney Michael Boyajian appeared on behalf of appellant and moved to continue both matters. The court continued the hearing until June 12, 2007, and allowed appellant to file oppositions to the demurrer and vexatious litigant motion. At the conclusion of the June 12 hearing, the court sustained the demurrer without leave to amend on the ground that the complaint did "not allege new facts, a new claim, or alternative theories subject to a different statute of limitations period." Although the court denied Barbara's motion to declare appellant a vexatious litigant, it noted that the determination "was a close call." Barbara's attorney was directed to prepare the court's order. Shortly thereafter, appellant filed a substitution of attorney that relieved Boyajian from acting as his counsel and returned him to in propria persona status.
Appellant opposed the filing of the order that Barbara's attorney submitted to the court on the ground that he "ha[d] not had an opportunity to amend the order contemporaneous with his completion of Substitution of Attorney procedures." At a hearing on the matter on August 16, 2007, the court provided the parties with a modified order and instructed Barbara's attorney to prepare a final order and serve it on appellant.
After appellant was served with a notice of entry of the order on September 18, 2007, Barbara moved to dismiss the action. Appellant opposed the motion. In his opposition papers, appellant claimed that Barbara should be judicially estopped from claiming that the property belonged to her because (1) she asserted in the 1992 dissolution memorandum "that she never entered into an agreement for any interest in the property" and (2) the judgment in the dissolution proceeding established that Barbara "never took nor did the court ever award her the house as her sole and separate property." Appellant further asserted that judgment should be entered in his favor. After a hearing on December 6, 2007, the court granted Barbara's motion to dismiss. Appellant filed a notice of appeal on February 1, 2008. On July 3, 2008, we granted Barbara's motion to summarily dismiss the appeal but denied her request for sanctions. The remittitur was issued on September 2, 2008.
Appellant filed the instant action (Nist III) on June 18, 2008. The complaint essentially reasserts appellant's claim based on the 1992 memorandum, as well as his prior claims that Barbara had agreed to (1) divide the property among Stalker Nist's heirs upon her death; and (2) convey the property to him after he paid off the equity loan. This time, appellant named Bernard and Washington Mutual as defendants and served the complaint on both parties.
On August 21, 2008, Barbara moved the court to declare appellant a vexatious litigant in accordance with section 391. Barbara also moved for a prefiling order prohibiting appellant from filing any new litigation in propria persona without first obtaining leave of the court, as contemplated in section 391.7. Appellant opposed the motion.
When the matter was called for hearing on October 15, 2008, the court issued its tentative ruling in favor of Barbara. The court found that appellant qualified as a vexatious litigant under subdivision (b)(2) of section 391 because he had "repeatedly relitigate[d] or attempt[ed] to relitigate, in propria persona, the validity of the determination, claim or cause of action against the same defendant" that had been finally decided against him. The court reasoned: "Plaintiff for the second time is relitigating a final determination against him that he has no viable ownership claim to the Property. There certainly is repetition in the case at hand and Defendant continues to be the target of Plaintiff's actions. Plaintiff is relitigating against the same defendant identical issues which have been conclusively decided against Plaintiff on two prior occasions."
The court found that appellant also qualified as a vexatious litigation under subdivision (b)(3) of the statute in that he had "repeatedly file[d] unmeritorious motions, pleadings, or other papers, conduct[ed] unnecessary discovery, or engage[d] in other tactics that are frivolous or solely intended to cause unnecessary delay." The court explained: "Here, Plaintiff's third attempt at relitigating the issues constitutes `repeatedly.' Also, based upon the fact this Court and the Court of Appeal, on two prior occasions, have conclusively decided in favor of Defendant, Plaintiff's third attempt must be considered `unmeritorious.'"
The court also found there was no reasonable probability appellant would prevail in the litigation. Accordingly, appellant was ordered to post a $25,000 bond in order to proceed with the action, as provided in section 391.1. The court also indicated it would enter a prefiling order pursuant to section 391.7. After hearing argument on the matter, the court adopted its tentative ruling in its entirety and entered a prefiling order prohibiting appellant from filing any new litigation against Barbara in any state court in propria persona without first obtaining leave of the presiding judge, as contemplated in section 391.7.
After appellant failed to post a bond, the action against Barbara was dismissed with prejudice. The court subsequently granted dismissals in favor of Bernard and Washington Mutual after appellant failed to post the required $25,000 bond. The court also issued prefiling orders with regard to both parties. Washington Mutual was also granted judgment on the pleadings
Appellant contends the court erred in declaring him a vexatious litigant under subdivisions (b)(2) and (b)(3) of section 391. He asserts that the court's finding with regard to subdivision (b)(2) cannot stand because there had been no "final determination" in Nist II when he filed Nist III. He also faults the court for declaring him a vexatious litigant under subdivision (b)(3) of the statute because he believes that he never filed any unmeritorious or frivolous motions. He further claims that the instant action is not a relitigation of either Nist I or Nist II, and that he "cured any possible statute of limitations defects" by "plead[ing] specific facts showing the time and manner in which he discovered the representations or his inability to discover the representations despite reasonable diligence." None of these claims has merit.
