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In re R.H.

January 26, 2009

IN RE R.H., A PERSON COMING UNDER THE JUVENILE COURT LAW.
FRESNO COUNTY DEPARTMENT OF CHILDREN & FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
R.H., DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of Fresno County. Jane Cardoza, Judge. (Super. Ct. No. 82486-1).

The opinion of the court was delivered by: Vartabedian, A.P.J.

CERTIFIED FOR PUBLICATION

OPINION

R.H. is the father of a 14-year-old child who was adjudged a juvenile dependent (Welf. & Inst. Code, § 360, subd. (d)) in 2000 and has been in out-of-home placement care ever since. Over the years, R.H. in propria persona has filed numerous notices of appeal and writ petitions in this court relating to his son's dependency. Of the decisions which are final, R.H. has not prevailed in a single appeal or writ proceeding. More specifically, in the preceding seven years and essentially since the child was placed in long-term foster care (Welf. & Inst. Code, § 366.26, subd. (b)), R.H. in propria persona has commenced at least 13 appeals or writ proceedings that have been finally determined adversely to him. (Code Civ. Proc., § 391, subd. (b)(1).)*fn1

The untold hours this court has expended in response to R.H.'s voluminous as well as meritless appeals and writs, not to mention the costs of record preparation and court-appointed appellant counsel, has led us to conclude R.H. is a vexatious litigant within the meaning of section 391, subdivision (b)(1) and should be subject to a prefiling order (§ 391.7).

PROCEDURAL AND FACTUAL HISTORY

Dependency Court Proceedings

The juvenile court exercised its dependency jurisdiction over R.H.'s son in 1999 after finding true an allegation that the child's mother failed to provide him with adequate food, clothing or shelter on account of her drug abuse. At the time, R.H. was incarcerated.

Shortly after R.H. was released from custody, Fresno County Department of Children and Family Services (department) alleged and the juvenile court found true that the child was at serious risk of physical harm because R.H. was unable to supervise, protect or provide adequate care or a safe home environment due to his extensive criminal history. The juvenile court also found the child was at risk of suffering serious emotional damage as a result of exposure to incidents of domestic violence between his parents.

At a disposition hearing in early 2000, the juvenile court removed the child from parental custody and placed him in foster care. Despite 12 months of court-ordered reunification services, R.H. was unable to reunify with the child. The juvenile court consequently terminated services in early 2001 and eventually adopted a permanent plan of long-term foster care for the child. Meanwhile, in May 2001, the juvenile court terminated visits between R.H. and the child based on undisputed evidence that the child experienced problems after the visits and R.H. refused to follow visitation rules and court orders. The juvenile court has never reinstated visitation between R.H. and the child.

Since it first selected long-term foster care as the child's permanent plan, the juvenile court has conducted six-month status reviews of the child's dependency. (Welf. & Inst. Code, § 366.3, subd. (d); (status review hearing).) At these status review hearings, the juvenile court has found, based on uncontroverted evidence, that: there was a continuing necessity for the child's out-of-home placement; and neither parent has made progress toward alleviating and mitigating the causes of the child's removal. (Welf. & Inst. Code, § 366.3, subd. (e)(1) & (7).)

Appeal and Writ Proceedings

R.H. in persona propria filed the pending appeal from a February 2008 order granting a continuance of a status review hearing. In the seven years preceding the filing of this appeal, R.H. in propria persona has filed 13 final and unsuccessful appeals and writ petitions, as summarized below.

1. R.H. in propria persona appealed the juvenile court's May 2001 order terminating visitation between appellant and the child. This court affirmed, finding no abuse of discretion. (Slip op. F038474, In re R[.]H. filed 6/18/02.)

2. R.H. in propria persona filed an appeal from a July 2001 order granting a 30-day continuance of the child's permanency planning hearing (Welf. & Inst. Code, § 366.26). Court-appointed appellate counsel could not find an arguable issue to brief and thus did not file an opening brief. (In re Sade C. (1996) 13 Cal.4th 952.) Although we granted R.H. 30-days' time to personally file a letter brief to raise a claim of error, he did not respond to our order.*fn2 This court in turn dismissed the appeal. (Dismissal order, F038552, In re R[.]H.)

