Kinney v. ClarkKinney v. Clark
- Reporters:
- ,
- Before:
- Chaney, Rothschild, Johnson
William M. Rubendall; Cyrus Sanai for Cross-complainant and Appellant.
Marcus, Watanabe & Enowitz, David M. Marcus and Eric Chomsky for Cross-defendant and Respondent.
The Los Angeles Superior Court, this court, and the United States District Court for the Central District of California all have declared Kinney to be a vexatious litigant. Under a prefiling order issued in 2011, Kinney, while self-represented, may not file new litigation (including any appeal or writ) in a California state court without first obtaining leave of the presiding judge. Undeterred, Kinney has retained a series of attorneys to represent him in his continued and unconscionable campaign in the courts against Clark. The prefiling order covering Kinney’s in propria persona litigation has been ineffective in constraining his vexatious litigation. Accordingly, on Clark’s motion, we impose an expanded prefiling order, requiring Kinney to obtain leave of the presiding judge before filing new litigation (including any appeal or writ) against Clark or her attorney in a court of this state, even when he is represented by counsel. This prefiling order is necessary to protect Clark, her attorneys, and our courts from Kinney’s abuse of the judicial process.
BACKGROUND
In 2005, Clark sold a residential property in the Silver Lake neighborhood of Los Angeles (the Fernwood property) to Kinney and Kimberly Kempton. The purchase agreement governing the transaction (the Agreement) included a prevailing party attorney fees clause.
Kinney’s State Court Actions
In 2006, Kinney and Kempton began filing lawsuits concerning the Fernwood property in the Los Angeles Superior Court. They sued their new neighbors, the City of Los Angeles, Clark, and the brokers who represented her in the transaction. Most of the litigation related to easements and fences. Kinney, an attorney,1 represented himself and Kempton in the six lawsuits2 they filed (and ultimately lost) regarding the Fernwood property. (In re Kinney, supra, 201 Cal.App.4th at pp. 955-956.)
In the action before us, Kempton v. Cooper, BC354136 (the Present Action), Kinney and Kempton filed a cross-action against Clark, alleging unmerchantable title. The trial court sustained Clark’s demurrer to the cross-complaint without leave to amend, and the judgment was affirmed on appeal. (Kempton v. Clark (June 30, 2008, B200893) [nonpub. opn.].)
Following Kinney and Kempton’s unsuccessful appeal, Clark moved for attorney fees under the Agreement as the prevailing party in the litigation. On December 15, 2008, the trial court granted her motion and awarded $9,349 in attorney fees. Kinney and Kempton appealed and we affirmed the fee award. (Kempton v. Clark (Feb. 3, 2010, B213386) [nonpub. opn.].)
Kinney is Declared a Vexatious Litigant in State Courts
Meanwhile, Kinney and Kempton were still litigating Kempton v. Clark, BC374938, a fraud action arising from the Fernwood property transaction (the Related Action). In 2008, at the request of Clark and her brokers in the Related Action, the Los Angeles County Superior Court declared Kinney to be a vexatious litigant. (In re Kinney, supra, 201 Cal.App.4th at p. 954; Kempton v. Clark (Sept. 25, 2014, B248713) [nonpub. opn.], p. 2.) Kinney thereafter dismissed himself as a plaintiff without prejudice, but continued to represent Kempton as her attorney in the Related Action. (Kempton v. Clark, supra, B248713, p. 2.)
Three years later, in a published opinion issued in December 2011, Division Two of this District also declared
Clark’s Bankruptcy
In July 2010, Clark declared bankruptcy. “The expense of defending against Kinney’s claims was a substantial factor leading to Clark’s bankruptcy.” (Kempton v. Clark, supra, B248713, p. 3.) In March 2011, the bankruptcy court ordered Clark to appear in state court and defend the Related Action. On Clark’s motion, the superior court in the Related Action declared Kempton to be a vexatious litigant because she was “merely acting as Kinney’s proxy and he [was] using her as his puppet.” (Id. at p. 4.) After Kempton failed to post a bond as ordered, the superior court dismissed the Related Action. Kinney sought relief from this ruling on behalf of Kempton in the bankruptcy court, federal district court, and the Ninth Circuit Court of Appeals. (Id. at pp. 4-5.) He was unsuccessful in each venue.