California law provides that a defendant may move the court "[i]n any litigation pending in any court of this state," at any time before final judgment, for an order requiring the plaintiff to furnish security upon a showing "that the plaintiff is a vexatious litigant and that there is not a reasonable probability that [s]he will prevail in the litigation against the moving defendant." (§ 391.1.) A vexatious litigant includes anyone who "[a]fter a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) 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 whom the litigation was finally determined" (§ 391, subd. (b)(2)); and also includes anyone who "[i]n any litigation while acting in propria persona, 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" (§ 391, subd. (b)(3)).
A plaintiff declared to be a vexatious litigant will be required to furnish security in order to proceed with the matter if the court determines there is "no reasonable probability" the plaintiff will prevail in the litigation against the moving defendant.
(§ 391.3.) The court may also enter a "prefiling" order prohibiting that party from filing new state court litigation in propria persona absent leave of the presiding judge where the litigation is proposed to be filed. (§ 391.7, subd. (a); In re R. H. (2009) 170 Cal.App.4th 678, 689-690.) After a prefiling order issues, the presiding judge shall permit the party to file further 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 trial court exercises its discretion in determining whether a person is a vexatious litigant. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1169.) We review the trial court's vexatious litigant ruling for substantial evidence. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) "Because the trial court is best situated to receive evidence and hold hearings on the question of whether a litigant is vexatious, on appeal, we are required to presume the order declaring a litigant vexatious is correct and to [infer] findings necessary to support that designation. [Citation.]" (Morton v. Wagner (2007) 156 Cal.App.4th 963, 969.) Questions of statutory interpretation are reviewed de novo. (Fink, at p. 1169.)
As a threshold matter, we affirm the court's order declaring appellant a vexatious litigant because appellant has failed to provide a sufficient record for our review. In our opinion in Nist I, we concluded that appellant had forfeited all of his claims by failing to include a reporter's transcript in the record on appeal. Appellant has nevertheless once again chosen to proceed without a reporter's transcript. As if our prior opinion did not provide enough of a warning, appellant's election to proceed without a reporter's transcript in this appeal includes his "understand[ing] that without a record of the oral proceeding in the trial court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether the trial court made an error." Because the rulings appellant challenges are based on factual determinations made after a hearing, appellant's failure to include the transcript of that hearing is fatal to his appeal. "The party appealing has the burden of overcoming the presumption of correctness. For this purpose, [he] must provide an adequate appellate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant." (Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 858-860, citing Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
Substantial evidence supports the court's finding that appellant is a vexatious litigant. Notwithstanding appellant's protestations to the contrary, Nist III is a blatant attempt to relitigate an issue that was finally decided against him in both Nist I and Nist II, i.e., that Barbara is the lawful owner of the subject property. Appellant's focus on the fact that there had been no final determination in Nist II when he filed Nist III is unavailing. It is the fact that he continued to maintain the action after the final determination that is controlling. (See § 391, subd. (a) [defining "litigation" as "any civil action or proceeding, commenced, maintained or pending in any state or federal court"].) The complaint in Nist III is substantially the same as the complaint in Nist II. Moreover, appellant's "new" evidence—i.e., the 1992 memorandum filed in the dissolution of Barbara and Bernard's marriage—is not new. Appellant ignores the fact that this evidence was considered not only by the court in granting the demurrer in Nist II, but was also fully considered in denying his motion for reconsideration in Nist I. Because it is clear that appellant has repeatedly attempted to relitigate an issue that has been finally decided against him, respondents were entitled to a finding that he qualified as a vexatious litigant under subdivision (b)(2) of section 391. In light of this conclusion, it simply does not matter whether appellant also qualifies as a vexatious litigant under subdivision (b)(3) of the statute.
Appellant also failed to demonstrate a reasonable probability of prevailing on his claims. Even if he could overcome issues relating to res judicata, collateral estoppel, and the statute of limitations, his complaint is patently frivolous. Appellant essentially seeks to void the deed by which his mother transferred the subject property to Barbara on the ground that it was effected "for mere legal mortgage interest tax write off purposes" and under federal law "the transfer of title for such mortgage interest tax write off purposes is considered an unlawful tax shelter." As evidence, he offers the 1992 memorandum and refers to Barbara's statement that "Barbara's mother transferred title of the residence to Barbara intending a separate property gift to her" after Bernard "suggested that title to the house be transferred into Barbara's name so that it would be possible for them to deduct the real property taxes and interest expenses from their income taxes." Appellant never explains how this evidence has any tendency to establish that his mother was defrauded into transferring the property, or that she somehow believed that the transfer was temporary. The evidence is also devoid of any indication that Barbara and Bernard ever took the mortgage tax deductions to which appellant refers, much less that doing so would have been illegal under the circumstances. Even if appellant could establish these facts, he fails to explain how this evidence would entitle him to seek voidance of the trust deed by which his mother lawfully conveyed the subject property to Barbara.
When distilled to its essence, the complaint in this case is simply another attempt to relitigate the primary issue that has been finally decided against appellant in numerous prior proceedings. It is also clear that appellant's "new" evidence not only is not new, but is irrelevant to the determination at hand. Appellant is the very model of the vexatious litigant that section 391 is entitled to protect against.
The judgments are affirmed. Respondents shall recover their costs on appeal.
We concur:
GILBERT, P.J.
COFFEE, J.