3. R.H. in propria persona appealed from a May 2002 status review hearing. R.H. claimed his due process rights were violated and his trial counsel had been ineffective at the hearing. This court affirmed, finding appellant was afforded his due process right to be heard at the May 2002 hearing and any statutory violation was harmless because R.H. could not show prejudice. Likewise, we concluded R.H.'s ineffective assistance of counsel claim was meritless. (Slip op. F041152, In re R[.]H. filed 1/31/03.)

4. Within a matter of days in early 2005, R.H. in propria persona filed two notices of appeal and a petition for writ of mandate arising out of the child's dependency. On the face of all three, R.H. sought to relitigate orders dating back years in the child's dependency as well as to challenge a January 2005 order denying his motion to disqualify a new attorney whom the court recently substituted in to represent R.H. This court summarily denied the petition for writ of mandate. (Denial order, F047336, R[.]H. v. Superior Court.)

5. With regard to the two notices of appeal R.H. in propria persona filed in early 2005, this court consolidated them and limited the scope of R.H.'s appeal to orders issued within 60 days of the two notices of appeal. (Former Cal. Rules of Court, rule 37 (d)(1); now rule 8.400 (d)(1).) Thereafter, R.H. challenged the January 2005 denial of his motion to discharge his new attorney for an alleged conflict of interest. This court affirmed. (Slip op. F047401, In re R[.]H. filed 11/02/05.)

6. Meanwhile in August 2005 and during the pendency of his appeal in F047401, R.H. in propria persona filed three additional notices of appeal and two notices of intent to file a writ. Once again, on the face of these notices of appeal and notices of intent, R.H. sought to relitigate orders dating back years in the child's dependency. This court deemed the various documents to constitute an appeal from juvenile court orders entered after hearings conducted on four dates in August 2005. Over the course of those hearing dates, the juvenile court: granted a request by the mother's attorney to be relieved on conflict of interest grounds; twice granted R.H.'s requests for continuance of the court's status review hearing of the child's dependency; denied R.H.'s effort to launch a section 170.6 challenge; and denied R.H.'s latest Marsden motion to discharge his court-appointed counsel.*fn3

On appeal, R.H. claimed the juvenile court erred in not relieving his trial counsel. He so argued by incorporating the arguments he made in his prior appeal, F047401. We affirmed having determined our unpublished opinion in F047401, which by then was final, adequately addressed R.H.'s arguments. (Slip op. F048646, In re R[.]H. filed 3/2/06.)

7. and 8. Regarding the two notices of intent R.H. in propria persona filed in August 2005, we concluded there was no basis for any writ proceeding under then Rule of Court, rule 39.1B and dismissed each. (Dismissal orders, F048713 & F048720, R[.]H. v. Superior Court.) 9. R.H. in propria persona appealed from the continued status review hearing which the juvenile court conducted in October 2005. Notably, R.H. did not attend the hearing and court-appointed appellate counsel once more filed a Sade C. letter. When R.H. did not respond to our order extending him leave to personally file a letter brief, this court dismissed that appeal. (Dismissal order, F049396, In re R[.]H.)

10. R.H. in propria persona appealed from the child's next status review hearing conducted in February 2006. Court-appointed appellate counsel filed a Sade C. letter. Once again, R.H. did not respond to our order granting him leave. This in turn led to the dismissal of that appeal as well. (Dismissal order, F050216, In re R[.]H.)

11. R.H. in propria persona appealed from the next status review hearing conducted in August 2006. Court-appointed appellate counsel filed yet another Sade C. letter. This time, R.H. did file a letter brief. However, he did not raise any claim of arguable error by the trial court. Thus, we dismissed his appeal by opinion. (Slip op. F051388, In re R[.]H. filed 1/16/07.)

12. R.H. in propria persona appealed from the next status review hearing held in February 2007. He argued the juvenile court should have ordered supervised visits between him and the child as well as that the department did not provide him with a copy of its report in a timely fashion. We affirmed. Notably, the appellate record did not contain any petition to modify (Welf. & Inst. Code, § 388) the court's six-year-old no-visit order, let alone any evidence of changed circumstances and that the child's best interests would be advanced by modifying that order. (Slip op. F052505, In re R[.]H. filed 9/10/07.)

13. R.H. in propria persona appealed from the next status review hearing held in August 2007. Again, court-appointed appellate counsel filed a Sade C. letter. After time expired for R.H. to personally file a letter brief, he requested a continuance without any good cause showing. This court denied R.H. a continuance for lack of good cause shown and dismissed the appeal by order. (Dismissal order, F053821, In re R[.]H. 1/03/08.)