After the superior court dismissed the Related Action, Clark moved for attorney fees against Kinney and Kempton under the Agreement. Kinney opposed the motion, arguing Clark
Clark’s Enforcement of the 2008 Fee Award and Additional Claims for Attorney Fees Against Kinney
In 2013, Clark began her efforts to enforce the December 15, 2008 award of attorney fees and costs in the Present Action. Kinney attempted to thwart those efforts by serving a claim of exemption, asserting the funds Clark was seeking belonged to his mother’s trust and/or estate, although the funds were in an account that did not bear the name of the trust or estate. Clark filed a motion to determine the claim of exemption. The trial court denied Kinney’s claim and allowed a levy upon funds to pay the award. Instead of filing the appeal in his own name and seeking leave of court to proceed under the prefiling order, Kinney filed a notice of appeal from that order as attorney for his mother’s trust and estate. We dismissed the appeal based on lack of standing because the trust and estate were not parties to the action in the trial court and did not seek to intervene in the action or vacate the order in the trial court. (Kinney v. Clark (Dec. 31, 2014, B253093) [nonpub. opn.], pp. 2-3.)
On March 5, 2014, the trial court awarded Clark additional fees for work her attorneys performed in attempting to enforce the December 15, 2008 fee award. Kinney had opposed Clark’s motion for fees on his own behalf, and on behalf of Judith Kempton (representative of the Estate of Kimberly Kempton) and his mother’s estate. (Kempton v. Cooper (June 4, 2015, B255794)
Also in 2014, Clark began her efforts to enforce a July 10, 2012 award of attorney fees and costs the trial court granted for work Clark’s attorneys performed in successfully defending Kinney and Kempton’s appeal from the December 15, 2008 fee award. Neither Kinney nor Clark appealed from the July 10, 2012 award. Kinney again filed a claim of exemption, contending Clark’s enforcement of the July 10, 2012 award was stayed by his pending appeals in the state court (including case No. B253093, the appeal from the denial of his first claim of exemption, discussed above) and federal court (arising out of the bankruptcy proceedings). Clark filed a motion to determine the claim of exemption. Kinney filed a written opposition, representing himself, the Estate of Kimberly Kempton, and his mother’s trust and estate. The trial court denied the claim of exemption and allowed a levy upon funds to pay the award. Kinney, the Estate of Kimberly Kempton, and Kinney’s mother’s trust and estate appealed. An attorney represented Kinney and the other appellants. We dismissed the appeal for lack of standing as to the Estate of Kimberly Kempton and Kinney’s mother’s trust and estate because these parties could not show they were aggrieved by the order, as the levy was upon Kinney’s property. We
On May 5, 2015, the trial court awarded Clark $22,115 in additional attorney fees under the Agreement for work her attorneys performed in successfully defending Kinney’s appeal from the denial of his first claim of exemption (appellate case No. B253093, discussed above). This is the award we are reviewing in the present appeal. Attorney William Rubendall filed a notice of appeal from the May 5, 2015 award on behalf of Kinney.
