1. The Complaint and First Amended Complaint
On March 23, 2009 Pittman, representing himself, sued his former landlord, Beck Park Apartments Ltd., its parent company, Goldrich & Kest Industries LLC, and their attorneys, Kimball, Tirey & St. John LLP, for wrongful eviction, race and disability discrimination, retaliation, fraud, intentional infliction of emotional distress, unfair business practices and bad faith retention of security deposit. Pittman subsequently amended the complaint to substitute for previously named Doe defendants his former employers, Siemens Healthcare Diagnostics Inc. and Siemens Corporation (collectively Siemens), TEG Staffing Inc. and Unified Technical, Inc., and his former attorneys, Hicks & Hicks; Arias, Ozzello & Gignac, LLP; Krieger & Krieger; and Westrup Klick, LLP. On June 18, 2009 Pittman voluntarily dismissed Kimball Tirey, and on November 6, 2009 he voluntarily dismissed Beck Apartments and Goldrich & Kest Industries pursuant to Code of Civil Procedure section 581.
Pittman filed a first amended complaint on December 2, 2009 that abandoned the claims related to his landlords and the wrongful eviction and instead alleged employment-related claims of discrimination, retaliation, failure to prevent retaliation, blacklisting, intentional infliction of emotional
2. The Vexatious Litigant Motions
On January 26, 2010 TEG Staffing moved to declare Pittman a vexatious litigant pursuant to section 391, subdivision (b).
Siemens also asserted Pittman was a vexatious litigant pursuant to section 391, subdivision (b)(3), which defines a vexatious litigant to include 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." Siemens argued Pittman's pleadings were unmeritorious and redundant. Specifically, Pittman had filed three lawsuits against Siemens alleging the same wage-and-hour violations based on 15 months of employment in 2003 and 2004. Pittman had also added Siemens as a defendant in a fourth lawsuit against another former employer even though his employment with the two entities was unrelated.
Siemens further argued Pittman repeatedly engaged in harassing and unnecessary tactics. For example, during three of his previous lawsuits against Siemens, Pittman had filed five motions to disqualify the presiding judges. Each motion was denied. Siemens stated Pittman sent "harassing
A hearing on the vexatious litigant motions was held on April 12, 2010. Pittman appeared, but TEG Staffing's and Siemens's counsel, believing the vexatious litigant motions had been taken off calendar due to their clients' dismissals, did not appear. The court stated the dismissals did not "necessarily
Rather than file an opposition, Pittman appeared ex parte on April 19, 2010 seeking an order "striking the false pleadings alleged in [Siemens's vexatious litigant motion] pursuant to the Court's own motion" and denying Siemens's motion. In his memorandum of points and authorities Pittman argued he did not meet the statutory definition of a vexatious litigant because the five prior lawsuits cited by Siemens were pending on appeal, pending before the United States Department of Labor or had been re-filed after dismissal. Siemens's counsel was not served with notice of Pittman's ex parte application and did not appear. It is not apparent from the record precisely what occurred during the ex parte hearing. In his brief on appeal Pittman states the court issued an order "declaring that Appellant was not a vexatious litigant." However, the court's minute order states only that Pittman's ex parte application was granted and the hearing date for the vexatious litigant motion was vacated. The day after the hearing, pursuant to the court's order, Pittman prepared and served a notice of ruling, which stated his application for an order striking Siemens's vexatious litigant motion and for an order denying the vexatious litigant motion had been granted.
On April 22, 2010 Siemens's counsel appeared ex parte seeking an order striking or clarifying Pittman's notice of ruling. In a declaration supporting the motion Siemens's counsel stated she had not been served with Pittman's ex parte application and, upon receiving the notice of ruling, she had contacted the court clerk, who informed her the court had not ruled on Siemens's vexatious litigant motion, but had merely taken it off calendar. Siemens asserted Pittman had fabricated the notice of ruling to make it appear the court had denied the vexatious litigant motion so that Pittman could assert collateral estoppel in another proceeding where the defendants had moved to declare him a vexatious litigant. After hearing argument from Pittman and Siemens's counsel, the trial court vacated its minute order of April 19 and re-set Siemens's vexatious litigant motion
On April 26, 2010 Pittman filed a request for dismissal of the entire action pursuant to section 581. The request was entered as requested by the clerk on the same date.
On April 30, 2010 Siemens filed a supplemental brief in support of its motion to declare Pittman a vexatious litigant. Siemens contended Pittman's dismissal of the action was a "desperate, last-ditch effort" to avoid a ruling on the vexatious litigant motion and argued, relying on Bravo v. Ismaj (2002)
4. The Order Declaring Pittman a Vexatious Litigant
The trial court heard argument on Siemens's vexatious litigant motion on May 28, 2010. Counsel for Siemens and counsel for G&K Management and Beck Park Apartments appeared at the hearing. Pittman did not appear. At the conclusion of the hearing the court granted Siemens's motion and declared Pittman to be a vexatious litigant pursuant to section 391, subdivision (b), and issued a prefiling order pursuant to section 391.7.
