Karnazes v. Lauriedale Homeowners Ass'n

96 Cal.App.5th 275

314 Cal.Rptr.3d 288

Elizabeth KARNAZES, Plaintiff and Appellant,

v.The LAURIEDALE HOMEOWNERS ASSOCIATION, Defendant and Respondent.

A167888

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

Filed October 11, 2023

Elizabeth Karnazes, in pro. per. for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, San Diego; Law Offices of Scott C. Stratman, Wallace H. Sweet, La Mesa; Pedersen-Lauderdale, Jerome P. Bellotti, San Jose, for Defendant and Respondent.

Rodríguez, J. Since July 2016, disbarred California attorney Elizabeth M. Barnson Karnazes has, while self-represented, "commenced, prosecuted, or maintained" nine appeals in this court that have been "finally determined adversely" to her — that is, matters not subject to further appellate review — within the meaning of Code of Civil Procedure section 391, subdivision (b)(1)(i).¹ During the pendency of these appeals, she engaged in a pattern of delay that has burdened this court and the litigants she has sued. On our own motion, we conclude Karnazes is a vexatious litigant, and we impose a prefiling order prohibiting her from filing new litigation in the courts of this state without first obtaining permission from the presiding judge or justice where the litigation is proposed to be filed. ( §§ 391, subd. (b)(1)(i), 391.7, subd. (a).)

BACKGROUND

Since 2006, Karnazes has filed 31 appeals in this court. She has represented herself in all but one. She achieved partial success in two appeals and lost 23. Six appeals, including this one, remain pending. Since July 2016, Karnazes has — while self-represented — maintained the following nine appeals in this court that have been determined adversely to her and that are now final:

(1) In Karnazes v. CitiMortgage, Inc., et al. , case No. A144813, she appealed from a judgment of dismissal entered after the trial court sustained defendants’ demurrer to her fourth amended complaint without leave to amend. We affirmed by written opinion on October 25, 2016.

(2) In Karnazes v. PetSmart, Inc. , case No. A147512, she appealed from a default judgment issued in her favor. We dismissed the appeal as moot on February 7, 2017.

(3) In Karnazes v. Ferry, et al. , case No. A149779, she appealed from an order denying her renewed motion to strike and/or dismiss a cross-complaint. We dismissed the appeal on March 1, 2017, after she failed to procure the record.

(4) In Hartford v. Karnazes , case No. A143423, she appealed from orders striking her memorandum of costs and granting defendant's motions for attorney fees and costs. We affirmed by written opinion on April 28, 2017.

(5) In Karnazes v. PetSmart, Inc. , case No. A149137, she appealed from an order setting aside a default and default judgment. We dismissed the appeal on May 14, 2019, after she failed to timely file an opening brief.

(6) In Karnazes v. Outback, et al. , case No. A147505, she appealed from a default judgment entered in her favor. She failed to timely file an opening brief, and we dismissed the appeal on May 14, 2019.

(7) In Karnazes v. St. Paul Surplus Lines Insurance Co., et al. , case No. A139785, she appealed from a judgment entered after the trial court granted one defendant's motion for judgment on the pleadings and sustained another defendant's demurrer to her third amended complaint without leave to amend. We affirmed by written opinion on May 30, 2019.

(8) In Karnazes v. Sheehy, et al. , case No. A151764, she appealed from an order dismissing her complaint for failure to prosecute. On January 29, 2021, we dismissed the appeal as abandoned.

(9) In Karnazes v. Lee, et al. , case No. A146950, she appealed from orders granting defendants’ motion to quash service of summons and denying her motion for leave to file an amended complaint. We affirmed by written opinion on January 27, 2022.²

On the same date in April 2023, Karnazes filed three notices of appeal, including the notice of appeal in this case. In light of her persistent pattern of filing meritless appeals, we issued an order to show cause (OSC) why she should not be declared a vexatious litigant pursuant to section 391, subdivision (b)(1)(i) and why we should not impose a prefiling order pursuant to section 391.7, subdivision (a). We ordered her to file a written response addressing, among other things, whether the appeals in the nine enumerated cases summarized ante (collectively, the nine appeals) satisfy the requirements of section 391, subdivision (b)(1)(i). After requesting and receiving additional time to respond, she filed a written response to the OSC. Respondent The Lauriedale Homeowners Association also responded to the OSC; its response drew our attention to final adverse determinations in appeals Karnazes filed, while self-represented, in other appellate districts of this state.

After granting Karnazes's request for a continuance, we set the matter to be heard at an October 9, 2023 hearing. She appeared at the hearing and offered argument.