Kinney is Declared a Vexatious Litigant in Federal Court
Kinney removed the appeal that is presently before us to the United States District Court for the Central District of California. On February 4, 2016 the district court remanded the matter to this court, issuing an order rejecting Kinney’s claims of federal court jurisdiction, imposing sanctions on Kinney in the amount of $6,000, and inviting Clark and her attorneys to file a motion to have Kinney declared a vexatious litigant in the district court. On May 13, 2016, the United States District Court for the Central District of California declared Kinney to be a vexatious litigant on the motion of Clark and her attorneys. The district court imposed the following prefiling order: “Charles Kinney and any person acting on his behalf must obtain written authorization from a Judge of this Court before initiating a new action, where the pleading asserts claims against Michele R. Clark, David Marcus, or Eric Chomsky [Clark’s attorneys] or any
In its May 13, 2016 opinion, the Central District court summarized Kinney’s vexatious litigation in the federal courts arising out of the Fernwood property litigation: his three attempts to remove the Related Action to federal court, resulting in the imposition of sanctions against him; his two attempts to remove the Present Action to federal court, again resulting in the imposition of sanctions against him; his counterclaims against Clark and her attorneys in the failed removal actions; the Ninth Circuit Court of Appeals’ award of attorney fees against him for attempting to remove the Related Action without a reasonable basis for doing so; his unsuccessful action in the United States District Court for the Northern District of California against Clark’s attorneys, alleging violations of his constitutional rights; and two other federal district court actions against Clark and her attorneys.6
Motion to Dismiss this Appeal
The Agreement between Kinney and Clark states that the prevailing party in “[i]n any action, proceeding, or arbitration” between the parties arising out of the Agreement is entitled to an award of reasonable attorney fees and costs from the non-prevailing party. The Present Action arises out of the Agreement. Clark prevailed on appeal in this action in appellate case number B253093, the appeal from the denial of Kinney’s first claim of exemption. She sought an award of attorney fees and costs for the work her attorneys performed in successfully defending the appeal, as part of her efforts to enforce the December 15, 2008 award of attorney fees and costs. On May 5, 2015, the trial court awarded Clark an additional $22,115 in attorney fees and costs. Kinney does not dispute that Clark’s attorneys performed the legal services. Nor does he challenge the reasonableness of the amount of the award.
Instead, Kinney challenges Clark’s entitlement to attorney fees and costs under the Agreement, asserting recycled arguments that state and federal courts already have rejected. He attempts to attack prior final orders as a basis for defeating the order before us. In his appellate reply brief in this matter, he states, “It doesn’t matter how many times Kinney loses, void orders are never final.” But, despite many years of attempting to invalidate the underlying judgment and each and every award of attorney fees and costs the trial court has issued in this action, Kinney has yet to prevail or demonstrate that any order is void in these collateral attacks.
Clark moves this court to dismiss the appeal, arguing it is frivolous. An appeal is frivolous “when it is prosecuted for an
Clark’s bankruptcy did not eliminate her entitlement to attorney fees and costs under the Agreement
In his opening appellate brief, Kinney repeats his claims that all orders awarding Clark attorney fees and costs that the trial court issued after Clark declared bankruptcy in July 2010 violate bankruptcy law and are void, and “no state court has any jurisdiction over these federal law issues.”
California state courts have jurisdiction over Clark’s claims for attorney fees and costs under the Agreement. The trial court made the first award of attorney fees and costs to Clark—the December 15, 2008 award—before Clark declared bankruptcy. Clark did not attempt to enforce that award in the state courts until after the bankruptcy court discharged her and ordered that she could pursue additional claims for attorney fees and costs against Kinney in state court. Thus, the trial court’s post-bankruptcy orders relating to Clark’s enforcement of the December 15, 2008 award and awarding her additional attorney fees and costs did not violate the automatic stay arising from her bankruptcy petition.
Kinney asserts the trial court could not award Clark additional attorney fees and costs under the Agreement after her
Kinney also argues Clark was not entitled to collect on the December 15, 2008 order awarding her attorney fees and costs because her pre-petition debt to her attorneys was discharged in bankruptcy, so her recovery on that award would constitute an improper windfall. This argument does not advance Kinney’s cause on appeal for multiple reasons.