On June 8, 2010 Pittman moved ex parte for an order clarifying or striking the May 28 vexatious litigant order. Pittman argued the order was procured by fraud because counsel for defendant Unified Technical had told Pittman the motion had been taken off calendar due to Pittman's dismissal of the action.
After his June 8, 2010 ex parte appearance Pittman served a notice of entry of order stating the court had "declared [Pittman] NOT to be a vexatious litigant." Counsel for Siemens appeared ex parte on July 7, 2010 requesting the court hold Pittman in contempt of court due to his service of an erroneous and fraudulent notice. Siemens's counsel further stated Pittman had filed the erroneous notice of entry of order in support of an opposition to a motion to dismiss in a pending appeal. The trial court issued an order directing Pittman to show cause why he should not be held in contempt for abusing the judicial process or falsely pretending to act under the authority of the court (§ 1209, subd. (a)(4) ). Pittman did not file any opposition to the order to show cause, nor did he appear at the hearing. After taking the matter under submission, the trial court declined to hold Pittman in contempt.
5. The Prior Appeals and First Motion to Vacate
On November 23, 2010 Pittman filed a notice of appeal of the April 22, 2010 order striking the April 19, 2010 order, the May 28, 2010 order declaring him a vexatious litigant, and the June 8, 2010 order denying the motion to strike the May 28, 2010 order. (Pittman v. Beck Park Apartments LTD , B229040.) The appeal was dismissed on March 10, 2011 as untimely.
On May 2, 2014 Pittman moved for reconsideration of the trial court's denial of the motion to vacate. Pittman again argued the previously filed cases underlying the vexatious litigant finding were not final. He also argued the court erred by failing to address his voidness argument. One month later, while the motion for reconsideration was pending, Pittman moved ex parte for an order striking all Siemens's pleadings and "oral and written statements" in the case. The ex parte application was denied.
On June 19, 2014, with his motion for reconsideration still pending, Pittman filed a second notice of appeal. Pittman again sought review of the
Pittman's second appeal was dismissed on January 14, 2015 after this court declined to issue a prefiling order pursuant to section 391.7, subdivision (c). The court found Pittman had failed to meet his burden of showing the appeal had merit and had not been taken for the purpose of harassment or delay.
6. The Current Motion To Vacate
Pittman filed a second motion to vacate the vexatious litigant order on March 5, 2015. He again argued the order was void because it had been entered after Pittman's voluntary dismissal of the lawsuit, which he stated deprived the court of jurisdiction to hear the vexatious litigant motion. Pittman contended the court erred to the extent it relied on Bravo v. Ismaj, supra,
Pittman filed a notice of appeal on September 4, 2015. After the record on appeal was filed and Pittman responded to an order requiring a preliminary showing of merit pursuant to section 391.7, subdivision (b), Pittman was granted leave to proceed with his appeal.
DISCUSSION
1. Governing Law and Standard of Review
Section 473, subdivision (d), provides a trial court "may, on motion of either party after notice to the other party, set aside any void judgment or order." "[I]nclusion of the word 'may' in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order]." ( Cruz v. Fagor America, Inc. (2007)
In determining whether an order is void for purposes of section 473, subdivision (d), courts distinguish between orders that are void on the face of the record and orders that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence. "This distinction may be important in a particular case because it impacts the procedural mechanism available to attack the judgment
An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence. ( OC Interior Services, supra ,
2. The Order Declaring Pittman To Be a Vexatious Litigant Is Not Void for Lack of Jurisdiction
Pittman argues the trial court erred in failing to vacate the vexatious litigant order as void because his voluntary dismissal of the case deprived the trial court of jurisdiction to rule on the pending vexatious litigant motion. Pittman's chronology is correct: The record shows Siemens's vexatious litigant motion was filed in March 2010, Pittman dismissed the case in April 2010, and the court granted Siemens's motion in May 2010.