In the pending appeal, court-appointed appellate counsel once again could not find an arguable issue to brief and filed a Sade C. letter. R.H. has never responded to our order granting him leave to file his own brief.

In addition, during the pendency of this appeal, this court has affirmed the juvenile court in yet another of R.H.'s in propria persona appeals. (Slip op. F054546, In re R[.]H. filed 6/10/08.) This was an appeal from the juvenile court's order following its November 2007 status review hearing.

Against this litigious backdrop, we gave R.H. and his court-appointed appellate attorney in the pending appeal notice of as well as the opportunity to brief, produce evidence, and be heard in oral argument on the question of vexatious litigant status. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 225 (Bravo); In re Luckett (1991) 232 Cal.App.3d 107, 108 (Luckett).) Before summarizing the evidence R.H. presented by way of declaration, we observe that in the interim, R.H. in propria persona has initiated three additional appeals from juvenile court orders in the child's dependency. (F055432, F055774, F055876.)

In his declaration under penalty of perjury, R.H. stated throughout the dependency court proceedings his trial counsel had not communicated with him concerning the nature and effect of the juvenile court proceedings and had not explained the appellate process, whether he should appeal or what was a viable issue on appeal. Adding that he did not have the funds to hire an attorney, R.H. asserted the only way he could obtain legal advice about whether he had a potentially meritorious appeal was to file a notice of appeal and secure court-appointed appellate counsel. R.H. also claimed he acted reasonably in pursuing his belief that his trial counsel had a conflict of interest by filing the appeals in F047401 and F048646. R.H. further declared a lack of notice and monitored visits with his son have prompted him to seek appellate relief.

In particular, he believes the lack of monitored visitation constitutes legal error and that his attorney has not pursued visitation for him in the juvenile court. Under these circumstances, he claims to "have a good-faith belief that there are ongoing errors occur[r]ing in the trial court which probably will justify me seeking appellate relief in the future."

While R.H. claims a primary concern that his attorney has a conflict of interest, not only the juvenile court but this court has rejected that claim more than once. To the extent he professes concern over a lack of notice and the lack of visitation, the record over all these years simply does not support such concerns.

DISCUSSION

I. Vexatious Litigant Law

California's vexatious litigant law dates back to the early 1960's when the appellate court in Stafford v. Russell (1962) 201 Cal.App.2d 719, 722 suggested the study of vexatious litigation and the unreasonable burdens it places upon the courts. In response, the Legislature enacted sections 391 through 391.6 (Stats. 1963, ch. 1471, § 1, p. 3088) to address problems "created by the persistent and obsessive litigant, appearing in propria persona, who has constantly pending a number of groundless actions." (Committee on Administration of Justice, Report, (1963) 38 Cal. State Bar J. 485, 489; Rawles, The California Vexatious Litigant Statute: A Viable Judicial Tool to Deny the Clever Obstructionists Access? (1998) 72 S.Cal. L.Rev. 275, 284-285.)

As originally enacted, section 391 defined terms used in the substantive provisions of the law. In particular, its definition of vexatious litigant included a "person":

"(1) Who, in the immediately preceding seven-year period has commenced, prosecuted or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to him; or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing . . ." (§ 391, subd. (b)(1).)*fn4

The balance of the original vexatious litigant law, sections 391.1 through 391.6, established procedures by which a defendant in a pending case could move to designate a plaintiff as a vexatious litigant and to require a vexatious litigant to furnish security under certain specified circumstances. Failure to produce the ordered security would result in dismissal of the litigation in the defendant's favor.

Since its enactment of the vexatious litigant law, the Legislature has expanded its reach. (Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838, 843.) Most notably, in 1990, the Legislature both broadened the definitions of terms used in the law (§ 391) as well as created an additional tool, known as a prefiling order (§ 391.7), by which courts may counter vexatious litigants' misuse of our justice system (Bravo, supra, at p. 221). (Stats. 1990, ch. 621, § 3.)

Currently, section 391 defines terms, used in the vexatious litigant law and relevant to our discussion, as follows:

"(a) 'Litigation' means any civil action or proceeding, commenced, maintained or pending in any state or federal court.

"(b) 'Vexatious litigant' means a person who does any of the following:

"(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

"(2) After 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.

"(3) In 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.

"(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

" [¶] . . .[¶] "(d) 'Plaintiff' means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained, including ...


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