First, this issue is not before us on appeal. As discussed above, in appellate case number B253093, Kinney already challenged the trial court’s order denying his claim of exemption and allowing a levy upon his funds to pay the December 15, 2008 award. That order is final. The matter before us is Clark’s post-bankruptcy claim for attorney fees and costs incurred in
Second, even if Kinney’s challenge of the December 15, 2008 award of attorney fees and costs were timely, he lacks standing to make the argument regarding the effect of Clark’s bankruptcy discharge on her pre-petition debt to her attorneys. Clark has a judgment against Kinney in the amount of the December 15, 2008 award. What Clark owes her attorneys and what she pays them out of the judgment are matters between her and her attorneys. As the bankruptcy court pointed out to Kinney when it granted the motion to abandon Clark’s right to recover attorney fees and costs against him, Kinney was not a creditor of Clark’s estate and he had no interest in the administration of her estate. Clark’s bankruptcy did not benefit Kinney. It did not discharge his debt to her—the December 15, 2008 award. Accordingly, we reject Kinney’s argument that allowing Clark to enforce the judgment against him would be inequitable to him and a windfall for her.
We note Kinney repeatedly has argued in the bankruptcy court, the federal district court and the Ninth Circuit Court of Appeals without success that all superior court orders awarding Clark attorney fees and costs issued after Clark declared bankruptcy in July 2010 violate bankruptcy law and are void. In
Pending state court appeals from other awards of attorney fees and costs did not stay this action and preclude the trial court from awarding Clark additional attorney fees and costs under the Agreement
Kinney also repeats an argument he has unsuccessfully asserted in prior appeals in the Present Action, challenging earlier orders awarding Clark attorney fees and costs (e.g., appellate case Nos. B255794 & B258399, discussed above): that appeals related to other awards of attorney fees and costs automatically stayed the action below under
Kinney contends Clark’s attorneys have no right to attorney fees and costs because they (the attorneys) “never filed a separate, independent state court declaratory relief action against Clark regarding their 2007 hourly-fee retainer.” Kinney waged previous unsuccessful attacks on Clark’s retainer agreement with her attorneys in appellate case numbers B255794 (the Present Action) and B248713 (the Related Action). As Division Two concluded in case number B248713, Kinney has not demonstrated he has standing to challenge Clark’s consent to the lien in her retainer agreement with her attorneys. (Kempton v. Clark, supra, B248713, p. 13.) The authority Kinney cites in this appeal to support his contention is inapposite. (Mojtahedi v. Vargas (2014) 228 Cal.App.4th 974, 977 [attorney’s action against his former client’s subsequent attorney for a portion of settlement proceeds was properly dismissed on demurrer because the attorney failed to “establish the existence, amount and enforceability of the lien in an independent action against his clients”].) Clark’s attorneys provided legal services in successfully defending Clark in this action in appellate case number B253093. Clark filed a motion for attorney fees and costs under the Agreement, as the prevailing party on appeal. The trial court awarded the fees and costs. Clark’s attorneys were not required to sue her to establish their entitlement to be paid for the legal work they performed.
Kinney’s belated challenges to the 2008 and 2011 vexatious litigant orders are not properly before us
Finally, Kinney continues to complain about the 2008 superior court order and the 2011 decision from Division Two of
This appeal is frivolous. Kinney’s recycled arguments have no more merit now than they did the numerous times he raised them before. We grant Clark’s motion to dismiss the appeal.
Motion for Sanctions—Prefiling Order
Clark filed a motion for sanctions against Kinney in this court, seeking an expanded prefiling order requiring Kinney to obtain leave of the presiding judge before filing any new litigation, even when he is represented by counsel. Kinney opposes the motion, arguing courts may impose prefiling requirements on self-represented vexatious litigants only, and not vexatious litigants who file new litigation through counsel.