Pittman's motion to vacate was filed almost five years after the challenged order. However, because the facts supporting the alleged jurisdictional defect are ascertainable by looking solely at the record, Pittman's argument can be categorized as challenging the order as void on its face. As such, Pittman's motion was not barred for being untimely. (See OC Interior Services , supra ,
Notwithstanding this general principle, "courts have carved out a number of exceptions to this rule in order to give meaning and effect to a former party's statutory rights." ( Frank Annino & Sons Construction, Inc. v. McArthur Restaurants, Inc. (1989)
The rationale for retaining jurisdiction to decide sanctions motions is particularly instructive for the issue before us. In Frank Annino the plaintiff voluntarily dismissed a defendant the day before the hearing on that defendant's motion for summary judgment. ( Frank Annino , supra ,
In Day the court similarly held jurisdiction was retained to consider a sanctions motion filed after summary judgment was granted to defendant. The court adopted the reasoning we had articulated in Frank Annino and further emphasized the collateral and ancillary nature of a sanctions motion, stating, "[A] trial court's consideration of a postjudgment sanctions request does not undermine the finality of the merits of the judgment." ( Day , supra ,
The United States Supreme Court has reached the same conclusion. In Cooter & Gell v. Hartmarx Corp. (1990)
Similar reasoning was employed by the court in Bravo v. Ismaj , supra,
We agree with the reasoning in these cases. Like a motion for attorney fees or sanctions, a motion to declare a self-represented plaintiff a vexatious litigant deals with an ancillary issue and has no bearing on the finality of the judgment or dismissal. Retaining jurisdiction to decide a vexatious litigant motion is consistent with the purpose of the statutes, which are "designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants." ( Shalant v. Girardi (2011)
3. Pittman's Motion To Vacate Based on Extrinsic Fraud Was Untimely
Pittman also contends the vexatious litigant order is void because he was fraudulently told by opposing counsel the hearing on the motion would not occur. As discussed, "[w]here, as here, a motion to vacate is made more than six months after entry of a judgment [or order], a trial court may grant a motion to set aside that judgment [or order] as void only if the judgment [or order] is void on its face." ( Ramos , supra ,
Here, Pittman's contention the order is void based on extrinsic fraud cannot be resolved by examining the court record. Rather, it requires consideration of extrinsic evidence, specifically Pittman's own factual assertions, his declaration and the letter sent to him by counsel for Unified Technical. Accordingly, Pittman's motion under section 473, subdivision (d), made five years after the entry of the order, was untimely. (See OC Interior Services , supra ,
To the extent Pittman intended to argue the trial court should have exercised its equitable powers to grant relief, his argument fails. "[E]ven where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order ... resulted from extrinsic fraud or mistake." ( County of San Diego v. Gorham (2010)
4. Pittman's Argument the Trial Court Lacked Jurisdiction To Vacate Its April 19, 2010 Minute Order Is Forfeited
Pittman argues the trial court lacked jurisdiction to vacate its April 19, 2010 order (and subsequently to enter the order declaring him a vexatious litigant) because the requirements of section 1008, governing motions for reconsideration, were not met.
The order is affirmed. Because no respondent appeared, Pittman is to bear his own costs on appeal.
We concur:
SEGAL, J.
BENSINGER, J.
Notes
Statutory references are to this code.
Section 391, subdivision (b), identifies four situations in which a litigant may be deemed vexatious. Once declared vexatious, the statutes provide two complementary sets of remedies. Pursuant to sections 391.1, 391.3 and 391.4, "[i]n pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing, ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed." (Shalant v. Girardi (2011)
It does not appear the trial court ruled on TEG Staffing's motion.
Beck Park Apartments and G&K Management Co., Inc., stating it had been erroneously sued as Goldrich & Kest Industries, later joined Siemens's motion although they previously had been dismissed from Pittman's lawsuit.
The record does not reflect whether the trial court found Pittman to be a vexatious litigant pursuant to section 391, subdivision (b)(1) (commencing, prosecuting or maintaining at least five litigations in the preceding seven-year period that were finally determined adversely to plaintiff) or pursuant to section 391, subdivision (b)(3) (repeatedly filing unmeritorious motions or engaging in frivolous or unnecessary tactics).
Pittman filed a declaration with his ex parte application, attaching a May 17, 2010 letter from Unified Technical's counsel in which Pittman alleges he was told the hearing on the vexatious litigant motion was cancelled. The letter does not mention the vexatious litigant motion or the then-upcoming May 28 hearing, but states only, "I was advised by the Court Clerk that the herein matter was already dismissed by you on April 26, 2010.... [¶] Hence, my client need not respond and we will not respond since the case is no longer active and has been dismissed by the Court."
The minute order cited by Pittman in support of this statement states only that the vexatious litigant motion was continued to a later date.
The minute order cited to support this assertion states a prior order declaring Pittman to be a vexatious litigant was vacated because Pittman had dismissed the action before the court declared him to be a vexatious litigant.
Section 473, subdivision (d), states, "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."
Pittman filed a supplemental brief in support of his motion to vacate in which he argued Siemens had withdrawn its vexatious litigant motion and the court had "issued an order declaring that Plaintiff was not a vexatious litigant." The trial court found the supplemental brief to be improper, struck it from the record and did not consider the evidence presented in it.
The record reflects an opposition to the second motion to vacate was filed on June 15, 2015, but it was not provided in the record on appeal.
" ' "The court may grant relief under its inherent equity power if, because of the fraud of his opponent, the aggrieved party was prevented from presenting his claim or defense to the court...." ' [¶] Additionally, the party seeking equitable relief on the grounds of extrinsic fraud or mistake must show three elements: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the default judgment once discovered." (Rodriguez v. Cho , supra,
Pittman has not addressed, either in the trial court or on appeal, the propriety of filing successive and repetitive motions to vacate the same order. The rule allowing an aggrieved party to challenge an order void on its face at any time does not mean a party may perpetually move to vacate the order until he or she receives a favorable ruling. " 'Somewhere along the line, litigation must cease.' " (Gillies v. JPMorgan Chase Bank, N.A. (2017)
Section 1008, subdivision (a), allows a party to move for reconsideration of an order within 10 days after service on the party of written notice of the order and requires any motion for reconsideration be based " 'upon new or different facts, circumstances, or law....' " (See Le Francois v. Goel (2005)
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.