DISCUSSION

We begin by summarizing the relevant aspects of the statutory scheme. The vexatious litigant statutes — sections 391 to 391.8 — are "designed ... to protect opposing parties harassed by meritless lawsuits, [and] to conserve court time and resources and protect the interests of other litigants who are waiting for their legal cases to be processed through the courts." ( Marriage of Falcone , supra , 203 Cal.App.4th at p. 1005, 138 Cal.Rptr.3d 44.) "California's vexatious litigant statutes are constitutional." ( Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 541, 96 Cal.Rptr.3d 99.)

Section 391, subdivision (b) defines several categories of vexatious litigants. Under the first category, a litigant is vexatious if they have filed, while self-represented, at least five qualifying litigations within the past seven years that were "finally decided adversely" to them. ( § 391, subd. (b)(1)(i) [excluding actions in small claims court].) Litigation is defined as any "civil action or proceeding, commenced, maintained or pending in any state or federal court" (id. , subd. (a)), including "an appeal." ( Garcia , supra , 231 Cal.App.4th at p. 406, 180 Cal.Rptr.3d 45.) An action is "within the ‘ "immediately preceding seven-year period" ’ so long as it was filed or maintained during that period." ( Id. , fn. 4.) The seven-year period is measured from the date the motion or OSC is filed. ( Ibid. ; Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 224–225, 19 Cal.Rptr.2d 19.) An action is "finally determined adversely" to the litigant under section 391 if they do not win the action or proceeding they began — including appeals they have voluntarily dismissed and those involuntarily dismissed for procedural defects — and the "avenues for direct review (appeal) have been exhausted or the time for appeal has expired." ( Garcia , at pp. 406–407 & fn. 5, 180 Cal.Rptr.3d 45 ; Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173–1174, 103 Cal.Rptr.3d 509 [appeal dismissed as untimely]; Marriage of Falcone , supra , 203 Cal.App.4th at p. 1006, 138 Cal.Rptr.3d 44 [appeal dismissed for failure to file opening brief].)

If a self-represented litigant qualifies as vexatious under section 391, subdivision (b), a court may impose one of two remedies. ( Shalant v. Girardi (2011) 51 Cal.4th 1164, 1170–1171, 126 Cal.Rptr.3d 98, 253 P.3d 266.) As relevant here, a court may enter a prefiling order preventing the self-represented vexatious litigant from filing new litigation without first obtaining permission from the presiding judge or justice where the litigation is to be filed. ( § 391.7, subd. (a) ; In re Marriage of Deal (2022) 80 Cal.App.5th 71, 77, 295 Cal.Rptr.3d 415.) Permission to file will be granted "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. 77, 295 Cal.Rptr.3d 415.)

We now turn to the arguments Karnazes presents in opposition to the OSC. First, she observes it is unusual for a court to issue an OSC rather than wait for an opposing party to move to declare a person vexatious. Even if true, the circumstances of this matter demonstrate the need for the issuance of an OSC. Where a litigant like Karnazes has initiated and maintained litigation in numerous jurisdictions — including state and federal courts — and against different parties, vexatious conduct may go unaddressed absent a court's action in the first instance. Second, she seems to contend an appellate court cannot declare her vexatious. Not so. Appellate courts have the power to declare litigants vexatious and to impose prefiling orders — and they have done so on several occasions. (See, e.g., Marriage of Falcone , supra , 203 Cal.App.4th at pp. 1005–1006, 138 Cal.Rptr.3d 44 ; In re R.H. (2009) 170 Cal.App.4th 678, 683, 88 Cal.Rptr.3d 650, disapproved on another point as stated in John v. Superior Court (2016) 63 Cal.4th 91, 99, fn. 2, 201 Cal.Rptr.3d 459, 369 P.3d 238 ; In re Whitaker (1992) 6 Cal.App.4th 54, 55, 8 Cal.Rptr.2d 249 ; In re Luckett (1991) 232 Cal.App.3d 107, 110, 283 Cal.Rptr. 312.) Indeed, our high court has held an appellate court may declare a litigant vexatious "in the first instance." ( John , at p. 99, 201 Cal.Rptr.3d 459, 369 P.3d 238.)

Next, Karnazes asserts she is not vexatious because some of the appeals were resolved on terms satisfactory to her. Having reviewed the records of the nine appeals, we find no evidence to support this self-serving statement. ( Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779–780, 45 Cal.Rptr.2d 345.) Even assuming this is true, for purposes of section 391, a dismissal — voluntary or not — constitutes an adverse determination; it is the loss that matters, not whether a litigant is...