Under
We recognize that the prefiling order contemplated by section 391.7 applies to litigation filed by self-represented litigants. But this statutory limitation does not prevent us from expanding the prefiling order under the circumstances of this case, for two reasons. First, case law holds that it is appropriate to extend a prefiling order issued under section 391.7 to new
Section 391.7 applies where a “puppet” attorney files new litigation on behalf of a vexatious litigant
In Shieh, this Division declared Liang-Houh Shieh to be a vexatious litigant and imposed a prefiling order, requiring him to obtain leave of the presiding judge before filing new litigation (including any appeal or writ) in a California state court. (Shieh, supra, 17 Cal.App.4th at pp. 1167-1168.)10 This court acknowledged that prefiling orders under section 391.7 “[o]rdinarily” apply only to a vexatious litigant’s in propria persona litigation, but the court extended the prefiling order to litigation filed through counsel, explaining that Shieh’s case “breaks the mold.” (Id. at p. 1167.) The court’s review of the “syntax, grammar, style and tone” of Shieh’s pleadings and briefs in the trial and appellate courts revealed that the documents “ha[d] been drafted by the same hand,” whether Shieh filed them in propria persona or through counsel. (Ibid.) Because the attorneys Shieh retained “serve[d] as mere puppets,” the court “conclude[d] a prefiling order limited to Shieh’s in propria
Shieh remains good law. The California Supreme Court has not addressed the merits of Shieh. In Shalant v. Girardi (2011) 51 Cal.4th 1164, a case in which the Supreme Court held a vexatious litigant did not violate a prefiling order under section 391.7 where he continued to pursue an action filed by counsel after counsel withdrew, the Court stated in a footnote: “We express no opinion as to whether section 391.7 may be applied when the record shows the vexatious litigant’s attorney has, in filing the action, acted as a ‘mere puppet[ ]’ of the litigant. (In re Shieh[, supra,] 17 Cal.App.4th [at p.] 1167.) The trial court made no such finding in dismissing Shalant’s action, and defendants, though they cite Shieh as supporting a broad interpretation of section 391.7, do not argue the dismissal should be affirmed on grounds the attorney who filed this action was merely a puppet
The attorneys who have filed appeals on behalf of Kinney in the Fernwood property litigation since Division Two imposed the prefiling order (Nina Ringgold and William Rubendall) have acted as puppets for Kinney, asserting the same meritless arguments Kinney previously asserted on his own behalf. They disregard prior, final state and federal court decisions that have rejected these recycled arguments, and continue to maintain that all of these decisions are “void,” so all issues in the Fernwood property litigation should be decided anew. At Kinney’s behest, these attorneys continue to barrage Clark with new appeals. Since the filing of this appeal, attorney William Rubendall has filed three other appeals on behalf of Kinney, one in the Related Action (appellate case No. B266125) and two in the Present Action (appellate case Nos. B272408 & B276290).12
In his written opposition to Clark’s motion for sanctions, Kinney did not discuss Shieh or address Clark’s argument that William Rubendall, the attorney who filed the notice of appeal and appellate briefs in this matter, “is not acting as a gatekeeper,” but “is allowing Kinney to continue his vexatious conduct.” Instead, Kinney cited John v. Superior Court (2016) 63 Cal.4th 91, a recent California Supreme Court case in which both Kinney and his newly-retained attorney in this appeal, Cyrus
In John v. Superior Court, supra, 63 Cal.4th at page 93, the Supreme Court held “section 391.7’s prefiling requirements do not apply to a self-represented litigant previously declared a vexatious litigant seeking to appeal an adverse judgment or interlocutory order in an action where he or she was the defendant.” (Italics added.) Kinney does not cite John v. Superior Court because the facts are relevant to this case—they are not. He relies on this case for the opinion’s opening statement that the “vexatious litigant statutory scheme [citation] applies exclusively to self-represented litigants.” (Ibid.; fn. omitted.) The decision in John v. Superior Court does not reference Shieh or address the factual scenario presented in Shieh (and in this case) where a vexatious litigant uses an attorney as an instrument to evade a prefiling order.
Whether section 391.7 applies in these circumstances, however, is immaterial to our authority to issue the expanded prefiling order under the court’s inherent powers.
This court has authority to issue an expanded prefiling order under its inherent powers to ensure the administration of justice and prevent abuse of the judicial process
“California’s Constitution provides the courts, including the Courts of Appeal, with inherent powers to control judicial
In 2011, Division Two imposed the prefiling order on Kinney to stop him from filing meritless appeal after meritless appeal. Five years later, nothing has changed except adding an attorney’s name to the filings. By filing additional meritless appeals, Kinney’s conduct in this action—even while represented by counsel—continues to constitute an abuse of the judicial process. Where a vexatious litigant circumvents a section 391.7 prefiling order by hiring an attorney who acquiesces in his campaign of frivolous litigation, this court has the inherent power to issue an expanded prefiling order to control the orderly administration of justice and prevent abuse of the judicial process.
This opinion will serve as a prefiling order providing that, even when Kinney is represented by counsel, he must seek leave
The expansion of the prefiling order that we impose today is narrowly tailored to the circumstances before us. The expanded prefiling order only applies to litigation Kinney’s attorneys file against Clark or her attorneys. After a decade of vexatious litigation that has not abated even after Kinney has retained counsel, Clark, her attorneys, and the courts of this state are in need of relief from Kinney’s abuse.
Disobedience of this order will be punished as contempt of court. The clerk of this court is directed to provide a copy of this opinion and order to the Judicial Council. (In re Shieh, supra, 17
Monetary Sanctions
On its own motion, this court may impose sanctions when an appeal is frivolous or taken “solely to cause delay.” (Cal. Rules of Court, rule 8.276(a)(1).) As stated above, an appeal is frivolous “when it is prosecuted for an improper motive – to harass the respondent or delay the effect of an adverse judgment – or when it indisputably has no merit – when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) Courts “impose a penalty for a frivolous appeal for two basic reasons: to discourage further frivolous appeals, and to compensate for the loss that results from the delay.” (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 33.)
Prior to oral argument, we notified Kinney and William Rubendall, the attorney who filed the notice of appeal and appellate briefs on his behalf, that we were considering imposing sanctions on both of them for filing a frivolous appeal. (Cal. Rules of Court, rule 8.276(c).) Attorney Cyrus Sanai filed a written response to our order to show cause regarding sanctions and appeared at oral argument to represent both Kinney and Rubendall regarding sanctions, and Kinney on appeal.
To discourage further frivolous appeals and to compensate Clark for the loss resulting from the delay, we order Kinney personally to pay sanctions in the amount of $10,000, payable to Clark in full upon issuance of the remittitur in this case. We believe this sanction, coupled with the expanded prefiling order, is necessary to deter Kinney from persisting in the filing of frivolous appeals.
We direct the clerk of this court to send a copy of this opinion to the State Bar of California. Although Kinney was disbarred for his conduct in this and other property dispute litigation, he might seek future reinstatement as a member of the bar. The State Bar should be aware that Kinney’s vexatious litigation against Clark has not ceased.
We have decided not to impose sanctions on William Rubendall, as at this juncture, he has not come before us multiple times with meritless arguments. Accordingly, we will give him the benefit of the doubt on this appeal.16
The appeal is dismissed. Clark’s motion for sanctions is granted and the following expanded prefiling order is imposed: Even when Kinney is represented by counsel, he must seek leave of the presiding judge before filing any new litigation (including any appeal or writ) in a court of this state against Clark or the attorneys who have been representing her or represent her in the future in the Fernwood property litigation (including David Marcus, or Eric Chomsky, or any law firm with which David Marcus or Eric Chomsky is associated). On the court’s own motion, Kinney is ordered to pay sanctions in the amount of $10,000, payable to Michele Clark in full upon issuance of the remittitur in this case. Also upon issuance of the remittitur, the clerk of this court is directed to provide a copy of this opinion and order to the Judicial Council and the State Bar of California. Clark is entitled to recover her costs on appeal.
CERTIFIED FOR PUBLICATION.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.